A A ! I I 8 [ 8 i 4 I 5 I 4 = 8 i iliii^ 'iii|| :iiiiii if : : 5 } 1. ! I t ill 1 ' i f 1 I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY v-^ '^r^ \HmA\irO/ M-LIBKA! ■OFCALIFO/?^ '^AaaAiNomv ■/^AWHHn-i^' ^^tiii)i-iArir(7/- ^OJITV^J^' ^OFCALIFO% \WEUN1VER^// '^^•AHVy9n-#' 158 Orange Co. Bk. v. 107, 1 14, 207 V. Spofford, 269 V. Wabash, &c. R. R. Co. 115 V. Wiley, 269 V. Wilkinson, 7, 40 Browning v. Long Island R. R. 127,. 240, 241 Brownlee, Louisville & Nash. R. R. Co. V. 84 Brush V. S. A. & D. R. R. Co. 91 Bryan, American Ins. Co. z'. 318 Chicago & A. R. R. Co. z/. 17s Bryce v. Lorillard Fire Ins. Co. 228 Buchanan, Gordon v. 298 Bucher v. Cheshire R. R. 219 Buckland v. Adams Exp. Co. 224, 232 Buddy V. Wabash St. L. & P. R. R. Co. 331 Buffalo, &c. R. R., Fenner v. 283 V. O'Hara, 107, 109 Penn. R. R. v. 102 Willets V. 139, 176 Buffalo & Erie R. R., French v. 255 Buffalo & P. R. R. Co., Metz 7/. 1 12 Bulkley v. Naumkeag St. Cotton Co. 310 Burckle v. Eckhard, 185, 186 Burges, Steele v. 328 Burke, Houston, &c. R. R. v. 85, 91, 211 Louisville & N. R. v. 176 Miller v. 243 Burlington & M. R. R. Co., Gregory V. 164 McCune v. 115, 206, 248 V. Rose, 132, 153, 179 Burnard, Davidson v. 304 XIV TABLE OF CASES. Burnham 2/. Grand T. Ry. Co. 167 Burroughs v. Norwich & Worcester R. R. Co. 266 Butler V. Boston & Savannah S. S. Co. 8, 26, 27 Broadwell v. 246, 342 V. Hudson R. R. R. 210 V. Manchester S. &. L. R. Co. 140, 210 Penn. R. R. Co. v. 85 Button V. The London & S.W. Ry. Co. 325 Buyers, Leisy v. 242, 247 Byrne v. Schiller, 61 Cadmus, Earl v. 122 Cahawba, Edwards v. 328 Cahn V. Michigan Cent. R. R. 243 Cain V. Garfield, 337 Caldwell, Express Co. v. 123 V. N. J. Steamboat Co. 259 V. So. Exp. Co. 312, 314 Calebs, Merc. Mut. Ins Co. v. 339 California, The, 291 California Central R. R., Wright v. 151, 156, 172, 180 Camden & Amboy R. R. Co. v. Bal- dauf, 85, 210, 231, 252 V. Bausch, 107, no, 267 Edsall V. 279 V. Farnham, 76, 85, 117, 222, 227, 257 V. Forsyth, 279 Lamb v. 236, 252, 255, 257, 270, 271, 277, 278 Maghee v. 237, 262, 281 Manhattan Oil Co. v. 278, 281, 284 Camden & Atlantic R. R., Brown v. 186, 206 Cameron v. Rich, 259 Camors, Watts v. 197 Campbell, Bissell v. 295 V. Evans, 59 Louisville, &c. R. R. v. 282, 283 V. Morse, 236 State V. 142, 174 Vance v. 64 Camp Point Mfg. Co. z'..Ballou, 81 Canfield v. B. & O. R. R. Co. 87, 234, 253,255,262 Canima, The, 44 Cantling v. Hannibal & St. Joseph R. R.242 Capehart v. Seaboard, &c. Railway, 125 Caperton, So. Ex. Co. v. 123 Captain John, The, 333 Carey, Commonwealth v. 1 57 Carl Johan, The, 11, 14 Carlotta, The, 300 Carlson v. Oceanic Steam Nav. Co. 49 Carman, Gilmore v. 302 Carman's Exp. Co., Collins v. 16 Carnegie, Jessup v. 200 Caroline, Whitmore v. 248 Carpenter v. Grand Trunk R. R. Co. 149 V Ins. Co. 13 V. Washington & G. R. R. Co. 170 Carper, Cinn. &c. R. R. Co, v. 158 Carr v. Lancashire & York R. R. Co. 86, 235 V. Michigan, 342 Williams v. 201 Carroll v. Mo. Pacific R. Co. 84, 88 Nash. R. R. Co. z/. 176 V. N. Y. & N. H. R. R. 157. Overland, &c. Express Co. v. 246 V. Staten Island R. R. Co. 50, 51, 108. 219 Carrow, Mich. Cent. R. R. Co. v. 207 Carson v. Harris, 289 Carstairs v. Merchants' & Traders' Ins. Co. 340 Cassilay v. Young, 342 Cayzer v. Taylor, 80 Central Line, &c. v. Low, 297 Central Pac. R. R., Cody v. 149 Drew V. 178 Phister v. 99, 210 Central R. R. & Banking Co. v. Avant, 286 V. Smitha. 83, 102, 216 Central R. R. of N. J. v. Green, 152 Kinney v. 87, 107, no Central R. R. Co. v. Avant, 286 V. Combs, 286 V. Dwight Manfg. Co. 224 V. Kuhn, 261 McClellan v.\\\ National Docks •z'. 131 V. Smuck, 335 York Co, V. 82, 227, 273, 275, 324 Chadwick, Spencez/. 313 Chamberlain v. Western Transporta- tion Co. 16, 22, 24, 49 Champlain Trans Co., Dougan v. 51 Farmers' Bank v. 76, 231, 233, 242 TABLE OF CASES. XV Chanslor, Lemon v. 107 Chapin. Goold 71. 284 Chapman v. Erie R. R. 80 Fisk V. 297 V. Royal Netherlands Steam N. Co. 43 Steamship Sultana v. 331 Chappell V Bradshaw, 41, 51 Charleston & Savannah R. Co. v. Moore, 210 Charlotte R. R. Co., Palmer v. 148, 169 Chartered Merc.Bk. of India?/, Nether- lands India S, N. Co. 199, 234 Chasca, The, 329 Chase v. N. Y. Central R. R. 134 Chastine, Memphis & Charleston R. R. Co. V. 171 Chenewith. Lackawanna & Blooms- burg R. R. V. 158 Cheney v. Boston & Me. R. R. 143, 146, 178 Hall V. 253 Chesapeake & O, R. R. Co,, Wilson v. 148, 265 Chesapeake, O. & S, W, R. Co, v. Wells, 152 Cheshire R. R., Bucher v. 219 Chesholm, Chic. & N. W. R. R, Co. V. 178, 233 Chester, Rossiter v. 14 Chevellier v. Patton, 247 Cheviot V. Brooks, 314 Chicago & Alton R. R., Churchill v. 146, 148 Dawson v. 84 . V. Flagg, 135, 171 T/. Randolph, 154, 159 V. Shea, 211, 212 V. Simms, 123, 126 Thompson v. 128 Chicago, B. & Q. R. R., Bryan v. 175 V. Griffin, 154, 168 V. Manning, 259, 296, 308 Palmer v. 283 V. Parks, 133, 135, 137, 171 Chicago & Great Eastern R. R. Co., V. Harney, 81 Chicago & G. T. R. Co., Thomas v. 154 Chicago, M. & St. P. R. R., Cream City R. R. V. 238 Gould V. 176 Hemingway v. 176 Hutchison v. 214, 227 Chicago & N. W. R. R,, Ayres v. 105, 248, 257 V. Bannermann, 150 Chicago & N. W.R. R., Bass 7/. 151, 158 V. Chesholm, 178, 233 V. Gandy, 260 German v. loi, 270 Haley •z'. 155 Hart V. 217 Laughlin v. 253 Marquette v. \z^i McDaniels v. 235 McDonald and wife v. 78 V. Merrill, 178, 233 V. Montford, 229, 274 V. Peacock, 172 Peet V. 246 Peik v. 200, 349 People V. 132, 174 Post 7/. 149, 150 Sherman v. 142, 163 Stone 7/. 146, 163, 173, 176 V. Swett, 81 Wightman^/. 142 V. Williams, 151, 152, 159 Chicago & Rock Id. R. R. v. Warren, 33I1 332 Chicago, R. I. & P. R., Paine v. 135 Way V. 108, 150 Chicago, St. L. & P. R. R. Co. v. Bills, 159, 173 Chicago, St. Louis & New Orleans R. R. V. Moss, 235, 249, 258 Chicago, &c. R, R. v. Abels, 98, 118, 258 Brown v. lyi Curl V. 135. 174, 176 Curtis V. 193. 303 Denton v. 257 Dougherty 7/. 218 Everett v. 134, 171 Field V. 228. 229 Harmon v. 98, 115 Hooper v. 244 McDaniel v. 188, 235 Miltimore 7/. 216 V. Moss, 235, 249, 258 O'Rourke z/. 214 V. Peacock, 172 Porter 7/. 331 V. Scott, 331, 332 Tardos v. 285 V. Thompson, 208 Childs V. Little Miami R. R. Co. -55 China, The, 46 Chipman, Boston & M, R. R. v. 180, 256 Chippendale v. Lancashire & York- shire R, Co. 78 XVI TABLK OF CASES. Chisholm v. Northern Transp Co. 33, 42, 50 Choteau v. Steamboat " St. Anthony," 112, 248 Chovin, State v. 131, 133 Christenson v. Am. Exp. Co. 84 Churchill z>. Chicago & Alton R. R. 146, 148 Cincinnati, &c. R. R., Carper v. 158 Crawford v. 140 V, Marcus, 207 Cincinnati & H. D. R. R. Co., Fatman V. 90 Muller^/. 223 Cin. S. & C. R. R. Co., Gray v. 153 V. Skillman, 170 Cisco V. Roberts, 17, 345 City Bank of N. Y. v. Skelton, 316 City of Bridgeton, Green v. 153 City of Columbus, The, 26, 60 City of Hartford, The, 44 City of Lowell, Hildreth v. 59 City of Norwich, The, 40, 55, 60, 62, 63, 65, 68, 72, 83, 117 City & Suburban R. R. v. Brauss, 169 Civil Service Boards, People v. 345 Claflin, Wills v. 349 Clark V. Barnwell, 253, 255, 292 V. Faxton, 233 Hedley t'. 313 V. McDonald, 98 Oil Creek & All. Ry. Co. v. 178 V. St. Louis R. R. Co. 94, 100 V. Wilmington & W. R. R. Co. 174 ' V. Wilson, 338 Clarke v. Rochester & S. R. R. 98, loi Clayton, Wallace v. 303 Cleary, St. Louis, Kansas City & N. Ry. Co. V. 273 demons, Houston, &c. R. R. Co. v. 154, 156 Cleopatra, The, Cochran v. 298 Cleveland, The, Hunt z/. 252, 253, 255 Cleveland, Columbus, &c. R. R. v. Bartram, 138, 147, 153 Cleveland & Toledo R. R., Sisson v. 103, 238 Cleveland, P. & A. R. v. Curran, 84, 109, 266 V. Sargent, 215 Cleveland v. N. J. Steamboat Co. 107 Cloud V. St. Louis L M. & S. Railway Co. 163 Clyde V. Graver, 240, 276 Patterson z". 255 Cochran v. The Cleopatra, 298 V. Dinsmore, 255 Cody V. Central Pacific R. R. 149 Coffin V. N. Y. Central R. R. 270 Coflin, Barker v. 142, 170, 231 Coger V. Northwest Union Packet Co. 153 Coggs V. Bernard. 317 Cohen v. Frost, 162 Colder, Laing v. 85, 260 Cole V. Goodwin, 76, 87, 114, 232, 233 V. Malcolm, 338 Martin v. 269 V. Western Union Tel. Co. 123 Colegrove v. N. Y. & N. H. 155 Coleman, Jencks v. 157, 158 V. New York & N. H. R. R. Co. 172 Collector, The, Hadden v. 95 Collenberg, The, 305 Collender v. Dinsmore, 227 Collier v. Swinney, 308 V. Valentine, 262 Collins, Baldwin v. 206 Bristol & Exeter R. R. v. 281 V. Bristol & Exeter R. Co. 93 V. Carman's Exr. 16 Colon, The, 327, 329 Colonel Ledyard, The, 245 Colt V. McMichen, 298 Columbia Steam Nav. Co., Leonard v, 200 Columbo, The, 292, 295 Columbus, The City of, Sturges v. 342 Columbus & W. R. R. Co., Tillermaa V. 285 Combe, Boehm v. 322 Combs, Central R. R. Co. v. 286 Comegys v. Vassar, 338 Commercial Bank of Chicago, North Penn. R. Co. v. 244, 337 Commissioners of Excise, German v. 316 Common Council, People v. 345 Commonwealth Ins. Co., Carey v. 157 Robinson v. 14 Vermont & Mass. R. R. Co. v, 230 Commonwealth, Power t/. 131, 157, ^S^ Compagnie Francais, Paturzo v. 329, 330 Compromise, The, Hatchett v. 342 Compta, The, 234, 254 Compton V. Von Volkenburgh, 174 Concord R. R., Johnson v. 242 TABLE OF CASES. XVll Condict V. Grand Trunk R. R. 235 Condon v. Marquette, &c. R. R. 283 Conkey v. Milwaukee R. R. 282 Conn. Fire Ins. Co., Erie Transp. Co. V. 199 V. Erie R. Co. 338 Conn. Ins. Co., Craig z'. 31, 43, 53 Conn. Mut. Life Ins. Co. v. Schaefer, 64 Conn. Pass. R. R. Co., Beard v. 79 Conn. River Steamboat Co., Hall v. 78 Connell, Penn. R. R. v. 168 Connolly v. Crescent City R. R. Co. 173 Continental Ins. Co., Craig v. 31, 53 Phoenix Co. v. 198, 199 Contra Costa S. N. Co., Yeomans v. no Convoy's Wheat, The, 245 Cook V. Holt, 316 Cooiey V. Port Wardens of Phila. 349 Coombs V. New Bedford Cordage Co. 80, 81 U. S. V. 16 Cooper V. Berry, 241, 243 Berry t/. 259 V. Earl of Waldegrave, 184, 192 V. Kane, 246 Cooper & Boykins' Ex., Berry et al. v. 83 Cope V. Doherty, 19 Copeland, 111. Central R. R. v. 284 V. N. E. Marine Ins. Co. 31, 304 Corbett v. 23d St. R. R. Co. 131 Corcoran, Little Rock, M. R. & T. R. Co. V. 255, 257 Cordes, Propeller Niagara v. 307, 311 Corn Ex. Ins. Co., Savage v. 218 Cornell, Jardine v. 172 Cornforth, Merch. Des. T. Co. v. 270 Cornwall, Mo. Pac. Ry. Co. v. 85, 104 Costa Rica, The, 306 Coulters, Patapsco Fire Ins. Co. 323 County of Leavenworth v. Barnes, 200 Coup V. Wabash, St. L. & P. Ry. Co. 106 Covington v. Willan, 75 Cowell V. Springs Co. 16 Cowley V. Davidson, 303, 308, 309 Cox, Indianapolis & C. R. R. Co. v. 120 V. Petersen, 309 V. U. S. 186 Waters v. 188, 201 B Coxe, Garrigues v. 301 V. Heisley, 240, 246 Cragin v. Lamkin, 201 V. N. Y. Cent. R. R. Co. 87, 98 Craig V, Continental Ins. Co. 31, 43, 53 Crane, Whitsell v. 242 Crapo V. Kelly, 190 Crawford ^i. Cincinnati R. R. 140 V. Southern R. R. 284 Cream City R. R. Co. v. Chicago, M. & St. P. R. Co. 238 Crescent C. R. Co., Connolly v. 173 Cresson v. Phil. & Reading R. R. 140, 179 Crocker v. New London W. & P. R. R. Co. 133, 134, 138, 325 Cromwell, Bird v. 307 Crook, Southern Exp. Co. v. 83,231 Crosby v. Fitch, 297 Crouch V. London & N. W. R, R. 130, 210, 211 Crudup, 111. Cent. R. R. Co. v. 194 Crum V. Bliss, 200 Crystal Palace v. Vanderpoel, 162 Cuba, The, 310 Cubbedge v. Napier, 201 Cullifor, Hayn v. 234 Culver, Gibson v. 241 Cunard, Brown v. 118, 122 V. E. T. V. & G. R. R. 118 Curl V. Chicago R. I. & P. R. Co. 135, 174, 176 Curran, Cleveland P. & A. R. Co. v. 84, 109, 266 V. Warren Chemical & M. Co. 260 Currel, Arayo v, 189 Currie, Rothschild v. 192 Curry v. Mount Sterling, 59 Curtis V. Chicago, &c. R. R. Co. 303 V. Delaware, L. & W. R. 193, 194, 195 Michigan Central R. R. v. 104, 245 V. Rochester & Syr. R. R. 260 Cutts V. Brainerd, 284 Czech V. Gen. Steam Nav. Co. 256 C, H. & D. & M. R. R. V. Pontius, 84 Dagget, Spencer v. 307 Dalby, St. Louis, &c. R. R. v. 135, 137 Dallet, Forbes %>. 261 Dalzell, Spencer v. 307 V. The Saxon, 283 XVlll TABLE OF CASES. Darling v. Boston & Worcester R. R. 285 Darnell, Adams Exp. Co. v. 244 Pac. Exp. Co. V. 123 Davenport, Fowler v. 297 Daves, Haywood v. 201 David and Caroline, The, 327 Davidson v. Burnard, 304 V. Cowley, 303, 308, 309 V. Graham, 84, 263 Davies v. N. Y. & N. E. R. R. Co. 194 Davis, Forbes v. 162 Graham & Co. v. 84, 93, 263 Haywood v. 201 Morrison v. 237, 269, 303, 308 Stiles V. 316, 317 Wabash & St. Louis R. R. Co. 309 Dawson v. Chicago & A. R. R. 84 Georgia Ins. Co. v. 304 V. St. Louis R. R. Co. 123 Day, Briggs v.Ji V. Brooklyn City R. R. 321 V. Owen, 152, 158 Dean, Little Rock & F. S. R. R. Co. V. 145, 148 Decker, Huntington & Broad Top R. R. Co. V. 80 Prentiss v. 120, 263, 264 DeCuadra v. Swan, 61 DeCuir, Hall v. 153 Dedekam v. Vose, 327 DeGraff v. N. Y. C & H. R. R. R. 80 Delaware, The, 245, 247, 269 Delaware & Hudson Canal Co., Bevier V. 79 English V. 169, 170 Delaware, &c. R., Round v. 321 Delaware, L. & W. R., Atwater 7/. 177 Curtis V. 193 Gale V. 146 Pease v. 174 Wasmer z/. 1 11 Delhi, The, 259, 327 DeLucas v. New Orleans, &c. R. R. 134, 135, 139 Demarest v. Wynkoop, 16 Dempsey v. Kipp, 247 DeNederlandsche, &c. Co., Feldman v. 71 Denmark. The, 121, 209 Denn v. Reid, 46 Dennick v. R. R. Co. 194 Denny v. N. Y. C. & H. R. R. R. 145, 237 Denton v. Chicago, &c. R. R. Co. 257 Denver R. Co., Oppenheimer v. 163 Depau V. Humphreys, 187 Derby, Phil. & Reading R. R. Co. v. 82, 106, 157 Derwort v. Loomer, 76, 233, 240 Des Moines Vail. R. Co., Rose v. 91, 113 Detroit & Michigan R. R., Strohn v. 229, 270, 313 Detroit & Milwaukee R. R. Co. v. Adams, 238, 271 Devillers v. Bell, 283 DeWitt V. Barley, 347 Dial V. Reynolds, 68 Diaz V. The Revenge, 321 Dibbin, Hinton v. 49, 86, 92 Dice V. Willamette Trans. Co. 147 Dickinson v. Edwards, 187 Ex part e^ 185 Dickson, Wilson v. 7, 30, 37, 61 Dietrich v. Penn. R. R. 103, 143, 146, 159, 160, 163, 178 Dillars v. Louisville & N. R. R. Co. 227, 231 Dillon V. N. Y. & Erie R. R. Co. 284 Dinsmore, Belgerz/. 115, 117, 226, 227, 228 Cochran v. 255 CoUender v. 227 Ghormley v. 129 Gott V. 231, 271 Hirshberg T/. 123, 126 Huntington v. 222, 223 Kirkland v. 226, 227, 229, 241 Magnin z/. 93. 94, 117,118, 119, 120, 208, 211, 227, 234 V. Neresheimer, 87 Smith V. 123, 128 Wetzell v.\z\ Doane v. Keating, 269 N. Y., C. & St. L. R. Co. z/. 154 Dodd, Blossom v. 225, 226, 269 Dodson V. Grand Trunk R. R. Co. 86 Doe, Richards v. 289 Doherty, Cope v. 19 Dole V. N. E. Ins. Co. 312 Donnell, Sproat v. 246, 247 Donovan, Batson v. 1 14, 209 Doran v. East River Ferry Co. 107 D'Orbigny v. Guerin, 26 Doris Eckhoff, The, 55 Dorman, St. Louis & S. E. R. Co. v. 78, 99 Dorr V. New Jersey Steam Navig. Co. 76, 87, 221, 227, 233, 241 Dougan v. Champlain Trans. Co. 51 Dougherty v. Chicago, «S:c. R. R. Co. 218 TABLE OF CASES. XIX Down V. Fromont, 121 Downer, W. Transportation Co. v. 2C2 2 ■> ? Downs V N. Y. & N. Haven R. R. 140, 174, 238 Dows V. Rush, 288 V. Perrin, 288 Drew V. Central Pac. R. R. 178 Drew Theo. Sem., Hollis v. 95 Drury, Laveroni v. 300 Dryden v. Grand Trunk Railway, 16, 143 Dry Dock, E. B. & B. R. Co., Walker V. 142 Dubuque, Gelpcke v. 200 Dubuque, &c. R. R., Francis v. 331 Duero, The, 86 DuLaurans v. St. Paul & Pacific R. R. 135 Duling V. Philadelphia, W. & B. R. R. 159, 160, 178, 243 Dunlap V. The International Steam- boat Co. 49, 116 V. N. Pac. R. R. Co. 154 Dunn V. Branner. 162 V. Grand Trunk R. R. Co. 78 V. Hannibal & St. Jo. R. R. 102, 129, 283 Dunphy v. Erie R. R. Co. 145, 178 Dunseth v. Wade, 342 Dunson v. N. Y. Central R. R. 236, 282, 289 Dupont V. Vann, 298 Durkin, Railway Co. v. 78 Dusenberry, Little v. 286 Duyckinck, Watson v. 60 Dwight Man. Co., Central R. R. v. 224 Dyer v. National S. S. Co. 9, 71 Dykez/. Erie R. R. Co. 193, 194, 195 D. & N. W. R. Co., Hoffbauer v. 174, 175 Eagan v. Tucker, 80 Eagle, The, 15 Earle, Bank of Augusta v. 16, 182 V Cadmus, 122 Haley t/. 218 Merritt v. 219, 298 Phillips V. 206, 210, 218 Earl of Waldegraff, Cooper v. 184, 192 Earnest v. Express Co. 83, 117 Eastern R. R., Brown v. 264 Hurt V. 108 Eastern S. Co.. Tarbox v. 266 East Line R. R., Hull v. 166 V. Lee, 108 East River Ferry Co., Doran v. 107 East St. Louis R. Co. z/. Wabash, St. L. & P. R. Co. 333 East Tenn. &c. R. R., Cunard v. 118 V. Fain, 176 Gibson and wife v. 173 V. Johnston, 99 Lane v. 153, 180 Trotlinger ^'. 159, 160 V. Whittle, 105, 112 Eaton, Abbe v. 266 V. Neumark, 282, 292 Nichols V. 347 Eby, N. Y. C. & H. R. R. R. v. 293 Eckhard, Burckle v. 185, 186 Eddy, The, 331 Edgerton v. The Harlem R. R. 1 57 Edmonds, Montgomery, &c. R. R. v. 216, 235 Edsall V. Camden & A. R. R. 279 Edwards, Boyce v. 192 Dickerson v. 187 Phillips V. 206, 210, 211, 212, 218, 235 V. The Cahawba, 328 V. White Line Co. 319 Edwin, The, 271, 310 Egypt, The, 24, 325, 336 Eighth Ave. R. R. Co., Sanford v. 173 Eleanora, The, 45, 47 Elias, Homesley v. 244 Eliza Jane, The, 190 Elkins V. Empire Trans. Co. 11^, 117 Ella, The, 34 Ellis, Gillett v. 299 V. Narragansett S. S. Co. 1 53 V. N. Y., L. E. & W. R. R. 80 V. Willard, 266 Ellison, Gulf, &c. R. R. Co. v. loi Elmendorf v. Taylor, 199 Elmore v. Sands, 142, 143, 178 Elwell V. Geibei, 53 Empire City Bank, The, 58, 59 Empire Transp. Co., Elkins v. 115, 117 V. Wamsutta Oil Refining and Mining Co. 85 England v. Gripon, 51 English V, Delaware & Hudson Canal Co. 169, 170 V. The Ocean Steam Navig. Co. 294 Enrique, The, 299 Enterprise, The. 67 Epsilon, The, 26, 27 Equitable Safety Ins. Co., Benner v, 61 XX TABLE OF CASES. Erie R. Co., Blackstock v. 316 Blair •z/. 113 Bordeaux v. 134 Chapman v. 80 Conn. Fire Ins. Co. v. 338 Dunphy v. 145, 178 Dyke v. 193, 194, 195 Ellis V. 80 Green 7^. 218 Hibbard v. 139, 140, 170, 174 Knowlton v. 84, 184 -v. Lockwood, 235 McCarty v. 332 Paulmier v. 80 Rogers Locomotive Works v. 130 Steinweg v. 79, 227, 234 Wentz V. 142, 148, 163 Whitworth v. 236, 257, 263, 278, 281 V. Wilcox, 213 Wing V. 236 Erie Transp. Co., Phoenix Ins. Co. v. 47, 83, 118, 339 Estes, Nashville, &c. R. R. v. 312 Estis, Boyd z/. 113 Ethel, The, 302, 320 European & N. A. R. R., Hanson v. 172 Evans, Campbell v. 59 V. Fitchburg R. R. 98, 104 V. Hutton, 313 V. Memphis, &c. R. R. 154 Moore v. 87, 221, 229 V. St. Louis, &c. R. R. Co. 107 144 Evansville, &c. R. R. Co. v. Young, 83 Eveleigh v. Sylvester, 308 Everett v. Chicago, &c. Railway Co. I34< 171 Southern Exp. Co. v. 211, 212 V. Vendrj-es, 192, 194 Ewart V. Street, 253, 297, 299, 305, 307 Exposition Cotton Mills, Western & A. R. Co. V. 196, 234, 284, 286, 327 Express Co. v. Caldwell, 123 Earnest v. 83, 117 V. Kountze Bros. 83, 236 Weil V. 267 Weir V. 123, 124 Fabbri z/. Kalbfieisch, 199 V. The Mercantile Mut. Ins. Co. 240 Fagan, Mo. Pac. R. R. v. 85, 89, 102, 124, 129, 246, 269 Fain, East Tenn. &c. R. R. Co. v. 176 Fairbank v. Haentzche, 81 Fairchild, Penn. Co. v. 188 Slocum V. 299 Fairfield v. County of Gallatin, 200 Faler, New Orleans, &c. R. R. Co. v. 235 Falkenan v. Fargo, 230 Falkner v. Ohio & Miss. R. R. 153, 179 Falvey v. Georgia R. R, 285 V. Northern Transportation Co. 262 Fargo, Falkenan v. 230 Gorham Man. Co. v. 206, 211 Little z^. 315 Sutro V. 2^s Westcott V. 120, 127, 227, 230 Farmers' Loan & T. Ass., Betts v. 215 Farmers' & Mechanics' Bank v. Cham- plain Transportation Co. 76, 233, 242 Farnham v. Camden & Amboy R. R. 76, 85, 117, 222, 227, 257 Farragut, The, 158, 309 Fassett v. Ruark, 294 Fatman v. Cincinnati, H. & D. R. R. Co. 93 Faulkner v. Hart, 201, 203, 283, 331 Favorite, The, 298 Faxton, Clark v. 233 Fay V. The New World, 1 1 5, 228 Feige v. Michigan Central R. Co. 228 Feldman v. De Nederlandsche, &c. Co. 71 Fellows, Vedder 7/. 131, 132, 141 Fendrick, Adams Exp. Co. v. 83 Fenner v. Buffalo, &c. R. R, 283 Ferguson v. Fyffe, 188 Fern Holme, The, 256, 300 Fibel V. Livingston, 231 Field V. Chic. & R. I. R. R. Co. 228, 229 Fillebrown 7'. Grand Trunk R. Co. 222, 224, 233 Finch, Pier z/. 146, 147, 265 Fink V. Albany & Susquehanna R. R. 160, 242 Finn v. Timpson, 253 Fire Ins. Co. v. Lorrillard, 228 Fireman's Ins. Co. v. Powell, 304 First Nat Ins. Co. v. Wilkinson, 123 Fisk V. Chapman, 244, 297 Fitch, Crosby v. 297 TABLE OF CASES. XXI Fitchburg R. R., Evans v. 98, 104 Ford V. 81 Holden v. 81 Leonard v. 246. 249 Littlejohn v. 108, 113 Warren v. "]% Fitzhugh V. Wyman, 267 Fix, Lake Erie, &c. R. R. v. 169 Flagg, Chicago & Alton R. R. v. 135, 171 Parker v. 302 Fleming, Louisville, N. & G. S. R. R. Co. 132, 139, 140, 176 Flinn v. Phila., Wil. & Bait. R. R. 83 Flint & Marquette R. R. v. Weir, 113 Flushing R. R., Terry v. 146, 178 Folliard, L & G. N. R. R. v. 162, 218 Fond du Lac, Olcott v. 200 Forbes v. Dallett, 261 V. Davis, 162 Force v. Providence-Washington Ins. Co. 5, 189 Ford V. Fitchburg R. R. 81 Gannel v. 100 Houston, &c. R. R. v. 142 Forsyth, Camden & Amboy R. R. Co. V. 279 Forsythe v. Walker, 214 Forward v. Pittard, 302 Foster, The C. H. 45 Fowler v. Davenport, 297 V. Hecker, 64 Fox V. Boston & Me. R. R. 237 Warfield v. 16 Fralof, Railroad v. 207 N*. Y. C. R. R. Co. 7/. 116, 118 Francis v. Dubuque, &c. R. R. Co. 331 Frank v. Ingalls, 265 Frankenberg, III. Central R. R. Co. V. 284 Franklin, The Lady, 266 Franklin v. Twogood, 201 Eraser v. Freeman, 321 Frederick v. Marquette, H. & O. R. R. Co. 169 Fredericks, T. W. & W. Ry. Co. v. 81 Freeman, Eraser 2/. 321 V. Newton, 220, 264 Wilson V. 120 French v. Buffalo & Erie R. R. Co. 255 Lafayette Ins. Co. v. 16 V. Star Union Co. 317 Friedenrich v. Baltimore & O. R. R. 150 Fromont, Donn v. \2\ Frost, Bond v. 266, 284, 289 Cohen v. 162 Peoria Ins. Co. v. 338 Fuller V. Association, 86 V. Jewett, 80 Fung Shue, The, Simon v. 236 Fyffe, Ferguson v. 188 Gaetano and Maria, 188 Gaff, et al., Wright v. 83 Gage V. Tirrell, 270, 312 Gagnon, Goodrich Trans. Co. v. 53 Gaines v. Union Trans. Co. 235, 250 Gainsbury, Mason v. 338 Gaither v. Barnet, 308 V. Myrick, 337 Gale V. Del, L. & W. R. R. 146 V. Laurie, 7 Levois V. 206, 212 Galena & Chicago Union R. R. Co. v. Rae, 263 Gales V. Hailman, 338 Gallatin, County of, Fairfield v. 200 Gallena v. Hot Springs R. R. Co. 172 Gait V. Adams Exp. Co. 90 Galveston, &c. R. Co. v. Allison, 93 Galveston, H. & S. A. R. Co., Good V. 127 Gamecock, The, 44 Gana, Barclay v. 2,^7 Gandy v. Chicago & N. R. R. Co. 260 Gann, Georgia R. R. v. 83 Gannel v. Ford, 100 Gants, Atchison, Topeka & S. F. R. Co. V. 159, 160, 170. 171, 178 Garden City, The, 24, 35, 39, 56, 67, 73 Garey v. Meagher, 248 Garfield, Cain v. 337 Garland, Ex parte, 69 Garrett, Louisville & Nash. R. R. Co. V. 175 Garrig^es v. Coxa, 301 Garrison v. Memphis Ins. Co. 302 Garston Co. v. Hickie, 301 Garton v. Bristol & N. W. R. R. Co. 130 Gatliffe, Bourne v. 331 Gauche v. Storer, 290 Geibei, Elwell v. 53 Geismer v. Lake Shore, &c. R. R, 315, 316 Gelpcke v. Dubuque, 200 General Iron Screw Co. v. Schurmanns, 19, 70 General Mutual Ins. Co. v. Sherwood, 31, 304, 306 XXll TABLE OF CASES. General Steam Nav. Co., Czech v. 256 General Transp. Co., Guillaume v. 214 Genesee Chief, The, 6 George, The Ship. 14 Georgia Ins. Co. v. Dawson, 304 Georgia Pac. R. R. Co., Head v. 164, 167 Georgia R. R. v. Bigelow, 144 Falvey v. 285 V. Gann, 83 Mitchell V. 99 V. Spears, 99, 231 Georgia R. R. & B. Co. v. McCurdy, 166 German v. Chicago & N. W. R. R. loi, 270 German Ex. Bank v. Comm. Excise, 316 Germania Ins. Co. v. LaCrosse & Mil. R. Co. 245 Ghormley 7/. Dinsmore, 129 Gibbon v. Paynton, 209, 210, 212, 241 Gibson v. Culver, 241 Gibson and wife v. E. T., &c. R. R. Co. 173 Giglio, The, v. The Britannia, 256, 327 Gilbert, Richards v. 306 Gillenwater v. Madison & Ind. R. R. 107 Gillespie v. St. Louis & Kansas City R. R. 237 Gillet V. Ellis, 299 Gilmer, Higley v. no Gilmore v. Carman, 302 Girard Will Case, 95 Girolamo, The, 12 Glass V. Goldsmith, 266 Gleadell v. Thompson, 335 Gleason v. Goodrich Trans. Co. 161, 220, 242 V. Virginia, &c. Ry. Co. 296 Glenn, So. Exp. Co. v. 123 V. So. Express Co. 124, 129 Gloucester Ins. Co. v. Younger, 13 Parkhurst v. 304 Glover, The, 244 Goddard v. Mallor^-, 236 Richardson v. 203, 331 Godon, Mechanics' Bank v. 281, 282 Goggin V. The Kansas, 125 Golden Gate, The, 322 Goidey v. Penn. R. R. 85 Goldsmith, Glass v. 266 Good V. Galveston, H. & S. A. R. Co. 127 Goodall Co., Lord v. 32 Goodrich Trans. Co., Black v. 118, 120 ■J7. Gagnon, 53 Gleason v. 120, 161, 242 In re, 27 Goodwin, Cole v. 76, 87, 114, 232, 233. 283 Goold V. Chapin, 284 Hillard v. 133, 138 State V. 132, 134 Gordon v. Buchanan, 298 Oakley v. 281, 282 Shaw V. 337 Sunday v. 320 Gorham Man. Co. v. Fargo, 206, 211 Gosling V. Higgins, 313 Gott V. Dinsmore, 231, 271 Gould V. Chicago, M. & St. P. R. Co. 176 V. Hill, 76, 87 Gowdy V. Lyon, 289 Grace v. Adams, 222, 223 Graham & Co. v. Davis & Co. 84, 93, 263 Graham, Davidson v. 84, 263 Grand Junction R. Co., Palmer v. 98 Grand Rapids & I. R. Co., Hufford v. 167 Grand Trunk R. Co., Baldwin v. 172 Brooke v. 147 Burnham v. 167 Carpenter v. 149 Condict V. 235 Dodson V. 86 Dryden v. 16, 143 Dunn V. 78 Fillebrown v. 222, 224, 233 Heinman v. 87 Keeney v. 94 Regan v. 94 V. Stevens, in V. Sturm, 13 Wilson z/. no Gratiot v. United States, 345 Gratitudine, The, 324 Graver, Clyde v. 240, 276 Graves v. Hartford 5: N. Y. S. Co. 331 V. Lake Shore, &c. R. R. Co. 117 Graville v. Manhattan R. R., 155. 156 Gray v. Cin. S. R. Co. 153 V. Jackson, 193 V. Missouri River Packet Co. no, U3 V. Schenck, 59 TABLE OF CASES. XXlll Great E. L. R. Co., Baxendale v. 115, 121 Great Northern Railway Co. v. Mor- ville, 100 Great Western Dispatch, Lesinsky v. 283 Great Western Ins. Co., Atkinson v. 202, 323 Great Western R. Co., Aldrich v. 276 Hawkins v. "jy, 86 V. Hawkins, 216 Lewis V. 123, 124, 212, 227, 282 V. Miller, 171, 172 Robinson v. 162 Root V. 234, 235, 284 Sloman 7/. 210 Wise z/. 102. 213, 214, 332 Great Western, The, 40, 62, 63, 71, 72 Green, Bean v. 233. 241 V. Boston & Lowell R. R. Co. 209 V. Central R. R. of N. J. 152 V, City of Bridgeton, 153 V. Erie R. R. Co. 218 7'. N. Y. Central R. R. 284 Greene, Alexander v. 234 Greenwood, Lake Shore R. R. v. 153, 243 Gregory, The, 44 Gregory v. Burlington & M. R. R. Co. 164 V. West Midland Co. 78, 131, 235 Grey's Executors v. Mobile Trade Co. 259 Griffin, Blossom v. 93 Chicago, B. & Q. R. R. v. 154, 168 Griffith, Ladue v. 284 Griggs V. Austin, 60 Grinnell, Lakeman v. 324 Gripon, England 7/. 51 Griswold v. N. Y. & N. Eng. R. R. Co. 107 Grogan v. Adams Exp. Co. 85, 117, 253 Guerin, D'Orbigny v. 26 Guibert, Lloyd v. 7, 188, 192 Guillaume v. General Transportation Co. 214 Gulf, &c. R. R. Co., British, &c. Ins. Co. V. 91, 339 V. Ellison, loi V. McCorquedale, 301 Gulf, Colorado, &:c. R. R. Co. v. Mc- Gown, 81, 85, 88 Gulf, C. & S. F. Ry. Co. v. Trawick, 123 Gusi, Matthiessen & W. S. Ref. Co. v. 291 Guthrie, Adams Exp. Co. v. 250, 251 Guy V. N. Y., O. & W. R. R. Co. 175 Shelby v. 199, 348 Haas V. Kansas City, Ft. S. & G. R. Co. 315, 316 Hadd V. U. S. & Canada Exp. Co. 284 Hadden v. The Collector, 95 Hadji, The, 31, 118, 341 Haentzche, Fairbanks v. 81 Hagar v. N. E. Ins. Co. 304 Hailman, Gales v. 338 Hale V. N. J. Steam Navig. Co. 86, 184, 233 Haley v. Chicago & N. W. R. R. Co. 155 V. Earle, 218 Hall V. Cheney, 253 V. Conn. Riv. Steamboat Co. 78 V. DeCuir, 153 Illinois Central R. R. v. 216 Inhabitants v. 283 V. Memphis, &c. R. R. Co. 142, 168 Owings V. 64 V. Penn. R. R. Co. 325 V. Railroad Co. 338 Siordett v. 236 Skinner v. 284 V. South Car. R. Co. 136, 172 Halliday v. St. L., Kansas City & No. R. R. 284 Hallstead, Whitehouse v. 244 Hamburg, &c. Co., Koenigsheim v. 327 Hamilton v. N. Y. Central R. R. 148 Pandorf v. 301 V. Pandorf, 305 Railway Co. v. 78 V. Third Ave. R. R. 168 V. W. & N. C. R. R. Co. 269 Wilson V. 84, 99 Hammond v. N. E. R. R. 109, 113 Hand v. Baynes, 93, 236 Hannibal R. R., Hicks 7/. 131 V. Swift, 237 Hannibal & St. J. R. R., Cantling v. 242 Dunn V. 102, 129, 283 Logan V. 1 59 Miller v. 292, 296 Spooner v. 207 XXIV TABLE OF CASES. Hansen, Richards v. 31 Hanson v. European & N. A. R. R. 172 Medina v. 298 Happy V. Mosher, 59 Hardenbergh v. St. Paul, M. & M. R. Co. 159, 172 Harding v. International Nav. Co. 285 Hardy, Parsons v. 308 Harlem R. R., Edgerton v. 157 Harmon, Chicago, &c. R. R. v. 98, 115 Harmony Insurance F. & M. Co., The, 59 Harmony v. Bingham, 303, 304 Harnden Exp. Co., Hubbard ^'. 312 Meyer v. 275 Moriarty v. 115, 275 Harney, Chicago & Great Eastern R. R. Co. V. 81 Harper, Little Rock, &c. R. R. v. 257 Harris, Adams Exp. Co. v. 117, 279 Brown v. 60 Carson v. 289 V. Jex, 200 Louisville, &c. R. R. z'. 141, 176 Michigan Central R. R. Co. v. 265 Mo. Pacific Railway Co. v. 85, 98, 100, 123, 127 V. Packwood. 114, 255 U. S. Exp. Co. V. 123, 127, 281 Harrisburg, The, 194 Harrison v. London, &c. R. R. 100 Hart 7/. Baxendale, 179 V. Chicago & N. W. R. R. Co. 217 Faulkner v. 201, 203, 283, 331 V. Leach, 320 V. Penn. R. R. Co. 116, 119 Rice V. 201, 203, 331 Hartford, The City of, 44 Hartford & N. H. R. R., Havens v. 139, 170 State V. 130 Hartford & N. Y. S. Co., Graves v. 331 Hartland, Straker v. 70 Hartshorn, Price v. 295, 303 Hartwell v. Northern Pac. R. R. 228 Harvey v. N. Y. C. & H. R. R. 80 Schieffelin v. 234 V. Terre Haute R. R. 117 Haskell, Spring v. 8, 23^ 39 Hastings v. Pepper, 104 Hatchet v. Compromise, The, 246, 342 Hatten v. Railroad Co. 146 Hatton, Ohio & M. R. R. Co. v. 166 V. The Melita, 190 Havemeyer v. Iowa Co. 200 Woodruff «/. 333, 335 Havens v. Hartford & New Haven R. R. 139, 170 Hawk, Ala. G. R. S. Co. z/. 155 Hawkins, Great Western R. R. Co. v. 216 V. Great Western R. R. 77, 86 Hayes v. Kennedy, 301 V. N. Y. C. & H. R. R. R. 174 V. Wells, et al. 206, 212 Hayman v. Penn. R. R. Co. 217 Hayn v. Culliford, 234 Haynes, Adams Exp. Co. v. 229 111. Central R. R. Co. v. 78, 79 Hay ward Rubber Co., Slater ?/. 302 Hapvood V. Daves, 201 Hazard's Adms. v. New England Ma- rine Ins. Co. 301 Hazeltine, Lord v. 18 Hazen, Pittsburg, &c. R. R. r^. 316 Head v. Geo. Pac. Railway Co. 164, 167 Heaton, Michigan S. & No. Indiana R. R. Co. V. 83, 92 Hecker, Fowler v. 64 Heddleston, Ala. G. S. R. R. Co. v. 166, 167 Hedger, Louisville, Cin. & Lex. R. R. Co. V. 71. 91, 105, 251 Hedley v. Clark, 313 Heiman 7'. Grand Trunk R. R. Co. 87 Heimann v. Western Union Tel. Co. 125 Heim v. M'Caughan, 107 Heisley, Coxe v. 240, 246 Helene, The, 330 Heller, Petrie v. 267 Hellman v. Holladay, 210, 212 Hemingway v. Chicago, M. & St. P. R. 176 Henderson v. London & N. W. R. L. R. 121 Penn. R. R. Co. v. 85, 88, 109, 157 Henlein, South & N. Ala. R. R. v. 83, 98, 117, 118 Hennigh, Pittsburgh, St. Louis «S: Cin. R. R. V. 169 Hepburn v. Griswold, 200 Hercules, The, 45 Heriot, Schloss v. 298, 299 TABLE OF CASES. XXV Herman, Rosner v. 85 Heron, Bradstreet v. 290, 313 Herrick, Minn, & St. L. R. Co. v. 86 Hershey v. O'Neill, 322 Heye v. North German Lloyd, 24, 26 Heyl V. Inman S. S. Co. 94, 236 Hibbard ?/. Erie R. R. Co. 139, 140, 170, 174 Hibernia Ins. Co. v. St, Louis Co. 298 Hibernia National Bank v. Lacombe, 192, 194 Hibler v. McCartney, 324 Hickie, Garston v. 301 Hicks V. Hannibal, &c. R. R. Co. 131 V. Shield, 61 Higgins, Gosling v. 333 V. N. O., M. & C. R. R. Co. 86, 118 V. Watervliet T. & R. R. Co. 154 Higley v. Gilmer, no Hildreth v. City of Lowell, 59 Hill V. Boston, Hoosac Tunnel, &c. R, R. Co. 84, 117 Gould V. 76, 87 V. Idle, 313 V. Mackill, 79 V. Syracuse, Binghamton, &c. R. R. 142, 143, 163 V. Sturgeon, 252, 262, 330 Hill Mfg. Co. V. Boston & Lowell R, _^ R. 22, 35, 284 V. Providence & N. Y. S. S, Co. 23, 29, 302 Providence & N. Y. S. S. Co. v. 9, 22, 24, 28, 52, 53, 54, 69, 302, 324 Hilliard v. Goold, 133, 138 Singleton v. 240, 326 Swindler v. 240, 263, 325, 326 Hindoo, The, 117 Hine, Pennsylvania Co. v. 144 Hinkley v. N. Y. Central R. R. 241, 268, 280 Hinsdale, Southern Kansas Ry. Co. v. 133. 153 Hinton v. Dibbin, 49, 86, 92 Hirshberg z/. Dinsmore, 123, 126 Historian, The, 288 Hoadley v. N, Trans, Co. 237 Hodgdon v. N. Y., New Haven, &c. R. R, 244 Hodgson, Barker v. 160, 313 Hoeflich, Philadelphia, W. & B. R. R. Co. V. 173 Hoey, Kaiser v. 123 Hoffbauer v. D. & N, W, R. R. Co. 174, 175 Hoffman v. N. Y. C. &c, R. R, 321 V. The Union Ferry Co. 158, 218 Hogan, Reno v. 76, 84, 327 Holden v. Fitchburg R, R. 81 Holladay, Hellman v. 210, 212 V. Kennard, 312, 318 Holland v. 725 tons of coal, 311 Muser v. Wj Rawson v. 283, 284 HoUis V. Drew Theol. Sem, 95 HoUister v. Nowlen, 76, 114, 207, 232, 233, 241 Holloway, Memphis & Charleston R. R. V. 126 Hollowell, Adams Exp. Co. v. 252 Pitt, C. & St. L. R. Co. V. 316 Holmes, Adams Exp. Co. v. 252 U. S. V. 204 V. Wakefield, 154, 173 Holsapple v. Rome, &;c. R. R. 103, 234 Holt, Cook V. 316 Wahl V. 282 Holy, Kaiser v. 123 Homesley v. Elias, 244 Hooker v. Chicago, &;c. R, R 244 Jacobs V. 284 V. Rath burn, 252 Hooper v. Wells, et al. 83, 90, 99, 1 1 1, 238 Hopkins, Mobile & Ohio R. R. Co. v. 88, 107, 117, 282 V. Westcott, 117, 122, 232 Home, Marsh 2'. 255 Horst, Indianapolis, (Sec. R. R. v. 79 Hosea v. McCroy, 248 Hostetter v. B. & O. R. R. 267 Hotchkiss V. Artisans' Bk. 337 Hot Springs R. R., Galena v. 172 Houck V. Southern Pacific R. Co. 153 Hough V. Railway Co. 30 Houghton V. Watertown Fire Ins. Co. 240 Housatonic R. R., Sanford v. 129, 233 Houston, &c. R. R. v. Burke, 85, 91, 211 V. demons, 154, 156 V. Ford, 142 Howard, Newburger z/. 117 Howard Ins. Co., Matthews v. 304, 306 Howard, The Ship, v. Wissman, 291 Hovvden, The, 298 Howes, N. Y. Bal. Dry Dock Co. v. 261 Howland, Zing v. 334 XXVI TABLE OF CASES. Hubbard v. Harnden Exp. Co. 312 V. Hubbard, 323 Hudson V. Kansas Pacific R. R. Co. 151 Vernard v. 299 Hudson R. R. R. Co., Bliven v. 316 Boice V. 143, 144 Boswell V. 88 Butler V. i\o Nelson v. 275, 277 Sherman v. 331 Huffman, S. & N. Ala. R. R. v. 154 Hufford V. Grand Rapids & 1. R. R. Co. 167 Hull V. East Line, &c. R. R. Co. 166 Humphreys, Depau v. 187 Porterfield v. loi Hunnewell v. Taber, 93 Hunnicutt, Southern Exp. Co. v. 123 Hunsey v. Saragossa, 260 Hunt V. Morris, 303 V. N. Y. & Erie R. R. Co. 284 V. The Cleveland. 252, 253, 255 Huntington & Broad Top R. R. Co. V. Decker, 80 V. Dinsmore, 222, 223 Hurst, New Orleans, &c. R. R. v. 107, 244 Hurt V. Southern R. R. Co. 107 Hutchinson v. Chicago, St. P., M. & O. R. Co. 214, 227 Hutton, Evans v. 313 Hyde v. Trent & M. Nav. Co. 291, 302 Hyslop, Tate v. 340 Idle, HiUz^. 313 111. Cent. R. R. Co. v. Adams, 86 Arnold v. 92, 154 V. Ashmead, 1 1 1 V. Copeland, 284 V. Crudup, 194 V. Frankenberg, 284 V. Haynes, 79 V. Hall, 216 V. Johnson, 139 v. Jonte, 83, 223, 275 V. Latimer, 172 Law V. 153, 172 V. McClellan, 1 1 1 Mitchell V. 284 V. Morrison, 86, 92, 99 Mulligan v. 223 V. Nelson, 154 -z/. Owens, 302 Phelps V. 22,7, 314 ■V. Read, 81, 89, 92, 150 111. Cent. R. R. Co. v. Smyser, 243 V. Sutton, 139, 171 V, Tronstine, 162 V. Whittemore, 132, 141, 172 Indiana Cent. R. R. v. Mundy, 83 Indianapolis, &c. R. R. v. Allen, 83 V. Cox, 120 V. Horst, 79 V. Jungten, 315 V. Jurey, 98 Keep V. 107 V. Kennedy, 139, 154 Rice z/. 213 V. Rinard, 138 V. Strain, 78 Ingalls V. Bills, 78 Frank v. 265 Inhabitants v. Hall, 283 Inman v. So. Carolina R. R. Co. 83, 253i 340 Inman S. S. Co., Heyl v. 94, 236 Sherman v. 104, 305, 311 Insurance Co. v. Brame, 194 Carpenter t/. 13 Marshall «'. 318 V. Railroad Co. 36, 284 Int. & G. N. R. Co., Beauchamp v. 160 V. Folliard, 162, 218 V. Tisdale, 315 V. Wilkes, 174 Int. Nav. Co., Harding v. 285 Int. S. B. Co , Dunlap v. 49, 116 Invincible, The, 174, 299, 327 Ionic, The, 212 Iowa Co., Havemeyer v. 200 Irvine, Norfolk & W. R. Co. v. 177 Irwin V. N. Y. Central R. R. 250 Isaacs V. Third Ave. R. R. 320 Jackson v. 61 Isaacson z/. N. Y. Central & H. R. R. 93 Isabella, The, 300 Ivey, Mo. Pac. R. Co. v. 85, 86, 109, no, 186 Jackson v. Andrews, 228 V. Babcock, 59 V. Boylston Ins. Co. 340 Gray v. 193 V. Isaacs, 61 Parks V. 347 V. Sacramento R. R. Co. 331 V. Second Ave. R. R. 321 Jacob, Nanson v. 287 Jacobs V. Hooker. 284 V. Tutt, 334, 337 TABLE OF CASES. XXVll Jacobus V. St. Paul & Chicago R. R. 113 James, London & S. W. Railway Co. V. 42 Jane, The, and Mathilda, 323 Janson, Ralli v. 1 1 Jarboe, Mobile & Ohio R. R. Co. 254, 257,258 Jardine v. Cornell, 172 Jefferson, The, 256, 327 Jeffersonville R. R. Co. v. Rogers 135, 167 Jencks v. Coleman, 157, 158 Jerome v. Smith, 140 Jessup V. Carnegie, 200 Jewett, Fuller v. 80 McKinney v. 218, 333, 334 Stevenson v. 80 Jex, Harris v. 200 JiUson, People v. 174 Joestings, Merchants' Dispatch Co. v. 275 John Ritson, The, 189 Johnson v. Concord R. R. 242 Illinois Central R. R. v. 139 V. Lightsey, 267 Moss ^'. 155 V. N. Y. Central R. R. Co. 93, 245 ?/. Phila., W. & B. R. R. C0.108, 148, 163, 166 The Schooner Emma, 253 z/. 318 Tons of Coal, 248 Johnston, E. Tenn. &c. R. R. v. 99 Jones V. N. Y. C. & H. R. R. R. 80 V. Pitcher, 297, 301, 305, 306 V. Sims, 90, 107 V. Voorhees, 84, 233 Jonte, 111. Cent. R. R. Co. v. 83, 223, 275 Jose E. More, The, 44, 65, 70 Judson V. Western R. R. Corp. 117, 222, 231, 242, 279 Junction R. R. Co. v. Bank of Ash- land, 185, 187 Jungten, Ind. Railroad Co. ■z/. 315 Juniata Paton, The, 45, 255, 260 Junkerman, Shuenfeldt v. 184 Jurey, Indianapolis & St. Louis R. R. V. 98 Mobile, &c. R. R. Co. v. 338 Kahn, Merch. Desp. T. Co. v. 236 Kain v. Smith, 80, 112 Kaiser t/. Hoey, 123 Kalbfleish, Fabric'. 199 Kallman v. U. S. Exp. Co. 84, 250, 255 Kane, Cooper v. 246 Kansas & St. G, R. R. Co., Brown v. 136 Kansas City, Ft. S. & G. R. Co., Haas ■V. 315,316 Kansas City & St. J. R. R. Co., Davis V. 176 Owens V. 176 Kansas Pac. Ry. Co., Hudson v. i^i V. Kessler, 167, 180 V. Nicholls, 99 V. Reynolds, 255 V. Rice, 125, 129 V. Simpson, 118 Kansas R. R., Goggin v. 125 Kate, The, 333 Kathleen Mary, The, 333 Katzenberger, Louisville, N. & G. S. R. R. Co. V. 162 Kaufman. Southern Exp. Co. t/. 213 Kay V. Wheeler, 300 Keating, Doane v. 269 Keefe v. Boston & Albany R. R. Co. 77 Keeley v. Boston & Maine R. R. Co. 238, 247 Keeney v. G. T. R. Co. 94 Keepz*. Indianapolis, &c. R. R. 107 Keith V. Amende, 290 Kellogg V. Larkin, 95 Kelly V. Bowker, 294 Crapo V. 190 Transfer Co. t/. 155 Kelsey v. Michigan Central, 179 Kember v. Southern Exp. Co. 267 Kennard, Holliday v. 312, 318 Kennedy, Bank v. 198 Hayes v. 301 Indianapohs, &c. R. R. v. 139, 154 Kenney v. N. Y. C. & H. R. R. R. Co. 94 Kent V. Bait. & O. R. R. Co. 164 Kentucky Central R. R. Co. z/.Thomas, 154 Kenyon v. N. Y. Central R. R. 218 Keokuk R. R. Co., O'Neil v. 242 Ketchum v. American Merc. Union Exp. Co. 261 Kessler, Kansas Pac. R. R. Co. v. 167, 180 Keystone, The, 327 Kiff V. Atchison, T. & S. R. R. 281 Kilgore, McGregor v. 337, 342 Kimball, The, 60 Kimball v. Rut. & Burl. R. R. Co. 87, 98. 233 V. Western R. R. Corp. 218 XXVlll TABLE OF CASES. King, Lynx v. 308 V Shepard, 307 Steamboat '' New World " v. 79, 82, 113 V. Worthington, 64 Kinney t/. Central R. R. of New Jersey, 87, 107, no State V. 173 Kinsley, Pendleton v. 322 Kipp, Dempsey v. 247 Kirby v. Adams Exp. Co. 84, 254 Smith V. 70 Kirkbridge, Salter v. 244 Kirkland v. Dinsmore, 226, 227, 229, 240, 241 Kirtland v. Montgomery, 112 Kirst V. Milwaukee, &c. R. R. 253 Klintock. U. S. v. 204 Knight, St. Louis, I. M. & S. R. Co. V. 292 Knowlton v. Erie R. Co. 84, 184 V. Providence & N. Y. S. S. Co. 22, 23, 28 Knox V. Rives, 1 13 Koch, Post 7^. 316 Koehler, Roberts v. 177 Koenigsheim v. Hamburg, &c. Co. 327 KopitofFz/. Wilson, 32 Kountze Bros., Express Co. v. 83, 236 Kuhn, Central R. R. v. 261 Kuter 7/. Mich. Central R. R. Co. 211 K. & D. M. R. Co., McCoy v. 98 Lacey, Woolverton v. 323 Lackawanna & Bloomsburg R. R. Co. V. Chenewith, 158 Lacombe, Hibernia Bank v. 192, 194 LaCrosse & Min. P. Co., Germania Ins. Co. V. lif^ Ladue v. Griffiths, 284 Lafayette & Indianapolis R. R. Co. v. Sims, 158 Lafayette Ins. Co. v. French, 16 Laing v. Colder, 85, 260 Lake Erie, &c. R. R. v. Fix, 169 Mauritz v. 264 Lake Shore, &c. R. Co., Babcock v. 277, 279, 284 V. Bennett, 315 Geismer v. 315, 316 Graves v. W] V. Greenwood, 153, 243 V. Perkins, 105 V. Pierce, 166 V. Rosenzweig, 151 Lake Shore, &c. R. Co., Sheltin v. 169 V. Spangler, 85 Lakeman v. Grinnell. 324 Lamb v. Camden & A. R. R. Co. 236, 252, 25s, 257, 270, 271, 277, 278 V. Parkman, 249, 329 Lambert, Rich v. 253, 329 Lambertson, Sanderson v. 286 Lamkin. Cragin v. 201 Lancashire & York R. R., Carr v. 86, 235 Chippendale v. 78 Lancashire, &c. R. R., McManus v. 78, 131, 235 Landrigan ^/. The State, 170 Lane v. E. T., Va. & Ga. R. R. Co. 153, 180 Langley v. Boston & Maine R. R. Ill Langworthy v. N. Y. & Harlem R. R. 90, III Laning z/. N. Y. & H. R. R. R. Co. 80 Lapham v. Atlas Ins. Co. 245 Larkin, Kellogg v. 95 Latimer, 111. Central v. 172 Laughlin v. Chicago & N. W. R. R. Co. 253 Laurie, Gale v. 7 Law V. 111. Cent. R. R. Co. 153, 172 Simmons v. 238 Law Ass. Co. t. Oakley. 338 Lawrence v. Maxwell 246 V. Minturn, 216, 229, 299, 311 V. N. Y.. Prov. & Boston R. R. Co. 86, 115, 252 V. Winona, &c. R. R. 245, 282 Lawrenceburg & Upper Miss. R. R. V. Montgomery, 157 Laveroni v. Drury. 300 Lawton v. Sun Mutual Ins. Co. 323 Le Breton v. Miles, 185 Leach, Hart v. 320 Lee V. Barreda, 60 East Line, &c. R. R. Co. v. 108 Leisy v. Buyers, 241, 247 Leland, Baxter v. 245, 297, 329 Lemon v. Chanslor, 107 Lemont v. Washington, &c. R. R. Co. 156 Leonard v. Columbia Steam Nav. Co. 200 V. Fitchburg R. R. Co. 246, 249 ^^, 37, 45. 54 V. WhitwilJ, 47, 54 TABLE OF CASES. XXIX Lesinsky v. Great Western Dispatch, 283 Lesser, St. Louis, &c. R. R. Co. v. 115 Levering et al. v. Union Transp. & Ins. Co. 84, 257 Levinson v. Oceanic Steam Nav. Co, 10, 57, 58 Levois V. Gale, 206, 212 Levy V. Southern Exp. Co. 278 Lewey, Astrup v. 300, 306 Lewis V. Gt. Western Railway Co. 123, 124, 212, 227, 282 V. Ludwick. 312 V. N. Y. Sleeping Car Co. 76, 84, 230 V. Smith, 252 Turner v. 185 Lexington Case, 12 Leysor, Merch. Disp Co. v. 228 Lightsey, Johnson v. 267 Lillis V. St. Louis R. R. 142, 171, 173 Limburger v. Westcott, 263 Linda Flor, The, 67 Little, Ala. G. S. R. R. Co. v. 83, 1 17, 256, 297 V. Dusenberry, 286 V. Fargo, 315 V. Semple, 337, 342 Little Miami R. R. Co., Childs v. 255 V. Wetmore, 325 Little Rock & F. S. R. R. Co. v. Dean, 145, 148 V. Harper, 257 V. Talbot, 325 Taylor v. 277 Little Rock, M. R. & T. R. R. Co. v. Corcoran, 255, 257 V. Talbot, 83 Littlejohn v. Fitchburg R. R. 108, Live Yankee, The, 254 Liverpool, &c. S. S. Co., Arond v. 253, 289 Baldwin v. 115, 206 Mehrbach v. 271 Phoenix Ins. Co. t/. 83, 189, 197, 319 Re Petition of, 61 Redmonds v. 331, 335 Steers v. 107 Taylor v. 218, 341 Thompson v. 333 Livingston, Fibel v. 231 Lloyd V. Guibert, 7, 188. 192 Lockhart, Toledo, &c. R. R. Co. v. 282, 284 Lockwood, Erie R. R. Co. v. 235 Railroad Co. v. 83, 92, 108, 202, 346 Loeb, Adams Exp. Co. v. 261 Logan V. Hannibal & St. Jo. R. R. Co. 159 Louisville, &c. R, R. v. 1 54, 155, 173 V. Mobile Trade Co. 222 Logwood V. Memphis & C. R. Co. 153 London & N. W. R. R. Co., Crouch V. 130, 210, 211 Henderson v. \2\ McCance z/. 100, 115 Radley z/. 218 London & S. K. Docks, Scott v. 260 London & S. W. Railway Co., Button 2/. 325 V. James, 42 Marriott v. 130, 131 London, &c. R, R. Co.,Harrisonz'. 100 Long V. N. Y. Central R. R. Co. 222, 226, 240 Long Island R. R., Browning z/. 127, 240, 241 Nelson v. 174 Stoddard v. 87 Werle v. 159, 161 Willis z/. 155 Long Island Trans. Co., Re, 26, 38, 39 Loomer, Derwort v. 76, 233, 240 Lord V. Good all Co. 32 V. Hazeltine, 18 V. Steamship Co. 8, 32, 39 Lorillard, Palmer v. 1 1 Lorillard Fire Ins. Co., Bryce v. 228 Loring V. Aborn, 141 Lottawanna, The, 9 Loughlin v. State, 30 Louisiana, The, 342 Mendelsohn v. 327, 329 Louisville & N. R. R. Co. v. Adams, 173 Baker v. 105 V. Brownlee, 84 Burke v. 176 Dillard v. 227, 231 McClelland v. 173 Meyer v. 271 Rhodes v. 103 Smitha t/. 126 Louisville, &c. R. K.v. Campbell, 282, 283 V. Fleming, 132, 139, 140, 176 V. Garrett, 175 V. Harris, 141, 176 V. Hedger, 91, 105. 251 V. Katzenberger, 162 XXX TABLE OF CASES. Louisville, &c. R. R. v. Logan, 1 54, 155, 173 7>. Maybin, 120 V. Oden, 79, 83, 117, 256, 333 Owen V. 125, 129, 215, 282 Rawitzky u. 142. 143, 144 V. Sherrod, 1 17 V. Tient, 102 Louisville, C. & L. R. R. Co. v. Sulli- van, 173 Low, Central Line v. 297 Lowe V. Moss, 309 V. Richardson, 317 Lowel, City of, Hildreth v. 59 Lowell Wire Fence Co. v. Sargent, 84, 284 Lowrey v. Russell, 93, 246 Luckenback, The, 54 Ludwick, Lewis z/. 312 Lukez/. Lyde, 4, 13, Lupe V. Atlantic & P. R. R. 84 Lyde, Luke v. 4., 13 Lydian Monarch, The, 118 Lynch v. Metropolitan Elevated R. R. 140, 169, 177 Lynx, The, v. King, 308 Lyon, Gowdy v. 289, 290 Pitts. St. L. R. R. Co. V. 162 V. Wells, 31 McAndrew ■z/. Whitlock, 331, 336 McArthur, Miss., Mobile & O. R. Co. V. 160 V. Sears, 318 McCall z/. Brock, 108, 253, 310 McCamber, Ames v. 201 McCance v. London & N. W. R. R. 100, 115 McCannz/. B. O. R. R. 284 McCarthy v. Terry, 347 McCartney, Hibler v. 324 McCarty v. N. Y. & Erie R. R. Co. 332 McCaugan, Heirn v. 107 McClanahan, Missouri Pacific R. Co. V. 134, 138 McClellan. Central R. R. Co. v. iii McClelland v. Louisville, N. A. & C. R. Co. 173 McCloskey, Penn. R. R. Co. v. 85, 157 McClure v. Phila. W. & B. R. R. 143, 148, 171 McCorquedale, Gulf & C. R. R. Co. V. 301 McCoy V. The K. & D. M. R. Co. 98 McCranie v. Wood, 312 McCroy, Hosea v. 248 McCune v. Burlington, &c. R. R. Co. 115, 206, 248 McCurdy, Georgia R. & B. R. Co. v. 166 McDaniel, Baugh v. 285 V. Chicago, &c. R. R. Co. 188, 235 McDonald and Wife v. Chic. & N. W. Ry. Co. 78 McDonald, Clark z/. 98 Western R. R. v. 284 McDonough, Mich. S. & N. Ind. R. R. Co. V. 105 McElroy z/. Nashau & Lowell R. R, 78 McFadden v. Mo. Pacific Ry. Co. 109 McGinnis v. Mo. Pacific Ry. Co. 166 McGown, Gulf, &c. R. R. Co. v. Su 85, 88, 100 McGrath, Patton v. 240, 324, 326 McGregor v. Kilgore, 337, 342 McGuire v. The Golden Gate, 322 McKee v. Owen, 162 McKinney z/ Jewett, 218, 333, 334 McKown, Malpica z/. 185, 189 McMahon v. Macy, 222, 225 McManus v. Lancashire, &c, R. R. Co. 78, 131, 235 McMaster v. Penn. R. R. Co. 244 McMechan, Colt v. 298 McMillan v. Mich. S. & Ind. R. R. 91, 240, 241, 244. 284 McNicholl V. Pacific Exp. Co. 128 McRae v. Wilmington, &;c. R. R. 130,^ 178 Mackay, Allen v. 62 Mackey, Mo. Pac. R. R. Co. -v. 86 Mackie, St. Louis, A. & T. R. Co. v. 154, 166, 169, 230 Mackill, Hill V. 79 Nills v. 306 Macklin v. N. J. Steamboat Co. 233, 243 Macy, McMahon v. 222, 225 V. Wheeler, 36 Madan v. Sherrard, 225 Maddan, Russell v. 200 Madison & Ind. R. R,, Gillenwater ?/. 107 Maggie Hammond, The, i Maggie M., The, 257 Maghee v. Camden & Amboy R. R. 237, 262, 281 Magnin v. Dinsmore, 93, 94, 117, 118, 119, 120, 208, 211, 227, 234 Mahon v. Blake, 214 V. The Olive Branch, 253,304 Maine C. R. R., Blumenthal v. 2io Maine S. S. Co., Wells v. 316 TABLE OF CASES. XXXI Malcolm, Cole v. 338 Malek Adhel, The, 46 Mallory, Goddard v. 236 Malone v. Boston & Worcester R. R. 264 Malpicaz/. McKown, 185, 189 Manchester, &c. R. R. Co., Austin v. 92, 235 Manchester & L. R, R., Butler v. 140 Swan V. 134, 138, 176 Manchester, S. & L. R. R. Co. v. Brown, 86 Brown v. 91 Manf. Co., R. R. Co. v. 263, 284 Manhattan Oil Co. v. Camden & Am- boy R. R. 278, 281, 284 Manhattan R. R., Graville v. 155, 156 Manitoba, The, 70 Mann et al. v. Birchard et al. 87, 222 Manning, Chicago, B. & Q. R. R. Co. 258, 296, 308 Mansfield, Miller v. 331 Maples V. N. Y. & N. H. R. R. 140, 174 Marckwald v. Oceanic Steam Nav. Co. 236, 259, 305 Marcus, Cincinnati, &c. R. R. v. 207 Marcy, Township of Elmwood v. 200 Maria & Elizabeth, The, 38, 67, 70, 71 Marianna Flora, The, 16 Markham v. Brown, 1 57 Marks, Atkinson ^'. 317 Watson V. 49, 63 Maroney v. Old Colony R. R. 242 Marquette v. Chicago & N. W. R. R. Co. 151 Marquette, H. & O. R. R. Co., Con- don V, 283 Frederick v. 169 Marriott v. London & S. W. R. R. 1 30, 131 Marsh v. Blyth, 301 V. Home, 255 Stone V. 347 Marshall v. Boston & A. R. R. Co. 141 V. Ins. Co. 318 V. Murgatroyd, 192 V. N. Y. Central R. R. 104 V. St. Louis, K. C. & N. R. Co. 166 Martha, The, 288, 289, 337 Martin, The D. R., 157 Martin v. Cole, 269 Mary Belle Roberts, The, Speyer v. 262 Mary Lord, The, 53, 54 Marx V. Britannia, The, 255 Maslin v. Baltimore & O. R. R. Co. 98, 106 Mason v. Gainsbury, 338 Matthews v. Howard Ins. Co. 304, 306 Wallace v. 230 Matthiessen & W. S. Ref. Co. v. Gusi, 291 Mauritz v. N. Y., Lake Erie & W. R, Co. 264 Maving 2/. Todd, 114 Maxwell, Lawrence v. 246 May Queen, The, 275 Mayail v. Boston & Maine R. R. 243 Maybin, Louisville &c. R. R, v. 120 Mayor, &c. of Jersey City, State v 59 Mead v. Beale, 14 Smith V. 184 Meagher, Garey v. 248 Mechanics' Bank v. Gordon, 212 Medina v. Hanson, 298 Mehrbach v. Liverpool G. W. S. Co. 271 Meletia, The, Hatton v. 190 Memphis & Charleston R. R. v. Ben- son, 151, 159 Brown v. 151, 157, 158 V. Chastine, 171 V. Holloway, 126 Reeves v. 260 Memphis. &c. R. R., Evans v. 154 Hall V. 142, 168 Logwood •z^. 1 53 Memphis Ins. Co., Garrison v. 302 Mendelsohn z/. The Louisiana, 327, 329 Mercantile Mut. Ins. Co. v. Calebs, 339 Gabbri v. 240 Merchants' Bank, N. J. Steam N. Co. V. 76, 82, 227, 234, 260 N. Y. Steamboat Co. v. 12 Merchants' Desp. Trans. Co., Bancroft V. 284 V. Bloch, 85, 90 Block V. 286 V. Bolles, 206, 279 V. Cornforth, 270 V. Joestings, 275 V. Kahn, 236 V. Leysor, 228 V. Moore, 331, 332 Robinson v. 93 Sheltin v. 271, 275 Talbot V. 184 Weil V. 284 Wilde V. 274 Merch. M. Tran. Co., North v. y^i Merch. St. Co., Bonner v. 308 XXXll TABLE OF CASES. Merch. Traders' Ins. Co., Carstairs v. 340 Merchants' Wharf Assoc, v. Wood, 219, 300 Merril, Airey v. 302 Chicago & N. W. R. R. Co. v. 178, 233 Merrit v. Earle, 219, 298 V. Old Colony & Newport R. R. 217 Methodist Prot. Church v. Baltimore, 59 Metropolitan Elevated R.R., Lynch v. 140, 169, 177 Metz V. Buffalo, C. & P. R. R. 112 Meyer 2/. Harnden's Exp. Co. 275 Louisville & Nashville R. R. v. 271 IJ PcCK 266 Meyers v. Wabash & St. L. R. R. 88 Wolfe V. 267 Michaels v. N. Y. Central R. R. 236 Michigan Cent. R. R. Co. v. Boyd, 270 Cahn V. 243 V. Carrow, 207 V. Curtis, 104, 245 Feige v. 228 V. Harris, 265 Kelsey v. 179 Kuter v.2\\ V. Mineral Springs Mfg. Co. 263 Moore v. 336 Myrick v. 98, 201, 264, 284, 285 Michigan, The, Carr v. 342 Mich. S. & N. Ind. R. R. Co., Bissell v. 182 V. Heaton, 83, 92 V. McDonough, 105 McMillan v. 91, 240, 241, 244, 284 Mills V. 282, 283 Middlesex R. R., Vinton v. 155 Milan, The, 44 Miles, Le Breton r/. 185 Westchester & Phila. R. R. Co. V. 152 Miletus, The, 300 Milford, The, 15, 17 Miller, Atwell v. 60 Austin V. 14 Burke v. 243 Great Western Ry. v. 171, 172 V. Hannibal & St. Jo. R. R. 292, 296 V. Mansfield, 331 Penn. R. R. Co. v. 253, 259 V. Race, 347 V. Steam Nav, Co. 284, 302 Miller 7/. Tiffany, 185, 186 Milliken v. Pratt, 196 Milliman v. N. Y. Central & H. R. R. Co. 154 Mills V. Mich. Cent. R. R. 282, 283 Miln, Rowland v. 313, 336 Milnor v. N. Y. & N. H. R. R. Co. 142 Miltimore v. Chicago & N. W. R. R. Co. 216 Milwaukee & N. R. R., Annas z/. 85, 92, 108 Milwaukee & St. P. R. R., Pierce v. no Wood V, 282 Milwaukee, &c. R. R., Conkey v. 282 Kirst V. 253 Yorton v. 145 Mineral Springs Mfg. Co., Mich. Cent. R. R. v. 263 Minneapolis & St. L. Ry. v. Herrick, 86 Ortt V. 284 Minter v. Pacific, &c. R. R. 242 Minturn, Lawrence v. 216, 299, 311 Miss. & Mo. R. R. Co., Angle v. 248, 253 Miss., Mobile & O. R. R. Co. v. Mc Arthur, 160 Missouri, Kan. & T. R. R., Ryan v. 196, 259 Missouri Pac. Ry. Co., Aiken v. 177 Beeson v. 271 Carroll v. 84, 88 V. Cornwall, 85, 104 V. Fagan, 85, 98, 102, 124, 246, 269 V. Harris, 85, 98, 100, 123, 127 V. Ivey, 85, 86, 109, no, 186 V. McClanahan, 134, 138 McFadden v. 109 McGinnis v. i66 V. Mackey, 86 V. Ross, 213 Sprague ^'. 125 V. Vandewater, 84, 91 White t'. 315 Missouri River Packet Co., Gray v. no. n3 Missouri S. S. Co., Re^ 86, 189, 194, 196 Mitchell V. Georgia R. R. 99 Illinois Cent. R. R. v. 284 Wooley V. 301 Mobile, &c. R. R. Co. v. Hopkins, 88, 107, n7, 282 V. Jarboe, 257, 258 V. Jurey, 338 TABLE OF CASES. XXXlll Mobile Trade Co., Grey's Executors V. 259 Logan ?y. 222 Mohawk, The, 310 Mohler, The, 306 Montana, The, 83, 189, 197, 198, 256. 319, 346, 348 Monteath, Parsons v. 87 Montford, Chicago & N. W. R. R. Co V. 229, 274 Montgomery, Kirtland z'. 112 Lavvrensburg & Upper Miss. R. R. 7/. 157 V. The "Abby Pratt," 290 Montgomery, &c. R. R. Co. v. Ed- monds, 216, 235 Moon, Southern Exp. Co. v. 84, 118 Moore, Am. Trans. Co. v. 250, 251 V. Am. Trans. Co. 23, 38, 250 Charleston & Savannah R. R. V. 210 V. Evans, 87, 221, 229 Matter of, 345 Merchants' Desp. & Trans. Co. ^- 33 1) 332 V. Mich., &c. R. R. Co. 336 V. Pitts, 198 Morewood v. Pollock. 24 Moriarty v. Harnden's Ex. Co. 115, 275 Morning Glor)', The, Thomas v. 218, 231 Morris, Hunt v. 303 Texas Cent. R. R. v. 127 Morris & Essex R. R. v. Ayers, 159, 332 Morrison %>. Davis, 237, 269, 303, 308 111. Cent. R. R. Co. v. 86, 92, 99 V. Philips & Colby C. Co. 230 Morse, Campbell v. 236 Waring v. 299 Morton, Vose v. 240 Morville, Great Northern Railway Co. V. 100 Moses V. B. & M. R. R. Co. 94, 114, 233. 331 Mosher, Happy v. 59 V. St. Louis, L M. & T. R. Co. 164 Moss, Chicago, &c. R. R, v. 235, 249, 258 V. Johnson, 155 Lowe V. 309 Moulton V. St. Paul, &c. R. Co. 106, 118 Moyer, Union Pac. R. R. v. 334 C Mt. Sterling, Curry v. 59 Mt. Vernon Co., Ala. G. R. Co. v. 283 Mullen V. St. John, 259 Muller V. Cincinnati, H. & D. R. R. 223 Mulligan v. 111. Central R. R. 223 Mundy, Indiana Cent. R. R. v. 83 Murdock v. Boston & A. R. R. Co. 167 Murgatroyd, Marshall v. 192 Murphy^. Western & A. R. R. 153 V. Union Railway Co, 155 Muscogee, Redd 2/. 219 Muser z^. Holland, 117 Mutual Security Ins. Co., Van Natta ^- 339 Myers v. St. Louis & W. R. Co. 88 Mynard v. Syracuse, &c. R. R. 78, 98, 103, 234 Myrick,' Gaither v. 337 V Michigan Central R. R. 98, 201, 264, 284, 285 Myrtle, St. Louis & S. E. R. R. v. 139 Nanson v. Jacob, 287 Napier, Cubbedge v. 201 Narragansett R. R., Ellis v. 153 Narragansett S. S. Co., Standish v 140 Nashua & Lowell R. R., McElroy v. 78 Nashville R. R., Adams v. 200 V. Carrol, 176 v. Estes, 312 V. Nowlin, 176 Nathaniel Hooper, The, 309, 310 National Bank, Potter v. 64 National Docks R. R. Co. v. Central R. R. 131 National S. S. Co.. Abbot v. 292 Arnold v. 247 Dyer t/. 9, 71 Nelson v, 328, 329 Tathersall v. 82 Naumkeag S. C. Co., Buckley v. 310 Navigazione Gen. It., Stevens v. 198, 301, 324 Naylor v. Baltzell, 43 Shepard v. 294 Naymann, Penn. R. R. v. 261 Nearing, Rockwell v. 59 Nederland v. Peninsular & Oriental S. N. Co. 43 Nellist/. N. Y. C. R R. Co. 134. 136 Nelson v. Hudson R. R. 275, 277 Illinois Cent. R. R. Co. v. 154 XXXIV TABLE OF CASES Nelson v. L. I. R. R. Co. 174 V. Nat. S. S. Co. 328, 329 V. Stephenson, 288, 290, 293 V. Woodruff, 266 Neresheimer, Dinsmore v. 87 Netherlands India S. S. Co., Bank of India v. X99, 234 Nevada, The, 17 Nevins v. Bay State S. S. Co. 230, 241 New Bedford Cordage Co., Coombs v. 80, 81 New Bedford, &c. Steamboat Co., Simmons v. 78 New Brunswick Steamboat Co. v. Tiers, 236 New England Marine Ins Co., Hazards' Adms, V. 301 New England Ins. Co., Copeland v. 304 Dole V. 312 Hagar v. 304 New Haven & Northampton R. R., Smith 7/78, 98 New Jersey, The, 301 New Jersey Railroad, Ripley v. 140 New Jersey Steamboat Co., Blanchard V. 64 V. Brockett, 172 Caldwell v. 259 Cleveland v. 107 Macklin v. 233, 243 Zinn V. 331 New Jersey Steam Nav. Co., Dorr v. 76. 87, 221, 227, 233 Hale V. 86, 184, 233 V. Merchants' Bank, 76, 82, 222 New London W. & P. R. R. Co. Crocker z/. 133, 134, 138, 325 New Orleans, The, 234, 255 New Orleans, &c. R. R., DeLucas v 134, 135. 139 V. Faler, 235 V. Hurst, 107, 244 V. Statham. 176 New Orleans, J. & G. N. R. R., Peters V. 105, 215 N. O., Jackson R. R. Co., N. O. Mut. Ins. Co. V. 84 N. O. Mut. Ins. Co. v. N. O., Jackson &c. R. R. Co.. 84 N. O., M. C. R. R. Co., Higgins v. 86, 108 New World, The, Fay 7/. 115 King, V. 79, 82, 113 New York. Alexandria, G. & W. S. S. Co., Viner v. 214 New York Bal. Dry Dock Co. v. Howes, 261 N. Y. Central R. R., Auerbach v. 144 Barker v. 160 Bills V. 102, 306 Bissell V. 86, 87, 107, 109, 221 Chase v. 134 Cofifin V. 270 Cragin v. 87, 98 Degraff v. 80 Denny v. 145, 237 Dunson v. 236, 289 Ebye v. 293 Fraloff z/. 116, 118 Green v. 284 Hamilton v. 148 Harvey v. 80 Hayes v. 174 Hinkley z/, 241, 268, 281 Hoffman v. 321 Irwin V. 250 Isaacson v. 93 Johnson v. 93, 245 Jones V. 80 Kenney v. 94 Kenyon v. 21Z Laning v. 80 Long zt. 222, 226, 240, 266 Marshall v. 104 Michaels v. 236 Millman v. 154 Nellis V. 134, 136 Nicholls V. 234 Obby V. 293 O'Brien v. 175 Perkins v. 86, 88 Porter v. 134, 138 Pouchor IK 87 Rintoul V. 83, 339, 341 Robson V. 174 Schiff t/. 270, 285 Smith V. y-j. 79, 86, 120 Squire v. 100, 117, 217, 275, 276 V. Standard Oil Co., 303, 326 Tanner v. 82 Thorpe v. 90 Tierney v. 246 Townsend v. 168, 169 Ulrich V. 90, 164 Waterbury v. 106 Wells V. 86, 88 Wilson V. 81 Wright V. 30 N. Y., C. & St. L. R. Co. V. Doane, 154 TABLE OF CASES. XXXV N. Y. Elevated R. R., The, 59 Weston V. 79 N. Y. & Erie R. R. Co., Hunt v. 284 N. Y. & Harlem R. R., Baulec v. 80 Edgerton v. 157 Langworthy v. 90, in N. Y., Lake Erie & W. R. R. Co., Ellis V. 80 Seyboldt 7/, 112 N. Y. Sleeping Car Co. v. Lewis, 76, 84, 230 V. Wing, 76 N. Y. & N. E. R. R. Co., Davies v. 194 Griswold v. 107 N. Y. & N. H. R. R., Carroll v. 157, 158 Colegrove •z^. 155 Coleman v. 172 Downs V. 140, 174, 238 Hodgdon v. 244 Maples V. 140, 174 Milner «/. 142 Nolan V. \^\ V. Schuyler, 23 Weeks v. 207 N, Y., Mex. S. S. Co., Viner v. 214 N. Y. Mails. S. Co., Spaids z/. 314 N. Y., O. & W. R. R., Guy v. 175 N. Y., Prov. & Boston R. R., Law- rence V. 86, 115, 252 Stowe V. 331 N. Y. Steamboat Co. v. Merchants' Bank, 12 Newark, The, 298 Newburger 7/. Howard, 117 Newby, Southern Exp. Co. v. 221, 250 Newell V. Smith, 284 Newhall, Transp. Co. v. 76 Western Transp. Co. v. 114, 233. 250 Newmark, Eaton v. 282, 292 Nevvstadt v. Adams, 115, 252 Newton, Freeman v. 220, 264 Niagara, The Propeller, v. Cordes, 307, 311 Niagara Fire Ins. Co., Steen v. 123 Nicholas v. N. Y. Central, &c. R. R. 234 Nicholls V. Bridgeport, 59 Nichols V. Eaton, 347 Kansas Pac. R. R. t/. 99 Nickerson, Pope 7/. 188, 189, 193 Nickless, Ohio & Miss. R. Co. v. 108, 112 Nieman, Russell v. 318 Nill, Sturgeon v. 299 Nills V. Mackill, 306 Niolan, Smyrl v. 253, 296, 298 Nith, The, 266, 289, 307, 327 Nix, South Carolina R. R. Co. v. 175 Nixon V. Roberts, 70 Noch, Adams Exp. Co. v. 227 Nolan V. N. Y., N. H. & H. R. R. Co. 151 Nolton V. Western R. R. 107 Norfolk & W. R. R. Co v. Irvine, 177 North V. Merch. M. Transp. Co. 337 North Carolina R. R., Smith v. 120, 256 North German Lloyd, Heye v. 24, 26 North Penn. v. Commercial Bk. of Chicago, 244. 337 North Staffordshire R. Co., Peek v. 75,86, 131, 235 North Star, The, 43 Northeast Screw Co., Bliven v. 199 Northeastern Ins. Co., Dole t/. 312 Hagar v. 304 Northeastern Marine Ins. Co., Cope- land «/. 31, 304 Northeastern R. Co., Hammond v. 109, 113 Porcher ?/. 313 Northern v. Williams, 217 Northern Central R. R., Painton v. 80 Tarbell v. 167 Northern Pacific Exp. Co., Bennis v. 129 Hartwell v. 228 Northern Pac. R. Co., Dunlap v. 154 Poole V. 136 Northern R. R. v. Page, 141, 178 Northern Transp. Co., Chisholm, 33, 42, 50 Falvey v. 262 Hoadley v. 237 Van Schaack v. 230 Northumbria, The, 70 Northwest Union Pac. Co., Coger v. 153 Norton, Bork v. 309 Brackett v. 184 Prichard 7A 185, 195, 196 Norway, The, 298 Norway Plains Co. v. Boston & Me. R. R- 331, 332 Norwich, The City of, 40, 55, 60, 62, 63, 65, 68, 72, 83, 117 Norwich & N. Y. Trans. Co., In re Petition, 39, 45, 60, 63 XXXVl TABLE OF CASES. Norwich & Worcester R, R, Co., Bur- roughs V. 266 Norwich Steamboat Co., Simpkins v. 245 Norwich Trans. Co., Place v. 7, 67 V. Wright, 7, 27, 53, 62, 67 Nowlin, Nashville R. R. Co ^'. 176 Hollister v. 76, 114, 207, 233, 241 Nuzum, Pittshurgh & St. L. R. Co. v. 159, 166 O'Brien t/. Boston & W. R. R. Co., 174 V. N. Y. Central R. R. 175 O'Connor?/. Adams, 81 O'Donnell v. Alleghany V. R. R. Co., 154 O'Hara. Buffalo, Wallace z>. 38, 42, 54 Providence, &c. S. S. Co., Rounds v. 26 TABLE OF CASES. xxxix Providence & Washington Ins. Co, Force v. 5, 189 Pullman Palace Car Co. v. Reed, 135, 139, 141, 247 Williams v. 90 Purcell, Southern Exp. Co. v. 263 Putnam v. Broadway & Seventh Ave. R. R. 90, 154 Quebec S. S. Co., Pearse v. 118, 122 Queen, The, 294 Quigley, Philadelphia, W. & B. R. R. V. 29 Quimby v. Vanderbilt, 36, 142 Race, Miller v. 347 Radley v. London & N. W. R. Co. 218 Rae, Galena & Chicago Union R. R. Co. V. 263 Railroad Co. v Androscoggin Mills, 278, 285 ■ V. Bank of Ashland, 185, 187 Bennett v. 139 Dennick v. 194 V. Fraloff, 207 Hall V. 338 Hatten v. 146 Ins. Co. V. 36, 284 V. Lockvvood, 83, 92, 108, 202, 346 V. Manf. Co. 263, 284 V. Pratt, 131, 285, 286 V. Reeves, 237 Sanford v. 130 Shaw V. 349 V. Skillman. 133, 174 V. Stevens, 88 V. Varnell, 307 Railway Co. v Durkin. 78 V. Hamilton. 78 Hough V. 30 V. Valleley, 173 Rajah, The, 40 Raleigh & G. R. Co., Washington v. 286 Ralli V. Janson, 11 Ralston v. The State Rights. 320 Randolph v. Boston & Albany R. R. 80 Chicago & Alton R. R. Co. v. 154, 159 Pierce v. 132 Rankin, Wilson v. 323 Ransom, Barry v. 269 Rapp, Relf z/. 116, 211, 212 Rathbone, Baltimore & Ohio R. R. v. 87, 234 Hooper v. 252 Ravvitzky v. Louisville & N. Ry. Co. 142. 143. 144 Rawson v. Holland, 283, 284 V. Penn. R. R. Co. 142, 233, 272 Raymond, Schwinger •r/. 216 Read, Beal v. 233, 241 Bell V. 80. 309 Illinois Central R. R. Co. v. 81, 89, 92, 150 V. Spaulding, 236, 303 Reagan. Adams Exp. Co. v. 124 Realm, Wentworth v. 295 Rebecca, The, 5, 72, 299 Redd V. Muscogee R. R. 219 Redmond z/. Liverpool, &c. S. Co. 331, 335 Redpath v. Vaughn, 298 Reed, Ex parte, 345 V. Phila., W. & B. R R. 247 Pullman Palace Car Co. v. 135, 139' 141 V. U. S. Exp. Co. 282 Reeves, Railroad Co. v. 237 V. Waterman, 302 Regan v. Grand Trunk R. Co. 94 Regina v. Bjornsen, 204 V. Serva, 204 Reid, Denn v. 46 Relf V. Rapp, 116. 211, 212 Reliance Transp Co , Atwood v. 299 Renard v. Sampson, 269 Reno V. Hogan, 76, 84, 337 Revenge, The, Diaz v. 321 Reynolds, Dial v. 68 Kansas Pacific R. R. Co. v. 255 Rhoads, South Fla. R. R. v. 130, 132, 157, 172 Rhodes v. Louisville & N. R. R. 103 Rice V. Boston, &c. R. R. Co. 331 V. Hart, 201, 203, 331 V. Indianapolis & St. Louis R. R. 213 V. Kansas Pacific R. R. 125, 129 V. Ontario S. S. Co. 35 Phil., W. &B. R. R. Co. v. 169 Southern Kansas Ry. Co. v. 168 Rich, Cameron z*. 259 V. Lambert, 253, 329 Richards v. Doe, 289 V. Gilbert, 306 V. Hansen, 31 xl TABLE OF CASES. Richardson, Bazin v. 298, 299 V. Goddard, 203, 331 Lowe ^'. 3 1 7 Richmond v. Union Steamboat Co. 244 Richmond, &c. R. R. v. Ashby, 160 Richmond Turnpike Co., Vanderbiit V. 320 Richmond. Y. R. & C R. R. Co , Piatt V. 256, 339 Riegel, Union R. R. & Transp. Co. v. 268 Riley, Roberts v. 251, 254 Rinard, Indianapolis R. R. v. 138 Rintoul V. N. Y. Cent. R R. 83, 339, 341 Riordan. Penn. R. R. v. loi, 260 Ripley v. N. J. R. R. 140 Ritz V. Penn. R. R. Co. 100 Rives, Knox v. 113 Rixford 7/. Smith, 98, 215 Roach, Atchison, Topeka & S. F. R. R. V. 151. 155, 175 Va. Midland R. R. v. 155, 180 Roberts, Cisco v. 17, 345 V. Koehler. 177 Nixon V. 70 V. Riley, 251, 254 Van Buskirk v. 142 Robinson v. Bland, 192 V. Commonwealth Ins. Co. 14 V. Great Western R. Co. 162 V. Merchants' Dispatch Co. 93 V. Sheldon. 206 Robson V. N. Y. Cent & H. R. R. Co. 174 Rochester & S. R. Co., Clarke v. 98, loi Curtis V. 260 Rocket, The, 306 Rockingham Mutual Ins. Co. v. Bosh- er, 338 Rockwell V. Nearing, 59 Roesner v. Hermann, 85 Rogers, Barrett v. 289 Jeffersonville R. R. Co. v. 135, 167 V. Webb, 316 V. Wheeler, 112, 215 Rogers Locomotive Works v. Erie R. R. 130 Rome R. R. Co., Holsapple v. 103, 234 V. Sullivan, 231 Root V. Gt. Western R. R. 284, 285 Ropes. Bearse v. 253 Rose, Burlington & M. R. R. Co. v. 132, 153, 179 Rose V. Des Moines Valley R. R. Co. 91, 113 Rosenfeld v. Peoria, &c. Railway Co. 118 Rosenzweig, Lake Shore Ry. Co. v. 151 Ross 7/. Missouri, &c. R. R. 213 State V. 172 Rossiter v. Chester, 14 Rothschild v. Currie, 192 V. Royal Mail S. S. Co. 318 Rounds V. Delaware, &c. R. R. 321 V. Providence, &c. S. S. Co. 26 Rover, The, 79, 262 Rowland v. Miln, 313, 336 Roy, Penn. Co. v. 80 Royal Ex. Shipping Co., Tarbell v. 3 1 9' 334i 335 Royal Mail S S. Co., Rothschild v. 318 Royal Netherland S. Nav. Co., Chap- man V. 43 Rush, Dows V. 288 Russ V. The War Eagle. 113 Russell, Lowry v. 93, 246 V. Madden, 200 V. Niemann. 318 Whitesides v. 263. 337, 342 Rutland & Burlington R. R. Co., Kim- ball V. 87, 98, 233 Ruark, Fassett v. 294 Ryan v Bindley, 64 V. Mo., Kansas & T. R. Co. 196, 259. Sacramento R. R. Co., Jackson v. 331 Sager v. Portsmouth, S. & P. & E. R. R. Co. 84, 222, 233, 255, 301 Salmon Falls Man. Co. v. Bark Tan- gier, 203 Salter v. Kirkbridge, 244 Saltonstall v. Stockton, 107 Sampson, Renard v. 269 Sanders, Wallace v. 222. 229 Sanderson v. Lambertson, 286 Sands, American Exp. Co. v. 85, 252 Elmore v. 142, 143, 178 Sanford v. Eighth Ave. R. R. Co. 173 V. Housatonic R. R. 129, 233 Philleo 2/. 215 V. Railroad Co. 130 Santee, The, 333, 334 Sara, The, 189 Saragossa. The, Hussey v. 260 Saratoga, The, 255, 257, 319 TABLE OF CASES. xli Sargent, Cleveland & P. R. Co. v. 215 Lowell Wire Fence Co. -v. 284 Savage v. Corn Ex. Ins. Co. 218 Prentiss v. 187 Saxon, The, Dalzell v. 283 Sayers, Va. & Tenn. R. R. v. 85 Schaefer, Conn. Mut. Life Ins. Co. v. 64 Schenck, Gray v. 59 Schieffelin v. Harvey, 234 Schier, American Merchants' Union Ex. Co. V. 223 Schiff ^. N. Y. C. & H. R. R. 68, 270, 285 Schiller, Byrne v. 61 Schloss V. Heriot, 298, 299 Schmidt v. Blood, 260 Schmuck, St. Louis & S. E. R. Co. 304 Scholey. Anderson z'. 215 School Dist. V. Boston, Hartford & Erie R. 84 Schultz V. Third Ave. R. R. 321 Schumaker, Baltimore & Ohio R. R. V. 284 Schurmanns, Gen. Iron Screw Collier Co. V. 19, 70 Schutter v. Adams Exp. Co. 253 Schiiyler, N. Y. & N. H. R. R. Co. v. 23 Schwinger z/. Raymond, 216 Scotia, The, 190, 194 Scotland, The, 9, 23, 53, 60, 61, 63, 70, 71 Scott z/. Baltimore S. S. Co. 325 Chicago, &c. R. R. v. 331, 332 V. London & S. K. Docks, 260 V. Pilkington, 188 Scudder v. Union Nat. Bank, 187, 349 Seaboard, &c. R. R., Capehart v. 125 Taylor v. 268 Sears, McArthur 7/. 318 Seawanhaka, The, 26, 38, 39 Second Ave. R. R., Jackson v. 321 Second Nat. Bk., Am. Exp. Co. v. 90, 222, 253, 254 Selah, The, 190 Selby, Ohio & Miss. R. R. v. 83, 88, 92, 108 Seligman v. Armyon, 313 Seller v. The Pacific, 85, 227, 276, 289, 292 ■ Semple, Little v. 337, 342 Serva, Regina v. 204 Sessions v. Western R. R. 331 Seven Hundred & Twenty-five Tons Coal, Holland z/. 311 Sewall V. Allen, 248 Seyboldt v. N. Y. & Lake E. R. R. Co. 112 Shand, P. & O. Co. t/. 196 Sharp, Potter v. 79 Shaw V. Gordon, 337 Railroad Co. v. 349 Shea, Chicago & Alton R. R. Co. v. 211, 212 Shedd V. Troy & Boston R. R. Co. 143 Shelby v. Guy, 199, 348 Shelden v. Robinson, 206 Sheldon, Aymar t/. 187 V. Blauvelt, 185 Sheltin v. Lake Shore & M. S. R. 169 V. Merchants' Trans. Co. 271, 275 Shepard, King v. 307 V. Naylor, 294 Sheppard v. Taylor, 72 Sheridan v. Brooklyn City R. R. 176 Sherlock v. Ailing, 51 Sherman v. Chicago R. R. Co. 142, 163 V. H. R. R. Co. 331 V. Inman S. S. Co. 104, 305, 311 V. Western Trans. Co. 260 Sherrard, Madan v. 235 Woodruff V. 226 Sherrod, Louisville. &c. R. R. v. 117 Sherwood, Gen. Mut. Ins. Co. v. 31, 304, 306 Shield, Hicks v. 61. Shriver v. Sioux City, &c. R. R. Co. 84, 214, 218, 253 Shuenfeldt ■z/. Junkerman. 184 Shunk V. Phila. & Prop. Co. 332 Sidney, The, 338 Sidonian, The, 267 Siger V. Syracuse, B. & N. R. R. Co. 80 Simon v. The Fung Schney, 236 Simmons v. Law, 238 V. New Bedford, &c. Steamboat Co 78 Simms, Chicago & Alton R. R. v. 123, 126 Simpkins v. Norwich Steamboat Co. 245 Simpson, Kansas City, &c. R. R. v. 118 V. Thomson, 47 Sims. Jones ■y. 90. 107 Lafayette & Ind. R. R. v. 158 Singleton v Hilliard, 240, 326 Sinnickson, The Charles P., Tygert. Co. V. 253 xlii TABLE OF CASES. Siordet v. Hall, 236 Sioux City, &c., R. R. Co., Shriver v. 84. 214, 218, 253 Sisson V. Cleveland & Toledo R. R. 103, 238 Sisters, The, 70 Six Hundred and Thirty Casks of Wine, 259, 328 Skelton, City Bank of N. Y. v. 316 Skillman, R.' R. Co. v. 133, 174 Cin., S. & G. R. R. Co. v. 170 Skinner v. Hall, 284 Slater v. Hayward Rubber Co. 302 V. South Car. R. Co. 255, 299 Slayton, Expirte, 55 Sleade v. Payne. 331 Sleeper ^/. Penn. R. R. Co. 185 Slocum V. Fairchild, 299 Sloman v. Great Western R. Co. 210 Sloop Pekin, Smith v. 323 Smallman v. Whilter, 157 Smith 7'. British, &c. Packet Co. 79 V. Dinsmore, 123, 128 Jerome v. 140 Kain v. 80, 112 V. Kirby, 70 Lewis t/. 252 V. Mead, 184 V. N. Y. Central R. R. 77, 79, 86, 120 V. New Haven & Northampton R. R. 78, 98 V. North Carolina R. R. 120, 256 V. Pittsburgh, F. W. & C. 134 Rixford v. 98, 215 Stephen v. 133, 172 V. Sloop Pekin, 323 Smitha, Central R. R. & Banking Co. V. 83, 102, 216 V. Louisville & N. R. Co. 126 Smuch, Central R. R. Co. v. 335 Smyrl v. Niolon, 253, 296, 298 Smyser, Illinois Central R. R. v. 243 Snider v. Adams Exp. Co. 84, 222, 223 S. A. D. R. R. Co. Brush v. 91 South Boston R. R., Bradshaw v. 165 South Car. R. Co., Bamberg v. 98 Hall V. 136, 172 Inman Line v. 83, 253, 340 V. Nix, 175 Slater v. 255, 299 South Florida R. R. Co. v. Rhoads, 130, 132, 157, 172 South & North Ala. R. R. Co. v. Hen- lein, 83, 98, 117, 118 V. Huffman, 154 V. Wood, 216 South. St. Louis, Alton, &c. R. R. Co. V. 135, 137 Southern Exp. Co. v. Armstead, 92, 114 Caldwell v. 312, 314 V. Caperton, 123 V. Crook, 83, 231, 232 V. Everett, 211, 212 Glenn v. 124, 129 V. Glenn, 123 V. Hunnicutt, 123 7A Kaufman, 213 Kember v. 267 Levy V. 278 V. Moon, 84, 118 V. Newby, 221, 250 Porter z/. 123, 124 V. Purcell, 263 St. John V. 243 V. Urquhart, 279, 280 Southern Kansas Ry. Co. v. Hinsdale, I33i 153 V. Rice, 168 Southern Life Ins. Co. v. Packer. 17 Southern Pac. R. R. Co., Bland v. 175 Houck V. 153 Southern R. R. Co., Crawford v. 284 Hurt V. 107 SpaidsT/. N. Y. Mail S. S. Co. 314 Spangler, Lake Shore & M. S. Ry. Co. z/. 85 Spaulding, Read v. 236, 303 Spears, Georgia R. R. v. 99, 231 Spellman, American Exp. Co. v. 270 Spence v. Chadwick, 313 Spencer v. Dagget, 307 Spencer, The J. F. 190 Speyer v. Mary Belle Roberts, 262 Spicker, Penn. R. R. v. 178 Spinetti v. Atlas S. S. Co. 87, 318, 320, 323, 324 Spirit of the Ocean, The, 37 Spoffard, Brown v. 268 Spofford, Sturges v. 345 Spooner v. Hannibal & St. J. Ry. Co. 207 Sprague v. Missouri Pac. R. R. Co. 125 Spring V. Haskell, 8, 23, 39 Springs Co., Cowell v. 16 Sproat V. Donnell, 246, 247 Squire v. N. Y. Cent. R. R. Co. 100, 117, 217, 275, 276 TABLE OF CASES. xliii St. Anthony Steamboat Co., Choteau V. 112, 248 St. Contra, Agnew v. 98 St. John, Mullen v. 259 V. Southern Exp. Co. 243 Van Santvoord v. 245 St. Louis, A. & T. H. R. R. v. South, I33i 137 St. Louis Co., Hibernia Ins. Co. v. 298 St. Louis, I. M. & S. R. Co. v. Knight, 292 Mosher v. 164 St Louis, Kansas City & N. R. R. v. Cieary, 273 Gillepsie v. 237 Halliday v. 284 Marshall v. 166 St. Louis, &c. R. R. Co., Clark v. 94, 100 Cloud V. 163 V. Dalby, 135, 137 V. Dawson, 123 V. Dorman, 78, 99 Evans v. 107, 144 V Lesser, 1 1 5 Lillis V. 142, 171, 173 V. Mackie, 154, 166, 169, 230 V. Myrtle, 139 V. Piper, 84 V. Schmuck, 304 Thayer v. 84, 92 St. Paul & Chic. R. R., Jacobus v. 113 St. Paul & D. R. Co., Arthur v. 333 St. Paul & Pac. R. R., Du Laurans v. 135 St. Paul, M. & M. R. Co., Hardenberg V. 159, 172 St. Paul R. R. Co., Moulton v. 106, 118 Standard Oil Co., N. Y. Cent., &c. R. R. Co. V. 303, 326 Standish v. Narragansett S. S. Co. 140 Star of Hope, The, 327 Star of Scotia, The, 18, 65 Star Union Co., French v. 317 State V. B. &. O. R. R. 85 V, Campbell, 142, 174 V. Chovin, 131, 133 V. Goold, 132, 134 V. Hartford & N. H. R. R. 130 V. Kinney, 173 Landrigan v. 170 Loughlin v. 30 V. Mayor, &c. of Jersey City, 59 Stater^. Overton, 146, 159, 178 V. Ross, 172 V. Thompson, 141 State Line S. S. Co., Steele v. 86 State Rights, Ralston v. 320 Staten Island R. R. Co., Carroll 2/. 50, 51, 108, 219 Statham, New Orleans, &c. R. R. Co. V. 176 Steamboat Co. v. Bason, 307 Steamboat H. M. Wright, 162 Steamboat Milwaukee, Baker v. 2, 272 Steam Nav. Co., Miller v. 284, 302 Wells V. 234 Steamship Co., Barnes v. 8 Bazin v. 252, 299, 304 Lord V. 8, 32, 39 Stedman v. Western Trans. Co. 87 Steele v. Burgess, 328 V. State Line S. S. Co. 86 V. Townsend, 83 Steen v. Niagara Fire Ins. Co. 123 Steers v. Liverpool, &c. S. S. Co. 117 Steinway, Benzing v. 79 Steinweg v. Erie Railway, 79, 227, 234 Stephen v. Smith, 133, 172 Stephenson, Nelson v. 288, 290, 293 Stern, Penn. R. R. Co. v. 244, 337 Stettaners, Adams Exp. Co. v. 230, 252, 253, 261 Stevens, Grand Trunk Ry. v. \\\ V. Navigazione Gen. It. 198, 301, 324 Railroad Co. v. 88 Stevens, &c. Trans. Co., Tucker- mann v. 298 Stevenson v. Jewett, 80 Nelson v. 283 Stewart v. Board, &c. 59 V. Brooklyn, &c. R. R. 321 Stiles V. Davis, 316, 317 Stinson v. Wyman, 42 Stocton, Saltonstall v. 107 Stoddard v. Long Island R, R. Co. 87 Stoga, The, 294 Stone V. Chicago R. R. Co. 146, 162, 173, 176 V. Marsh, 347 Stoomvaart Maatschappy Nederland V. Peninsular & O. S. N. Co. 43 Storer, Gauche v. 290 Storrow, Atlantic Ins. Co. v. 318, 339 Stoval, Plant v. 39 Stowe V. N. Y., Boston & Providence R. R. Co. 331 xliv TABLK OF CASES. •Strain, Indianapolis R. R. Co. v. 78 Straker v. Hartland. 70 Street, Ewart v. 253, 297, 299, 305, 307 Strohn v. Detroit & Mich. R. R. Co. 229, 270, 313 Strouss V. Wabash, &c. R. R. Co, 296, 298, 307 Sturgeon, Hill v. 252, 262, 330 Nill V. 299 Sturges V. Spofford, 345 V. The Columbus, 342 Sturm, Grand Trunk Railway v. 153 Sue. The, 153 Sullivan, Louisville C. & L. R. R. v. 173 V. Old Colony R. Co. 154, 177, 246 Rome R. Co. v. 231 V Thompson, 154, 246 Sultana, The Steamboat, v. Chapman, 331 Sumner z/. Walker, 285 Sun Mutual Ins. Co.. Lawton v. 323 Sunday v. Gordon, 320 Surrey, The, 334 Sutro V. Fargo, 255 Sutton, Illinois Cent. R. R. v. 139, 171 Swan, DeCuadra v. 61 V. Manchester «&: L. R. R. 134, 138, 176 V. W^illiams, 59 Swanzy, African Steamboat Co. v. 70 Swarthout. Ohio & M. R. Co. v. 160 Sweitzer, Verner v. 230. 250 Swett, Chic. & N. W. R. R. Co. v. 81 Swift, Hannibal R. R. Co. v. 237 V. Pacific Mail Co. 286 V. Tyson, 13, 202 Swindler v. Hilliarcl, 240, 263, 325, 326 Swinney, Collier z/. 308 Sylvester, Eveleigh v. 308 Syracuse & Bingh., &c. R. R., Hill v. 142, 143, 163 Syracuse. &c. R. R., Mynard v. 78, 98, 103, 234 Syracuse, B. & N. R. R., Siger v. 80 Tabor, Hunnewell v. 93 Tabor, The. 321 Talbot. Little Rock R. R. v. 32: Fuller V. 78 Little Rock, M. R. & T. R. Co. V. 83 Talbot V. Merchants' Dispatch Trans. Co. 184 Talcott, Pine Grove v. 14 Tangier The, 24, 331 Tangier Bark, Salmon Falls Mfg. Co. V. 203 Tanner, Atlanta, &c. R. R. Co. v. 201 V. N. Y. Central & H. R. R. 82 Tarbeil v. Northern Central R. R. 167 V. Royal Exchange Shipping Co. 319, 334, 335 Tarbox v. Eastern Steamboat Co. 266 Tardos v. Chicago, &c. R. R. 285 Tennessee v. 302 Tarpley, Watson ■z'. 13 Tate V. Hyslop, 340 Tattersall v. The National S. S. Co., Limited, 82 Taubman v. Pacific S. N. Co. 86 Taylor v. Cayzer, 80 Elmendorf v. 199 V. Little Rock, &c. R. R. 277 V. Liverpool, &c. S. S. Co. 318, 341 Packard v. 297, 298, 299, 305 V. Seaboard & R. R. R. 268 Sheppard v. 72 Williams v. 98 Teall V. Barton. 218 Tennessee v. Tardos, 302 Terre Haute, Harvey v. 117 Terry v. Flushing R. R. 146, 178 McCarthy v. 347 Texas & P, R. R., Breen v. 146 V. Bond. 175 Texas Central R. R. v. Morris, 127 Thames, The, 333 Thayer v. St. Louis, Alton & T. H. R. 84, 92 Thebaud. Arden S. S. Co. v. 93, 266 Third Ave. R. R., Hamilton v. 168 Isaacs 7J. 320 Schulz V. 321 Thomas, Ala. G. S. R. R. v, 83, 280, 283 V. Chicago & G. T. Co. 154 Kentucky Central R. R. v. 154 V. Osborn, 1 1 V. The Morning Glory, 218, 231 Thomas Melville, The, 256 Thommessen f . Whitwill, 21, 40, 72, 194 Thompson v. Chicago & Alton R. R., 128 TABLE OF CASES. xlv Thompson, Chicago & A. R. R. v. 208 Ex parte, 323 Gleddell v. 335 V. Liverpool, &c. S. S. Co. 333 Perry v. 224, 226, 271 Pittsburgh, C. & St. L. R. R. v. 78 State V. 141 Sullivan v. 246 Thomson, Simpson v. 47 Thorpe v. N. Y. C. & H. R. R. 90 Three Hundred & Eighteen Tons Coal, Johnson v. 248 Thrift V. Youle, 330 Thurkhill, VVhitesides v. 84, 301 Thurston v. Union Pac. R. R. Co, 156 Tierney v. N. Y. Central R. R. 246 Tiers, New Brunswick Stbt. Co. v. 236 Tiffany, Miller z'. 185, 186 Tillman, Columbus & W. R. Co. v. 285 Timpson, Finn v. 253 Tirrel, Gage v. 270, 312 . Tisdale, Int. & G. N. Co. v. 315 Titania, The, 91, 189, 200, 300, 305, 341 Todd, Mavings z/. 114 Waring z/. 1 1 4 Toledo, Peoria & W. R. R. v. Patter- son, 154, 171, 173 Toledo, Wabash, &c. R. R,Barsemer ^- 331 V. Beggs, 150 V. Fredericks, 81 V. Lockhart, 282, 284 V. Wright, 133, 168, 171 Tons of Coal, O'Rourke v. 267 Town of South Ottawa v. Perkins, 200 Townsend v. N. Y. Central R. R. 168, 169 Steele v. 83 Township of Elmwood v. Marcy, 200 Transfer Co. v. Kelly, 155 V. Newhall, 76 Trawick, Gulf, &c. Railway v. 100, 123 Trent, Louisville & Nashville R. R. v. 102 Trent & M. Nav. Co., Hyde v. 241, 302 Tripp, Old Colony R. R. v. 157 Trollinger v. EastTenn., V. & G. R. R. 159 160 Troustine, III. Cent. R. R. ?/. 162 Troy & Boston R. R. Shedd v. 143 Tucker, Eagen v. 80 Tuckerman v. Stephens, &c. Trans. Co., 298 Tullcr V. Talbot, 78 Turner v. Lewis, 185 v. Protection Ins. Co. 311 Turney 7/. Wilson, 256, 257, 258, 298 Tutt, Jacobs V. 334, 337 Twenty-Third St. R. R. Co., Corbett 7A 131 Twogood, Franklm v. 201 Tybee, The, 244 Tygert Co. v. The Charles P. Sin- nickson, 253 Tyson v. Post, 247 Swift V. 13, 202, 247 Ulrich V. N. Y. C. & H. R. R. 90,. 164 'Unit, The, 44 United States v. Barrows, 345 V. Bowen, 21 V. Coombs, 16 Cox v. 186 Gratiot v. 345 U. S. & Canada Exp. Co., Hadd v. 284 U. S. Express Co. v. Bach man, 107,, 118, 235, 257 7'. Harris, 123, 127, 28 1 V. Holmes, 204 Kallman v. 84, 250, 255 V. Klintock, 204 Oppenheimer z'. 114, 117, 208 Reed v. 282 United States Tel. Co., Breese v. 227 Union Bank, Scudder v. 187, 349 Union Exp. Co., Place v. 309 Union Ferry Co., Hoffman v. 158^ 218 Union Pac. Ry. Co. v. Moyer, 334 Ormsby 7/. 126, 263 Thurston v. 156 Union R. R. & Trans. Co. 7/. Riegel, 268 Union Railway Co., Murphy 7/. 155 Union Steamboat Co., Rintoul 7/. 83, 339. 341 Union Transp. Co., Gaines v. 235, 250 Union Trans. & Ins. Co., Levering v. 84, 257 Uriel, Price v. 255 Urquhart, Southern Express Co. v. 279, 280 Vaderland, Wolff v. 327 Valentine, Collier v. 262 xlvi TABLE OF CASES. Valleley, Railroad Co. v. 173 Van Buskirk v. Roberts, 142 Van Deventer, Missouri Pac. R. R. V. 84, 91 Van Kirk v. Penn. R. R. 147 White V. 267 Van Natta v. Mut. Security Ins. Co. 339 Van Santvoord v. St. John, 245 Van Shaack v. North. Trans. Co. 230 Van Winkel v. Adams Exp. Co. 120 Von Volkenberger, Compton v. 174 Vance v. Campbell, 64 Vanderbilt v. Quimby, 36, 142 V. Richmond Turnpike Co. 320 Vanderpoel, Crystal Palace v. 162 Vann, Dupont v. 236, 298 Varnell, Railroad Co. v. 307 Vasser, Comegys v. 338 Vaughn, Redpath v. 298 Vedder 7/. Fellows, 131, 132, 141 Vendreyes, Everett •z/. 192, 194 Ventura, The, 8, 32 Venner, The, 294 Vernard v. Hudson, 299 Verner v. Sweitzer, 230, 250 Vernon, The, 74 Vessel Owners' Towing Co., In re, 27, 38 Vidette, The, 316 Village of Middletown, The, 59 Viner v. N. Y., Alexandria, &c. S. S. Co. 214 Vinton v. Middlesex R. R, 155 Virginia, &c. R. Co., Gleason v. 296 Virginia & Tenn. R. R. v. Sayers, 85 Virginia Midland R. R. v. Roach, 155, 180 Vivid, The, 259 Volant, The, 37 Voorhees, Jones v. 84, 233 Voorwaarts, The, 42 Vose, Dedekam v. 327 V. Morton, 240 Vroman v. American Ex. Co. 120, 127 Vt. & Mass. R. R. Co., Common- wealth V. 230 Wabash. &c. R. R., Ball v. 103 Brown 7/. 1 1 5 Buddy V. 331 Coupe V. 106 Davis V. 309 East St. L. R. R. v. 333 Meyers v. 88 Strouss V. 296, 298 307 Walker v. 146 Wade, Beckford v. 16 Dunseth v. 342 Wahle V. Holt, 282 Wakefield, Holmes z/. 154, 173 Walker v. Dry Dock, E. B. & B. R. R. 142 Forsythe v. 214 Sumner v. 285 V. Wabash, &c. R. R. 146 V. Western Transp. Co. 23. 30, 35, 83, 96 Walkyrien, The, 190 Wallace v. Clayton, 303 V. Matthews, 230 V. Providence & Stonington S. S. Co. 38, 42, 54 V. Sanders, 222, 229 Walpole V. Bridges. 297 Wamsutta Oil Refining & Mining Co., Emp. Trans. Co. v. 85 Wanderer, The, 269 War Eagle, Russ v. 113 Warfield v. Fox, 16 W^aring v. Morse, 299 Warkworth, The, 22, 30, 35. 304 Warner v. Western Trans. Co. 211 Warren Chemical & M. Co., Curren v. 260 Warren, Chicago & R. Ind. R. R. v. 331- 332 V. Fitchburg R. R. 78 Wasatch R. R., Anderson v. 256 Washburn, Atchison & Neb. R. R. V. 199 Washington, The, 44 Washington v. Raleigh R. R. 286 Washington, A. & G. Co., Bradley v. 198 Carpenter v. 170 Washington, &c. R. R., Lemont v. 156 Wasmer z/. Del., L. & W. R. R. in Waterbury v. N. Y. Central & H. R. R. 106 Waterman, Reeves v. 303 Waters v. Cox, 188, 201 Watertown Fire Ins. Co., Houghton V. 240 Watervliet, T. & R. R., Higgins v. 154 Watson V. Duyckinck, 60 V. Marks, 49 V. Tarpley, 13 Watts V. Camors. 197 Way V. Chicago, R. I. & P. R. R. 108, 150 Weber, Atchison, T. & S. F. R. v. 154, 155, 173 TABLE OF CASES. xlvii Weeks v. N. Y., N. H. & H. R. R. 207 Peck V. 233 Weil V. Merchants, Dis. Co. 284 V. The Express Co. 267 Weir, Flint & Marquette R. v. 113 Welles et al.. Hooper v, 83, 90, 99, III, 238 V. The Express Co. 123, 124 Wellington, The, 247 Wells, Chesapeake & O. & S. W. R. Co. V. 152 Lyons t^. 31 V. Maine S. S. Co. 316 V. N. Y. Central R. R. 86, 88 V. Steam Nav. Co. 234 Wells et al., Hayes v. 206, 212 Welsh, Boyce v. 298 V. Pittsburgh, Fort Wayne & Chic. R. R. 77, 84 V. Realm. 295 Wentz V. Erie Railway Co. 142, 148, 163 Penn. R. R. v. 147. 161 •Werle v. Long Island R. R. 159, 161 Wertheimer v. Penn. R. R. 256 West V. The Berlin, 269, 2S8, 290, 309 West Chester & Phila R. R. v. Miles, 152 Westcott V. Fargo, 120, 127, 230 Hopkins t/. 117, 122, 232 Limburger^'. 263 Western A. R. R.. Murphy v. 153 Western & A. R. R. Co., Ayres v. 263 V. Bishop, 85 V. Exposition Cotton Mills, 196, 234, 286, 327 V. Hamilton, 269 Judson V. 117, 222, 231, 242, 279 Kimbal 7/. 218 McDonald v. 284 Western R. R., Nolton v. 107 Sessions v. 331 Western Transp, Co., Champlain v. 16, 22, 24, 29 Downer v. 252, 255 V. Newhall, 114, 233, 250 Parmlee v. 284 Sherman v. 260 Stedman v. 87 Walker v. 330 Wa»-ner z/. 211 Western Union Tel. Co , Blanchardz/. 259 Cole V. 123 Western Union Tel. Co., Heimant/. 125 Wolf 7/. 123 Young V. 123, 227 West Midland Co., Gregory v. 78, 131,235 Weston V. N. Y. El. R. R. 79 Wetmore, Little Miami R. R. v. 325 Wetzall 2/. Dinsmore, 121 Weyand v. Atchison, T. & S. F. R. Co. 244 337 Wheeler, Aetna Ins. Co. v. 279 Barter v. 193, 284, 325 Kay V. 300 Macy V. 36 V. Oceanic Steam Nav. Co. 49 Rogers v. 112, 215 Whilter, Smallman v. 157 Whistler, The Bark, 30, 37 White V. Boyce, 269 V. Missouri Pac. R. Co. 313 V. Van Kirk. 267 Whitehouse v. Halstead, 244 White Line Co., Edwards 7/. 317 Whitesides v. Russell, 263, 342, 337 V. Thurkill. 84, 301 Whitlock, Mc Andrews v. 331, 336 Whitmore v. The Caroline, 248 Whitsell V. Crane, 232 Whittemore, 111. Cent. R. R. v. 132, 141, 172 Whittle, East Tenn., &c. R. R. v. 105, 112 Whitwill, Leonard v. 47, 54 Thommessen v. 21, 40, 72, 194 Whitworth v. Erie R. Co. 236, 257, 263, 278, 281 Wightman v. Chicago & N. W. R. R. 142 Wilcox, Erie Railway Co. ^'. 213 Wright 7K 321 Wilde V. The Merch. Despatch Trans. Co. 274 Wiley, Brown z'. 269 Wilhelmina, The, 262 Wilkes, Int. & G. N. R. Co. v. 174 Wilkins, Balfour v. 240 Wilkinson. Brown v. 7, 40 V. First Nat. Ins. Co. 123 Willamette Trans. Co., Dice v. 147 Willan, Covington v. 75 Willard, Ellis 7a 266 Willetts V. Buffalo, &c. R. R. 139, 176 Williams v. African S. S. Co. 49 V. Carr, 201 Chicago & N. W. R. R. z/. 151, 152, 159 xlviii TABLE OF CASES. Williams, Northern z/. 217 V. Pullman Car Co. 90 Swan V. S9 V. Taylor, 98 Willis V. Long- Island R. R. 155 Wilis V. Claflin, 349 Wilmington, &c. R. R., Branch v. 8- Clark V. 174 McRae v. 130, 178 Wilson, Adams Exp. Co. 7>. 284 V. Chesapeake & Ohio R. R 148, 231, 265 Clark V. 338 V. Dickson, 7. 30, 37, 61 V. Freeman, 120 V. Grand Trunk R. Co. no V. Hamilton, 84, 99 Kopitoff V. 32 V. N. Y. Central, S^c. R. R. 81 V. Rankin, 323 V. The Ohio, 323 Turney v. 256, 257, 258, 298 Wiltse V. Barnes, 243 Wiman, Fitzhugh v, 267 Wing V. N. Y. & L. Erie R. R. 236 V. N. Y. Sleeping Car Co. 76 Winona, &c. R. R., Lawrence v. 245, 282 Wisez/. Gt. Western Railway Co. 102, 213, 214, 332 Wissman, The Ship Howard v. 291 Wolf t/. W. U. Telegraph Co. 123 Wolfe V. Meyers. 267 Wolff V. Vaderland, 327 Wonack. Southern Exp. Co. t/. 312 Wood, Merch. Wharf Assn. v. 219, 300 V. Milwaukee & St. Paul R. R. 282 McCrane z/. 312 Southern & N. Ala. R. R. v. 216 Woodland, The, 188 Woodley v. Michell, 301 WoodrufifT/. Havemeyer, 333, 335 Nelson ^'. 266 V. Sherrard, 226 Woolverton v. Lacey, 323 Worthington, Kings' v. 64 Wright ^J. Bales, 64 V. California Cent. R. Co, 151,, 156, 172, 180 V. Gaff ^/«/. 83 Norwich Trans. Co. v. 7 27 53. 67 V. N. Y. C. R. R. 30 Toledo, &c. R. R. v. 133, 168, 171 V. Wilcox, 321 Wyld V. Pickford. 86, 121 Wyman v. Pacific Railway Co. 171 Stinson v. 42 Wynkoop, Demarest v. 16 W. & N. C. R. R., Hamilton v. 269 Yeoman v. Contra Costa S N. Co * no York Company v. Central R. R. 82-, 227, 273. 275, 324 Yorton v. Milwaukee, &c. R. R. 145 Youle, Thrift v. 330 Young, Casselay v. 342 Evansville, &c. R. R. v. 83 V. Penn. R. R. 286 V. W. U. Tel Co. 123, 227 Younger, Gloucester Ins, Co. v. 15 Zeregat/. Poppe, 253 Zing V. Howland, 334 Zinn V. N, J, Steamboat Co. 331 Zone, The, 288. THE MODERN LAW OF CARRIERS. THE MODERN LAW OF CARRIERS. PART I. LIMITATIONS UPON THE LIABILITY OF COMMON CAR- RIERS BY THE LAW MERCHANT AS ADOPTED IN THE UNITED STATES. CHAPTER I. THE ADOPTION OF THE LAW MERCHANT IN THE UNITED STATES. The law of the United States is as composite as the people. Its basis is the common law of England, but that law has been modified to suit our circumstances and character. The language of the Constitution which con- fers upon the Federal Courts " admiralty and maritime jurisdiction," has been interpreted in no narrow sense, and those courts have administered the maritime law of Europe, as adopted in America, as well as the local juris- prudence of each State which forms part of the American Commonwealth. In no country, therefore, is the respon- sibility of the judge and the lawyer more onerous. The common law of England and the civil law of Rome imposed upon him who undertook the task of carry- ing goods for the public the severe responsibility of an insurer. His sole exemption was for losses caused by the act of God or the public enemy.' In no other way it was ^ See the statement of the rule in '" The Maggie Hammond," 9 Wallace, 435» 444 (1^69). 1 2 THE MODERN LAW OF CARRIERS. thought could fidelity be ensured. This rule originated in times when transportation, both bj' land and water, was insecure, and when the risk of collusion between the car- rier and pirates or thieves was great. As commerce increased, the necessity for protection and encouragement to it became more apparent. The security afforded by Government to peaceful traders on land was made adequate, and the rule itself to them became less oppressive. But from many perils by sea Government could afford no protection. Ship building developed into a science, and the size and cost of vessels increased. It was seldom practicable for a navigator to own the ship he commanded. It became important, therefore, to encourage capitalists to invest their money in the building and pur- chase of ships. But under the stringent rule already mentioned, the person who owned a ship which carried a valuable cargo, might be bound for many times the value of his investment in the ship, and thus put at risk his whole fortune. To lighten his responsibility, the maritime countries of the continent of Europe provided at an early day that the liability of a shipowner to freighters and passengers should not exceed the value of his interest in the ship and her freight. There were other reasons for this provision, in addi- tion to those already mentioned, which deserve considera- tion. The carrier on land could supervise the agents em- ployed by him to a much greater extent than the carrier by water. The captain and crew, when once they had sailed from the home port, were beyond the control of the owner, and the lives of the master and mariners being at stake there was supposed to be less likelihood of their negligence. To what extent this provision has been adopted and become law in the United States will first be considered. LIMITATION BY THE LAW MERCHANT. 3 That it has been with reference to our own merchant marine is clear. The Act of March 3, 185 1 [chap. 43, 9 U. S. Stat, at Large, 635], which has been re-enacted in the Revised Statutes [" Title 48th, Regulation of Commerce and Navigation," chap. 6, sects. 4282-4289], contains the first statutory provisions on this subject of general ap- plication to be found in America, though local Statutes had previously been passed in Maine and Massachusetts. In determining the force and effect of this Statute it is very material to consider its relation to the maritime law by which other countries are governed. The distinction between municipal regulations and laws affecting the commerce between nations has long been recognized. The former vary with the needs and institutions of each particular country. The latter are most useful when they are most harmonious and uniform. The Mediterranean Sea was once the home of the commerce of what was then the civilized world. In the states bordering upon it a body of customs and sea-laws sprung up. They had their origin in the necessities of commerce. They differed in many respects from the civil law which was, in effect, the common law of those states. When the Hanse towns along the Baltic became prosper- ous, and when France began to send ships from her Atlantic ports, most of these usages and customs were transported to the North. They were administered by courts of special jurisdiction, which came in time to be called Courts of Admiralty, or Tribunals of Commerce. These usages and customs were codified and promulgated at different times and by different governments. Of these Codes, the celebrated Ordonnance de la Marine is the most complete. But it is true of all of them, that while in form they are decrees emanating from the highest power in the State, in reality they simply give form and 4 THE MODERN LAW OF CARRIERS. expression to laws or customs previously known and re- cognized. Take, for example, the Ordonnance already referred to. It begins : '' Louis, by the grace of God, King of France and Navarre, . . . We do speak, ordain, declare and make known our will as follows. . . . " Yet all the writers on the subject agree that most of the provisions of the Ordonnance had been for centuries in force among the principal maritime nations of Eu- rope.' It is to be especially noticed that the authorities just cited uniforml}^ speak of the Ordonnance not merely as a statute or a decree of Louis XIV, w^hich on its face it purports to be, but as a code or digest of the existing maritime law. When, therefore, we find it declared in the Ordonnance (Book 2, title 8, article 2) that the liability of the ship- ^ In reference to this ordinance of Louis XIV, Chancellor Kent says (Comm., Vol. 3, pp. 16, 17): " The whole law of navigation, shipping, insurance and bottomry was systematically collected and arranged. . . . Every commer- cial nation has rendered homage to the wisdom and integrity of the French Ordinance of the Marine, and they have regarded it as a digest of the maritime laws of civilized Europe." As long ago as 1759, Lord Mansfield, in Luke v. Lyde, 2 Burrows,. 882, cites it as an authority and says: "It was collected and compiled under authority of M. Colbert." Emerigon says in his preface to his treatise on Insurance, p. ii: " The ancient maritime laws are the sources which were open to the compilers of the ordinance, and from which those must draw who would go to the fountain head." He then gives a sketch of the different com- pilations before the ordinance, and adds, p. xv: " The ordinance of 1681 is a compilation of all these ancient laws." {Les anciennes lots mart- times sont les sources qui furent ouvertes aitx redacteurs de V Ordonnance, et dans lesquelles doivent puiser ceux qui veulent remonter aicx principes^'' " L'ordonnatice de 168 i est un compose de ioutes ces anciennes lois." Azuni on Maritime Law, Vol. i, p. 393 (Am. ed. of 1806), says : " The ordonnance has become in some sort the common law of all the neighboring nations." See also Bedarride, du Commerce Maritime, tome i, sections 10, 18, pp. 14, 21. LIMITATION BY THE LAW MERCHANT. 5 owner for the negligence of the master is discharged by the abandonment of the ship and freight/ we can only conclude that this provision was, as long ago as the reign of Louis XIV, the established maritime law of continental Europe. A still older compilation, the Consolato del Mare, contains a provision to the same effect, as to the liability of the owner, although it did not undertake to provide a remedy by which this limitation of liability could be enforced.^ The courts of Holland recognize the same right on the part of the owner, and the same rule is acknowledged throughout the continent of Europe.^ In England, however, this rule never was fully adopted. The decisions of the courts of that country before the time of Lord Mansfield had little or no refer- ence to the commercial law of Europe. For this there were many reasons. The English, before the discovery of the mariner's compass in the twelfth century, were not and could not be a commercial people. The tenacity with which they clung to their local privileges, and especially to the right of trial by jury of the vicinage, led them to look with distrust and jealousy upon the Court of Admiralty, and its powers were greatly restricted so long ago as the reign of Richard II. The pride with which the English 1 Valin Comm. Sur. I'Ord., Vol. i, p. 490, ed. 1841, p. 568, ed. 1776; 2 Peters' Adm, Dec. Appendix, p. xvi. Bedarride, du Commerce Maritime, Vol. i, sections 273, 276, 279, 287. In section 279, Bedarride says : "In no case can the ship owner be made liable by any consequence of the voyage beyond his interest in the ship itself." In sect. 287 he says : " The right to abandon the ship and freight exists where the negligence or willful tort or quasi tort (quasi delit) is imputable to the crew or to the captain himself." ^ The Rebecca, i Ware Rep. 195 (1831); The Phebe, Ware, 265 (1834). See, also, Pardessus Lois Maritimes, Vol. 2, p. 161. ' Valin. Comm., Vol. i, p, 568 (ed. 1776); Liv. 2, tit. 8, art. ii; lb. Vol. I, p. 490 (ed. 1841) ; 3 Kent's Comm. 218; Force v. Providence Washington Ins. Co., 35 Fed. Rep. 769 (1888). 6 THE MODERN LAW OF CARRIERS. have always regarded the common law of that country made their courts look with suspicion upon any other system of jurisprudence. The colonists in that part of America which now forms the United States were English, it is true. But the altered circumstances of the new country to which they came, and the fact that their very existence depended on commerce, led them to modify in many respects the rigid rules of the common law. It is to be remembered also that they came to America when the commercial spirit was acquiring that strength which has made En- gland a great maritime country. There is good reason to think that the Colonial Ad- miralty Courts claimed and exercised the full jurisdiction which was the prerogative of the English Admiralty before the time of Richard II. But, however this may be, the farseeing men who framed our Constitution, did not intend to limit the courts of this country by any such narrow bounds as those to which the English Admiralty Courts were subjected. This, after long discussion, is definitely settled. The opinion of Chief Justice Taney, in the Genesee Chief,^ states very clearly the reasons for this decision. The limitations upon the powers of the En- glish Admiralty were inapplicable to the condition of the colonies, and of the new country^ to which the framers of the Constitution gave a stable government, with powers adequate in all its branches, executive, legislative and judicial. Still it does not necessarily follow, because our Ad- miralty Courts have the jurisdiction of similar courts in continental Europe, that they will, in all things, be guided by the decisions of these courts, or administer precisely the same law as they. But the history of the case of the 1 12 How. 443 (185 1). LIMITATION BY THE LAW MERCHANT. 7 Norwich Trans. Co. v. Wright/ leads to the conclusion that the Statute of 185: adopted the rule of the maritime law already quoted from the ordonnance of Louis XIV, and that our Admiralty Courts will enforce it in all its fullness. A libel in persouaju to recover damages for a collision between the steamer City of Norwich and a schooner, was filed in the District Court of Connecticut. While it was pending, the respondent set up as a defence the provisions of the Act of March 3, 1851.'^ The District Court held that these could not be administered by a Court of Admi- ralty, and that the remedy of a party seeking relief under them was in equity. The decree was affirmed by the Cir- cuit Court. The Supreme Court reversed this decision, and held that a Court of Admiralty was the appropriate tribunal, because it administered the maritime law, of which this provision for limiting the liability of ship owners formed a part.^ The question then came up as to the extent of this limitation. Under the English statute of 7 George II (1734), and the subsequent acts of 26 George III (1786) and 56 George III (1813), it had been held that the words " The value of the vessel and her freight then pending," meant her value immediately before the inj ury complained of, and that this was the amount for which the owners were liable.* The consideration was pressed upon the ' 13 Wallace, 104 (187 1) ; s. c. on Second Appeal, sub nom. Place z;. Norwich Trans. Co., 118 U. S. 468 {1885). The decision in 13 Wall, reversed s. c. i Bened. 156 (1867) ; 8 Blatchf. 14 (1870). ^ 9 U. S. Stat, at Large, 635. ^ See second note, chap. T,,post. * Gale V. Laurie, 5 B. & Cress. 156 (1826); Brown ?'. Wilkinson, 15 Mees. & Wels. 390 (1846); Lloyd v. Guibert, L. R. i Qu. B. 119 (1865). At an earlier day a different decision has been suggested by Bayley, J., in Wilson v. Dickson, 2 B. & Aid. 2 (1818). At p. 15 he said: " Possibly (I only say possibly) the Legislature, from motives of policy, might think that persons who had embarked their property in shipping 8 THE MODERN LAW OF CARRIERS. court that the American statute was simply a re-enactment of the English statute, and that on well settled rules of construction the interpretation which had been put upon its language by the English courts must be taken to be the intent of the Legislature. But the court held that the statute was the adoption, not of an English municipal regulation, but of a well set- tled rule of the law merchant, and that this rule was the law for our courts. According to this rule the abandon- ment of the interest of the owner in the ship and freight discharged him from further liability. The doctrine was based on the reasons before stated, and was the outgrowth of the necessities of commerce, and not of any arbitrary enactment.^ Another point made in the City of Norwich illustrates the subject under consideration. It was argued that the Act of 185 1 was unconstitutional ; that it was a mere mu- nicipal regulation, and so not within the power of Con- gress. But the court here, as in the Genesee Chief, al- ready cited, avoid this question by planting their decision on the maritime -law, and the grant to the Federal courts of Admiralty and maritime jurisdiction. In this respect, also, the City of Norwich is parallel to the Genesee Chief, and the two should be read together." should, on giving up all they had ventured in a particular voyage, be relieved from any further responsibility." 1 Butler V. Boston & Savannah S. S. Co., 130 U. S. 527 (1889) ; The Epsilon, 6 Bened. 378 (1873). In Spring v. Haskell, 14 Gray (Mass.) 309 (1859), the court followed the English rule, being governed by the Mass. statute- So did Grier, J., in Barnes v. Steamship Co., 25 Legal Int. 196; s. c, 6 Phila. 479 (1868). 2 In The Ventura (Lord v. Steamship Co.), 102 U. S. 541 (1881), affi'g s. c 4 Sawyer, 292 (1877), the act was held valid as a regulation of commerce. The opinion of the Supreme Court of the United States in The Atlas, 93 U. S. 302 (1876), implies that the law, thus stated, is applicable to all vessels, whether foreign or domestic. Clifford, J., states it as follows: " Owners of ships or vessels are not liable, under existing laws, for any loss, damage or injury by collision, if occasioned without their privity or knowledge, beyond the amount LIMITATION BY THE LAW MERCHANT. 9 The considerations thus far suggested lead inevitably to the conclusion that the Act of 1851 ^ is the adoption of the rule of the maritime law of Europe already stated, as a regulation of commerce between this country and foreign nations, and of our domestic commerce. If it were a mere municipal regulation it would be limited in its scope to American vessels As a regulation of com- merce it applies to all vessels which come to our ports. It was so held by the United States Supreme Court in the Scotland,''^ as it had been previously b}^ the Circuit of tlieir interest in such ship or vessel and her freight pending at the time the collision occurred." In a more recent case, Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578 (1883), the court held the act to l)e constitutional, and say of it: "It is not only a maritime regulation in its character, but it is clearly within the scope of the power given to Congress to regulate commerce." ' Re-enacted in the Revised Statutes, sections 4281-4287. Section 4283 is printed erroneously in one particular in the first edition. The word " lost," as printed in the fourth line of that section, is " loss " in the original act. ^ 105 U. S. 24 (1881) ; rev'g s. c sub nom. Dyer v National S. S. Co., 14 Blatchf. 483 (1878). In that case the Supreipe Court say : " Our law adopts the maritime rule of graduating the liability by the value of the ship after the injury as she comes back into port, and the freight actually earned, and enables the owners to avoid all responsibil- ity by giving up ship and freight, if still in existence, in whatever con- dition the ship may be, and with such surrender subjects them only to a responsibility equivalent to the value of the ship and freight as rescued from the disaster. "But whilst the rule adopted by Congress is the same as the rule of the general maritime law, its efificacy as a rule depends upon the statute, and not upon any inherent force of the maritime law. As explained in the Lottawanna (21 Wall. 558 [1874]), the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. This particular rule of the maritime law had never been adopted in this country until it was enacted by statute, and therefore whilst it is now a part of our maritime law it is nevertheless statute law, and must be interpreted and administered as such. Then does it gov- ern the present case ? In administering justice between parties, it is essential to know by what law or Code, or system of laws, their mutual rights are to be determined. When they arise in -a particular country or State, they are generally to be determined by the laws of that State. Those laws pervade and give them their color and legal effect. Hence, if a collision should occur in British waters, at least between British lO THE MODERN LAW OF CARRIERS. Court for the Southern District of New York, in Levin- son V. The Oceanic Steam Nav. Co., after very full argu- ment and careful consideration ^ The American statute of April 29, 1864," on the rule of the road at sea, is an instance of a similar adoption by this country of rules in reference to collisions which had previously been adopted by other maritime countries, ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the case. In the French or Dutch tribunals, they would do the same. But, if a collision occurs on the high seas, where the law of no particular State has exclusive force, but all are equal, any forum called upon to settle the rights of the parties would prima facie determine them by its own law as presumptively expressing the rules of justice; but if the contest- ing vessels belonged to the same foreign nation, the court would assume that they were subject to the law of their nation, carried under their common flag, and would determine the controversy accordingly. If they belonged to different nations, having different laws, since it would be unjust to apply the laws of either to the exclusion of the other, the law of the forum, th.it is the maritime law, as received and practiced therein, would properly furnish the rule of decision. In all other cases each nation will also administer justice according to its own laws, and it Will do this without respect of persons, to the stranger as well as to the citizen. If it be the legislative will that any particular privilege should be enjoyed by its own citizens alone, express provision will be made to that effect. Some laws, it is true, are necessarily special in their appli- cation to domestic ships, such as those relating to the forms of owner- ship, charter-party and nationality; others lollow the vessel wherever she goes, as the law of the flag, such as those which regulate the mutual relations of master and crew and the power of the master to bind the ship or her owners. But the great mass of the laws are, or are in- tended to be, expressive of the rules of justice and right applicable alike to all. But it is enough to say, that the rule of limited responsibility is now our maritime rule. It is the rule by which, through the act of Congress, we have announced that we propose to administer justice in maritime cases. We see no reason, in the absence of any different law govern- ing the case, why it should not be applied to foreign ships as well as to our own, whenever the parties choose to resort to our courts for redress. Of course the rule must be applied, if applied at all, as well when it operates against foreign ships as when it operates in their favor . ^ Albany Law Journal, Vol. 17, p. 285 (1878), and note. ^ R. S. sect. 4233. LIMITATION BY THE LAW MERCHANT. II and which are applied by the courts of America to all col- lisions whether between foreign or American ships or both. Indeed the jurisprudence of this country is full of instances in which our courts in questions of maritime law have followed the rule prevailing in continental Eu- rope rather than the English rule. Take, for example, the decisions in reference to mem- orandum articles, so called, in a policy of insurance. The rule on the Continent of Europe is that when goods are warranted " free of particular average," or " free from average, except general," the insured cannot recover for a total loss of a part of any particular lot of goods. The English rule was for a long time different. But as long ago as 1800, the Supreme Court of New York adopted the Continental rule, and the decision was followed by the Supreme Court of the United States.^ It is a very significant fact, that the King's Bench, in Lord Mansfield's time, had adopted the Continental rule. It deserves notice that the English courts have finally returned to the rule originally laid down by him.^ So, in Thomas v. Osborn,^ the Supreme Court, in opposition to the English, followed the Continental rule that the master has power, without a bottomry bond, to create a lien on his vessel for repairs and supplies fur- nished in a foreign port.'* It need, therefore, excite no surprise that the courts of this country should have refused to follow the English decisions under the statute of George II. It was held by Lord Stowell in the Carl Johan, cited by counsel in the ^ 2 Arnould on Ins. 1038- 1041. 8 Ralli V. Janson, 6 Ellis & Bl. 422 (1856). ' 19 How. 22 (1856). * For other instances, see tlie learned opinion of Chancellor Kent, in Palmer v. Lorillard, 16 Johns. 348, 361 (1819). 12 THE MODERN LAW OF CARRIERS. Dundee,' that this act was a municipal regulation only, and had no application to foreign vessels, and would not be administered by a Court of Admiralty. Those courts, he said, sat to administer the general maritime law, and not the local statutes of any particular country. Had that great man, who did so much to give clearness and precision to the practice and law of the English Admiral- ty, and whose native vigor has perhaps never been sur- passed in any court, been as familiar with the civil law and the maritime law of Europe as Lord Mansfield, the decision in the Carl Johan would have been different. Taking his premises that his court sat to administer the general maritime law, finding the doctrine already ad- verted to a part of that law, he would have applied it in the case before him. One objection that was taken to this view deserves consideration. Wh}^, it was said, was not this alleged rule discovered and enforced in America before 1851 ? Why was it not pleaded as a defence in the suits growing out of the loss of the Lexington ? ^ The answer to this last question is obvious. The loss of the Lexington was caused by negligence in her construction and equipment, and to losses such as this the rule does not apply. It does not exonerate ship owners from losses caused by their own negligence.^ The rule protects owners from ruin, which would otherwise overtake them from the fault of their agents, ^ I Hagg. Adm. 113, 121 (1823); and see The Girolamo, 3 Hagg. Adm. 186 (1834). '^ N. Y. Steamboat Co. v. Merchants' Bank, 6 How. U. S. 344 (1848). ^ " The surrender by the owner of his interest in the ship and freight does not relieve him from liability for damages caused by the inherent defect (?'zV^ p7-opre) of the ship. This is really an act of his own (?/« fait personnel) in respect to which the right to abandon does not exist." Court of Cassation, April 11, 1870; Journal du Palais, Table Complementaire, Vol. i, Title Navire, sect. 75. LIMITATION BY THE LAW MERCHANT. 1 3 without any fault of their own. As was said by Hull, J., as long ago as the Year Books, 2 H. IV, foL 18, p. 6: " This were against all reason to put blame or fault upon a man when there is none in him, for the negligence of his servants cannot be said to be his own." It must be remembered that disasters requiring the interposition of this rule are comparatively rare, and that so far as cargo is concerned, ship owners commonly pro- tect themselves by exceptions in their bills of lading. Indeed, the fact that there is no reported case in this country prior to 1851, in which a passenger sued for injuries received by a marine disaster, is cogent evi- dence that the justice and reason of the rule already stated were so manifest that no one cared to challenge it. It will be useful in this connection to consider to what extent the courts of this country have held that there is a law merchant, independent of our local and municipal jurisprudence, which has become such by the general — not necessarily the universal — consent of com- mercial nations. That there is such a general law merchant, forming part of the jurisprudence of this country, is. shown by a long series of decisions.^ ' Watson V. Tarpley, 18 Howard, 517 (1855) ; Carpenter v. Ins. Co., 16 Peters, 495 (1842); Gloucester Ins. Co. v. Younger, 2 Curtis, 338(1855). In Swift V. Tyson. 16 Peters, i (1842), the court says, p. 19 : " The true interpretation and effect of contracts and other instruments of a com- mercial nature are to be sought, not in the decisions of local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and re- spect of the court, but they cannot furnish positive rules or conclu- sive authority by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly de- clared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde (which it should be noticed was a case arising upon a bill of lad- ing), 2 Burr. R. 882, 887 (1759), to be in a great measure, not the law of a single country only, Init of ihe commercial world. Non ei it alia lex 14 THE MODERN LAW OF CARRIERS. How is this Law to be Proved? Whe^ice does it Arise? — Not, certainly, from any purely municipal reg- Romae, alia Athenis, alia nunc, alia postkac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit. " The decision has been repeatedly followed, and is well settled law. Meade v. Beale, Taney Dec. 339 (1848); Austen v. Miller, 5 McLean, 153(1849); The Ship George, Olcott, 89 (1845) ; Pine Grove z'. Talcott, 19 Wallace, 666 (1873); Robinson z'. Commonwealth Ins. Co., 3 Sumner, 220 (1838). In the latter case Story, J., says (p. 225): "I am aware that a rule somewhat different has been laid down by the Supreme Court of Mas- sachusetts, for whose judgments I entertain the most unfeigned respect. But questions of a commercial and general nature like this, are not deemed by the courts of the United States to be matters of local law in which the courts of the United States are positively bound by the decisions of the State courts. They are deemed questions of general commercial jurisprudence, in which every court is at liberty to follow its own opinion, according to its own judgment of the weight of authority and principle." 2 Parson's Marit. Ins. 207, and note, is to the same effect. It was, however, held in an early case in Michigan — Rossiter v. Chester, i Doug. (Mich.) 154 (1843) — that the law merchant was no part of the common law. But this statement is not supported by the best English authorities. Blackstone says in his Commentaries, Vol. i, p. 273 : " No munici- pal laws can be sufficient to order and adjust the new, extensive and complicated affairs of traffic and merchandise, neither can they have a proper authority for this purpose. For, as these are transactions car- ried on between subjects of independent States, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the law mer- chant, or lex mercatoria, which all nations agree in and take notice of." So in Vol. 4, p. 67 : " In mercantile questions, such as bills of ex- change, and the like ; in all the marine cases relating to freight, average, demurrage, insurance, bottomry, and others of a similar nature, the law merchant, which is a branch of the law of nations, is regarded and con- stantly adhered to. So, too, in all disputes relating to prizes, ship- wrecks, to hostages and ransom bills, there is no other rule of decision, but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of." That Courts of Admiralty have jurisdiction to administer this gen- eral maritime law is equally well settled. Sir James Marriott, Lord Stowell's predecessor, said in the Columbus, Collectanea Juridica, p. 75: " The Court of Admiralty is a court of mixed jurisdiction. It will judge of the custom or law of the sea, the custom of civilized nations, and the common sea law of the realm." Lord Stowell declared the same rule in the Carl Johan, before cited, LIMITATION BY THE LAW MERCHANT. 1 5 ulation. Not necessarily froni any international conven- tion. But by the common consent of commercial na- tions. Its beginning may be hid in the mists of antiquity. But each nation, as it adopts any particular provision or rule, formulates its consent in some way. France did it by the Ordonnance of Louis XIV. The United States did the same by the Act of 185 1. When the consent is thus formulated, the law becomes foB that nation the law of the sea, to be administered by its courts, in reference to all vessels trading to its ports. When they come to us for our tradcj and seek the custom of our merchants, they submit themselves to the whole body of our law, and are entitled to its benefits. In thus adopting and giving full force and effect to the rule limiting the liability of ship-owners^ the courts of this country have followed the course of the continental courts in reference to the civil law. That law is the com- mon law of most continental countries. On the subject under consideration it agrees with the English common law. How was it modified ? Not by a mere municipal regulation, but by ordinances or decrees, the precise an- alogue of our statute of 185 1, recognizing or adopting a rule different from that of the civil law, and bringing the country by whose sovereign it was promulgated into line with other commercial countries, thus forming a maritime law.^ There is no novelty in thus applying a statute to per- and it has become elementary. In the Eagle, 8 Wall. 15 (1868), it was held that there was a maritime lien upon the offending vessel for damages caused by a collision in Canadian waters, although the local law gave no such lien. See, also, the Milford, Swabey, 362 (1858). 1 An illustration of this is to be found in General Order 253, of the U. S. Navy Department, July 16, 1880. It begins: "A revised code of 'Regulations for Preventing Collisions at Sea' having been approved by nearly all the maritime nations of the world, and adopted by them to go into effect on the ist of September, 1880, thus becoming an in- tegral part of the law of the sea, it is hereby adopted for the naval serv- ice of the United States." l6 THE MODERN LAW OF CARRIERS. sons other than the citizens of the country bj^ whose leg- islature the statute is enacted. For example many of the old and strict rules in regard to corporate powers and corporate action have ceased to be applicable to the conditions of modern societ}-, and are no longer enforced by the courts. In the Bank of Augusta v. Harle^ it was held that a corporation could transact business be- yond the limits of the jurisdiction which created it, and was by necessary consequence subject to the laws of the country where it located its offices and did its business.^ Now that corporations have practically become part- nerships with limited liability, and do business all over the world, it seems hard to conceive that the point should ever have been seriously contested. In like manner it is not easy to give any reason why a corporation w^hich does business in a country other than that which incorporated it, and is subject to the laws of that State, should not be entitled to their benefit. It is a general rule in the construction of statutes that " if the law makes no exception the court can make none."^ 1 13 Peters, 519 (1839). ^ To the same effect are Cowell v. Springs Co., 100 U. S. 55 (1879) ^ Lafayette Ins. Co. v. P'rench, 18 How. U. S. 404 (1855); Dryden v. Grand Trunk Railway, 60 Maine, 512 (1872). 3 Collins V. Carman's Exr., 5 Md. 503, 533 (1854) ; Warfield v. Fox, 53 Penn. 382 (1866); Beckford r. Wade, 17 Vesey, 87 (1805). So in Demarest v. Wynkoop, 3 Johns. Ch. 142 (1817), Chancellor Kent said: " General words in the statute must receive a general construction, and if there be no express exception, the court can create none." See, also, U. S. V. Coombs, 12 Peters, 72 (1838). In construing this very statute, the N. Y. Commission of Appeals say : " Where general words are used the courts are not at liberty to insert limitations not called for by the sense or the objects, or the mis- chiefs of the enactment. Chamberlain v. Western Transportation Co., 44 N. Y. 305, 309 (1870). And they held that it was to be construed liberally. There are many instances of the application of this rule. In the Mar- ianna Flora, 11 Wheat, i (1826), the Act of March 3, 1819, chapter 75, came under consideration. Section 2 of that act authorized the President LIMITATION BY THE LAW MERCHANT. 1 7 It is worthy of notice fhat in the revision of the stat- utes of the United States the Act of 1851 is codified as part of title 48: "Regulations of commerce and naviga- tion," sections 4282-4289. It will be observed, on a crit- ical examination of the sections of this title, that they apply to foreign as well as to domestic vessels, unless it is otherwise expressed.^ Section 4274 limits the provisions of the title "relat- ing to the transportation of passengers" to United States vessels. Why the necessity of this section, unless, if it had not been inserted, they would have applied to all ves- sels ? Could it be argued for a moment that sections 4278-4279, regulating the transportation of nitro-glycer- to empower United States vessels to subdue "any armed vessel or boat . . . which shall have attempted or committed any piratical aggres- sion . . . upon any vessel of the United States." A Portuguese vessel was seized by a United States cruiser, and sent into port for ad- judication under the provision of this statute. She was libelled and condemned. On appeal, Judge Story, delivering the opinion of the court, said (p. 39): " It has, indeed, been argued at the bar that even if this attack had been a piratical aggression it would not have justified the capture and sending in of the ship for adjudication, because foreign ships are not to be governed by our municipal regulations. But the Act of Congress is decisive on this subject. It not only authorizes a capture, but a con- demnation in our courts for such aggressions, and whatever may be the responsibility incurred by the nation to foreign powers in executing such laws, there can be no doubt that the courts of justice are bound to obey and administer them." So in the case of the Southern Life Ins. Co. v. Packer, 17 N. Y. 51 (1858), it was held by the N. Y. Court of Appeals that the Act of 1850, that "No corporation shall interpose the defense of usury," applied to foreign as well as domestic corporations. The court put the decision on two grounds: i. There is nothing expressed in the act from which such a limitation could be presumed. Its language is general. 2. There is nothing in the purview of the act from which an intent to confine it to domestic corporations could be inferred. The pilotage laws of New York were held to be operative beyond the territorial limits of that State so far as commerce to and from it was concerned. The Nevada, 7 Bened. 386 (1874); Cisco v. Roberts, 36 N.Y. 292 (1867). The same rule is stated by Dr. Lushington in the Milford, Swabey, 362 (1858). * Compare section 4197 with section 4212. 2 1 8 THE MODERN LAW OF CARRIERS. ine and prohibiting such transportation upon passenger vessels, would not apply to a British ship bringing this dangerous substance to our ports ? Then why do not the seven following sections apply equally to foreign vessels engaged in commerce with this country ? The language of the former is no more general than that of the latter. Another argument has been presented in reference to this subject. It is said that the courts of this country ought not to allow this limitation of liability in favor of the owners of a foreign vessel, when the laws of the coun- try to which that vessel belongs recognize and enforce a different rule. So far as known, England is the only maritime coun- try whose law differs on this subject from our ov/n. But it must be remembered that under the present provisions of the English Merchant Shipping Act, 17 and 18 Vict, c. 104, section 403, it is applicable to foreign as well as English vessels, and that it limits the liability by an ar- bitrary sum, ^8 per ton for injuries to cargo and ;^i5 per ton for injuries to passengers. This may be and often is a sum less than the value of the interest of the owner in the ship and freight after the injury. A case of limita- tion was heard in New York in which it was considerably less.^ So that the English law now differs from our own only in fixing, for convenience sake, an arbitrary limit. There is a comity, a recognition by England, of the rule referred to, which goes far enough to justify our courts in applying our own rule to English vessels, even if the only question were one of comity.^ 1 The Star of Scotia, U. S. District Court, Southern District of New York, Choate, J. (1876), not reported. 2 There is nothing unprecedented in the application in on,e court of a rule of damages different from that which prevails in another. At common law, for example, a party whose negligence contributes to a collision can recover nothing. In Admiralty the damages are divided. The Atlas, 93 U. S. 302 (1876); Arctic Ins. Co. v. Austin, 69 N. Y. 470 (1877); Lord V. Hazeltine, 67 Maine, 399 (1877). Before the passage of the act referred to in the text it was held that LIMITATION BY THE LAW MERCHANT. 1 9 But the question is not one of comity. America is just as mucli interested as England in the commerce be- tween the two countries, and our right to regulate it is just as clear. If, in the judgment of our Legislature, commerce is promoted and attracted to our ports by the adoption of this liberal commercial regulation, our courts cannot refuse to carry out this beneficent policy.^ the owner of a British ship could limit his liability for damage done to a foreign ship by a collision on the high seas within three miles of the British coast. General Iron Screw Co. v. Schurmanns, i Johns. & Hem. 180 (1858). It was held otherwise if the collision happened at a dis- tance more than three miles from the British coast. Cope v. Doherty, 4 K. & J. 367 (1858); s. c. on appeal, 2 De Gex & J. 614 (1858). * The oral argument in the Scotland, 105 U. S. 24 (1881), was, probably, as forcible and thorough as any that has ever been had on an Admiralty appeal. The following extracts from it and from the collo- quy between the court and counsel will not be without interest. Mr. Butler was for the English ship-owner, Mr. Carter for the libellant. Mr. Butler. That these English owners should go scot-free seems to my friends, in the language of Bunyan, like grace abounding to the chief of sinners. They want to establish a doctrine of election by which this benefit of the Admiralty law shall be conferred alone upon American citizens. Bradley, J., to Mr. Carter. You claim full damages ? Mr. Carter. Yes. Bradley, J. By what law ? Mr. Carter. By our customary law al- ways administered in our courts. Bradley, J. That is municipal law ? Mr. Carter. Yes. Bradley, J. Then why may not our statutes apply to foreigners? Mr. Carter. The body of rules on which commercial nations unite may be called the general Admiralty law. When that concurrence exists that law exists. When it does not, the law does not exist. Waite, C. J. Does that concurrence exist in this case?- Mr. Carter. No. Waite, C. J. Then what law would apply ? Mr. Carter. Our own rule of justice. No maritime law exists. The statute does not apply and there is no general Admiralty law on the subject. Waite, C. J. Are there two rules in the United States— one appli- cable to citizens of the United States, and another to foreigners'? Mr. Carter. Yes. Waite, C J. Is there anything in the statute to indicate that? Mr. Carter. The rule of construction already stated indicates it. Waite, C. J. Isn't it rather the inference that it was intended to ap- ply to the citizens of all countries when they seek redress in the courts of this country % Bradley, J. Has any difficulty been raised since the Act of Parlia- ment was passed extending to foreign vessels ? Mr. Carter. No. Bradley, J. Then there is no intrinsic difficulty in the subject. 20 THE MODERN LAW OF CARRIERS. The cases in which it is sought to apply the rule of the maritime law which has thus been considered are, or- dinarily, actions of tort, brought to obtain redress for in- juries, caused on the high seas by the negligence of the master or other officer of the vessel committing the tort. Indeed, it was for many years a mooted point whether the rule referred to had any application to actions brought to enforce contracts made by the master, as distinguished from actions to recover damages occasioned by his neg- ligence. The commentators and the courts of France were at variance. It was finally settled that the rule applied to both classes of cases. But in practice its ap- plication is infrequent, except to protect the owner from unlimited liability for the negligence of his agent.^ ^ An account of the controversy on this subject will be found in Bedarride, du Commerce Maritime, Tome i, sects. 270, 271. Valin was of opinion that the right to limit the owner's liability extended only to losses caused by the misconduct (delits or quasi delits) of the master or crew. Emerigon (Contrat a la Grosse, chap. IV, section 1 1 , paragraphs I and 2) takes the ground that by the maritime law the right of limita- tion extends to breaches of a contract made by the master. The opinion of Emerigon finally prevailed, and the matter was set at rest in France by an amendment to the Code Napoleon, adopted in 1841. The Report of M. Camille Perier to the Chambre de Paris (Moniteur Universel, 23 Mars. 1841) on this subject will well repay perusal. A copy is to be found in the Astor Library, New York. CHAPTER II. THE UNITED STATES STATUTE. The Act of 1 85 1, has been re-enacted without material change in the Revised Statutes, sections 4282 to 4289, inclusive. These sections of the Revised Statutes are in pari materia with the Act of 1851, and to be construed as effecting no change in the law, unless the words of the subsequent act require it. It is settled after full delibera- tion and elaborate argument that no change has been made by the revision.^ And the Statute should be liberally construed to pro- ^ " When the meaning is plain, the courts cannot look to the Statutes which have been revised, to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in ex- pressing the meaning of Congress. If, then, in the case before us, the language of sect. 4820, was fairly susceptible of the construction claimed by the Government as well as of the opposite one, the argument from the provision of the Statute as it stood before the revision would be conclusive." United States v. Bowen, 100 U. S. 508, 513 (1879). " On these differences of language," said Mr. Justice Blatchford, in Thomassen v. Whitwill, 21 Blatchf. 45 ; s. c 12 Fed. Rep. 891 (1882); affd. 118 U. S. 520 (1886), "it is contended that the Revised Statutes exclude a limitation of the liability of a part owner to the value of his interest in the vessel and freight, and do not provide for any limitation short of the interest of the owner or owners, collectively, in the whole vessel. There is no force in this contention. By section i of the Re- vised Statutes, it is provided, that in determining the meaning of the Revised Statutes, words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular. It was undoubtedly because of this general provision that the language of the Act of 1851 was condensed in the revision. Read by the light of such general provision, and in view of the principles on which the revision was made, it must be held that the new language in sections 4283 and 4285, is the result merely of revision, simplification, re-arrangement and consolidation, with a view to the re-enactment of the same substance and meaning." 22 THE MODERN LAW OF CARRIERS. mote the beneficial end for which it was enacted, i. e.^ of advancing the commerce of the country.^ Section 4282 is as follows : " No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neg- lect of such owner." ^ The true interpretation of this section gave rise to a conflict of opinion between the courts of the States of New York and Massachusetts and the Federal Courts. A libel was filed by the owners of the Oceanus to limit their liability for the loss by fire of the cargo of that vessel. The court sustained the libel and granted an injunction against all proceedings at law. Some of the shippers had brought an action at law to recover for the loss to their goods. The Superior Court of the city of New York^ stayed all proceedings in this suit, but the Court of Ap- 1 Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 589 (1883). Chamberlain v. Western Trans. Co., 44 N. Y. 305 (187 1). In this case the court say, p. 309 : " This is not in any sense a penal statute, nor is it in any way derogatory to natural right, and hence I know of no rule of law that requires that it should be strictly construed. It is true that it changes the common law, but there can be no reason for applying the rule of strict construction to the vast body of statute laws which change the common law. The prior law, whether it be statute or common law, is to prevail, unless the subsequent statute, by a fair and proper construc- tion, repeals or modifies it. This statute is rather a remedial statute. It was enacted to remedy the rigor of the common law, which it was deemed unwise, on grounds of public policy, to continue. It should, therefore, be construed, if not liberally, at least fairly, to carry out the policy which it was enacted to promote." To the same effect is the Warkworth, 9 Prob. Div. 20 (1884). ^ This section does not apply to express companies who ship goods on steam vessds, but do not charter them. Hill Mfg. Co. v. Boston & Lowell R. R. Co., 104 Mass. 122 (1870). ^ Knowlton v. Providence & N. Y. S. S. Co., 35 N. Y. Superior Ct. 572 (1873)- UNITED STATES STATUTE, SECTION 4282. 23 peals reversed the order and held,^ that the effect of the Statute was not merely to limit the liability of the ship- owner in case of loss by fire, but to take it away altogether, so far as the cargo was concerned, unless the owner him- self was at fault. It therefore held that this defense could be pleaded in any suit brought by the shipper, and that no proceedings in Admiralty were necessary or proper.^ There can be no doubt on the language of the Statute, that the defense, in case of fire, is complete." The ques- tion therefore is merely in what forum this defense shall be tried. The advantage of the Admiralty proceeding is, that all parties claiming to recover can be brought in and the issue tried in one suit. It is strictly analogous to a bill in equity, in the nature of a bill of interpleader, in which all parties claiming an interest in the subject-matter of the controversy are brought in. A multiplicity of suits is thus avoided, and the whole matter determined in one action.* And on these grounds the Supreme Court of the United States has overruled the New York and Massa- chusetts decisions, and sustained the Admiralty jurisdic- tion in such cases. And it distinctly held that the pro- 1 Knowlton v. Providence & N. Y. S. S. Co., 53 N. Y. 76 (1873). 2 s. p., Hill Mfg. Co. V. Providence & N. Y. S. S. Co., 125 Mass. 292 (1878) ; 8. c. 113 Mass. 495 (1873). In Moore v. Am. Trans. Co., 24 Howard, U. S. i (i860), the defense under this Section of the Statute was pleaded in an action at law, and the defense was sustained in the Supreme Court. No affirma- tive proceedings were taken by the owner in admiralty or otherwise. This is clearly an adjudication that the defense can be pleaded in an action at law. In this respect it is analogous to the decision in the Scotland, 105 U. S. 24 (1881); 118 U. S. 507 (1886). On the other hand the owners may still be sued at law, and are liable in the action to the extent of their interest in the vessel and her freight, for any loss of or injury to the cargo. Spring v. Haskel, 14 Gray (Mass.), 309 (1859). ' Walker v. Transportation Company, 3 Wall. 150 (1865). 4 Of this class of cases, N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592 (1858), is the most notable example. 24 THE MODERN LAW OF CARRIERS. ceedings taken by the Providence and New York Steam Ship Co. were a bar to all suits to recover damages for losses caused by this fire.^ When the cargo is discharged and placed upon a wharf alongside the ship, the effect of the act to take away the liability of the owner, for the loss by fire of the goods dis- charged ceases, unless the goods are destroyed in conse- quence of the vessel taking fire.^ It will be observed that this section is limited to the case of '' loss or damage to merchandise." It does not, as does section 4283, contain also the words "goods, property." Whether passenger's trunks, not in the custody of their owners, but placed in the baggage compartment of a steamer, can be called merchandise, is as yet undecided.^ It has been held that horses and trucks in custody of teamsters who, together with their teams, take passage on a ferry boat, are not merchandise, and that section 4282 does not apply to the loss of such horses and trucks.'^ On the other hand, under the Statute of 185 1, it was held that the ordinary baggage of passengers on a steam- boat was " goods," and that the ship-owner was not liable for its loss, caused by fire, without his design or neglect.^ 1 Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578 (1883). At p. 589 the court say of the statute: "Its value and efificiency will also be greatly diminished, if not entirely destroyed, by allowing its adminis- tration to be hampered and interfered with by various and conflicting jurisdictions." ' The Egypt, 25 Fed. Rep. 320 (1885) ; The Tangier, 1 Cliff. 396 ; s. c 21 Law Rep. 612 (1858). It was held in Morewood z^. Pollock, i Ell. & Bl. 743 (1853), that the corresponding section of the English Statute did not apply to the destruction by fire of goods on board lighters, being transported to the ship. Under the United States Statute, as amended in 1886 (24 U. S. Stat, at Large, p. 80), the owner of the lighter certainly would not, in such case, be liable. 3 Heye v. North German Lloyd, t^;^ Fed. Rep. 60 (1887). 4 The Garden City, 26 Fed. Rep. 766 (1886). ^ Chamberlain v. Western Trans. Co., 44 N. Y. 305 (187 1) ; revg. s. c. 45 Barb. 218 (1866). UNITED STATES STATUTE, SECTION 4282. 25 This word "goods" is omitted in Section 4282 of tHe Re- vised Statutes. Yet it is well settled, as sHown in the previous part of this chapter (page 2), that the re-enact- ment of the law of 185 1, in the Revised Statutes, was not intended to change the meaning of the former act. The words, "any merchandise whatsoever," should therefore be considered as synonymous with " any goods or mer- chandise whatsoever." This decision of the Commission of Appeals is not referred to in the opinion in The Gar- den City.^ Moreover the decision of the point was not necessary in that case. It may therefore be said that the meaning of the words ^' any merchandise whatsoever," is still unsettled. The expressions of the Commission of Appeals in the Cham- berlain case as to the construction of the act of 1871, are so similar to those of the United States Supreme Court in the Providence S. S. case {ante^ p. 22, note i), that there is reason to believe that this court would give to the words an ampler significance than is given in the Garden City. It is not within the scope of this treatise to examine in detail the meaning of the words " design or neglect," used in this section. The word neglect must be consid- ered as synonymous with negligence, and that is so fully and accurately treated by Shearman and Redfield in their admirable work on Negligence that it is unnecessary to do anything here except refer to the decisions upon this very section. It is neglect on the part of the ship-owner to omit to maintain in proper order apparatus required by law to be kept on board for the purpose of extinguishing fires. This section does not limit the liability of a ship-owner for neglect to secure for the owner of baggage, indemnity for injury to it by fire and water used to extinguish the 1 The Garden City, 26 Fed. Rep. 766 (1886). 26 THE MODERN LAW OF CARRIERS. fire, which ought to have been the subject of a general average contribution.^ Section 4283, is as follows : " The liability of the owner of any vessel, for any em- bezzlement, loss, or destruction, by any person, of any property, goods or merchandise shipped or put on board of such vessel, or for any loss, damage or injury by col- lision, or for any act, matter or thing, loss,' damage, or forfeiture, done, occasioned, or incurred, without the priv- ity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.'' It has been questioned whether the language of this section is broad enough to cover the case of an injury to the person. No doubt the first part of the section is in terms confined to the case of injury to the cargo. But the lan- guage that follows is much broader. Judge Benedict held in the case of the Bpsilon,® that this covered injuries to the person caused by the explosion of a boiler on board a vessel in the East River. This is clearly right on principle. The maritime law knows no distinction in jurisdiction, between maritime torts causing injury to persons and ^ Heye v. North German Lloyd, 33 Fed. Rep. 60 (1887). In this case the baggage compartment took fire. It was held that this was a risk to the ship, that the injury to the baggage, caused by extinguishing the fire, was a sacrifice for the general good, and therefore the subject of a general average contribution, and that the ship-owner ought to have collected this for the benefit of the owners of the baggage, and was liable to them for this neglect, though not liable directly for the injury done by the fire. It was questioned also, whether damage by water, used in putting out the fire, came within this section. ^ This is erroneously printed "lost " in the first edition of the Re- vised Statutes. The true text is " loss." = 6 Bened. 378 (1873); s- P-, The City of Columbus, 22 Fed. Rep. 460 (1884); zHd.sub nom. Butler v. Boston & Savannah S. S.Co., 130U. S. 526 (1889); The Seawanhaka, re Long Island, &c., Trans. Co., 5 Fed. Rep. 599 (1881); Rounds V. Providence & N.Y. S. S.Co., 14 R. I. 344 (1885); The Alpena, 8 Fed. Rep. 280 (1881). The French law is the same. D'Orbigney contre Guerin, Cour de Cassation; Sirey de Villeneuve, 1876, partie 2, p. 214. Couder, Diet, de Droit Comm., tome i, p. 412, § 66. UNITED STATES STATUTE, SECTION 4283. 27 those causing injury to cargo. But tlie act does not apply to injuries done on the land by a tort committed on the water.^ It does apply to injuries done wherever the Admiralty jurisdiction extends. '^ The liability of the owner of a ship, by the negligence of whose servants injury is done to another ship, is limited by the Statute, as well as his liability for injuries to the cargo, carried upon his own vessel.^ The meaning of the important words in the foregoing section, "without the privity or knowledge of such owner or owners," has not been definitely determined. It will be observed that the words used to express the condition upon which the owner is allowed to limit his liability are different from those in the preceding section. Under the terms of that section the owner is not liable in any amount whatever, for any loss or damage which may hap- pen to any merchandise on board a vessel, by means of fire happening to or on board the vessel, " unless such fire is caused by the design or neglect of such owner." The opinion was at one time expressed, by the New * The Admiralty has no jurisdiction in such case: "The true meaning of the rule of locality in cases of marine torts was that the wrong must have been committed wholly on navigable waters, or at least the substance and consummation of the same must have taken place upon those waters to be within the admiralty jurisdiction." The Plymouth, 3 Wallace, 20 (1866), as stated in Ex parte Phenix Ins. Co., 118 U. S. 610, 618 (1886). In this latter case a writ of prohibition was granted to restrain the District Court for the Eastern District of Wis- consin from entertaining jurisdiction of the petition of a ship-owner to limit its liability for damage done by a fire on land caused by the negli- gent navigation of its vessel. The opinion of the District Court is re- ported, 26 Fed. Rep- 713 (1886), sub nom. In re Goodrich Trans. Co. This case is therefore overruled, and so is In re Vessel Owners' Towing Co., 26 Fed. Rep. 169 (1886). So is also the Epsilon, 6 Bened. 378, 381, 391 (1873); so far as it sustains the jurisdiction in a limited liability proceeding to enjoin the prosecution of such claim. 2 Butler V. Boston & Savannah S. S. Co., 130 U. S. 527 (1889). =» Norwich Co. v. Wright, 13 Wall. 104 (1871); revg. s. c 8 Blatchf. 14 (1870). 28 THE MODERN LAW OF CARRIERS. York Court of Appeals, that the words were nearly or quite synonymous.^ But the Supreme Court of the United States takes an entirely different view of the language of the two sections. In the case of the Providence and New York S. S. Co. v. Hill Mfg. Co.,^ which has been stated in the previous part of this chapter, that court considered the contention, which had been approved by the Supreme Court of Massa- chusetts and by the Court of Appeals of the State of New York, that the third section of the Act of 185 1, re-enacted in section 4283 of the Revised Statutes, had no applica- tion to a loss by fire, and that the first section of the origi- nal act, re-enacted in section 4282 of the Revised Statutes was the only provision in force relating to this subject. The Supreme Court distinctly overruled the decisions of both these courts on this subject, and held that both sec- tions were applicable to the case of a loss b}^ fire, and that the owner, in case of loss by fire not caused by his design or neglect, might still desire to limit his liability to his interest in the vessel and her freight then pending, and might therefore properly take proceedings under the sub- sequent section. The opinion of the court on this subject can best be expressed in their own language, which will be found in the note.^ 1 Peckham, J., Knowlton v. Pro. & N.Y. S. S. Co., 53 N.Y. 76 (1873), at page 84, says: "It is claimed that this first section is subject to the third, and em- braced within its provisions. If it were so intended it is singular that the difference in the conditions of liability should be so slight. They are, in fact, substantially alike — so near as to evince no difference of purpose." 2 109U. 5.578(1883). ^ "The owners may not be able, under the first section, to show that it happened without any neglect on their part, or what a jury may hold to be neglect; whilst they may be very confident of showing, under the third section, that it happened without their 'privity or knowledge.' The conditions of proof, in order to avoid a total or a partial liability under the respective sections, are very different." Providence & N Y. S. S. Co. V. Hill Mfg. Co., 109 U. S. 578, 602 (1883). UNITED STATES STATUTE, SECTION 4283. 29 It would therefore seem to be clear that the Supreme Court at least inclined to the opinion, that there might be a neglect, imputable to the owner under section 4282, which could not yet be said to have caused a loss with his " privity or knowledge " under section 4283. The ques- tion therefore recurs: what is meant by these latter words ? In the first place it would seem to be clear, in the case of a corporation, that there are some officers of such cor- poration whose privity or knowledge, within the meaning of this statute, must be said to be the privity and knowl- edge of the corporation itself. The Supreme Court of Massachusetts has held distinctly that the acts, intentions and neglects of the president and directors of a corpora- tion are those of the corporation itself^ It is true that the decision in this case was reversed by the U. S. Supreme Court. But the reversal was not at all for error in the proposition thus stated. This is en- tirely in accord with the reasoning of the U. S. Supreme Court in a prior case,^ and is believed to express a correct proposition. It is entirely in harmony, also, with the de- cisions of courts in actions for negligence, and in the de- termination of the validity of clauses of exemption in bills of lading. 1 Hill Mfg. Co. V. Prov. & N. Y. S. S. Co., 1 13 Mass. 495 (1873). At page 500, Gray, C J., says: "If the owners are a corporation, the president and directors are not merely the agents or servants, but the representatives of the corpora- tion; and the acts, intentions and neglects of such officers are those of the corporation itself (21 How. 202, 210, 211 [1858]; 3 Allen, 433, 441 [1858]). To hold otherwise would be wholly to exempt all steamship companies from loss by fire of goods on board their ships, however care- lessly or imperfectly they built their furnaces and engines. Such a con- struction is too novel and unreasonable to be entertained." 2 Philadelphia, W. & B. R. R. v. Quigley, 21 How. U. S. 202 (1858), held that a corporation which is impersonal can only act through agents, and is liable for torts committed by the directors in the course of the business of the company, e. g., a libel published by them during an investigation into its affairs. 30 THE MODERN LAW OF CARRIERS. In the former class of cases it is well settled that while a master is not liable to a servant for injuries caused by the negligence of a fellow-servant, yet that this rule does not extend so far as to exempt the mas- ter from liability for failure to perform a duty which the law itself devolves upon him. Among these duties is that of supplying the servant with apparatus or machinery reasonably safe for his use in the work in which he is em- ployed.^ But still the distinction between these actions for neg- ligence, and cases arising under the Limited Liability Act, is manifest. In the former the negligence of the agent is imputed to the principal ; in the latter it is not.^ The principal is not liable for loss incurred "without his privity or knowledge." These words point to a fault, per- sonal to the principal as distinguished from the negli- ^ Hough z'. Railway Co., looU. S. 215 (1879). At page 220, the court say: "The true view is that, as corporations can act only through super- intending officers, the negligences of those officers, in respect to other servants, are the negligences of the corporation." To the same effect are the New York cases. " The master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master, and this negligence may consist in the employment of unfit and incompetent servants and agents, or in the furnishing for the work to be done, or for the use of the servant, machinery or other implements and facilities improper and unsafe for the purposes to which they are to be applied." Wright v. N. Y. Cen. R. R., 25 N. Y. 565 (1862). Loughlin V. State, 105 N. Y. 159 (1887). At page 162, the court say: "The mas- ter is sometimes responsible for the negligent act of one servant causing injury to a co-servant. But this liability, when it exists, does not rest upon the doctrine of respondeat superior, but solely upon the ground that in the particular case the co-servant whose act or neglect caused the injury was, by the appointment of the master, charged with the per- formance of duties which the master was bound to perform for the pro- tection of his servants, a failure to perform which, or a negligent per- formance of which by a servant delegated to perform them, is regarded in law the master's failure or negligence, and not merely the failure or negligence of the co-servant." 2 Walker v. Transportation Co., 3 Wall. 150 (1865); The Whistler, 2 Sawy. 348 (1873). These were cases of loss by fire. Wilson v. Dick- son, 2 Barn. & Aid. 2, 13 (1818); The Warkworth, 9 Prob. Div. 20 (1883). UNITED STATES STATUTE, SECTION 4283. 31 gence of the agent. The decisions in negligence cases are, therefore, not controlling in questions arising under the Limited Liability Statute.^ In cases arising under bills of lading containing exemptions from liability for certain specific risks, it has uniformly been held that if the real cause of the loss was the insufficient construction, equipment or stowage of the vessel, the owner would be liable, and that in such case the negligence causing the loss was his negligence, and imputable distinctly to him."^ ^ Craig V. Continental Ins. Co., 26 Fed. Rep. 798 (1886). In this case it was held that the negligence of the wrecking agent of an insur- ance company, who ordered a wreck to be towed into port without suf- ficient previous examination, could not be said to be with the privity or knowledge of the company itself. 2 The Hadji, Circuit Court, S. D. New York, 20 Fed. Rep. 875, 878 (1884); affg. 16 Fed. Rep. 861 (1883). Wallace, J. "It is the duty of a common carrier by water to provide a vessel tight, stanch and fit for the employment for which he holds it out to the public. Ang. Carr., sect. 173. The breach of this duty is the personal default of the vessel owner. Lyon v. Wells, 5 East, 428 (1804). The loss sustained by the libelants, therefore, arose from the carrier's own negligence." In s c. in the District Court, 16 Fed. Rep. 861, 864, 865 (1883), the court say: " The damage to the goods on board the Hadji did not arise from any peril of the sea or dangers of navigation, nor, properly considered, from anything external to the ship herself. It arose exclusively from the insecure and insufficient structure or repair of the vessel. The damage was not from sea-water taken in through stress of weather or perils of the voyage, but from the faulty construction of the tanks, whereby the water used as ballast escaped and injured the cargo. The character of the defects, as disclosed by the evidence, shows that they were such as should have been guarded against in the construction of the vessel, or ascertained in her repairs and equipment for the voyage. They were such defects as made her unseaworthy for the safe transpor- tation of goods, and, as the immediate and proximate cause of the loss, they were not within the ordinary risks of marine insurance. Arn. Ins. 775 ; Copeland v. N. E. Marine Ins. Co., 2 Mete 432 (1841) ; Gen. Mut. Ins. Co. V. Sherwood, 14 How. (U. S.) 361 (1852). It is impossible, as it seems to me, not to hold that this constitutes, in l^w, negligence as re- spects her seaworthiness and proper equipment for the voyage, for which her owners must be held answerable. Clifford, J., in Richards v. Han- sen, I Fed. Rep. 54, 58, 62 (1879)." Lyon v. Wells, 5 East, 428 (1804). In this case yarn was shipped on a lighter which turned out to be 32 THE MODERN LAW OF CARRIERS. Other cases on this subject are considered in the first section of the fourth chapter. It is believed that their reasoning is applicable to the true construction of the words under consideration. Such a construction would tend materially to increase the safety of vessels going to sea, and of the cargo and persons on board. It is possible for owners, by the use of proper precautions, to provide a seaworthy vessel. Where there are statutory require- ments as to her equipment or construction, these can be observed, and the fact whether or not they have been ob- served can generally be discovered before she sails upon her voyage. Still there may be a secret defect, which could not be discovered by the exercise of reasonable care. For loss occasioned by such a cause the owner should still be able to limit his liability. Yet it cannot be said that there is any reported decision precisely in point up- on this subject. The nearest approach to such a decision is to be found in the case of The Ventura, decided in the U. S. Circuit Court for the District of California, and af- firmed by the Supreme Court of the United States.^ leaky, and the yarn was injured. Held that owner was liable for full amount of loss, even assuming the validity of a notice that he would not be liable for any loss except from negligence of master or crew, and then only to the extent of lo per cent. The law implies a promise that the vessel shall be tight and capable of carrying the cargo. The court said that when she is leaky, " this we consider as personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do, viz., to provide a fit vessel for the purpose." To the same effect is Kopitoff v. Wilson, 34 Law Times (N. S.), 677 (1876). 1 Lord V. Goodall Co., 4 Sawyer, 292 (1877) ; affd. sud 710m. Lord V. S. S. Co., 102 U. S. 541 (1881). The report of the decision of the Supreme Court does not touch this question in any way, but passes simply on the constitutionality of the act, when applied to vessels on a voyage from one port to another port of the same State. Nor did the facts of that case require the expression of an opinion upon the point under consideration, for the injury there did not happen from any de- fect in the construction of the machinery. But, nevertheless, Mr. Jus- tice Sawyer, in the Circuit Court, expresses his opinion as to the mean- ing of the statute in the following language, which seems to the author to be the best statement of its meaning that has yet appeared: UNITED STATES STATUTE, SECTION 4283. 33 In the absence of any authoritative decision on the "As used in the statute, the meaning of the words 'privity or knowl- edge' evidently is a personal participation of the owner in some fault, or act of negligence causing or contributing to the loss, or some personal knowledge or means of knowledge, of which he is bound to avail himself, of a contemplated loss, or of a condition of things likely to produce or con- tribute to the loss, without adopting appropriate means to prevent it. There must be some personal concurrence, or some fault or negligence on the part of the owner himself, or in which he personally participates, to constitute such privity, within the meaning of the act, as will exclude him from the benefit of its provisions. (3 Wall 153 [1865]; 113 Mass 499 [^^73]-) It is the duty of the owner, however, to provide the vessel with a competent master and a competent crew, and to see that the ship, when she sails, is in all respects seaworthy. He is bound to exercise the utmost care in these particulars — such care as the most prudent and careful men exercise in their own matters under similar circumstances ; and if, by reason of any fault or neglect in these particulars, a loss occurs, it Is with his privity, within the meaning of the act. But the owner, under this act, is not an insurer. If he exercises due care in the selection of the master and crew, and a loss afterwards occurs from their negligence, without any knowledge or other act or concurrence on his part, he is exonerated by the statute from any liability beyond the value of his in- terest in the ship and the freight then pending. So, also, if the owner has exercised all proper care in making his ship seaworthy, and yet some secret defect exists which could not be discovered by the exercise of such due care, and the loss occurs in consequence thereof, without any further knowledge or participation on his part, he is in like manner exonerated, for it cannot be with his 'privity or knowledge,' within the meaning of the act, or in any just sense, and the provision is that ' The liability of the owner . . . for any act, matter or thing, loss, etc., . . . occasioned without the privity or knowledge of such owner or owners shall, in no case, exceed the amount or value of the interest of such owner in such vessel and her freight then pending.' This language is broad, and takes away the quality of warranty implied by the common law against all losses except by the act of God and the Public Enemy." In a case in the Supreme Court of the State of New York, Chisholm V. Northern Transportation Co., 61 Barb. 363, 390 (1872), the court con- sidered this question, and Mr. Justice Talcott, who delivered the opinion, expressed the following views: "While it is, perhaps, true that any defect in the construction or fit- ting of the ship and its appurtenances, by means whereof loss or dam- age is occasioned, is to be attributed to the negligence of the owner, notwithstanding the construction which the Federal Court has put upon the exemption in the first section, yet even in that case the owner is only liable to the value of his interest in the ship and freight, unless he has knowledge of, or is privy to, the defect-" This case did not call for the expression of an opinion on this subject. It was an action at law to recover damages caused by fire. And the opinion thus expressed 34 THE MODERN LAW OF CARRIERS. subject, we naturally seek for ligHt from the continental and English authorities. It was held by the French Court of Cassation, in 1870, that the owner had no right to limit his liability for a loss occasioned by the intrinsic weakness or insufficiency of the ship itself, and that this was his personal fault, in re- spect of which the right to abandon the vessel did not ex- ist.' The English statutes on this subject originally used the same expression — "privity or knowledge" — as that in the American statute, but no case has been found in which those words were considered. The words were subsequently altered so as to read " without their actual fault or privity."^ Under this amended statute, it has been held that the owner may limit his liability for a defect in navigation can not be considered as entitled to the same weight as that of Mr. Jus- tice Sawyer. In the Ella, 8 Am. Law Reg. 206 (i860), it was held by the District Court of South Carolina that a loss caused by unseaworthiness of the vessel was incurred " with the privity or knowledge of the owner." But this case held that the Act of 185 1 did not apply to the owner's con- tract liability. In this respect it is overruled, and on the other point can hardly be considered as controlling. ^ Couder Diet, de Droit Commercial, vol. i, p. 413, title Armateur, sect. 75. " II faut egalement rattacher au meme principe la solution qui decide que le proprietaire respond indefiniment des consequences du vice propre du navire; il y a la, en effet, un fait personnel, au regard du- quel la faculte d'abandon n'existe point." Couder cites some conflicting decisions on this subject in the tri- bunals of first instance. But it would appear to be set at rest in France by a decision of the Court of Cassation, rendered April 11, 1870, which he cites. He does not give its title, and whether it is the same as the following decision, reported in full in the Journal du Palais for 1870, I am unable to ascertain. Arnaudin v. Adm. de la Marine, Journal du Palais (1870), p. 633. The Court of Rennes, referring to Article 216 of the Code du Com- merce, says: "Que le premier, concernant I'abandon, n'accorde cette faculte a I'armateur que pour lui permettre de s'affranchir de la responsabilite des faits de son capitaine et nullejnent de ses obligations personnelles." This was affirmed in the Court of Cassation, Ibid, p. 634. 2 102 Stat, at Large, 435; 25 and 26 Vict., chap. 63, sect. 54. UNITED STATES STATUTE, SECTS. 4283, 4286. 35 caused by the negligence of some person on board tlie ship, which "consisted in putting a screw wrongly or carelessly into the steam steering-gear." ^ In other words, such negligence happened without the actual fault or privity of the owner. There can be no doubt that " the owner is not liable beyond his interest in the vessel and her freight, for the misconduct of the officers and mariners of the vessel, in which he does not participate personally."^ Section 4286 is as follows : "The charterer of any vessel, in case he shall man, victual and navigate such vessel at his own expense, or by his own procurement, shall be deemed the owner of such vessel within the meaning of the provisions of this Title relating to the limitation of the liability of the owners of vessels ; and such vessel, when so chartered, shall be liable in the same manner as if navigated by the owner there- of." A very singular question has arisen as to the meaning - of the words "owner" in section 4282, and "charterer" in section 4286. A railroad company contracted to deliver goods at a point beyond the terminus of its line, and in performance of this contract delivered them to a connect- ing line of steamships. While in the possession of this line, and on board one of its ships, they were destroyed by fire, without the design or neglect of the first carrier. It was held that the first carrier was not the owner or charterer of the vessel on which the loss occurred, and therefore not entitled to the benefit of the act.^ 1 The Warkworth, 9 Prob. Div. 20 (1883); affd. Ibid, 145 (1884); s. c. 51 Law Times Rep. 558. It is obvious, from the report of this case, that the defect was not in the original construction. Indeed, the Master of Rolls, at p. 146 of the Re- port, says that if the defect had been in the ship when she was construct- ed, but was latent, and not discoverable before the accident, the ship- owner would not have been liable at all, irrespective of the statute. 2 Walker v. Western Transp. Co., 3 Wall. 150 (1865). 3 Rice V. Ontario S. Co., 56 Barb. (N. Y.) 384 (1869) ; Hill Mfg. Co. V. Boston, &c. R. R., 104 Mass. 122 (187.0). 30 THE MODERN LAW OF CARRIERS. This decision seems to be warranted by a strict con- struction of the terms of the contract Yet it presents the singular anomaly of making the carrier on whose line the loss did not occur liable, while the carrier on whose line it did occur is discharged. Contracts b}^ one carrier to transport goods or passengers to a point beyond its own line, on what is known as a through bill of lading, are common. Their validity is now well settled. It has been held that unless there is some limitation to the con- trary in the contract, the carrier making it is liable for a loss caused b}' the negligence of the connecting carrier.^ It would seem probable that if this question should again arise and be thoroughly discussed, it would be held that the carrier issuing a through bill of lading would be an owner of the vessels engaged in performing the through contract, within the meaning of section 4282. Certainly it would not be contended that the statute is applicable only to the registered owner of a vessel. The beneficial owner is liable for supplies furnished the ship. The registered owner, if he have no beneficial interest in the ship, is not. In other words, the beneficial owner is treated as the real owner to all intents and purposes, except so far as the requirements of the registration acts are con- cerned." And by parity of reason it would seem just to hold that a carrier who participates in the earnings of a vessel forming part of a through line, and has the right to contract for transportation upon her, is owner pro hac vice^ and within the equity of the Act of Congress. It is very' common to provide in these through bills of lading that each carrier shall be liable only for loss or damage occurring on his own line. Under such a contract the question under consideration could not arise. Sections 4284 and 4285 relate to the legal proceedings ' Ante^ p. 35, n. 3; post, ch. 13, sect. 3; Quimby v. Vanderbilt, 17 N. Y. 306 (1858); Insurance Co. v. Railroad Co., 104 U. S. 146 (1881). * Macy V. Wheeler, 30 N. Y. 231 (1864). UNITED STATES STATUTE, SECTION 4287. 37 to be taken by tbe owner in order to obtain the benefit of the statute, and will be considered in the third chapter. Section 4287 is as follows : " Nothing in the five preceding sections shall be con- strued to take away or affect the remedy to which any party may be entitled, against the master, of&cers, or sea- men, for or on account of any embezzlement, injury, loss or destruction of merchandise, or property, put on board any vessel, or on account of any negligence, fraud, or other malversation of such master, ofifi.cers, or seamen, re- spectively, nor to lessen or take away any responsibility to which any master or seaman of any vessel may by law be liable, notwithstanding such master or seaman may be an owner or part owner of the vessel." Bven if the master be a part owner, and the loss or damage be caused by his negligence, so that the right of action, preserved by this section, exists against him, the other part owners are not thereby rendered liable, if the loss or damage be occasioned without their privity or knowledge/ In such case it has been held that no right of action exists against the vessel on which a fire takes place, but that the remedy is solely in personam against the negligent part owner.^ If a part owner is on board, and has taken part in the navigation of the vessel, but is asleep at the time of the negligence which caused the injury, it not being his ^ Re Leonard, 14 Fed. Rep. 53 (1882); Wilson v. Dickson, 2 Barn. & Aid. 2 (1818). This was an action at common law against the own- ers. Judgment was rendered in favor of all except the captain. The Spirit of the Ocean, i Br. & Lush. 336 (1865); s. c. 34 Law Jour. Adm. 74; The Obey, L. R. i Adm. 102 (1866). ^ The Bark Whistler, 2 Sawy. 348 (1873). This case was de- cided under the peculiar provisions of Section i of the Act of 1 85 1. In a case where the damage was by collision, Dr. Lushing- ton held that the interest of all the owners was properly libelled in rem, but that the Admiralty would not make a decree against the master, who was a part owner, and whose negligence caused the col- lision, for the difference between the amount of the loss and th^ value of the offending vessel and her freight. The Volant, i \V. Rob. 383 (1842). 38 THE MODERN LAW OF CARRIERS. watch, and there being nothing which called for special ^'iQdlance, it cannot be said that the loss was incurred ^\4th his pri\'ity or knowledge/ Section 42S9, as originally enacted, was as follows : '"The pro\'isions of this Title relating to the limitation of the liability of the o^^Tiers of vessels, shall not apph' to the owners of any canal-boat, barge or lighter, or to any vessel of am' description whatsoever, used in rivers or in- land na\'igation."' There has been considerable diversity of opinion as to the true construction to be given to the words " inland navigation." In ]Moore i\ Am. Transportation Co.'^ it was held by the U. S. Supreme Court, affirming the decision of the Supreme Court of Michigan,* that the na\-igation of the great lakes was not " inland na\4gation " within the mean- ing of this act, and that it was as applicable to a vessel engaged in trafi&c between Buffalo and Detroit as to a ves- sel plying between New York and Liverpool. It is applicable to vessels engaged in na\dgating Long" Island Sound.^ It is not limited to vessels pl3'ing between ports of dif- ferent States. If they are not confined to rivers or inland navigation, they can avail themselves of the provisions of the act, although plying between ports and exclusivel}^ upon waters of the same State. The Act of 185 1 was a regulation of inter-State and foreign commerce. But it 1 The Maria & Elizabeth, 12 Fed. Rep. 627 (18S2); The Obev, L. R. I Adm. 102 (1866). 2 The Maritime Law is the same. Couder, Diet. Droit Comm., title Armateur, sect. 109. 3 24 How. U. S. I (i860). * 5 Mich. 368 (1858); s. p., Re Vessel Owners' Towing Co., 26 Fed. Rep. 169(1886); Wallace v- Providence & S. S. S. Co.. M^Fed. Rep. 56 (1882). * The Seawanhaka. re Long Island Transp. Co., 5 Fed. Rep. 599 (1881); Wallace v. P. & S. S. S. Co., 14 Fed. Rep. 56 (1882). UNITED STATES STATUTE, SECTION 4289. 39 was more. It was a declaration and adoption of the Mari- time Law in its application to the jurisdiction and de- cision of Courts of Admiralty/ and is therefore applicable, so far as its terms extend, to commerce upon all waters within the jurisdiction of our Admiralty Courts. But a steamer plying exclusively on a river is ex- cluded from the benefit of the act by the terms of sec- tion 4289.^ The name of the stream, however, is not conclusive. If it be really an arm of the sea, like the Bast River, vessels plying on it are not engaged in river navigation, and the act applies to and protects their own- ers.® Some of the questions as to the application of this sec- tion to inland waters are now removed by subsequent leg- islation amending the original statute. In 1884 an additional statute was passed.^ Sec. 18. That the individual liability of a ship-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole ; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending ; Provided^ That this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said ship-owners. This section does not seem to have yet been construed by the courts. It was perhaps intended as a legislative interpretation of section 4283 of the Revised Statutes with ^ Lord V. Steamship Co., 102 U. S. 541 (1880); The Seawanhaka Re Long Island Transp. Co., 5 Fed. Rep. 599 (1881); Re Norwich & N- Y. Trans. Co., 17 Blatchf. 221 (1879). The contrary was held in Spring V. Haskell, 80 Mass. (14 Gray) 309 (1859). ■^ Plant V. Stovall, 40 Ga. 85 (1869). 3 The Garden City, 26 Fed. Rep. 766 (1886). * 23 U. S. Stat, at Large, 57 ; Act June 26, 1884, sect. 18. 40 THE MODERN LAW OF CARRIERS. whicTi it is coterminous. Under the Revised Statutes the liability of the owner is limited to the value of his interest in ship or vessel, and it would seem obvious that the owner of the fourth part of a ship could not be made personally- liable for more than one-fourth part of her value, that is, in the language of the statute of 1884 '' the proportion his individual share of the vessel bears to the whole." It will be noticed that all liabilities are mentioned in the statute of 1 884, while in the Revised Statutes the lim- itation is confined to liability for " any embezzlement^'' &c. It is not believed that since the act of 185 1 the owners were ever held liable in a separate suit to an amount ex- ceeding the value of their vessel, for separate embezzle- ments, collisions, or otherwise, except in the cases herein- after referred to, where such losses occured during different voyages.^ But as such questions might arise, the statute of 1884 seems intended to imply that the owner should not be liable for the aggregate amount of losses caused by the ship during a given voyage, to an amount greater than " the value of such vessels and freight pending." Further question might have been made as to whether this statute of 1884 acting as an amendment of sect. 4283 1 After the passage of this Act of 1884 it was held in the Great Western; Thommessen v. Whitwill, 118 U. S. 520; s. c 30 Lawyers' Ed. 156 (1886), that where a vessel committed a maritime tort and was after- wards stranded and wrecked, her value, for the purpose of limited liability proceedings was to be taken as that of the wreck. The reasons given for this decision would be equally applicable if the wreck had been caused by a second tort which inflicted injury upon another vessel. See also The City of Norwich, 118 U. S. 500 (1886). It is to be noticed that the liability to action for successive losses was (Brown v. Wilkinson, 15 Mees. & Wels. 397 [1846]) given as a reason in favor of the English rule which fixed the value of the offending vessel as that just before the commission of the tort. The present English rule fixes the limit of liability for damage caused on any one occasion at _p/^8 per ton. But where the offending vessel ran into one vessel and then immediately after in consequence of the same act of improper navigation ran into and sank another, it was held that the loss to both vessels was caused "substantially at the same time, and on the same occasion." The Rajah, L. R. 3 Adm. 539 (1872). UNITED STATES STATUTE, SECTION 4289. 41 of the Revised Statutes, therefore repealed by implication section 4289 of the Revised Statutes, which limits it. Repeals by implication are not favored, and statutes m pari materia should be construed together. If construed in the light of these well settled rules of construction, it is believed that the statute of 1884 did not repeal section 4289 of the Revised Statutes, and that the limitation contained in the latter limited the statute of 1884, although not referred to in it. That this view is correct would seem to be now deter- mined by a still later statute which not only recognizes the continued existence of section 4289, but amends it. This later statute was passed in 1886,^ and is as follows : Sec. 4. That section forty-two hundred and eighty-nine of the Revised Statutes be amended so as to read as fol- lows : Sec. 4289. The provisions of the seven preceding sec- tions, and of section eighteen of an act entitled '^An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade, and for other purposes," approved June twenty-sixth, eighteen hundred and eighty-four, relating to the limita- tions of the liability of the owners of vessels, shall apply to all sea-going vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canal- boats, barges, and lighters. Whether this important extension to rivers and inland waters, of the limitation of shippers' liability, is intended to include waters lying entirely within any State, as it does in terms, and if so, whether this extension is valid, are questions which must be left for the courts to determine in the future. They have not yet been considered in any important case which the author has been able to discover.^ ^ 24 U. S. Stats, at Large, 80; Act June 19, 1886, sect. 4. '' In Chappell v. Bradshaw (C C. D. Md.), 35 Fed. Rep. 923 (1888), it was held that the statute of 1884 did not repeal section 4289 of the Revised Statutes and that the act of 1886 was not retroactive. 42 THE MODERN LAW OF CARRIERS. Having thus considered in detail these sections of the act of 1 85 1, as re-enacted and amended, we proceed to con- sider some questions that have arisen in regard to the act, considered as a whole. The language of the statute is general and applies to liability for the negligence of the master and mariners, as well as for their willful torts.^ The act applies to enrolled and licensed, as well as to registered vessels.^ It is immaterial that the contract of transportation was made on land and included land carriage. If the loss or injury was done or occasioned on the water, the owner is entitled to the benefit of the act.^ It has been held that the liability of the owner of a vessel can only be limited under the law to loss or damage occurring on the last voyage in which she engaged. The court put this on the language of the statute, and on the ground that it could not have been the intention of the law to allow owners to let claims accumulate against the vessel, on various voyages, until they amounted in the aggregate to more than her value and then abandon her.* A railway company owning a ship can take advantage of the act.^ ^ Stinson v. Wyman, 2 Ware (Davies), 172 (1841). This decision was rendered under the language of the Maine statute, which was similar to that of the United States Act of 185 1. 2 Wallace v. Providence & S. S. S. Co., 14 Fed. Rep. 56 (1882). The law is apparently stated to be otherwise in Chisholm v. Trans. Co., 61 Barb. 363 (N. Y.) 1872. But the word "not" in Judge Talcott's opinion (p. 386) was obviously inserted by a mistake either of the copyist or reporter. The decision was that the act did apply to a vessel of that class. 3 Wallace v. Providence & S. S. S. Co., 14 Fed. Rep. 56 (1882). * The Alpena, 8 Fed. Rep. 280 (1881). The continental law is otherwise. It was held by the Court of Cassation, Dec. 31, 1856, that the owner of a vessel could limit his liabilty for a loss occurring on a previous voyage, in cases where no suit against the vessel or her owners was brought until after the termination of the intermediate voyage- Journal du Palais, Table complementaire, vol. i, p. 118, section 34. 5 London & S. W. Ry. Co. v. James, L. R. 8 Ch. App. 24 (1872). UNITED STATES STATUTE. 43 The act applies to a vessel in a wrecked condition, though, she cannot propel herself either by sail or steam, or carry cargo. She is still a vessel.^ The owner's personal liability is not extended by the execution of a bottomry bond by the master.^ Two questions have arisen under these sections of the statute with reference to the Admiralty rule of apportion- ing damages where both parties are at fault. Where a collision occurs and both vessels are in fault, the practice in the American admiralty courts is to render a single judgment in favor of the owners of the one injured least, against the other, for half the amount of the difference between their respective losses. It follows that the owners of a vessel which is actually lost and sunk by a collision can not when both vessels are to blame, claim to limit their own liability for the collision to the value of the wreck, and at the same time recover against the other vessel the entire half of the damage sustained by them.^ ^ Craig V. Continental Ins. Co., 26 Fed. Rep. 798 (1886). ^ Naylor v. Baltzell, Taney, 55, 60 (1841). 3 The North Star, 106 U. S. 17, 22 (1882). In this case the Court say: " These authorities conclusively show that, according to the general maritime law, in cases of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass, and equally divided between them, and thereupon arises a liability of one party to pay to the other such sum as is necessary to equalize the burden. This is the rule of mutual liability between the parties." This overrules the decision of the English Court of Appeals in Chapman v. Royal Netherlands Steam N. Co., L. R. 4 Prob. Div. 157 (1879). That decision was by a divided court reversing the decision of Sir George Jessel, which was in harmony with that of the Supreme Court. On the question of the weight of authority, the Supreme Court were well warranted in considering the judgment of the Master of the Rolls and Justice Brett as quite equal to that of the two Lord Justices who took the opposite view. This decision in the Chapman case was overruled in the House of Lords, July 26, 1882. Stoomvaart Maatschappy Nederland v. Peninsular & Oriental S. N. Co., L. R. 7 App. Ca. 795 (1882). This case was not brought to the attention of the Supreme Court, but it is referred to by the reporter. The Judgment was that " the owners of the steam vessel Voor- waarts are entitled to prove against the fund paid into the court under that judgment, for a moiety of the loss and damage sustained by them, less. 44 THE MODERN LAW OF CARRIERS. Where cargo is injured by a collision between two ves- sels, and it is held that both are to blame, the owner of the cargo recovers a moiety of his loss from each of the offending vessels. If one of them is not of value sufficient to pay this moiety, the other is liable for. the amount of the deficiency.^ If the owner of the cargo proceed against only one of the offending vessels, he re- covers his whole damage.^ Whether the owner of the li- belled vessel could, in such case, have process to compel the other wrong-doer to appear and respond to the alleged wrongful act, the Supreme Court did not determine ; ^ but on principle it would seem that in Admiralty this right should exist.^ If the owner of one of the injured vessels be also the owner of the cargo on board, and he desires to limit his liability for the injury done to the other vessel, he can do so without abandoning his interest in his cargo. ^ The method, according to which the computation of a moiety of the loss and damage sustained by the steam vessel Khedive, and to be paid in respect of the balance due to them after such an' J>assu, with the other claimants out of such fund." The Jose E. More, 37 Fed. Rep. 122 (1888). ^ The Alabama and The Gamecock, 92 U. S. 695 (1875); The AVashington and The Gregory, 9 Wall. 513 (1870). These cases over- rule The City of Hartford and The Unit, 11 Blatchf. 290 (1873), and The Milan, i Lush. 388 (1861). The earlier English decisions on this rule of dividing the damages are fully stated in The Milan. See The Britannic, 39 Fed. Rep. 395 (1889). 2 The Atlas, 93 U. S. 302 (1876); rev'g s. c. 10 Blatchf. 459 (1873); 4 Bened. 27 (1870). ^ The Atlas, 93 U. S. 302, 317 (1876). This case had been decided in the Circuit Court on the ground that " a libellant could not, by pro- ceeding against one of the offending vessels alone, deprive her owners of the right to such contribution from the other vessel, and of the means of enforcing it." This was so stated by Judge Woodruff in The City of Hartford and The Unit, 11 Blatchf. 290, 293 (1873). * The Canima, 17 Fed. Rep. 271 (1883). The decree in this case accomplished the result indicated in the text, though by a different method, owing to the fact that on one libel the owners of both ships were before the Court. * The Bristol, 29 Fed. Rep. 867 (1887). The French law is the same as shown in this case, p. 873. UNITED STATES STATUTE. 45 damage and consequent recovery are to be determined in a case where both vessels are to blame, is fully stated in the Bristol. Briefly it may be said that in such case, the owner of the cargo on the abandoned vessel recovers half his loss from the other vessel, less the net salvage upon his own vessel, which, under the Statute, is the limit of his liability for the tort of his vessel/ We have now considered the case of a collision where both vessels are at fault, and the cargo on board of one of them belongs to the owner of the injured vessel. But it more frequently happens that the cargo on the injured vessel belongs to some person other than the owner of the vessel herself. In such case, as has been shown, he is entitled to recover the whole of his damage. If the owners of the vessel on which his cargo was laden succeed in lim- iting their liability, he is entitled to recover the entire value of his cargo from the other vessel, and the weight of authority at present is, that in making up the state- ment of the account as between the respective owners, any right of action of the owners of the injured vessel against the other must be transferred to the trustee in the limited liability proceedings, if a trustee be appointed, or else in- cluded in the stipulation given for value. This question was considered and not decided in the Leonard case,'^ but the earlier and subsequent cases support the proportion just stated.^ In effect, therefore, there would be brought ^ The Bristol, 29 Fed. Rep. 867 (1887). If the injury had been to the person, instead of the property, of the owner of the offending ves- sel, he would in like manner have recovered only half of his damages. The Juniata, 93 U. S. 337 (1876). ' i?^ Leonard, 14 Fed. Rep. 53 (1882). 3 The C. H. Foster, i Fed. Rep. 733 (1880); Atlantic Mut. Ins. Co. V. Alexandre, 16 Fed. Rep. 279 (1883); The Hercules, 20 Fed. Rep. 205 (1884); and see The Eleanora, 17 Blatchf. 104 (1879). This is stated ai an inference from the decisions cited ante, p. 43, n. 3, and p. 44, n. I and 2. Iti re Petition Norwich & N. Y. Trans. Co., 17 Blatchf. 221, 234 (1879), Strong, J., says: " There is nothing in the act of Congress to indicate that the trans- 46 THE MODERN LAW OF CARRIERS. into court in the limited liability proceedings taken by the owners of the sunken vessel, not simply the value of fer of the interest of the owner to a trustee was intended to have any- different effect from that of an ordinary transfer of personal property, which, neither in law or equity, carries with it insurance or any collat- eral contract." It may be contended that this transfer should not carry with it any right of action for the injury to the vessel transferred. The act cer- tainly does not say that any such right shall be assigned, and in Denn V. Reid, lo Peters, 528 (1836), the Supreme Court said: "But it is not for the court to say, when the language of the statute is clear, that it shall be so construed as to embrace cases because no reason can be as- signed why they were excluded from its provisions." The phrase in the statute — "interest of the owner" — is often used as expressive of the extent of the owner's aliquot share in the vessel. The several part owners are tenants in common " with each other of their respective shares, each having a distinct, although individual in- terest in the whole." Abb. on Shipping, 97 ; i Phill. Ins., sect. 380. It may well be, therefore, that the Supreme Court will ultimately determine that the transfer of the owner's interest transfers his share, whatever that may be, but does not transfer his right of action for a previous injury to such share. This would be in analogy to the well- settled rule in Admiralty that it is the ship, and not the owner, which is to be considered as the wrong-doer. For example, in The China, 7 Wallace, 53, 68 (1868), the Supreme Court say: " The Maritime Law as to the position and powers of the master and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law. It had its source in the commercial usages and jurisprudence of the middle ages. Originally the primary liability was upon the vessel, and that of the owner was not personal, but merely incidental to his ownership, from which he was discharged either by the loss of his vessel, or by abandoning it to the creditors. But while the law limited the creditor to this part of the owner's property, it gave him a lien or privilege against it, in preference to other creditors." So in The Malek Adhel, 2 How. U. S. 210, 234 (1844), the court say: " The ship is also by the general maritime law held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence or a willful disregard of duty; as for example in cases of collision and other wrongs done upon the high seas or elsewhere, within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself, used as the means of mischief, as the best and surest pledge for the compensation and indem- nity to the injured party." It would seem, therefore, that the proposition stated in the text can hardly be said to be settled beyond controversy. The cases cited, how- ever, show that the weight of authority in the District and Circuit Courts at present supports it. UNITED STATES STATUTE, SECTION 428 1. 47 the wreck, but also the proportion of the damage which they would be entitled to recover against the other vessel. The value of the wreck and the value of the recovery- would form a fund for distribution. The insurer who pays a loss on cargo is subrogated to the rights of its owner, but he occupies no better posi- tion, and can recover only half the loss in a case in which that would have been the extent of the owner's re- covery.^ It must be remembered that damage done to cargo in either vessel is a part of the loss or damage caused by a collision, "and it is wholly immaterial in which vessel the damaged cargo happens to be." "^ Two other sections of the Revised Statutes remain to be considered : Section 4281 is as follows : " If any shipper of platina, gold, gold-dust, silver, bullion or other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones, or any gold or silver in a manufactured or unman- ufactured state, watches, clocks or time-pieces of any de- scription, trinkets, orders, notes or securities for payment of money, stamps, maps, writings, title deeds, printings, engravings, pictures, gold or silver plate or plated ar- ticles, glass, china, silk in a manufactured or unmanu- factured state, and whether wrought up or not wrought up with any other material, furs or lace, or any of them, con- tained in any parcel or package, or trunk, shall lade the same as freight or baggage, on any vessel, without, at the time of such lading, giving to the master, clerk, agent or owner of such vessel receiving the same, a written notice of the true character and value thereof, and having the 1 The Bristol, 29 Fed. Rep. 867 (1887). This was decided on the authority of Phoenix Ins. Co. v. Erie Trans. Co., 117 U. S. 312 (1886). Simpson v. Thomson, L. R. 3 App. Ca. 279 (1877). =* Leonard v. Whitwill, 10 Bened. 638, 658 (1879); The Bristol, 29 Fed. Rep. 867 (1887). See the decree in The Eleanora, 17 Blatchf. 88, IDS (1879). 48 THE MODERN LAW OF CARRIERS. same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner, nor shall any such mas- ter or owner be liable for any such goods beyond the value, and according to the character thereof, so notified and entered." This statute was passed in its original form, March 3, 1 85 1. It then read as follows : "Sec. 2. And be it further enacted, That if any ship- per or shippers of platina, gold, gold-dust, silver, bullion or other precious metals ; coins, jewelry, bills of any bank or public body ; diamonds or other precious stones, shall lade the same on board of any ship or vessel, without, at the time of such lading, giving to the master, agent, own- er or owners of the ship or vessel receiving the same, a note in writing of the true character and value thereof, and have the same entered on the bills of lading therefor, the master and owner or owners of the said vessel shall not be liable, as carriers thereof, in any form or manner. Nor shall any such master or owners be liable for any such valuable goods beyond the value and according to the character thereof so notified and entered." ^ The statute was afterwards amended so as to include many other articles than those enumerated in the statute of 1 85 1 (among them pictures), and was also amended by the addition of the words, " contained in any parcel, or package, or trunk," and also by the insertion after the words "shall lade the same," of the words "as freight or baggage." ' In this amended shape it appears in the United States Revised Statutes to-day. It would be difficult to find a plainer indication of the legislative intent that the statute should cover every kind of case under which such enum- ^ U. S. Statutes at Large, vol. 9, p. 635. 2 U. S. Stat, at Large, vol. 16, p. 458, chap. loo, sect. 69 (Feb. 28 1871). UNITED STATES STATUTE, SECTION 4492. 49 erated articles might be put on board, tban is shown by the insertion of the words "as freight or baggage," above referred to. It was held in Massachusetts that the original statute did not apply to the baggage of passengers.^ But it would seem clear that baggage, as well as freight, are within the terms of the law as amended.'^ It has, however, been held in New York that a passenger who puts articles of jewelry, such as she is accustomed to wear upon her person, in a trunk which she takes with her on a steamer, is not a shipper of such jewelry, within the meaning of the act, and that the carrier is liable for their loss, although the passenger has given no notice of the character and value thereof to the master or agent of the ship.^ The statute is so comprehensive in terms that the car- rier would not be liable, even for negligence, in a case covered by it.* It is enough if the "notice of the true character and value " is contained in the bill of lading. It need not be a separate notice.^ The remaining section requiring consideration is sec- tion 4493, which is as follows : Sec. 4493. Whenever damage is sustained by any ^ Dunlap V. The International Steamboat Co., 98 Mass. 371 (1867). Under the statute of 1851 the Commission of Appeals of New York held that the words, " any goods or merchandise whatsoever," in the first section of that act, applied to personal baggage. Chamberlain v. Western Transportation Co., 44 N. Y. 305 (187 1). ^ Wheeler v. Oceanic Steam N. Co., 52 Hun, 75; s. c. 5 N. Y. Supp. loi (1889). ' Carlson v. Oceanic Steam Nav. Co., 109 N. Y. 359 (1888). * The statute is founded upon the British statute, i Wm. IV, chap. 68. Under that statute it was held that a carrier would not be liable even for gross negligence. Hinton v. Dibbin, 2 Ad. & Ellis, N. S. (Qu. B.) 646 (1842). ^ Watson V. Marks, 2 Am. Law Reg. 157 (1853). Under the En- glish statute it has been held that a description of the goods shipped, as "one box containing about 248 oz. of gold-dust," was not a sufficient statement of value. Williams v. African S. S. Co., i Hurlst. & N. 300 (1856). This seems a very technical construction. 4 50 THE MODERN LAW OF CARRIERS. passenger or his baggage, from explosion, fire, collision or other cause, the master and the owner of such vessel, or either of them, and the vessel, shall be liable to each and every person so injured, to the full amount of damage, if it happens through any neglect or failure to comply with the provisions of this Title, or through known defects or imperfections of the steaming apparatus, or of the hull ; and any person sustaining loss or injury through the carelessness, negligence, or willful misconduct of any master, mate, engineer or pilot, or his neglect or refusal to obey the laws governing the navigation of such steam- ers, may sue such master, mate, engineer or pilot, and re- cover damages for any such injury caused by any such master, mate, engineer or pilot. It was held, under the provisions of the section of which this is a re-enactment, that damages sustained by a passenger or his baggage from any of the causes therein mentioned, is not included within the loss, the liability for which can be limited under section 4283.^ The de- cision in the Carroll case was placed on the ground that the object of the Act of 185 1 was to limit the common- law liability of carriers of goods. It has, however, been shown that the Act of 185 1 applies to the liability of car- riers for injuries to persons as well as injuries to goods. But the case is sustainable on the express language of the section which, so far as passengers and their baggage are concerned, is clear enough. But when a loss of goods happens through failure to comply with the provisions of the title of which the section just quoted forms a part, or through known defects or imperfections of the steaming apparatus, or of the hull, the question will arise whether the loss was incurred with the privity or knowledge of the owner. Under the familiar rule that statutes which are in 1 Act of Feb. 28, 1871; U. S. Stat, at Large, vol. 16, p. 446; Car- roll V. Staten Island R. R. Co., 58 N. Y. 126 (1874); Chisholra z/. Northern Transp. Co., 61 Barb. 393 (1872). UNITED STATES STATUTE, SECTION 4493. 5 1 pari materia are to be construed together, it would seem reasonable to maintain that a vessel which is not equipped in accordance with the sections of the same title, is de- fectively equipped with the privity or knowledge of the owner, because of the duty to provide such equipment im- posed upon him by the statute.^ On the other hand it may fairly be argued that if the carrier cannot, under the Act of 185 1, limit his liability for a loss caused by such defective equipment, there would have been no occasion for passing the Act of February 28, 1871, section 43, re- enacted as above stated. No decisions are reported from which any inference can be drawn upon this subject. The validity of the act of which this section formed a part was at one time disputed, but it seems clear that it is a regulation of commerce, and as such it was held valid by the Supreme Court.^ None of the sections of the statute which have been referred to have the effect to oust the jurisdiction of the State courts of all common law actions. These may still be prosecuted, and if it should not become necessary to invoke the aid of the admiralty proceedings authorized by the act, and the rules of the Supreme Court adopted in conformity to it, the defence under the statute can still be asserted in these suits. In other words there is nothing in the U. S. Statute, which ousts the jurisdiction of com- mon law courts of actions to recover damages for marine torts.^ But where several actions have been brought, or sev- eral claims have been made against one defendant to re- cover damages for a marine tort, it seems clear that the only remedy available to the defendant is that provided * It was so held in England v. Gripon, 15 La. Ann. 304 (i860). - Sherlock v. Ailing, 93 U. S. 99 (1876). ^ Chappell V. Bradshaw, 128 U. S. 132 (1888); Dougan v. Champlain Trans. Co., 56 N. Y. r (1874); Carroll v. Staten Island R. R. Co., 58 N. Y. 126 (1874). 52 THE MODERN LAW OF CARRIERS. for by the admiralty rules. The effect of the commence- ment of proceedings in Admiralty for that purpose, is to oust the jurisdiction of the State courts. Whether or not the Admiralty Court has authority to grant an injunction is a point not yet finally determined, but it is settled by the Supreme Court of the United States that the pendency of the Admiralty proceeding is a bar to the prosecution of actions in common law courts, to recover damages for the tort respecting which the petition in limited liability pro- ceedings has been filed. If, notwithstanding the interposi- tion of this defence, the State court should assert jurisdic- tion and render judgment adversely to the defendant, this judgment can be reviewed by writ of error out of the Su- preme Court. ^ 1 Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 600 (1883). CHAPTER III. PROCEDURE UNDER UNITED STATES STATUTE. An owner or charterer of a ship or vessel desiring to avail himself of the limitation of liability which has thus been considered, may, if there be only one claim against him, or the several claimants have brought but one suit, plead his defense in bar of the action or in mitigation of damages.^ If he desires to take a£S.rmative proceedings to limit his liability, he must file his libel in a district court of the United States. A bill in equity, for the pur- pose of limiting liability, is not maintainable in the United States.^ "The said libel or petition shall be filed, and said pro- ceedings had, in any district court of the United States in which said ship or vessel may be libelled to answer for any such embezzlement, loss, destruction, damage or in- jury; or if the said ship or vessel be not libelled, then in the district court for any district in which said owner or owners may be sued in that behalf. When the said ship or vessel has not been libelled to answer the matters afore- said, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, ^ The Scotland, 105 U. S. 24 (1881). So he may if the loss be total, even if there be several suits. Craig v. Continental Ins. Co., 26 Fed. Rep. 798 (1886). ^ Goodrich Trans. Co. v. Gagnon, ;^6 Fed. Rep. 123 (1888); s. c. Chicago Legal News, Aug. 25, 1888; Elwell v. Geibei, ^3 Fed. Rep. 71 (1887). In both these cases the tort was done by a vessel on the water to persons or property on land. But this fact was held not to confer jurisdiction on the Circuit Court in equity. See The Mary Lord, 31 Fed. Rep. 416 (1887); Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 593 (1883); Norwich Co. z'. Wright, 13 Wall. 104, 123 {1871). It is a curious fact that in England the remedy by statute was original in equity. 54 THE MODERN LAW OF CARRIERS. the said proceedings may be had in the district court of the district in which the said ship or vessel may be, and where it may be subj ect to the control " of such court for the purposes of the case as hereinbefore provided. If the ship have already been libelled and sold, the pro- ceeds shall represent the same for the purposes of these rules." ^ There remains the case of a ship-owner whose ship has become a total loss, and who has not yet been sued. He can obtain relief in the district into which the rem-- 1 Admiralty Rule 57, promulgated May 6, 1872, 13 Wall, xiii; as amended April 27, 1889, 130 U. S. 705 ; In re Leonard, (D. C., S. D. N. Y.) 14 Fed. Rep. 53 (1882). In this case the district court, in Leonard v. Whitwell, lo Bened. 638 (1879), had held that both of two colliding vessels were at fault, and that each should pay half the dam- ages. The owners of one of the vessels — an American schooner — there- after filed their libel in the Southern District of New York, to limit their liability for the loss to the value of their interest in the vessel and her freight. The owners of the other vessel — a British steamer — except- ed to the jurisdiction. The collision occurred on the high seas, fifteen miles south of Long Island. It was held that the libel was properly filed in the Southern District, because the litigation as to the liability for the collision took place there; the stipulation representing the value of the steamer was filed there, and the amount of the recovery by the schooner against the steamer would be paid into court there. In Wallace v. Providence & Stonington S. S. Co. (C. C. Mass., Low- ell and Nelson, JJ.), 14 Fed. Rep. 56 (1882), it was held that the libel could be filed in any district where the carrier was sued. But this must be taken with the limitation that no libel in Admiralty has been filed against the vessel. If such Hbel has been filed, the proceedings to limit liability must be taken in the district court in which such libel was filed. The Luckenback, 26 Fed. Rep. 870 (1886). This rule was applied in The Luckenback to a case in which a decree upon the original libel had been rendered in the District Court and affirmed in the Circuit Court, and an appeal had been taken to the Supreme Court of the United States before the commencement of the proceedings to limit liability. Judge Brown in that case expresses the opinion that Admiralty Rule 58 (13 Otto, xiii. Desty Fed. Proc. 761) applies only to cases where a decree in a proceeding to limit liability is reversed in the Supreme Court, and the cause remanded to the Circuit Court, or where such proceeding is pending in the Circuit Court on appeal. This opinion was not necessary to the decision of that case, but it has been followed by Colt, J., in the First Circuit, and expresses the practice. The Mary Lord, 31 Fed. Rep. 416 (1887). The question as to the validity of these Admiralty Rules was raised in Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578 (1883). The court held them to be valid. PROCEDURE UNDER UNITED STATES STATUTE. 55 nants of the vessel liave been brought. The filing of the stipulation for the value of his interest in the ship and her freight brings into court the res itself, and is, to all intents and purposes, substituted for it.^ The District Court of the district to which the vessel is bound, has jurisdiction of a proceeding to limit the lia- bility of her owner, upon the filing in that court of the transfer of the interest of the owner in her wreckage and freight, though she was wrecked within another district. In this case the proceedings of the wreckage and freight were paid into court.^ The libel, in addition to the usual requirements, must contain five articles: First. The pleader must state whether he elects to contest his client's liability altogether, or to admit this, and simply seek to limit it. In the English practice the question of liability cannot be tried in the action brought to limit it. This must be tried in an action at law, or up- on a libel in Admiralty, and the suit for the limitation of liability is stayed to await the result of such action. But in this country both questions can be determined in one suit. If the pleader proposes to contest the owner's liabil- ity altogether, he should state, in detail, the grounds of ^ Whenever a stipulation is taken in an Admiralty suit, for the prop- erty subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the court which it could properly exercise if the thing itself were still in its custody. The Palmyra, 12 Wheat, i, 10 (1827); The City of Norwich, 118 U. S. 468, 489 (1886). Admiralty Rule 57: "If the ship have already been libelled and sold, the proceeds shall represent the same for the purposes of these rules." But if a libel in rem is filed, and a stipulation for the value of the vessel at that time is given, this stipulation is not conclusive as to her value immediately after the committing of the tort, respecting which proceedings to limit the owner's liability are subsequently taken. The City of Norwich, 118 U. S. 468 (1886); The Doris Eckhoff, 30 Fed. Rep. 140 (1887). 2 Ex parte Slay ton, 105 U. S. 451 (i 881); The Alpena, 8 Fed. Rep. 280 (1881). 56 THE MODERN LAW OF CARRIERS. his defense — mucli as lie would in an answer or plea in an action brought to recover damages for the injury the ship- pers or passengers have suffered. Second. The pleader must determine and allege in his libel whether the owner abandons his interest in the ship and her freight then pending, or elects to give a stipula- tion for their value. Ordinarily it is for the shipper's in- terest that the owner should himself take the steps neces- sary to save all that can be saved. He is more familiar with the facts necessary to be known to make this sal- vage of any value. It is, therefore, more in harmony with the spirit of the rule to give the stipulation. The doubts which have been expressed as to whether the giv- ing such a stipulation is a compliance with the Maritime law, seem, therefore, unreasonable. Third. The libel must state, as nearly as may be, the particulars of the loss by reason of which the owner seeks the protection of the court : Fourth. Also that the loss took place without his priv- ity or knowledge : Fifth. And that the owner seeks the benefit of the limitation of liability given by the statute and by the Maritime law. It is not necessary to aver that the claims against the vessel exceed her value.^ When the libel is filed, the next step is to give notice to all persons, claiming to recover damages for the loss in question, to come into court and assert their claims. And if the libel tenders a stipulation for value instead of making an abandonment the claimants are entitled to be heard on the question of value. The court makes an order referring it to a commissioner to fix the amount of the stipulation, which must be for the value of the libellant's interest in the vessel and her freight 1 The Garden City, 26 Fed. Rep. 766 (1886). PROCEDURE UNDER UNITED STATES STATUTE. 57 advertised in a manner to be fixed by tbe court, and notice must also be given to all persons who Have commenced actions against the libellant to recover damages for the loss in question. This may be given either personally or by mail, and it may be given to them or their attorneys in the suits so begun. It was claimed in the Levinson case, already referred to,^ that the service of this notice on the attorneys was insufficient to give the court jurisdiction of the client. The Circuit Court, however, held otherwise. That this decision was right is manifest from a considera- tion of the nature of the proceedings to limit the liability of a ship-owner. These are primarily in rem^ inasmuch as their first object is to bring into court and surrender, in one form or another, the vessel and her freight then pend- ing. The decree barring claims in personam against the owner is incidental to the proceeding in rem. Jurisdiction of this suit in rem is gained by the filing of the petition and the offer to surrender the vessel and her freight. The process issued upon the filing of this libel is " due process of law," being in strict conformity with the immemorial practice of courts of admiralty. The proceedings before the commissioner are simply to fix the amount of the stipu- lation. Courts, both of law and admiralty, have always assumed to fix the amounts of bonds and stipulations, and this is often, in the first instance, done ex parte. If the amount of the stipulation in these proceedings were to be fixed ex parte., it would be open to any person interested afterwards to contest the amount, and claim that it be increased. It is therefore more convenient that all known claimants should be notified, and this question of the amount of the stipulation settled at the outset. But there are frequently some claimants then unknown, who after- wards appear in answer to the monition. It seems certain ^ Levinson v. Oceanic Steam Nav. Co., 17 Albany L. J. 285 (1876). 58 THE MODERN LAW OF CARRIERS. then pending. Notice of the hearing before him must be that these would have the right to ask the court to increase the amount of the stipulation. It is to be observed that the statute does not provide for the appraisement, and the rule leaves the manner of making it in the discretion of the court. In the Levinson case, the question as to the proper manner of giving notice of appraisement was treated as the same as that of the jurisdiction obtained by the issue of the monition. And no doubt it is well that the notice of the hearing upon the application to fix the amount of the stipulation should be served in the way in which monitions are served. This method, also, is not provided for by statute, but it is in conformity with the ancient practice of courts of admiralty, and is therefore due process of law.^ In the Levinson case, attorneys had been entrusted by the claimants with the prosecution of their claims, and notice of the proceedings to limit the shipowner's liability was therefore properly served upon them. The legislature may and often has authorized the courts to determine how notice of proceedings in court shall be given. It is no doubt true that process in a pro- ^ In the matter of the Empire City Bank, 18 N. Y. 199 (1858), the court say, p. 215: " It may be admitted that a statute which should authorize any debt or damages to be adjudged against a person upon a purely ex parte pro- ceeding, without a pretence of notice or any provision for defending, would be a violation of the constitution, and be void; but where the legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the pro- ceedings illegal. ... If we hold, as we must in order to sustain this legislation, that the constitution does not positively require per- sonal notice in order to constitute a legal proceeding due process of law, it then belongs to the legislature to determine in the particular instance whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which are taken against him.'* To the same effect is Levinson v. Oceanic Steam Navigation Co., 17 Albany L. J. 285 (1876). See also cases cited in next note. procedure: under united states statute. 59 ceeding in personam must be served within the jurisdiction of the court from which it issues. If this be done, the service need not be personal. Indeed, both at common law and in equity, original process could regularly be served by leaving a copy at the defendant's residence. But in a proceeding in rem^ the rule as to service within the jurisdiction does not apply. Notice must be given, but when given it is notice to all the world. And this doctrine is constantly applied to proceedings not strictly in reni^ but of a kindred character, as for example proceed- ings to wind up the affairs of a bank, of a partnership, of a deceased person, of a bankrupt.^ The next question to examine is as to the extent of the stipulation which the commissioner must require to be given. In general it must be, to use the language of the statute, for *' the interest of such owner in the vessel or her freight then pending." But questions of great import- ance have arisen upon the construction of these terms. 1 The Empire City Bank, i8 N. Y. 199 (1858); Campbell v. Evans, 45 N.Y. 356(1871); re N. Y. Elevated R. R., 70 N. Y.327, 357 (1877); re Village of Middletown, 82 N. Y. 201 (1880); Matter of the Harmony F. & M. Insurance Co., 45 N. Y. 310 (1871). The constitutional pro- vision that no person shall be deprived of property, &c., without due process of law does not require proceedings according to the common law or personal notice. It is sufficient if a kind of notice is provided which is reasonable. Happy v. Mosher, 48 N. Y. 313 (1872). (This was a case of claims against vessels.) Rockwell v. Nearing, 35 N.Y. 302 (1866); Gray v. Schenck, 4 N. Y. 460 (185 1); Jackson v. Babcock, 16 N. Y. 246 (1857); Swan V. Williams, 2 Mich. 427 (1852); Curry v. Mount Sterling, 15 III. 320 (1853); Redfield on Railways, sect. 72; Methodist Prot. Church V. Baltimore, 6 Gill (Md.) 391 (1848); State v. Mayor, &c., of Jersey City, 4 Zab. (N. J.) 662 (1855); NichoUs v. Bridgeport, 23 Conn. 212 (1854); Hildreth v. City of Lowell, 11 Gray (Mass.) 345 (1858). In Stewart v. Board of Police, 25 Miss. 479 (1853), the court held that in laying out a new road no notice to the owners of land over which it passed was necessary. They refer to the practice in admiralty and exchequer courts. "The seizure of the thing on which the judgment is to operate is considered constructive notice to everybody in interest. ' But this proposition can hardly be considered as sound law in any State but Mississippi. The usual rule is that reasonable notice of some sort must be given even though the proceeding be in rem. 6o THE MODERN LAW OF CARRIERvS. First. Insurance. — On the hearing before the Com- missioner, the claimants have no right to have the amount of any insurance on the vessel or freight included in the stipulation/ Second. Advance Freight and Passage Money. — It has been contended that the amount of any advance freight or passage money received by the libellant should be included in the stipulation. If the voyage was broken up by the disaster causing the loss, so that the passengers or cargo were not transported to their destination, the pas- senger or shipper would, by the American rule, which is in conformity with the law merchant, have a right to the return of the money paid in advance for transportation.^ ^ The City of Norwich, ii8 U. S. 493 (1886); s. c. sub nom. In re Petition Norwich & N. Y. Trans. Co., 17 Blatchf. 227 (1879); 8 Bened. 317 (1875); The Scotland, 118 U. S. 507 (1886); The Phestigo, 2 Flipp. C. C. 466 (1879); The City of Columbus (D. C Mass.), 22 Fed. Rep. 461 (1884). See text to notes i and 2, page 70, infra. By the Prussian law as it existed before 1862, the owner was obliged to surrender the amount of his insurance as well as his interest in the vessel. But this was changed in that year by the adoption of the Code of the Germanic Confederation. Pohls: Darstelling des Handelsrechts, vol. 3, p. 234. ^ The continental law allows prepaid freight and passage money to be recovered, if the goods or passengers are not transported to their destination by reason of disaster. Ord. de la Mar. tit. du Fret. art. 18 (Valin Comm.jvol. i, p. 661); Roccus de Nav. et Maulo, n. 80; Cleirac, Les Us et Contumes de la Mer, 42; Code du Commerce, art. 302. In the U. S. the first reference to this subject appears to have been made by Chief Justice Kent in 1808, in Watson v. Duyckinck, 3 Johns. 335' 337- " The general rule undoubtedly, is that freight is lost unless the goods are carried to the port of destination. The rule seems to go farther and to oblige the master, in case of shipwreck, to restore to the shipper the freight previously advanced." In The Kimball, 3 Wall. 37 (1865), the U. S. Supreme Court holds ac- cordingly, and Justice Field says, p. 44 : '' Freight being the compensation for the carriage of goods, if paid in advance, is in all cases, unless there is a special agreement to the contrary, to be refunded, if from any cause not attributable to the shipper the goods be not carried." The prin- ciple thus asserted represents the law in the U. S. Atwell v. Miller, 11 Md. 348 (1857); Lee v. Barreda, 16 Md. 190 (i860); Griggs v. Austin, 3 Pick. 20 (1825); Brown v. Harris, 2 Gray, 359 (1854), passage money; PROCEDURE UNDER UNITED STATES STATUTE. 6 1 It would seem to follow that in sucli a case the inonej^ whicli is thus held by the libellant should not be paid into court or included in the amount of the stipulation. It can hardly be contended that a claim for its return would be provable against the amount so paid into court. It is not a claim for loss, damage or injury incurred during the voyage, but rather a cause of action to recover the consideration for a contract which the other contracting party has failed to perform.^ Benner v. Equitable Safety Ins. Co., 6 Allen, 222 (1863), charter party- case. In The Scotland, ij8 U. S. 507 (1886), it appeared that the advance passage money was refunded in part, and in part used to forward the passengers by another vessel, and it was held that the owner was not chargeable with any portion of it. A claim for return of advance freight is not barred by abandonment proceedings, and it will not be stayed. Re Petition^ Liverpool & G. W. S. Co., 3 Fed. Rep. 168 (1880). In Wilson v. Dickson, 2 Barn. & Aid. 2, 15 (1818), it was held that "freight due or to grow due" meant the entire freight for 'the voyage, whether paid in advance or not. But this seems clear under the English act, the language of which, in this particular, differs from ours. ^ Upon this, as upon so many other points of maritime law, the rule adopted by the English courts differs from that of the continental authorities, and from that adopted in this country. Freight once paid cannot, it is held in England, be recovered back, even though the voyage be broken up, and the cargo never delivered. Byrne %k Schiller, L. R. 6 Ex. 319 (1871); Hicks v. Shield, 7 E. & B. 633 (1857); Jackson v. Isaacs, 3 Hurl. & N. 405 (1858); De Cuadra v. Swan, 16 C B. (N. S.) 772 (1864); Allison V. Bristol Marine Ins. Co., L. R. i App. Cas. 209 (1876). It has, however, come to pass, owing to the fact that most of the commerce between Europe and America is conducted in British bot- toms, that a great deal of the litigation in our Courts of Admiralty re- lates to British vessels. In no case, however, as yet, has the owner of a British vessel, who has taken proceedings in our court to limit his liabil- ity, been required to give a stipulation for an amount sufficient to cover the advance freight or passage money paid him. Freight is seldom, but passage money is almost always paid in advance. It is believed that the courts of this country will apply the American rule in such cases, and not require the British owner, in case of loss, to stipulate for a larger amount than an American owner would be re- quired to do. Freight or passage money received by him before the beginning of the voyage can hardly be described as freight then (that is at the time of the disaster) pending. 62 THE MODERN LAW OF CARRIERS. The words " freight then pending," include the earn- ings of the vessel in carrying the goods of the owners of the vessel/ The extended examination which has been given in the first chapter to the case of the Norwich Transportation Co. V. Wright, 13 Wall. 104 (1871), makes it unnecessary to do more than repeat here that in estimating the value of the owner's interest in the vessel, the period of time at which the value of the interest is to be fixed is after the tort respecting which the claim is made.* It necessarily follows that if the ship sink, and be afterwards raised, the value of the owner's interest is to be determined by ascertaining the value of the wreck when raised, and deducting therefrom the cost of raising her. And in like manner any enhancement of the value by reason of repairs put upon the vessel is not to be con- sidered in estimating the value of the owner's interest in her.^ The principles bearing on this subject are discussed in Chapter Eighth, '* The Conflict of Laws." ^ Allen V. Mackay, i Sprague, 219 (1854). ^ The time at which the value is to be determined has sometimes been stated to be " immediately after the injury." But in a case where the vessel is liable for an injury, was subsequently wrecked on the same voyage, and was abandoned to the underwriters, it was held that the limit of liability was the value of the wreck. The court points out that this necessarily follows from the language of sect. 4284, which gives the owner a right to limit his liability by a surrender, and that all claimants for injuries happening on the same voyage share in the fund. Cases where the time " immediately after the injury " has been fixed, were either cases involving only the question of subsequent additions to the value of the vessel, as by raising the wreck or repairs put upon it; or cases involving the contention that the value immediately before the injury was that by which the limit of liability must be determined. " The termination of the voyage is the point of time at which the value of the offending vessel is to be taken." When, therefore, after the injury has been done, the offending vessel puts back and is by the negligence of her navigators sunk, the voyage terminates with the sinking, and the value of the wreck is the value of the owner's interest. The Great Western, 118 U. S. 520 (1&86); The City of Norwich, 118 U. S. 468 (1886). See, also, next note. 3 The Norwich & N. Y. Transp. Co.. after obtaining the favorable PROCEDURE UNDER UNITED STATES STATUTE. 63 The rules of evidence in the Federal Courts of each District are generally the same as those in the State decision of the Supreme Court in the Wright Suit (13 Wall. 104 [1871]), filed a petition in the District Court of the United States for the Eastern District of New York to obtain the benefit of the Act of Congress as construed by the Supreme Court. Accordingly, the court made an order staying all proceedings in the other suits, and referring the matter to the clerk to report the value of the owner's interest in the vessel and her freight. Upon exceptions to his report as to value, the court say : *' Value was properly ascertained by taking what she was proved to be worth after she had been raised and deducting therefrom the expenses of raising her. Equally unfounded is the proposition that the expenses of raising the boat and the expenses of her subsequent repairs shall be added to the aforesaid value. The exceptions which claim that such expenses should have been added to the amount reported, are also over- ruled." Re Norwich & N. Y. Transp. Co., 8 Bened. 314 (1875). This case was affirmed in the Circuit Court, 17 Blatchf. 221 (1879), ^rid in the Supreme Court, sub 110771. The City of Norwich, 118 U. S. 468, 492 (1886). The court says: " If, however, by reason of the loss or sinking of the ship the voyage is never completed, but is broken up and ended by causes over which the owners have no control, the value of the ship (if it has any value) at the time of such breaking up and ending of the voyage must be taken as the measure of the owner's liability. In most cases of this character no freight will be earned ; but if any shall have been earned, it will be added to the value of the ship in estimating the amount of the owner's liability. . . If this view is correct it follows, as a matter of course, that any salvage operations, undertaken for the purpose of recovering from the bottom of the sea any portion of the wreck, after the disastrous ending of the voyage as above supposed, can have no effect on the question of the liability of the owners- Their liability is fixed when the voyage is ended. The subsequent history of the wreck can only furnish evidence of its value at that point of time. . . Having fixed the point of time at which the value is to be taken the statute does the rest. It declares that the liability of the owner shall in no case exceed the amount or value of the interest of such owner in such vessel and her freight then pending. If the vessel arrives in port in a damaged condition, and earns some freight, the value at that time is the measure of liability; if she goes to the bottom and earns no freight, the value at that time is the criterion. ... It follows from this, that the pro- per valuation of the steamer was taken in the court below, namely, the value which she had when she had sunk and was lying on the bottom of the sea. That was the termination of the voyage." The Scotland, 118 U. S. 507 (1886); The Great Western, 118 U. S. 520 (1886). In the first reported American decision upon the Statute of 1851, Watson V. Marks, 2 Am. Law Reg. 165, Judge Kane said : " It is im- possible to give effect to the fourth section of the Act of Congress un- less we suppose that in cases of affreightment, at least, the measure of his 64 THE MODERN LAW OF CARRIERS. Courts of the State of wliich the Federal District forms a part.^ It has, however, become the practice in the Federal Courts in the Southern District of New York, and pro- bably in other districts, to admit evidence of the value of sister ships, upon the hearing before the commissioner as to the value of the vessel whose owner is seeking to limit his liabilit3^ The rule is otherwise in the courts of the State of New York.^ The amount of the stipulation for the value of the owner's interest in the freight then pending is limited to the net, and not the gross, freight. That is to say, the crew's wages, port charges, and other expenses necessary to enable the owner to realize his freight monies, and which are a lien upon them, must be deducted from the (ship-owner's) liability is the value of the vessel and freight at the time of suit brought." The section referred to by Judge Kane is that in- corporated in sect. 4285, of the Revised Statutes, and relates to a trans- fer of the owner's interest to a trustee. No doubt if such a transfer should be made it would convey the vessel as she was at the time of the transfer. But as has been stated, the usual and generally preferable practice is to give a stipulation for value, and to this Judge Kane's reasoning does not apply. ^ The rules of evidence prescribed by the laws of a State are rules of decision for the U. S. Courts, while sitting within the limits of such State, under the 34th section of the Judiciary Act. Ryan v. Bindley, i Wall. 66 (1863); Owings v. Hall, 9 Pet. 607, 625 (1835); Fowler v. Hecker, 4 Blatchf. 425 (i860); Vance v. Campbell, i Black, 427 (186 1); Wright V. Bales, 2 Black, 535 (1862). But " the laws of the State are only to be regarded as rules of decision in the Courts of the United States, where the constitution, treaties or statutes of the United States have not otherwise provided. When the latter speak, they are controlling. That is to say, on all subjects on which it is competent for them to speak. There can be no doubt that it is competent for Congress to declare the rules of evidence which shall prevail in the courts of the U. S., not affecting rights of property, and where Congress has declared the rule, the State law is silent." Conn. Mut. Life Ins. Co. v. Schaefer, 94 U.S. 457 (1876); Potter v. Nat. Bank, 102 U. S. 163 (1880); King V. Worthington, 104 U. S. 44 (1881). ^ Blanchard v. N. J. Steamboat Co., 59 N. Y. 292 (1874). In that case the court say (p. 300) : " It was not competent for the defendant to prove the value of the Telegraph by showing the value of other ves- sels with which she might be compared." PROCEDURE UNDER UNITED STATES STATUTE. 65 gross freight. This would seem to follow logically from the decision that the time at which the value of the vessel is fixed is immediatel}^ after the disaster.^ No freight, except what is actually earned, is to be " added to the value of the ship in estimating the amount of the owner s liability."' Conversely whatever freight is actually earned on the voyage is to be added to the value of the ship, and will not be apportioned pro rata ituicris up to the time of the disaster.^ When the commissioner has fixed the amount which the libellant must pa}'' into court, or for w^hich he must give a stipulation, the report must be filed and notice thereof given in the usual manner. If exceptions to it are filed, they are brought to a hearing upon notice to the exceptant's proctors when the order of the court fixing the amount of the stipulation or payment into court has been made. A monition issues requiring all persons who have ^ This was so held by Judge Choate in tlie matter of the Petition of Corry & Co. (owners of the Star of Scotia), not reported (1883). It is analogous to the rule as to general average. In adjusting general average in New York, the common practice is to deduct from the gross freight one-half, as an equivalent for the crew's wages, port charges, &c. Marvin on Average, 71; Dixon on Average, 149. In The Abbie C. Stubbs, 28 Fed. Rep, 719 (1886), Judge Nelson, in his Massachusetts district, held otherwise, and refused to allow a deduc- tion for the wages expended after the collision, or for the expense of a tug in towing the vessel into port. In The Jose E. More, 37 Fed- Rep. 132 (1888), it was held that all expenses incurred after collision were to be deducted from gross freight. - The City of Norwich, 118 U. S. 468, 492 (1S86). ^ The Abbie C. Stubbs, 28 Fed. Rep. 719 (18S6). In this case it was, however, held that '• sums paid salvors for services rendered in getting the vessel off the beach, and also a contribution in general average for the cargo jettisoned " were extraordinary expenses, incurred for the preservation of the vessel and freight, as well as of the cargo, and for the common benefit after the libellants' lien had attached. Deductions on account of them were therefore allowed. " 'I'he salvage expenses are to be apportioned upon the vessel, freight and cargo in proportion to their respective values, and the shares belonging to the vessel and freight are to be deducted from the proceeds in the registry. The general average contribution, apportioned upon the vessel and freight for cargo jettisoned, is to be deducted in full."' 5 66 THE MODERN LAW OF CARRIERS. claims against the libellant by reason of the loss, damage or injury mentioned in the libel to appear and file excep- tions or answer thereto. This monition is to be served in the same way as the ordinary monition in admiralty suits in rem. On its return-day, if exceptions or any answer to the libel be filed, they are brought to a hearing in due course. If none be filed, an interlocutory decree is entered referring it to a commissioner to take proof of the facts and circum- stances stated in the libel and to advertise for claims against the libellant respecting the loss, damage or injury in the libel mentioned. In the first case of limitation of liability, which was seriously contested in the Southern District of New York, the claimants filed no answer to the libel, but contested on the hearing upon the interlocutory decree the right of the libellant to sustain the cause of action alleged in the libel. They contended that the loss of the steamer Atlantic was caused by a defective equipment, viz.: Want of a supply of coal sufficient for her voyage. It is submitted, however, as the better practice, to inter- pose such a defence as this by way of answer to the libel. The interlocutory decree proceeds on the ground that the libellant has, by entering the default of all persons who have not answered or filed exceptions, established his standing in court. In like manner in the same case, the libellant con- tested before the commissioner its liability altogether, alleging that the loss of the Atlantic was caused by a cur- rent of unusual force, the strength and direction of which could not be discovered from the ship. But the more regular way of raising this issue is by an answer denying the averment of the libel. The refer- ence to the commissioner should be simply a reference to compute. It was no doubt equitable in the case referred to, in PROCEDURE UNDER UNITED STATES STATUTE. 67 view of the novelty of the proceeding, that the time of all persons to contest the allegations of the libellant should thus have been extended. But it is believed that the practice suggested is more in harmony with that usually adopted by courts of admiralty. The report of the commissioner should fix the amount of the injury sustained by each person whose claim was in evidence before him, and should apportion the fund among the claimants in proportion to the amount of each claim. In distributing the amount for which the owners of a vessel are held to be liable in a proceeding to limit their liability, the distribution must be made solely among those who are injured by the negligence complained of. Liens for seamens' wages, money borrowed, pilotage, &c., are not entitled to payment out of this fund.^ In the English practice the plaintiffs in any suits brought against the libellant to recover for the loss, dam- age or injury in question, have the right to costs in case the question of liability is determined against the libellant. And a similar rule seems to prevail in this country. No doubt the court in which such a suit was pending would not allow it to be discontinued except on payment of costs. It may be added that costs were recovered in the actions at law, brought by all the claimants for loss sustained by the wreck of the Atlantic, who proved their claims before the commissioner.^ ^ The Maria and Elizabeth, 12 Fed. Rep. 627 (1882^; The Enter- prise, I Lowell, 455 (1870); The Linda Flor, Swabey Adm. 309 (1857). The law was so stated by Mr. Justice Bradley, delivering the opinion of the Supreme Court, in Norwich Co. v. Wright, 13 Will. 122 (187 1): ^' Liens for reparation for wrong done are superior to any prior liens for money borrowed, wages, pilotage, &c. But they stand on an equality with regard to each other, if they arise from the same cause." It must, of course, be understood that this exclusion of these liens does not affect the individual liability of the owner for the wages or other similar claim. The Linda Flor, and The Enterprise, su^ra. * Similar rulings were made in The Benefactor, 103 U. S, 245 (1880), and The Garden City, 27 Fed. Rep. 234 (1886). In Place v. The Norwich Trasportation Co., the costs taxed to the 68 THE MODERN I,AW OF CARRIERS. If exceptions are filed to this report, the}: are brought to a hearing in the usual way. When these are finally- disposed of and an order made upon the report, the money called for b}^ the stipulation, must be paid into court, and. the final decree of distribution is then entered. The 54th admiral t}^ rule of the Supreme Court provides for granting an injunction against "the further prosecu- tion of all or any suit or suits against said owner or owners in respect of any such claim or claims." In Dial v. Reynolds,^ that court says that no court of the United States, except under the bankrupt act, can grant an injunction against proceedings in a State court. This was prohibited by the act of March 2, 1793 (i Stat. 33), U. S. R. S., sect. 720. But the attention of the Supreme Court was not called to the power of the District Court, sitting in admiralty, in this class of cases, nor did the facts in Dial v. Reynolds call for so general statement. And it is believed that the petitioner in the District Court were $20 docket fee, and $20 fee on reference for each claim proved against the amount of the stipulation. The appellant in that case argued in the Supreme Court that this was- erroneous: ist. Because the petitioner did not succeed on the controversy as to its being liable at all, and 2d. Because in any case only one docket fee and one fee on reference should have been allowed. The opinion of the Supreme Court takes no notice of the point, and although the decree was affirmed, yet perhaps it may be considered that the question is open. In the Matter of the x\tlantic, not reported (Southern District of New York, 1872), only one docket fee and one fee on reference was allowed. It would seem on principle that this is more correct taxatior^ than that of the clerk in the case of The City of Norwich. The various claims presented are all in one matter. In surplus and remnant proceed- ings, it has been the practice, so far as the writer can learn, to tax only one fee, although numerous claims are presented. Were the rule other- wise, it might often happen, as it did in the case of The City of Norwich, that the amount allowed the petitioner for costs, and paid out of the fund in court, would be much more than that distributed to the various, claimants. ' 96 U. 5.340(1877). INJUNCTIONS UNDER UNITED STATES STATUTE. 69 ■'* appropriate proceedings " mentioned in section 4284 necessarily involve the granting the injunction provided for in rule 54.^ This rule is itself a more specific expression of opinion on this subject, and while it is true that the Court has in one instance'^ held that a rule previously adopted by it was unconstitutional and invalid, yet this was so ex- jceptional a case that it can hardly be expected to occur again. It is clear that if no such injunction could be granted the provisions of the act would, in many cases, be inope- rative. Judgments might be recovered at law and collected before a decree in Admiralty could be obtained, which would be pleadable in bar in the action at law. The prac- tice in Admiralty in this class of cases has uniformly been to grant such injunctions. If a suit against the owner for damages caused by the collision or other injury in question is pending in a State court, or at law in the Circuit Court, it would be unsafe to allow the suit to proceed to judgment before commenc- ing proceedings in Admiralty to limit the owner's liabil- ity. This would then be res adjiidicata^ and the judg- ment in the State court would be entitled, under art. IV, sect. I, of the Constitution of the United States, and sect. 905 of the U. S. Revised Statutes, passed in pursuance therewith, to " have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." It is clear that in any State of this Union the ^ Sect. 720 of R. S. prohibiting injunctions against State courts, if it would apply to admiralty proceedings, is limited by sect. 4285, which provides that "all suits for such damage shall cease." The Oceanus, 6 Benedict, 258 (1872); Prov. & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. 8.578(1883). 2 Ex parte Garland, 4 Wallace, iZZ (^867). The admiralty rules in (juestion were held to be valid in Providence & N. Y. S. S. Co. v. Hill Mfg. Co., supra. 70 THE MODERN LAW OF CARRIERS. judgment of a Court of Record would be conclusive as to tlie extent of tlie liability of the person against whom it was rendered/ It is therefore expedient in all cases where suits at law have been commenced against the owner of a vessel, and he is entitled to avail himself of the provisions of law limit- ing his liability, and is desirous at some time of so doing, that he should obtain an injunction from a District Court of the United States against the prosecution of such ac- tion at lav/. It is in the discretion of the court in which the pro- ceeding is pending, to charge the owner with interest, b}*- way of damages, upon the value of his interest in the ship and freight. This is true, even in a case where the owner actually received in cash the value of this interest, long before the period when he paid it into court. ^ It is submitted, however, that the Circuit Court in this instance did not charge the owner with interest, owing to the novelty of the questions involved, and the uncertainty which had prevailed as to the practice, and that hereafter interest would probably be charged against the owner, from the time the proceeds of his interest in the ship and freight came into his hands. lVhe7i the abandonment may be made. — The owner ' The question of negligence, if determined in the first instance, up- on a libel against the offending vessel, becomes res adjudicata, and can- not be reopened upon a proceeding to limit her owner's liability. The Maria and Elizabeth, 12 Fed. Rep. 627 (1882). - The Scotland, 118 U. S. 507 (1886). The usual practice in the English courts is to allow interest in such cases. African Steamship Co. V. Swanzy, 25 L. J. N. S. Ch. 870 (1856); General Iron Screw Collier Co. V. Schurmanns, 29 L. J. N. S. Ch. 877 (i860) ; Nixon v. Roberts, 30 L. J. N. S. Ch. 844 (1861); Straker v. Hartland, 34 L. J. N. S. Ch. 122 (1865); Smith V. Kirby, L. R. i Qu. B. Div. 131 (1S75V; The Sisters, 2 Aspinall's Maritime L. C N. S. 589 (1875); The Northumbria, L. R. 3, Ad. & Ec. 6 (1869). In The Jose E. Moore, 37 Fed. Rep. 132 (1888), interest was al- lowed from the date of the District Court judgments. So it was in The Manitoba, 122 U. S. 97 (1887). SURRENDER UNDER UNITED STATES STATUTE. 7 1 may offer to surrender his interest in the vessel and her freight, or give a stipulation for their value, and thus take the. benefit of the law limiting his liability to such value, at any time before the entry of the final decree against him, in any District Court of the United States. He may also do so during the pendency of an appeal to the Circuit Court from a final decree against him in the Dis- trict Court.^ It is not necessary that the owner should take affirma- tive proceedings in Admiralty to limit his liability. The rules on this subject enable him to bring all parties hav- ing claims against him before the court in one proceeding. But "where all the parties injured are represented as li- bellants or inten^enors in the cause, an answer setting up the defense of limited responsibility is fully adequate to give the ship-owners all the protection which they need." ^ ^ The French law is the same, but the French courts hold that such an abandonment comes too late after an appeal has been taken to the Court of Cassation, which is the French tribunal corresponding most nearly to the Supreme Court of the United States. Journal du Palais, vol. 9, tit. Navire, sects. 301-304. Ibid, Table Complementaire, vol. i, p. 118, sect. 32. * The Scotland, 105 U. S. 24 (1882); revg. s. c. sub nom. Dyer v. National Steam Nav. Co., 14 Blatchf. 483 (1878). In this case that portion of the answer which it was held was suf- ficient to set up the defense was as follows: ''Respondents, further answering, say that said steamer Scotland was by said collision sunk and destroyed, and that there is no liability in personam against these re- spondents for said loss of The Kate Dyer." This overrules The Maria and Elizabeth, 11 Fed. Rep. 520 (1882), so far as it is inconsistent. It does not appear in that report whether the defense under the Act of Congress was set up in the answer. And it does appear in the report of the same case on a later hearing (12 Fed. Rep. 627 [1882J), that the libtllant contended that the loss was incurred with the privity or knowledge of one of the owners. It has been held that the answer in a suit at law setting up limited liability proceedings must allege the surrender of the ship or a stipulation for its value, or else its total loss. Feldman v. De Nederlandsche, &:c. Co., City Court of N. Y., Daily Register, Sept. 20, 1884. Such a surrender or its equivalent is necessary where there are many claimants, and it is desired to restrain them from proceeding with their several suits. But in The Great Western, 118 U. S. 520 72 THE MODERN LAW OF CARRIERS. In such case "it will be sufficient if the amount is paid after the trial of the cause and the ascertainment of the amount of liability in the decree. Pa3'ment and sat- isfaction of the decree will be a discharge of the OM^ner as against all creditors represented in the decree.^ The surrender of the owner s interest ma}^ be made, and he may take the benefit of the limitation of liability provided by law, although he has previoush^ abandoned the vessel and freight to the undenvriters.~ This seems, at first, anomalous, but is justified by the French authorities for the reason that the lien in Admir- alty of all persons having claims against the ship and freight continues to bind both, even after they are trans- ferred to a bona fide vendee,^ and the insurer, therefore, re- ceives the transfer of the owner's interest, subject to the right of the owner to surrender them in discharge of his liability for any loss, damage or injury caused by the ship or her navigators without his privity. In The Great Western* the Supreme Court arrived at (1886); affg. s. C. sub nom. Thommessen v. Whitwill, 21 Blatchf. 45; 12 Fed. Rep. 891 (1882). the court say (p. 525): "The answer, as originally framed, set up the defense that the lia- bility of the respondent was limited to the amount or value of his in- terest in The Great Western and her freight upon the voyage, and averred that that interest was of no value. The issue being thus raised, the respondent was entitled to have the decree against him in that cause limited to the amount which should be shown, by the proofs on the trial, to be the value of said steamer and freight at the termination of the voyage. He did not need to make any surrender or attempt at a surrender. A surrender of the vessel, or payment of her proceeds, or value, into court would have been necessary in order to bring other creditors into concourse with the libellants; but for the mere defense of that cause it was not necessary." 1 The City of Norwich, 118 U. S. 468, 503 (1886); The Great Western, 118 U. S. 520 (1886); affg. s. c. sub notu. Thommessen v. Whitwill. 21 Blatchf. 45 (1882). 2 This is the French law. Journal du Palais, vol. 9, title Navire, sect. 210 ; Thommessen v. Whitwill, 12 Fed. Rep. 891 (1882). ' Sheppard v. Taylor, 5 Pet. 675. 712 (1831) ; The Rebecca, Ware 187, 212 {1831). * 118 U. S. 520 (1886). THE UNITED STATES STATUTE. 73 the same conclusion, but by a different process of reason- ing. The limitation of liability under the United States Statute does not depend upon the surrender by the owner of his interest. He may, instead, pa}^ its value into court, and in that case what he does or has done with his interest, itself, in the ship and freight, is immaterial. If, at the conclusion of the proceedings, it should ap- pear that the total amount of the claims proved and al- lowed is less than the value of the vessel, the jurisdiction of the court will not thereby be ousted, provided the amount of the claims was for more than her value. ^ It has been more common, in proceedings to limit the liabilit3'- of owners, to give a stipulation for the value of the interest of the owner in the abandoned vessel. But in some cases the alternative of the statute has been fol- lowed, and a conveyance has been made to a trustee ap- pointed by the court. This, as has been shown, is strictly analogous to the practice in the Continental courts. The first point to be considered is the citizenship of the trustee. Most nations require that the title to their own ships should be held by citizens of the country to which the ship belongs. If the wreck abandoned is a British ship, the trustee must be a British subject; if it be an Ameri- can ship, the trustee must be an American citizen. It is usual to require the trustee to give a bond for the faithful discharge of his duty, in a sum to be fixed by the court. He should, after his appointment and qualification, pro- ceed, with reasonable diligence, to sell the vessel. The same may be at auction or at private sale, as the court may direct. The marshal is not entitled to a commission 1 Briggs V. Day, The H. W. Hills, 21 Fed. Rep. 727 (1884). In this case Judge Brown says: "There may also be other claims hereafter pre- sented." This could only happen if the court should reopen the case to allow additional claims to be proved. Ordinarily the claims not pre- sented within the time fixed bv the court are liarred. See The Garden City, 26 Fed. Rep. 766 (t886).' 74 THE MODERN LAW OF CARRIERS. on the proceeds of such sale, but if the proceeds are paid into court, the clerk is entitled to a commission on the proceeds, even though the liability of the owner be con- tested.' ' The Vernon, 36 Fed. Rep. 113 (i PART II. LIMITATION OF LIABILITY BY CONTRACT. CHAPTER IV. THE RIGHT OF THE CARRIER TO LIMIT HIS LIABILITY BY CONTRACT, AND BY RULES AND REGULATIONS OF HIS OWN, AS AFFECTED BY PUBLIC POLICY. INTRODUCTION. The same experience of the injustice, in many cases caused by the extreme liability imposed upon common carriers both by the common and the civil law, which gave rise to the limitations of the law merchant, so far as car- riers by sea were concerned, was the origin of numerous attempts by carriers on land to limit their liability through the medium of notices and contracts. Lines of transporta- tion for freight and passengers became more numerous, and it was claimed that the business could not be conducted at reasonable rates, unless some limitation could be placed upon this liability, which was, to almost all intents and purposes, that of an insurer. At first the courts were in- clined to admit the right of the carrier to limit his liability by a mere notice.^ But carriers speedily made an unreason- able use of the latitude thus afforded, and the language of their notices became so broad as practically to leave little responsibility of any sort. The natural result of this was, /• Covington ?;. Willan, Gow, 115 (1819); Peek v. North Staffordshire R. Co.. 10 House of Lords Ca. 473 (1863). 76 THE MODERN LAW OF CARRIERS. that the right to restrict their liability at all came to be disputed, and in several reported decisions it was held that the liability of the carrier was created by law and could not be modified or diminished by either notice or contract. But these cases were finally upon more mature considera- tion modified, and the courts both in England and America, both State and Federal, determined that the liability of the carrier could be to a certain extent limited by contract be- tween himself and the shipper or the passenger, but that a mere notice from the carrier would not have this effect.^ In some cases it has been held that a notice assented to by the shipper would constitute a contract. These will be considered in the tenth chapter. A certain limited scope has also been allowed by the ^ N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U.S. 344 (1848); Dorr V. N. J. Steam Nav. Co., 11 N. Y. 485 (1854). These two cases were suits for goods destroyed by fire on the Steamer Lexington. The latter case reversed s. c. 4 Sandf. S. C. R. 136 (1850), and over- ruled Gould V. Hill, 2 Hill, 623 (1842); Hollister z'. Nowlen, 19 Wend. 234; Cole V. Goodwin, Ibid, 251 (1838) ; Reno v. Hogan, 12 B. Monr. (Ky.) 6^ (1851); s. c. 54 Am. Dec. 513; Farmers & Mechanics' Bank v. Champlain Transportation Co., 23 Vermont, 186 (1851); Farnham v. Camden & Amboy R. R., 55 Penn 53 (1867). The following extract from the opinion in Derwort v. Loomer, 21 Conn. 244 (185 1), will illustrate some of the causes that led to the deci- sions stated in the text. " It is no apology that freight is put upon these stages, as in this case, under public or any other notices. The liability continues the same. Nor is it any apology that stage proprietors and their drivers are accustomed to load stages with passengers and freight, notwithstanding the state of the roads, until nothing more can be crowded within or accumulated on the top. It is high time that the law on this subject should be better understood and regarded, and that such unpardonable liberties should cease to be taken, by persons who stipu- late to carry passengers safely, and without exposure. Converting coaches into freight wagons to transport iron and well nigh everything else, is the last innovation upon the rights of the traveling community, and it is one which we do not intend to sanction or countenance." Transportation Co. v. Newhall, 24 111. 466 (i860); Lewis v. N. Y. Sleep- ing Car Co. & Wing v. Same, 143 Mass. 267 (1886). In this case it was held that a notice posted in a sleeping car that the company would not be responsible to passengers for valuables, was of no avail as a defense, and the company was held liable for a " reasonable amount of money for traveling purposes stolen from the travelers' clothing while asleep." The notice was not seen by the plaintiffs. LIABILITY FOR DEFECTIVE EQUIPMENT. 77 courts to rules and regulations made by the carrier re- specting the conduct of his business. The cases on this subject will be considered in the seventh chapter. With these limitations, the rule that a carrier can limit his liability b}^ contract only is well established. The next question of importance that arose for deter- mination was, whether it was lawful to make a contract exempting the carrier from liability for negligence, either his own or that of his servants. To an examination of this question the remainder of this chapter will be devoted. SECTION I. PERSONAL NEGLIGENCE. DEFECTIVE EQUIPMENT. A contract by which it is agreed that the carrier shall not be liable for his personal negligence, is unreasonable and invalid.^ The carrier may and generally does act by 1 Keefe v. Boston & Albany R. R. Co., 142 Mass. 251 (1887)7 Welsh V. Pittsburgh, Fort Wayne & Chicago R. R., 10 Ohio St. Rep. 65 (1859). In this case the special contract which was for the transporta- tion of live stock, expressly provided that the carrier should not be liable for the unsafe condition of the doors of its cattle cars. This agreement was signed by the owner. The doors of the cattle cars were defective, they gave way while the train was in motion, the cattle fell out and were injured. It was held that the carrier was liable, and that the clause to the contrary was void. It is true that in this case the owner observed the dangerous condition of the doors, and called the attention of the carrier's agent to it. The latter promised to have them repaired. This oral agreement, however, was before the written contract was signed, and clearly was merged in the latter. The evidence on this subject was only admissible to rebut the presumption of concurrent negligence, that might have arisen from the proof as to the shipper's knowledge of the dangerous condition of the doors. Hawkins v. Great Western R. R., 17 Mich. 57 (1868). In this case the contract provided for exemption from liability for the negligence,. " gross, or culpable or otherwise, on the part of the railway company's agents or officers." The court held that this did not exempt from liability for damages caused by a defective car. In Smith v. N. Y. Cen- tral R. R., 24 N. Y. 222 (1862), it was held that a contract exempting the carrier from liability for personal injury, "from whatever cause," sustained by a drover accompanying cattle, did not relieve the carrier from liability for the drover's death, which was caused by the use of an unsafe and unsuitable car. It is true that in this case, under the rule laid down by later decisions, the language of the agreement was not 78 THE MODERN LAW OF CARRIERS. agents, and in tlie case of a corporation always must do so. But nevertheless there is such a thing as negligence im- putable to the carrier, whether a corporation or not, as distinguished from the negligence of its agents. For example, a railroad company is bound to provide a road-bed, rails, ties, engines, cars, and appliances of all kinds, of the best character and description that can reasonably be pro- cured, and that are by other railroad companies recog- nized as desirable and proper to be used. It is not bound to try experiments, but it is bound to keep up with the process of invention, as tested by experience, and if its agents fail to fulfill the duty thus devolved upon the carrier, the breach of this duty is treated as the carrier's personal negligence.^ broad enough to cover the negligence, even of an agent. Mynard v. Syracuse, &c., R. R. Co., 71 N. Y. 180 (1877). But the court do not put the decision in the Smith case upon this ground but on that already stated. In Indianoplis, Bloomington & Western R. R. v. Strain, 81 111. 504 (1876), it was held that the carrier was liable for injuries to live stock caused by their escaping from a defective car, beyond the terminus of the carrier's road. The special contract provided that the carrier should not be liable for injuries beyond such a terminus, but the court refused to construe this so as to exempt from liability for injuries caused by its own defective car. In England a stipulation exempting a carrier from injuries caused by a defective car was held to be unreasonable and invalid. McManus v. Lancashire & Y. R. Co., 4 H. & N. 327 (1854); Gregory v. West Mid- land Co., 2 H. & C. 944 (1864) ; Contra, Chippendale v. Lancashire and Yorkshire R. Co., 15 Jur. 1106; s. c 12 L. J. Q. B. 22 (1851). In 111. Cent. R. R. Co. v. Haynes, 6;^ Miss. 485 (1886), it was said a shipper could only demand suitable, safe, and sufficient shipping, not the best in use. 1 Hall V. Conn. River Steamboat Co , 13 Conn. 326 (1839); TuUer V. Talbot, 23 111. 357 (i860); Pittsburgh. C- & St. L. R. R. v. Thompson, 56 111. 138 (1870); St. Louis & S. E. R'y Co. v. Dorman. 72 111. 504 (1874); R"y Co. V. Hamilton, 76 111. 393 (1875); Same v. Durkin, 76 111. 395; Indianapolis, B. & W. R'y Cc. v. Strain, 81 111. 504 (1876); Mc- Donald & Wife V. Chicago & N. W. R'y Co., 26 Iowa, 124 (1868); In- galls V. Bills, 9 Met. (Mass.) i (1845); McElroy v. Nashua & Lowell R. R., 4 Cush. (Mass.) 400 (1849); Warren v. Fitchburg R. R., 8 Allen (Mass.). 227 (1864); Smith v. New Haven & Northlmmpton R. R., 12 Ibid, 531 (1866); Simmons z/. New Bedford, etc., Steamboat Co., 97 Mass. 361 (1867); Dunn V. Grand Trunk R. R. Co., 58 Me. 187 (1875); Beard v. RIGHT OF THE CARRIER. 79 The litigation on this topic has often arisen in that numerous class of cases in which employers, whether car- Conn. & Pass. R. R. Co., 48 Vt. loi (1875); Smith v. N. Y. Central R. R. Co., 24 N. Y. 222 (1862); Steinweg v. Erie R'y> 43 N. Y. 123 (1870); Benzing v. Steinway, loi N. Y. 547 (1886); Bevier v. Delaware &: Hudson Canal Co., 13 Hun {N. Y.), 254 (1878); Potter v. Sharp, 24 Hun (N. Y.), 179 (1881); Indianapolis, &c.. R. R. v. Horst, 93 U. S. (3 Otto) 291 (1876); Steamboat " New World " v- King, 16 How. (U. S.) 469 (1853); The Rover, zi Fed. Rep. 515 (1887), S. D. of N. Y. In Smith V. British & N. A. R. M. S. P. Co., 86 N. Y. 408 (1881) ; affg. s. c. 46 N. Y. Superior Ct. 86 (1880), the plaintiff was a steerage passenger in one of defendant's steamships. She had a berth in a section built in two tiers. The tiers were defectively constructed and the upper tier fell in the night. The fail and screams of those occupying the berths so alarmed plaintiff that she became helpless. In this condition she was removed from her berth and placed upon her feet. Being unable to help herself she was thrown by the roUing of the ship against an open door and injured. It was held by a divided court that the defective construction of the berths was the real cause of the injury, and that the defendant was therefore liable. In Indianapolis, &c., R. R. v. Horst, 93 U. S. (3 Otto) 291 (1876), the plaintiff was injured while traveling on a freight train in charge of cat- tle. The court say: "Life and limb are as valuable, and there is the the same right to safety in the caboose as in the palace car. The rule is uniformly applied to passenger trains. The same considerations apply to freight trains; the same dangers are common to both. There is no reason in the nature of things why the passenger should not be as safe upon one as the other, with proper vigilance on the part of the carrier. We do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from any possible peril, nor such as would drive the carrier from his business. " It does not, for instance, require steel rails and iron or granite cross- ties, because such ties are less liable to decay, and hence safer than those of wood; nor, upon freight trains, air brakes, bell pulls, and a brakeman upon every car; but it does emphatically require everything necessary to the security of the passenger upon either, and reasonably consistent with the business of the carrier, and the means of conveyance employed." s. p., Louisville & Nashville R. R. Co. v. Oden, 80 Ala. 38 (1885). A shipper can only demand " suitable, safe, and sufficient " cars and equip- ment, not the ''best and most improved in use." Illinois Cen. R. R. Co. V. Haynes, 63 Miss. 485 (1886). So where canvass and matting were ordinarily used indifferently as a packing, the canvass being the best, if the carrier use matting he does so at his peril, and is liable if injury is caused by its insufificiency. He is bound to use the best ordinary means. Hill v. Mackill, 36 Fed. Rep. 702 (1888). The rule stated in Weston v. N. Y. Elevated R. R. Co., 73 N. Y. 595 (1878), that "the defendant is not bound to keep its platform in such con diiion that it is impossible for passenger to slip, but in such a condition that person using ordinary care which people use when not apprised of 8o THE MODERN LAW OF CARRIERS. riers or not, have claimed a defense under the rule that an employer is not liable to one workman for injuries sus- tained by the negligence of a fellow workman. It does not fall within the scope of this work to give a detailed analysis of these cases. But the principle which underlines them all is this — An employer owes a duty to his employe to furnish safe appliances for the work he is- engaged to do. The omission of this duty is negligence. Whether the employer undertakes to discharge it in person or deputes it to some one else, is immaterial so far as his common law liability is concerned. In either case, the omission is the employer's personal negligence, and he is liable for all damages resulting from it.^ danger," was approved, but said to be too stringent for the case before the court where the carrier had not had reasonable opportunity to remove sleet which had formed on the steps of the car. Palmer v. Penn. R. R. Co., Ill N. Y. 488 (1888); reversing s. c 4 N. Y. State Rep. 888- (1886). So, it being conceded that there is an implied warranty of the carrier by water that his vessel is seaworthy, it was said in Bell v. Read, 4 Binn_ (Penn.) 127 (1810), that a vessel need only be fit for the service she undertakes. The rule stated in the text was extended to cars on a train provided by an independent car company, and for using which an extra fare wa.s- charged, and it was held that for a defect in such a car the carrier was- liable. Penn. Co. v. Roy. 102 U. S. 451 (1880). ^ Laning v. N. Y. C. R. R. Co., 49 N. Y. 521 (1872); Chapman v. Erie R. R., ist Thomps. & Cook (N. Y.), 529 (1873); DeGraff v. N. Y. C. & H. R. R. R., 3 Thomps. & Cook (N.Y.), 255 (1874); Siger j;. Syracuse,. B. & N. Y. R. R. Co., 7 Lans. (N. Y.) 67 (1872); Baulec v. N. Y. & Harlem R. R., 59 N. Y. 356 (1874); Randolph v. Bost. & Albany R. R., 5 Weekly Digest, 150 (1877); Booth v. The Same, 73 N. Y. 38 (1878); Stevenson v. Jewett, 16 Hun (N. Y.), 210 (1878); Eagen 7\ Tucker, 18. Ibid, 347 (1879); Harvey v. N. Y. C. & H. R. R. R., 19 Ibid, 556 (1880); Jones V. The Same, 22 Ibid, 284 (1880); Painton ?'. Northern Central R. R. Co., 83 N. Y. 7 (1880); Fuller v. Jewett, 80 N. Y. 46 (1880); Kain V. Smith, 80 N. Y. 458 (1880); same case, 89 N. Y. 375 (1882). In Ellis V. N. Y., Lake Erie & W. R. R., 95 N. Y. 546 (1884), it was held that if the cause of the accident was partly the omission of the carrier to pro- vide suitable appliances (in this case a buffer) and partly the negligence of the co-servant, the company is still liable. Huntingdon & Broad Top R. R. Co. V. Decker, 84 Penn. St. 419 (1877); Baker v. Alleghany Valley R. R. Co.,95/W, 211 (1880); Cayzerz;. Taylor, 10 Gray (Mass.), 274(1857); Paulmier, Adm'r 7'. Erie R. R., 5 Vroom (N. J.), 151 (1870); Coombs v. DEFECTIVE EQUIPMENT. Si For this reg-son the rule stated in the beginning of this chapter must be considered as resting on a solid founda- tion of principle. And it is analogous to that of the law- merchant, adopted by the United States, that the carrier's right to discharge himself from liability by abandoning his interest in ship and freight does not extend to cases where the loss is caused by his privity or personal negli- gence. Cases have occurred in which the carrier provided suitable means of transportation, but his servants negli- gently omitted to use these and employed others which were unsuitable for the use of the particular kind of freight to be transported ; as, for example, using a grain and lum- ber car, the door of which was insecure, for the transpor- tation of live stock. The contract provided that the car- rier should not be liable for the negligence of his servants, and the validity of the exemption was sustained.^ Whether the distinction taken in this case will be ap- proved in other States, does not yet appear. But the general rule stated at the beginning of this section is established not only in those States in which no contracts of exemption from negligence are held to be valid, but in other States, and it is sustained by the weight of authority New Bedford Cordage Co., 102 Mass 572 (1869); Ford v. Fitchburg R. R. no Ibid, 240 (1872); Holden v. The Same, izg Ibid, 268(1880); O'Connor v. Adams, 120 Ibid, 427 (1876); Chicago & N. W. R. R. Co. V. Swett, 45 111. 197 (1867); Camp Point Mfg. Co.?'. Ballon, 71 Ibid, 417 (1874); T. W. & W. R'y Co. V. Fredericks, Ibid, 294 (1874); Fairbank v. Haentzche, 73 Ibid, 236 (1874); Chicago & Great Eastern R. Co. v. Harney, 28 Ind. 28 (1867). The soundness of the distinction stated in text is denied in Illinois Central R. R. Co. v. Read, 37 111. 484 (1865), and Gulf, C & S. F. R. Co. v. McGown, 65 Texas, 640 {1886), in both of which cases it was held that there was no distinction in the grade of corporate agents so far as the liability of the corporation was concerned, and that however subordinate the agent, his negligence was that of the corporation itself. Stipulations for exemption from liability therefore were held invalid. ^ Wilson V. N. Y. C. & H. R. R. R., 97 N. Y. 87 (1884). 6 82 THE MODERN LAW OF CARRIERS. in England, where the validity of such contracts generally is upheld.^ SECTION II. LAWFULNESS OF CONTRACT FOR EXEMPTION FROM LL\BILITY FOR NEGLIGENCE OF THE CARRIER'S SERVANTS. Let US now assume that the carrier has in all respects fulfilled the obligation thus devolved upon him. His ship, we will say, is constructed by skillful builders. She has every security against danger that experience has ap- proved. Her of&cers and crew are men of skill, trusty and experienced. This certainly is all the carrier can do. Why, then, may he not lawfully stipulate by express con- tract that if these agents, in whose selection he has used diligence and prudence, beti^ay their trust, and are care- less or wicked, the carrier should not be liable ? Yet in a majority of the States of this Union such a contract of exemption is held to be against public policy, and therefore void. This is the rule in all the Federal Courts.^ 1 Tattersall v. The National S. S. Co., Limited, L. R. 12 Q. B. D. 297 (1884). This was a shipment of cattle under a bill of lading containing the following clause: "These animals being in sole charge of shippers' servants, it is hereby expressly agreed that the ship owners, or their agents or servants, are, as respects these animals, in no way responsible, either fur their escape from the steamer or for accident, disease or mortality, and that under no circumstances shall they be held liable for more than ;^5 for each of the animals." The ship had previously carried diseased cattle and the loss arose from contagion communicated in consequence of her having been insufficiently cleaned. Held that the defendant was liable notwithstanding the exception in the bill of lading because the ship was not reasonably fit for the carriage of the cattle. The question as the evidence from which a jury may properly infer defective construction of an engine is considered in Tanner v. N. Y. Cent. & H. R. R. R. Co., 108 N. Y. 623; s. c. 15 North East. Rep. 379 (1888). 2 New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 344 (1848); Phila. & Reading R. R. Co. v. Derby, 14 Ibid, 468 (1852); Steamboat "New World" et al. v. King, 16 Ibid, 469 (1853); York Company v. Central Railroad, 3 Wall. 107 (1865); Walker v. The NEGLIGENCE OF CARRIER'S SERVANTS. 83 The rule is the same in many of the State Courts.* Transportation Company, Ibid, 150 (1865); Express Co. v. Kountze Bros., 8 Ibid, 342 (1869); Railroad Company v. Lockwood, 17 Ibid, 357 (1873); Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174 (1876). In the last case a stipulation that the express company was not to be li- able for loss by fire, did not exempt the company from liability for damage by fire caused by the negligence of the servants of the railroad which had contracted with the express company to transport the goods. The court held the stipulation to be invalid on the ground that it was against public policy to sustain any exemptions from liability for negli- gence, under any circunistances. The Montana, 129 U. S. 397 (1889); affg. s. c. 22 Blatchf. 372 (1884); 17 Fed. Rep. 377 (1883); reported in Supreme Court, sub nam. Liverpool & G. W. Steam Co. v. Phenix Ins. Co.; Inman v. South Carolina R. Co., 129 U. S. 128 (1889); The City of Norwich, 4 Bened. 271 (1870); Rintoul z;. N. Y. Central & H. R. R. R., 17 Fed. Rep. 905 (1883); Earnest v. Express Co., i Woods, 573 (1873). But these courts permit a carrier to insure against the negligence of his servants, and also hold valid a contract with the shipper that the carrier shall have the benefit of the insurance. Phoenix Ins. Co. v. Erie Trans. Co., 117 U. S. 312, 324 (1885). ^ Alabama. — Cent. R. R. & Banking Co. v. Smitha, 85 Ala. 47; s. c 4 So. Rep. 708 (1888); Steele v. Townsend, 37 Ala. 247; s. c. i Ala. Sel. Ca. 201 (1861); Louisville & Nashville R. R. Co. v. Oden, 80 Ala. 38 (1885); Southern Express Co. v. Crook, 44 Ala. 468 (1870); South & N. Ala. R. R. Co. v. Henlein, 52 Ala. 606 (1875); Ala. G. S. R. R. Co. v. Little, 71 Ala. 611; s. c 2 Ala. Law Journal, 141 (1882); Alabama G. S. R. R. Co. V- Thomas, 83 Ala. 343; s. c. 3 So. Rep. 802 (1888). Arkansas.—Little Rock, M. R. & T. R. Co. v. Talbot, 39 Ark. 523 (1882). California. — In this State it was held that an express company was liable for the negligence of the employes on a steamboat not belonging to nor managed by the express company, but which transported goods for it, although the contract with the shipper stipulated that the express corflpany should not be liable "except as forwarder." Hooper z;. VVells. 27 Cal. II (1864). Delaware.— Flinn v. Phila., Wil. & Bait. R. R. Co., i Houst. 469 (1857). Georgia. — Berry, ct al. v. Cooper & Boykin Exrs., 28 Ga. 543 (1859); Georgia R. R. v. Gann, 68 Geo. 350 (1882). Illinois. — Boscowitz v. Adams Ex. Co., 93 111. 523 (1879). But see 111. Cent. R. R, Co. v. Jonte, 13 Bradwell, 424 (111. App. 1883), and cases cited; and see note i, p. 86, post. Indiana. — Evansville & C. R. R. Co. v. Young, 28 Ind. 516 (1867); Michigan S. & Northern Indiana R. R. Qo.v. Heaton, 37 /^^/V/, 448 (187 1); Adams Express Co. v. Fendrick, 38 Ibid, 150 (1871); Indianapolis, P. & C. R. R. V. Allen, 31 Ibid, 394 (1869); Mich. S. & N. I. R. R. v. Heaton, Ibid, ^g-j, note (1869); Ohio & Miss. R. R. 7j. Selby, 47 Ibid, 471 (1874). These cases overrule the earlier decisions in that State. Wright v. Gaff, ef al., 6 Ind. 416 (1855); Indiana Central R. R. v. Mundy, 21 Ibid, 48 (1863). The last was a case of a passenger traveling on a free pass, 84 THE MODERN LAW OF CARRIERS. lu analogy to the rule thus stated, it is held in some States that a carrier cannot lawfully stipulate with its who had contracted that the carrier should not be liable for injuries caused by the negligence of its servants. Held, that such agreement did not cast upon such passenger any risks arising from the gross, or from any, negligence of the servants of the company. Thayer v. St. Louis, Alton & Terre Haute R. R., 22 Ibid, 26 (1864). Kansas. — St. Louis, K. C. & N. R. Co. v. Piper, 13 Kans. 505 (1874); Kallman v. U. S. Ex. Co., 3 Ibid, 205 (1865). Kentucky. — Louisville & Nashville R. R. Co. v. Brownlee, 14 Bush, 590 (1879); Orndorff v. Adams Express Co., 3 Bush, 194(1867); Reno V. Hogan, 12 B. Monr. 63 (185 1). Louisiana.— N. O. Mut. Ins. Co. v. N. O., Jackson & G. N. R. R. Co., 20 La. Ann. 304 (1868). But see note i,post, p. 86. Maine. — Sager v. Portsmouth, S. & P. & E. R. R. Co., 31 Me. 22S (1850). Massachusetts. — School Dist. v. Boston, Hartford & Erie R. R. Co., 102 Mass. 552 (1869); Lewis v. N. Y. S. C. Co., 143 Mass. 267 (1887). In this case there was a sign that sleeping-car company would not be liable, but the court said, as plaintiff did not see it, defendant could not take advantage of it. But see Hill v. Boston, Hoosac Tunnel & W. R. R. Co., 144 Mass. 284 (1887), where a stipulation as to value was held good- in spite of negligence of the carrier. Minnesota. — Shriver v. Sioux City «S: S. P. R. R. Co., 24 Minn. 506 (1878); Christenson v. Am. Ex. Co.. 15 Minn. 270 (1870). Mississippi. — Whitesides v. Thurlkill, 20 Miss. 599 (1849); Southern Express Co. v. Moon, 39 Miss. 822 (1863). Missouri. — Levermg et al. v. Union Transp. & Ins. Co., 42 Mo. 8S (1867); Snider v. Adams Ex. Co., 63 Mo. 376 (1876); Lupe v. Atlantic & P. R. R., 3 Mo. App. 77 (1876); Kirby v. Adams Ex. Co., 2 Mo. App. 369 (1876); Dawson v. Chicago & A. R. R., 79 Mo. 296 (1883); Carroll V. Mo. Pacific Ry. Co., 88 Mo. 239 (1885). Nebraska. — The Constitution of Nebraska (1875) provides that "The liability of railroad corporations as common carriers shall never be limited." A railroad company which operates a line of railroad in that State, although not incorporated under its laws, is subject to this restriction, and cannot make a valid agreement to limit its liability. Missouri Pac. R. R. v. Vandeventer, 3 Law. Rep. Ann. 129; s. c 41 N. W. Rep. 998 (1889). North Carolina. — A clause in a receipt permitting carrier to trans- port at his own convenience does not exempt him from liability for un- reasonable detention of the goods; it is against public policy and the statute. Branch v. Wilmington & W. R. R. Co., 88 N. C 573 (1883). Ohio. — Jones v. Voorhees, 10 Ohio, 145 (1840); Davidson v. Gra- ham, 2 Ohio St. 131 (1853); Graham & Co. v. Davis & Co., 4 Ibid, 362 (1854); Wilson V. Hamilton, Ibid, 722 (1855); Welsh v. P., Ft. W. & C. R R. Co., 10 Ibid, 65 (1859); Cleveland. P. & A. R. R. Co. v. Curran, 19 Ibid, i (1869); C, H. & D. & D. & M. R. R. Co. v. Pontius, Ibid, 221 (1869); Knowlton v. Erie R. Co., Ibid, 260 (1869). NEGUGENCE OF CARRIER'S SERVANTS. 85 'employees, at the time and as part of their contract of employment, that the carrier shall not be liable for in- juries caused to them b}^ the carelessness of other em- ployees.^ Oregon. — Seller v. The Pacific, i Oreg. 409 (1861). Pennsylvania. — Laing v. Colder, 8 Penn. 479 (1848); Camden v. Amboy R. P. Co. v. Baldauf, 16 Ibid, 67 (1851); Penn. R. Co. v. Mc- Closkey, 23 Jbid, 526 {1854); Goldey v. Penn. R. R. Co., 30 Ibid, 242 (1858); Powell V. Penn. R. R. Co., 32 Ibid, 414 (1859); Penn. R. R. Co. V. Henderson, 51 Ibid, 315 (1865); Farnham v. Camden & Amboy R. R. Co., 55 Ibid, 53 (1867); American Express Co. v. Sands, Ibid, 140 (1867); Penn. R. R. Co- v. Butler, 57 lb. 335 (1868); Empire Transp. Co. V. Wamsutta Oil Refining and Mining Co., 63 Ibid, 14 (1869); Gro- gan V. Adams Ex. Co., 114 Ibid, 523 (1886). Texas.— Mo. P. Ry. Co. v. Cornwall, 8 S. W. Rep. 312 (1888); Mis- souri Pac. R. Co. V. Harris, 67 Texas, 166 (1886). In this case the tort was not willful. Houston & T. C. R. R. v. Burke, 55 Texas, 323 (1881); Gulf, C. & S. F. R. R. Co. V. McGown, 65 Texas, 640 (1886); Missouri Pac. Ry. v. Ivey, 71 Texas, 409 ; s. c 9 S. W. Rep. 346 (1888). In this case it was held that the carrier could not lawfully demand a waiver of any of the common-law rights of the shipper, as a condition precedent to receiving goods for transportation. Missouri Pac. R. Co. V. Fagan, 9 S. W.Rep. 749 (1888). Tennessee. — Merchants' Dispatch T. Co. v. Bloch, 86 Tenn. 392 ,i How. Pr. (N. Y.) 327 (1867); Houston & T. C. R. R. v. Ford, 53 Texas, 364 (1880). ^ Wightman v. Chicago & N. W. R. Co., 73 Wis. 169; s. c 40 N. W. Rep. 689 (1888). * Hill 57. Syracuse & Binghamton R. R., d^ N. Y. loi (1875); El- more V. Sands, 54 N. Y. 512 (1874); Wentz v. Erie Railway Co., 3 Hun (N. Y.), 241; s. c. 5 Thomps. & Cook, 556 (1874); State v. Campbell, 32 N. J. L. 309 (1867); Rawitzky v. Louisville & N. R. R. Co., 40 La. Ann. 47; s. c. 3 South Rep. 387 (1888); Barker v. Coflin, 31 Barb. (N. Y.) 556 (i860). The reason given for the decision in the latter case was that it was only in this way that a carrier could protect itself from overloading. The court also say that the ticket with its indorsement was evidence of the contract between the carrier and the passenger, and that the carrier had a "right to make any special contract, not unreasonable or illegal." A mere notice on a ticket, not made known to the passenger, certainly does not constitute a contract with him. Quimby v. Vanderbilt, 17 N. Y. 306 (1858); Van Buskirk v. Roberts, 31 N. Y. 661 (1864); Rawson V. Penn. R. R. Co., 48 N. Y. 212 (1872); Elmore z^. Sands, 54 N. Y. 512 (1874); Pennington v. Phil., W. & B. R. R. Co., 62 Md. 95 (1883). No doubt the ticket is admissible in evidence with other facts and circumstances to show what the contract really was. Milnor v. N. Y. & N. H. R. R. Co., 53 N. Y. i^i (1873)- But the rule laid down in the cases cited at the beginning of this note find their true foundation in the right of the carrier to make reasonable rules and regulations for the con- duct of its business. ^ Sherman v. Chicago & N. W. R. Co., 40 Iowa, 45 (1874); Powell V. Pittsburg, C. & St. L. R. R. Co., 25 Ohio St. 70 (1874); Lillis v. St. Louis, K. C. & N. R. Co-, 64 Missouri, 464 (1877); Hall v. Memphis & C. R. Co. (U. S. C. Ct. W. D. Tenn.), 9 Fed. Rep. 585 (1881). LIMITING TIME OF VALIDITY OF TICKET. 143 This time may be limited by a notice printed on the ticket, as for example : " Good for this day only,'' or " only good for twenty days from this date," if the date on which the ticket is sold be stamped upon the ticket/ A State Legislature may, however, enact that such re- strictions as to the time shall be invalid, and that a ticket shall be valid for six years notwithstanding the restriction. Such enactment is binding upon a foreign corporation (doing business within the State.'^ When the question of the validity of the limitation as to time was presented, there was some hesitation on the part of the courts in sustaining its validity unless actual notice of it were brought home to the passenger. In one case the fact is relied upon that the passenger knew that the through rate was less than the aggregate local rates. ^ But the rule is sustainable — not on the ground of an assent on the part of the passenger constituting a con- tract — but on the ground that the regulation is a reason- able one which the company has a right to make, and of which it gives the passenger adequate notice by printing it on his ticket. 1 Hill V. Syracuse, Bing. & N. Y. R. R. Co., d^ N. Y. loi (1875); Elmore v. Sands, 54 N. Y 512 (1874). In this casethecourt sayof the carrier: " It had the right to make a rule that every passenger, when he entered the train, should pay his fare or produce a ticket showing his right to ride upon that train. Such a regulation is neither unreasonable nor illegal. It is not an uncommon one, and it is not important that we should perceive all the purposes which it subserves. It is sufificient that it is apparently useful for some purpose. If the ticket be required to be used on the day it is issued, the passenger cannot well use it for more than one trip, and the railroad company will have some information of the number of passengers to provide for on any day." Boice v. Hud- son R. R. R. Co., 61 Barb. (N. Y.) 611 (1872); Boston & Lowell R. R. Co. z/. Proctor, i Allen (Mass.), 267 (1861); Dietrich v. Penn. R. R. Co., 71 Penn. 432 (1872); McClure v. Phila., W. & B. R. R. Co., 34 Md. 532 (1871); Rawitzky v. Louisville N. Ry. Co., 3 So. Reporter, 387; s. c. 40 La. Ann. 47 (1888). "^ Dryden v. Grand Trunk R. of Canada, 60 Me. 512 (1872). =» Shedd V. Troy & Boston R. R. Co., 40 Vt. 88 (1868). 144 THE MODERN LAW OF CARRIERS. This subject will be more fully considered in the eleventh section of this chapter. Proof of a verbal statement by the ticket seller, after the ticket was sold that it would be good on any day, is not sufficient to extend its validity, in the absence of proof of authority on his part.^ A rule that the holder of an excursion ticket must present himself for identification at the office of the com- pany at the terminal station, and that the ticket shall be valid only for a certain time after such identification, is reasonable.^ If the passenger begins his transit on the last day on which by its terms the ticket is valid, he has a right to complete it, although the transit is not complete until the following day, and he cannot lawfully be expelled from the train after midnight of the last day on which by its terms the ticket is valid.^ If the last day upon which by its terms the ticket can be used is Sunday, and the railroad company whose line completes the transit runs no train on that day the pas- ^ Boice V. Hudson R. R. R. Co., 6i Barb. 6ii (1872). See post, Ch. VII, sect. 9. ^ Rawitzky v. Louisville & N. R. Co., 40 La. Ann. 47 ; s. c 3 Southern Rep. 387 (1888). 2 Evans v. St. Louis, Iron Mt. & S. R. Co., 11 Mo. App. 463 (1882); Auerbach v. N. Y. Central R. R. Co., 89 N. Y. 281 ; s. c 42 Am. Rep. 290; 21 Am. Law Reg. 790 (1882); revg. s. c. 60 How. Pr. 382 (1881); Georgia S. R. R. Co v. Bigelow, 68 Geo. 219 (1881). It is not enough, however, that the passenger present himself at the station on the last day on which his ticket is valid, if the last train for that day has already left. Arnold v. Penn. R. R. Co., 115 Penn. 135 (1887). In Pennsylvania Co. v. Hine, 41 Ohio St. 276 (1884), it was held that the passenger was not entitled to use a ticket after the time limited by the terms printed on its face, although he was unable, owing to the de- lay of the carrier to use it before. The question as to whether the carrier "washable for breach of contract because the train East of Pittsburg was so delayed that H. could not enter the train upon which his ticket gave him a right to ride, was not considered." See post, Ch. VII, sect. 9. REGULATING OR LIMITING TRIP. 1 45 senger is entitled to use his ticket on tlie Monday follow- ing/ Indeed it may fairly be questioned whetlier this should not be the rule whenever the last day of the term during which the ticket can be used is a Sunday. It would seem that the courts should apply to limited tickets the same rule that has been applied in so many other cases ; e. g.^ the date on which commercial paper, without days of grace, is payable ; on which a tenant must quit the demised premises ; within which legal papers must be served, and the like. SECTION IV. REGULATING OR LIMITING THE TRIP UPON WHICH A TICKET CAN BE USED. A carrier has the right to require that a passenger who breaks his journey should have his ticket indorsed by the conductor, and can lawfully refuse to accept the ticket for the remainder of the journey if this regulation be not complied with.^ Not only may the limitations already mentioned be placed upon the passenger's manner of making his jour- ney, but the carrier may establish a rule that the journey 1 Little Rock & F. S. R. R. v. Dean, 43 Ark. 529 (1884). 2 Beebe v. Ayres, 28 Barb. (N. Y.) 275 (1858); Dunphy v. Erie R. Co., 42 N. Y. Superior Ct. Rep. 128 (1877). In this case the rule was applied by the company to different divisions of its line, and this was held to be reasonable and valid. Denny v. N. Y. C. cSr H. R. R., 5 Daly (N. Y.), 50 (1874). In this case, as also in Beebe v. Ayres, the rule hereinafter considered was ap- plied, that a partial waiver would not be extended beyond its precise terms. Yorton v. Milwaukee, L. S. & W. R. Co., 54 Wis. 234 (1882); s. c. II N. W. Rep. 482. In this case the regulation of the company permitted a passenger who had broken his journey to resume it without further payment, if he procured from the first conductor a stop-over check. This the passenger requested, but instead received a trip check. The conductor of the train on which the passenger resumed his journey refused to receive this, and ejected him. It was held that this was law- ful. 10 146 THE MODERN LAW OF CARRIERS. shall be continuous, and that a passenger stopping over during its progress shall have no right to proceed further on the same ticket, but must pay fa,re for the remainder of the route/ The passenger may select the train, but when once the transit is commenced he has no right to change to another.^ In the case of a passenger on a 1 State V. Overton, 24 N. J. Law, 435 (1854); Dietrich v. Penn. R. R., 71 Penn. 432 (1872); Cheney v. Boston & Me. R. R., 11 Mete. (Mass.) 121 (1846); Gale V. Del, L. & W. R. R., 7 Hun (N.Y.), 670 (1876); Churchill v. Chicago & Alton R. R., 3 Am. Railway Rep. 430 (1873); Hattenz^. R. R-, 39 Ohio St. 375 (1883). In the Dietrich case the court quote with approval the case of State v. Overton. " The question is ob- viously a question of contract between the passenger and the company. Bv paying for passage, and procuring a ticket from Newark to Morris- town, the passenger acquired the right to be carried from one point to the other without interruption. He acquired no right to be transported from one point to another upon the route, at different times and by dif- ferent lines of conveyance, until the entire journey was accomplished. The company engaged to carry the passenger over an entire route for a stipulated price. But it was not part of the contract that they would suffer him to leave the train, and resume his seat in another train at any intervening point on the road. If the passenger chose voluntarily to leave the train before reaching his destination, he forfeited all rights under his contract. The company did not engage and were not bound to carry him in any other train, or at any other time, over the residue of the route." 2 Gale V. Del., L. & W. R. R., 7 Hun, 670 (1876). In this case the court say: "After the plaintiff had commenced his journey on the train which he elected to take, he had the legal right to be carried to New York by that train, and the company was under legal obligations to car- ry him by that train. This right was reciprocal; that is, the defendant had a legal right to insist that the plaintiff's journey should be con- tinued until it was completed, and that it should not be required to per- form it in fragments." Terry z;. Flushing, N. S. & C R. R., 13 Hun (N. Y.), 359 (1878); Stone V. Chicago & N. W. R. Co., 47 Iowa, 82 (1877). This was held in a case where the passenger was, lay accident, left behind at a station, and sought to resume his journey on the next train, and tendered to the conductor a passage check that had been given him by the conductor of the previous train. This had, however, been intended simply for the con- ductor's convenience in collecting and assorting tickets. Breen v. Texas & Pacific R. R., 50 Texas, 43 (1878). A train or passage check which had printed upon it the words, " good for continuous passage only," came under consideration in Walker v. Wabash, St. L. & P. R. Co., 15 Mo. App. 333 (1884). It was held that the purchaser of such a check from the original holder had no right to use it for that portion of the transit which the original holder had not completed, although within the REGULATING OR LIMITING TRIP. 147 steamboat, it is held that he may go ashore at places where the steamboat stops, and resume his journey on the same boat and trip without forfeiting his right to use his ticket.^ If the rule or the indorsement upon the ticket be, "Good for this trip only," the ticket may be used on a day subsequent to that on which it is issued, provided that the trip be continuous.^ • The validity of a regulation requiring that the trip be continuous was sustained in a case where the passen- ger had surrendered his ticket.^ But it is believed that this is an immaterial circumstance. If the conductor refuse to receive the ticket, and re- quires the passenger to pay his fare, the conductor has no right to retain the ticket.^ This rule does not apply to the case of a ticket divided into coupons, each coupon covering the route of one of several connecting roads. In such case the traveler has the right to break his journey at the terminus of each road, unless some restrictions are printed on the ticket, or made known to the passenger when he buys it.^ In such time limited by the ticket which he purchased and had surrendered in exchange for this train check. * Dice V. Willamette Trans. Co., 8 Oreg. 60 (1879). 2 Pier V. Finch, 24 Barb. (N. Y.) 514 (1857). The court say: "A construction which would work a forfeiture of a right, which the plaint- iff clearly had, for a valuable consideration paid, and which would ena- ble the corporation to retain the consideration without performing the service, ought not, it seems to me, to be given to this language, if it is fairly and reasonably susceptible of any other. If it is susceptible of two interpretations, that should be preferred which will secure and pre- serve the rights of both parties, according to all canons for the interpre- tation of contracts." ' Cleveland, C & C. R. R. v. Bartram, 11 Ohio St. 457 (i860). In this case the court said: "The plaintiff, after making his election of a train, and after giving in his ticket, had no right to make a re-election of trains while that train is in a reasonable manner performing the duties of the carrier." * Van Kirk v. Penn. R. R., 76 Penn. 66 (1874). ■* Brooke v. Grand Trunk R. Co., 15 Mich. 332 (1867); Palmer v. 148 THE MODERN LAW OF CARRIERS. case he may take his baggage from the custody of the carrier, and re-deliver it when he resumes his journey.^ But a passenger holding such a ticket has no right to stop over at a way station.* The rule just stated as to the effect of the limitation endorsed on the ticket or printed on its face applies equal- ly to "lay-over" or "stop-over" tickets given by conduct- ors to a passenger desiring to break his journey at an in- termediate station, and resume it at a later day. The reason stated for this decision is the rule more fully con- sidered hereafter, that the carrier has the right to treat the journey as an entirety, and is not bound to issue such tickets ; and, if it does, may annex a condition as to the time within which they may be used.^ In one case the court has gone so far as to hold that a ticket for a trip between two stations is not valid for a trip to an intermediate station.^ The ticket was an excursion ticket, and sold at a reduced rate, and by its terms was good "for a continuous trip only." But still, it would seem that in the absence of an express agreement to the contrary, the purchaser of a ticket to one place should have the right to ride upon that ticket part of the way only. The carrier may, perhaps, in the absence of legis- lation, charge more for a short haul than a long haul, but Charlotte, C. & A. R. R., 3 S. Car. (N. S.) 580 (187 1). In Hamilton z*. N. Y. Central R. R., 51 N. Y. 100 (1872), Lott, Ch. Com., considers the question whether the holder of such a ticket has the right to stop at a station intermediate the termini specified on each coupon, and resume his journey, without paying fare, to the next terminus. He concludes that the passenger has no such right. The court did not pass on the question. * Wilson V. Chesapeake & Ohio R. R., 21 Grattan (Va.), 654 (1872). 2 McClure v. Phil.,W. & B. R. R., 34 Md. 532 (1871); Little Rock & F. S. R. R. V. Dean, 43 Ark. 529 (1884). 3 Churchill v. Chicago &: Alton R. R., 67 111. 390 (1873); Wentz v. Erie R. Co., 5 Thomps. & Cook(N. Y.), 556; s. c. 3 Hun, 241 (1874); post, Ch. VII, sect. 9. * Johnson v. Phil., W. & B. R. R., 63 Md. 106 (1884). TICKETS NOT TRANSFERABLE. 1 49 liis right so to do, if it exist, is on the verge that sepa- rates the lawful from the unlawful, and ought to be strict- ly construed, and limited to the exact terms of the con- tract. By statute in Maine, a regulation of the carrier or con- tract with him is invalid which purports to make a ticket invalid when the passenger has broken his journey. This statute has no extra-territorial operation, although the contract for the transportation is made in Maine. The courts of that State presume the law of other jurisdic- tions to be the same as the common law of Maine.^ SECTION V. TICKETS NOT TRANSFERABLE. A carrier may lawfully limit the use of a ticket to the person buying it, if the words "not transferable" or other equivalent expressions are printed on the ticket. In such case the buyer has not the right to sell it after having traveled part of the route, although his vendee takes pas- sage on the same train.^ But in such case the carrier has * Carpenter v. Grand Trunk R. Co., 72 Me. 388 (1881). ^ Post V. Chicago & N. W. R. R., 14 Neb. no; s. c. 45 Am. Rep. 100 (1883); Cody z^. Central Pacific R. R., 4 Sawyer, 114 (1876). In this case the court say: "A contract for one continuous emigrant pas- sage from Omaha to San Francisco is not a contract to carry one man from Omaha to the next station, another to the next station, and so on through the entire line, but an entirely different contract, and one upon different terms and for a different rate of compensation. If this experi- ment should succeed, parties could readily arrange privately for local travel at through rates without the consent of the companies. A party might as well contract to carry a ton of freight from Omaha to San Francisco, and then insist that he could have a ton carried to the first station, and transfer a right to another party to carry another and dif- ferent ton of freight to the next station, and so on through the entire line. The inconvenience and loss to the company would doubtless be greater than in the case of a passenger, but the difference is only in de- gree, not in principle." 150 THE MODERN LAW OF CARRIERS. uo right to take the ticket from the vendee and expel him from the train/ A person who gets possession of a free pass marked " not transferable," and personates the rightful owner, can- not recover damages for injuries caused by the negligence of the company's servants, not amounting to a willful tort.^ In the case of non-transferable tickets, as in the other classes of cases considered in this chapter, the conductor of a train may lawfully insist upon strict compliance with the carrier's rule, without regard to the question of the passenger's intent. Thus it was held that if a ticket, on its face not assignable, was made out in the name of the wrong person, the conductor could refuse to receive it when presented by the person for whom it was really pur- chased.^ And the carrier may lawfully forfeit a commutation ticket which, by its terms, is not assignable, if the holder, either intentionally or by negligence, has allowed some other person to use it.* 1 Post V. Chicago & N. W. R. R., 14 Neb. no (1883). 2 Way V. Chicago, R. I. & P. R. Co., 64 Iowa, 48 (1884); Toledo, Wabash & W. R. Co. v. Beggs, 85 111. 80 (1877). In the latter case the court say: "Was defendant in error a passenger on this train in the true sense of that term ? He was traveling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Under such circumstances the company could only be held liable for gross negli- gence which would amount to willful injury. But, on the assumption he was a passenger on the car, riding on a free ticket containing the usual conditions, as this did, then the case is like that of Illinois Cen- tral Railroad Co. v. Read, 37 111. 484 (1865), where it was held such a pass or ticket is a perfect immunity to the company for such unavoid- able accidents as will happen to the best-managed railroad trains; not, however, shielding them from liability for gross negligence, or any de- gree of negligence having the character of recklessness." ' Chicago & N. W. R. R. v. Bannerman, 15 111. App. 100 (1884). In this case the error in the name upon the ticket was known to the person who purchased it. But this seems to be an immaterial circumstance. The real question is whether the conductor in any case is bound to look beyond the face of the ticket presented to him. See post, Ch. VII, sect. 9- * Friedenrich v. Baltimore & O. R. R., 53 Md. 201 (1879). RIGHTS OF PASSENGERS AND CARRIERS. 151 But the ticket is assignable if no restriction be placed by the carrier upon its use before or at the time of the original purchase/ SECTION VI. THE RIGHT TO DESIGNATE THE CHARACTER OF THE CARS OR OTHER ACCOMMODATIONS PROVIDED. AND THE PERSONS WHO SHALL TRAVEL UPON OR USE THE SAME. THE PASSENGER'S RIGHT TO A SEAT. A carrier may set aside a car for the accommodation of women, and may exclude all men, unaccompanied by women, from such car.^ If, however, a man enters such car without objection, he cannot lawfully be removed from the same, except after reasonable notice, and with due re- gard to his safety.^ And when the seats in the other cars are full, passengers not having seats may lawfully enter a car set apart especially for women and their escorts. In such case the carrier may select the persons who shall be allowed to enter the " ladies' car." If a carrier provide special accommodation, as, for ex- ample, a chair car, he may charge an extra fare therefor, and exclude all persons who refuse to pay the extra fare.* A carrier may exclude persons of color from a particu- ^ Hudson V. Kansas Pacific R. Co., 3 McCrary, 249 (1882). « Brown v. Memphis & C R. Co., 7 Fed. Rep. 51 (1881); Chicago & N. W. R. Co. V. WilHams, 55 111. 185 (1870); Memphis & C. R. R. Co. V. Benson, 85 Tenn. 627 (1887). ^ Marquette z'. Chicago & N. W. R. R., 2,Z Iowa, 562 (1871); Bass V. Chicago & N. W. R. R., 36 Wis. 450 (1874). And so if a man enter a limited express without objection he cannot be removed without rea- sonable notice and regard for his safety. Lake Shore & M. S. R. Co. v. Rosenzweig, 113 Penn. 519 (1886). * Wright V. California Central R. Co., 20 Pac. Rep. (Cal.) 740 (1889). So he may exclude from an express train persons holding ex- cursion tickets which are stated on their face not to be valid on express trains. Nolan v. New York, N. H. & H. R. R., 41 N. Y. Super. Ct. 541 (1876). 152 THE MODERN LAW OF CARRIERS. lar car when order and harmony are likely to be promoted thereby/ * West Chester & Phila. R. R. v. Miles, 55 Penn. 209 (1867). But the Pennsylvania Act of i867,Pamph. L. 38, which prohibits a car- rier from making distinctions between passengers on account of race or color, prevents the carrier from excluding persons of color from the cars on which white persons holding similar tickets are allowed to ride. Cen- tral R. R. of N. J. V. Green, 86 Penn. 421 (1878); see Britton v. Atlanta & C. A. L. R. Co., 88 N. Car. 536; s. c, 43 Am. Rep. 749 (1883), in which it was held that if a carrier did not enforce its regulation on this subject, which the court held to be lawful, it was liable to make good any injury to a colored person riding in the car set aside for the whites. In the Miles case the court say: " The right of the carrier to sepa- rate his passengers is founded upon two grounds — his right of private property in the means of conveyance, and the public interest. The pri- vate means he uses belongs wholly to himself, and imply the right of control for the protection of his own interest, as well as the performance of his public duty. He may use his property, therefore, in a reasonable manner. It is not an unreasonable regulation to seat passengers so as to preserve order and decorum, and to prevent contacts and collisions arising from natural or well known customary repugnancies, which are likely to breed disturbances by a promiscuous sitting. This is a proper use of the right of private property, because it tends to protect the inter- ests of the carrier as well as the interests of those he carries. If the ground of regulation be reasonable, courts of justice cannot interfere with his right of property. The right of the passenger is only ihat of being carried safely, and with a due regard to his personal comfort and convenience, which are promoted by a sound and well regulated sepa- ration of passengers. An analogy and an illustration are found in the case of an inn-keeper, who, if he have room, is bound to entertain proper guests, and so a carrier is bound to receive passengers. But a guest in an inn cannot select his room or his bed at pleasure; nor can a voyager take possession of a cabin or a berth at will, or refuse to obey the rea- sonable orders of the captain of a vessel. But, on the other hand, who would maintain that it is a reasonable regulation, either of an inn or a vessel, to cofnpel the passengers, black and white, to room and bed to- gether ? If a right of private property confers no right of control, who shall decide a contest between passengers for seats or berths? Courts of ju-tice may interpose to compel those who perform a business con- cerning the public, by the use of private means to fulfill their duty to the public, but not a whit beyond." On the other hand it was held in Chicago & N. W. R. Co. v. Wil- liams, 55 111. 185 (1870), that a colored woman could not lawfully be excluded from the " ladies' car " solely on account of her color, though the court express the opinion that separate seats in this car could law- fully be set apart for colored women. The reverse was held in Chesa- peake, O. & S. W. R. R. Co. V. Wells, 85 Tenn. 613 (1887); and see Day V. Owen, 5 Mich. 520 (1858). If a carrier may classify passengers, according to sex or color, he must give them equal accommodation and RIGHTS OK PASSENGERS AND CARRIERS. 1 53 But equally good accommodation must be provided in other parts of tHe car or boat.^ And in Iowa it was held that it was unreasonable to require persons of color to take their meals on the guard or in the pantry, and that it was unlawful to enforce such a regulation by forcibly removing a quadroon from the dining room.'^ The change in public sentiment that has taken place in the United States, re- specting the relations between the white and colored races, is visible in the decisions of the courts, and illustrates what Mr. Webster was perhaps the first to point out, that the reports contain important material for history.^ The carrier may set apart a table for the special use of the of&cers of the boat and exclude other persons there- from.^ The carrier may require all persons wishing to ride on freight trains to procure a peculiar ticket ; ^ and may re- cannot put a colored woman, holding a first class ticket, into a smoking car against her will. Gray v. Cincinnati S. R. Co. (C. Ct. S. D. Ohio), II Fed. Rep. 687 (1882); Houck v. Southern Pac. R. Co. (C Ct. W. D. Texas), 38 Fed. Rep. 226 (1888); see, also, Green v. City of Bridge- ton (U. S. D. Ct., Ga.), 9 Cent. L. J. 206 (1879). 1 The Sue, 22 Fed. Rep. 843 (1885); Logwood v. Memphis & C. R. Co., 23 Fed. Rep. 318 (1885); Murphy v. Western & A. R. R., 23 Fed. Rep. 637 (1885). The Civil Rights Bill, i Hughes 541, 547 (1875). In the Logwood case Hammond, J., said: "Equal accommodations do not mean identical accommodations. . . . But in all cases the car- rier must furnish substantially the same accommodations to all, by pro- viding equal comforts, privileges and pleasures to every class." In Hall V. De Cuir, 95 U. S. 485 (1877), the Supreme Court held that a statute of Louisiana, which was construed so as to forbid a carrier to exclude colored women from the cabin set apart for white women, was uncon- stitutional and void, so far as it related to interstate commerce. ^ Coger 57. Northwest Union Packet Co., 37 Iowa, 145 (1873). ^ Address, Historical Soc, Feb. 23, 1852; Curtis' Life of Webster, vol. 2, p. 590. * Ellis V. Narragansett S. S. Co., iii Mass. 146 (1872). ^ Law V. Illinois Cent. R, R., 32 Iowa, 534 (1871); Cleveland C & C. R. R. V. Bartram, 11 Ohio, St. 457 (i860); Burlington & M. R. R. z'. Rose, II Neb. 177 (1881); Falkner v. Ohio & Miss. R. Co., 55 Ind. 369 {1876); Lake Shore & M. S. R. Co. v. Greenwood, 79 Penn. 373 (1875); Lane v. E. T., Va. & Ga. R. R., 5 Lea, 124; s. c. 2 Am. & Eng. R. R. Cas. 278 (1880); Southern Kansas R. Co. v. Hinsdale, 38 Kans. 507; 154 THE MODERN LAW OF CARRIERS. fuse altogether to carry passengers upon freight trains with or without a ticket, and either generally or to and from particular stations/ and may exclude them from mail and baggage cars.^ So the carrier may and should refuse to receive on its cars or, if received by mistake, should expel therefrom all persons who are disorderly or endanger the safety or in- terfere with the reasonable comfort and convenience of the other passengers.® But an intoxicated person who keeps quiet, and does not interfere with others cannot lawfully be excluded,'* unless s. c. i6 Pac. Rep. 937 (1888); Thomas v. Chicago & G. T. R. Co., 40 N. W. Rep. (Mich.) 463 (1888); Toledo, P. & W. R. R. v. Patterson, 63 111. 304 (1872); Illinois Central R. R. v. Nelson, 59 111. no (1871). In this case the passenger had a first-class ticket. But it was held that a regulation was reasonable which required a different ticket for freight trains, and also that persons who took passage on freight trains could only require that the train stop for them at a freight station. In Evans V. Memphis & C. R. R., 56 Ala. 246 (1876), it was held that in such case a reasonable opportunity to purchase the ticket must be afforded or the exclusion will be unlawful. Dunlap v. Northern Pac. R. R., 35 Minn. 203 (1886); Indianapolis & St. L. R. R. v. Kennedy, 77 Ind. 507 {1881). If the carrier permit a passenger to ride on a freight train at regular rates without any qualification, it must exercise the same care as on passenger trains. New York, Chicago & St. L. R. Co. v. Doane, 115 Ind. 435; s. c. 15 West Rep. 465 (1888). ^ Holmes v. Wakefield, 12 Allen (Mass.), 580 (1866); Arnold z>. 111. Cent. R. R., 83 111. 273 (1876); Chicago & Alton R. R. z;. Randolph, 53 111. 510 (1870); South & N. Ala. R. R. v. Huffman, 76 Ala. 492 (1884). ^ Kentucky Central R. R. v. Thomas, 79 Ky. 160 ; s. c 42 Am. Pep. 208 (1880); O'Donnell v. Alleghany V. R. R., 59 Penn. 239 (1868); Houston & T. C. R. R. v. Clemmons, 55 Texas 88 (1881). 3 Putnam v. Broadway & Seventh Ave. R. R., 55 N. Y. 108 (1873); Atchison, T. & S. F. R. R. v. Weber, S3 Kansas 543 (1885); Louisville & N. R. R. zj. Logan (Ky.), 3 Lawy. Rep. Ann. 80 (1889); Sullivan v. Old Colony R. R., 148 Mass. 119; s. c. i Lawy. Rep. Ann. 513 (1888); Higgins V. Watervliet T. & R. R., 46 N. Y. 23 (1871). The last four cases involved the ejection of intoxicated persons. The right to eject a person using grossly profane or obscene language was sustained in Chica- go, B. & Q. R. R. V. Griffin, 68 111. 499 (1873). And see St. Louis, A. &. T. R. Co. z>. Mackie, 71 Texas, 491 (1888). So the carrier may remove a person who apparently has the smallpox, though it afterward turns out that he had not. Paddock z'. Atchison, T. & S. F. R. Co., 37 Fed. Rep. ^41; s. c. 4 Lawy. Rep. Ann. 231 (1889). * Milliman v. N. Y. Central & H. R. R. R., 66 N. Y. 642 (1876). RIGHTS OF PASSENGERS AND CARRIERS. 1 55 tkere is reason to believe that lie will become offensive or annoying to the other passengers.^ Some care for his safety must be taken, and it would be negligent to eject him in a place where he would be in danger of being run over by another train." The carrier may prohibit all persons from riding on the platform of its cars. This right in some States, as in New York,^ is declared by statute, but there seems to be no reason to doubt that it exists independently of statu- tory regulation.* But this right implies an obligation on the part of the carrier to provide suitable accommodation elsewhere. If a car is crowded it is not negligent for a passenger to ride on the platform, and he is not bound to request other passengers to remove their parcels from the seats or to make room so as to enable him to sit down. It is the duty of the carrier to see that he has a seat.^ Standing on the platform has been held not to be of itself negligence, if notice of a regulation forbidding it has not been posted in the cars, especially when it ap- peared that the plaintiff found the car he entered crowded and had not time before the accident to find a seat in an- other.^ ^ Vinton e/. Middlesex R. R., 11 Allen (Mass.), 304 (1865); Murphy V. Union R. Co., 118 Mass. 228 (1875). " Haley v. Chicago & N. W. R. R. 21 Iowa, 15 (1866); Atchison, T. & S. F. R. Co. V. Weber, 2,Z Kansas, 543 (1885); Louisville & N. R. R. v. Logan (Ky.), 3 Lawy. Rep. Ann. 80 (1889). ^ Railroad Act; Laws of 1850, Chap. 140, section 46. * Moss V. Johnson, 22 111. 633 (1859); Virginia M. R. R. v. Roach' 83 Va. 375 (1887). It is the duty of a passenger to go inside if told to do so by the brakeman, even though there are no seats inside. Graville V. Manhattan R. R., 105 N. Y. 525 (1887); Alabama G. S. R. R. Co. v. Hawk, 72 Ala. 112; s. c. 18 Am. & Eng. R. R. Cas. 194 (1882). 5 Willis V. Long Island R. R., 34 N. Y. 670 (1866). « Colegrove v. N. Y. & N. H. R. R., 6 Duer (N. Y.), 382 (1857); affd. 20 N. Y. 492 (1859); Transfer Co. v. Kelly, 36 Ohio St. 86 (1880). It would probal)ly be held otherwise in a case where sufficient accommo- dation was provided elsewhere and the passenger knew the place he se- lected to be more dangerous than inside the passenger car. Houston & 156 THE MODERN LAW OF CARRIERS. It has been held that while the carrier has the right to exclude from its cars persons who propose to enter them for immoral purposes, as, for example, gambling, yet if a ticket has been sold to such a person his fare must be re- turned before he can be lawfully ejected.^ This decision is opposed to the current of authority unless it be confined to the case of a person excluded sim- ply because of his profession, and not for any actual mis- conduct.^ T. C. R. R. V. Clemmons, 55 Texas, 88 (1881). But see Graville v. Manhattan R. R., p. 155, note 4, ante. ^ Thurston v. Union Pacific R. R. 4 Dill. 321 (1877.) In this case the court charged the jury: " The railway company is bound, as a common carrier, when not overcrowded, to take all proper persons who may apply for transportation over its line, on their complying with all reasonable rules of the company. But it is not bound to carry all per- sons at all times, or it might be utterly unable to protect itself from ruin. It would not be obliged to carry one whose ostensible business might be to injure the line; one fleeing from justice; one going upon the train to assault a passenger, commit larceny or robbery, or for interfering with the proper regulations of the company, or for gambling in any form, or committing any crime; nor is it bound to carry persons infected with contagious diseases, to the danger of other passengers. The person must be upon lawful and legitimate business. Hence defendant is not bound to carry persons who travel for the purpose of gambling. As gambling is a crime under the State laws, it is not even necessary for the company to have a rule against it. It is not bound to furnish facilities for carrying out an unlawful purpose. Necessary force may be used to prevent gamblers from entering trains, and if found on them engaged in gambling, and refusing to desist, they may be forcibly expelled. . . . After ticket is purchased and paid for, the railroad company can only avoid compliance with its part of the contract by the existence of some legal cause or condition which will excuse it. The company should, in the first case, refuse to sell tickets to persons whom it desires and has the right to exclude from the cars, and should exclude them if they attempt to enter the car without tickets. If the ticket has been in- advertently sold to such person and the company desires to rescind the contract for transportation, it should tender the return of the money paid for the ticket. If it does not do this, plaintiff may, under any cir- cumstances, recover the amount of his actual damage, viz.: what he paid for the ticket, and, perhaps, necessary expenses of his detention." 2 In Wright v. California Central R. Co., 20 Pac. Rep. (Cal.) 740 (1889), it was held that a person who was lawfully excluded from one car, and invited to sit in another, but who refused and left the train, could not recover damages because his ticket was not returned to him nor his fare refunded. It was held in Lemont v. Washington & G. R. RIGHTS OF PASSENGERS AND CARRIERS. 1 57 It is lawful to eject from a car or steamboat a person wHo attempted to ply thereon a calling, the object of which was to injure the business of the carrier.^ The carrier may prohibit the sale of refreshments on the boat or train.^ The conductor or other person in charge of a train may dispense with the general regulations of the car- rier, as to the place where passengers should ride. A passenger is justified in relying on the conductor's direc- tions.'^ R., I Mackey (D. C), 180 (1881), that a carrier could lawfully remove from its car a person who it had reason to believe would be guilty of misconduct or indecency. On the other hand it was held in Brown v. Memphis & C. R. Co., 7 Fed. Rep. 51 (1881), that a woman of bad character, if she conducted herself properly, could not lawfully be ex- cluded from the ladies' car. ■* Jencks v. Coleman, 2 Sumner, 221 (1835). In this case the person excluded from the carrier's boat sought passage for the purpose of solic- iting passengers to take a line of coaches in opposition to that with which the boat regularly connected. Judge Story charged that if the contract with the connecting line was reasonable and bona fide and not entered into for the purpose of an oppressive monopoly, and the exclu- sion of the plaintiff was a reasonable regulation in order to carry this contract into effect, it was lawful. No point was made in his case that the fare should have been returned. See p. 156, note i, ante. Old Col. R. R. V. Tripp, 147 Mass. 35; s. c 17 N. East. Rep. 89 (1888); Com- monwealth V. Carey, 147 Mass. 40, note; s. c 17 N. E. Rep. 97 (1888); Barney v. Oyster Bay & H. Steamboat Co., 67 N. Y. 301 (1876); The D. R. Martin, 11 Blatch. 233 (1873); see, also, Commonwealth z'. Power, 7 Mete. (Mass.) 596 (1844); Markham v. Brown, 8 N. H. 523 (1837). But the mere wearing the uniform of an opposition company is not good cause for removal of the person wearing it. South Fla. R. Co., v. Rhoads, 3 Lawy. Rep. Ann. 133; 5 So. Rep. 633 (1889). ^ Smallman v. Whilter, 87 111. 545; s. c. 29 Am. Rep. 76 (1877). 3 Edgerton v. New York & H. R. R., 39 N. Y. 227 (1868); Carroll V. N. Y. cSf N. H. R. R., I Duer (N. Y.), 571 (1853); Phila. & Reading R. R. V. Derby, 14 How. (U. S.) 468 (1852); Lawrenceburg & Upper Miss. R. R. V. Montgomery, 7 Ind. 474 (1856); Penn. R. R. v. Hender- son, 51 Penn. 315 (1865); Penn. R. R. v. McCloskey, 23 Penn. 526 (1854). In the McCloskey case, the plaintiff was a stockman, and was required by the regulations of the company to ride on the car contain- ing his stock. By the conductor's directions he took a seat in another car, and while there was injured by an accident caused by the negli- gence of the company's servants. Had he remained in the stock car he would not have been injured. The court held that it was lawful for 158 THE MODERN LAW OF CARRIERS. It is to be observed that a passenger's non-compliance with the carrier's regulations is no bar to an action for in- juries not caused by such disobedience but by negligence of the carrier, unconnected therewith.^ This is analogous to the well settled rule in collision cases that a violation of a regulation which has not con- tributed to produce the collision, is not a bar to a recovery at law, and does not in admiralty occasion a division of the damage.^ The decisions are not uniform as to whether the rea- sonableness of this class of rules is a question of law or fact.^ On principle, if the facts are undisputed, the ques- him to obey the conductor's directions, and that his doing so in viola- tion of the general rules of the company constituted no defence. As to waiver of the carrier's rules, see Ch. VII, sect. g. post. The conductor's authority seems to be restrained to the trains. The company is not bound by his direction to the passenger what to do after leaving them. The reason the company is bound by the conductor's directions while the passenger is on the cars is that the passenger is bound to obey them. Cincinnati, H. & I. R. R. v. Carper, 112 Ind. 26 (1887). 1 Lafayette & Indianapolis R. R. v. Sims, 27 Ind. 59 (1866); Lacka- wanna & Bloomsburg R. R. v. Chenewith, 52 Penn. 382 (1866); Britton V. Atlanta & C A. L. R. R., 88 N. Car. 536 (1883). In the Chenewith case the plaintiff, after being informed that it would be against the rules of the company to attach his freight car to a passen- ger train, persuaded the company's agents to attach it. He was injured by an accident caused by the negligence of the company in not provid- ing a proper fence. The court held that as his violation of the rules of the company did not contribute to the accident, he was entitled to re- cover. In Carroll v. N. Y. & N. H. R. R., i Duer (N. Y.), 571 (1853), the plaintiff was injured while sitting in the baggage car. This was in vio- lation of a rule of the company, but no objection to his taking his seat there was made by the conductor, and it was shown that passengers did frequently sit there. The court held that the plaintiff could recover, as his being there did not tend, directly or remotely, to produce the act which caused the injury. '^ The Farragut, 10 Wall. 334 (1870); Hoffman v. Union Ferry Co., 47 N.Y. 176 (1872). ' That it is a mixed question of law and fact. Day v. Owen, 5 Mich. 520 (1858); Bass V. Chicago & N. W. R. Co., 36 Wis. 450 (1874); Com- monwealth V. Power, 7 Mete (Mass.) 596 (1844); Jencks v. Coleman, 2 Sumner, 221 (1835); Brown v. Memphis & C R. Co., 4 Fed. Rep. 37 STATIONS AT WHICH TRAINS SHALL STOP. 1 59 tion of tlie reasonableness of a rnle is for the court. If there is a conflict of evidence as to the facts, the question should be submitted to the jury, under appropriate instruc- tions. A passenger who has paid his fare has a right to a seat. But he cannot insist upon being transported free of charge unless a seat be given him. If a seat is not pro- vided his remedy is to leave the train and sue the carrier for the damage caused by its refusal or neglect to pro- vide a seat for him.^ SECTION. VII. RULES AND REGULATIONS AS TO THE STATIONS AT WHICH TRAINS SHALL STOP. The carrier has also the right so to arrange his trains that some of them shall stop only at the principal sta- tions.^ It is the duty of the passenger to ascertain if the train he is about to take will stop at the station for which he has bought a ticket. If he fails to enquire, he has no right to insist that the train shall stop there.^ (1880). That it is a pure question of fact: State v. Overton, 24 N. J. Law, 435 (1854); Morris & Essex R. R. v. Ayers, 29 N. J. Law, 393 (1862). That it is a pure question of law: Chicago & N. W. R. Co. v. WilHams, 55 111. 185, 188 (1870). See ante, p. 132, n. 2. * Memphis & Charleston R. R. v. Benson, 85 Tenn. 627 (1887); Hardenbergh v. St. Paul, M. & M. R. Co., (Minn.) 38 N. W. Rep. 625 (1888). In Werle v. Long Island R. R., 98 N. Y. 650 (1885), the court say: " The sale of tickets by the defendant at that station for passage on that train bound it to furnish a safe and secure place for passengers to ride, and comfortable accommodations for their convenience." ^ Dietrich v. Penn. R. R., 71 Penn. 432 (1872); Trotlinger v. East Tenn., V. & G. R. R., 11 Lea (Tenn.), 533 (1883); Logan v. Hannibal & St. Jo. R. R., 77 Mo. 663 (1883). ' Chicago & Alton R. R. v. Randolph, 53 111. 510 (1870); Ohio & Miss. R. Co. V. Applewhite, 52 Ind. 540 (1876); Pittsburg & St. L. R. Co. V. Nuzum, 50 Ind. 141 (1875); Ruling v. Philadelphia, W. & B. R. R., 66 Md. 120; 5 Central Rep. 570 (1886); Chicago, St. L. & P. R. l6o THE MODERN LAW OF CARRIERS. The original direction given to the passenger as to the train he should take must be subject to subsequent modi- fication to conform to the character of the route.^ And it is held that he may take a train which does not stop at the station to which his ticket entitles him to ride, break his journey at an intermediate station, and then proceed in a train which does stop at his point of destination.^ This decision may at first seem inconsistent with some of those cited in Section IV of this chapter. But the right thus maintained is generally conceded by railroads in this country. It enables the traveler to make the larger part of his journey more rapidly and conveniently on an ex- press train, and keeps local trains for local travel, and does not appear to have caused any of those supposed in- conveniences to the carrier, the apprehension of which has Co. V. Bills, 104 Ind. 13; s. c. 3 N. East. Reporter, 611 (1885); Fink v. Albany & S. R. R., 4 Lansing (N. Y.), 147 (1871); Atchison, T. & S. F. R. R. V. Gants, 38 Kans. 608 (1888); Dietrich v. Penn. R. R., 71 Penn. 432 (1872); Beauchamp v. International & G. N. R. Co., 56 Texas, 239 (1882); 9 Am. & Eng. R. R. Ca. 307. The words, printed on a ticket, "good on passenger trains only," do not import an agreement that a particular train shall stop at every sta- tion. Ohio & M. R. Co. z'. Swarthout, 67 Ind. 567 (1879). Nor do the words, on a ticket, " for this day and train only," amount to a represen- tation that a particular train will stop at the station named in the ticket. Duling V. Philadelphia, W. & B. R. R., 66 Md. 120; 5 Central Rep. 570 (1886). In both these cases it was held that the sale of a ticket for a partic- ular station, just before the departure of a train, did not constitute a . representation that the train would stop at that station. Under circum- stances somewhat special, the contrary was held in Mississippi, Mobile & O. R. R. V. McArthur, 43 Miss. 180 (1870). Nor does the punching and taking up of a ticket for a particular station, after the conductor has informed the passenger that the train does not stop there, constitute an agreement that it shall. Trotlinger v. E. Tenn., V. & G. R. R., 1 1 Lea (Tenn.), 533 (1883). If a passenger gets on a train without inquiry as to the stations at which it stops, and it makes no stop until a station beyond that for which he has a ticket, he must pay the additional fare to the first usual stopping-place. Atchison, T. & S. F. R. Co., v. Gants, 38 Kans. 608 (1888). 1 Barker v. N. Y. Central R. R., 24 N. Y. 599 (1862). ^ Richmond, F. & P. R. R. v. Ashby, 79 Va. 130; s. c. 52 Am. Rep. 620 (1884). BAGGAGE AND FREIGHT. l6l led some courts to hold that the traveler, irrespective of an agreement to the contrary, had no right to break his journey. The practice on some of the great routes, of running limited trains, for which seats must be specially engaged at an extra charge, is not inconsistent with the rule thus stated. The service on such trains is excep- tional, and a matter of special agreement. If a statute of the State where the station is situated require the train to stop there, a corporation incorporated under the laws of another State is bound to observe this requirement, and is liable in damages to a passenger whom it refuses to leave at that station.^ Stopping a train at a regular station is an invitation to the public to take passage thereon.^ SECTION VIII. REGULATIONS AS TO BAGGAGE AND FREIGHT. The carrier may make reasonable rules and regula- tions as to the place where the baggage of passengers shall be deposited. If the passenger is informed of such rules, and does not observe them, he cannot recover for the loss of his baggage.^ And in general the carrier is ^ Penn. R. R. z^. Wentz, 37 Ohio St. 333 (1881). This was so held although the ticket contained a stipulation that the purchaser "agrees to use it only on such trains as regularly stop at both stations named." It would seem that the court might have held that this constituted a waiver by the passenger of the right given by the statute. * Werle v. Long Is. R. R., 98 N. Y. 650 (1885). ' Gleason v. Goodrich Trans. Co., 32 Wis. 85 (1873). In this case the plaintiff was a passenger on defendant's steamboat, and knew that a room was provided in which baggage could be placed in charge of a porter and checked. He had a valise, which he placed in an unlocked stateroom, from which it was stolen. The carrier was held not to be li- able. The plaintiff asked the clerk for a key to the stateroom, but none was provided. He told the clerk he wanted to put his valise in a safe place. He asked the cabin boys if it would be safe in the stateroom, and they replied in the affirmative. But all these inquiries were held not to absolve him from the consequence of his failure to get the valise 11 1 62 THE MODERN LAW OF CARRIERS. not liable for baggage not placed in his custody, nor en- trusted to some person duly authorized to receive it, tliougH there may be an exception to this rule so far as personal baggage, required for the passenger's use during the journey, is concerned.^ A regulation that passengers' baggage shall be deliv- ered only at one of several stations at which a train regu- larly stops is unreasonable. The right of a passenger to stop at a particular station involves the right to have his baggage delivered to him there.^ The regulations considered in this chapter were chiefly made in reference to the carriage of passengers. But the carrier may lawfully make similar regulations in refer- ence to freight. For example, it may provide a safer and more expensive conveyance for valuable live stock, and contract that it shall not be liable for damage to live stock carried at a cheaper rate in ordinary cars.^ The rules checked at the parcel room, and it was also held that there was no de- livery of the valise to the carrier's custody. The court, however, inti- mates that a rule requiring a passenger to surrender his hand-baggage would be unreasonable. ^ McKee v. Owen, 15 Mich. 115 (1866); Forbes v. Davis, 18 Texas, 268 (1857); Cohen v. Frost, 2 Duer (N. Y.), 335 (1853); Steamboat Crystal Palace v. Vanderpool, 16 B. Monr. (Ky.) 302 (1855). See, how- ever, the Steamboat H. M. Wright, Newberry Adm. 494 (1854), in which case the court holds that personal or hand-baggage need not be deliv- ered to the carrier's actual custody in order to make him liable for its loss. In McKee v. Owen, Christiancy, J., says that the liability of the carriers for the loss of baggage is that of an inn-keeper. But in Steam- boat Crystal Palace v. Vanderpool the court says it knows of no case where this has been held. In Louisiana the code assimilates the liabil- ity of common carriers to that of inn-keepers. Dunn v. Branner, 13 La. Ann. 452 (1858). In Cohen v. Frost the plaintiff was a steerage passenger in defendant's ship. During the voyage his trunk was stolen. It had been in his exclusive possession and custody. Held, that he trusted to his own care and vigilance to protect him against its loss, and that the defendants were not liable. See, also. III Cen. R. R, v. Tronstine, 64 Miss. 834 (1887); I. & G. N. R. Co. v Folliard, 66 Tex- as, 603 (1886); Louisville, N. & G. S. R. R. v. Katzenberger, 16 Lea (Tenn.), 380 (1886). ' Pittsburg, C. & St. L. R. Co. v. Lyon, 123 Penn. 140 (1889). ' Robinson v. Great Western R. Co., i H. & R. 97 (1865). WAIVER BY CARRIER. 1 63 Stated in Chapter IV, as to the validity of contracts ex- empting from liability for negligence, would undoubtedly be applied in sucb a case. SECTION IX. WAIVER BY THE CARRIER.— THE PASSENGER'S REMEDY FOR THE VIOLATION OF A SPECIAL AGREEMENT MODIFYING OR WAIV- ING THE CARRIER'S RULES. The carrier may waive strict compliance with its rules. But a partial waiver, as, for example, allowing a passenger to use a ticket for a portion of the journey be- yond the time limited by it, will not be construed as a complete waiver. The carrier may afterwards enforce the rule, and refuse to allow the holder of the ticket to travel the remainder of the route unless he pays his fare.* It is held that the company's gate-keeper and train-despatcher has no authority to waive compliance with the conditions printed on a ticket, by assigning the passenger to a train on which he is not entitled to travel.^ The rule already stated, as to the effect of a partial waiver, applies to a ticket good for a given number of miles, but limited as to time.^ ^ Stone V. Chicago & N. W. R. Co., 47 Iowa, 82 (1877); Dietrich v. Penn. R. R., 71 Penn. 432 (1872); Hill v. Syracuse & N. Y. R. R., (>i N. Y. loi (1875). ' Johnson v. Phil., W. & B. R. R., 63 Md. 106 (1884). ' Sherman v. Chicago & N. W. R. Co., 40 Iowa, 45 (1874). So it was held in Wentz v. Erie R. Co., 5 Thomps. & Cook (N. Y.), 556; s. C 3 Hun, 241 (1874), that such a limitation was not waived by the fact of checking baggage for a passenger who tendered such a ticket to the baggage master, although the latter punched it as if it had been a valid ticket. In Cloud v. St. Louis, I. M. & S. R. Co., 14 Mo. App. 136 (1883), this same rule was applied to a waiver by the conductor of one of the carriers forming part of a line of connecting carriers. It was held that this waiver did not bind the carriers forming the rest of the line, for the whole of which the ticket in question was sold. Oppen- heimer v. Denver & R. G. R. Co., 9 Col. 320 (1886). In this case a mileage ticket, by its terms, was not good on a part of the route. Evi- 164 THE MODERN LAW OF CARRIERS. Where a railroad company is exempt from liability to a passenger by reason of his traveling on a free pass, it does not waive this exemption by accepting payment for drawing-room car ticket/ The decisions are not harmonious as to the effect of the omission of the carrier's agent to enforce at the outset some rule which it has prescribed for the purpose of giv- ing validity to the ticket. Some railroad companies re- quire persons purchasing excursion tickets to sign the ticket when purchased, and procure it to be stamped by the company's agent before beginning the return trip, and make a rule that an unstamped ticket is invalid. In some States it is held that if the failure to stamp the ticket is due to the mistake or fault of the carrier's agent, and the passenger has done what he reasonably can to secure a proper ticket, the ticket is valid, and the carrier has no right to refuse to receive it, although it is not stamped in conformity with his rules.^ On the other hand it was held, by the United States Supreme Court,' that even if the holder of the ticket applied at the proper office, and endeavored to procure his ticket to be stamped, but was unable to do so owing to the absence of the proper agent, the return ticket would nevertheless be invalid. But this was put on the ground that the agent whose default was the cause of the passenger's failure to procure his ticket to be stamped was not the agent of the defendant, but of dence that similar tickets had been used upon that part of the route without objection was held to be inadmissible. 1 Ulrick V. N. Y. Central & H. R. R. R., 108 N. Y. 80 (1888); revg. 13 Daly, 129 (1885). "" Head v. Georgia Pac. R. Co., 79 Geo. 358; 7 S. E. Rep. 217 (1887); Gregory v. Burlington & M. R. R. R., 10 Neb. 250 {1880); Kent v. Bal- timore & O. R. R., 45 Ohio St. 284 (1887). See ante, p. 144, n. 2. » Mosher v. St. Louis, I. M. & S. R. Co., 127 U. S. 390 (1888); affg. 23 Fed. Rep. 326 (1885). The same case held that a clause in a ticket, signed by the plaintiff, providing that no agent should have power to modify or waive the conditions of the ticket, was valid, and that it de- prived the conductor of power to waive the condition in question. WAIVER BY CARRIER. 1 65 a connecting line, for whose default, under the agreement, the defendant was not liable. In Massachusetts it is held that a conductor who delivers to a passenger who pays his fare a wrong ticket, does not bind the carrier so far as to make the ticket valid, and entitled the passenger to com- plete the trip for which he has paid.^ No doubt it would be inconvenient to compel a subse- quent conductor to determine whether the passenger's statement that he has paid his fare is true or not. On the other hand the general rule that a principal is bound by the acts and declarations of an agent in and about the business which he is authorized to transact, no matter what his secret instructions may be, should not be depart- ed from except for cogent reasons. The question is really : What is the passenger's rem- edy for a violation by the carrier's agents of a special agreement made by him with other agents of the carrier, which modifies or waives in his case the carrier's general rules? There is an irreconcilable conflict between the cases upon the question whether the conductor of a train is bound to accept the statement of the passenger respecting the contract alleged by him to have been made for his transportation. The tendency of the earlier cases was to hold that if the conductor did not do this, but acted in ac- cordance with the rules of the carrier in reference to the facts, as they appeared to him, irrespective of the passen- ger's statement, and the jury should find that the passen- ger's statement was, in point of fact, true, and that he had made a contract with some officer of the carrier, the efiect of which was to vary its rules, the carrier would be liable for any damages sustained by the passenger in conse- ^ Bradshaw v. South Boston R. R., 135 Mass. 407; s. c 46 Am. Rep. 481 (1883). In this case, however, it was held that the action should not be in tort, but for the breach of contract. 1 66 THE MODERN LAW OF CARRIERS. quence of his eviction from tliat train. All tlie cases agree that the carrier is liable in damages for the failure to perform a contract made by its authorized agent with the passenger/ But the question as to which they have ^ The company is liable for the breach of a contract made by a ticket agent, that a particular train shall stop at a particular station for which a ticket is purchased. Marshall v. St. Louis, K. C & N. R. Co., 78 Mo. 610; s. c. 18 Am. & Eng. R. R. Cas. 248 (1883). See ante^ p. 144, n. 3. In Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277 (1882), the court held that the ticket agent was authorized to make such a contract and that the carrier was liable in damages for its breach, but that the passenger had no right to require that the train should stop at the par- ticular station as represented by the ticket agent. In other words, his remedy is in damages, and he cannot insist upon the specific perform- ance of the agreement. In view of the practice of forwarding passen- gers to the nearest largest station by express trains, and then on local trains to their destination, this appears to be a reasonable solution of the question stated in the text. In Alabama, however, it was held in a similar case that the passenger could recover damages for eviction from the train. Ala. G. S. R. R. v. Heddleston, 82 Ala. 218 (1886). It is held that an agreement is valid between the passenger and con- ductor of a train, that it should stop at a particular station, at which it was not usual to stop. McGinnis v. Mo. Pac R. Co., 21 Mo. App. 399; s. c. 4 West Rep. 797 (1886); Georgia R. R. & B. Co. v. McCurdy, 45 Geo. 288; s. c. 12 Am. Rep. 577 (1872). In Hull V. East Line Red River R. R., 66 Texas, 619 (1886), a con- ductor had been in the habit of stopping at a place, not a station, and it was held that he must be considered as authorized to promise to let a passenger off there. In another case, however, it was held that the conductor had no authority to make an agreement that the train should stop at a station at which, according to the published time-table, the train was not to stop. Ohio & M. R. Co. v. Hatton, 60 Ind. 12 (1877). So it was held, in Pittsburg, C. «& St. L. R. Co. v- Nuzum, 60 Ind. 533 (1878), that the ticket agent had no authority to bind the company by his statements as to the station at which a train would stop- In St. Louis, A. & T. R. Co. v. Mackie, 71 Texas, 491; i Lawyers' Rep. Ann. 667; 9 S. W. Rep. 451 (1888), it was held that a passenger who had paid for first-class tickets, and, without negligence on his part, received second-class tickets, was entitled to ride first-class, and that the offer of the conductor, to allow him to ride first-class on paying the difference between first and second-class tickets, was no defense. In this case the passenger was not evicted, but made his journey in the second-class car. In two cases in Maryland reliance was placed on the fact that the statement on the face of the ticket expressed the rights of the passen- ger, and that he was bound to know what these were, and had no right to rely on the statement of a ticket agent (Pennington v. Phil., W. & B. R. R., 62 Md. 95 [1883]); or of a gate agent (Johnson v. Phil., W. & WAIVER BY CARRIER. 1 67 differed is as to tlie passenger's remedy. Can lie stand upon his rights as he understands them, resist an eviction from the train by all the force at his command, and, if the carrier is able — as it generally is — to bring superior force to bear, claim damages for the injuries caused to him by the forcible eviction ? In the reported opinions on this subject, this distinction between the right and the remedy has not always been observed. When the court has arrived at the conclusion that the contract of a com- pany, in reference to the passenger's transportation, had been violated, it has in some cases concluded that the pas- senger's remedy was to resist any eviction in violation of this contract.^ But this does not necessarily follow, and B. R. R., 63 Md. 106 [1884]), in contradiction of the language of the ticket. * The passenger may stand upon his rights based upon the assur- ances of the conductor (Tarbell v. No. Central R. R., 24 Hun [N. Y], 51 [1881]), or of the ticket agent, and if he is evicted in violation of the agreement so alleged to have been made by him, he can maintain an ac- tion of tort against the company. Jeffersonville R. R. v. Rogers, 38 Ind. 116 (1871); Murdock v. Boston & Albany R. R., 137 Mass. 293 (1884); Head v. Georgia Pac. R. Co., 79 Geo. 358; 7 S. E. Rep. 217 (1887); Ala. G. S. R. R. v. Heddleston. 82 Ala. 218 (1886); Kansas Pac. R. Co. V. Kessler, 18 Kans. 523 (1877). In Burnham v. Grand T. R. Co., 63 Me. 298; s. c. 18 Am. Rep. 220 (1873), the court held that the conductor should, before evicting the plaintiff, have offered to return the excessive fare already paid, or to deduct it from the addi- tional fare which he demanded. The case was one of a stop-over ticket, and the question arose as to the alleged agreement with the ticket agent, that the passenger might break his journey at an intermediate station. In the following case it was held that it was the conductor's duty to accept the statement of a passenger as to his contract with the ticket agent, irrespective of any statement upon the face of the ticket; and that if the conductor should, in violation of this contract, attempt for- cibly to expel the passenger, this would be an assault for which the car- rier would be liable. Hufford V. Grand Rapids & I. R. R., 64 Mich. 631; s. c. 7 West. Rep. 859 (1887). In this case the court say: "The ticket given by the agent to the plaintiff was the evidence agreed upon by the parties by which the defendant should thereafter recognize the rights of plaintiff in his contract, and neither the company nor any of its agents could thereafter be permitted to say the ticket was not such evidence, and conclusive upon the subject. Passengers are not interested in the in- l68 THE MODERN LAW OF CARRIERS. it is believed tliat the better opinion, and one wbicli on the whole will tend to subserve the objects for which car- riers are incorporated, is that the passenger should sub- mit peaceably to the decision of the conductor, and not compel a stopping of the train, much less a forcible evic- tion, but seek his remedy — if his rights have been vio- lated — by suit against the carrier for its breach of the contract/ This seems to follow from the fundamental proposition that the carrier discharges not a private, but a public function, and in the discharge of this function it is neces- sary, for the safety of passengers, that the train should be run with punctuality, stopping only at the appointed places. The more complicated the railway system be- comes, the more essential is it that the rules made by the carrier for the management of its train-service should be strictly observed. The cases are especially conflicting where the attempt has been made to eject a passenger for failure to produce any ticket whatever, or one in accordance with the car- rier's general rules. If the passenger originally had a ticket, which he has surrendered to a conductor, and no check or voucher has been returned to the passenger, it has been held that it was unlawful to eject him afterwards for failure to exhibit his ticket or pay his fare.^ ternal affairs of the companies whose coaches they ride in, nor are they required to know the rules and regulations made by the directors of a company for the control of the action of its agents and management of its affairs." If the agent of the carrier acts in good faith, the passenger should not offer exasperating resistance; and, if he does, can recover only the actual damage he sustains. Toledo, Wabash & W. R. Co. v. Wright, 68 Ind. 586 (1879). 1 Hall V. Memphis & Charleston R. Co. (U. S. C. Ct.. W. D. Tenn.), 15 Fed. Rep. 57 (1882); Chicago, B. & Q. R. R. v. Griffin, 68 111. 499 (1873); Pt"^- R- R- ^'- Connell, 112 111. 295 (1884); Southern Kan. R. Co. V. Rice, 38 Kan. 398; s. c. 16 Pacific Reporter, 817 (1888). ^ Hamilton ?'. Third Ave. R. R., 53 N. Y. 25 (1873); Townsend v. N. Y. Central & H. R. R. R., 6 Thomps. & Cook (N. Y.), 495 ; s. c. 4 WAIVER BY CARRIER. 1 69 The same rule has been laid down in cases where the holder of an excursion ticket received from the first con- ductor a check, instead of his return ticket; or where, from any error of the first conductor, the passenger failed to receive a return ticket in due form.^ Other cases main- tain the reverse. These conflicting decisions are stated in the notes. Hun, 217 (1875). I" this case the Supreme Court said: "To require a passenger to show a ticket may be reasonable, but a company cannot re- quire a passenger to comply with a regulation, compliance with which they have themselves prevented. Nor can it be said that the act of the conductor, in taking up the ticket, was wrongful toward the passenger. The company might take up their tickets whenever they chose, but they could not, by so doing, acquire the right to refuse to transport the pas- senger." Pittsburg, Cin. & St. L. R. Co. v. Hennigh, 39 Ind. 509 (1872); Palmer v. Charlotte, C. & A. R. R., 3 S. Car. (N. S ) 580 (1872); City & Suburban R. of Savannah v. Brauss, 70 Ga. 368 (1883). The authority of the statement just quoted from the Townsend case is not unquestioned. Indeed, the law in New York is by no means free from doubt. On the first appeal in the Townsend case, 56 N. Y. 295 (1874), the opinion of Grover, J., which is the only one reported, main- tains that the expulsion under the circumstances stated was lawful, but that the passenger had a remedy for the unlawful act of the first con- ductor in not giving him a proper check. It does not appear that this was concurred in by a majority of the court. And the General Term, in the same case, did not follow the rule thus stated, but held, as has been shown, that the expulsion was unlawful. And it was so held in the Hamilton case, in which the opinion was delivered by Grover, J., and in which the court was unanimous. The Townsend case in the Court of Appeals is cited without disapproval in Lynch v. Metropolitan El. R. Co., 90 N. Y. 77 (1882). In English z;. Delaware & Hudson Canal Co., 66 N. Y. 454 (1876), the court do not overrule it, but dis- tinguish it from the case of a passenger who has already paid his fare to the conductor who ejects him. In the latter case it was held that the passenger's resistance was lawful, and that he could recover for the in- jury caused him by the force used to overcome his resistance. The rule stated in Judge Grover's opinion in the Townsend case is in accord with Sheltin v. Lake Shore & M. S. R. Co., 29 Ohio St. 214 (1876). 1 Lake Erie & Western R. Co. v. Fix, 88 Ind. 381 (1882); Philadel- phia, W. & B. R. R. V. Rice, 64 Md. 63 (1885); Baltimore & O. R. R. V. Bambrey, 16 Atl. Reporter (Penn.), 67 (1888). It has, however, been held that in such cases the passenger's only remedy is an action against the company for the breach of the contract made by its agent. Frede- rick V. Marquette, H. & O. R. R., 37 Mich. 342 (1877). See St. Louis, A. & T. R. Co. V. Mackie, 71 Texas, 491; i Lawyers' Rep. Ann. 667; 9 S. W. Rep. 451 (1888). The Rice case should be compared with the other Maryland cases, ante, p. 166, n. i. 170 THE MODERN LAW OF CARRIERS. The distinction is taken in some of the decisions thus cited, between the case of a passenger who has failed to receive from one conductor the evidence of his right to passage in a connecting train, and that of a passenger who is evicted by the same conductor to whom he has paid his fare or surrendered his ticket.^ There certainly is an important difference between the two cases. But it can hardly be said to be sufi&cient, clearly to outweigh the argument drawn from the inconvenience and danger to the public, involved in the stoppage of a train at an unus- ual place, and for an indefinite time. SECTION X. POWER OF CARRIER TO ENFORCE REASONABLE RULES. The power to enforce reasonable rules and regulations made by the carrier must, of necessity, to a large ex- tent be vested in the carrier's servants. Their rights in this particular find many illustrations in reported cases. The carrier may authorize his servants to remove from the cars, or other property belonging to him, a person who has, after reasonable notice of the established regu- lations and opportunity for compliance, neglected or re- fused to comply with them, or to pay his fare.^ 1 English V. Delaware & H. Canal Co., (id N. Y. 454 (1876), and other cases cited, ante, p. 168, n. 2. "^ Carpenter v. Washington & G. R. R., 121 U. S. 474 (1887); Havens V. Hartford & New Haven R. R., 28 Conn. 69 (1859); Landrigan v^ The State, 31 Ark. 50 (1876); Barker v. Coflin, 31 Barb. (N. Y.) 556 (i860); Hibbard v, N. Y. & Erie R. R., 15 N. Y. 455 (1857); Cin. S. & C. R. R. V. Skillman, 39 Ohio St. 444 (1883); Louisville & N. R. R. v. Maybin, 5 So. Rep. (Miss.) 401 (1889). The Landrigan case was an appeal from a conviction for assault and battery. Appellant was the watchman at the depot of a railroad com- pany, which had adopted a regulation forbidding the entry of inn-keep- ers, or their agents, upon the platform of the depot for the purpose of soliciting patronage. The party assaulted, knowing the regulation, en- tered on the platform for the prohibited purpose. Appellant warned CARRIER TO ENFORCE REASONABLE RULES. 171 The authorities are not uniform as to whether, when the removal is made from a train, it may be made any- where, or only at a regular station. In Minnesota, Mary- land and Missouri it is held that he may be ejected any- where.^ The same rule has been laid down in Michigan, Iowa, Indiana and Kansas, subject to the just qualifica- tion that reasonable care and prudence be exercised in the selection of the place for ejection.^ In other States, how- ever, it is held that the ejection must be at a usual place for stopping the trains.^ him that he was violating the regulation, and notified him to desist; he refused, and thereupon appellant ejected him from the platform. Held, that the regulation was a reasonable one, and that the appellant com- mitted no offense in enforcing it. Atchison, T. & S. F. R. R. v. Gants^ 38 Kans. 608; s. c. 17 Pacific R. 54 (1888). Memphis & C. R. R. v. Chastine, 54 Miss. 503 (1877). In this case the passenger had a ticket, for which he had paid in counterfeit notes. He was ignorant of the character of the notes. Held, that the apparent payment was really no payment at all. * Wyman v. Northern Pacific R. R., 34 Minn. 210; s. c. 25 N. W. Reporter, 349 (1885). In this case, however, the person ejected was a trespasser. McClure v. Phil., W. & B. R. R., 34 Md. 532 (1871). The court say (p. 538): "We cannot concur in the doctrine contended for by the counsel for the appellant, that a passenger having no ticket, and refusing to pay his fare, can only be put off at some station on the road. The establishment of such a principle would result in compelling rail- road companies to carry a passenger to the station next to the one at which he entered the train, which might, and doubtless would often turn out to be, the very point to which he desired to be taken, and if the passenger were unknown to the conductor, the company would be without remedy." To the same effect is Lillis v. St. L., K. C. & N. R. Co., 64 Mo. 464 (1877), in which the court say that a person who goes on board a train with a ticket which, by the terms on its face, has ex- pired, and refuses to pay his fare, is a trespasser, although he has been advised that the ticket was valid. Everett v. Chicago, R. I. & P. R. Co., 69 Iowa, 15 (1886). 2 Great Western R. Co. v. Miller, 19 Mich. 305 (1869); Brown v Chicago, R. I. & P. R. Co., 51 Iowa, 235 (1879); Toledo, W. cSr W. R Co. V. Wright, 68 Ind. 586 (1879). It was so held in this latter case notwithstanding the existence of a statute similar to that of Illinois quoted in note 3. The court held this to be permissive only, and not mandatory. Atchison, T. & S. F. R. Co. v. Gants, 38 Kans. 608 (1888) 3 Chicago & Alton R. R. v. Flagg, 43 111. 364 (1867); Chicago, Bur lington & Quincy R. R. v. Parks, 18 lb. 460 (1857); Toledo, P. ^ W R. R. V. Patterson, 63 111. 304 (1872). In Illinois Central R. R. v. Sut 172 THE MODERN LAW OF CARRIERS. No unnecessary violence should be used.^ A passen- ger who has paid his own fare may be ejected for refusing ton, 42 lb. 438 (1867), the court recognize the proposition stated in the text. Jn that case, however, the passenger had endeavored to procure a ticket before entering the car — the regulation of the company re- quiring it — but had been unable to do so because the ticket office was closed. The court held that, as the company was itself at fault, it <:ould not impose such a hardship upon the passenger as putting him off its train in any place except a regular station. In some States this matter is regulated by statute. The general railroad act of Illinois (111. R. S. [ed. 1883], ch. 114, sect. 94) provides that the conductor may, if the passenger refuse to pay the required fare, eject him "at any usual stopping-place." This means the place where passenger trains usually stop for passengers to get on and off. Illinois Central R. R. v. Latimer, 21 N. East Rep. (111.) 7 (1889). See, also, 111. R. S., ch. 114, sect. 80, p. II 59. This was held to exclude the right of ejection at any other place, even though the passenger said that he would get off if the con- ductor would stop the train. Chicago & N. W. R. Co. v. Peacock, 48 111. 253 (1868). Under the New Hampshire statute (N. H. Gen. Laws, ch. 163, sect. 22) a "passenger station" was held to mean a place at which passenger tickets are usually sold. Baldwin v. Grand Trunk R. Co., 64 N. H. 596; 7 New Eng. Rep. iii; 15 Atl. Rep. 411 (1888). In New York the general railroad act, ch. 140, of 1850, sect. 35 (3 Rev. Stat. Banks Bros., 8 ed. 1760), requires that the ejection should be at a sta- tion or near a dwelling house. A similar provision is contained in the Rapid Transit Act, Laws 1875, ^h. 606, sect. 29 (3 R. S. Banks Bros., 8 ed. 1831); and in the statutes of Vermont, Stephen v. Smith, 29 Vt. 160 (1857); and California, Wright v. California Central R. Co., 20 Pac. Rep. 740 (1889). Passengers on railroad trains have a right to seats, and if one refuses to pay his fare because no seat is furnished him, he cannot be ejected except at a regular station. Hardenburgh against St. Paul, M. & M. R. Co., 38 N. W. Rep. (Minn.) 625 (1888). In this case it is said that a trespasser can be ejected anywhere. This was so held in Illinois Central R. R. v. Whittemore, 43 111. 420 (1867); South Fla. R. Co. V. Rhoads, 3 Lawy. Rep. (Fla.) 733; 5 So. Rep. 633 (1889). In Florida there is a statute on the subject, but, like that of Illinois, it provides only for the case of a refusal to pay fare. A passenger who tenders sufficient fare to the station to which he wishes to go, which is wrongfully refused by the conductor, may lawfully insist that he be put off at once, and not be carried to the next station. Hall v. South Caro- lina R. Co., 28 S. Car. 261 (1887). ^ Gallena v. Hot Springs R. R., 13 Fed. Rep. 116; s. c 4 McCrary, 371 (1882); New Jersey Steamboat Co. v. Brockett, 121 U. S 637 (1887); Law V. Illinois Cent. R. R., 32 Iowa, 534 (1871); Coleman v. New York & N. H. R. R., 106 Mass. 160 (1870); Great Western R. Co. v. Miller, 19 Mich. 305 (1869); Hanson v. European & N. A. R. Co., 62 Me. 84 (1873); State V. Ross, 26 N. J. Law, 224 (1857); Jardine v. Cornell, 50 Ibid, 485 (1888). Whether it has been or not, is a question for the jury. Arnold v. Penn. R. R., 115 Penn. 135; s. c. 6 Central Rep. 630 (1887). CARRIER TO ENFORCE REASONABLE RULES. 1 73 to pay tlie fare of a child who is accompanying him, and under his charge.^ It has been held that if the ejection be made in good faith, but not at a regular station, the aggrieved party can only recover the damages caused by the unsuitableness of the place.^ The carrier's servants would not, in any case, be justified in ejecting a person from the cars while the train was in motion.^ Some rea- sonable regard must be had for the safety of even a tres- passer or intoxicated person, and especially for the safety of a sick person who is removed because his continuance in the car, in the condition in which he is, is inconsistent with the health or comfort of the other passengers/ In Connecticut it was held that the holder of a commutation ticket, who could not find it when its production was re- But in Stone v. Chicago & N. W. R. Co., 47 Iowa, 82 (1877), it was held that a person ejected had no right of action because the company- had not employed for his ejection gentlemanly, polite, or even sober, servants. Chicago, St. L. & P. R. R. v- Bills, 104 Ind. 13; s. c. 3 North Eastern Reporter, 6n (1885). ^ Philadelphia, W. & B. R. R. v. Hoeflich, 62 Md. 300 (1884); Gib- son and Wife v. E. Tenn., V. & G. R. Co., 30 Fed. Rep. 904 (1887). 2 Toledo, Peoria & W. R. R. v. Patterson, 63 111. 304 (1872); Phila- delphia, W. & B. R. R. V. Hoeflich, 62 Md. 300 (1884). 3 Holmes z;. Wakefield, 12 Allen (Mass.), 580 (1866); State v. Kin- ney, 34 Minn. 311; s. c. 25 N. W. Reporter, 705 (1885); Sanford v. Eighth Ave. R. R., 23 N. Y. 343 (1861). * Arnold v. Penn. R. R., 115 Penn. 135; s. c. 6 Cent- Rep. 630 (1887); Railway Co. v. Valleley, 32 Ohio St. 345 (1877); Louisville, C. & L. R. R. V. Sullivan, 81 Ky. 624 (1884); Louisville & N. R. R. v. Lo- gan, 3 Lawy. Rep. Ann. (Ky.) 80 (1889); Atchison, T. & S. F. R. R. v, Weber, 33 Kans. 543 (1885); Connolly v. Crescent City R. Co., 3 Lawy. Rep. 133 (1888). In McClelland v. Louisville, N. A. & C R. Co., 94 Ind. 276 (1883), it was, however, held that if the conductor had once put the drunkard in a safe place, he was not bound to watch him, and keep him out of danger. It was held, in Missouri, that a person who entered a car, under ad- vice that a ticket which he had previously bought was still valid, al- though by its terms it had expired, and had resolved not to pay any fare, never became a passenger, but was a trespasser from the begin- ning, and could be ejected anywhere, and was not entitled to the bene- fit of the statute that passengers can only be ejected from the cars near a station or freight house. Lillis v. St. Louis, Kansas City & Northern R. Co., 64 Missouri, 464 (1877). 174 THE MODERN LAW OF CARRIERS. quired by the conductor, could only be ejected at a usual station, and regulation to tbe contrary was held unreason- able and void.^ The passenger is entitled to a reasonable time to find and produce his ticket, or pay his fare.*^ And if the passenger innocently violate a regulation, even if he is somewhat offensive in language or conduct, he is entitled to an explanation from the conductor.' It has been held, after considerable discussion and some rulings to the contrary at nisi prius^ that if a pas- senger has once been lawfully ejected from a train, or even if the train has been stopped for the purpose of ejecting him, he has no right to re-enter the same ex- cept at a regular station,* and not even then, unless he ^ Maplesz'.N.Y.&N.H.R.R., 38 Conn. 557(1871). In Downs f. N. Y. & N. H. R. R., 36 Conn. 287 (1869), the passenger had, by mistake, left his commutation ticket at home, and was unable to show it when called for; and it was held that, in conformity with an express stipulation in his contract with the company, the latter had the right to demand the ordi- nary fare for the passage, and that, upon his refusal to pay, the con- ductor lawfully ejected him from the cars at the next regular station. Maples V. N. Y. & N. H. R. R., 38 Conn. 557 (i 871), differs from the case of Downs v. The Same, in that the plaintiff Maples had his commutation ticket about his person, and only requested a reasonable time to find it, which was denied; that there was no express stipulation in his contract with the company that he should pay his fare for the trip if his ticket was not shown to the conductor, to whom he was well known as a commuter; and finally, that he was ejected from the train at a place other than a regular station. In this case it was held that the ejection was unlawful. = Maples V. N. Y. & N. H. R. R., 38 Conn. 557 (187 1); Curl v. Chicago, R. I. & P. R. Co., 63 Iowa, 417 (1884); Robsori v. N. Y. Cen- tral & H. R. R. R., 21 Hun, 387 (1880); Hayes v. New York Central & H. R. R., 18 Am. & Eng. R. R. Ca. (N. Y.) 363 (1884); Clark v. Wil- mington & W. R. R., 18 Am. & Eng. R. R. Ca. (So. Car.) 366 (1885); International & G. N. R. R. v. Wilkes, 68 Tex. 617 (1887). ' Compton V. Von Volkenburgh, 34 N. J. Law, 134 (1870). ♦ O'Brien v. Boston & W. R. R., 15 Gray, 20 (i860); Nelson v. L. L R. R., 7 Hun (N. Y.), 140 (1876); Hibbard v. N. Y. & Erie R. R.. 15 N. Y. 455 (1857); Pease v. D., L. & W. R. R., 11 Daly (N. Y.), 350 (1883); s. c. loi N. Y. 367 (1886); People v. Jillson, 3 Parker, C. C. 234 ( 1856); Hoffbauer v. D. & N. W. R. Co., 52 Iowa, 342 (1879); R. R. Co. v. Skillman, 39 Ohio St. 444 (1883); State v. Campbell, 32 N. J. Law, 309 (1867). In the Campbell case the passenger had purchased an "excur- sion ticket," on the face of which it was declared that it was "good for CARRIER TO ENFORCE REASONABLE RULES. 1 75 one passage on the day sold only." The passenger, returning upon a subsequent day, purchased an ordinary ticket and entered a train. Being called on by the conductor for his ticket, he produced the return coupon of the spent excursion ticket, keeping the one he had just bought out of view. The coupon was refused and his fare demanded, and, not complying with the demand nor intimating that he had a valid ticket, he was ejected at a regular station, after considerable resistance, which caused delay and inconvenience to the train and other passen- gers. After his expulsion, and before the train started, he exhibited his valid ticket to the conductor and attempted to re-enter the train, but was prevented by force. Held, that the conductor had the right to ex- clude him. O'Brien v. N. Y. C. & H. R. R. R., 80 N. Y. 236 (1880), holds: That where the train is stopped for the sole purpose of ejecting a pas- senger who has refused to pay his fare, he cannot regain his right to be carried by a tender; but where the train stops at a regular stopping- place, and the passenger, before being ejected — or others, in his be- half — offer to pay the full fare, it is the duty of the conductor to accept it; and if he refuses, and ejects the passenger, the company is liable. In Texas it is held that if the passenger's refusal to pay the fare demanded is not willful, but based on an honest mistake, the con- ductor is bound to allow him to remain on the train if he tender the right amount immediately after the bell to stop is pulled. Texas & P. R. R. Co. V. Bond, 62 Texas, 442 (1884). In Bland v. Southern Pacific R. R., 55 Cal. 570 (1880), it was held that where a passenger, who had no ticket, paid the conductor the price for a ticket, but not the addi- tional charge exacted when fare was paid in the cars, the conductor could not lawfully eject him until after he returned the money, and that returning it after the ejection was insufficient to render the ejection law- ful. Hoffbauer v. D. & N. W. R. Co., supra, tends to the contrary. In Chicago, B. & Q. R. R. v. Bryan, 90 111. 126 (1878), it was held that if the passenger had paid fare to the station at which he was evicted, he had the right there to re-enter the train upon paying fare from there to his destination. In Louisville & Nash. R. R. v. Garrett, 8 Lea (Tenn.), 438 (1881), the court say: "His Honor (below) was correct when he told the jury, substantially, that if another person offered to pay the fare before ejec- tion from the car, the carrier was bound to receive it and transport the passenger. It is unimportant to the carrier from whom the money comes. If it is the proper amount, he gets what he is entitled to, and must perform the duty imposed. To require that the passenger shall pay his own money would be absurd. If another party offers to pay for him, it. is precisely as if the party, finding himself without money to pay, had borrowed the amount from one near him and tendered it. The conductor would have the same right to refuse to accept the money thus borrowed as to refuse the offer made in this case." In that case the offer was not made till after the bell-rope had been pulled for the train to stop, but court held it should have then been accepted and the passenger allowed to ride. s. P., Guy v. N. Y., O. & W. R. R., 30 Hun, 399 (1883)- , , In South Carolina R. R. v. Nix, 68 Georgia, 572 (1882), the court 176 THE MODERN LAW OF CARRIERS. pays liis fare from the station at which he originally en- tered the train. ^ The carrier's servants are bound to regard the age, condition of health, and other circumstances of the pas- senger before determining whether to eject him.^ The carrier has no right to detain a passenger at the station, at which he alights, until he produces a ticket or held that the passenger would have the right to re-enter the train if he tendered the proper fare before the train started, but not afterwards. In Gould V. Chicago, M. & St. P. R. Co., 18 Fed. Rep. 155 (1883), it was held that if the passenger had been abusive, and compelled the conductor to resort to violence, he could not require the carrier to re- ceive him, even at a regular station ; but that if no such misconduct were shown the rule would be otherwise. ^ Stone V. Chicago & N.W. R. Co.. 47 Iowa, 82 (1877); s. c. 29 Am. Rep. 458; Swan v. Manchester & L. R., 132 Mass. 116 (1882). In Louisville, N. & G. S. R. R. v. Harris, 9 Lea (Tenn.), 180; s. c 16 Am. & Eng. R- R. Cas. 374 (1882), the right to re-enter the train at a sta- tion, even on tender of the full fare, was denied. In this case the pas- senger was a commuter, the violation of the rule which forbade him to detach coupons was technical only, and the rule seems to have been ap- plied with needless severity. "^ Sheridan v. Brooklyn City R. R., 2>^ N. Y. 39 (1867). In Louis- ville, Nashville & G. S. R. R. v. Fleming, 14 Lea (Tenn.), 128 (1884), it was held that if an infirm person told the conductor that his ticket was in his pocket, and the conductor undertook to search for it, "he should do so properly, and in good faith." But the obligation to search is denied. It was held, in Curl v. Chicago, R. I. & P. R. Co., 63 Iowa, 417 (1884), that if the passenger, through no fault of his own, had failed to get a ticket, and had only enough money to pay for one, but not the extra charge required from those who had no ticket, he was entitled to a reasonable time to obtain it from other passengers. In the Fleming case the court treat this as a question of contributory negligence, and state that the rule in Tennessee is different from that of other States, in that there contributory negligence may be shown in mitigation of dam- ages, even in cases where, by reason of the willfulness of the tort com- mitted by defendant's agents, it is not a defense. East Tenn., V. & G. R. R. V. Fain, 12 Lea, 35 (1883); Nashville & C R. R. z'- Carroll, 6 Heiskel, 347 (1871); Louisville & N. R. R. v. Burke, 6 Cold. (Tenn) 45 (1868); Nashville & C. R. R. v. NowUn, i Lea, 523 (1878). It has been held that persons unable to take care of themselves must provide proper assistance, and cannot require the carrier to do so. New Or- leans, J. & G. N. R. R. V. Statham, 42 Miss. 607 (1869); Hemingway V. Chicago, M. & St. P. R. Co., 72 Wis. 42; 37 N. W. 804 (1888); Wil- letts V. Buffalo R. R., 14 Barb. 585 (1853). Compare Owens v. Kansas City, St. J. & C. B. R. Co., 8 S. W. (Mo.) 350 (iJ WHETHER NOTICE OF RULES IS NECESSARY. 177 pays his fare.^ But though there is no lien on the per- son, the carrier has a lien on the passenger's baggage for his unpaid fare.^ Where a commuter refused to show his ticket or pay his fare, it was held that the company might eject him or forfeit his ticket, but could not, on a subsequent occasion, refuse to sell him another commutation ticket.^ Where a passenger has been in the habit of improp- erly carrying merchandise in his trunk, the carrier may lawfully require him to sign a statement as to the con- tents of his trunk/ In this class of cases we have no English authorities. In England no facilities are afiforded for paying fare on the cars, and a ticket can only be procured before enter- ing them. SECTION XI. WHETHER NOTICE OF THE RULES IS NECESSARY; AND IF SO, WHAT ? In many cases it is held that persons who deal with carriers, and especially passengers seeking to take pas- ^ Lynch v. Metropolitan El. R. Co., 90 N. Y. 77 (1882); ante, pp. 139, 140, nn. I, 2. In Sullivan agst. Old Colony R. Co., 18 N. East. (Mass.) 678; I Lawy. Rep. Ann. 513 (1888), a drunken and disorderly person was put into the baggage car, and carried to his destination. Held, that the company had a right to do this, and were not bound to put him into the hands of an officer at the next station. 2 Roberts v. Koehler (U. S. C Ct Oregon), 30 Fed. Rep. 94 (1887). 3 Atwater v. Delaware, L. & W. R. Co., 48 N. J. Law, 55 (1886). * Norfolk & W. R. Co. v. Irvine, 5 S. E. Rep. (Va.) 533 (1888). Whether it can require an affidavit qiuere. But the court will not be critical as to the requirements of the carrier towards a passenger who is engaged in a deliberate attempt to make occasion for a suit against the carrier. Same v. Same, 7 S. E. Rep. (Va.) 233 (1888). Where plaintiff was riding on a car with his assistant, under a drover's pass good only for one, and told the conductor if it was not right he might eject his assistant, the conductor would not be thereby justified in expelling the plaintiff. Missouri Pac. R. Co. v. Aiken, 9 S. W. Rep. (Texas), 437 (i( 12 lyS THE MODERN LAW OF CARRIERS. sage ou railway trains, are bound to make enquiry as to the rules established by the carrier with reference to the proposed transit, and conform thereto, and that if no en- quiry be made, the passenger is subject to the reasonable rules of the carrier even though unknown to him/ On the other hand it is held that a regulation as to the time within which the ticket must be used is not valid unless some notice is given to the purchaser at the time he buys his ticket/ The same rule was ap- plied, in Illinois, to a case where a man bought a ticket for himself and family, and the carrier's rule was that a son over twenty-one 3^ears of age, even though residing with his father, was not entitled to be transported under such a ticket/ The decision of the court in any given case would ^Cheney v. Boston & Me. R. R., ii Mete. (Mass.) 121 (1846); El- more V. Sands, 54 N. Y. 512 (1874); Beebe z'. Ayres, 28 Barb. (N. Y.) 275 (1858). In this latter case the court say of the passenger: ''He is presumed to have purchased the ticket in reference to the regulations of the road." Northern R. R. v. Page, 22 Barb. (N. Y.) 130 (1856); Dunphy v. Erie R. Co., 42 N. Y. Super. Ct. 128 (1877). The same rule was laid down, as to the duty of the passenger to ascertain by enquiry what trains would stop at his place of destination, in Duling v. Phila- delphia, W. & B. R. R., 66 Md. 120; 5 Cent. Rep. 570 (1886). In McRae v. Wilmington & W. R. R., 88 N. C 526; s. c 43 Am. Rep. 745 (1883), the court say: "One who buys a ticket is bound to in- form himself of the rules and regulations of the company governing the transit and conduct of its trains." It was held, therefore, that a passen- ger who bought an excursion ticket at less than usual rates, was bound to ascertain on what train his ticket would be good; that a rule of the carrier limiting its validity to a special excursion train was reasonable. So it is held that a condition as to the continuity of the trip need not be printed on the ticket. Drew v. Central Pac R. R., 51 Cal. 425 (1876); Oil Creek & Allegheny River R. Co. v. Clark, 72 Penn. 231 (1872). The regulations need not be communicated to the passenger, but he is bound by them, irrespective of notice. State v. Overton, 24 N. J. L. 435 (1854); Terry v. Flushing. N. S. & C. R. R., 13 Hun, 359 (1878); Dietrich v. Penn. R. R., 71 Penn. 432 (1872). In the Overton case, however, notice had been published. Atchison, T. & S. F. R. v. Gants, 38 Kans. 608; 17 Pac. Rep. 54 (1888). See cases, aiite^ p. 159, note 3, post, Ch. XI, sect. i. -Penn. R. R. v. Spicker, 105 Penn. 142 (1884). 3 Chicago & N. W. R. Co. v. Chesholm, 79 111. 584 (1875). WHETHER NOTICE OF RULES IS NECESSARY. 1 79 doubtless depend upon the usages of the business of transporting passengers, and the extent to which the traveling public had conformed to them. The giving of checks for baggage, the issuing of through tickets with a coupon for each railroad forming a part of the route, are now universal in the United States. But there was a time in the history of railway transportation when these facilities were not customary. Other usages spring up from time to time, and passengers and carriers will natu- rally conform to them, and special notice of them will neither be expected nor required. It has become, for ex- ample, the universal custom of railway companies to print, and post in their offices, their time-tables, and of passen- gers to ascertain at what stations particular trains are to stop. A passenger could not justly complain that the train he took did not stop at the station to which he was bound, if, with this usage in force, he should omit to in- quire whether a particular train was to stop at such sta- tion. If the rules and regulations of the carrier are printed on the ticket delivered to the passenger, this is sufficient notice to him of the rules so printed.^ And in some cases it is held that posting the rules in a conspicuous place in the carrier's public office is sufficient notice to the public whq do business there, if they have been posted long enough to enable persons in the exercise of due diligence to ascertain what the rules are.' 1 Kelsey v. Michigan Central R. R., 28 Hun (N. Y), 460 (1882); Cresson v. Phil. & Reading R. R., 11 Phila. 597; s. c. 32 Leg. Int. t,6^ (1875). 2 Burlington & M. R. R. v. Rose, 11 Neb. 177 (1881); Falkner J7. Ohio & Miss. R. Co., 55 Ind. 369 (1876). In Hart v. Baxendale, 6 Excheq. 769 (185 1), it was held that posting a notice in the carrier's public ofifice, that an increased charge would be made for the convey- ance of certain goods, was sufficient, though it was proved that the ship- per of the goods in question never saw the notice, and they were re- ceived by the carrier at the shipper's place of business. Proof that regulations, purporting to be those of the carrier, were posted in its rail- l8o THE MODERN LAW OF CARRIERS. Notice that a coupon is not good if detacTied from its book, printed on the coupon and on the book, is suf- ficient.^ A former employee of the carrier is chargeable with knowledge of its rules. ^ If the carrier desires to change its regulations in any- particular in which they affect the traveling public, it should give reasonable notice of the change. Proof of personal notice is unnecessary, but the change should be so published as to give passengers reasonable opportunity to be informed of the chan^e.^ road car is sufficient to show that they were, in fact, its regulations. Wright V. Cal. Cent. R. Co., 20 Pac. Rep. 740 (1889). ^ Boston & Maine R. R. v. Chipman, 146 Mass. 107 (1888). 2 Virginia Midland R. Co. v. Roach, 83 Va. 375 (1887). ^ Kansas Pac. R. Co. v. Kessler, 18 Kans. 523 (1877); Lane v. E. Tenn., V. & Geo. R. R., 5 Lea (Tenn.), 124 (1880). CHAPTER VIII. CONFLICT OF LAWS. There is probably no brancli of tbe law more intricate, or more confused with conflicting decisions, than that which forms the subject of this chapter. The text writers have not succeeded any better than the judges in dealing with it. As judge-made law it has many defects and in- consistencies, but no codifier has yet shaped it into sym- metry. I shall not attempt to consider the subject at large. To do so would require a volume. But the questions upon carrier s contracts, in the decision of which the conflicting laws of different jurisdictions have been invoked, cannot be passed by without consideration. Lines of steamers link the continents. Lines of railroads span them. The laws of the country where the contract of affreightment is made differ from those of the country where its perform- ance is to be completed. England has one policy as to stipulations limiting the liability of common carriers. The Federal courts declare another for the United States. Our different States disagree between themselves. Stat- utes have been passed which complicate the subject. Its difficulty has been enhanced by the changes in the method of doing business that have taken place during the past twenty-five years. One of the most remarkable features in the history of this country during that time, has been the growth of great corporations, and the extension of their operations into many different States. American courts found in the British law the curious fiction, that for some purposes Scotland was a kingdom foreign to that of England. This 1 82 THE MODERN LAW OF CARRIERS. was probably due to the prejudice entertained by the En- glish of King James' time for their northern neighbors. Our courts adopted a similar rule, and held that the States of this Union were, for many purposes, foreign to each other. And this rule embarrassed them in dealing with corporations. Technically these are artificial beings, ow- ing their existence only to the law of the State which cre- ated them, which law has no extra-territorial force. It was gravely questioned at one time whether a corporation had power to contract beyond the boundaries of the State under whose laws it was incorporated. It required the el- oquence and the farseeing wisdom of Mr. Webster to con- vince the Supreme Court of the United States that this contention was too narrow and technical. In the celebrated "Alabama Appeal Cases," one of which only — The Bank of Augusta V. Earle — is reported,^ it was held that a cor- poration incorporated under the laws of one State could make a valid contract in another, unless prohibited by the laws of that State. Since that time many States have adopted general laws for the creation of corporations, and they have practically become limited partnerships, capable of suing and being sued by the firm name, and having perpetual succession. For a long time, too, it was questioned whether a com- mon carrier incorporated under the laws of one State had any power to make a contract to transport persons or property beyond the limits of that State. In Bissell v. The Michigan Southern & N. Ind. R. R.^ this defense of ultra vires was set up to an action for injuries received by a passenger, on the cars of the defendant, outside the limits of the State which chartered it. The court sustained the right of action on the ground that the corporation had re- ceived the consideration of the contract, and was estopped 1 13 Peters, 519 (1839). ^ 22 N. Y. 258 (i860). LAW PLACE OF CONTRACT. 1 83 to set Up this defense when redress was sought for its breach. The validity of such contracts is now well settled, and we see the Pennsylvania Railroad Company practically managing a line of railway from New York to Chicago, extending through seven States. The great telegraph companies extend their lines over a field even wider. And the courts have had no more difficult task than the de- cision of the question : by what law should contracts for interstate and foreign transportation be interpreted, and the consequences of their breach be determined ? The important question to the consideration of which this chapter is devoted is this : Under what circumstances will a court, sitting in a forum, the public policy of which is opposed to limitations of liability for the negligence of a carrier's servants, enforce such limitations when the con- tract is made or to be performed in another jurisdiction? For example : a contract is made in Bngland, between parties domiciled there, by which one agrees to transport to Philadelphia the goods of the other. The contract con- tains a clause that the carrier shall not be liable to the shipper for any damages caused by the negligence or bar- ratry of the carrier's servants. In Bngland this clause is declared by the courts not to be against the public policy of that country. In Pennsylvania it is declared by the courts to be against the public policy of that State. If loss ensues from the excepted cause, and the carrier is sued in Pennsylvania, shall he have the benefit of the ex- emption ? We will first consider the general rules which ought to guide courts in determining the validity of particular stipulations in contracts made in one jurisdiction, to be partly or wholly performed in another. I. A contract which is lawful in the country where it is made and is to be performed is valid everywhere, and 184 THE MODERN LAW OF CARRIERS. the courts of every country in which its enforcement is sought should, therefore, give effect to its provisions.* ^ In Hale v. N. J. Steam Nav. Co., 15 Conn. 539; s. c 39 Am. Dec. 398 (1843), which was one of the cases growing out of the loss of the Lexington, the court say: ** Contracts are to be construed according to the laws of the State where made, unless it is presumed from their tenor that they were entered into with a view to the laws of some other State. Bartsch v. Atwater, i Conn. 409, 416 (1815); Smith v. Mead, 3 Id. 253; s. c. 8 Am. Dec. 183 (1820); Brackett v. Norton, 4 Id. 517; s. c 10 Am. Dec. 179 (1823). There is nothing in this case, either from the loca- tion of the parties or the nature of the contract, which shows that they could have had any other law in view than that of the place where it was made. Indeed, as the goods were shipped to be transported to Boston or Providence, there would be the most entire uncertainty what was to be the law of the case if any other rule were to prevail. We have, therefore, no doubt that the law of New York, as to the duties and liabilities of common carriers, is to be the law of the case." Story on Conflict of Laws, section 280, says that, in general, the validity, nature, obligation and interpretation of a contract are to be governed by the law of the place of performance, "in conformity to the presumed intention of the parties." Chancellor Kent, 2 Comm. 461, note c, states the rule differently: "The general principle is, that as to contracts purely personal, their construction is governed by the law of the place where they were made, the consequences of their breach by that of the country where they are enforced." So Lord Langdale, Mas- ter of the Rolls, Cooper v. Earl of Waldegrave, 2 Beav. 282 (1840). Knowlton v. Erie R. Co., 19 Ohio St. 260; s. c. 2 Am. Rep. 395 (1869). This was an action for injuries caused the plaintiff by the neg- ligence of defendant's servants. By the terms of the contract the plaintiff was to be carried gratuitously, and was to assume all risk of in- jury arising through the negligence of defendant's servants or other- wise. Held, that the validity of the contract must be determined by the law of New York, and that, as it was valid in that State, the plaint- iff could not recover. In this case, however, the contract was wholly to be performed within the State of New York. In Shuenfeldt v. Junkermann, 20 Fed. Rep. 357 (1884), a question arose as to the validity of a contract negotiated in Iowa, which was not to take effect until approved by the principals in Chicago. The con- tract was valid by the laws of Illinois, but void by the laws of Iowa. The United States Circuit Court for the District of Iowa held that the place of the contract was the place where it was consummated, and not that where it was negotiated. A recovery upon the contract was there- fore sustained. It is to be observed that in this case the goods in question were to be delivered in Iowa. That, therefore, was certainly the place of performance. This case must therefore be considered as an authority for the proposition that a court sitting in the State where a contract is to be performed will enforce it, if it is valid by the law of the State where it is made. In other words, its validity is determined by the lex loci contractus. Story, Conflict of Laws, sects. 286, 286a. s. p. Tajbott V. Merchants' Despatch Trans. Co., 41 Iowa, 247 (1875); LAW PLACE OF PERFORMANCE. 185 An exception to this first rule may be thus stated. No court is bound to enforce a contract intrinsically wicked {malum in se), nor one the enforcement of which is pro- hibited by the express legislation of the forum {nialum prohibitiiin)} II. When a contract is made in one country, to be wholly performed in another, its validity is to be deter- mined by the law of the place of performance, unless the contract expressly provide otherwise.^ Malpica v. McKown, i Louisiana, 248; s. c. 20 Am. Dec. 279 (1830). In Turner v. Lewis, 2 Mich. 350 (1852), the court held that in order that a lien might attach under a Michigan statute for the collection of demands against ships for a breach of contract of affreightment, the "contract ^sic) must arise" in that State, and that a lien did not at- tach, in case of breach, where the contract, though mide in another State, was to be performed in Michigan. Burckle v. Eckhart, 3 N. Y. 132 (1849), is directly the reverse, and seems, to the author, to be much more in harmony with the leading authorities. ^ In Andrews against Pond, 13 Pet. 65 (1839), the general rule was held to be that the law of the place of performance is to govern. This does not apply, however, where a contract is made in one State to evade its laws, and in direct violation of its statutes- In ex parte Dickinson, 29 So. Car. 453 ; s. c. sub nom. Sheldon v. Blauvelt, 7 S. E. Rep. 593 (1888), it was held that an assignment made in New York, and valid by the laws of that State, did not operate to transfer title to property in South Carolina because it contained preferences. The statute of South Carolina provided that an assignment with preferences (except to employees) should be void. On the other hand it is held that a pur- chase, valid in the State where it was made, transferred a good title to the railway ticket which was the subject matter of the sale, although the ticket was partly to be used in a State where the contract of purchase was prohibited. Sleeper v- Penn. R. R., 100 Penn. 259 (1882). Among the cases cited in support of the second rule {post, p. 185, n. 2) there are many in which the contract under consideration was invalid by the law of the forum, but was nevertheless enforced. See, also, the cases under the usury Idiw?,, post, p. 187, n. 2. ^ "The general principle in relation to contracts made in one place to be performed in another is well settled. They are to be governed by the law of the j^lace of performance." Miller v. Tiffany, i Wall. 298, 310 (1863); Pritchard v. Norton, 106 U. S. 124 {1882); Junction Railroad Co v. Bank of Ashland, 12 W;ill. 226 (1870); Bell v. Bruen, r How. 169, 182 (1843); Le Breton v. Miles, 8 Paige, 261 (1840); Osgood V. Bauder, 75 Iowa, 550; 39 N. W. Rep. 887 (1888). The rule thus stated was one of the first to be applied to the solu- tion of the many intricate questions that arose from the conflict be- 1 86 THE MODERN LAW OF CARRIERS. The reason given for the decisions to which reference has been had, is that parties are presumed to have con- tracted with reference to the law of the place of perform- ance. This presumption, in most cases, has been treated tween the laws of different countries, and is expressed with precision by the writers on the civil law. " Vulgo quidem ita traditum invenio, observare debere statiitum, non loci illitis ubi ventilatitr resiitutionis gtiaestio, neque etiam regionis illius ubi laedens aiit laesus dumic ilium fovet, sed magis illius territorii in quo contractus seu negotium davtnosu7ti celebratum est : nisi co?itr actus i/iiplei/ientuni ad aliu/n locum sit destinattim, ttcnc enim hujus loci leges in judicando spectandas esseP Voet ad Pand. vol. i, Paris ed., p. 315, lib. 4, tit. I, sect. 29. To the same effect is The Digest, Lib. XLIV, tit. VII, 21. ^^Contraxisse unusquisque in eo loco intelligitur in quo, ut solver it., se obligavitP This rule has been carried so far as to sustain the validity of a con- tract for a loan which was usurious and void by the law of the place where it was made, but valid by the law of the place where the money was payable. Andrews v. Pond, 13 Peters, 65, 78 (1839); Miller v. Tif- fany, I Wall. 298, 310 (1863); post, p. 187, n. 2. So in Penobscot & Kennebeck R. R. Company v. Bartlett, 12 Gray, 244 (1858), the court say (p. 246), referring to a contract made in Bos- ton, of subscription to stock in a railroad in Maine: "We are of the opinion that the validity, obligation and interpretation of the contract must be governed by the law of the State of Maine. . . . We can- not doubt that the place of performance of the contract was in the State of Maine, and that it was so understood and intended by the par- ties." In Burckle v. Eckhart, 3 N. Y. 132 (1849), it was held that where a contract was made in Oswego for the manufacture of flour there, to be delivered in Canada, the cause of action arose in Canada, and the per- formance of the contract was to be regulated according to the law of Canada. In Cox v. The United States, 6 Pet. 172, 202 (1832), a bond was executed in Louisiana, conditioned that the principal, who was a governrnent officer, should account at Washington. It was held that, in construing the bond, the law of the place of performance was to govern, and the liability of the sureties was determined by that law. In Brown v. Camden & Atlantic R. R., 83 Penn. 316 (1877), the contract was made in Pennsylvania with a New Jersey railroad com- pany, to transport a passenger and his trunk from Philadelphia to Atlantic City, N. J. The trunk was lost, and it was held that the lia- bility of the carrier was to be determined by the law of New Jersey. The court says (p. 318): "It is perfectly well settled by a host of authorities, which it would be an affectation of learning to cite, that it is the law of the place of performance by which the mode of fulfilling a contract and the measure of liability for its breach must be determined." LAW PLACE OF PERFORMANCE. 1 87 by the courts as a conclusive one, and no evidence of the intention of the parties in that regard has been required/ The only exception to this rule just stated, as to the law of the place of performance, is one relating to con- tracts for the payment of interest for the loan of money. In that case the courts have inclined to allow the parties to stipulate for the rate of interest allowed by the law of either place, and have thus frequently enforced contracts which were void by the positive legislation of the State in which they were made, but which were valid by the law of the place of performance.^ Nevertheless the rule thus stated is not controlling in our present enquiry, for it is seldom, indeed, that a contract of affreightment is made in one country to be wholly performed in another. The ordinary cases, and those which are difficult, are where a contract is made in one country, partly to be performed in that, partly to be performed in other States — or on the high seas — and partly to be performed in a country other than that of the place of contract. III. The construction of the language used in a con- tract is to be determined by the law of the State in which it is made.^ 1 Prentiss v. Savage, 13 Mass. 20 (1816). In this case the court say: "It seems to be an undisputed doctrine, with respect to personal con- tracts, that the law of the place where they are made shall govern in their construction, except when made with a view to performance in some other country, and then the law of such country is to prevail. This is nothing more than common sense and sound justice, adopting the prob- able intent of the parties as to the rule of construction. . . . And it is also to be presumed, when the contract is to be executed in any other country than that in which it is made, that the parties take into their consideration the law of such foreign country. The latter branch of the rule, if not so obviously founded upon the intention of the ])arties as the former, is equally well settled as a principle in the law of con- tracts." See aiite^ p. 185, n. 2; post, pp. 196-199. '' Rail Road Co. v. Bk. of Ashland, 12 Wall 226 (1870); Depau v. Humphreys, 8 Mart. N. S. (La.) i (1829); ante, p. 186, note. * 2 Kent Comm. 458, 461, n. c; Story Conf. Law, sect. 272; Scud- der V. Union Nat. Bank, 91 U.S. 406 (1875). (See this case considered in Dickinson v. Edwards, 77 N. Y. 573 [1879].) Aymar v. Sheldon, 12 1 88 THE MODERN LAW OF CARRIERS. IV. In many cases of maritime contracts courts have held that their validity is to be determined by the law of the flag, that is to say, by the law of the nationality to which the ship belonofs. This rule has been advocated, on the ground that it relieves the court from the difficulties which have been found to attend the application of the rule firstly stated in this chapter, to the case of contracts made in one coun- tr}^, but to be performed in several.^ Wend. 439 (1834); Scott v. Pilkington, 15 Abb. Pr. 280 (1861); Fergu- son V- Fyffe, 8 CI. & Fin. 121, 141 (1841); Waters e'. Cox, 2 Bradwell (III. App.), 129 (1878). In this case the construction of the contract and the rights of the parties under it were held to be fixed by the law of the State where the contract was made, and these rights remained unchanged, notwithstanding the removal of the parties to a State where a different construction would have been given to the contract. Penn. Co. V. Fail-child, 69 111. 260 (1873); McDaniel v. Chicago & N. W. R. Co., 24 Iowa, 412 (1868). * Gaetano & Maria, 7 Prob. Div. 137 (1882); revg. s. c. Ibid, i (1881); Lloyd V. Guibert, 6 Best & Smith, 100 (1865). In this case a British subject, at a Danish island, chartered from its master a ship be- longing to a French subject, for a voyage to Havre, London or Liver- pool, at the charterer's option. While on its voyage to Liverpool, dam- age accrued, and the question arose as to whether the Danish, the En- glish or the French law, or the law of Portugal (in which country a bottomry bond was given) should apply. The court held that the law of France governed the case: "And we think that, as far as regards the implied authority of the master of a ship to bind his owners personally, the flag of the ship is notice to all the world that the master's authority is that conferred by the law of that flag; that his mandate is contained in the law of that country, with which those who deal with him must make themselves acquainted at their peril." Affirmed, 6 Best & Smith, 120; s. c, L. R. I Q. B. 115 (1865), where the court says that the ship "was, as it were, a floating island, over which France had as absolute, and for all purposes of peace as exclusive a sovereignty, as over her dominions by land, and which, even whilst in a foreign port, . • • was never completely removed from French jurisdiction." Pope V. Nickerson, 3 Story. 465 (1844). In this case a contract was made in Malaga by the master of a vessel for shipment of a cargo from Malaga to Philadelphia. While on the voyage the vessel and cargo were damaged, and sold by the master in Bermuda. The vessel was owned in Massachusetts, and this action having been brought by the owner of the cargo against the owners of the vessel, it was held that the liability of the latter was governed by the laws of Massachusetts, and not by those of Pennsylvania or Spain. The Woodland, 14 Blatchf. 499 (1878); affg. 7 Ben. no (1874). LAW OF THE FLAG. 1 89 It seems clear that the authority of the master to bind his owners, and to hypothecate or sell the ship or the cargo, This was a case where a British vessel, bound from Montevideo to New York, put into the Danish port of St. Thomas for repairs. The question arose as to whether the master had authority to create a lien in the for- eign port of distress in any other mode than by a bottomry bond. Ac- cording to the English law, as held in that case, and as since held by the House of Lords (reversing several prior decisions, The Sara, 14 Aj p. Ca. 209 [1889]), a lien could only be created by such a bond, while in the United States that formality was not necessary. The court held that the law of England applied: "It seems to be settled that the question is to be determined by the law of the country of which the master was a citizen, and under whose flag the vessel sailed, and not by the law of the port where the supplies were furnished, or of the country where the lien is sought to be enforced." The case was affirmed on another ground by the Supreme Court. 104 U. S. 180 (1881). The same rule was applied to the determination of the validity of clauses of exemption in a bill of lading. The Titania, 19 Fed. Rep. loi (1S83). See, also. The John Ritson, 35 Fed. Rep. 663 {1888); Force v. Providence Wash- ington Ins. Co., 35 Fed. Rep. 767 (1888). In Malpica v. McKown, i Louisiana, 248 (1830), the court held that when the law of the country where the contract of affreightment is en- tered into, and to which the journey is to be made, differs from the law of the place where the owner resides, the former must govern. And the same court, in Arayo v. Currel, i Louisiana, 528 (1830), again decided the same point in a similar way. Both of these Louisiana cases are criticised by Justice Story in the case of Pope v. Nickerson, cited supra. In The Montana, reported stib nom. Liverpool & G- W. S. Co. v. Phenix Ins. Co., 129 U. S. 397 (1889); affg. s. c. 22 Fed. Rep. 715 (1884); affg 17 Fed. Rep. 377 (1883), contracts of affreightmei^t had been made, mostly in the State of New York, for the transportation of goods to Liverpool. Several of them were made by railroad companies, and were not only for inland transportation to New York city, but also from New York to Liverpool. The vessel, sailing under the British flag, was wrecked on the Welsh coast, and this, as the court found, was due to the negligence of the captain. The Supreme Court held that the law of the United States must govern the case, and not the law of the flag. In The Brantford City, 29 Fed. Rep. 373 (1886), it was held the lex loci contractus must govern and determine the validity of clauses of ex- emption in a bill of lading, and that such clauses in a bill of lading de- livered in Boston, Mass., for transportation on a British ship to En- gland, were invalid. Re Missouri S. S. Co., 58 Law T. Rep. (N. S.) 377 (1888); s. c. 37 Alb. L. J. 518; affd. Weekly Notes, Notes of Cases, p. 90, May 11, 1889, is directly opposed to The Brantford City, which it quotes. Foreign ships, while in another country, dealing with its citizens, owe a temporary allegiance to its laws, and, in respect to such contracts, are subject to the law of that jurisdiction rather than that of the home I90 THE MODERN LAW OF CARRIERS. is to be governed by tlie law of the flag in the absence of express authority. The decisions on this subject are placed solely on reasons springing out of the law of agency. For this very reason it would seem that they are equall}^ applicable to the authority of any agent other than the captain, and therefore to the authority of any agent authorized to contract for the shipment of goods on board a particular vessel. The rule on the subject has the great merit of sim- plicity. A party contracting with an agent of a foreign ship can always ascertain the extent of his authority un- der the law of that country to which the ship belongs. For example : the British law, and the extent of the au- thority of the agent of a British ship, are well known in the commercial community. And the same is true, to a large degree, of the law of the other commercial countries of Europe. Some light may be thrown upon this subject of the law of the flag by a consideration of the rule that has, from the necessity of the case, been adopted as to the ter- ritorial status of a vessel upon the high seas. No coun- try has exclusive jurisdiction of the part of the earth where she happens to be. Yet she is not, for that reason, beyond the reach of law. It is well settled that a ship on the high seas is to be considered as part of the territory of the nation to which she belongs ; ^ and it would seem port. The validity of a maritime lien depends upon the law of the place where it is created, not on that of the flag. The Scotia, 35 Fed. Rep. 907, 910 (188S). Accordingly it has been held in numerous cases that a materialman has a lien for supplies furnished to a ves>el in a for- eign port, although by the law of her flag her master had no power to create such a lien. The Eliza Jane, i Surague. 152 (1847); Hatton v. The "Melita," 3 Hughes, 497 (1879^; The Walkyrien, 11 Blatchf. 241 (1873); affg. 3 Bened. 394 (1869); The J. F. Spencer, 5 Bened. 151 (1871); The Selah, 4 Sawy. 40 (1876). In these, as in most of the cases, the courts have endeavored to support the validity of the con- tract or enforce the alleged lien. 1 Crapo V. Kelly, 16 Wall. 610 (1872). At p. 624 the court say: "We are of the opinion, for the purpose we are considering, that the LAW OF THE FLAG. I91 that the consequences of a tort committed upon or by her, when she is on the high seas, should be determined by those laws. ship Arctic was a portion of the territory of Massachusetts, and the as- signment by the insolvent court of that State passed the title to her, in the same manner and with the like effect as if she had been physically within the bounds of that State when the assignment was executed. "The rule is thus laid down by Mr. Wheaton in his treatise on In- ternational Law (8th ed., sect. 106, et seq.): 'Both the public and pri- vate vessels of every nation on the high seas, and out of the territorial limits of any other State, are subject to the jurisdiction of the State to which they belong. Vattel says that the domain of a nation extends to all its just possessions, and by its possessions we are not to understand its territory only, but all the rights it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory. Grotius holds that sovereignty may be acquired over a portion of the sea.' As an illustration of the proposition that the ship is a portion of the terri- tory of the State, the author proceeds: 'Every State has an incontest- able right to the service of all its members in the national defense, but it can give effect to this right only by lawful means. Its right to reclaim the military service of its citizens can be exercised only within its own territory, or in some place not subject to the jurisdiction of any other nation. The ocean is such a place, and any State may unquestionably there exercise, on board its own vessels, its right of compelling the mili- tary or naval services of its subjects.' "Chancellor Kent, in his Commentaries (vol. i, p. 26), says: 'The high seas are free and open to all the world, and the laws of every State or nation have there a full and perfect operation upon the persons and property of the citizens or subjects of such a State or nation.' ' No nation has any right or jurisdiction at sea, except it be over the persons of its subjects, in its own public and private vessels; and so far terri- torial jurisdiction may be conceded as preserved, for the vessels of a nation are in many respects considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs.' " Wharton (Conflict of Laws, § 356) says: 'A ship in the open sea is regarded by the law of nations as a part of the territory whose flag such ship carries.' ' By this (he says) may be explained several cases quoted as establishing the lex domicilii, though they are only sustainable on the ground that the ship at sea is part of the territory whose flag she bears. . . . In respect to principle, ships at sea, and the property in them, must be viewed as part of the country to which they belong.' " The modern German law is to the same point. Bluntschli, in his Moderne Volkerrecht (§ 317), says: ' Ships are to be regarded as floating sections of the land to which they nationally belong, and whose flag they are entitled to carry.' '• Bischof, in his Grundriss des positiven internationalen Seerechts (Graz, i868; cited in Wharton's Conflict of Laws, § 356, n.), says: * Every State is free on the seas, so that its ships are to be regarded as 192 THE MODERN LAW OF CARRIERS. It will be obsen-ed that none of the rules already stated, except the last, attempts to solve the difficulty previously suggested, and this rule only applies to maritime con- tracts. V. A fifth rule which has much support in authority may be thus stated : The manner in which the contract is to be performed, in all particulars for which it does not expressly provide, is to be determined by the laws of the several States in which it is to be performed, so that the law of each State shall regulate the performance and the consequences of a breach committed in that State.^ floating sections of its country, territoria clausa ; la continuation ou la prorogation chi territoire, and those on board such ships in foreign waters are under their laws and protection. This even applies to chil- dren born to subjects on such ships.' " The English cases are to the same effect. In Lloyd ?'. Guibert, L. R. i Q. B. 115, 127; 6 Best & Smith, 120, 139 (i'^'65), the court said: "For all purposes of jurisdiction, criminal or civil, with respect to all persons, things and transactions on board, she was, as it were, a floating island, over which France had as abso- lute, and, for all purposes of peace, as exclusive a sovereignty, as over her dominions by land." The same rule was applied to the case of a child born on a British ship. Marshall v. Murgatroyd, L. R. 6 Q. B. 31 (1S70). To the same effect are Vattel Law of Nations, book I, chap. 19, sect. 216; Wheaton Int. Law, sect. 106. ^ The rule thus stated found its first application to the law of bills and notes. These are often made or accepted in one place and endorsed in another, and the uniform rule is that the validity and effect of the several contracts of acceptance and endorsement, are to be determined by the law of the respective places where each is to be performed. In other words, wherever the contract either of the acceptor or en- dorser is to be performed, the law of that place is the measure of his duty and liability. Robinson?;. Bland, 2 Burr. 1077 (1760); Hibernia Nat. Bank V. Lacombe, 84 N. Y. 367 (1881); Everett v. Vendryes, 19 N. Y. 436 (1859); Rothschild V. Currie, i Qu. B. 43 (1841); Cooper v. Earl of Waldegrave, 2 Beav. 282 (1840); Boyce v. Edwards, 4 Peters, 11 1 (1830). The same rule has been frequently applied to carrier's contracts made in one place to be performed in several jurisdictions In such cases it has been held that: "If a contract is to be performed partly in one country and partly in another countrv, it admits of a double aspect, nay, it has a double operation, and is, as to the particular parts, to be interpreted distinctively; that is according to the laws of the country LAW PLACES OF PERFORMANCES. 1 93 It has, however, been held that any limitation placed by the law of a particular State upon the extent of the re- covery for a breach of such a contract, or for a tort com- mitted in violation of it, is not applicable in a suit brought in another State, if the contract was made in the latter State and the principal portion of the performance was to be within that State, although the tort was committed in the State which enacted the statute.^ It is not easy to reconcile the decision in the Dyke case with those previously stated except on the ground that such statutes affect only the remedy and are therefore a part of the lex fori. In a subsequent case, however,^ where a statute of Pennsylvania, limiting to the amount of $300 the right of a passenger to recover for the loss of baggage, was under consideration by the New York Court of Appeals, this distinction was not alluded to. The contract there was where the particular parts are to be performed or executed." Pope v. Nickerson, 3 Story C C 465, 484 (1844). In Barter v. Wheeler, 49 N. H. 9 (1869), a contract was made in one State, to be performed partly there, partly on the Great Lakes, partly in New York, and partly else- where. Court held that defendant's liability for a loss occurring in New York was governed by the laws of that State. At page 29 the court says: " The original contract was made at Toledo, Ohio, but was to be performed partly in New York, and the loss was altogether in that State. If the contract was to have been performed wholly in New York, it is clear that it would be governed by the laws of that State; . and if to be executed partially in New York, we perceive no reason why in respect to that part, the law of that State should not govern, and such is the doctrine laid down in Story on Contracts, § 655, where it is said that if a contract is to be performed partly in one country and partly in another country, it has a double operation, and each portion is to be in- terpreted according to the laws of the country where it is to be per- formed, and it is said that the rule applies to a bill of lading of goods, some of which are to be delivered at one port, and some at another, in different countries." Gray z^. Jackson, 51 N. H. 9, 39; s. c. 12 Am. Rep. I (1871); Pomeroy v. Ainsworth, 22 Barb. 118, 128(1856). In the last case the court say : '' If a contract is to be performed partly in one country and partly in another, each portion is to be interpreted accord- ing to the laws of the country where it is to be performed." ^ Dyke v. Erie R. Co., 45 N. Y. 113 (187 1). 2 Curtis V. Del., Lack. & W. R. R., 74 N. Y. 116 (1878). 13 194 THE MODERN LAW OF CARRIERS. made iu Pennsylvania, to transport a passenger and his baggage from that State through New Jersey to New York. The loss occurred in New York, and it was held that the right of action and the measure of damages must be de- termined by the law of New York, because delivery was to be made there and the contract was held to be made with reference to the law of that State.^ VI. It has been frequently held that liability for a tort is to be determined by the law of the place where the tort was committed.^ This question has arisen most frequently in actions for injuries causing death. It is well settled that if the law of the place where the tort was committed does not give a right of action, no action is sustainable.^ Having thus stated the general rules which may guide * Everett z'. Vendryes, 19 N. Y. 436 (1859); Hibernia National Bank v. Lacombe, 84 N. Y. 367 (1881). In both the Dyke and the Cur- tis cases, it is to be observed that the carrier sought the benefit of stat- utes limiting his liability in case of loss. In the Dyke case the negligent act complained of was committed in Pennsylvania. The contract was made in the State of New York to carry a passenger through that State, Pennsylvania and New Jersey to New York city. The carrier was held not entitled to the benefit of the limit of liability fixed by the Pennsyl- vania statute. 2 Davies v. New York & N. E. R. R., 143 Mass. 301 (1887); Illinois Central R. R. v. Crudup, 63 Miss. 291 (1885); see Re Missouri S. S. Co. 58 Law Times Rep. N. S. 377 (1888); affi'd Weekly Notes, Notes of Cases, May 11, 1889, p. 90, in which the liability for negligence was de- termined by the law of the place where the tort was committed. But the case was decided on the ground of contract. The decision in the Dyke case was otherwise, as has been shown. In Thommasen v. Whitwill, 12 Fed. Rep. 891 (1882); affi'd sub mm. Thommessen v. Whitwill, 118 U. S. 520 (1886); where two colliding ves- sels were of different nationalities and no foreign law was proved, it was held that the rights of the parties would be determined by the law of the forum. ' The Harrisburg, 119 U. S. 199 (i886); Ins. Co. v. Brame, 95 U. S. 754 (1877); Dennick v. R. R. Co. 103 U. S. 11 (1880). In this latter case the court say: " It is indeed a right dependent solely on the stat- ute of the State." In the Scotia, 14 Wall. 170 (187 1), this rule was applied to the case of a collision occurring on the high seas. LAW PLACE WHERE TORT COMMITTED. 1 95 US in determining the main question, we proceed to consider the question itself. It is sometimes said that the enforcement bygone coun- try of the laws of another is purely matter of comity. In one sense this is true. But the comity, by which the courts of one State respect the rights acquired under the laws of another, is so universal and well established that it has the absolute force of law.^ When, for example, a contract is made in England, certain rights arise under it. These rights are a species of property. The shipper's right to indemnity under certain circumstances, should certainly be sacred. On the other hand, what good reason can be given for the contention that the carrier's right to exemp- tion under other circumstances, should not be equally sacred. If the laws of Great Britain allow parties dealing there to make a contract for such exemption, and certain rights of property arise by virtue of such contract, how can the courts of America fail to respect those rights if they undertake to enforce the contract at all. Confessedly the contract is not one of those to which the maxim : Ex turpi contractu non oritur actio applies. The contract is a legal one. The courts here enforce it. To divest rights acquired under it without compensation is certainly un- justifiable, and no case has yet gone to the length of say- ing that an express contract for such exemption, which is lawful in the State in which it is made, will not be recog- nized in other States or countries. The decisions in the Dyke and Curtis cases already 1 Pritchard v. Norton, 106 U. S. 124 (1882). At p. 132, the court say: " Hence it is that a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away. A vested right to an existing defense is equally pro- tected, saving only those which are based on informalities not affecting substantial rights, which do not touch the substance of the contract and are not based on equity and justice." 196 THE MODERN LAW OF CARRIERS. cited did not go to this length. The latter was placed by the court partly on the ground that the contract made no mention of exemption or limitation, and that the parties contracted with reference to the laws of New York and not with reference to the statute of Pennsylvania. The reason thus stated could, however, have no application to a case where the contract expressly provides for exemption or limitation of liability. It can hardly be supposed that the parties would make a contract which they thought at the time was invalid, or that they agreed, by implication or otherwise, to import into the contract the laws of a country other than that where it was made, which should annul a part of their own express agreement.^ 1 In Peninsula O. S. N. Co. v. Shand, 3 Moore, P. C N. S. 272, 292 (1865), the court say : " Was it intended that the stipulation, in case of an alleged breach of contract, should be construed by the rules of the English law, which would give some effect to it, or by those of the French or any other law, according to which it would have none, but be treated as a merely fruitless attempt to evade a responsibility inseparably fixed upon the appellants as carriers ? The question appears to their Lordships to admit of one answer only ; but if they take the respondent so to have understood the intention of the appellants, they must take him to have adopted the same intention ; it would be to impute want of good faiih on his part to suppose that with that knowledge he yet intended to en- ter into a contract wholly different on so important an article ; he could not have done this if the intention had been expressed, and there is no difference as to effect between that which is expressed in terms, and that which is implied and clearly understood." Re Missouri S. S. Co., 58 Law Times (N. S.), 377 (1888); s. c 37 Albany L. J. 518; affirmed in Court of Appeals, Weekly Notes, Notes of Cases, May 11, 1889, p. 90. The same considerations have led American courts to uphold the validity of similar commercial contracts. " Where the contract is not to be performed in any one State there is difficulty. If from all the circum- stances it is reasonable to suppose the parties had in view the law of the place of contract, that must prevail. But where there are no circum- stances the safest rule is that which upholds the contract." Ryan v. Missouri, Kansas & T. R. Co., 65 Texas, 13 (1885); s. p., Western & A. R. R. V. Exposition Cotton Mills (Geo.), 7 S. E. Rep. 916 (1888); Bell V. Packard, 69 Me. 105 (1879); Milliken v. Pratt, 125 Mass. 374 (1878). The general rule on this subject is admirably stated in Pritchard v. Nor- ton, 106 U. S. 124 (1882). At p. 137, the court say: "' The parties cannot be presumed to have contemplated a law which would defeat their engagements.' 4 (Phillimore) Int. Law, sect, dcliv, pp. 470,471. This rule, if universally applicable, which perhaps it is not, though PRESUMPTION OF VALIDITY CONTRACT. 1 97 But the recent decision of the Supreme Court of the United States in The Montana/ holds distinctly that there is no presumption that bills of lading, made in the United States and issued by a British corporation to American citizens for transportation from New York to Liverpool, are issued or accepted with reference to the English law. It did not appear on the face of the bills of lading that the corporation or the ship were British. It was consequently held that the corporation was liable to the shipper for a loss of cargo, caused by the negligence of the master of the steamer, committed on the Irish sea, which resulted in a shipwreck on the British coast. It will be perceived that this case does not determine founded on the maxim ut res magis valeat quam pereaf, would be deci- sive of the present controversy, as conclusive of the question of the ap- plication of the law of Louisiana, by which alone the undertaking of the obligor can be upheld. At all events, it is a circumstance, highly per- suasive in its character, of the presumed intention of the parties, and en- titled to prevail, unless controlled by more express and positive proofs of a contrary intent." The Montana is almost the only case in which the court has pre- sumed that a contract was made with reference to a law by which the contract was void. * Reported sub nom. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397 (1889). At p. 459, the court say: "The facts that the goods are to be delivered at Liverpool, and the freight and primage there- for payable there in sterling currency, do not make the contract an En- glish contract, or refer to the English law the question of the liability of the carrier for the negligence of the master and crew in the course of the voyage." To the same effect was the language of the Circuit Court; S. c. 22 Fed. Rep. 715, 728 (1884). The whole opinion of the court im- plies that if it had appeared as a fact that the contracting parties looked to the law of England as governing the validity of the contract, it would have been enforced. The court add, at p. 462: " The present case does not require us to determine what effect the courts of the United States should give to this contract if it had expressly provided that any question arising under it should be governed by the law of England." This should be compared with the language of the same court in Watts V. Camors, 115 U. S. 353 (1885). At p. 362, the court say: "Americans and Englishmen, entering into a charter party of an En- glish ship for an ocean voyage, must be presumed to look to the general maritime law of the two countries, and not to the local law of the State in which the contract is signed." 198 THE MODERN LAW OF CARRIERS. the question as to wHetlier a court in this country would recognize as valid a contract for such exemption, which was valid in the place where the contract was made. In so far as it goes, The Montana would seem to be an authority the other way, for it distinctly applied to the contract under consideration the law of the place where the contract was made. If this be operative to invalidate a contract which would be valid by the law of the place where the perform- ance was to be completed, it would seem equally clear that it should be operative to give validity to a contract, valid in the place where it was made, but invalid by the law of the place where the performance is to be completed.^ The authority of the cases previously cited ^ to sup- port the proposition that a contract is presumed to be made with reference to the law of the place of perform- ance, must be considered as seriously impaired by The Montana. The question naturally arises: by what evi- dence can it be shown that a particular contract was made with reference to the law of a foreign country? This can be shown in several ways : 1. By a positive statement in the contract that it is made with reference to the law of a particular country.^ 2. By proof of the extrinsic facts in reference to which the contract was made.^ * In Stevens v. Navigazione Gen. It., 39 Fed. Rep. 562 (1889), the court assumed the validity of a clause in a bill of lading, issued and ac- cepted in Shanghai, by the terms of which the carrier was exempted from liability for loss caused by the negligence of his servants. But the point was not definitely decided. 2 Ante, pp. 186, 187. ^ Such a clause in a ''live-stock freight contract" was held valid in The Oranmore, 24 Fed. Rep. 922 (1885). The clause in that case read as follows: "Any questions arising under this contract or the bill of lad- ing, against the steamer or her owners, shall be determined by English law in England." * I Greenl. Evid., §§ 288, 289; Brick v. Brick, 98 U. S. 514 (1878); Bank v. Kennedy, 17 Wall. 19 (1872); Bradley v. Wash., A. & G. Co., 13 Peters, 89 (1839); Moore v. Pitts, 53 N. Y. 85, 90 (1873); Phoenix RULE OF DECISION AS TO STATUTE LAW. 1 99 3. By proof of a custom or usage universally adopted by the mutual agreement of shippers and carriers of the port in which the contract was made. Such proof would be admissible, not to subvert a rule of law, but to show what law it was with reference to which the parties con- tracted.^ One other point relating to this subject requires con- sideration. The question often arises : how is the law of any particular State to be determined ? This question has been most frequently discussed in the Federal Courts, and many of their decisions on this subject are referred to in the first chapter. It is sufficient for our present purpose to briefly state the conclusions to be drawn from these au- thorities. They hold: I . The statutory law of any particular State will be enforced in the Federal Courts and the courts of the other States. In construing such statute, those courts will be guided by the construction put upon such statute by the highest tribunals of the State under whose authority the statute was enacted.^ Ins. Co. V. Continental Ins. Co., 87 N. Y. 400 (1882); Chartered Merc. Bk. of India v. Netherlands-India S. N. Co., 10 Qu. B. Div. 521 (1883). ^ Bliven v. New England Screw Co., 23 How. 420 (1859). At p. 431 the court say: "Customary rights and incidents, universally attaching to the subject-matter of the contract in the place where it was made, are impliedly annexed to the language and terms of the contract, unless the custom is particularly and expressly excluded Parol evidence of cus- tom, consequently, is generally admissible to enable the court to arrive at the real meaning of the parties, who are naturally presumed to have contracted in conformity with the known and established usage." To the same effect is Fabbri v. Kalbfleisch, 52 N. Y. 28 (1873). So it is well settled with reference to bills of lading, that the custom or usage to carry particular articles on deck may be shown, although parol evidence of consent in the particular case is inadmissible. The Delaware, 14 Wall. 579 (1871). 2 Elmendnrf v. Taylor, loWheat. 152, 160 (1825). In Shelby v. Guy, 11 Wheat. 367 (1826), the court say: '* That the statute laws of the States must furnish the rule of decision to this court, as far as they comport with the Constitution of the United States, in all cases arising within the respective States, is a position that no one doubts. Nor is it ques- 200 THE MODERN LAW OF CARRIERS. 2. In questions of the unwritten commercial law tlie Federal Courts have refused to follow implicitly the de- cisions of the State courts, and hold distinctly that there is a general commercial law of the United States, of which any local decision is but the evidence, and that the Fed- eral Courts will not follow such local decision if they are satisfied that it is wrong. Numerous State courts have followed the rule thus laid down, and have asserted the right to overrule the decision of the courts of a sister tionable that a fixed and received construction of their respective stat- ute laws in their own courts makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction." Township of Elmwood 7'. Marcy, 92 U. S. 289 (1875); Town of South Ottawa V. Perkins, 94 U. S. 260, 267 (1876); Peik z>. Chicago & N. W. R. Co., 94 U. S- 164 (1876); County of Leavenworth v. Barnes, 94 U. S. 70 (1876); Adams v. Nashville, 95 U. S. 19 (1877); Fairfield z/. County of Gallatin, 100 U. S. 47 (1879). The State courts, in like manner, in deciding questions arising under the statutes of another State, adopt the construction put upon them by the courts of that State. Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48 (18S1); Jessup V. Carnegie, 80 N. Y. 441 (1880); Crum v. Bliss, 47 Conn. 592 {1880); Russell v. Madden, 95 111. 485 (1880). An im- portant exception has been made to the rule stated in the text. The Federal Courts have held, where contracts have been made or vested rights acquired upon the faith of a construction given to the Constitu- tion or statute of a State by its highest courts, that the Federal Courts will enforce such contracts and protect such rights although a different construction should subsequently be given by the local courts. Gelpcke v. City of Dubuque, i Wall. 175, 206 (1863); Havemeyer 7>. Iowa County, 3 Wall. 294 (1865); Olcott v. The Supervisors of Fond du Lac, 16 Wall. 678 (1872). In Harris v. Jex, 55 N. Y. 421 (1874), the Court of Appeals laid down a similar rule in regard to transactions had upon the faith of a decision of the U. S. Supreme Court. In that case a tender in United States currency was made after the first decision of the Supreme Court in the Legal Tender cases. Hepburn v. Griswold, 8 Wallace, 603 (1869). This tender was refused, the mortgagee to whom it was made claiming, on the authority of the decision just mentioned, that the tender must be made in gold. The Court of Appeals held that while the decision was in force, and unreversed, the mortgagee to whom the tender was made had a right to refuse it, and that the lien of the mort- gage was not destroyed by such refusal. This case has gone as far as any in recognizing the fact that a judicial decision is not only evidence of the law, but does actually make the law in all places subject to the authority of the court rendering the decision. RULE OF DECISION AS TO COMMERCIAL LAW. 20I State as to the commercial law, even though the transac- tion under consideration took place partly in that State/ 1 In Faulkner v. Hart, 82 N. Y. 413 (1880), a contract of affreight- ment was made in New York for the transportation of goods from that city to Boston, and for their deUvery to the consignee in Boston. He demanded the goods, after their arrival, from the carrier, in whose cus- tody they were; but it was inconvenient for the carrier to make delivery at that time, and delivery was not made. Subsequently, and before they were removed, they were consumed by fire while in the carrier's ware- house, and without fault on his part. The Supreme Court of Massa- chusetts had held that under such circumstances the carrier was not li- able. Rice V. Hart, 118 Mass. 201 (1875). The Court of Appeals held that he was. It must be remembered, however, that in this case the contract was made in New York, and was an express contract for deliv- ery to the consignee. The court say: "That the court in Massachu- setts had decided the law contrary to what it was is not controlling, for it may be assumed, even if the parties had knowledge of the decision, that they knew it was contrary to the current of authority in similar cases, and contracted having in view the law as it actually existed. Like an unconstitutional law, void of itself, the decision was not the law, and is not to be regarded as authority for that reason." To the same effect is Franklin v. Twogood, 25 Iowa, 520 (1868). In Georgia, however, it was held, in an action brought there for per- sonal injuries received in South Carolina, that the law of the latter State would be applied, and, there being no South Carolina statute regu- lating the rights of parties in such cases, the Georgia courts, in a liberal spirit of comity, would apply the common law in South Carolina as con- strued by its court of last resort. Atlanta & C A. L. R. Co. v. Tan- ner, 68 Georgia, 384 (1882). See, also, Waters v. Cox, 2 Bradwell (111. App.), 129 (1878); Cubbedge v. Napier, 62 Ala. 518 (1878); Ames z^. McCamber, 124 Mass. 85 (1878); Haywood v. Daves, 81 N. C. 8 (1879); Cragin v. Lamkin, 7 Allen (Mass.), 395 (1863); Williams v. Carr, 80 N. C. 294 (1879); Rorer on Interstate Law, p. 121; Conflict Between Federal and State Decisions, 14 Am. Law Review, 211 (1880); 16 Am. Law Review, 743 (1882). The conflict between the decisions of the Federal and State Courts on questions of commercial law is referred to by Judge Miller in Faulk- ner V. Hart, 82 N. Y. 413, 419 (1880): "Any other rule would lead to confusion in regard to a principle of general application, for, if the doc- trine of the Massachusetts court is to prevail, the right of the aggrieved party might depend upon the fact whether the action was brought in the Federal or the State Court; and if the action in this case had been brought in the Circuit Court of the United States for the State of Massa- chusetts, the plaintiffs would be entitled to recover, while in the State court a different result would prevail." So the Supreme Court of the United States has held that, in deciding whether a contract was to carry beyond the carrier's line or merely to forward, it was not bound by the decisions of local courts, but would follow its own judgment as to the commercial law on the subject. Myrick v. Mich. Cent. R. R., 107 U. S 102 (1882). 202 THE MODERN LAW OK CARRIERS. As the logical result of this line of decisions the U. S. Supreme Court held, in Railroad Company v. Lockwood/ that the Federal Courts would not enforce that portion of the contract of a carrier which stipulated for exemption from liability for the negligence of his servants, although the contract was made in the State of New York, and with a corporation incorporated under the law of that State, and such contracts are held by the courts of that State to be valid. It thus may happen, and has hap- pened, that the determination of the rights of parties de- pends, not upon the length of the Chancellor's foot, but upon whether the suit is tried on the north or south side of the City Hall Park in the city of New York. Nevertheless, this apparent anomaly in our juris- prudence (which has existed ever since Swift v. Tyson^ applied to the transfer in New York of negotiable paper, a rule different from that applied by the courts of New York), rests upon solid foundations. From the beginning of our national existence in 1789, the Supreme Court of the United States has endeavored to maintain the nation- al unity. It has labored assiduously to create or preserve uniformity of decision in all commercial questions through- out the Union. In this endeavor its success has been sig- nal, though not complete. And the benefit conferred on the nation by the general uniformity of its system of com- mercial law far outweighs the evil which flows from the diversities between Federal and local decisions, to which attention has been called. But the reasons which led the Supreme Court, in the Lockwood case, to overrule the New York decisions as to the validity of stipulations for exemption from liability for negligence in the transaction of interstate commerce, ' 17 Wallace, 357 (1873). ^ I Peters, i (1842). RULE OF DECISION AS TO COMMERCIAL LAW. 203 have no application to contracts for transportation of pas- sengers and freight between this and foreign countries. The jurisdiction of the court does not extend to these countries. It is absurd to tell an Englishman that con- tracts for exemption for negligence are void by the com- mercial law of England, when the House of Lords has held otherwise. In Faulkner v. Hart^ the Court of Ap- peals could truly say that the commercial law of the United States was one^ because the highest court in the United States had so held. The Supreme Court of Massa- chusetts had the opportunity, in Rice v. Hart,^ to recon- sider its previous decision on the subject, and put itself in line with the general current of authority in America and England. This it had, unfortunately, failed to do. But still, in the United States Circuit Court for Massa- chusetts the commercial law had been held to be what the New York court declared.^ If, however, a British ship should be libelled in New York for failure to deliver merchandise in good order which had been delivered to it in Liverpool, and the owner should plead his British bill of lading as a defense to the suit, no court in this country could say that any British court would overrule the defense. The most convenient method of determining all such questions is to apply the law of the flag. This can readily be ascertained, and the shipper — if that be the rule — can ship with full knowledge of his rights and those of the carrier. It has been shown ^ that this rule is supported by many authorities. While no one can affirm that it will ultimately be applied by the Fed- 1 82 N. Y. 413 (1880). ^ 118 Mass. 201 (1875). ' Salmon Falls Manfg. Co. v. Bark Tangier, i Clifford, 396 (i860); Richardson v. Goddard, 23 How. (U. S.) 28 (1859). * Ante, pp. 188, 189. 204 THE MODERN LAW OF CARRIERS. eral Courts to this class of cases upon carrier's contracts, yet for the sake of simplicity and uniformity in the ad- ministration of justice it is very much to be hoped that such will be the result, at least in cases where it distinct- ly appears that such was the agreement of the parties. The only reasonable alternative, it is respectfully sub- mitted, is to apply the fifth rule before mentioned, and de- termine the carrier s liability by the law of the place where the injury to the passenger or the cargo is committed. In the case put at the beginning of this chapter, of a con- tract made in Liverpool for transportation to Philadelphia, the carrier's liability for injuries done in Great Britain would be determined by English law, and for injuries done in Pennsylvania by the law of that State. But what shall we say, in such case, as to the carrier's liability for in- juries done upon the high seas? What law but the law of the flag could, in such case, be constantly applied? The right of each country to punish crimes committed upon its own ships is universally recognized.^ By parity of reasoning, should not the law of the country to which the ship belongs extend to the conse- quences of civil as well as criminal wrongs? ^ Grotius, de Jure Belli et Pads, lib. ii, cap. iii, sect. 13; Rutherforth's Institutes, lib. ii, cap. ix; Vattel, lib. i, cap. xix, sect. 216; Wheaton's International Law (8th ed.), sect. 106; i Kent Com. 26; Regina z;. Serva, 2 Car. & K. 53 (1845). In Regina v. Bjornsen, i Leigh & C 545 (1865), the court said: "The question is whether an English court has jurisdiction to try a foreigner for an offense committed on the high seas ? If the ship was British, so as to be, in law, a part of the British territory, there clearly was jurisdiction ; and the point, therefore, is this: Was the ship British, or not ? " The court held that the ship was not a British one, and that they consequently had no jurisdiction. U. S. v. Klintock, 5 Wheat. 144 (1820); U. S. v. Holmes, 5 Wheat. 412 (1820), where the court says: "In Klintock's case it was laid down that, to ex- clude the jurisdiction of the courts of the United States, in cases of murder or robbery committed on the high seas, the vessel in which the offender is, or to which he belongs, must be, at the time, in fact as well as in right, the property of a subject of a foreign State, and, in virtue of such property, subject, at that time, to his control." RULE OF DECISION AS TO COMMERCIAL LAW. 205 It is hardly within the province of a text-book to dis- cuss this subject further. It is hoped that enough has been said to aid, as far as it lies in the author's power, counsel and courts in the examination and decision of the question propounded at the beginning of this chapter. CHAPTER IX. CONTRIBUTORY NEGLIGENCE AND FRAUD OF SHIPPER. The rule as to contributory negligence, so familiar in actions brought to recover damages for personal injuries, has found many curious illustrations in actions against carriers upon the contract to transport freight or passen- gers. /. Failure to inform carrier of value or character of articles shipped. — The general rule is well settled that a shipper of freight is not bound to disclose to the carrier the value, or valuable character of goods delivered to the latter for transportation, but that if the carrier desires in- formation on either subject, he should enquire.^ It has been questioned whether this rule is applicable to the case of a trunk or other package delivered by a passenger to a carrier of passengers for transportation. It does not fall within the scope of this work to consider what articles accompanying a passenger may be prop- erly termed baggage. But assuming that the articles de- livered are baggage, the question has arisen whether the passenger, if there be no inquiry by the carrier, is bound 1 Baldwin v. Liverpool & G. W. S. Co., 74 N. Y. 125 (1878); Gorham Man. Co. v. Fargo, 35 N. Y. Super. Ct. 434 (1873); Shelden v. Robin- son, 7 N. H. 157 (1834); Merchants' Despatch Trans. Co. v. Bolles, 80 111. 473 (1875); Baldwin v. Collins, 9 Robinson (Louisiana), 468 (1845); Levois V. Gale, 17 La- Ann. 302 (1865); Brown v- Camden & A. R. R., 83 Penn. St. 316 (1877); Phillips v. Earle, 8 Pick. 182 (1829). In Mc- Cune V. B., C. R. & N. R. R. R. Co., 52 Iowa, 600 (1879), it was held that a shipper was not bound to inform a carrier that a cow shipped by his road was about eight months gone with calf. But for an exception to this rule, in the case of an express company which carries letters, see Hayes v. Wells, 23 Cal. 185 (1863); post, p. 207, n. 2. In American Ex. Co. V. Perkins, 42 111. 458 (1867), it was held that the shipper was bound to disclose the fragile nature of goods delivered to the carrier. FAILURE TO DISCLOSE CONTENTS. 207 to disclose to him the fact that some of them are of special value. The Supreme Court of the United States has held that the passenger owes the carrier no such duty, and affirmed a judgment recovered against a carrier for $10,000, the value of laces and articles of personal adornment, which were placed by a lady in her trunk and lost by the car- rier s negligence.^ On the other hand it was held, by the Supreme Court of Illinois, that the rule already stated as to common car- riers of freight did not apply to carriers of passengers, and that the passenger was bound to disclose the fact of the presence in his trunk of articles of especial value, and if he did not, could not recover for their loss more than the apparent value of a trunk, containing baggage such as travelers usually carry .^ * Railroad Co. v. Fraloff, 100 U. S. 24 (1879). To the same effect are Hollister v. Nowlen, 19 Wend. 234 (1838); Brooke v. Pickwick, 4 Bing. 218 (1827). In the last case gross negligence on the part of the carrier's servants was shown. See Spooner v. Hannibal & St. Jo. R. R., 23 Mo..App. 403 (1886). 2 Mich. Cent. R. R. v. Carrow, 73 111. 348 (1874). The court say that the carrier may rely upon the representation, arising by implica- tion, that a trunk contains nothing but baggage. In this case, however, the articles in question were clearly merchandise, and part of the pas- senger's stock in trade. Cincinnati & C A. L. R. R. v. Marcus, 38 111. 219 (1865). See Orange Co. Bank v. Brown, 9 Wend. 85 (1832), which admits the rule before stated, but holds that it did not apply to a case where the trunk delivered to the carrier contained li 1,000 in bank notes. The decision is placed chiefly on the ground that such a sum of money was not baggage, and that if the carrier was to be responsible for its safe carriage, he was entitled to extra compensation; but the court say that "the conduct of the agent was a virtual concealment of that sum; his representation of his trunk and the contents as baggage was not a fair one, and was calculated to deceive the captain, and it would be a viola- tion of first principles to permit the plaintiffs to recover." See Weeks V. N. Y., N. H. & H. R. R., 72 N. Y. 50 (1878). It may be doubted whether a notice, printed on a ticket delivered to a passenger, or otherwise brought to his attention, that the carrier would not be liable for the loss of baggage to more than a specified sum, would not make it the duty of the passenger to state the value of 2o8 THE MODERN LAW OF CARRIERS. Indeed, tlie Supreme Court of Illinois lias lield that if the appearance of a package delivered to a carrier, does not indicate that it contains articles of value, the shipper is bound to inform the carrier of its real value, and that his omission so to do is a fraud which will prevent a re- covery by him, in case of loss, for more than the apparent value of the parcel.^ These cases in Illinois, however, admit that under such circumstances the carrier would be subject to the liability of a bailee for hire. But it would seem, on principle, that fraud on the part of the shipper should be a complete bar to his recovery. This question was very much discussed in the New York Court of Appeals, in Magnin v. Dins- more. That case was three times appealed. The goods delivered to the carrier were watches. A printed receipt limiting the carrier's liability to fifty dollars was given to the shipper. It was held in the New York Superior Court, on the first hearing, that this clause relieved the carrier from liability beyond that amount, even when the loss was occasioned by his negligence. But the Court of Ap- peals held, on the first appeal,-' that if the contract did not in express language provide that the carrier should not be liable for the negligence of his servants, the clause limiting the amount for which a recovery could be had should be limited to the case of loss occurring without fault on the part of the carrier. On the second trial it was shown that the appearance of the package did not indicate the value of the contents. his baggage if he should desire to iitiake the carrier liable for more than the specified amount. See ante^ p. i8o; post, Chap. X, sect. i. 1 Oppenheimer v. U. S. Express Co., 69 111. 62 (1873). ^^ that case the court say that a designed suppression of the value of the goods is unfair conduct on the part of the shipper, and relieves the carrier from his liability as insurer. Chicago & Aurora R. R. v. Thompson, 19 111. 578 (1858); Am. Ex. Co. V. Perkins, 42 111. 458 (1867). 2 56 N. Y. 168 (1874). FAILURE TO DISCLOSE CONTENTS. 209 The court, on a second appeal, held^ that, under such cir- cumstances, the omission to disclose the value was a fraud on the shipper's part, even though no artifice was em- ployed by him, and that he could recover only fifty dol- lars. This rule was adhered to on a third appeal.^ It must be remembered, however, that in this case the ship- per had notice that the carrier intended to limit its liabil- ity unless the value was stated by him, and it is on this ground that the court based its decision.*' In the absence of such notice it is not perceived why the doctrine of the cases previously stated should not be adhered to. The parties deal on equal terms. One should not be required to disclose value, unless the other in some way gives notice that disclosure is required. Of course, if the carrier does make enquiry as to the value of the package, or the character of the contents, 1 62 N. Y. 35 (1875). 2 70 N. Y. 410 (1877). ' The express receipt is printed in full in the report in 56 N. Y. 168 (1874). It contained the following clause: "If the value of the prop- erty above described is not stated by the shipper, the holder thereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss." See, also, Batson v. Donovan, 4 B. & Aid. 21 (1820). In this case the carrier gave notice that he would not be liable for more than a certain value on any one parcel. The shipper, knowing this notice, delivered to the carrier a box containing bank notes and other securities to the value of over £4,000. The box had no external indication of the value of its contents, and no information respecting the same was asked or given. It was held that, under the circum- stances, the shipper was bound to give information without being asked, and that the carrier was not liable for the loss of the box. So The Denmark, 27 Fed. Rep. 141 (1886); Gibbon v. Paynton, 4 Burr. 2298 (1769). Green v. Boston & Lowell R. R., 128 Mass. 221 (1880), held that an express notice that the carrier would not be liable for over $200, unless upon special agreement, was valid, and the shipper could not recover more than that amount. At the same time it was held that another clause, that the com|)any would not be liable for "specie, drafts, bank bills and other articles of great intrinsic or representative value" with- out disclosure, did not apply to a family portrait. 14 2IO THE MODERN LAW OF CARRIERS. and is not informed correctly by the shipper, the carrier will not be responsible for the loss of the package.^ This view would seem to be sustained by the decisions that if a traveler delivers a trunk to a carrier, informs him that it contains merchandise, and pays extra compen- sation for its carriage, he can recover its full value, al- though he does not more fully disclose the character of its X!ontents.^ So if the appearance of the package delivered by the passenger indicates that it contains merchandise and not baggage, the carrier has the right to demand extra com- pensation for carrying it, and is liable for its full value should it be lost.^ 2. Fraudulent conceabnent of the contents of a package delivered for transportation. — If the shipper use any arti- fice whatever to conceal from the carrier the true value of the contents of a package delivered to him for transporta- tion, the shipper cannot recover for their loss, unless actual negligence or a conversion by the carrier be shown.* * Phillips V. Earle, 8 Pick. 182 (1829); Charleston & Savannah R. Co. V. Moore, 80 Geo. 522; s. c. 5 S. E. Rep. 769 (1888). "^ Sloman v. Great Western R. Co., 67 N. Y. 208 (1876); Camden & Amboy R. R. v. Baldauf, 16 Penn. 67 (185 1). In the Sloman case the court say: "The fact that the baggage-master charged or received extra pay for their carriage [/'. 1 (1877); Kenyon v. N. Y. C & H. R. R. R., 5 Hun, 479 (1875); Radley v. London & N. W. R. Co., L. R. i App. Ca. 754, 759 (1876); International & G. N. R. Co. v- FoUiard, 66 Tex. 603 (1886). Though a consignee' delay removal of goods, after notice of arrival by the carrier, beyond the time limited for the purpose by the bill of lading, the carrier will of course be liable if it can be shown that loss or injury occurred after arrival, but before the expiration of such period. The consignee's negligence would not be contributory. See McKinney V. Jewett, 90 N. Y. 267, 272 (1882). So where a package was directed to a person at H., who was not there when the coach arrived, nor for some days after, it was held that, as the package never in fact arrived, the absence of the person to whom it was directed did not exonerate the owners of the coach from their liability. Phillips v. Earle, 8 Pick. 182 (1829). Negligent act or omission of plaintiff is no ground of defense unless it contributed to the injury complained of. Haley v. Earle, 30 N. Y. 208 (1864); Teall V. Barton, 40 Barb. 137 (1863); Savage v. Corn Ex. F. & I. N. Ins. Co., 16 N. Y. 655 (1867), aff'g s. c. 4 Bosw. i (1858); Hoffman v. Union Ferry Co., 47 N. Y. 176 (1872). 2 Dougherty v. Chicago, B. & Q. R. R., 86 111. 467 (1877). Where the loss was caused by bad stowage, the shipper who stowed the goods cannot recover. Thomas v. Ship Morning Glory, 13 La. Ann. 269 (1858). ILLEGALITY OF VOYAGE OR SHIPMENT. 219 action was tried after the termination of tlie war. But the court held that if the servant paid fare as an ordinary passenger, which the soldier did not, the carrier would be liable.^ A carrier engaged in transporting passengers on Sunday is liable for injuries caused by the explosion of a boiler of imperfect construction and negligently man- aged.^ And where goods were shipped with the intent to smuggle them, but this was unknown to the carrier, and he took no part in it, it was held that he was liable to the shipper for the loss of the goods. The rule deducible from these cases is this: a viola- tion of law by the passenger or shipper does not put him without the pale of the law. He is still under its pro- tection, and may recover for the violation by the carrier of other requirements, which are disconnected from the violation of law by the passenger or shipper. But if he and the carrier are engaged in a common enterprise which is unlawful, neither will have a remedy against the other for injuries occurring in the prosecution of the enterprise. Thus far the cases referred to have all related to the ^ Redd V. Muscogee R. R., 48 Geo. 102 (1873). Is not this the last case in the United States in which a recovery was allowed for the money-value of a slave? 2 Carroll v. Staten Island R. R., 58 N. Y. 126 (1874). This decision is based expressly on the ground that the carrier could not and did not know that the passenger was violating the Sunday law. But in Mer- ritt V. Earle, 29 N. Y. 115 (1864); affg. s. c. 31 Barb. 38 (1859), it was held that the fact that the contract was made and the property de- livered on board the vessel on Sunday did not exempt the carrier from liability for the loss of the property. Where the law permits transporta- tion on Sunday, though the carrier is not bound to do business on that day, yet if he hold himself out as doing so, he is liable for his failure. Merchants' Wharf-Boat Assn. v. Wood, 64 Miss. 661 ; 2 So. Rep. 76 (1887); s. c. 3 So. Rep. 248 (1887). Traveling on Sunday was formerly forbidden, in Massachusetts, by statute. It was (until a more recent statute) held that damages could not be recovered against a carrier for personal injuries caused to a person transported by it on that day. Bucher v. Cheshire R. R., 125 U. S. 555 (1888). 220 THE MODERN LAW OF CARRIERS. shipper's misconduct or negligence. A similar rule lias been applied to the carrier. Thus it has been held that a notice posted in the bag- gage room of a steamer, that the carrier would not be liable for the loss of baggage unless it was checked, even if otherwise effectual, constituted no defense in a case where the passenger tried to obtain a check for his bag- gage, but could not, because the agent whose duty it was to furnish checks was absent.^ * Freeman v. Newton, 3 E. D. Smith (N. Y.), 246 (1854). If the court, in Gleason v. Goodrich Trans. Co., 32 Wis. 85 (1873), had been as lenient to the passenger as the Court of Common Pleas was in Free- man V. Newton, the decision of the Wisconsin case might have been dif- ferent. See ante, p. 161, n. 3. CHAPTER X. SECTION I. HOW THE CONTRACT OF LIMITATION MAY BE MADE. The general rule is clear, tliat a carrier cannot relieve itself entirely from the liability imposed upon it by the common law, for any particular risk, except by contract. We have already shown that by the law merchant a carrier by sea may discharge itself from liability, by an abandonment of its interest in the ship and her freight. We have also shown that the carrier may say to the shipper orally, or by written or printed notice brought home to him : I will not be liable for this or that risk, beyond a certain amount, unless you comply with my reasonable regulations. But in all these cases the liabil- ity is qualified only — not abrogated. We come now to the consideration of the cases in which some particular liability is entirely abrogated. And this can only be done by contract. Some courts have been more liberal, or if the reader please, more lax than others in their judgment as to the quantum of proof necessary to establish the contract. But in no well-considered case has it ever been held that the liability for any particular risk can be abrogated by a mere notice, that is to say by the carrier's own act, not assented to by the shipper.^ 1 Southern Express Co. v. Newby, 36 Georgia, 635 (1867); Bissell V. N. Y. Central R. R., 25 N. Y. 442 (1862); Dorr v. New Jersey Steam Navigation Co., 11 N. Y. 485 (1854). The rule is well expressed in Moore v. Evans, 14 Barb. 524 (1852): " In this State, carriers have not been allowed to limit their liability by 222 THE MODERN LAW OF CARRIERS. In the case of the shipment of goods to be transported as freight it is nsual for the consignor to receive a bill of lading, expressing the terms and conditions upon which the merchandise is to be carried. He is presumed to assent to its conditions, because he receives it under cir- cumstances which, by the ordinary usages of business, would naturally lead him to infer that the document he receives, which is his muniment of title, quasi negotiable and on the faith of which he may borrow money, is a con- tract and not a mere receipt.^ The rule is not changed even though it be shown that the consignor did not read the bill of lading.^ their own act." New Jersey Steam N. Co. v. Merchants' Bank, 6 How. U. S. 343 (i??48); Wallace v. Sanders, 42 Geo. 486 (1871). In this case the Court say : " The railroad cannot, by any act of its own, limit its liability, but if the act have the consent of the other party, then the rule changes, and the stipulation becomes a contract." This is espe- cially clear where the loss arises from negligence. Mann v. Birchard, 40 Vt. 326 (1867); Sager v. Portsmouth, S. & P. & E. R. R., 31 Maine, 228 (1850); Fillebrown v. Grand Trunk R. Co., 55 Ibid, 462 (1867);. Judson V. Western R. R., 88 Mass. 486 (1863). * Huntington v. Dinsmore. 4 Hun, 66; 6 Thomps. & C. (N. Y.) 195 (1875); Long V. New York Central R. R., 50 N. Y. 76 (1872); Grace V. Adams, 100 Mass. 505 (1868); Snider v. Adams Ex. Co., 63 Mis- souri, 376 (1876); Brehme v. The same, 25 Md. 328 (1866); McMahon V. Macy, 51 N. Y. 155 (1872); Farnham v. Camden & Amboy R. R., 55 Penn. 53 (1867); Am. Ex. Co. v. Second Natl. Bank, 69 Penn. 394 (1871). In short, a bill of ladmg is a contract. Logan v. Mobile Trade Co. 46 Ala. 514 (1871). It has been for many centuries usual for the carrier by sea to deliver a bill of lading to the shipper. The delivery of an inland bill of lading was perhaps suggested by the language of Best, C. J., in Brooke v. Pick- wick, 4 Bing. 218 : " If coach proprietors wish honestly to limit their responsibility, they ought to announce the terms to every individual who applies at their office, and at the same lime, to place in his hands a printed paper, specifying the precise extent of their engagement. If they omit to do this, they attract customers under the confidence in- spired by the extensive liability which the common law imposes on carriers, and then endeavor to elude that liability by some limitations which they have not been at the pains to make known to the individual who has trusted them." 2 Grace v. Adams, 100 Mass. 505 (1868). In this case the Court say : " It is not claimed that the shipper did not know that the receipt was a contract or a bill of lading. It was his duty to read it." Snider HOW CONTRACT LIMITATION MADE. 223 This rule was applied in a case where the shipper tendered a bill of lading, containing an agreement to transport the goods to Detroit. This city was beyond the carrier's line. The freight clerk interlined in red ink before Detroit the words " to Toledo for " and sent it back. The shipper retained the receipt without objection. Held that he must be deemed to have assented to its terms and that the carrier was not liable for a loss by fire occuring at Detroit.^ The same rule was applied in a case where the shipper paid more than the usual price for transportation, and might, therefore, naturally have inferred that the carrier's liability was unrestricted.^ In this latter case the Court does not appear to have considered the reason of the rule on this subject already stated. This rule is defensible only on the ground that the carrier has a right to charge a higher price for assum- ing the liability of an insurer, than for the assumption of a restricted liability. He cannot refuse to carry as com- mon carrier and to be liable as such, to the full extent V. Adams Ex. Co., 63 Mo. 376 (1876). In this case the Court say: "The instrument showed on its face that it was not merely a receipt. . . . It was his duty to read it." Mulligan v. Illinois Central R. Co., 36 Iowa, 181 (1873). American Merchants' Union Ex. Co. v. Schier, 55 111. 140 (1870), disapproves the decision in the Grace case, and holds that the question whether the shipper assented to the restric- tions and conditions in an inland bill of lading is one of fact for the jury. A contract of exemption, signed by both parties, is different from a notice or receipt given to the shipper, and is not within a statute invali- dating the latter, even though the shipper did not read it. 111. Cent. R. R. V. Jonte, 13 Bradwell (111. App.), 424 (1883). There are certain rules and regulations which a carrier may adopt, of which a passenger is bound to take notice. An^e, p. 178, n. i. ^ Muller V. Cincinnati, H. & D. R. R., 2 Cincinnati Superior Ct. Rep. (Ohio), 280 (1872). It is to be observed, however, that this was a case of delivery to a connecting line, and that there is no obligation upon a carrier to transport goods beyond the terminus of his own line. ' Huntington v. Dinsmore, 4 Hun, 66 ; 6 Thomps. & Cook (N. Y.), ^95 (1875)- 224 '^HE MODERN LAW OF CARRIERS. imposed b}- the common law. But lie may say, I will carry for less if you will relieve me from this onerous common law responsibility. The real question is this : . If the shipper is unwilling to be his own insurer, shall he pay his premium of insurance to the carrier or to an insurance company ? In practice so far as marine risks are concerned, the latter plan has proved the more con- venient and is that generally adopted. But if the carrier demand and receive compensation additional to that usually charged for transportation with restricted risk, where is the consideration for the restric- tion? Clearly the agreement for it would seem to be nudum pactum} The delivery by a carrier to a customer of envelopes, on which is printed an agreement for transportation leav- ing blanks for the specification of the termini, does not amount to a general contract to carry the money, for con- taining which the envelopes were adapted, to every point with which the carrier has connections. Under such cir- cumstances the carrier may lawfully, by the delivery of an appropriate bill of lading, limit its liability to its own route.^ ^ The criticism thus suggested is supported by the reasoning of the Supreme Court of Massachusetts and of Maine in the following cases : Buckland v. Adams Ex. Co., 97 Mass. 124 (1867); Perry v. Thompson, 98 lb. 249 (1867); Fillebrown v. Grand Trunk R. Co., 55 Maine, 462 (1867). In the latter case the consignor, before the special written contract was delivered, had made with the carrier a contract for trans- portation. This original contract was without restriction as to risk. It was held that there was no consideration for a restriction contained in a bill of lading, delivered upon the specific shipment of a particular lot of goods shipped under this contract, and that the restriction was there- fore not binding upon the shipper. In the two former cases there had been a previous general course of dealing, pursuant to which receipts were not given to the shipper, and the Court held that the man to whom the receipt was delivered had no authority to accept it. See, also, Cen- tral R. R. V. Dwight Mfg Co., 75 Geo. 609 (1885). ' Pendergast v. Adams Ex. Co., 101 Mass. 120 (1869); see Chap. XIII, sect. 3. EVIDENCE shipper's assent TO CONTRACT. 225 SECTION II. REQUISITE EVIDENCE OF THE SHIPPER'S ASSENT TO THE CONTRACT. There is a large class of cases which hold that evi- dence is necessary of some afi&rmative assent on the part of the shipper to the limitations of the proposed contract. On principle snch consent must always be shown in one way or other. If by the course of business it is customary that the carrier should. deliver and the shipper receive a bill of lading or other written contract, and he does receive it, this is evidence of assent. On this prin- ciple the cases already referred to were decided. There was, however, a time when it was not usual in all the States to deliver such contracts, but the shipper commonly received only a memorandum or receipt speci- fying the articles shipped, the names of consignor and consignee, and the place of delivery. When carriers first undertook to add limitations and restrictions to these receipts, it was held that evidence of assent on the part of the shipper should be given, and that the latter could show that he did not read the paper containing the alleged limitations, nor understand their purport, nor know that the paper given him was anything more than a receipt. This has been held : I. In reference to local express companies receiving baggage from travelers for transportation to their imme- diate destination. Various circumstances bearing on the question of assent have in such cases been put in evidence, as, for example, that the limitations were printed in small type, and that the printed paper claimed to be a contract was delivered in a dimly lighted car, moving rapidly, in which it was difficult to read.^ ^ Blossom V. Dodd, 43 N. Y. 264 (1870); Madan v. Sherrard, 42 N. Y. Superior Ct. Rep. 353 (1877). MacMahon v. Macy, 51 N. Y. 155 15 226 THE MODERN LAW OF CARRIERS. The principle of these decisions; to wit, that there is nothing in the nature of the transaction, or the custom of the trade which should naturally lead the shipper to sup- pose that he was receiving and accepting the written evi- dence of a contract, is well illustrated by the case of Woodruff V. Sherrard/ There a lady, after having given her baggage check to the carrier's clerk at his ofi&ce, and given directions for delivery, turned to leave the office. At this moment the contract was complete. At the suggestion of a friend she returned and asked for a receipt. The clerk gave her a printed paper containing a form of agreement limiting the carrier's liability to $100. This she did not read, and it was held that she never assented to its terms and was not bound by it. In another case ■ attention was called to the fact that a revenue stamp partly covered the clause by which it was sought to limit the carrier s liability to $ico, so that the clause could not be read intelligibly. 2. When express companies first undertook the charge of small parcels, which they transported by means of the (1872), distinguishes Blossom v. Dodd, as does also Kirkland v. Dins- more, and Belger v. Dinsmore; post^ p. 228, n. 2. The burden in such cases is on the plaintiff to show that he did not know the nature of the paper he received. ^ Woodruff V. Sherrard, 9 Hun (N. Y.), 322 (1876). A comparison between this case and that of Long v. New York Central R. R., 50 N. Y. 76 (1872), illustrates the text. In the latter there was verbal nego- tiation which ended in the delivery of the goods. On receiving these the carrier delivered a written instrument called a receipt, which the Court held constituted a valid contract which made the evidence of the prior negotiation incompetent. The Court say: "The evidence in this case accords with what, from experience, may almost be assumed to be the universal custom of common carriers, to wit, that freight is always carried by this defendant under a written contract. . . . The verbal contract was merged in the written agreement, and the latter must be taken as the evidence, and the sole evidence, of the final and deliberate agreement of the parties. . . . By it alone, in the absence of mistake or fraud, the duties and liabilities of the parties must be regulated." 2 Perry v. Thompson, 98 Mass. 249 (1867). EVIDENCE shipper's assent TO CONTRACT. 227 cars or steamboats of other carriers, a like rule was applied to them, and the mere delivery to the shipper of a receipt containing a clause purporting to exempt the express company from liability, either for specified causes or in a specified amount, was held not to amount to a con- tract unless the terms were read and assented to by the shipper.^ But the practice has become general of delivering to the shipper what the express companies style " Domestic Bills of Lading," which obviously contain much more than a receipt. It is believed that wherever this practice has become general, courts would apply to these docu- ments rules similar to those which for many years have been applied to marine bills of lading, and would hold that they constitute contracts, and that their terms are binding upon both parties.^ 1 Adams Express Co. v. Nock, 2 Duvall (Ky.), 562 (1866); Belger V. Dinsmore, 51 Barb. (N. Y.) 69 (1868); reversed 51 N. Y. 166 (1872); Kirkland v. Dinsmore, 2 Hun, 46; 4 Thomps. & Cook (N. Y.), 304 (1874); revd. 62 N. Y. 171 (1875). ^ Farnham v. Camden & Amboy R. R., 55 Penn. 53 (1867); Kirk- land V. Dinsmore, 62 N. Y. 171 (1875); York Co. v. Central R. R., 3 Wall. 107 (1865); VVestcott v. Fargo, 6 Lansing (N. Y.), 319 (1872); Dillard v. Louisville & Nashville R. R., 2 Lea (Tenn.), 288 (1879); see Lewis V. Great Western R. Co., 5 Hurl. & Norm. 867 (i860). Collender v. Dinsmore, 55 N. Y. 200 (1873), holds that an express receipt delivered at the time of shipment is a contract, s. p., Magnin V. Dinsmore, 56 N. Y. 168 (1874); Steinweg v. Erie R. Co., 43 N. Y. 123 (1870); Dorr V. New Jersey Steam Navigation Co., 11 N. Y. 485 (1854); IJreese v. United States Tel. Co., 48 N. Y. 132 (1871); Young V. Western Union Tel. Co., 65 N. Y. 163 (1875). The two latter were telegraph cases, but the Court intimate that the decision that the clauses in the telegraph blank were binding would have been the same had it been a bill of lading. Hutchinson v. Chicago, St. P., M. & O. R. Co., 37 Minn. 524; 35 N. W. Rep. 433 (1887). The Pacific, Deady Rep. 17 (1861), is an apparent exception, but was decided on its peculiar facts. The goods shipped were glass. The carrier's clerk told the carman that the carrier would not be responsible for breakage, and wrote the words "not accountable for contents" across the face of the bill of lading. This was communicated to the shipper, who at once, and while the glass was on the wharf, notified the clerk that he would not agree to the limitation. Held that the carrier was liable for breakage, and that the retention of the bill of lading by 228 THE MODERN LAW OF CARRIERS. The Supreme Court of Illinois, however, must perhaps be excepted from this general statement. That court has said in several cases, that it was always competent for the shipper to introduce extrinsic evidence to show that he did not understand or did not assent to the terms of the bill of lading, delivered to him or to his agent. ^ This doctrine seems one-sided. It imposes a burden on the carrier without holding the shipper to any obliga- tion. Ordinarily if a man receives a written paper as evi- dence of the contract between him and the other contract- ing party, it is his duty to examine it and to notify the other contractor if he does not assent to its terms. If he fail to do this, the other, in the absence of fraud or mutual mistake, has a right to rely upon the statement of the written contract. Even a Court of Equity will not relieve against an unilateral mistake, if there be no fraud.' the shipper did not under the circumstances constitute an acceptance of the limitation. 1 Field V. Chicago & Rock Island R. R., 71 111.458 (1874); Mer- chants' Despatch Co. v. Leysor, 89 111. 43 (1878); Ibid v. Joesting, 89 111. 152 (1878). But in Illinois this seems to be governed by the statute of that State, which provides that such " stipulation expressed in the receipt given for the property is not valid." If, however, the receipt is signed by the shipper or his agent, it is a contract and is valid. 111. Cent. R. R. v. Jonte, 13 Brad. (111. App.) 424 (1883). And, notwithstanding the statute, if he fully know the contents of the bill of lading and agrees to its terms it is a valid contract. Merchants' Despatch Co. v. Leysor, supra; so.^ post, p. 231., n. 5. In Dakota the shipper's signature to the contract is required by statute (Civil Code, § 1261, 1263), except as to the rate of hire, time, place and manner of delivery. Under this statute a clause in a bill of lading requiring claims to be presented within ninety days is not valid unless signed by the shipper. Hartwell v. Northern Pac. Ex. Co. (Dak.) 3 Lawy. Rep. Ann. 342 ; 41 N. W. Rep. 732 (1889). A similar statute, without the exception, has been passed in Michigan. (Laws 1873, No. 198.) Feige z;. Michigan Central R. R., 62 Mich, i; 28 N. W. Rep. 685 (1886). 2 Jackson v. Andrews, 59 N. Y. 244 (1874); Bryce v. Lorrillard Fire Ins. Co., 55 N. Y. 240 (1873). In Belger v. Dinsmore, 51 N. Y. 166 (1872), reversing s. c. 5 1 Barb. 69 (1870), the Court said that the presump- tion of law was that a party receiving an instrument in any busi- ness (in this case an express company's receipt) is acquainted with its EVIDENCE shipper's assent to contract. 229 And it should be observed that the statement of the rule iu Field v. Chicago & Rock Island R. R.^ was not necessary to the decision of the case. It was shown that the shipper accepted the receipt with knowledg"e of its con- tents. And this was held binding on him. The receipt or bill of lading limited the carrier's liability to its own line, and this was held to be a valid limitation. The same court has held that it is not necessary that the shipper should sign a duplicate of the express receipt or inland bill of lading in order to bind him by its terms.^ The Supreme Court of Wisconsin has held that though the possession by the shipper of a receipt from the carrier is prima facie evidence of his assent to the terms of the receipt, yet parol evidence is admissible to show that he never assented to its terms.^ contents. In Kirkland v. Dinsmore, 62 N. Y. 171 (1875), it is held: (i) that an express company's receipt which the shipper supposed ''was to show that the company received the money, and that the money was to be sent," and looked at it to see where it was to be carried, was a contract; (2) that it mnde no difference that the shipper did not know it was a contract, and did not read it; (3) that the carrier had a right to suppose he read it and assented to its terms. In Moore v. Evans, 14 Barb. 524 (1852), a "memorandum or re- ceipt " specifying the names of consignors and consignees, the amount of frcigut payable, the description and dcsiination of the goods, and mode of carriage, with the words " owner's risk," was held a special contract binding on the shipper. It does not appear whether he knew its contents. In Wallace v- Sanders, 42 Georgia, 486 (1871), the receipt was in the following form : " Received of Mr. one horse, two mules and one wagon, for shipment to Atlanta, at his own risk. John F. Reynolds, Agt." This was held to be a binding contract, notwithstand- ing the provisions of the Georgia statute that the carrier cannot limit his liability " by entry on receipts given," provided that the owner had a fair opportunity to understand the terms of the contract. This the Court held should have been left to the jury. It is manifest from these cases that the precise form of the paper is not of so much consequence, nor whether it be called a notice, a receipt, or bill of lading. The cir- cumstances under which it is given and received must control. For other Georgia cases see post, p. 231, n. 5. ^71111.458(1874). - Adams Ex. Co. v. Haynes, 42 111. 89 (1866); Chicago & N. W. R. Co. V. Montfort, 60 111. 175 (1871). 3 Boorman v. Am. Exp. Co., 21 Wis. 152 (1866); Strohn v. Detroit & 230 THE MODERN LAW OF CARRIERS. The sending b}^ the shipper to the carrier, for signa- ture, of printed receipts furnished by the carrier, contain- ing limitations upon his liability, amounts to an assent to the terms of such receipt.^ So it has been held that evidence that in previous in- stances the carrier had delivered to the shipper's teamster a printed receipt for the goods, containing a contract ex- empting the carrier from liability for loss by fire, and that no objection had been made by the shipper, was suf&cient to prove an actual assent on his part to the terms of this contract.^ For a reason similar to that which controlled the de- cision of the cases just referred to, no language on a pas- senger ticket is held to amount to a contract, without proof that the passenger read it and agreed to it. These tickets are vouchers that the passenger has paid his fare, and is entitled to the usual accommodation on the car- rier's vehicle. They do not, per se, constitute contracts.^ And in general it may be said that a notice by the carrier is inoperative to limit the amount or character of Mil. R. Co., 21 Wis. 554 (1867). In a later case, Morrison v. Phillips & Colby C. Co., 44 Wis. 405 ( 1878), the same court say (p. 410): "In most cases it may be absolutely conclusive." ^ Falkenan v. Fargo, 44 How. Pr. Rep. (N. Y.) 325 (1872); Westcott V. Fargo, 6 Lansing (N. Y.), 319 (1872); Wallace v. Matthews, 39 Georgia, 617 (1869). ' Van Schaack v. Northern Trans. Co., 3 Biss. 394 (1872); compare Adams Ex. Co. v. Stettaners, 61 111. 184 (1S71). ^ Nevins v. Bay State Steamboat Co., 4 Bosw. (N. Y.) 225 (1859); Verner v. Sweitzer, 32 Penn. St. 208 (1858). A commuter on whose ticket a notice is printed purporting to limit the carrier's liability is still a passenger, and the carrier is indictable for negligently causing his death. Commonwealth z;. Vt. & Mass. R. R., 108 Mass. 7 (1871). The ticket for a berth in a sleeping-car does not express all the terms of the contract. Lewis v. New York Sleeping-Car Co., 143 Mass. 267 (1887). In St. Louis, A. & T. R. R. v. Mackie, i Lawyers' Rep. 667 (Su- preme Ct., Texas, 1888), the court held that a passenger who paid for first-class tickets, and, without negligence on his part, received second- class tickets, had a valid cause of action against the carrier for the con- ductor's refusal to allow him to travel on first-class cars. EVIDENCE shipper's assent TO CONTRACT. 23 1 his liability, unless brouglit home to the shipper and ex- pressly or impliedly assented to by him. In this case it becomes a contract, and in strictness of terms ought not to be styled a notice at all.^ The same rule applies although the shipper paid the carrier for the transportation of his goods at a reduced rate, and the printed table of the rates of freight stated that the carrier would assume no responsibility for the loss, damage or delay of goods carried at this reduced rate. Even though the shipper pays only this reduced rate of freight, evidence must, in the absence of a written contract, be given that the shipper knew of the restriction and assented to it.^ In making proof of such a contract, a railway ticket delivered to a passenger^ or a check for baggage^ are ad- missible in evidence. The real distinction is this : If the paper delivered to the shipper by the carrier contains the terms of the con- tract between them, and is accepted by the shipper, it is conclusive evidence of the contract, in the absence of fraud or mutual mistake. But if it is a notice only, and does not purport to be a contract, or does not contain lan- guage sufficient to constitute a contract, it is no more than a parol statement, and proof must be given of ac- tual assent by the shipper to its terms.^ ^ Camden & Amboy R. R. Co. v. Baldauf, 16 Penn. St. 67 (185 1); Southern Express Co. v. Crook, 44 Ala. 468 (1870); Fibel v. Livingston, 64 Barb. (N. Y.) 179 (1872); Brown v. Adams Ex. Co., 15 W. Va. 812 (1879); Gott V. Dinsmore, ui Mass. 45 (1872); Farmers' Bank v. Champlain Trans. Co., 23 Vt. 186 (185 1). =« Bait. & Ohio R. R. v. Brady, 32 Md. zzz (1869). See Thomas v. The Morning Glory, 13 La. Ann. 269 (1858). That such a reduced rate was a sufficient consideration for a limitation of liability, was held in Dillard v. Louisville & N. R. R., 2 Lea (Tenn.), 288 (1879). ^ Barker v. Coflin, 31 Barb. 556 (i860). * Wilson V. Chesapeake & Ohio R. R., 21 Gratt. (Va.) 654 (1872). * In Rome R. R. v. Sullivan, 32 Geo. 400 (1861), it was said: "The jury may consider the receipt, together with all the facts in the case, to show that there was a special contract." See Geo. R. R. v. Spears, 66 Geo. 485 (1881); Geo. Code, sect. 2068. In Judson v. Western R. R., 88 Mass. 486 (1S63), the rule in Massa- 232 THE MODERN LAW OF CARRIERS. In some cases, like that of the Southern Ex. Co. v. Crook/ the further qualification is annexed that the terms of this notice must be just and reasonable. No well-con- sidered case, however, holds that if the notice, by agree- ment of the shipper, is transformed into a contract, the justice or reasonableness of its terms, if not opposed to public policy, are a proper subject for the consideration of the court. It cannot be denied that the earlier English, and some of the American decisions recognize and maintain the right of the carrier to limit the amount of his liability by a notice posted conspicuously in his of&ce, or advertised generally, or contained on the face of a receipt given to the shipper or passenger, even though the latter does not read or know of this notice,^ But the distinction thus taken is not supported in its full extent by the later authorities. As far as there was reason and good sense in it, the cases cited and comment- ed upon in the ninth chapter adopt it. That is to say, a shipper cannot lawfully mislead a carrier by imposing upon him the carriage of goods of great intrinsic value, contained in a package or wrapping calculated to deceive chusetts is laid down that " a notice by the carrier that he will not as- sume the ordinary responsibility imposed by law, if brought home to him and assented to clearly and unequivocally, will be binding, because tantamount to an express contract." This leaves open the question whether placing such a notice in his hands will amount to " bringing it home to him," whether he reads it or not. As to what constitutes assent, it is said that "mere silence cannot be said to amount to assent." Buckland v. Adams Ex. Co., 97 Mass. 124(1867). Redfield on Railways, vol. 2, pt. 8, sect. 11, p. 88, thus states the rule: "At all events the carrier must show that the owner ... ac- quiesced by making no remonstrance." See cases ante, p. 228, n. 2. * Southern Ex. Co. v. Crook, 44 Ala. 468 (1870). ^ Cowen, J., in Cole v. Goodwin, 19 Wend. 251 (1838), and cases cited. Hopkins v. Westcott, 6 Blatchf. 64 (1868); Whitesell v. Crane, a Watts & S. (Penn.) 369 (1845); Barney v. Prentiss, 4 Harr. & Johns. (Md.) 317 (1818). CONSTRUCTION NEGLIGENCE CONTRACTS. 233 him as to the character of the contents. Farther than this no recent cases of authority have gone. The change in th« current of decisions began when it was held that a notice was of no avail unless brought home to the shipper, no matter how widely it had been advertised.^ Then followed the decisions that even if notice were brought home to the shipper, it would not be binding upon him unless he assented to its terms, and if he did so assent it would cease to be a mere notice and become a contract.^ Merely marking a package C. O. D. does not consti- tute a contract with the carrier to collect the price. An agreement by him so to do must be proved, either by positive evidence or by proof that it is customary for the carrier to collect the price on receiving parcels so marked.^ SECTION III. CONSTRUCTION OF CONTRACTS CLAIMED TO EXEMPT FROM NEGLIGENCE. It has been shown in Chapter IV that the Federal Courts and courts of many States, deny the validity of * Peck z;. Weeks, 34 Conn. 145 (1867); Bean v. Green, 12 Maine, 422 (1835); Sager v. Portsmouth & S. & P. & E. R. R., 31 Maine, 228 (1850); Fillebrown v. Grand Trunk R. Co., 55 lb. 462 (1867); Hollister V. Nowlan, 19 Wend. (N. Y.) 234 (1838); Cole v. Goodwin, Ibid., 251 (1838); Clark V. Faxton, 21 Ibid, 153 (1839); Camden & Am boy R. R. & Trans. Co. v. Belknap, 21 Ibid. 354 (1839); Jones v. Vorhees, 10 Ohio, 145 (1840); Moses v. Boston & Maine R. R., 24 N. H. 71 (1851); Sanford v. Housatonic R. R., 11 Gushing (Mass.), 155 (1853). This same rule was applied, even to a reasonable regulation of the carrier, in Macklin v. N. J. Steamboat Co., 7 Abb. Pr. N. S. (N. Y.) 229 (1869). * Blomenthal v. Brainerd, 38 Vermont, 402 (1866); Western Trans. Co. V. Newhall, 24 111. 466 (i860); Derwort v. Loomer, 21 Conn. 244 (1851); Moses V. Boston & Maine R. R., 32 N. H. 523 (1856); Dorr v. N. J. Steam Nav Co., 11 N. Y. 485 (1854); Rawson v. Penn. R. R., 2 Abb. Pr. N. S. (N. Y.) 220 (1867); Kimball v. Rutland & B. R. R., 26 Vt. 247 (1854); Farmers' & Mechanics' Bank v. Champlain Trans. Co., 23 Vt. 186 (1851); Hale V. N. J. Steam Nav. Co., 15 Conn. 539 (1843). =» Chicago & N. W. R. Co. v. Merrill, 48 111. 425 (1868). 234 THE MODERN LAW OF CARRIERS. contracts which purport to exempt the carrier from liabil- ity for the negligence of its servants. But in England and in those States which admit the validity of such con- tracts, the question has been frequently considered, whether it was the intention of the particular clause under consideration, to exempt the carrier from liability, either for an intentional or willful act or for negligence on the part of its servants. In those States it is well settled that the " contract will not be deemed to except losses occa- sioned by the carrier's negligence unless that be expressly stipulated." ^ The English courts state this rule of construction sub- stantially in the form in which it is laid down in America. But in the application of the rule there is a difference between the courts of the two countries. If the language of the bill of lading is so general as in terms to exclude ^' all risks," of whatever kind, a loss from negligence is held in England to be included, although a loss from neg- ligence be not specified.'^ ^ The quotation in the text is from Magnin v. Dinsmore, 56 N. Y, 168 (1874). In Mynard v. Syracuse, B. & N. Y. R. R., 71 N. Y. 180 (1877), revg. s. c 7 Hun, 399 (1876), the contract under consideration purported to release the carrier from all claims for injury to the stock transported "from whatsoever acts arising." The Court held that this general language was not sufficient to include a loss occasioned by the negligence of the carrier's servants. To the same effect are Steinweg V. Erie R. Co., 43 N. Y. 123 (1870); Wells v. Steam Nav. Co., 8 N. Y. 375 (1853); Nicholas v. N. Y. Central & H. R. R. R., 89 N. Y. 370 (1882); Holsapple v. Rome, W. & O. R. R., 86 N.Y. 275 (1881); Schief- felin V. Harvey, 6 Johns. 178 (1810). The language of Nelson, J., in New Jersey Steam Nav. Co. v. Mer- chants' Bank, 6 How. (U. S.) 344 (1848), is to the same effect. See The New Orleans, 28 Fed. Rep. 44 (1885). The words " at owner's risk" will not be held to exempt the carrier from liability for loss caused by negligence. Canfield v. Baltimore & O. R. R., 93 N. Y. 532 (1883); Alexander v. Greene, 7 Hill (N. Y.), 533 (1844); Baltimore & Ohio R. R. v. Rathbone, i VV. Va. 87 (1865); Western & A. R. Co. v. Exposition Cotton Mills (Ga. ), 7 S. E. Rep. 916 (1888). ^ The general rule of construction stated in the text is supported by Hayn v. Cullifor, 3 C. P. Div. 410 (1878); s. c. on appeal, 4 C. P. Div. 182 (1879); Chartered Merc. Bk. of India z^. Netherlands India S. N. CONSTRUCTION NEGLIGENCE CONTRACTS. 235 A clause exempting the carrier from liability for loss by fire does not cover the case of a loss from fire, occa- sioned by negligence of the carrier's servants, or his fail- ure to provide reasonable precautions against danger, unless the intention to provide for such exemption appears distinctly in the contract/ Where a loss occurs from an excepted risk, but the negligence of the carrier or his breach of contract con- tributes to the loss, the question has frequently been raised whether the carrier is entitled to the benefit of the limitations of liability contained in the bill of lading. The decisions on this subject are not uniform. In New York, where the bill of lading exempted the carrier from liability for loss by fire, it was held that he was liable for destruction, caused by fire which consumed the goods while awaiting transportation, because the omission to transport was attributable to the carrier's neglect to provide proper means for transportation.^ This case is supported by others of authority.^ Co. (The Kron Prinz), 9 Qu. B. Div. 118 (1882); s.c, reversed in part, 10 lb. 521 (1883). Its application by the English courts is illustrated by Austin v. Manchester R. Co., 10 C. B. 454 (1850); Carr z'. Lan- cashire & Yorkshire R. Co., 7 Excheq. 707 (1852). In this latter case the language of the contract was, "subject to the owner's taking all risk of conveyance whatsoever, as the company will not be respon- sible for any injury or damage (however caused)." It was held that the carrier was not liable for a loss caused by the negligence of his servants. Phillips V. Edwards, 28 L. J. Excheq. 52 (1858); Peek v. North Staf- fordshire R. Co., 10 House of Lords Cases, 473, 499, 511 (1862). Since the passage of the English statute authorizing the courts to determine what clauses in contracts for conveyance by land are unrea- sonable, the courts have held that general clauses of exemption like these in such contracts are unreasonable. McManus v- Lancashire R. Co., 4 H. & N. 327 (1859); Gregory v. West Midland R. Co., 33 L. J. Excheq. 155 (1864). 1 Erie R. Co. v. Lockwood, 28 Ohio St. 358 (1876); U. S. Express Co. V. Backman, Ibid, 144 (1875); Gaines ?'. Union Trans. Co., Ibid, 418 (1876); Chicago, St. L. & N. O. R. R. v. Moss, 60 Miss. 1003 (1883); Montgomery & W. P. R. R. v. Edmonds, 41 Ala. 667 (1868); New Orleans, St. L. & C. R. R. v. Faler, 58 Miss. 911 (1875). ^ Condict V. Grand Trunk R. Co., 54 N. Y. 500 (1873); see s. c, 4 Lansing 106 (1871). =» McDaniel v. Chicago & N. VV. R. Co., 24 Iowa, 412 (1868). In 236 THE MODERN LAW OF CARRIERS. So, it is well settled that if the carrier does not for- ward the goods by the conveyance named in the bill of lading, or by the ordinary route, he is liable for a loss, although it occur from an excepted peril.^ Where the contract is to transport "all rail," these words should receive a reasonable construction. The carrying of goods in the ordinary cars of the railroad, from the terminus of the railroad over a ferry would not be a violation of such stipulation. But if the carrier under such a contract, without necessity, transports the goods over a part of the route by water, even though such transportation be common, and over one of his regular routes, he loses the benefit of the limitation. This was held in a case where the contract was made at one end of a route formed of several connecting lines, and the car- rier at the other end transported the goods in his usual way for 20 miles by water — from Perth Amboy to New York. The goods were destroyed by fire before delivery at the latter place. The contract exempted the carrier this case the immediate cause of the injury was defective cars. Whit- worth V. Erie R. Co., 45 N. Y. Superior Ct. 602 (1879); Michaels v. N. Y. Central R. R., 30 N. Y. 564 (1864); Bostwick v. Baltimore & Ohio R. R., 45 N. Y. 712 (1871); Heyl v. Inman S. S. Co., 14 Hun (N. Y.), 564 (1878). This was a case of loss by fermentation. Dunson v. New York Central R. R., 3 Lans. (N. Y.) 265 (1870), and Read z;. Spaulding, 30 N. Y. 630 (1864), were cases of loss by a flood. Wing v- New York & Erie R. R., i Hilton, 235 (1856), was a case of damage by freezing. So was The Aline, 25 Fed. Rep. 562 (1885); affg. s. c 19 Fed. Rep. 875 (1883). So was Siordet v. Hall, 4 Bing. 607 (1828). New Bruns- wick Steamboat Co. v. Tiers, 24 N. J. Law, 697 (1853), was a case of loss by a storm. Campbell v. Morse, i Harper Law (S. C), 468 (1824), was a case of loss by flood. In all these cases, though the immediate cause of the injury or loss was an excepted peril, it was held that the carrier was liable, because his negligence contributed to the result. * Express Co. v. Kountze, 8 Wall. 342 (1869). In this case the loss was by capture. The carrier had a route by which the goods might have been forwarded and which was safe. Held, the carrier was liable. Marckwald v. Oceanic Steam. Nav. Co., 11 Hun (N. Y.), 462 (1877); Goddard v. Mallory, 52 Barb. (N. Y.) 87 (1868); Merchants' Despatch Trans. Co. v. Kahn, 76 111. 520 (1S75); Hand v. Baynes, 4 Whart. (Pa.) 204 (1838); Lamb v. Camden & Amboy R. R., 2 Daly (N. Y.), 454 (1869); Simon v. The Fung Shuey, 21 La Ann, 363 (1869). CONSTRUCTION NEGLIGENCE CONTRACTS. 237 from liability for loss by fire. It was nevertheless Held that lie was liable.^ The Supreme Court of the United States, and also that of Massachusetts, has declared a somewhat different rule. Those courts cited the maxim familiar in insurance law, causa proxima^ non 7'eviota^ spectatur^ and held the carrier not liable if the immediate cause of the loss was a peril for which the carrier was not liable, although delay on the carrier's part brought the goods into the place and time at which the peril occurred.^ If the carrier has good reason for declining to receive goods or passengers, he should state it at the time the application for transportation is made. If not stated then he cannot set it up afterwards."^ 1 Mnghee v. Camden &: Amboy R. R., 45 N. Y. 514 (1871). ^ Railroad Co. v- Reeves, 10 Wall. 176 (1869); Hoadley z/. North- ern Trans. Co., 115 Mass. 304 (1874); Denny v. New York Central R. R., 13 Gray (Mass.), 481 (1859); Morrison v. Davis, 20 Penn. 171 (1852). See another case where this maxim was applied to the liability of a carrier for injuries caused directly by a storm but remotely by his negligence: Gillespie v. St. Louis, Kansas City & N. R. R., 6 Mo. App. 554 (1879). No doubt these cases are supptirted by analogous decisions in reference to contracts of a different species. But they appear to overlook the well-established policy of the law to confine within the narrowest limits exemptions fur losses by negligence or omission of duty. In the recent case of Fox v. Boston & Me. R. R., 1 Lawyers' Rep. 702 (Supreme Court, Mass.), the loss occurred by freezing. If the apples had been forwarded without delay they would not have been frozen. The court held the carrier liable, and distinguished the case from the Denny and Hoadley cases thus: "In each of these cases, the loss to ihe plaintiff was caused by an extraordinary event, a fire and a freshet; and the Court held that the defendants, although guilty of negligent delay, were not responsible, because the event was not one which would reasonably be anticipated. In the case at bar the event which caused the loss was contemplated by the parties when they made their contract, as a probable consequence of the breach of it." In the Reeves case, cited in this note, the connection of the negli- gence of the carrier with the loss was very remote. The general doc- trine in the Federal courts is the same as that of the cases cited in notes 4 and 5. See cases cited Chap. XIV. sect. 6, note 2; sect. 7, notes i, 2; sect. 8, notes 3, 5, 6. =» Hannibal R. R. v. Swift, 12 Wall. 262 (1870); Phelps v. 111. Cent. R. R., 94 111. 556 (1880). 238 THE MODERN LAW OF CARRIERS. When the language of the contract was that " the company would not be responsible for articles conveyed upon its road, unless," &c., it was held that this limita- tion applied only to the transportation, and did not limit the carrier's liability for injuries to the goods while in his possession waiting to be transported.^ Like all other contracts, the carrier's contract with the shipper must be construed as a whole, and effect, if pos- sible, be given to every clause.'^ Contracts with carriers are generally drawn by the carrier himself, and should, therefore, be construed strictly as against him.^ 1 Detroit & Milwaukee R. R. v. Adams, 15 Mich. 458 (1867). ^ In Sisson v. Cleveland & Toledo R. R., 14 Mich. 489 (1866), the language of a subsequent clause of the contract was held to limit that of a prior clause. The first provided that the owner of the live stock transported should assume " all and every risk of injuries which the animals, or either of them, may receive," &c., and " risk of any loss or damage which may be sustained by reason of any delay or from any other cause or thing, in or incident to or from or in loading or unload- ing the stock." It was held that the limitation applied wholly to injuries to the stock caused by delay and not to injury done the owner by the delay which occurred and which brought the stock to market after prices had declined. ^ Hooper v. Wells, 27 Cal. 11 (1864). Sawyer, J., at p. 27, said: " The language must be taken most strongly against the defendants. . . . The instrument is executed by them alone. It was drawn up with care, in language selected by themselves, the blank form having been printed in advance ready to be presented to all persons offering property for transportatien by their express. The restrictions were for their benefit." Cream City R. R. v. Chicago, M & St. P. R. Co , 63 Wis. 93 (1885). In Keeley v. Boston & Me. R. R., 67 Maine, 163 (1878), the con- tract was construed strictly against the passenger. It was held that a ticket from Portland to Boston meant precisely what it said and would not authorize the holder to ride the reverse wav. See Downs v. N. Y. & N. H. R. P., 36 Conn. 287 (1869). CHAPTER XI. USAGE OF BUSINESS. SECTION I. EFFECT OF THE CARRIER'S USAGE, WITH ESPECIAL REFERENCE TO THE QUESTION OF NOTICE TO THE SHIPPER. Kvidence of uniform usage in the transaction of busi- ness between carrier and shipper is material in one of two ways : 1. As bearing on the question of actual notice to the shipper, and of assent by him to the transportation of his goods in accordance with the usage. 2. As establishing a reasonable regulation for the con- duct of the carrier's business, pursuant to which it may be done, on the whole, with greater facility and conven- ience both to the public and carrier, whose real interests will, in the end, always be identical, however diverse they may appear upon a superficial view. The general rule is that custom cannot be set up to contradict the agreement contained in the bill of lading. For example : it was held that a carrier who agreed to transport freight from San Francisco to New York via Panama, could not show the existence of a custom that the carrier should not be liable for loss on the Isthmus.^ * Simmons v. Law, 4 Abb. Ct. App. (N. Y.) 241 (1866). In this case the bill of lading provided against perils of ''navigation, land carriage, &c.," and the carrier endeavored to support the exception by showing that it was the custom of the trade for shippers to assume all the risk of transportation of gold across the Isthmus. Held that, as against the positive agreement to deliver safely in New York, evidence of such cus- 240 THE MODERN LAW OF CARRIERS. Evidence of the usage of business is always admissible to explain the meaning of ambiguous terms in a bill of lading/ Usage cannot add to a contract an independent clause. If there be an express contract for the carriage of goods, which contains no clause exempting the carrier from lia- bility for the loss in question, evidence is not admissible that a clause providing for such exemption is usual in the carrier's bill of lading.^ When no express contract is made, the same rule ap- plies to the contract implied by law from delivery of goods to a carrier for transportation.^ Proof of the usage of the carrier in the conduct of its business is not, of it- self, sufficient in any case to exempt the carrier from lia- bility for any particular species of injury or loss; as, for example, loss by fire,^ or by overloading a vehicle.^ The fact that the shipper has, in the case of previous shipments, accepted from the carrier bills of lading con- tom was not admissible, even under this somewhat ambiguous bill of lading. On the other hand it has been held that a usage to carry pas- sengers' trunks of a peculiar construction, containing samples of mer- chandise, would not render the carrier liable for the merchandise con- tained in them. And see p. 210, n. 2, ante. Ailing v. Boston & Albany R. R., 126 Mass. 121 (1879). ^ Balfour v. Wilkins, 5 Sawyer, C. C 429 (1879). -^^ this case it was also held that evidence of the facilities for loading at the port of lading was admissible to explain the language of the bill of lading; as, for in- stance, to show what was meant by "rainy days." See, also, Fabbri v. Mercantile Mutual Ins. Co., 6 Lansing (N. Y.), 446 (1872); Vose v. Morton, 5 Gray (Mass.), 594 (i'856); Houghton v. Watertown Fire Ins. Co., 131 Mass. 300 (1881). ^ Clyde z^. Graver, 54 Penn. 251 (1867). The rule which excludes parol evidence to vary or contradict a written contract, is as applicable to carrier's contracts as to any others. Long v. New York C R. R., 50 N.Y. 76 (1872). 3 McMillan v. Michigan S. cSr N. I. R. R., 16 Mich. 79 (1867); Browning v. Long Id. R. R., 2 Daly (N. Y.), 117 (1867). * Coxe V. Heislev, 19 Penn. 243 (1852). But see Patten v. Mc- Grath, Dudley (S. C), 162 (1838); Swindler v. HiUiard, 2 Rich. Law (S. C), 286 (1846), and Singleton v. HiUiard, i Strob. (S. C) 203 (1847). ^ Derwort v. Loomer, 21 Conn. 245 (1851). USAGE OF BUSINESS NOTICE. 24 1 taining clauses restricting the carrier's liability, affords no ground for the inference that when no bill of lading was delivered or accepted he agreed to similar limitations. The inference that he was unwilling to agree to them is at least equally consistent with his conduct and that of the carrier.^ But evidence of usage is admissible as bear- ing on the question of assent by the shipper to the pro- posed limitation.^ It has been very much debated whether, in order to make the usage effectual to modify or restrict the carrier's liability in reference to the delivery of goods intrusted to 1 McMillan v. Michigan S. & N. I. R. R., 16 Mich. 79, iii (1867). The rule that "the common-law liability of a common carrier is not limited by a general notice that he will not accept or carry goods ex- cept under a restricted responsibility, although the notice is known to the shipper when he delivers them for shipment," Kirkland v. Dins- more, 62 N. Y. 171 (1875); Bean v. Green, 3 Fairfield (12 Me.), 422 (1835), ought, on principle, to decide all these questions that have been mooted concerning the effect of the carriers' usage. As the court in Kirkland v. Dinsmore well said (p. 175): "It is presumed, under such circumstances, that the shipper delivers the goods under the contract which the law creates, and not upon the terms stated in the notice." Hollister v. Nowlen, 19 Wend. 234 (1838); Dorr v. N. J. S. Nav. Co., II N. Y. 485 (1854). See ante, pp. 225, 230, 231. ^ Cooper V. Berry, 21 Georgia, 526 (1857); Hinkley v. N. Y. Central R. R., 3 Thomps. & Cook (N. Y.), 281 (1874); Nevins v. Bay State S. B. Co., 4 Bosw. 225, 238 (1859), per Woodruff, J. Cooper V. Berry was a case where cotton delivered to a carrier was burned. The evidence tended to show that, by the usage of the busi- ness, the carrier was not liable for loss by fire. There was no written contract in the case, and the court held that a contract to limit the carrier's liability might be proved by the acts from which a contract is to be implied, such as public notice, known to the person for whom he carries that he will not be answerable for loss of goods committed to his care. Any other acts or facts from which such a contract is to be implied must stand on the same footing. Gibbon v. Paynton, 4 Burr. 2298 (1769); Hyde agst. Trent & Mersey Nav. Co., 5 Term Rep. 389 (1793); Angell on Carriers, io6, 179, 301, 355. Browning v. L. I. R. R., 2 Daly, 117 (1867). At page 121 the court say: "This general obligation (as to delivery and notice to the con- signee) may be varied by an express contract between the parties; or a uniform and well-known usage may be shown, establishing a mode of delivery in certain cases or at particular places, in conformity with which the parties may be presumed to have contracted." Gibson v. Culver, 17 Wend. 305 (1837). 16 242 THE MODERN LAW OF CARRIERS. him, it is necessary to prove that the consignee had notice of such usage. On the one hand some courts have held that the consignee or owner of the goods is bound to ac- quaint himself with the usages of business of the carrier with whom he deals, and is bound to take notice of them and act in accordance with them.^ And it has even been held that a reasonable regulation of a railroad company as to the transportation of passengers — to wit, requiring the trip to be continuous — w^as binding on a passenger, al- though he had no notice of it, and the usage had been to disregard it.^ And it is held that passengers are bound to enquire and take notice at what stations a particular train usually stops. ^ On the other hand it has been held in numerous cases that a usage is of no effect to limit the carrier's liability unless notice of it is brought home to the shipper or own- er of the goods in question.^ Notice of such a usage 1 Farmers' & Mechanics' Bank v. Champlain Trans. Co., i8 Ver- mont, 131 (1846); s. c. 23 Vt. 186 (1851); Beebe v. Ayres, 28 Barb. (N. Y.) 275 (1858). ... 2 Johnson v. Concord R. R., 46 N. H. 213 (1865). But this decision would seem, on principle, indefensible. The power that makes a rule can change it. To suffer it to become obsolete is practically to change or repeal it. And a carrier, having thus dealt with its own rules, ought not to be allowed suddenly to revive them. This would make them a trap to the unwary, rather than a source of safety to the public. The Supreme Court of Louisiana held the reverse in Leisy v. Buyers, 2)^ La. Ann. 705 (1884). Still it may be just to require, as the Supreme Court of Iowa did in O'Neill v. Keokuk & D. M. R. Co., 45 Iowa, 546 (1S77), that some evidence should be given that this customary disregard of the rule was known to the officer charged with its enforcement. ' Fink V. Albany & Susquehanna R. R., 4 Lansing (N. Y.), 147 (1871). See Chap. VII, sect. 11. * Cantling v. Hannibal & St. Joseph R. R., 54 Mo. 385 (1873). (This case was similar to Mayal v. B. & M. R. R., infra.) Minter v. Pacific R. R., 41 Mo. 503 (1867); Gleason v. Goodrich Trans. Co., 32 Wis. 85 (1873)- As to the trains on which passengers may ride, see Marony v. Old Colony R. Co., 106 Mass. 153 (1870). As to notice to the consignee of the arrival of the freight, see Judson v. Western R. R., 6 Allen, 486 (1863); The Mary Washington, i Abb. (U. S.) i; s. c. Chase Dec. 125 (1865). As to the requirement that a ticket must be purchased by the passenger on a freight train, where the rule was new and the passenger USAGE OF BUSINESS NOTICE. 243 may, perhaps, be implied from its notoriety and long con- tinuance/ And the weight of authority is that if proof is not given of actual notice of the usage to the party sought to be affected by it, evidence must be adduced that it has been so uniform, well settled, and of long duration, that it may reasonably be inferred that he had notice of it."*^ In other words, it must be so general and well known that the court may fairly presume that it was within the contemplation of the parties when the contract was made, and thus formed a part of it. Thus it was held that a custom on the part of a carrier by rail, to deliver to a carter those goods for which the consignee did not call, was not sufficient to impose an obligation on the carrier to deliver at the consignee's place of business.*^ had been in the habit of riding without a ticket, see Lake Shore & M. S. R. Co. V. Greenwood, 79 Penn. 373 (1875). As to contracts between the carrier and one of its agents, by which the latter is to transport a certain class of goods, and be alone responsible for loss or injury to them, see Mayall v. Boston & Maine R. R., 19 N. H. 122 (1848). ^ See St. John v. Southern Express Co., i Woods, 612 (187 1). In this case the que,-tion was considered, but not definitely decided. 2 Duling V. Phil., W. & B. R. R., 66 Md. 120; 5 Central Rep. 570 (1886). In this case a passenger sought to bind a railroad company by the usage of its ticket agent, and the rule stated in the text was applied. Illinois Central R. R. v. Smyser, 38 111. 354 (1865); Bissell v. Price, 16 111. 408 (1855); Macklin v. New Jersey S. Co., 7 Abb. Pr. N. S. 229 (1869); Cooper V. Berry, 21 Geo. 526 (1857). The same rule was ap- plied in a case where it was sought to prove a usage as to the meaning of words in a contract. Miller v. Burke, 68 N. Y. 615 (1877). ^ Cahn V. Michigan Central R. R., 71 111. 96 (1873). An illustration of this rule is to be found in the case of Wiltse v. Barnes, 46 Iowa, 210 (1877). The court in that case treat a usage of the carrier as to deliv- ery, known to the consignor, as a part of the contract and equivalent to a direction from the consignor to follow such usage. It was to require prepayment of the charge for transportation before the consignee should be allowed to examine the goods. He refused to make such prepay- ment, and the goods were consequently returned to consignor. It was held that the consignee had no right of action against the carrier for the refusal to deliver. {Post, pp. 244, 245). The contradiction between the cases as to whether proof must be made of actual notice to the shipper or passenger of the existence of a usage, may be explained by a reference to the nature of the rule which may be under consideration. A rule may be reasonable if notified to 244 THE MODERN LAW OF CARRIERS. SECTION II. USAGE AS REGULATING THE CARRIER'S MODE OF TRANSACTING BUSINESS. There are some matters relating to and modifying the carrier's common law liability, which in the absence of express contract are determined by the usage of the busi- ness. One of these is the manner of delivery of the goods intrusted to him. It is well settled that this should be according to the usages of the place where the delivery is to be made, or the usual exigencies of business there.^ These usages in reference to the manner in which de- livery should be made are binding upon both parties and may be shown by either,^ For example, where it was the usage that vessels bound to the port of Cleveland should deliver their cargoes at an elevator, each vessel awaiting its turn, the Court held that this usage formed a part of the contract, and that the carrier was responsible for injury to the goods which occurred while the vessel was waiting its turn, and could not recover demurrage for dela}- caused by such injury.'^ In another elevator case, however, the the passenger, which he would not be bound to inquire for or expect. On the other hand there are some matters on which shippers and pas- sengers are bound to inform themselves, as, for example, where a par- ticular train will stop. Ante, Chap. VII, sect. ii. ^ Richmond v. Union Steamboat Co., 87 N. Y. 240 (1881); Homesly v. Elias, 66 N. C 330 (1872); Adams Ex. Co. v. Darnell, 31 Ind. 20 (1869); Salter v. Kirkbride, 4 N. J. Law Rep. 223 (1818); Mc- Masters v. Penn, R. R.,69 Penn. 374 (1871);/^^-/, Chap. XIV, sect. 8. ' 2 The Tybee, i Woods, 358 (1870); Hooper v. Chicago & N. W. R. Co., 27 Wis. 81 (1870); Whitehouse v. Halstead, 90 III. 95 (1878); Hodgdon z'. N. Y. New Haven & H. R. R., 46 Conn. 277 (1878). In New Orleans, J. & G. N. R. R. v. Hurst, 36 Miss. 660 (1859), '^^ "^^^ held that a usage as to the place at which a particular train should stop was binding upon the carrier. But delivery to the holder of the invoice is not justified by a previous course of dealing between him and the carrier, unknown to the shipper, the bill of lading being to the order of the latter. Penn. R. Co. v. Stern, 119 Penn. 24 (1888); Weyand z'. Atchinson, T. & S. F. R. Co., 39 N. W. Rep. (Iowa), 899 (1888); North Penn. R. R. v- Commercial Bk. of Chic, 123 U. S. 727 (1887). ^ The Glover, i Brown Adm. 166 (1872). USAGE OF BUSINESS. 245 Court held that a custom to moor along side an elevator barges containing cargo consigned to its owner, leaving him to take care of them, would not relieve the carrier, nor justify the Court in finding that there had been a delivery to the consignee.^ The rule already stated as to the effect of the usage at the port of delivery has been applied to the delivery by a carrier to the next connecting line. The customary method of forwarding the goods from the terminus of the first carrier's line is presumed to have entered into and formed part of the contract,'^ But a mere practice estab- lished by a carrier for its own convenience, in reference to delivering goods to a connecting line, will not excuse delay on the part of the carrier in forwarding the goods, although justified by the custom.'^ The custom in reference to the part of the vessel on which goods of a particular kind are to be stowed is bind- ing upon both parties."^ The usage of business as to the \ Germania Ins. Co. v. La Crosse & Minn. Packet Co., 3 Bissell, 501 {1873). The carrier in this case was a tug, and moored her tow- while a gale was raging, which caused the damage. ^ The Convoy's Wheat, 3 Wallace, 225 (1865); Simpkins v. Norwich & N. L. Steamboat Co., 11 Cushing, 102 (Mass.) (1853); Van Santvoord V. St. John, 6 Hill (N. Y.), 157 (1843), revg. s. c, 25 Wend. 660 (1841); Mich. Cent. R. R. v. Curtis, 80 111. 324(1875). For example, where a carrier by rail received goods for transportation to Albany, there to be delivered to the People's line of steamboats for transportation to New York, and the People's line refused to take the goods, and the carrier thereupon delivered them to another line, to which such goods were customarily delivered, it was held that this was a good delivery and relieved the carrier from further responsibility. Johnson v. N. Y. Cen- tral R. R., 31 Barb. (N. Y.) 196 (1857). ^ Lawrence i'. Winona & St. Peter R. R., 15 Minn. 390 (1870). This decision is sustainable on the ground that the usage under which the railroad company sought to excuse its delay was not a general use, and there could be no presumption that it was known to the shipper, or that it entered into the contract so as to form part of it. * Baxter v. Leland, i Abb. Adm. 348 (1848); The Colonel Led- yard, i Sprague, 530 (i860). In The Delaware, 14 Wallace, 579 (187 1 ), it was held that parol evidence of the shipper's consent that his goods might be carried on deck was inadmissible, but the Court ad- 246 THE MODERN LAW OF CARRIERS. mode or time of transportation is binding upon the par- ties.' This statement is subject, however, to the limita- tion that the usage must not be in conflict with the car- rier s obligation, imposed by law, or created by contract.^ Evidence of usage has been admitted to extend or am- plify the language of the bill of lading.^ It may regulate mitted "that where there is a well-known usage in reference to a partic- ular trade to carry the goods as convenience may require, either upon or under deck, the bill of lading may import no more than that the cargo shall be carried in the usual manner." Sproat v. Donnell, 26 Me. 185 (1846); and %tt post^ Ch. XIV, sect. 8; Lapham v. Atlas Ins. Co., 24 Pick. (Mass.) I (1833) 1 Cooper V. Kane, 19 Wend. 386 (1838); Peet v. Chicago & N. W. R. R., 20 Wis. 598 (1866); Lowry v. Russell, 8 Pick. (Mass.) 360 (1829); Sproat V. Donnell, 26 Me. 185 (1846); Broadwell v. Butler, i Newb. Adm. 171; 6 McLean, 296 (1854); see Hatchell v. The Compromise, 12 La. Ann. 783 (1857). In Tierney v. N. Y. Central R. R., 76 N. Y. 305 (1879), the Court say, p. 314: "The freight in question was not only perishable, but known to be so by both parties, and was shipped as such, and with knowledge on the plaintiff's part of the custom of the defendant to give a preference in transportation of such goods, and the parties, though silent, may be regarded as adopting the custom as part of the contract." The rule stated in the text was applied to a case where the carrier's custom was to seal valuable packages, and its omis- sion to do this was held to be negligence. Overland Mail & Express Co. V. Carroll, 7 Col. 43 (1883). " Coxe V. Heisley, 19 Penn. 243 (1852); Missouri Pac. R. Co. v. Fagan (Texas), 9 S. W. Rep. 749 (1888); Leonard v. Fitchburg R. R., 143 Mass. 307; 3 New England Rep. 342 (1887). In this case the Court say: "If it was an unsafe method of transportation, the fact that it was usual with the defendant cannot exonerate it from its contract to safely transport, and its own usage would not' have any tendency to show that it had adopted a safe method." The contract was to trans- port cattle, and the defects proved were insufficient ventilation and failure to nail cleats to the floor of the car, to enable cattle to maintain their footing. The principle stated in the text is in accordance with the general law as to all customs — that they must be lawful. In Law- rence V. Maxwell, 64 Barb. 102 (1872), which was an action for conver- sion of stock, the court said: "A long continued course of wrong doing or violation of law will never prove a valid custom to continue it." ? Sullivan %k Thompson, 99 Mass. 259 (1868). In this case the con- tract provided that the goods were '" to be forwarded to our agency nearest or most convenient to destination only." The custom of the carrier was to deliver parcels marked with a particular street, number and address, at the place of such address. Held that the carrier was liable for a failure to deliver a parcel so marked according to his custom, although he did deliver it at his own office or agency. The same case, USAGE OF BUSINESS. 247 the manner of transportation and relieve the carrier from liability for injuries incidental to the usual method of conveyance. In this case cotton was transported in open boats, which was the usual and only available way, and was injured by rain. Held that the carrier was not liable.^ The strict language of the contract will be adhered to though it be shown that in some previous instances the carrier has waived compliance with the requirement in question.^ But if the usual course of dealing between the carrier and the charterers has led the shipper to believe that a condition in the printed contract of charter-party would not be insisted upon, it has been held that the car- rier cannot interpose it as a defense.^ But the carrier may waive the benefit of a regulation, established by itself, e.g.^ that it will only receive fruit on certain days.^ however, sustained the validity of usage regulating the method of deliv- ery. It held that a usage to deliver parcels to the clerk of the con- signee, without giving personal notice to the latter, was reasonable, in reference to parcels of ordinary character and value. But custom will not require a carrier to deliver at the usual place, if there be good rea- son for his not doing so. Arnold v. National S. S. Co., 29 Fed. Rep. 184 (1886). In this case the usage was not universal, and the "good reason " was that the wharf was full. The bills of lading merely re- quired discharge at the port of New York, but it is well settled this means at a wharf or pier. It is easy to see that good reasons might arise to justify a carrier in not landing at a pier where he had always before been in the habit of landing. For a further consideration of usage as affecting delivery, see Chap. XIV, sect. 8, post. ^ Chevellier ^z. Patton, 10 Texas, 344 (1853); Sproat v. Donnell, 26 Me. 185 (1846); The William Gillum, 2 Lowell, 154 (1872); The Dela- ware, 14 Wall, 579 (187 1); contra, The Wellington, i Biss. (U. S.) 279 (1859)- ^ Keeleyz^. Boston & Maine R.R., 67 Maine, 163 (1878); ante,^. 163. ' Leisy v. Buyers, 36 La. Ann. 705 (1884). This is analogous to the well-settled exception to the rule which prohibits the introduction of parol evidence to contradict or vary a written contract, to wit, that such evidence is admissible when the suit on which it is offered is not be- tween the parties to the contract. Tyson v. Post, 108 N. Y. 217 (1888); Dempsey v. Kipp, 61 N. Y. 462 (1875); ^ Greenl. Evid., sect. 279. * Reed v. Philadelphia, W. & B. R. R., 3 Houston (Del.), 176 248 THE MODERN LAW OF CARRIERS. If the usage of business or tHe regulations made by the carrier are relied upon to relieve him from liability he must show strict compliance with them.^ The usage of the business will form a part of the con- tract so far as to limit the class of goods which the carrier holds himself out to carry. A man may be a common carrier of some kinds of merchandise only, and if it is not his custom to carry other kinds he is not liable for their loss, should they be entrusted to his agents. This was held in reference to packages of money entrusted to the of&cers of steamboats for transportation.^ But if it be his custom to carry money packages he is liable for their loss, though the custom was to carry them without compensation.^ Custom also may be shown as to what precautions the carrier should take against danger to the goods which are (1869). All the cases agree that the usage must be reasonable. John- son V. 318 Tons of Coal, 44 Conn. 548 (1877), is a curious instance of a regulation held to be unreasonable, to wit, that parties receiving coal from the carrier's cars should employ shovellers designated by the car- rier and at wages fixed by it. 1 Angle V. Miss. & Mo. R. R., 18 Iowa, 555 (1865). * Whitmore v. The Caroline, 20 Mo. 513 (1855); Chouteau v. The " St. Anthony," 16 Mo. 216 (1852); Sewall v. Allen, 6 Wend. 335 (1830). The legislature may prohibit a common carrier from limiting itself to the carriage of a particular kind of freight. If such a statute be in ex- istence, a custom in contravention of it, e. g., not to carry blooded live stock except upon receiving a release from liability for damage, is void. McCune v. B. C R. & N. R. Co., 52 Iowa, 600 (1879). ^ Garey v. Meagher, 33 Ala. 630 (1859). See this subject more fully treated in Chap. IV, sect. 4. Hosea v. McCrory, 12 Ala. 349 (1847). Under such circumstances a delivery to the clerk is a delivery to the master if the clerk is the person who usually receives such pack- ages of money. {Ibid.) And if a carrier is accustomed to carry live stock under certain conditions, he is under those conditions a carrier of live stock, and bound to furnish cars and receive and transport them upon receiving reasonable notice to do so. If from any sudden emerg- ency he cannot transport the stock, he is bound to use diligence in noti- fying any person giving such notice. Ayres v. Chicago «S: N. W. R. Co., 37 N. W. Rep. (Wis.) 432 (1888). USAGE OF BUSINESS. 249 being transported, and as to wliat is the usual method of stowage.^ 1 Chicago, St. L. & N. O. R. R. v. Moss, 60 Miss. 1003 (1883); Lamb v. Parkman, i Sprague, 343 (1857). But if the manner of stow- age is unsafe, the usage, to justify the carrier, must be a general one. Leonard v. Fitchburg R. R., 143 Mass. 307 (1886). CHAPTER XII. SECTION I. BURDEN OF PROOF OF THE CONTRACT. The burden of proof is a question tliat sometimes be- comes important in determining whether a case shall be submitted to the jury, or disposed of by the Court, by a non-suit or direction to find a verdict. It is clear that the carrier who alleges that he has made a contract which limits his common law liability must establish its existence and terms by the preponder- ance of evidence. The burden of proof in such cases is upon him.^ ^ Western Transp. Co. v. Newhall, 24 111. 466 (i860); Baltimore & Ohio R. R. V. Brady, 32 Md. 333 (1S69); Am. Trans. Co. v. Moore, 5 Mich. 368 (1858); Gaines v. Union Trans. & Ins. Co., 28 Ohio St. 418 (1876); Southern Express Co. v. Newby, 36 Geo. 635 (1867); Verner v. Sweitzer, 32 Penn. 208 (1858). In Gaines v. Union Transportation Co., 28 Ohio, 418 (1876), the Court state the rule even more strongly against the carrier, holding that where the action against the carrier is to recover on his common law liability, for losses occurring at the point of delivery, after the transit is ended, but before notice of delivery to the consignee, and the defendant claims exemption from such loss by virtue of a condition in the bill of lading to that effect, he must aver and prove, not only that this condition was assented to, but that the loss happened without any fault or neglect on his part, and the failure to establish such assent or show due and proper care to prevent the loss entitles the plaintiff to recover. Kallman v. U. S. Express Co., 3 Kans. 205 (1865); Adams Express Co. v. Guthrie, 9 Bush (Ky.), 78 (1872). When a carrier has received goods marked for a station on a con- necting line and they are delivered at that point injured, ^^w^?/-^, whether that IS prima facie proof of the carrier's liability. Irwin v. N. Y. Cen- tral R. R., I Thomps. & C (N. Y.), 473 (1873), post, p. 253, n. i. In the same case, the question is considered as to what proof will rebut the presumption of his liability, if in such a case it exists. See Chap. XIII, sect. 3. BURDEN OF PROOF OF CONTRACT. 25 1 The contract need not be in writing.^ An examina- tion of the cases cited in the notes to this section will show that the disposition to establish more rigid rules as to the proof of such contracts between a carrier and shipper than would be applied in ordinary cases no longer exists, and that the recent authorities apply in such cases the same rules that govern the proof of ordinary contracts. No good reason is perceived for a distinction. If the carrier makes prima facie proof of a contract limiting his liability, and there is nothing in the circum- stances disclosed by the evidence indicating a want of fairness or good faith in the making of the contract, the burden of proof is shifted, and it is for the shipper to establish that it was obtained by duress or made under a mutual mistake.'^ Where the shipper himself tenders the 1 Am. Trans. Co. v. Moore, 5 Mich. 368 (1858); Roberts v. Riley, 15 La. Ann. 103 (i860). Roberts v. Riley was an action for damages occasioned to horses shipped on board defendant's steamboat. The defendant pleaded an agreement between the parties, that the horses were to be under the exclusive management and control of the plaintiff during the voyage. Parol evidence was offered to prove the special agreement. The Court held that in the absence of a bill of lading oral evidence was properly admitted, and that there is no law that requires a contract of affreight- ment to be in writing. In the American Transportation Co. v. Moore, the Court say that "although it devolves upon a carrier to show affirmatively the terms of any contract which lessens his common law liability, yet that fact is to be proved like any other, by any pertinent evidence. If in writing, the writing must be shown; but if by parol, there is no rule which requires different proof from that which would establish any other contract." See also sect. 4, post. 2 Adams Ex. Co. v. Guthrie. 9 Bush (Ky.), 78 (1872); see Louis- ville, C. & L. R. R. V. Hedger, Ibid, 645 (1873). In Adams Ex. Co. v. Guthrie, the Court say : " If the contract was actually made, it is bind- ing upon both parties, and appellee cannot escape from its consequences, unless it appears that he acted under duress, or that it was imposed upon him or his agent under circumstances which probably prevented them from examining the writing and understanding its nature. Ordi- narily written contracts cannot be contradicted or essentially modified by oral testimony without proof of fraud or mistake ; and it would be carrying the innovation, made upon this salutary rule in this class of contracts, to a most unreasonable extent to allow the shipper to avoid 252 THE MODERN LAW OF CARRIERS. bill of lading for signature, and especially where the instrument is one which he has himself caused to be printed, the evidence is conclusive that the contract was not procured by duress.^ SECTION II. BURDEN OF PROOF OF NEGLIGENCE AND LOSS. In many cases the question of burden of proof of neg- ligence and of loss is of considerable importance. The loss or injury for which compensation is sought some- times happens from causes which it is difficult to trace. The doctrine which on the whole is established by the preponderance of authority is this : The shipper in the first instance makes out his case by proving his contract and the non-delivery of the goods. The burden of proof is then on the carrier to bring himself within the exemp- tion clauses of the bill of lading, or, in other words, to show that the loss happened by one of the'excepted perils. The reason is obvious. The goods were in his custody, and he is bound like all other bailees to account for their loss, if they are lost.^ The rule is the same where the them on account of duress, misfortune, delusion or failure to understand their effect, and also to presume the existence of one or all of these grounds of avoidance and compel the carrier by proof to rebut the pre- sumption." ^ Lawrence v. N. Y., Prov. & Boston R. R., 36 Conn. 6t, (1869). " Western Transportation Co. v. Downer, 11 Wall. 129 (1871); Hooper v. Rathbone, Taney, 519 (1853); Hunt v. The Propeller Cleve- land, 6 McLean, 76; s. c. i Newb. Adm. 221 (1853); Bazin v. Steam- ship Co., 3 Wall. Jr. 229 (1857); Lewis v. Smith, 107 Mass. 334 (1871); Hill V. Sturgeon, 35 Mo. 212 (1864); Lamb v. Camden & Amboy R. R. 46 N. Y. 271 (1871); Newstadt v. Adams, 5 Duer (N. Y.), 43 (1855); American Ex. Co. v. Sands, 55 Penn. 140 (1867); Adams Ex. Co. v. Holmes, 8 Central Rep. (Penn.) 155 (1887); Camden & Amboy R. R. V. Baldauf, 16 Penn. 67 (1851); Adams Ex. Co. z*. Stettaners, 61 111. 184 (1871); Atchinson, Topeka & S. F. R. R. v. Brewer, 20 Kansas, 669 (1878)'. In this case the demand was made by a passenger for baggage for which he held a check, and was made at a reasonable time, and at BURDEN OF PROOF OF NEGLIGENCE AND LOSS. 253 goods are delivered in a damaged condition. The carrier must show that the damage was caused by one of the excepted causes or perils/ In like manner where the carrier seeks to escape liability by showing a delivery to the point of destination. It was held that the failure to produce the baggage under such circumstances or to account for its loss raised a presumption of negligence. In Penn. R. R. v. Miller, 87 Penn. 395 (1878), the Court held that failure to account for the loss raised a pre- sumption of negligence, which was not repelled by general proof of ordinary care in the management of the road. In this case the loss was by fire. So proof that carboys were broken while the car containing them was being switched, does not rebut the presumption of negligence but rather tends to support it. Kirst v. Milwaukee, L. S. & W. R. Co. 46 Wis. 489 {1879); Alden v. Pearson, 3 Gray (Mass.), 342 (1855) Adams Ex. Co. v. Stettaners, 61 111. 184 (1871); Finn v. Timpson, 4 E D. Smith (N. Y.), 276 (1855); Hall v. Cheney, 36 N. H. 26 (1857) Angle V. Miss. & M, R. R., 18 Iowa, 555 (1865); M'Call z^. Brock, 5 Strob. Law (S. C), 119 (1850); Smyrl v. Niolon, 2 Bailey (S. C), 421 (1831)- ^ Clark V. Barnwell, 12 How. (U. S.) 272 (1851); Rich v. Lambert, 12 How. (U. S.) 347 (1851); Tygert Co. v. The Charles P. Sinnickson, 24 Fed. Rep. 304 (1885); Zerega z'. Poppe, i Abb. Adm. 397 (1849); Bearse v. Ropes, i Sprague, 331 (1856); The Schooner Emma Johnson, I Sprague, 527 (i860); Hunt v. The Propeller Cleveland, i Newb. Adm. 221; s. c. 6 McT.ean, 76 (1853); Mahon z^. Steamer Olive Branch, 18 La. Ann. 107 (1866); Grogan v. Adams Ex. Co., 114 Penn. 523; s. c. 5 Cent. Rep. 300 (1887); American Ex. Co. v. Second National Bk., 69 Penn. 394 (1871); Arend v. Liverpool, N. Y. & P. S. S. Co., 6 Lans. (N. Y.) 457 (1872). And where a vessel takes the ground while at dock in a storm, the burden is on the carrier to show that this could not have been foreseen and prevented. Ewart v. Street, 2 Bailey (S. C), 157 (1831). But when the carrier has shown delivery in apparent good condition and it appears afterwards that part of the contents has been stolen, the burden is on the owner to prove that it was done before delivery. Canfield v. B. & O. R. R., 75 N. Y. 144 (1878); s. c. gz N. Y. 532(1883). A box which has been through the hands of several carriers and found opened at the end of the route, may be presumed to have been opened in the hands of the last carrier. Laughlin v. Chicago & N. W. R. Co., 28 Wis. 204 (1871); Shriver v. Sioux City & St. P. R. R., 24 Minn. 506 (1878). The rule is thus stated in Inman v. South Carolina R. Co., 129 U. S. 128 (1889): "As in case of loss the presumption is against the carrier, and no attempt was made here to rebut that presumption, the defend- ant's liability, because in fault, must be assumed upon the evidence before us." 254 I'HE MODERN LAW OF CARRIERS. a connecting carrier, he must prove that this delivery was pursuant to the contract of affreightment.^ The proof on the part of the carrier must be clear and explicit. It is not enough for him to show that the loss might have occurred by one of the excepted perils.^ In a case in which this rule was laid down with as much strictness as in the " Compta " it was, however, held that the mistake of a light made by the captain on a dark and stormy night at the entrance of a harbor, which was difii- cult of access, was excusable. It was shown that vigi- * Schutter v. Adams Ex. Co., 5 Mo. App. 316 (1878). 2 The Ship "Compta," 4 Sawyer, 375 (1877); The Live Yankee, Deady, 420 (1868). In the Compta the damage to the goods was occasioned by leaks in the ship's deck. The defence relied on was perils of the sea. The Court held that it was not enough for the carrier to prove the occurrence of sea peril which might have caused the leak ; he must show that they did. This he may do by showing that the peril was of such a character that injury to the vessel was its natural and necessary consequence; or he may prove that the vessel was in fact injured, by the testimony of those who observed the effect of the peril at the time of its occurrence ; or he may prove the fact by showing her condition on her arrival; or he may exclude any other hypothesis by satisfactory proof that her decks were sound, staunch and well caulked at the commencement of the voyage. In Kirby v. Adams Ex. Co., 2 Mo. App. 369 (1876), the Court say that the presumption from the fact of loss is that it was occasioned by negligence. This is true where the loss is unexplained. But if more than this was intended by the Court the proposition is against the weight of authority. In Roberts v. Riley, 15 La. Ann. 103 (i860), it was agreed that the goods shipped should be in the exclusive custody of the shipper or his servants. Yet the Court held that in case of loss the burden of proof was on the carrier to show that the loss was caused by the negligence of the shipper's servants. This is construing the rule literally, but the Court would seem to carry it further than the circumstances of the case required. The rigid common law doctrine as to the carrier's liability rested on the assumption that the goods were in his custody. Where the consignee of a package of money refused to receive it, and conse- quently the package was returned to the consignor, it was held that the carrier was not bound to account for the loss of part of the contents of the package, or to show when, where or how it occurred. But this was put on the ground that part of the transit was over a connecting line, and as to this part of the route the connecting carrier, under the terms of the contract, was liable only as forwarder. American Ex. Co. v. Second National Bank, 69 Penn. 384 (1871). BURDEN OF PROOF OF NEGLIGENCE AND LOSS. 255 lance was used, and that the loss was really caused by the darkness and storm, and not by the captain's negligence.^ When the carrier has proved that the loss was caused immediately by one of the excepted perils, the burden of proof again shifts to the plaintiff, and it is incumbent on him to show that its real cause was the negligence of the carrier or his agents.^ ^ The Juniata Paton, i Biss. 15 (1852). In this case the bill of lad- ing contained the clause, " dangers of navigation excepted." The car- rier was held to bring himself within this clause by proving that on a dark and stormy night, at the entrance of a harbor, difficult of access, he mistook a light on shore in a line with the pier light for the latter, in consequence of which mistake he steered wrongly, and the vessel went ashore and damaged a portion of the cargo. The Court said that in order to avail himself of the benefit of this restrictive clause he must bring his case strictly within the words of the exception, and for this purpose the burden of proof is upon him. ^ Harris v. Packwood, 3 Taunt. 264 (18 10); Marsh v. Home, 5 Barn. & Cress. 322 (1826); Western Transportation Co. v. Downer, 11 Wall. 129 (1871); Clark V. Barnwell, 12 How. (U. S.) 272 (1851); The Adri- atic, 16 Blatch. 424 (1879); The Saratoga, 20 Fed. Rep. 869 (1884); Marx V. The Britannia, 34 Fed. Rep. 906 (1888); The Barracouta, 39 Fed. Rep. 288 (1889); The New Orleans, 26 Fed. Rep. 44 (1885); French v. Buffalo & Erie R. R., 2 Abb. Ct. App. Dec. (N. Y.) 196; s. c. 4 Keyes, 108(1868); Lamb z'. Camden & A.R. R. & T. Co., 46 N. Y. 27r (1871); Kallman v. U. S. Express Co., 3 Kans. 205 (1865); Kansas Pacific R. Co. V. Reynolds, 8 Kans. 623 {187 1); Sager v. Portsmouth, S. & P. & E. R. R., 31 Me. 228 (1850); Patterson v. Clyde, 67 Penn. 500 (1871): Price V. The Ship Uriel, 10 La. Ann. 413 (1855); Little Rock, M. R. & T. R. R. V. Corcoran, 40 Ark. 375 (1883). See Childs v. Little Miami R. R., I Cine. (Ohio), 480 (1871). In Clark v. Barnwell the Court say: " If it can be shown that it (the loss) might have been avoided by the use of proper precautionary meas- ures, and that the usual and customary methods for this purpose have been neglected, they (the carriers) may still be held liable. Hunt v. The Propeller Cleveland, i Newb. Adm. 221; 6 McLean, 76 (1853); Slater v. So. Car. R. Co., 29 S. Car. 96; s. c. 6 S. E. Rep. 936 (1888). In French v. Buffalo & Erie R. R., it was held that it was enough for the shipper, when the loss was shown to have been caused by an ex- cepted peril, to prove that the injury resulted from a railroad accident, the causes of which were not explained, and which did not appear affirmatively not to have been preventible by the exercise of ordinary care and diligence on the part of the company and its servants. The proposition in the text is also sustained by Canfield v. Bait. & Ohio R. R., 93 N. Y. 532 (1883); Cochran v. Dinsmore, 49 N. Y. 249 (1872); Sutro V. Fargo, 41 N. Y. Super. Ct. 231 (1876); Smith v. N. 256 THE MODERN LAW OF CARRIERS. This is especially so when the contract of shipment is that the carrier shall not be liable for loss arising from certain specified risks, unless it shall be proved that such loss occurred through the negligence or default of the carrier's agents.^ It is not enough to show an error in judgment on the part of the carrier s servants. It is incumbent on the shipper to prove actual negligence in order to deprive the carrier of the benefit of the clauses of exemption in his contract.'^ This proposition is well illustrated by the litigation that arose in consequence of the fire at the pier of the Camden & Amboy R. R. Co. in the city of New York in 1864. The fire broke out on the defendant's steamboat, which was lying at the pier. The crew were on board and watchmen were on duty at the warehouse on the pier. The fire extended to this warehouse, which was consumed Car. R. R., 64 N. C 235 (1870); Bankard v. Bait. & O. R. R., 34 Md. 197 (1870). By statute in Utah (Comp. Laws, sect. 503, p. 217, ed. 1876 ; sect. 2359, ed. 1888), proof that property is set on fire by sparks from an engine raises a pri7iia facie presumption of negligence on the part of the carrier. Anderson v. Wasatch & J. V. R. R., 2 Utah, 518 (1880). It was held in this case that where the sparks set fire to grass which in turn set fire to the plaintiff's property, there was a "communication" of fire from the engine within the statute. See Turney v. Wilson, note 4, p. 2^1, post. Where there was a contract limiting the amount for which the car- rier was liable, an Alabama Court held that the burden was on him to show that the loss occurred without negligence. Ala. Gt. So. R. R. v. Little, 71 Ala. 611 (1882). But where the proof showed very heavy weather and the damage was such that it might have been caused by the storm, there should be some rebutting proof of negligence in order to charge the carrier. The Fern Holme, 24 Fed. Rep. 502 (1885); Giglio V. The Britannia, 31 Fed. Rep. 432 (1887); The Thomas Mel- ville, 31 Fed. Rep. 486 (1887); The Jefferson, 31 Fed. Rep. 489 (1887); Louisville & N. R. R. v. Oden. 80 Ala. 38 (1885); Czech v. Gen. Steam N. Co., L. R., 3 C. P. 14 (1867); Piatt v. Richmond, Y. R. & C. R. R., 108 N. Y. 358 (1888). 1 Wertheimer v. Penn. R. R., 17 Blatchf. 421 (1880). The loss in this case was caused by fire during the Pittsburgh riots of 1877. * The " Montana," 17 Fed. Rep. 377 (1883). BURDEN OF PROOF OF NEGLIGENCK AND EOSS. 257 witli its contents. Actions were brought against the car- rier, in the New York Common Pleas. The plaintiff proved his loss. The defendant then proved that this was caused by fire, which was one of the risks excepted in the bill of lading. The plaintiff then gave evidence tending to show that the cause of the fire was defendant's negli- gence. The carrier gave rebutting proof. The trial Court refused to charge that the burden was on the plaintiff to prove that the real cause of the fire was the carrier's negligence. The New York Court of Appeals held that this was error and reversed the judgment.^ The same rule was laid down by the Supreme Court of Penn- sylvania in a case growing out of the same fire.^ All the authorities concede that the carrier is bound to use dili- gence, skill and foresight to guard against loss by the ex- cepted perils,^ and it has been held that the burden is on him to prove that he complied with the requirements of law in each particular.* But the weight of authority is otherwise. ^ Lamb v. Camden & Amboy R. R., 46 N. Y. 271 (1871); revg. s. c. 2 Daly, 454 (1869). ^ Farnham v. Camden & Amboy R. R , 55 Penn. 53 (1867). To the same effect are Little Rock, M. R. & T. R. R. v. Corcoran, 40 Ark. 375 (1883); Little Rock, M. R. & T. R. R. v. Harper, 44 Ark. 208 (1884); Denton v. Chicago, R. I. & P. R. Co., 52 Iowa, 161 (1879); Whitworth V. Erie R. Co., 45 N. Y. Super. Ct. 603 (1879). ' In The Saratoga, 20 Fed- Rep. 869 (1884), the goods were stolen. Loss by thieves was one of the excepted perils. The Court held that no ordinary and reasonable precaution must be neglected by the carrier, and that the omission to use a precaution provided by the owner and to observe a suspicious person was negligence. The Maggie M., 30 Fed. Rep. 692 (1887). The carrier must also prove that he used diligence in furnishing means of transportation, and if he excuses his failure to do so he must prove diligence in notifying the shipper of his inability. Ayres v. Chicago & N. W. R. Co., 71 Wis. 372 ; s. c. 37 N. W. Rep. 432 (1888). * Turney v. Wilson, 7 Yerger (Tenn.), 340 (1835); Mobile & Ohio R. R. V. Jarboe, 41 Ala. 644 (1868); U. S. Express Co. v. Backman, 28 Ohio St. 144 (1875); Baker v. Brinson, 9 Rich. Law (S. C-), 201 (1856); Levering v. Union Trans. & Ins. Co., 42 Mo. 88 (1867). In this case the loss was by fire, an excepted peril, but the Court held that the car- 17 258 THE MODERN LAW OF CARRIERS. No doubt the circumstances attendant upon the loss or injury in question may be such as to justify a Court or a rier must show that the loss was not caused by any want of care, skill and diligence on its part. Still, if in such case the persons in charge of the train took all reasonable care and used all reasonable precautions, and the car containing the goods was reasonably tight and suitable for the transportation of the goods, the carrier will not be liable. In Turney v. Wilson, the carrier by contract exempted himself from liability from loss occasioned from "dangers of the river." It was held that he would be responsible, except for losses which could not have been prevented by human skill and foresight, and it was incumbent on him to prove that the loss did occur from such cause. In Mobile & Ohio R. R. V. Jarboe, the bill of lading contained an exception in these words: "taken at the owner's risk." It was held that the carrier must at least show prima facie that the loss was not caused by negligence. The contract was made during the late war. The railroad was at that time frequently used by the military authorities in the transportation of troops and supplies, and in consequence of the condition of the country there was a great want of safety and certainty in the transporting of freight over the road. It was held that these facts were insufficient to make out a prima facie case of absence of negligence. It is to be ob- served that in this case no specification was made of any particular kind of loss for which the carrier would not be responsible. This constitutes a distinction between this case and those cited ante, p. 255, note 2. In Chicago, St. L. & New Orleans R. R. v. Moss, 60 Miss. 1003 (1883); s. c. 45 Am. Rep. 428, the Court, commenting upon the ques- tion uf the burden of proof of the carrier's negligence, say : " It is no un- common thing in this age to see under one management a line of rail- roads extending from the lakes of the North to the Gulf of Mexico, or from the Atlantic to the Pacific ocean. To hold that a shipper in New York or Chicago shall be required to establish the negligence of the carrier by proof of the circumstances of a fire in California or New Orleans, would in a great number of cases result in a verdict for the carrier, even though there was in fact negligence. In a great majority of cases the facts rest exclusively within the knowledge of the employees, whose names and places of residence are unknown to the shipper. In many cases the witnesses are the employees whose negligence has caused the loss, and if known to the shipper it may be dangerous for him to rest his case upon their testimony. . . . All the authorities hold that it devolves upon the carrier to show the loss to have occurred by the excepted cause. In doing this it will add but little to his burden to show all the attending circumstances, and that the burden rests upon him to do so and disprove his own negligence, we think arises from the terms of the contract, from the character of his occupation, and from that rule governing the production of evidence which requires the facts to be proved by that party in whose knowledge they peculiarly lie." And in Chicago, St. L. & N. O. R. R. v. Abels, 60 Miss. 1017 (1883), the same Judge said : " The burden is on the carrier . . . to show that the injury complained of resulted, without fault of the carrier, BURDEN OF PROOF OF NEGLIGENCE AND LOSS. 259 jury in finding negligence on the part of the carrier, with- out other proof/ Still it is equally true that " negligence from some cause excepted by the contract. The carrier in such case must show at least prima facie that the injury did not result from neg- lect. It would then devolve on the other party to produce evidence to fasten blame on the carrier for the injury. . . . The carrier must show a full performance of duty with respect to what was shipped, according to its nature, and when that showing is made, and that the injury was from an excepted cause in the contract, liability cannot be fixed on the carrier, except by proof of a want of due care and dili- gence." Ryan v. Mo. & K. & T. R. Co., 65 Texas 13 (1885). It has been held that under a clause exempting the carrier from liability for loss by fire, the burden of proof is on the carrier to show that the fire was not caused by his own negligence. Grey's Executors V. Mobile Trade Co., 55 Ala., 387 (1876). In this case a cargo of cotton was transported on a steamer under a bill of lading which excepted " dangers of the river and fire." The cotton was burned. It was held that the carrier must show that he employed that degree of diligence which very careful and prudent men take of their own affairs; and that his failure to have the cotton upon the steamer's deck " protected by a complete and suitable covering of canvass, or other suitable material, to prevent ignition from sparks," as required under penalty by act of Congress approved July 25, 1866 (14 U. S. Stat, at Large, 227), was a lack of that extraordinary care and diligence which the law requires in such cases, and rendered the carrier liable for the loss. These cases of loss by fire may possibly be harmonized with those previously referred to, on the ground that the carrier has better means of information than the shipper as to the origin of a fire, and ought, therefore, to be able to explain it, and that his failure to do so raises a presumption of negli- gence. Penn. R. R. v. Miller, 87 Penn. 395 (1878); Berry v. Cooper, 28 Geo. 543 (1859). Where delay was shown to have been caused by high water, this was held not enough to excuse the carrier, because it might have been possi- ble to anticipate and ship by another line. Chicago, B. & Q. R. R. v. Manning, 23 Neb. 552; s. c. 37 N. W. Rep. 462 (1888). ^ Caldwell V. N. J. Steamboat Co., 47 N. Y. 282 (1872); Mullen v. St. John, 57 N. Y. 567 (1874); Blanchard v. W. U. Tel. Co., 60 N. Y. 510 (1875); Marckwald v. Oceanic Steam Nav.Co., 11 Hun (N. Y.), 462 (1877). So where a bad condition of the vessel developes during the voyage, and no adequate cause from stress of weather or otherwise appears, it becomes a presumption of fact that the vessel was unsea- worthy when she sailed. Cameron v. Rich, 4 Strobh. (S. C-) 168 (1850). The character of the evidence which will or will not establish that damage to cargo, occurring during a voyage, was due to an excepted peril is considered in The Bark Vivid, 4 Bened. 319 (1870); The Ship Delhi, 4 Bened. 345 (1870); The Steamship Bellona, 4 Bened. 503 (1871); The Steamship Pereire, 8 Bened. 301 (1875); Six hundred and thirty casks of wine, 14 Blatchf. 517 (1878). If the cargo is damaged, and the proof is that the weather was heavy enough to cause damage, it 26o THE MODERN LAW OF CARRIERS. is never presumed.'' ^ In tlie case of live stock, the mere fact of sickness at the journey's end is not evidence of neglio^ence on the part of the carrier, if there be no ex- ternal injuries."^ In Western Transportation Co. v. Downer,^ it was shown that the carrier's vessel was staunch and well equipped. The Court held that negligence would not be presumed from the fact that she grounded on a dark night at the entrance of a well-known harbor on the lake.* is for the shipper to show bad stowage. Proof that other cargo of like character adjoining that injured was not itself injured is not enough. The Polynesia, 30 Fed. Rep. 210 (1887). On the other hand, in The Black Hawk, 9 Bened. 207 (1877), it was held that the fact that a cask of wine had its head crushed in was evidence of either negligent stow- age or handling, which the carrier must rebut; and that proof of careful stowage did not rebut the presumption of negligent handling. In The Adriatic, 16 Blatchf. 424 (1879), the bales in question when unpacked were found to have been injured by sea water. The carrier showed that the goods were properly stowed, that no other goods came out wet, and that there was no sign of a leak in the ship; and the appearance of the goods indicated that they might have been injured before delivery to the carrier. It was held that the burden was on the shipper to show the injury occurred on board that ship. 1 Memphis & Charleston R. R. v. Reeves, 10 Wall. 176(1869); New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344 (1848); Curran v. Warren Chemical & M. Co., 36 N. Y. 153, 156 (1867); Curtis V. Rochester & Syr. R. R., 18 N. Y. 534 (1859); Schmidt v. Blood, 9 Wend. (N. Y.) 268 (1832); Sherman z-. Western Trans. Co., 62 Barb. 150 (1861); Gandy v. Chicago & N. R. R., 30 Iowa, 421 (1870); Laing V. Colder, 8 Penn. St. 479 (1848); Bankard v. Baltimore & Ohio R. R., 34 Md. 197 (1870). "^ Hussey v. The Saragossa, 3 Woods, 380 (1876). No doubt the decision would have been otherwise had any circumstances been in evi- dence tending to show that the horses in question had been negligently stowed. In a fruit case, where there was evidence of defective ventila- tion, the shipper recovered, and it was held that he was not bound to prove that there was no inherent deterioration. The Steamship America, 8 Bened. 491 (1878). Where by the contract the shipper was to have the care of the stock, and the horse was found dead at the end of the journey, without explanation, the carrier was not liable; and scmbie that there being no evidence of negligence, the special contract was not necessary to protect the carrier. Penn. R. R. v. Riordan, 13 Atl. Rep. (Penn.) 324 (1888). =• II Wall. 129 (1871); compareThe Juniata Paton, ante, p. 255, n. i. * The Court, however, expressly admitted the soundness of the doc- trine laid down in Scott v. London & St. K. Docks, 3 Hurlst & Colt BURDEN OF PROOF OF NEGLIGENCE AND LOSS. 26 1 The inference of negligence from the circumstances attendant upon the disaster would be made less readily in case of a marine disaster than in that of one on land. Man has done much to control the winds and currents of the ocean, but their forces are much less subject to his skill than the agencies by which transportation on land is effected. The question is really one of fact, and must be determined by the circumstances of each case.^ 596 (1865), as follows: "Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care." In this action the plaintiff proved that he was an ofificer of the customs, and that whilst in the discharge of his duties he was passing in front of a warehouse in the dock, when six bags of sugar fell upon him. Held evidence of negligence sufficient to be left to the jury. So in Ketchum v. American Merchants' Union Ex. Co., 52 Mo. 390 (1873), 't w^s held that the breakage of goods while in the carrier's pos- session was prima facie evidence of negligence, and the burden was on him to explain it. On the other hand, in Forbes v. Dallett, 9 Phila. (Penn.) 515 (1872), the Court held that leakage of petroleum from the barrels in which it was shipped raised no presumption of negligence. In that case the contract was to pay freight " on each and every barrel, delivered full, not full, or empty." This case is not really inconsistent with Adams Ex. Co. v. Stettaners, 61 111. 184 (1871), although at first sight it may appear to be. The Court do say in the latter case that no special contract can change the law as to the burden of proof. But this must be understood with reference to the facts which showed a loss wholly unexplained. In Forbes v. Dallett, the nature of the substance transported tended of itself to explain the loss, and the language of the contract showed that this was within the contemplation of the parties. In Adams Ex. Co. v. Loeb, 7 Bush (Ky.), 499 (1870), the contract was that the carrier should not be liable -for loss caused by certain specified causes, unless it was caused by the carrier's fraud or gross negligence, and it was held that the burden was on the plaintiff to show that the loss was caused by fraud or negligence. And where a bulkhead, which had been well tested, had shown itself sufficient on previous occasions, had been carefully inspected and showed no signs of weakness, did burst, held that the fact of its bursting was not of itself proof of negligence. New York Bal. Dry Dock Co. v. Howes, 9 Bened. 232 (1877). Where a swinging door in a ferry house, of a kind in ordinary use, had caused injury to a passenger, held that the burden was on the plaintiff to show defective construction. The character of the door should have been observed by plaintiff. Nayman V. Penn. R. R., 118 Penn. 508 (1888). ' For example: In Central Passenger R. Co. v. Kuhn, 86 Ky. 578 262 THE MODERN LAW OF CARRIERS. What has been said must be understood with this restriction. The negligence for which a recovery is claimed must be such as contributed to the loss.^ The burden of showing that the negligence did not contribute to the loss is on the carrier. If, on the evidence, it ap- pears that there was negligence on his part, and it is doubtful whether this did or did not contribute to the loss, his defence is not established.^ The same rule applies (1888), a passenger in a horse car injured by a collision with an engine at a railway crossing sued both companies. Held that the passenger not being in fault, there was a presumption that the accident was due to the negligence of the servants of the horse car company, but that the burden was on plaintiff to show negligence on the part of the steam railway company. In Falvey £». Northern Trans. Co., 15 Wis. 129 (1862), the vessel in which the goods were being transported from Buffalo to Racine was wrecked. The agreement was made in New York late in the season, when the risk of navigation on the lake was greater than earlier in the year. Held that delay in transporting goods to the vessel vidj^ prima facie evidence of negligence. In The Bark Wilhelmina, 3 Bened. no (1868), the goods were injured by the rolling of the vessel in rough weather. Held that the burden of proof was on the shipper to show that proper precautions were not taken to guard against the danger. When a shaft which had stood service for many years breaks in heavy weather, the burden is still on the shipper to show defective construction. The Rover, 2,2) Fed. Rep. 515 (1887). ^ Hill V. Sturgeon, 35 Mo. 212 (1864). In this case the Court held that it was not sufficient to entitle a shipper to recover against a car- rier to show that there was a defect about the vessel or want of skill in the carrier, but it must also appear that such defect or want of skill contributed or may have contributed to occasion the loss. Where the loss is caused by perils of navigation within the exceptions of the bill of lading, it is not incumbent upon the carrier to show affirmatively the particular and identical cause of loss. 2 Speyer v. The Mary Belle Roberts, 2 Sawyer, i (1871); Collier v. Valentine, 11 Mo. 299 (1848); and see opinion Andrews, J., in Maghee V. Camden & Amboy R. R., 45 N. Y. 514, 523 (1871). The question whether the negligence did or did not contribute to the injury is one of fact for the jury. Canfield v. Bah. & O. R. R., 93 N. Y. 532, 537 (1883). In Collier v. Valentine it appeared that the carrier's boat was not sea- worthy, but the Court held that he could show that the loss was in fact occasioned by the excepted perils of the river, and not by the unsea- worthiness of the boat. Although a carrier may be in default, yet if the loss were not occasioned by his default, but must have happened with- out such default, he is not liable. The rule which imputes carelessness to the captain whose boat strikes a known rock or shoal, unless driven WHAT CONSTITUTES THE CONTRACT. 263 where the injury is occasioned by delay in transportation, unless the carrier can discharge himself by a proper ex- cuse for the delay/ In like manner, if the goods are destroyed by one of the excepted perils, but the destruc- tion takes place after the time within which, according to, the usual course of business, the goods could reasonably have been delivered, the carrier is liable.^ SECTION III. WHAT WILL BE TREATED AS A PART OF THE CONTRACT. A notice or memorandum, even though printed upon the bill of lading or other contract with a carrier, unless referred to in the body of the contract and thus made a part of it, is no more than a notice, and does not form a part of the contract between the shipper and the carrier.^ by a tempest, is only applicable to navigation where the rocks and shoals are marked upon maps. It does not apply to the navigation of those rivers of which no accurate charts exist. In such navigation each case must be governed by its own circumstances, and be tested by the care usually pursued by skilfuU pilots in such cases. The qualification thus stated is certainly reasonable. In Whitesides v. Russel, 8 Watts tSr S. (Penn.) 44 (1844), it was, however, held it was not enough for a carrier to show that his steamboat ran on a rock in the Ohio river, and thereby caused the loss, but that he must prove that diligence and skill were used to avoid the accident, and that it was unavoidable. To the same effect are Graham v. Davis, 4 Ohio St. 362 (1854); Davidson v- Graham, 2 Ohio St. 131 (1853); Swindler v. Hillard, 2 Rich. (S. C.) 286 (1845). 1 Galena & Chicago Union R. R. v. Rae, 18 111. 488 (1857). 2 Whitworth v. Erie R. Co., 45 N. Y. Super. Ct. 602 (1879). ^ Michigan Central R. R. v. Mineral Springs Mfg. Co., 16 Wall. 319 (1872); Ayres v. Western R. R., 14 Blatchf. 9 (1876); Prentice v. Decker, 49 Barb. (N. Y.) 21 (1867); Limburger v. Westcott, Jbtd, 283 (1867); Southern Ex. Co. v. Purcell, 37 Georgia, 103 (1867); Ormsby V. Union Pac. R. Co., 4 Fed. Rep. 706 (1880). In Railroad Co. v. Manf. Co., the following notice was printed on the back of the railroad company's receipt : " The company will not be responsible for damages occasioned by delays from storms, accidents or other causes, . . . and all goods and merchandise will be at the risk of the owners thereof while in the company's warehouses, except such loss or injury as may 264 THE MODERN LAW OF CARRIERS. Much less would a notice posted in a steamboat form a part of such contract.^ The same rule has been applied to a notice on the back of a check for baggage,^ and to a notice on back of a rail- way ticket.^ If, however, the notice printed on the back of the receipt be referred to upon its face, and thus incor- porated therein, it will be taken to form a part of the con- tract/ This would be especially clear if the printed arise from the negligence of the agents of the company." Held that this formed no part of the contract. In Prentice v. Decker, plaintiff's daughter delivered her baggage check at defendant's office and received their card, on one side of which was printed, " Westcott's Express for the delivery of freight and bag- gage, &c." At the bottom of the card the following statement was printed : " Delivery of baggage to railroads and steamboats to be made to the baggage agent thereof, liability limited to $100, except by special agreement to be noted on this card." The baggage was lost while in defendant's charge. Held that the mere manual delivery and accep- tance of the card was not evidence of the daughter's assent to the terms thereon, and that this notice was no part of the contract with the car- riers. In Mauritz v- N. Y. Lake Erie & W. R. Co., 23 Fed. Rep. 765 (1884), a statement purporting to limit the amount of the carrier's liability for loss of or injury to baggage was printed on the face of a railway ticket. It was held inoperative unless it was actually called to the attention of the passenger, or unless it was negligent, under the cir- cumstances, not to read it. ^ Freeman v. Newton, 3 E. D. Smith (N. Y.), 246 (1854'i. In this case, however, the steamboat owners failed to give the plaintiff an opportunity to comply with the requirements of the notice. This pur- ported to exempt them from liability for loss of baggage which had not been checked; but the person whose duty it was to give checks was not at his post when plaintiff's baggage was received, and for this rea- son no check was given. - Malone v. Boston & Worcester R. R., 12 Gray (Mass.), 388 (1859). ^ Brown v. Eastern R. R., 11 Cush. (Mass.) 97 (1853). * Myrick v. Michigan Central R. R., 107 U. S. 102 (1882). In this case the Court gave effect to the printed matter on the back of the receipt. At the same time it must be observed that the form of the receipt in that case was not sufficient to constitute a contract in itself. The reference to the matter on the back was in this form: " Notice. See rules of transportation on the back hereof." The Court say: " Though this rule, brought to the knowledge of the shipper, might not limit the liability imposed by a specific through contract, yet it would tend to rebut any inference of such a contract from the receipt of goods marked for a place beyond the road of the company." WHAT CONSTITUTES THE CONTRACT. 265 matter claimed to be a part of the contract should be signed by the carrier, and be sufficient in form to con- stitute a contract as to the terms of carriage. The decis- ions as to railway tickets are not entirely harmonious. The weight of authority is that printed matter upon such a ticket does not constitute a contract, and that the ticket is a mere voucher showing that the passenger has paid his fare.^ The printed matter upon it is, however, notice to the passenger. There are many cases fully considered in Chapter VII, in which notice of the carrier's rules and regulations has the effect of making them binding upon the passenger. In all such cases the notice may be given by printing it upon the ticket delivered to the passenger.^ It was said in Pier v. Finch ^ that the railway ticket was evidence of the contract to carry the passenger. No doubt it is admissible in evidence for this purpose, just as parol proof of the payment of fare would be, but its force should not be further extended.^ A pass issued to a drover and a written contempo- raneous agreement referring to the holder of the pass ^ Michigan Central R. R. v. Harris, 12 Wallace, 65 (1870); Frank v. Ingalls, 41 Ohio, 560 (1885). But notice on the ticket that a coupon is not good if detached is binding; and perhaps the same rule will apply in regard to other reasonable rules which a carrier may make without the assent of the shipper or passenger. Boston & M. R. R. v. Chipman, 146 Mass. 107 (1888); see anfe,Chap. X, sect. 2, pp. 225-233. ^ See cases cited in Chap. VII, sect. 11, ante, pp. 177-180. ^ Pier V. Finch, 24 Barb. (N. Y.) 514 (1857). In this case the Court held that the words "good for this trip only" upon a passage ticket will not limit the undertaking of the company to any particular day or any specific train of cars. They do not relate to time, but to a journey ; and if the ticket has not been previously used, it entitles the holder to a passage on a subsequent day, as well as on the day it bears date. * Wilson V. Chesapeake & Ohio R. R., 21 Gratt. (Va.) 654 (1872). In this case the Court say: "At all events, it seems to be well settled that a carrier cannot be released from the legal responsibilities of his undertaking, unless the knowledge of the notice is brought home to the passenger in time to leave the car and have his baggage removed before the train leaves." See also Chap. X, sect. 2, an/e, pp. 225-233. 266 THE MODERN LAW OF CARRIERS. must be construed together.^ So a shipper who relies on a notice given by a carrier must take it as a whole, and the carrier in such case is entitled to the benefit of any exemptions contained in it.^ SECTION IV. ADMISSIBILITY OF PAROL EVIDENCE. The bill of lading or other carrier's contract of ship- ment generally consists of two parts : a receipt for the goods, and a contract with reference to their carriage. The admissions in the receipt are evidence against the carrier and the shipper, but not conclusive against either, and may be contradicted by parol evidence.'^ Thus, for 1 Cleveland P. & A. R. R. v. Curran, 19 Ohio, i (1869). As be- tween charterer and carrier, the charter controls the bill of lading issued by the latter. Ardan S. S. Co. v. Theband, 35 Fed. Rep. 620 (1888). ^ Burroughs v. Norwich & Worcester R. R., 100 Mass. 26 (1868). 3 The Lady Franklin, 8 Wall. (U. S.) 325 (1868); The Nith, 36 Fed. Rep. 86 (1888); Mever v. Peck, 28 N. Y. 590 (1864); Abbe v. Eaton, 51 N. Y. 410 (1873); Long V. N. Y. Central R. R., 50 N. Y. 76 (1872); Bissel V. Price, 16 111. 408 (1855); Bond v. Frost. 6 La. Ann. 801 (1851); Tarbox v. Eastern Steamboat Co., 50 Me. 339 (1861). In Nelson v. Woodruff, i Black (U. S.), 156 (1861), it was held that a bill of lading w^hich stated that a cargo of lard in casks had been shipped in "good order and condition " was but /r/w^/diaV evidence of their condition, and did not preclude the carrier from showing that the loss by leakage proceeded from causes which existed but were not apparent at the time of shipment. In Ellis v. Willard, 9 N. Y. 529 (1854), it was stated that parol evidence of condition was admissible even though the goods were open to inspection when the bill of lading was given. So also in Abbe v. Eaton, 51 N. Y. 410 (1873), where the bill of lading contained this clause: "All damages caused by boat or carrier, or deficiency of cargo from quantity, as herein specified, to be paid by the carrier and deducted from the freight." Held that this was not a guaranty of the quantity specified, or an agreement that the bill of lading should furnish the only evidence of the quantity. In Glass v. Goldsmith, 22 Wis. 488 (1868), it was held that the fact that the shipper had surrendered to the warehouseman, after the execution of the bill of lading, his warehouse receipt for the full amount named in such bill, would not preclude the shipowner from disputing the correctness of the admission in the bill of lading that the full amount had been received by the carrier. ADMISSIBILITY OF PAROL EVIDENCE. 267 example, the statement therein that the package shipped was valued at fifty dollars was held subject to explanation by parol evidence. The shipper proved that he stated to the carrier's agent at the time of delivering the package to him that it contained a much larger sum. It was held that he could recover the full value of the package.^ On the other hand, the indorsement by the company's agent upon the package of the words " said to contain $300 " has been held to be evidence of the value of the package.^ That portion of the bill of lading which expresses the agreement of the parties cannot be contradicted by parol evidence.^ The carrier may, however, relieve himself from liabil- ity for delay in transportation by showing that the shipper verbally consented to the manner of navigation which caused it.* This case is not opposed to the general 1 Kember v. Southern Express Co., 22 La. Ann. 158 (1870). 2 Weil V. Express Co., 7 Phila. (Penn.) 88 (1868). 3 White V. Van Kirk, 25 Barb. (N Y.) 16 (1856); Wolfe v. Meyers, 3 Sandf. S. C. R. (N. Y.) 7 (1849); O'Rourke v. Tons of Coal, i Fed. Rep. 619 (1880). In Fitzhugh v. Wiman, 9 N. Y. 559 (1854), the Court say : "As to the contract for transportation, a bill of lading is like any other con- tract in writing, and cannot be altered or contradicted by parol. As to the quantity or property acknowledged by it to have been received, it has been sometimes held to be open to explanation, as a receipt. But the cases have never gone to the extent of holding that the agreement between the parties as to the destination of the property, or the freight to be paid, or any other of the terms of the contract for carriage, could be varied by parol." In Camden & Atl. R. R. v. Bausch, 6 Central Rep. 121 (1887), the Court was equally divided as to the admissibility of parol evidence to contradict the recital in a pass, that the transportation of the person receiving it was without consideration. In Hostetter v. B. & O. R. R., 1 1 Atl. Rep. 609 (Penn.) (1887), it was held that parol evi- dence was inadmissible to show that the contract was for transportation wholly by rail. The contract was silent on this subject. Parol evidence cannot be used to add to a bill of lading a verbal agreement to deliver before a particular day. Petrie v. Heller, 35 Fed. Rep. 310 (1888). Where the bill of lading gives the ship leave to call at any port or ports, one of its usual ports being known to both parties to be under quaran- tine, a verbal agreement not to call there cannot be shown. The Sidonian, 34 Fed. Rep. 805 (1888); aff'd, 35 Fed. Rep. 534 (1888). * Johnson v. Lightsey, 34 Ala. 169 (1859). 268 THE MODERN LAW OF CARRIERS. rules of evidence. After a written contract is made any of its stipulations may be waived or modified by an exe- cuted parol agreement.^ But tbere are decisions in refer- ence to carrier's contracts whicb go farther tban this, and are irreconcilable with the rules which are applied to other species of contracts. These illustrate the readiness with which the courts have taken hold of any circum- stances to show that the printed receipt given to the shipper did not contain the real contract of the parties. Thus it was held in Union R. R. & Trans. Co. v. Riegel,^ that although the printed contract required that the con- signee's name should be marked on each package, evidence was admissible to show that this was waived by oral agree- ment between the shipper and the carrier's agent. This oral agreement further stipulated that the goods were not to be delivered without special directions. The carrier was consequently held liable for a loss caused by the delivery to the consignee in violation of this oral agree- ment. The Court of Appeals of the State of New York in a case somewhat similar held directly the reverse, and that evidence of verbal directions to the carrier in contradiction of the printed receipt was inadmissible.^ This doctrine is more in accordance with the general rule, and must be considered as preferable, on principle, to the Pennsylvania decision just cited. The meaning which the law implies from the language of a contract is just as much a part of it as if this mean- ing were expressed. It, therefore, follows that one party to it should not be permitted to show by parol that an agreement was made which differed from that which the 1 Taylor v. Seaboard & R. R. Co., 5 S. E. Rep. 750 (1888). 2 Union R. R. & Trans. Co. v. Riegel, 73 Penn. 72 (1873). -^ '^is case there were marks on the packages, which the Court held were to be construed in connection with the contract. =» Hinckley v. N. Y. Central R. R., 56 N. Y. 429 (1874). ADMISSIBILITY OF PAROL EVIDENCE. 269 law would imply from the terms of the written contract.^ But a contract collateral to the written contract may be shown by parol. Of this exception to the general rule of exclusion of parol evidence to contradict or vary a written contract, the most familiar instance is that of a parol war- ranty, collateral to a written bill of sale.^ To draw the line exactly between the rule and the ex- ception is difficult, and to pursue the subject further is not within the scope of this work. A bill of lading, like other contracts, if obscure, may be explained by parol evidence.^ ^ Martin v. Cole, 104 U. S. 30 (1881); Brown v. Spofford, 95 U. S. 474 (1877); Brown v. Wiley, 20 How. (U. S.) 442 (1857); Renard v. Sampson, 2 Duer, 285 (1853); aff' d, 12 N. Y. 561 (1855). In White v. Boyce, 21 Fed. Rep. 228 (1884), at p. 232, the Court say : "The legal effect of a written contract is as much within the protection of the rule which forbids the introduction of parol evidence as its language." This is quoted from Barry v. Ransom, 12 N. Y. 462, 464 (1855). In The Delaware, 14 Wall. 579 (187 1), it was held that the usual clean bill of lading, containing no consent that the goods might be carried on deck, imported an agreement that they should not be carried there, and that parol evidence that the parties agreed that the goods might be carried on deck, was inadmissible. Under somewhat peculiar circumstances, such evidence was held to be admissible in Doane v. Keating, 12 Leigh (Va.), 391 (1841); Missouri Pacific Ry. Co. v. Fagan, 9 S. W. Rep. (Texas), 749 (1888). ^ Morrison v. Davis, 20 Penn. 171 (1852). Parol proof of an agree- ment that the carrier would be liable for losses caused by the '" act of God" was held admissible. This case may be sustained under the dis- tinction mentioned in the text. And see West v. The Berlin, 3 Iowa, 532 (1856); Hamilton v. Western N. C R. R., 96 N. C 398 (1887). ' The Wanderer, 29 Fed. Rep. 260 (1886). It has been held that conversation as to the probable duration of the voyage, taking place at the time the contract is made, may have formed an inducement to making the contract, and may be shown. Blodgett v. Abbott, 40 N. W. Rep. (Wise.) 491 (i888). CHAPTER XIII. SECTION I. TIME WHEN CONTRACT MADE. AS AFFECTING ITS CONSIDERA- TION AND VALIDITY. The contract between tlie shipper and the carrier is complete, when the goods are delivered by the former and accepted by the latter, so that the shipper has no longer the custody or control of them. If after this a written or printed receipt, containing stipulations limiting the car- rier's liability, is sent by the carrier to the shipper, it has no force as a contract, unless it appears that it was accepted by him as such.^ 1 German v. Chicago & N. W. R. R., 38 Iowa, 127 (1874). In this case the shipper was to send some one with the cattle, and there was a custom known to him that the road would not take cattle until a con- tract was signed. The cars were sent off with the first load of cattle before the contract was signed, and without giving him the opportunity to send a drover with them. Held that he had a right to expect the cars would wait and that the contract which was afterwards signed was without consideration. The case is put also on the ground that the carrier failed to keep his part of the contract. Bostwick z/. Baltimore & O. R. R-, 45 N. Y. 712 (1871). In this case goods were shipped and freight paid under a verbal agreement, for an all rail route. It was held that the verbal agreement was not merged in a bill of lading subsequently sent to the shipper. The court say: " Conditions in a bill of lading not delivered until after the shipment and loss of the goods, before the loss was known, did not control the rights of the shippers." Lamb v. Camden & Ambov R. R., 4 Daly (N. Y.), 483 (1873) ; Coffin v. N. Y. Central R. R., 64 Barb. 379 (1872) ; Schiff V. New York C & H. R. R. R„ 52 How. Pr. (N. Y.) 91 (1876). The Illinois Supreme Court held that such was the law in Massachu- setts. Michigan Central R. R. v. Boyd, 91 111. 268 (1878) ; s. p. Gage V. Tirrell, 91 Mass. 299 (1864). And such is the law in Illinois. Amer- ican Ex. Co. V. Spellman, 90 111. 455 (1878). The point was considered but not decided in Merchants' Despatch Co. v. Cornforth, 3 Col. 280 (1877)- In Strohn z^. Detroit & Mil. R. R., 21 Wis. 554 (1867), the court EFFECT TIME MAKING CONTRACT. 27 1 If an agent authorized to ship goods, receives and accepts a bill of lading for them subsequently to their delivery to and acceptance by the carrier, the stipulations of the bill of lading are not binding upon the principal.^ The receipt of a bill of lading and even its acceptance by the shipper after the goods are lost, will not operate either to increase or diminish the carrier's liability.^ said that it would be a fraud on the part of the carrier to insert in a bill of lading, delivered after the completion of the oral agreement, any stipulations not included in the latter. So where there has been an express oral contract to carry goods to a place beyond the carrier's line, and the goods are received and placed on the cars, the shipper is not bound by a bill of lading or re- ceipt, subsequently given him, and containing only a contract to carry to the end of the route. Missouri, Pa., R. Co. v. Beeson, 30 Kans. 298 (1883). The same rule was applied where the bill of lading was not de- livered at the time the goods were received, but was sent by mail to the place of their destination. Louisville & Nashville R. R. v. Meyer, 78 Ala. 597 (1885). So where the bill of lading was issued by mistake ,con- tradicted itself as to the freight to be paid by the shipper, and covered only a portion of the goods shipped, it was held that it did not control a prior oral agreement pursuant to which all the goods were shipped. Mehrbach v. Liverpool & G. W. S. Co., 12 Fed. Rep. 77 (1882). In Detroit & Milwaukee R. Co. v. Adams, 15 Mich. 458 (1867), part of a lot of wool was delivered to the defendant by the plaintiff, and received for transportation, with the understanding that the balance should be sent to the depot as soon as defendant should give notice that it had cars sufficient for the shipment. This notice was given, and the rest of the wool was delivered to and accepted by defendant. There- upon the owner signed a shipping request, to the effect that the com- pany would forward all the wool, according to certain special conditions limiting the carrier's liability, which were endorsed upon the request. Part of the wool was lost before the residue was shipped. Held, that whatever might have been the effect of such an agreement, if made be- fore the delivery of the property at the depot, it did not affect the company's liability as common carrier by reason of the prior delivery to and acceptance by it ; and that plaintiff had a right to consider the contract as referring only to the carrier's liability in respect to the car- riage of the property, not its safe keeping in the depot before shipping. See cases cited under Chapter X, sect. 2, ante pp. 227-233. ^ Shelton v. Merchants' Trans. Co., 36 N. Y. Superior Ct. Rep. 527 (1873); Lamb v. Camden & Amboy R. R., 4 Daly (N. Y.), 483 (1873) '■) Perry v. Thompson, 98 Mass. 249 (1867). In this case atten- tion is drawn to the fact that the clauses of exem[)tion were partly con- cealed by a revenue stamp pasted over them. ^ Gott V. Dinsmore, 11 1 Mass. 45 (1872) ; The Edwin, i Sprague, 477 (1859). 272 THE MODERN LAW OF CARRIERS. A similar rule was applied to a notice on a railway- ticket, relating to liability for the loss of baggage, whicli was read by the passenger, but not until after he had taken his seat in the cars/ The subsequent receipt of a bill of lading by the con- signor, his sending it to the consignee, and the use of it by the latter as a voucher to obtain a portion of the goods shipped, do not establish its validity as a substituted con- tract, if it be shown that its conditions were not known to the consignor and never assented to by him.^ But if there be a consideration for the change in the original contract it is valid. The payment of the freight in advance in lieu of paying it on delivery would consti- tute such a consideration.^ And it cannot be denied that the possession of a bill of lading is of value to the shipper, especially in ship- ments by sea. It is a quasi-negotiable instrument, and constantly used as collateral security for the loan of 1 Rawson v. Penn. R. R., 48 N. Y. 212 (1872) Earl C. at p. 217, said: " The contract between these parties was made when the plaintiff bought her ticket and the rights and duties of the parties were then determined. Hence, even if the plaintiff had read what appears uporv her ticket after she had entered upon her journey, it would have made no difference with her rights. She was not then obliged to submit to a contract which she never made, or leave the train and demand her baggage." 2 In Bostwick v. Baltimore «&: Ohio R. R., 45 N. Y. 712 (1871), the Court said: "After the verbal agreement had been consummated and rights had accrued under it, the mere receipt of the bill of lading, inad- vertently omitting to examine the printed conditions, was not sufficient to conclude the plaintiff from showing what the actual agreement was under which the goods had been shipped." Where there was a previous contract by letter and the carrier ob- tained the goods from the ship where they were, and issued a bill unknown to the owner exempting itself from perils of navigation, the owner was not bound thereby. Park v. Preston, 108 N. Y. 434 (1888). ^ Baker v. Steamboat Milwaukee, 14 Iowa, 214 (1862). In this case Baldwin, C J- (p. 225), used the following language : "The freight was paid as it is claimed upon the new agreement, and if the jury found this to be the fact, then we think the defendant was bound to take no- tice of the conditions of the new contract, and should have acted accordingly." EFFECT TIME MAKING CONTRACT. 273 money. This will more distinctly appear if we consider the nature of a bill of lading. It is in the form of a con- tract on the part of the carrier to carry and deliver goods. It is signed by the officer or agent of the carrier and states the terms and conditions of the contract of affreight- ment. The acceptance of a bill of lading, knowing that it purports to represent and contain the contract, makes the contract just as binding on the shipper as his signature would, even though it is delivered subsequently to the shipment. It is not a case where a signature is necessary^ and the acceptance on the one hand and the signature on the other are simply modes of indicating that the con- signor contracts with the carrier on the terms stated in the bill of lading.^ The course of business and the consequent growth of the law on this subject is this: It became convenient for carriers not to deliver bills of lading when goods were received at the pier or station, but to deliver to the carter ^ York Company v. The Central Railroad, 3 Wall. 107 (1865). In that case it was proved (p. 108) "that the cotton was shipped on the steamer before the bills of lading were signed ; that the shipper had not examined the bills ; that his attention was not called to the fire clause, and that his firm had no authority to ship for their principals with that exemption." It was also argued that there was no consideration for the exemption. But the court overruled all the objections, and held that the plaintiff, who was the owner of the goods, was bound by the exemp- tion in the bill of lading. St. Louis, K. and N. R. Co. v. Cleary, 77 Mo. 634 (1883). Bostwick z^. Baltimore & Ohio R. R., 45 N. Y. 712 (1871). In The Alene, 25 Fed. Rep. 562 (1885), this precise question was argued fully ; but the court did not pass upon it, because the acceptance of the bill of lading was in that case admitted by the pleadings. It appeared that when the goods were delivered to the steamer, receipts were given for them, and that the bills of lading were not delivered until after the steamer had sailed. It also appeared that it had been customary practice to send bills of lading under such circumstances, and that the shippers duly accepted them. Nothing could better illus- trate the way in which this practice was understood than the fact that the libel in that case alleged the receipt and acceptance of the bill of lading, and it was not until the case was in the Circuit Court that an attempt was made to avoid its exemptions by proving the facts before stated, as to the receipt. 18 274 I'HE MODERN LAW OF CARRIERS. a paper expressing merely the receipt of the goods. Bills of lading were afterwards made out at the carrier's office, and forwarded to the shipper, or occasionally to the con- signee. It was contended that bills of lading, so for- warded, were ineffective, because the contract was com- plete when the goods were delivered and the receipt given. In reply the carrier proved that the usage of business was to treat these receipts as mere vouchers which entitled the shipper to receive bills of lading for the goods men- tioned in the receipt. On proof of such usage it was held that the carrier had received the goods upon the terms specified in the usual bills of lading. When this question first arose, in order to guard against the allegation by the shipper that the bill of lad- ing was not accepted by him, and also to avoid delay and facilitate the transaction of business, many carriers adopted the practice of delivering a shipping receipt at the time of shipment stating that the goods would be forwarded sub- ject to the conditions in bills of lading, to be afterwards delivered. In such case the shipper is bound by the con- ditions and terms of the bill of lading.^ SECTION II. AUTHORITY SHIPPING AGENT. An agent who is employed by the owner of goods to procure them to be transported by a common carrier has general and implied authority to make an agreement with 1 Wilde V. The Merch. Despatch Trans. Co , 47 Iowa, 272 (1877) ; Chicago & N. W. R. Co. v. Montfort, 60 111. 175 (1871), appears op- posed to the statement in the text ; but the circumstances there were peculiar. The drayman, to whom the original receipt was delivered, two or three days after the goods were shipped, asked for a duplicate receipt to send to the consignee. The court held that the shipper was not bound by limitations inserted in a paper, not a duplicate of the original, thereupon delivered to the drayman. See further cases in Chapter X, sect. 2, pp. 225-233. AUTHORITY SHIPPING AGENT. 275 the carrier as to the terms upon which the goods are to be transported/ If the carman employed to deliver the goods to the carrier, signs a contract limiting the carrier's liability and providing that any objection to the contract should be im- mediately made to the freight agent, and further agrees that the goods shall be retained for a day in order to give opportunity for such dissent, if none is made acceptance by the carman's employer is established.^ It is apparent, however, that the circumstances under which the author- ity was given and the extent of this authority may modify the general rule. Thus, when at the shipper's request the agent of the carrier went to another town, procured government orders on the warehouse where the goods were stored, obtained the goods and shipped them without issuing any bill of lading, it was held that he was not 1 York Co. V. Central R. R., 3 Wall. 107 (1865) ; Squire v. N. Y. Central R. R., 98 Mass. 239 (1867); Nelson v. Hudson R. R. R., 48 N. Y. 498 (1872) ; Meyer v. Harnden's Ex. Co., 24 How. Pr. (N. Y.) 290 (1862) ; s. c, sub nom. Moriarty v. The Same, i Daly (N. Y.), 227 {1862); Shelton v. Merchants' Trans. Co., 36 N. Y. Superior Ct. 527 (1873). In the latter case, however, it was held that after the shipment was completed the authority of the agent terminated, and he could no longer bind the owner by the acceptance of a contract limiting the car- rier's liability. It has been held otherwise in Illinois, and that the authority to contract for a limitation of the carrier's liability must be express. Merchants' Dispatch Co. v. Joestings, 89 111. 152 (1878). See, however, Illinois Central R. R. z'. Jonte, 13 Bradw. (III. App.) 424 (1883), in which the rule stated in the text is laid down distinctly by the court. ^ Nelson v. Hudson R. R. R., 48 N. Y. 498 (1872). In this case the provisions of the contract excluded all liability for injury, except that caused by the carrier's negligence. These provisions though usual in the case of goods of the description shipped (a large mirror) were unusual in relation to other goods, and for this reason, no doubt, the evidence as to acceptance was so full. But in The May Queen, i Newb. Adm. 464 (1854), when the manufacturer of glass show cases himself delivered them on board, and was told that the ship was not responsi- ble for breakage, he being neither the shipper, owner or consignor of the goods, it was held that he was not an agent authorized to make a special contract, or at least that this proof did not establish an author- ized contract, of limitation. 276 THE MODERN LAW OF CARRIERS. the agent of the shipper to bind the latter by the terms of the bill of lading ordinarily issued by the carrier.^ So, too, a shipper is not bound by the conditions in a bill of lading issued to a mere drayman, if the shipper protests against them as soon as known. ^ But the drover who is in charge of stock, and the only person with whom a connecting carrier can make terms, is authorized to make a contract of limitation to bind the owner.^ Again where goods are shipped to market for sale pursuant to a custom by which the carrier returns empty tubs and baskets free, a local carrier at the market place, employed by both shipper and carrier, who collects the empty tubs, &c., is authorized to sign a contract limiting the liability of the carrier for injuries to the tubs.* SECTION III. CONTRACTS WITH CONNECTING LINES. Contracts are constantly being made under which a carrier receives goods for transportation beyond the limits of his own line. In some cases the first carrier agrees that the goods shall be transported to their place of des- tination. In others the carrier's contract is simply to de- liver the goods to the next connecting line, in order that this line may transport them. In the latter class of cases the question has arisen whether the first carrier has authority to contract with the second that the second be exempt from any part of his common law liability. Allen, * Clyde V. Graver, 54 Penn. 251 (1867). ' Seller dr^i-/. The Pacific, I Oregon, 409 (1861) ; s. c. i Deady's Adm. Rep. 17. 3 Squire v. N. Y. Central R. R., 98 Mass. 239 (1867).' ♦ Aldridge v. The Great Western R. Co., 15 C B. (N. S.) 582 (1864)' In this case the shipper had little choice in the selection of the local carrier who was held to be his agent. But this was really immaterial. He adopted and recognized the employment. CONTRACTS WITH CONNECTING LINES. 277 J., in Babcock v. Lake Shore & Mich. S. R. Co., ^ said that the first carrier had no such authority. But the facts of that case did not require this proposition to be adjudged. No special contract was made by the first carrier with the second. There was a provision in the shipper's contract with the first carrier limiting its liability, by excepting loss by fire. There were general words in the printed form which would have extended the benefit of this ex- emption to all connecting lines. The court held that these were controlled by the written part of the contract which was plainly for transportation over the first carrier's line and for delivery to the second carrier, and no more.^ No reason is perceived why the rule that the agent to ship has an implied authority to contract respecting the terms of shipment, which was laid down in Nelson v. Hudson R. R. R., ^ would not be applicable to the case of a contract made by the first carrier with the connecting carrier limiting the latter's liability. The first carrier is certainly employed by the owner to deliver the goods to the second carrier, just as plainly as a carman is employed by the merchant, and if one can assent to the terms of a contract of limitation, why not the other ? In Lamb v. Camden & Amboy R. R.,"* the same court held that the first carrier, who received goods in Illinois to be transported to New York, but did not contract for their transportation beyond its own line, could make a 1 Babcock v. Lake Shore & M. S. R. Co., 49 N. Y. 491 (1872). "^ There was no agreement for a through rate of freight. The court say, at p. 497 : " There was no consideration for an agreement by the plaintiff to relieve the carriers who should thereafter receive the prop- erty for transportation, from the common law liabilities, and no such agreement was made." Taylor v. Little Rock, M. & T. R. R., 39 Ark. 148 (1882). In the latter case also, no through rate of freight was agreed upon. The court said that if there had been, the exemption might have been valid. ' Nelson v. Hudson R. R. R., 48 N. Y. 498 (1872). " Lamb v. Camden & A. R. R., 46 N. Y. 271 (187 i). a 78 THE MODERN LAW OF CARRIERS. contract with the second carrier, containing the same ex- ceptions as those in the original contract and no other. It was also held that on the proper construction of the original contract which fixed the rate for the through freight, it was the shipper's agreement that the carriers throughout should be exempted from loss by fire. In this case the words " not liable for fire " were written across the face of the receipt.^ It may justly be said that the terms of the original contract express the terms on which the shipper is willing to contract with connecting lines, and thus constitute a limitation to which these lines assent by receiving the goods, and to which the shipper assents by accepting the contract. The proposition thus stated is supported by authority of weight, ^ and is believed to rest on the sound foundation of principle. * See Lamb v. Camden & A. R. R., in Common Pleas, 2 Daly, 454 (1869). ^ Railroad Co. v. Androscoggin Mills, 22 Wall. 594 (1874); Levy v. Southern Express Co., 4 S. Car. 234 (1872). See Manhattan Oil Co. V. Camden & Amboy R. R., 52 Barb. (N. Y.) 72 (1872); aff'd. 54 N. Y. 197 (1873); Whitworth v. Erie R. Co., 45 N. Y. Superior Ct. 602 (1879); aff'd 87 N. Y. 414 (1882). In this latter case it was distinctly held that the contract was several and not joint, each carrier being liable only for transportation over its own line and delivery to the next. But the con- necting carrier was nevertheless held entitled to the benefit of the clauses of exemption contained in the contract. These, by the terms of the contract, were applicable to the connecting carriers. In the Androscoggin case the carrier delivered to the shipper a through bill of lading, containing the words: "The Evansviile and Crawfordsville Railroad Company will not be liable for loss or damage by fire from any cause whatever." The goods were destroyed by fire, but not upon the line of the contracting carrier. In a suit against that carrier, it was held that the exemption applied to the whole route, and was valid. In the Levy case there was an express authority contained in the contract with the first carrier to deliver to a connecting carrier, and an express agreement that all the stipulations in the contract should enure to the benefit of connecting lines. The Court said : " As between the Adams Express Co. (the first carrier) and the owner, the terms of the bill of lading are to be regarded as modifying in certain particulars the common law liability of the company as common carriers. The shipper having authority to ship must be regarded as authorized to bind the owner by a contract containing special terms of shipment. Adams Ex- CONTRACTS WITH CONNECTING LINES. 279 It has been held in analogy to the rule stated in a previous chapter^ that a notice from the second carrier to the first, as to the terms on which it would accept goods for transportation, is not sufficient to limit its liability for goods received by it from the first carrier, and generally accepted without any contract at the time of such receipt, other than that implied by law.^ This was on the ground that a mere notice was insufficient to limit the carrier's liability. But, no doubt, a general contract between the two carriers as to the terms upon which all shipments would be made and received would be as effective as a special contract at the time of each delivery. In the ab- sence of a contract between the two carriers, if the agree- ment with the first carrier provides only for transportation to the terminus of his line and delivery to the second, and has no stipulation which can be construed to apply to the entire transit, the second carrier cannot avail himself of limitations in the contract with the first.^ press Co. had express authority to employ the defendants as common car- riers, and to fix the terms of the contract in conformity with the terms stipulated between the shipper and themselves. It is to be presumed, as the case stands, that the defendants accepted the trunk on the terms of the original bill of lading, and such acceptance is accordingly special and subject to such terms." ^ Afite, Chap. X, p. 221. 2 Judson V. Western R. R., 6 Allen (Mass.), 486 (1863); Adams Ex. Co. V. Harris (Ind.), 21 N. E. Rep. 340 (1889). ^ Camden & Amboy R. R. v. Forsyth, 61 Penn. 8t (1869); ^tna Ins. Co. V. Wheeler, 49 N. Y. 6t6 (1872); aff'g. s. c. 5 Lansing, 480 (1871); Babcock v. Lake Shore & M. S. R. Co., 49 N. Y. 491 (1872); Merchants' Trans. Co. v. Bolles, 80 111. 473 (1875); Southern Express Co. V. Urquhart, 52 Ga. 142 (1874); Ed all Z'. Camden & A. R. R., 50 N. Y. 66i (1872). In The Forsyth case the rate for through freight was noted on the margin of the contract, but this was held not to make it a through contract. The connecting carrier gave a receipt to the first carrier, but issued no bill of lading and made no special contract. In The JPAnSi Ins. Co. case, the agreement with the first carrier was in terms to deliver ''unio consignees at Ogdensburgh " (the terminus of its line). The goods were marked for Boston and a through rate of freight agreed upon, but the contract in all other respects was silent as to the terms upon which the goods should be carried by the connecting line. In Tlie Bolles case the Court say: " It is only where the contract is 28o THE MODERN LAW OF CARRIERS. The rule on this subject is further illustrated by ref- erence to a New York decision. A shipper delivered oil to a carrier to be transported to a point beyond its line. No agreement limiting the carrier's liability was made. The connecting carrier on receiving the oil gave to the first carrier a receipt with the clause appended, " Owners' risk F. and L." The goods were destroyed by fire while being transported by the second carrier. It was shown that these letters were commonly understood in the trade to mean fire and leakage, and the court held this evidence admissible, and that the first carrier was the shipper's agent to deliver the oil to the connecting carrier ; that the latter had a right to contract with such agent for the lim- itation of its own liability, and that the delivery of the receipt in question effected such limitation.^ It must be admitted that the authority of this case is somewhat impaired by the dictum of Allen, J., before re- ferred to. It cannot be claimed that the result of these cases is to leave the law on this important subject in a very satisfactory condition. So far as through contracts for the transportation of goods are concerned, there is no question that the last car- rier is entitled to all the benefits of the exemptiom from liability contained in the through bill of lading under which the goods are transported, even though the bill of for through transportation that each connecting carrier will be entitled to the benefits and exemptions of the contract between the shipper and the first carrier." In The Urquhart case the court held that in the absence of proof as to the terms upon which the connecting carrier received the goods from the first carrier, the connecting carrier should be presumed to have re- ceived them for transportation to the owner under such obligations as to diligence, &c., as the law imposes on common carriers, who do not, by contract, limit their liability. 1 Hinkley v. N. Y. Central & H. R. R. R. 3 Thomps. & Cook (N. Y.), 281 (1874); Alabama & Gt. S. R. Co. v. Thomas, 3 So. Rep. 802 (1888), Ala. CONTRACTS WITH CONNECTING LINES. 28 1 lading expressly provides that each carrier shall be liable only for losses occurring on its own line.^ ^ Bristol & Exeter R. Co. v. Collins, 7 House of Lords, 194 (1859), rev'g. s. c. I Hurlst. & N. 517 (1856); Maghee v. Camden & Amboy R. R., 45 N. Y. 514 (1871); Manhattan Oil Co. v. Camden & Amboy R. R., 54 N. Y. 197 (1873); aff'g- s- c. 52 Barb. 72 (1868). In this case a through contract for the transportation of goods was made by a car- rier, containing a clause exempting it from liability " for loss or damage by fire or other casualty while in depots or places of transhipment." Certain other exemptions were contained therein in reference to which the contract made express provision for exemption in favor of connect- ing lines. The goods were received by defendant, a connecting carrier, and it received from the contracting carrier a portion of the freight. While in its depot the goods were destroyed by fire. The court said : " The oil destroyed by fire, the value of which is the subject of the pres- ent controversy, was received by the Union Transportation and Insur- ance Company, at Cincinnati, to be transported by that company to New York at a stated price for the whole route, arid upon certain con- ditions, one of which was that the company should not be liable for damages or loss by fire, or other casualty which should occur to the oil while in depots or in places of transhipment. Under this contract that company would undoubtedly have been liable had the oil been dam- aged or destroyed while on defendant's road or boat, by any of the perils hazarded by common carriers not excepted in the contract for its trans- portation ; and it is equally clear that if the action had been brought against that company to recover the value of the oil, it would have been shielded by the exception in the bill of lading. . . . The plaintiff insists that the defendant, who was the last carrier on the route to New York, to which the Union Company had agreed to transport it, is not en- titled to the benefit of the condition referred to, upon which the Union Company agreed to carry it to that city. The contract made by the Union Company was for a service to be performed, not only for a com- pensation to which it would not have been entitled until the property had been transported to and ready for delivery in New York, but by it that company would have incurred a liability for damage to, or a loss of it, had not the loss occurred in a depot or place of transhipment. The contract having been made by that company for the transportation of the oil from Cincinnati to New York was, including the condition referred to, commensurate with the undertaking to transport it over the whole and every part of the route. Had it been a contract which did not carry the liability of the first carrier beyond the distance traversed by its cars, the condition could not avail the defendant ; but as it is, the defendant, instead of being the party who contracted with the plaintiff, was aiding the first carrier in performing its contract, and for a compensation to be equally apportioned and paid by that carrier, to whom the defendant was but a subordinate, and shielded by the condi- tion made by that company against a liability for loss by fire." To the same effect are Oakey v. Gordon, 7 La. Ann. 235 (1852); Whitworth v. Erie R. Co., 45 N. Y. Superior Ct. 602 (1879); aff'd. 87 N. Y. 414 (1882); U. S. Express Co. v. Harris, 51 Ind. 127 (1875); Kiff v. Atchi- 2S2 THE MODERN LAW OF CARRIERS. It does not fall within the scope of this work to con- sider in detail the law as to when the liability of the first carrier ceases, nor as to when he is liable for injuries oc- curring on a connecting line. In general it may be said that in order to discharge himself he must make such a delivery to the connecting line as he should make if the place of consignment was on his own route.^ And when he has made such delivery son T. & S. R. R., 32 Kans. 263 (1884). In this case the limitation was effected by the words " owner's risk." In Oakey v. Gordon, the carrier owned a railroad and ran a steam- boat in connection with it. Cotton was shipped under a bill of lading given by the captain of the boat, binding him to deliver the cotton at a station on the railroad, " unavoidable dangers of navigation and fire " only excepted. The cotton was destroyed by fire issuing from the chimney of the locomotive, in transit to New Orleans. Held, that the contract to carry the cotton was entire, and the exception in the bill of lading against loss by fire extended as well to loss on the cars as on the boat. On the other hand, if there be no exemption provided for in the through contract, the contracting carrier is liable for the default of the connecting line. Toledo, W. & W. R. Co. v. Lockhart, 71 111. 627 (1874). In Owen z/. Louisville & Nashville R. Co., 9 S. W. Rep. 698 (1888), it was held that the last carrier was the agent of the first, so far as to bind the latter by a waiver of a condition requiring the claim to be pre- sented within a given time. ^ In re Peterson, 21 Fed. Rep. 885 (1884); Eaton v. Neumark, 33 Fed. R. 891 (1888); Reed v. U. S. Ex. Co., 48 N. Y. 462 (1872); Mills V. Mich. Central R. R., 45 N. Y. 622 (1871); Dunson v. N. Y. Central R. R., 3 Lansing (N. Y.), 265 (1870); Wahl v. Holt, 26 Wis. 703 (1870); Mobile & Ohio R. R. v. Hopkins, 41 Ala. 486 (1868); Lewis v. Western R. R., 11 Mete. (Mass.) 509 (1846); Louisville & N. R. R. v. Campbell, 7 Heiskell (Tenn.),253 (1872); Lawrence v. Winona & St. P. R. R., 15 Minn. 390 (1870); Wood v. Milwaukee & St. Paul R. Co., 27 Wis. 541 (1871). This latter case was, however, expressly overruled by Conkey v. Milwaukee & St. P. R. R., 31 Wis. 619 (1872) in the same court, and arising out of the same occurrence. In the former it was held that if the second carrier fail to accept the goods after a reasonable time, the first carrier is liable only as warehouseman. In the Conkey case, it was held, however, that the carrier's liability as such continued till the goods were delivered to the consignee. It was said that the carrier, in whose possession the goods were injured or lost, suffered from delay in receiving them by a succeeding carrier, he might have a remedy against the latter. In Mills ?7. Michigan Central R. R., 45 N. Y. 622 (1871), it was held that where goods are received by a carrier for transportation, CONTRACTS WITH CONNECTING LINES. 283 his liability ceases. If he notify the next connecting car- rier that he is ready to deliver the goods to him, and the latter, after a reasonable time, neglects to receive and remove the goods from the custody of the first carrier ; they may then be warehoused and the liability of the first carrier as such will thereupon cease, and he will be liable as warehouseman only.^ In such case the first carrier should notify the shipper.^ marked for a destination beyond the terminus of such carrier's route, 'the manner of giving notice to the next carrier of their arrival and readiness for dehvery, and the length of time which is reasonable and must elapse before the first carrier is relieved from his carrier's liability, are regulated by existing custom between them. Where there was an agreement between two connecting lines that goods should not be regarded as transferred until the freight charges of the second carrier were paid or secured, held that although the goods had actually been placed in the second carrier's warehouse, the first carrier was not discharged, payment not having been made. Palmer v. Chicago B. & Q. R. Co., 13 Atl. Rep. (Conn.) 818 (1888); compare Ala- bama G. S. R. R. V. Mt. Vernon Co., 4 So. Rep. 356 (1887); 84 Ala. 173. If cattle are delivered safely to connecting line, their delivery is good though they are transferred to unsafe cars. Alabama G. S. R. R. V. Thomas, 3 So. Rep. 802 (1888). 1 Rawson v. Holland, 59 N. Y. 611 (1875); s. c 47 How. Pr. (N. Y.) 292 (1874); Inhabitants t;. Hall, 61 Me. 517 (1873); Devillers v. Bell, 6 La. Ann. 544 (1851); Dalzell z;. The Saxon, 10 lb. 280 (1855). See Condon v. Marquette, H. & O. R. R., 55 Mich. 218 ; 21 N. W. Rep. 321 (1884). The general rule as to delivery to the consignee is the same. Faulkner v. Hart, 82 N. Y. 413 (1880); See, also, the cases cited in Faulkner v. Hart, and the Massachusetts cases to the contrary, also therein cited. Fenner v. Buffalo & State Line R. R., 44 N. Y. 505 (1871), does not conflict with the rule stated in the text. In that case the Court say (p. 507): " It is well settled in this State that an interme- diate carrier, one who receives goods to be transported over his route, ■and thence by other carriers to their place of destination, generally re- mains liable as a common carrier until he has delivered the goods to the ^ Louisville & N. R. R. v. Campbell, 7 Heisk. 253 (1872); Lesinsky V. Great W. Disp., 10 Mo. App. 134 (1881). In In re Peterson, 21 Fed. Rep. 885 (1884), it was held that where the second carrier notifies the first carrier that on account of a freight blockade it cannot receive the goods, the liability of the first carrier will not become that of a warehouseman if the first carrier fails to notify the shipper and give the latter opportunity to preserve property. And as to delivery to consignee, see Cliap. XIV, sect. 8, post. See Dunn v. Hannibal & St. J. R. R., 68 Mo. 268 (1878). 284 THE MODERN LAW OF CARRIERS. Depositing goods in its own depot is not sufficient to relieve the carrier from its common law liability/ It is liable for injuries done to person or property on a con- necting line when it has made a contract for through transportation, and not otherwise.^ next carrier." McDonald v. Western R. R., 34 N. Y. 497 (1866); Ladue v- Griffith, 25 N. Y. 364 (1862); Goold v. Chapin, 20 N. Y. 266 (1859); Miller z/. Steam Nav. Co., 10 N. Y. 431 (1853). In none of these cases except Goold v. Chapin had a reasonable time elapsed for the connecting carrier to receive and remove the goods. In Goold v. Chapin the connecting carrier had notice and a reasonable time to re- move them, and had failed so to do; but the carrier still retained them on the float on which they had been discharged. The court held that the liability of the carrier as such still continued. In both the prevail- ing opinions it is conceded that if the goods had been removed to a warehouse, because of the delay on the part of the next carrier, the lia- bility of the preceding carrier as such would have terminated. See pp. 264, 267. It was, however, held otherwise in Bancroft v. Mer chants' Desp. Co., 47 Iowa, 262 (1877); Illinois Central R. R. v. Mit- chell, 68 111. 471(1873). ^ Railroad Company v. Manufacturing Co., 16 Wall. 318 (1872); See cases cited, ante, p. 283, n. 2. 2 Myrick v. Michigan Central R. R., 107 U. S. 102 (1882); Insur- ance Co. V. R. R. Co., 104 U. S. 146 (1881); Barter v. Wheeler, 49 N. H. 9 (1869); Parmelee v. Western Trans. Co., 26 Wis. 439 (1870); Green v. N. Y. Central R. R., 12 Abb. N. S. (N. Y.) 473 (1872); Root V. Great Western R. R., 45 N. Y. 524 (187 1); rev'g. s. c. 2 Lans. 199 (1869); Hunt V. N. Y. & Erie R. R., i Hilt. (N. Y.) 228 (1856); Dillon V. N. Y. & Erie R. R., Ibid, 231 (1856); Weil v. Merchant's D. & T. Co., 7 Daly (N. Y.), 456 (1878); Jacobs v. Hooker, i Edmonds (N. Y.), 472 (1847); Manhattan Oil Co. v. Camden & Amboy R. R., 52 Barb. (N. Y.) 72; s. c. 5 Abb. Pr. R. (N. S.) 289 (1868); aff'd. 54 N. Y. 197 {1873); Babcock v. Lake Shore & M. S. R. Co., 49 N. Y. 491 (1872); Rawson v. Holland, 59 N. Y. 611 (1875); Toledo, W. &. W. R. Co. v. Lockhart, 71 111. 627 (1874); Cutts v. Brainerd, 42 Vt. 556 (1870); 111. Central R. R. v. Copeland, 24 111. 332 (i860); Illinois Central R. R. v. Frankenberg, 54 111. 88 (1870); Adams Ex. Co. v. Wilson, 81 Ibid, 339 (1876); McCannz^. Baltimore & Ohio R. R., 20 Md. 202 (1863); Balti- more & Ohio R. R. V. Schumacher, 29 Md. 168 (1868); McMillan v. Mich. S. &N. I. R. R.,i6 Mich. 79(1867); Lowell Wire Fence Co. v. Sar- gent, 8 Allen (Mass.), 189 (1864); Hill Manufacturing Co. v. Boston & L. R. R. Co., 104 Mass. 122 (1870); Newell v. Smith, 49 Vt. 255 (1876); Hadd V. U. S. & Canada Express Co., 52 Vt. 335 (1880); Cra\r- ford V. Southern R. R. Ass'n, 51 Miss. 222 (1875); Skinner v. Hall, 60 Me. 477 (1872); Halliday w. St. Louis, K. & N. R. Co., 74 Mo. 159 (1881); s. c. 41 Am. Rep. 309 ; Ortt v. Minneapolis & St. L. Ry. Co., 36 Minn. 396 (1887). The making of a through contract will not be inferred from the re- CONTRACTS WITH CONNECTING LINES. 285 The validity of contracts for the transportation of freight beyond the terminus of the contracting carrier's ception by the first carrier of goods marked for a place beyond the ter- minus of its own line. Myrick v. Michigan Central R. R., 107 U. S. 102 (1882). Where the bill of lading contains a stipulation that no one of the connecting carriers composing a through line shall be liable for any injury not occurring on his portion of the entire route, this is bind- ing on the shipper, and he cannot recover against the first carrier for a loss occurring on the line of another, if the occurrence of the loss is not due to delay on the part of the first carrier. Schiff v. New York Cen- tral & H. R. R. R., 52 How. Pr. (N. Y.) 91 (1876); Tardos v. Chicago, S. & L., & N. O. R. R., 35 La. Ann. 15 (1883). In this latter case the first carrier guaranteed the through rate, and the connecting line refused to recognize this. It was held that the contracting carrier was entitled to notice of this refusal, and in the absence of such notice was liable to the shipper only for the difference between the rate exacted and the guaranteed rate. In Sumner v. Walker, 30 Fed. Rep. 261 (1887), Brown, J., thus states the law : " Each carrier on a through bill of lading or on connecting lines is liable only for the negligence that arises on his own line, unless some different understanding be shown or circumstances from which such an understanding should be inferred." Railroad v. Androscoggin Mills, 22 Wall. 594 (1874); Railroad v. Pratt, 22 Wall. 123 (1874); s. c. 95 U. S. 43 (1877); Harding v. International Nav. Co., 12 Fed. Rep. 168 (1882). In Darling v. Boston & Worcester R. R., 93 Mass. 295 (1865), it was held that in the absence of usage or contract the carrier is bound only to carry goods over its own route. If it deliver to a cus- tomary or prescribed connecting carrier its liability is discharged. It may contract to carry further ; otherwise the arrangement between con- necting lines would control. In the same case it was also held that the last carrier who delivers the goods and collects all the freight is not, in the absence of agreement, liable for damages on previous lines. A carrier which agrees to transport goods beyond its line under- takes to transport them to their destination by itself or competent agents, and if they are lost beyond its line, it is liable. A statute pro- vided that each company should be responsible only to its own terminus, and that the last company which received the goods " in good order " should be responsible to the consignee. It was held that this did not change this common law rule except by giving a remedy against the last carrier. Falvey v. Georgia R. R., 76 Ga. 597 (1886); overruling Baugh V. McDaniel, 42 Ga. 641 (1871). Where the evidence showed that dam- age occurred before the goods reached the last carrier, it is error to charge in the language of this statute. Columbus & W. R. Co. v. Till- man, 5 S. E. Rep. 135 (1888). A statute prescribed that " where two railroads are connected to- gether, the first railroad receiving freight should be liable for loss or injury on the route." It was held that a mere mechanical connection was not meant — that it must be a business connection. Laws of N. Y., 1847, chap. 270; Colby's New R. R. Laws, p. 270, Root v. Great West- ern R. R., 45 N. Y. 524 (1871). 286 THE MODERN LAW OF CARRIERS. route was at one time doubted, but is now well settled/ and the shipper may always affirm a contract with a con- necting carrier.^ The previous observations in this section refer only to contracts for the tranportation of freight. In reference to contracts for the transportation of passengers, it is held that a carrier who is authorized by connecting lines to sell through tickets for transportation over the several lines is the agent of the several lines for the purpose of making the contract of transportation. It follows that each com- pany, for transportation over whose line the contract is made, is bound to transport the person to whom the through ticket is sold, upon his presenting the ticket in accordance with its terms, and that each line is bound by the representations of the line selling the ticket as to privileges of breaking the journey j*^ and if the first car- rier makes a contract to transport a passenger through to a point beyond the terminus of its own line, the liability of the contracting carrier will not be limited by agree- ments with the connecting lin^ of which the passenger has no notice.^ A statute provided that the last of several connecting carriers should be liable for loss of goods delivered to the first for transportation. Goods being billed from Boston to Atlanta, the railroad running into Atlanta was held to be the last carrier, and to be liable for the loss of the goods, although it had delivered them to another local railroad for delivery in the city. Georgia Code, sect. 2084 ; Western & A. R. Co. V. Exposition Cotton Mills, 7 S. E. Rep. 916 (1888); Central R. R. v. Avant, 5 S. E. Rep. (Ga.) 78 (1888); Washmgton v. Raleigh & G. R. Co., 7 S. E. Rep. (N. C.) 789 (1888); Block v. Merch. Desp. Trans. Co., 6 S. W. Rep. 881 (1888). 1 Swift -.'. Pacific Mail S. S. Co., 7 Central Rep. (N. Y.) 811 (1887); s. c. 106 N. Y. 201 ; Railroad Co. v. Pratt, 22 Wall. (U. S.) 124 (1874). '■' Sanderson v. Lambertson, 6 Binn. (Pa.) 129 (1813). '. Young z;. Penn. R. R., 5 Central Rep. 848; s. c. 115 Penn. 112 (1887). * Little V. Dusenberry, 46 N. J, (Law). 614 (1884). In Central R. R. V. Combs, 70 Ga. 533 ; s. c. 48 Am. Rep. 582 (1883), it was held that the liability of the contracting carrier who has made such a through contract, is not limited by a provision printed upon the ticket that each CONTRACTS WITH CONNECTING LINES. 287 And a carrier selected by the person to whom the goods are addressed, to receive the goods, is not a con- necting carrier and not liable to the holder of the bill of lading, though the person employing him had no title to the goods. ^ of the carriers composing the through line should be liable only for in- juries occurring upon its own route. But the circumstances of this case were peculiar. The damage sued for was occasioned by the failure of the connecting line to transport the passenger at all. It had stopped running its cars, owing to the prevalence of yellow fever. The carrier selling the through ticket was held liable for the expense and trouble caused to the passenger by his detention at the connecting point. The view taken by a court of this general question would in part depend upon whether it treated the ticket as a contract, or merely a voucher for the payment of fare. See Chap. X, sect. 2, p. 230. ^ Nanson v. Jacob, 6 S. W. Rep. 246 ; s. c 93 Mo. 331 (1887). CHAPTER XIV. CONSTRUCTION OF PARTICULAR CLAUSES IN BILLS OF LADING. SECTION I. RECEIVED IN GOOD ORDER. Contracts between the carrier and the shipper almost invariably begin with an acknowledgment that the carrier has received certain merchandise. Then follow the stip- ulations expressing the contract between the parties. But whatever the form, if the instrument delivered by the carrier to the shipper contain language sufficient to show that the carrier agrees with the shipper to transport cer- tain goods therein described from one place to another for a consideration therein specified, the instrument will be a bill of lading.^ Where the bill of lading contains the usual acknowl- edgment that the goods were received in good order, and the words '' contents and value unknown,'' are omitted, the presumption is that not only the package but the goods themselves were in good order when received. The bur- den of proof in such case, if they fail to arrive at the port of destination in good condition, is upon the carrier, and he must show that the injury happened before the goods came to his hands.^ * Dows V. Perrin, i6 N. Y. 325 (1857); Dows v. Rush, 28 Barb. (N. Y.) 157 (1858); ante, p. 231. ' The Historian, 28 Fed. Rep. 336 (1886): The Zone, 2 Sprague, 19 (i860); The Martha, Olcott, 40 (1845); Price v. Powell, 3 N. Y. 322 (1850); Nelson v. Stephenson, 5 Duer (N. Y.), 538 (1856). In West v. RECEIVED IN GOOD ORDER. 289 This admission, however, does not preclude the carrier from introducing evidence to rebut it. It is prima facie only ; ^ and the condition of the package itself may be such as to rebut the presumption. This was so held when the package was found to be perforated by nail holes and the water had thereby been admitted to the interior.^ It was said in one case that in order to rebut this pre- sumption derivable from the admission in the bill of lading, the carrier's proof must amount to a certainty.'^ It may fairly be questioned, however, whether the learned court did not go too far in this statement. There would seem to be no good reason why any rule of evidence should be applied in this class of cases different from that which prevails in ordinary civil cases. The jury or the court must always be satisfied that the preponderance of evi- dence is in favor of the party upon whom the law casts the burden of proof To go further than this and say that he must establish his case with certainty, would seem rather to obscure than to elucidate the question under discussion. In a previous case in the same court, this question of The Berlin, 3 Iowa, 542 (1856), this rule was held not to apply to the case of pork packed in barrels, because the carrier was not bound to open or inspect them. ' The Oriflamme, i Sawyer, 176 (1870); The Black Warrior, i Mc- Allister, 181 (1856); Gowdy V. Lyon, 9 B. Monr. (Ky.) 112 (1848); Car- son V. Harris, 4 Green (Iowa), 516 (1854); Barrett v. Rogers, 7 Mass. 297 (181 1); The Nith, 36 Fed. Rep. 86 (i888); Bissell v. Price, 16 111. 408 (1855); Seller v. The Pacific, i Oregon, 409 (1861); s. c. Deady, 19. It was held in The Martha, Olcott, 140(1845), that this presumption was not rebutted by proof that the iron in question, which was stained, was well stowed ; that the ship came in tight and dry, and that the iron was taken on board in dry weather, and had not been exposed to water. So in Arend v. Liverpool S. S. Co., 6 Lans. (N. Y.) 457 ; s. c. 64 Barb. 118 (1872), where the claim was for loss of wine shipped in a cask, it was held that this presumption was not rebutted by proof that the voy- age was tempestuous, the cargo well stowed, and the hatches properly secured. 2 Richards v. Doe, 100 Mass. 524 (1868). ' Bond V. Frost, 8 La. Ann. 297 (1853). 19 290 THE MODERN LAW OF CARRIERS. evidence was considered, and the court examined the va- rious facts and circumstances which went to show that the master stowed cargo, which he knew to be peculiarly liable to injury, in a place near the deck, where it was more ex- posed to such injury, and held that this rendered the car- rier liable for an injury apparently resulting from that cause, which was discovered when the goods arrived.^ The admission under consideration, so far as it relates to the external cover, refers only to its apparent good con- dition and not to its intrinsic soundness and sufficiency.^ And even if the goods were visibly in bad condition when delivered to the carrier, yet if he receipt for them as being in good order and well conditioned, he cannot recover his freight from consignees who had made advances upon the faith of the statement in the bill of lading.^ It was said in the same case that the language of the clause under consideration extended only to the external and apparent condition of the goods, and did not refer to or warrant the internal quality or condition of the contents of the pack- age.* The weight of authority, however, is against the propo- sition that the admission in question, if not qualified, re- lates only to the external appearance of the goods. The cases just cited in support of this proposition, which were 1 Montgomery v. The " Abby Pratt," 6 La. Ann. 410 (1851). ^ The Olbers, 3 Bened. 148 (1869). In both cases cited by the learned court, the bills of lading contained the qualification *' Weight and contents unknown." See post, p. 291. It is possible that these words may have been contained in the bill of lading in The Olbers, but the report does not so state. ^Bradstreet v. Heran, 2 Blatch. 116 (1849). Nelson, J., begins his opinion by saying : " It is admitted." The proposition stated in the text was certainly therefore not argued before him. " To the same effect are the following cases : Keith v- Amende, i Bush (Ky.), 455 (1866); West v. Steamboat ''Berlin," 3 Iowa, 532 (1856); Gauche v. Storer, 14 La. Ann. 411 (1859); Cf. Nelson v. Ste- phenson, 5 Duer (N. Y.), 538 (185 1); Goudy v. Lyon, 9 B. Monr. (Ky.) 112 (1848). RECEIVED IN GOOD ORDER. 29 1 determined in the Federal Courts, must be considered as overruled by tbe Supreme Court/ The clause '' Value and contents unknown," and simi- lar clauses were undoubtedly introduced into bills of lad- ing to protect the carrier from the presumption referred to, and it is certainly going a great way to maintain that when the carrier receipts for the goods in good order, without any clause of limitation, he can claim that all this means is that the box was in good order. SECTION II. LIMITATIONS RELATING TO QUANTITY, CHARACTER OR QUALITY. When the words " Value and contents unknown," or their equivalent, are added to a bill of lading, they qualify the language with which it usually begins : " Re- ceived in good order and well conditioned ; " and shift the burden of proof as to the condition of the contents when shipped. The admission implied from the two clauses construed together refers to the condition of the package or wrapper itself, and not to that of its contents. Thus, for example, in a case where a box of dry goods was found on arrival at its destination to be only partly filled, it was held that no admission that the box was full when received by the carrier could be inferred from a bill of lading containing both these clauses, there being no defect observable in the external condition of the box.^ In other words, the ad- 1 The Ship Howard v. Wissman, 18 How. (U. S) 231 (1855). The Court say: " The owner having been committed to the prima facie facts of soundness and good condition by his contract of affreightment, it was properly imposed on him by the District Court to establish the contrary by due proof." See ante, p. 253, n. i. " The "California," 2 Sawyer, 12 (1871). In this case the words used were " in apparent good order." Matthiessen & W. S. Ref. Co. v. 292 THE MODERN LAW OF CARRIERS. mission by the carrier is limited to that which can be ascertained from looking at or handling the package con- taining the goods, and does not extend to the quantity, character or quality of the contents.^ Gusi, 29 Fed. Rep. 794 (1887); St. Louis, Iron Mountain & S. R. Co. v. Knight, 122 U. S. 79 (1886). In this case the bills of lading acknowl- edged the receipt of cotton bales " marked and numbered as in margin," ** contents unknown." The carrier tendered to the consignee, who had in good faith advanced money on the bills, bales so marked but not cor- responding to the quality called for by the marks. Held that this was a good tender. In Seller v. The Pacific, i Oregon, 409; Deady, 17 (1861), however, the court gave effect to the words " in good order " in a bill of lading, and refused to modify them by the clause " not responsible for the con- tents " in the same bill, on the ground that it would be a contract that the person who in that case received the bill had no authority to make. ^ Clark V. Barnwell, 12 How. U. S. Rep. 272 (1851); Eaton v. Neu- mark, ^^ Fed. Rep. 891 (1888); Abbott v. National S. S. Co., Ibid, 895 (1888); The Columbo, 3 Blatch. 521 (1856). These two authorities also hold that in such cases the burden is on the shipper to show that the contents were in good condition when delivered to the carrier. The "Adriatic," 16 Blatch. 424 (1879). In the latter case a bill of lading for Coir Yarn in bales, receipted for them as " in good order and well conditioned," and described them as " in transit " from another steamer. They were apparently in good external order. When the bales were landed in New York, one hundred were found to have been wet at some time with sea water. On cutting the wrappers the yarn was found to be damp to the touch, but not enough to drip, and was to some extent discolored and unfit for the manufacture of fine goods, for which it had been intended. The bales were proved to have been properly stowed. No other part of the cargo was wet. There was no appearance of a leak, and the hatches were all in good order and well secured when the vessel arrived. There was no evidence as to the condition of the bales when shipped, other than that contained in the bill of lading. It was not shown how long they had been " in transit " when the shipment was made, nor from what place the original consignment was made, nor whether the bales had been specially exposed to sea water in the previ- ous voyage. Held, that the libellant could not recover because he had not shown that the goods were damaged while on board the steamer libeled. In Miller v. Hannibal & St. Jo. R. R., 90 N. Y. Rep. 430; s. c. 43 Am. Rep. 179 (1882); rev'g. 24 Hun, 607 (1881), the bill of lading described the contents as " 30 bbls. eggs;" but the clause "contents and value unknown " was added. On arriving at their destination the barrels were found full of sawdust. Held, that the carrier was not lia- ble unless it could be shown that the barrels contained eggs when shipped. The court say : " The sole question is whether the description of the articles in the bill of lading was a representation by the carrier VALUE AND CONTENTS UNKNOWN." 293 So where the language used was " contents and weight unknown," it was held that the statement in the margin of the bill of lading as to the weight of the goods was not conclusive in deciding as to the freight to be paid, but that this must be ascertained by their actual weight.^ Nor that the barrels contained eggs, because if this is the true construction of the instrument, the right of the plaintiffs to recover is unquestionable. But we are of opinion that this construction is inadmissible. Taking the whole instrument together, it imports only that the defendant had received thirty packages described as containing eggs, but the actual contents of which were unknown to defendant. The opposite view pro- ceeds upon the theory that there is an irreconcilable repugnancy between the written and printed parts of the instrument, or that the words ' con- tents unknown' relate simply to the kind of eggs in the packages. It is no doubt a principle of construction that in case of repugnancy be- tween written and printed clauses of an instrument, the written clauses will prevail over the printed. But this is a rule which is only resorted to from necessity, when the printed and written clauses cannot be recon- ciled. But it is the imperative duty of courts to give effect if possible to all the terms of an agreement. The construction is to be made upon a consideration of the whole instrument, and not upon one or more clauses detached from the others ; and this principle applies as well to instruments partly printed and partly written as to those wholly printed or wholly written. Where two clauses, apparently repugnant, may be re- conciled by any reasonable construction, as by regarding one as a quali- fication of the other, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent provisions. Applying these settled rules to the instrument in question, it is, we think, reasonably clear that the defendant did not make any representa- tion as to the contents of the packages. Its agent simply certified in effect that they were described as containing eggs, accompanying this with the statement that the contents were not in fact known. The plaintiffs in making the advances were chargeable with knowledge of the contents of the bill of lading and must be deemed to have relied upon the assurance of the shipper as to the contents of the packages. The claim that the words 'contents unknown' referred simply to the kind of eggs, is manifestly untenable." But it has been held that the words "contents and gauge unknown," in a bill of lading receipting for " barrel of molasses," must be inter- preted as referring only to the quality and quantity of the molasses, not to the fact that it was molasses. Nelson v. Stephenson, 5 Duer, 538 {1856). Where a succeeding carrier has receipted for the goods in good order, and there was positive evidence of negligence, held, it was prop- erly left to the jury whether the first carrier was liable. N. Y. Cent. & H. R. R. R. V. Eby, 12 Atl. Rep. (Penn.) 482 (1888). ' The " Andover," 3 Blatch. 303(1855). In this case Nelson, J., said : " The cotton in question was part of a cargo shipped at New Or- leans and consigned to the libellant at New York, he paying the freight. 294 THE MODERN LAW OF CARRIERS. in such a case is tlie ship or owner liable, althougli the amount actually delivered to the consignee is less than the amount specified in the margin as received by the car- rier.^ This clause is generally invoked by the carrier. It is, of course, equally available to the shipper. As, for exam- ple, it has been held that under a bill of lading containing the words " contents unknown," but describing the goods shipped as domestics, the shipper could show that one of the cases when shipped contained silk goods and not do- mestics, and could recover their full value in case of loss, provided the carrier was not misled by the description.^ The bill of lading contained the clause 'contents and weight unknown.' The freight was to be paid at a certain rate per pound, and in the mar- gin of the bill, the figures 29,782 were placed, apparently as the aggre- gate weight of the cotton. On the arrival of the cotton, the consignees of the ship claimed that the figures in the margin of the bill should gov- ern in determining the weight, while the libellant insisted that as the bill of lading said 'weight unknown,' the cotton should be weighed and freight paid accordingly. . . . There is nothing in the bill of lading indicating that the weight was agreed upon by the master and the ship- per, but the contrary. For, notwithstanding the memorandum in the margin as to the supposed or real weight of the cotton, the master, as is apparent, required the insertion at the foot of the bill, before he signed it, of the words 'contents and weight unknown,' thereby excluding any inference that the owner was to be bound by the memorandum. This memorandum is not even referred to in the body of the bill. . . • But, if otherwise, it could not vary the result. The bill of lading is a printed form filled up, and the words ' contents and weight unknown ' are added at the bottom with a pen, clearly indicating an intent on the part of the master not to be bound by any supposed ascertainment of the weight at the time by the shipper. Any other construction would be in disregard of the clear import of the instrument, and unjust to the master and his owner." 1 The Venner, 27 Fed. Rep. 523 (1885); The Stoga, 10 Benedict, 315 (1879); The Queen, 28 Fed. Rep. 755 (1886). In this case Brown, J., said that the burden of proving that the amount received was less than that stated in the margin remained on the carrier. But this hardly appears necessary to the decision. Shephard v. Naylor, 5 Gray (71 Mass.), 591 (1856). The same court gave a like construction to the words " more or less," added to the statement in the body of the bill of lading of the quantity of the goods received. Kelley v. Bowkcr, 1 1 Gray (77 Mass.), 428 (1858). ^ Fassett v. Ruark, 3 La, Ann. 694 (1848). "value and contents unknown." 295 The question in all these cases is really one of burden of proof, and this is often of great importance in the actual trial of causes where goods have been shipped at a distant port, and the obtaining of evidence in regard to the ship- ment is difficult or impossible.^ The presumption referred to is not artificial or arbi- trary, and will always give way to any inference naturally to be derived from the appearance of the goods or package in which they are contained upon their arrival at the port of destination. If, for example, the package is in good condition, and it may reasonably be inferred from its ap- pearance that the goods were properly packed and were in good order and fit for transportation when packed, it will be presumed as against the carrier that any injury to the contents took place during their transportation, not- withstanding the use in the bill of lading of the words "Weight, contents and value unknown."^ If the external covering of the goods is damaged when they are delivered, so as naturally to account for an injury to their contents, evidence of the condition of the goods at the time of shipment may be dispensed with.^ If the bill of lading contain the clause "quantity guaranteed," the carrier is liable to make good any deficiency between the quantity he delivers and that specified in the bill of lad- ing." Clauses in a bill of lading relating to the quantity or quality of the goods shipped are to be construed with ref- erence to the other clauses in the same instrument, and effect, if possible, must be given to them all.^ * Wentworth v. Realm, 16 La. Ann. 18 (1861). ^ English V. The Ocean Steam Navigation Co., 2 Blatch. 425 (1852); The "Adriatic," 16 Blatch. 424 (1879). 3 The "Columbo," 3 Blatch. 521 (1856). * Bissell V. Campbell, 54 N. Y. 353 (1873). * Price V. Hartshorn, 44 N. Y. 94 (1870). In this case the clause was : " Damage or deficiency in quantity, if any, to be deducted from 296 THE MODERN LAW OF CARRIERS. SECTION III. THE ACT OF GOD, PERILS OF THE SEAS, RIVERS, &C., AND OTHER CAUSES OF INJURY OCCURRING WITHOUT HUMAN INTERVENTION. Strict as was tlie carrier's common law liability it did not extend so far as to render him liable for certain losses occurring strictly without human intervention, and which he could not by the use of reasonable care have foreseen. The expression " Act of God " was used to describe the causes of such loss or damage, and is still retained in bills of lading to express that idea. There are other terms, such as Perils of the Seas, Lakes, Rivers, and navigation, and inevitable accident, frequently found in bills of lading and used to express various causes of loss or injury, from re- sponsibility for which the carrier is exempted, either by the operation of law or the express terms of the contract. In all such cases the rule is the same. The carrier is not liable for injuries or losses caused without human inter- vention, and which could not have been foreseen and guarded against by the use of reasonable skill and fore- sight.^ All of these terms are frequently used as synonymous charges by consignees." It was held that this did not qualify the clauses excepting liability for loss or injury by perils of the sea, so as to make the carrier responsible for injury by such perils to the extent of the freight. The same rule of construction is stated in Miller v. Hannibal & St. Jo. R. R., quoted at length, ante, p. 292, note i. ^ Chicago B. & Q. R. Co. v. Manning, 37 N. W. Rep. (Nebraska), 462 (1888). For example, a sudden and unexpected rise of a river is the "Act of God," and if with reasonable diligence baggage cannot be re- moved from a station in time to prevent its being wet, the carrier is ex- onerated. Strauss z'. Wabash, St. L. & P. R. R., 17 Fed. Rep. 209 (1883). The carrier is not bound to exercise extreme care and diligence to avert the consequences of such an accident as a land slide ; ordinary care and diligence are all that the law requires under such circumstances. Gleason v. Virginia Midland R. Co., 5 Mackey (D. C-), 356. So, also, loss by an unknown snag in the usual channel was termed an " Act of God." Smyrl z;. Niolan, 2 Bailey (S. C), 421 (1831). This might, per- haps, have been more properly termed a peril of navigation. ACT OF GOD. — PERILS OF THE SEA. 297 with the term " Act of God," and in some cases it has been expressly said that they were synonymous. But in others it is held that there are inevitable accidents which are not the " Act of God," ' and for which the carrier is responsible unless he has exempted himself by special contract in the bill of lading or otherwise. To a certain extent this difference is probably not a mere difference of terminology, and those tribunals which have intimated that there are inevitable accidents or perils of navigation other than those arising from the " Act of God," would probably not hold the carrier exonerated from liability for losses or injury originating from them unless he had expressly contracted for such exemption. For it is well settled that " the causes which will excuse the owners and master for the non-delivery of the cargo must be events falling within the meaning of one of the expressions, ' Act of God ' and public enemies ; or they must arise from some event expressly provided for in the charter party." ^ ' Fisk V. Chapman, 2 Georgia, 349 (1847); Ala. Gt. So. R. R. v. Little, 71 Ala. 611 (1882). In Ewart v. Street, 2 Bailey (S. C), 162 (1831), it was said the term "Act of God" seems to involve some notion of an accident from natural causes, such as storms, lightning, tempests, &c. In Packard v. Taylor, 35 Ark. 402 (1880), a distinction is made between " inevitable accident " and the " Act of God." In Fowler v. Davenport, 21 Tex. 626 (1858), it was held that " unavoidable accident " has substantially the same meaning as perils of the seas or the Act of God, and in Baxter z'. Leiand, i Abb. Adm. 348 (1848), " dangers of the seas," the " dangers of navigation," and the " perils of the seas," are considt-red to be equivalent terms. In VValpole v. Bridges, 5 Blackf. (Ind.) 222 (1839), it was held that Acts of God were not merely those arising from natural causes, but that the term included all inevitable accidents. In Plaisted v. Boston & K. St. Nav. Co., 27 Me. 132 (1847), it was expressly held that the term " perils of the seas" was not synonymous with the term " Act of God." In Central Line of Boats v. I>ow, 50 Geo. 509 (1873), it was held that an unavoidable accident was not the same as an Act of God, but that the latter term implied vis major. See post, p. 303, n. i. ^ 3 Kent Com. 216. Cresby v. Fitch, 12 Conn. 410 (1848); Wal- pole V. Bridges, 5 Blackf. (Ind.) 222 (1839); Jones v. Pitcher, 7 Ala. O. S. 175 (1833). In Crosby v. Fitch, it was also said that the use of the exception " perils of the seas," in a bill of lading, did not vary the car- 298 THE MODERN LAW OF CARRIERS. But ill general, it may be said that tlie ordinary risks commonly incident to the voyage are not excepted by the true meaning of these clauses. It is the duty of the car- rier to provide means which shall be adequate to overcome ordinary perils, and it is only against liability for unusual dangers that the carrier is guarded by these exceptions to his liability,^ and notwithstanding them the carrier is still bound by the obligations defined in Chapter IV. But when the danger cannot with reasonable care be foreseen, and by the exercise of the ordinary and usual means cannot be guarded against, the carrier himself, if free from negligence, is not liable for the consequences.^ rier's liability, but that the carrier was not liable for injury caused by peril of the sea, whether expressly excepted or not. ^ The Newark, i Blatch. 203 (1846); Tuckerman v. Stephens & Condit Trans. Co., 32 N. J. (Law), 320 (1867). A carrier is liable for injuries caused directly by a storm which would not have caused the injury if the vessel had been seaworthy. Packard v. Taylor, 35 Ark. 402; s. c. 37 Am. Rep. 37 (1880); The Howden, 5 Sawyer, C. C 389 (1879); Dupont V. Vann, 19 How. (U. S.) 168 (1856). ^ A sudden failing of the wind while a vessel is tacking near shore is a peril of the sea or an unavoidable accident, and for a loss so caused the carrier is not liable. Colt v. McMechen, 6 Johns. (N. Y.) 160 (1810). In Colt V. McMechen, Kent, Ch. J., intimated that if the point had been made below that the ship ought not to have been so near the shore, he might have dissented. Unknown shoals in the usual channel are perils of navigation. The Favorite, 2 Bissell, 502 (1871); Redpath v. Vaughn, 52 Barb. (N. Y.) 489 (1868); Boyce z'. Welch, 5 La. Ann. 623 (1880); Hibernia Insurance Co. V. St. Louis Co., 120 U. S- 166 (1887); Turny v. Wilson, 7 Yerg. (Tenn.) 340 (1835); Strouss v. Wabash, St. L. & P. R. Co., 17 Fed. Rep. 209 (1883); Smyrl ?'. Niolan, 2 Bailey (S. C), 421 (1831). And see The Portsmouth, 9 Wall. 682 (1869); Schloss v. Heriot, 14 C. B. (N. S.) 59 (1863); The Norway, 3 Moore P. C N. S. 245, 262 (1865); Bazin V. Richardson, 20 Law Rep. 129 ; s. c 5 Am. Law Reg. 459 (185 1). But if a vessel strike an obstruction which she might have discovered (as the masts of a sunken vessel which projected above the water), that is not an excepted peril, though they had been there but a short time. Merritt v. Earle, 29 N. Y. 115 (1864). In this case the ship which was run into had been sunk by a violent and sudden squall a day or two before. Held, this squall was not the proximate cause of the injury to the colliding vessel. See, also, Gordon v. Buchanan, 5 Yerg. (Tenn.) 71 (1833). A violent gale is a peril of the seas. Cochran v. The Cleo- patra, 17 La. Ann. 270 (1865); Medina v. Hanson, Id. 290 (1865). The freezing of fruit in the hold is an Act of God, no negligence being ACT OF GOD. — PERILS OF THE SEA. 299 If negligence, either of the carrier or his agents, has contributed to and is the immediate cause of the injury, the carrier is liable, although this negligence would not have caused the injury but for the Act of God, through tempest or otherwise.^ shown. The Alesia, 35 Fed. Rep. 531 (1888). Compare, however, cases in sect. 8, note 3, post. Where the loss is caused by an earthquake and there is no evidence of negligence, the carrier is not liable. An earthquake is an Act of God. Slater v. So. Car. R. Co., 6 S. E. Rep. (S. C) 936 (1888). ^ Ewart V. Street, 2 Bailey (S. C), 157 (1831); The Portsmouth, 9 Wall. 682 (1869); Schloss V. Heriot, 14 C. B. (N. S.) 59 (1863); Bazin V. Richardson, 20 Law Rep. 129; reported j'//^^ ;z^pt, 25 Fed. Rep. 320 (1885). In Rowland v. Miln, 2 Hilt. (N. Y.) i56'(i858), it was held that if the goods were wrongfully taken and warehoused by the collector, the carrier was not thereby excused for not delivering them to the consignee, but must seek his remedy in an action against the collector. 2 For example, in Moore v. Michigan Cent. R. R. 3 Mich. 23 (1853), it was held that a clause in the bill of lading binding the carrier to de- liver flour " on board " at Detroit, rendered the carrier liable for loss by fire while the goods were in his warehouse at Detroit waiting the actual delivery on board the vessel. So the reservation in the bill of lading of the privilege of re-ship- ping does not limit the liability of the carrier to transfer or cause the goods to be transported to the specified place of destination. The only effect of such a clause is to allow the carrier to transport the goods in a INSURANCE. 337 SECTION IX. INSURANCE. Of late years clauses have been inserted in bills of lading, in reference to policies of insurance. They have been in two forms : 1. That if loss or injury to the goods should occur and be paid for by the carrier, he should have the benefit of any insurance effected by the shipper. 2. That the carrier should not be liable for any loss against which the shipper might protect himself by insur- ance. vessel other than that specified in the bill of lading. Little v. Semple, 8 Mo. 99 (1843); McGregor v. Kilgore, 6 Ohio, 361 (1834); Whitesides V. Russell, 8 Wats. & Sargent (Penn.), 44 (1844). So in Cain v. Garfield, i Lowell, 483 (1870), it was held that a re- cital in the bill of lading that the vessel was bound to a certain wharf in Charleston, followed by an agreement to deliver the goods safely " at the aforesaid port of Charleston," obliged the carrier to deliver the goods at that particular wharf, and that the liability of the carrier continued until the goods were there delivered. A clause in the bill of lading which provided that the goods were shipped for " Valparaiso and a market," was held in Gaither v. Myrick, 9 Maryland, 118 (1856), to authorize the shipper to carry the goods to any place he might think desirable for a market, beyond the port of Val- paraiso. An inland bill of lading which described the goods, which in that case were a package of money, as addressed to the cashier of the Artisans' Bank, was held not necessarily to involve personal delivery to the cashier, but the liability of the carrier was held to he terminated by the delivery of the money to the clerk or receiving teller of the bank while he stood behind its counter in the discharge of his duties as teller. Hotchkiss V. Artisans' Bank, 2 Abb. Ct. App. Dec. (N. Y.) 403 (1866). Where there is no express privilege of re-shipment, the ship is bound to go to the place named if she can go safely. She cannot go to a neighboring port and send the goods on by lighter. The burden is on the carrier to show that the ship cannot safely go to the place named Shaw V. Gordon, 78 Mass. 488 (1858). But a ship which has put into port in distress and is likely to be long delayed, is liable if she refuse to deliver goods to the owner on de- mand at that port. The Martha, 35 Fed. Rep. 313 (1888) ; and see Jacobs V. Tutt, t,2, Fed. Rep. 589 (1888). Where the carrier has issued an assignable bill of lading his duty is to deliver only to the holder of the bill. Penn. R. Co. v. Stern, 119 Pe'nn. 24 (1888); North v. Merch. & M. Trans. Co., 146 Mass. (1888); Weyandz;. Atchinson, T. & S. F. R. Co., 39 N. W. Rep. (Iowa), 899 (1888); North Penn. R. Co. v. Com- mercial Nat. Bk. of Chicago, 123 U. S. 727 (1887). 22 338 THE MODERN LAW OF CARPvlERS. It is very probable tbat in equity in tbe absence of tbe clause firstly mentioned, an Insurance Company which should, in case of loss, pay to the shipper the amount in- sured upon his goods, would be subrogated to his claim against the carrier.^ In like manner it has been held that an insurance company, upon paying the value of a house set on fire by sparks from an engine, is entitled to be subrogated to the claim of the owner against the railroad company for the in- jury to the house.^ This right of subrogation, independ- ently of contract, is not, however, an absolute one. The parties effecting the insurance may occupy such a rela- tion to those for whose benefit it is effected, that the in- surers of the cargo will not be entitled to be subrogated to a right of action against the carrier. If it appear that the insurance upon the cargo is effected for the benefit of the carrier, and the premium is paid by him, the insurer of the cargo who pays a loss upon it, will have no right of subrogation against the carrier.^ But wherever the right of subrogation in favor of the ^ Comegys z^. Vassar, I Peters, 193(1828); Hall z'. The Railroad Co., 13 Wall. 371 (1871); Mobile &M. R. Co. v. Jurey, iii U. S. 584(1883); Gales V. Hailman, 11 Penn. St. 515 (1849) ; Clark e/. Wilson, 103 Mass. 219 (1869); Rockingham Mutual Ins. Co. z'. Bosher, 39 Maine, 253 (1855); Peoria Ins. Co. v. Frost, 37 111. 333 (1865); Cole v. Malcolm, 66 N. Y. 366 (1876); Mason v. Gainsbury, 3 Doug. 61 (1782); Law Ass. Co. V. Oakley, 84 Law Times (Q. B. Div.), 280 (i888). From these cases and those cited in them it will be seen that the principle stated in the text is a very general one, and applies not only to carriers but to all cases where an insurer pays a loss. He thereby becomes entitled to what- ever indemnity the assured had. Upon the argument that a carrier, being also an insurer, has an equal right with the underwriters, the Court, in Hall V. The Railroad Co., said that a carrier was not an insurer. This dictum does not quite agree with those of other authorities, but it is certain that a tarrier has not all the rights of an insurer. Whether or not a carrier is an insurer to his freighters he has not, in the absence of contract to that effect, the right of subrogation as regards other in- surers. ' Conn. Fire Ins. Co. v. Erie R. Co., 73 N. Y. Rep. 399 (1S7S). 3 The Sidney, 23 Fed. Rep. 88 (1885). INSURANCE. 339 insurer and against the carrier exists, the shipper cannot defeat it, by assigning the policy of insurance to the car- rier, upon payment of the loss by the latter. In such case the insurer is entitled to have the amount paid by the car- rier deducted from the claim against himself^ It was to relieve the carrier from the consequences of the liability to the insurance company imposed upon him by the decisions already cited, that the clause under con- sideration was inserted in bills of lading. It is reasonable and valid, and prevents a rocovery by the insurer against the carrier, even though the loss be caused by the negli- gence of the carrier's servants.^ Such a clause is not ren- dered invalid by a statute prohibiting the carrier from limit- ing his liability.^ The effect of this stipulation obviously is to deprive the insurer of his right of subrogation by a contract to which he is not a party. But to this there is no valid ob- jection. The doctrine of subrogation always assumes that the party entitled thereto succeeds to the rights of another, and to no greater rights. The insurer is subrogated to the rights of the shipper, neither more nor less. But the insurer may himself guard against this loss by giving notice to persons dealing with him that if the bills of lading which they accept deprive the insurer of subroga- tion to the claim against the carrier, a higher rate of pre^ * Atlantic Ins. Co. v. Storrow, 5 Paige (N. Y.), 285 (1835). 2 Rintoul V. N. Y. Central & H. R. R. R., 21 Blatch. 439; s. c 17 Fed. Rep. 905 (1883). In this case the language of the bill of lading was that the carrier should " have the full benefit of any insurance that may- have been effected upon or on account of said goods." , Phenix Ins. Co. V. Erie Trans. Co., 117 U. S. 325 (1885); aff'g s. c 10 Biss. 18 (1879); Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 177 (1859); Piatt v. Rich- mond, Y. R. &C. R. R., 108 N. Y. 358 (1888). Compare, also. Van Natta V. Mutual Security Ins. Co., 2 Sand. (N. Y. Superior Ct.) 496 (1849). In .this case the carrier himself was the insured, and was allowed to re- cover. ' British & For. M. Ins. Co. v. Gulf, C & S. F. R. Co., 63 Texas, 475 (1885). 340 THE MODERN LAW OF CARRIERS. mium will be charged. In sucli case it becomes the duty of the insured to disclose to the insurer the nature of the bill of lading which is delivered and accepted. If the shipper fail, under such circumstances, to disclose this to the insurer, he cannot recover.^ But in the absence of fraud or concealment, or any special facts making it the duty of the shipper to disclose the terms of his bill of lading, he is not bound to make such disclosure.^ The clause under consideration does not, however, com- pel the shipper to exhaust his remedy against the insur- ance company. He has a choice of remedies, and may sue either the carrier or the insurer. If the carrier pay the loss, he becomes subrogated to the rights of the insured under the policy. But the failure of the insured to sue the in- surer is not a defense available to the carrier.^ From this and the cases previously cited in this section, it is mani- fest that the remedy of the shipper against the insurer is not the primary remedy. This is illustrated by a case in which the shipper, either inadvertently or for the purpose of securing better rates, contracted with the carrier, and also with the insurer, that each should have the benefit of his claim against the other. A loss happened and the shipper sued the insurer. It was held that the shipper had, by his contract with the carrier, disabled himself from giving to the insurer the stipulated benefit of his right of action against the carrier, and that therefore the insurer was not liable.^ * Tate V. Hvslop, 15 Q. B. Div. 368 (1885). "^ Jackson Co v. Boylston Ins. Co., 139 Mass. 508 (1885). In this and the case last cited the policies were open policies, and the notice of shipment and request that the risk should be entered on the policy were given after the contract of affreightment was made. But some of the special facts out of which the duty of disclosure was held in the English case to arise, did not exist in the Massachusetts case. 3 Inman V. South Carolina R. Co., 129 U. S. 128 (1889). If the. shipper has insurance available to the carrier, the benefit of which he wrongfully refuse to allow to the latter, the carrier may set this refusal up as a counter claim in an action by the shipper. s. c * Carstairs z'. Mechanics' & Traders' Ins. Co., 18 Fed. Rep. 473 INSURANCE. 341 The second stipulation before mentioned, in reference to insurance, is also reasonable and valid. But like all other clauses this stipulation should be construed accord- ing to the ordinary meaning of its terms, and applies, not to such unusual insurance as might be obtained by special agreement, but to the ordinary marine policy.^ And it is not clearly settled whether, in those Courts which refuse to admit the validity of an agreement to exempt the carrier from liability for the negligence of his servants, this clause would be enforced in the case of loss caused by such neg- ligence. It has been held that it would not be enforced, in a case where the loss was caused by defective construc- tion.* The clause in question does not apply to the case of a loss of property by theft.^ (1883). The Court in this case advert to the fact that the policy was effected before the goods were shipped. ^ The Titania, 19 Fed. Rep. loi (1883). In this case a bill of lading made in England, for transportation in an English ship to New York, provided, " The shipowner is not to be liable for any dam- age to any goods which is capable of being covered by insurance." Held that this was valid, but must be construed to refer to insurance " which might be obtained in the usual course of business from the or- dinary insurance companies, either in the usual form, or in the custo- mary course of business upon special application." It was held that in- jury from breaking loose of a spare propeller was not within this ex- emption, if it arose from negligence in securing the propeller, as this made the vessel unseaworthy. 2 The Hadji, 20 Fed. Rep. 875 (1884); aff'g s. c 16 Fed. Rep. 861 (1882). The Circuit Court cite the case stated ante, p. 339, in which it was held that the stipulation was valid, which gives to the carrier the benefit of the insurance effected by the shipper. But the Court add : ■^'It is quite another thing to permit a carrier to compel the shipper, as a condition for the transportation of his goods, to enter into an independent contract with a third party for the carrier's benefit, in order that the latter may escape loss arising from his own conduct. . . The only effect that can be given to the stipulation here is by construing it as exempting the claimants from liability for any damage that the shipper could insure against, not arising from the carrier's own negligence." There is a dictum to the same effect in Rintoul v. New York Central R. R., 2T Blatch. 439; s. c. 17 Fed. Rep. 905 (1883). 3 Taylor v. Liverpool & G. W. S. S. Co., L. R. 9 Qu. B. 546 (1874). 342 THE MODERN LAW OF CARRIERS. There is occasionally inserted in bills of lading a clause that the carrier shall insure the goods for the bene- fit of the shipper during some period of the carrier's pos- session. In such case the carrier, if it has failed to insure, is liable for a loss by fire, although the bill of lading con- tained another clause, exempting the carrier from liability for loss by "fire at sea or in port." ^ SECTION X. RESHIPMENT. The clause often inserted in bills of lading, giving to the carrier the privilege of reshipment, is not to be ex- tended beyond the fair meaning of its terms. It does not entail the duty of reshipment, and the carrier is not lia- ble if he fail to reship the goods, in case of delay not at- tributable to his fault, as, for example, low water in a river.^ On the other hand if he avail himself of the privi- lege reserved, and does reship the goods, his original lia- bility is in no wise affected, and continues until he has safely delivered them at the port of destination.^ And if the clause gives him the privilege of reshipping at a particular place, he can reship only there, and will be liable if he should reship anywhere else, although the goods were lost in a storm for which the carrier would not otherwise have been responsible.* ^ The Louisiana, 37 Fed. Rep. 264 (1889). ^ Sturgess v. The Columbus, 23 Mo. 230 (1856); Broadwell v. But- ler, I Newb. Adm. 171 (1854); aff'd 6 McLean, 296 (1854). But see Hatchet v. The Compromise, 12 La. Ann. 783 (1857), holding the con- trary. ^ Carr z'. The Michigan, 27 Mo. 196(1858). This case holds also that it is merely a privilege of reshipment, not of stowing on another boat. Dunseth v. Wade, 3 111. 285 (1840). In the latter case the clause read: " With privilege of reshipping on any good boat." It was held that the carrier, if he reshipped, must show that he placed the goods on a " good boat." Little v. Semple, 8 Mo. 99 (1843); McGregor 7-. Kilgore, 6 Ohio, 361 (1834); Whiteside 7^ Russell, 8 Watts. & S. (Penn.) 44 (1844). * Cassilay v. Young, 4 Ben. Monr. (Ky.) 265 (1844). This case also PRODUCE EXCHANGE BILL OF LADING. 343 SECTION XI. PRODUCE EXCHANGE BILL OF LADING. Judges and statesmen, lawyers and men of business have alike lamented the evil of the lack of uniformity in the decision of questions, relating to commerce between states and nations, to which attention has been so often drawn in the pages of this book. The Legislature of our leading commercial State has made an attempt to remedy them. It has created a corporation now known as the New York Produce Exchange, the purposes of which are, i7iter alia^ " to inculcate just and equitable principles in trade ; to establish and maintain uniformity in commercial usages, to adjust controversies and misunderstandings between persons engaged in business.^ The New York Produce Exchange has made an im- portant attempt to perform the duties thus devolved upon it. It felt that this diversity in the decisions as to the rights of parties engaged intrade, was neither just nor equitable, and that the controversies and misunderstandings which had arisen in consequence between the carrier and the ship- per, ought to be adj usted. On the one side it recognized that the carrier ought not to be exempted from responsibility for the equipment and stowage of its vessel, and that it should not be allowed to devolve this responsibility upon any ship's husband or manager. It recognized, on the other hand, that when the carrier has done all in its power to provide a proper and seaworthy vessel, manned by competent officers and crew, and has stowed her cargo on board with a due regard to the risks of the voyage, it ought not to be liable for the consequences of the care- holds that this clause will not justify waiting indefinitely for another boat. ^ Laws of the State of New York, 1862, Chap. 359, sec. 3; Laws 1868, Chap. 30, sec. i; Laws of 1882, Chap. 36, sec. 2. 344 THE MODERN LAW OF CARRIERS. lessness of the persons entrusted with the navigation of the vessel, over whom during the voyage, in the nature of things, no supervision can be exercised. In 1886 the Pro- duce Exchange appointed a committee, representing the carriers, the shippers, and the Average adjusters (who are really umpires between the two), and this committee, after full consideration of the subject, entered into corres- pondence with the Liverpool Ship-owners' Association. The representatives of both bodies adopted as a basis of t!ieir negotiations a form of bill of lading which had been recommended by the International Association for the reform and codification of the law of Nations, and dis- cussed it article by article, until a form satisfactory to all parties had been agreed upon. The carriers agreed to strike out of the bill of lading which theretofore had been issued by them, the clauses which exempted them from re- sponsibility for the sea-worthiness of the ship and for her proper stowage. These clauses were claimed to be valid in the English Courts and the Courts of the State of New York, and in giving them up the carrier gave up rights which were certainly important and valuable. On the other hand the shippers, fully represented as they were on the committee appointed by the Exchange, acknowl- edged the justice of the claim by the carrier, that it should not be responsible for the negligence of the master and mariners, to which it was in no way privy, and volunta- rily agreed to accept a bill of lading containing a clause of exemption from liability for such negligence. The form of bill of lading thus agreed upon has been adopted by Commercial Exchanges in various parts of America. In the conduct of this long negotiation the Produce Ex- change was discharging the duties devolved upon it by law. It was to all intents and purposes a local legisla- ture, and while its action certainly is not binding upon parties making contracts outside the limits of the State, PRODUCE EXCHANGE BILL OF LADING. 345 yet it seems equally clear that it is binding upon those making contracts within the State of New York, until Congress shall intervene and take action in the premises. The right of a Legislature to devolve upon a commis- sion or officer of the Government powers of a quasi-legisla- tive character, is now too well settled to admit of dispute. Congress, for example, has conferred upon the Secretary of the Treasury the right to make rules and regulations in reference to the whole subject of the importation of foreign goods, and the payment of duties thereon, and has authorized other officers to prescribe rules respecting mat- ters within their jurisdiction, and these regulations have been frequently enforced by the Courts, and held to have the force of statutes.^ The great number of general statutes for the creation of corporations; that have been passed in all the States, is perhaps the most notable instance of the rule thus stated. The granting of charters was, in this country at least, within the power of the legislature alone. But legisla- tures everywhere have found it expedient to delegate this power, either to commissions, under whose authority cor- ^ " This Court has too repeatedly said that they have the force of law to make it proper to discuss that point anew." Gratiot v. United States, 4 How. 80 (1846); Ex-parte Reed, 100 U. S. 13 (1879); United States v. Barrows, i Abb. U. S. 351 (1869). The rules of Court " are made under special statutory authority, and when made have the force and effect of statutes." Matter of Moore, 108 N. Y. 280 (i888). The Commissioners of Pilots, who were officers appointed by the Chamber of Commerce, adopted rules, pursuant to an authority conferred by statute, and these were held to be valid and binding. Sturges V. Spofford, 45 N. Y. 446 (1871); Cisco v. Roberts, 36 N. Y. 292 (1867). The whole body of Civil Service legislation rests upon the right of the legislature to authorize an executive officer to prescribe rules, determining the manner in which persons shall be admitted into the service of the State. The validity of this legislation was ex- pressly adjudged by the Supreme Court of Massachusetts, 138 Mass. 601 (1885), and has been frequently recognized in other cases. People v. Civil Service Boards, 103 N. Y. 657 (1886); aff'g s. c. 41 Hun, 287 (1886); People V. Common Council, 16 Abb. N. C 96 (1884). 346 THE MODERN LAW OF CARRIERS. porations come into being, as in tlie case of the rapid transit legislation of the State of New York ; or directly to individuals who, under certain regulations declared by the statute, create a corporation by filing certain papers in the prescribed office. It would seem to follow that the action of the Produce Bxchage, in adopting the form of bill of lading in question, had the force and effect of a Statute of the State of New York, and that all contracts made in that form within the State of New York are valid. The Federal Courts have never held that a contract is against public policy which is made under the circumstan- ces just stated. They have held that a unilateral agree- ment, imposed by the carrier, with no freedom of choice on the part of the shipper, is against public policy. But no case has yet decided that such an agreement, entered into intelligently, after full discussion and for an adequate consideration, is against public policy or invalid.^ The Courts have not failed to recognize that freedom of contract is at the basis of the commercial prosperity of both England and America. They constantly declare that they do not make contracts for parties, but their * The reason which the Supreme Court gives for refusing to enforce the clause in question is thus stated in Railroad Company v. Lockwood, 17 Wall. 357 (1873), At p. 379 the Court say : " The carrier and his customer do not stand on a footing of equality. The latter is only one individual in a million. He cannot afford to higgle or stand out and seek redress in the Courts. His business will not admit of such a course. He prefers rather to accept any bill of lading, or sign any paper the carrier presents, often indeed without knowing what the one or the other contains." This language is repeated in The Montana, 129 U. S. 441 (1889). In the case stated in the text we see an entirely different state of affairs. The carrier's customers have themselves become a corporation. They are clothed by the legislature with power to stand out, and in the lan- guage of the Court " to higgle." They object to certain clauses which the carrier concedes. They agree to other clauses which they admit to be fair and just. The whole reasoning of the Supreme Court is ina])- plicable to this condition of things. PRODUCE EXCHANGE BILL OF LADING. 347 function is to enforce those which the parties themselves have made. It would therefore seem that the rule " Cessante ra- tione^ cessat et ipsa /^x," ^ should apply to the questions which may hereafter arise as to the validity of this agree- ment, which has come to be known as the Produce Ex- change Bill of Lading. In the history of this negotiation between the carriers and the shippers, we seem to be reading a chapter in Maine's Ancient Law. It was on the lines stated by him that the whole commercial law grew, and was gradually framed for the convenience of the mercantile community. When this law was thus forming it was common to re- ceive evidence, either of witnesses or from the admissions of counsel, as to the usages of merchants and the course of trade, and judgment was given accordingly.^ The power to receive such aid is still vested in the Courts. It is the chief merit of the common law that it is flexible, and adapts itself to varying conditions of socie- ty.« This distinguishing characteristic is expressed in the maxim already quoted. Of its applications there are many illustrations.* ^ Broom, Legal Maxims, 159. ^ Miller ?;. Race, i Burr. 452 (1758); Sedgwick on Construction of Statutes, pp. 3, 4. ^ I Kent Comm. 472. * It was well expressed by Lord Tenterden in Stone v. Marsh, 6 Barn. & Cress. 551 (1827): "The rule is founded on a principle of public policy, and where the public policy ceases to operate, the rule shall cease also." The same maxim was applied to the rule that purchase pendente lite shall not change the rights of the parties, in Parks z;. Jackson, 11 Wend. 442 (1833) ; and to the rule excluding evidence of the opinions of wit- nesses, in DeWitt v. Barley, 9 N. Y. 371 (1853); and to the rule of equitable conversion, in McCarthy v. Terry, 7 Lansing, 236 (1872), A remarkable instance of the recognition by the Supreme Court of the change in the policy of the law which may be effected by local statutes is to be found in Nichols v. Eaton, 91 U. S. 716, 726 (1875). 348 THE MODERN LAW OF CARRIERS. The questions considered in this section have arisen in one case only, and in that the Court declined to pass upon them/ The commercial community have generally acquiesced in the justice of the compromise embodied in the Produce Exchange Bill of Lading. But if litiga- tion should arise respecting instruments in that form, the Court before which it comes will naturally consider what is meant by the expression in the opinion of the Supreme Court in '' The Montana :" '' against the policy of the law." The Court certainly did not mean the statute law. It meant unwritten law, as expounded by the Courts. This unwritten law is always subject to change by the Legislature, and has in many instances been changed. The old English statute of uses changed what had been up to that time the unwritten law relating to the effect of particular words in a conveyance. Recent statutes in various States have changed the unwritten law as declared by the Courts, which rejected the testimony of interested witnesses, and have finally admitted the testimony even of parties to the record. No one can dispute that Congress could lawfully pass an act, declaring that all the clauses in the bill of lading in question should be valid. But Congress has taken no action in the premises. In the ab- sence of any action by Congress, it would seem clear that the Legislature of the State of New York has the power to enact that such a bill of lading should be valid if made within that State.'^ In that case it was held that the policy of the English law as to the right to set apart property for the use of another, free from the claims of his creditors, had been changed by the general tenor of the statutes of various States of the Union, limiting the common law rights of cred- itors, and would no longer be enforced by American Courts of Equi- ty- ^ The Britannic, 39 Fed. Rep. 395 (1889). This case was compro- mised, after the decision in the District Court. ^ In Shelby v. Guy, 11 Wheat. 361 (1826), the Supreme Court say : " That the statute law of the States must furnish the rule of de- PRODUCE EXCHANGE BILL OF LADING. 349 It is true the Supreme Court has refused to recognize as authority the decisions of the Courts of the State of New York on this subject, but that is on the ground that these Courts did not correctly declare the unwritten mer- cantile law. The U. S. Supreme Court has always ad- mitted the authority of State statutes relating to transac- tions between merchants. For example, State statutes relating to the negotiability of commercial paper, and to the days of grace, and other like statutes relating to commer- cial contracts, have frequently been recognized and en- forced in the Federal Courts.^ It is of course impossible to predict whether the adop- tion of this clause under the circumstances stated, will be treated by American Courts either, (i) As an agreement for a valuable consideration to waive any defense that the clause in question is against the policy of the United States of America ; or (2) Such a reference to the English law as will induce the Court to decide the questions aris- ing under it by the law of England, and not by the law of America. It is, however, a fact worthy of notice that the validity of the clause has been generally acquiesced in by shippers. A curious illustration of this is to be found in the report of the Committee of the Liverpool Sailing Ship Owners' Mutual Indemnity Association for the year ending February 20th, 1888. This states as follows : cision to this Court, as far as they comport with the Constitution of the United States, in all cases arising within the respective States, is a po- sition that no one doubts." 1 Shaw V. Railroad Co., loi U. S. 557 (1879), (Bill of Lading). Scudder v. Union Nat'l Bank, 91 U. S. 406, (Bill of Exchange). Wills V. Claflin, 92 U. S. 135 (1875), (Promissory Note). In Peik v. Chicago & N. W. R. Co., 94 U. S. 164 (1876), the Supreme Court sustained the validity of, and enforced a statute of Wisconsin, relating to charges for railway transportation from places within that State to places with- out it. In Cooley v. Port Wardens of Philadelphia, 12 How. U. S. 299 (1851), a statute of Pennsylvania imposing half pilotage fees upon ves- sels sailing to or from Philadelphia, was held to be constitutional, sub- ject to the power of Congress to supersede it. 350 THE MODERN LAW OF CARRIERS. " The Committee are happy to be able to report that there are not any claims pending for loss of or damage to cargo, caused by improper navigation. This circumstance is no doubt due to the almost universal insertion of the negligence clause in contracts of affreightment." The Ship Owners have certainly carried out in good faith the agreement on their part not to claim exemption for losses occasioned by their own neglect or fault. They have formed in England several associations for the mutual insurance of vessels by their owners, against cer- tain claims not covered by ordinary policies of insurance. But the insurance of these associations does not extend to loss occasioned by the actual fault or privity of the mem- ber suffering the loss. It will probably be found that the various commercial Exchanges which have adopted the form of bill of lading already referred to and which will be found in the note at the end of this chapter ^ have statutory powers similar to * New York Produce Exchange Steamship Bill of Lading. Received in apparent good order and condition, by from , to be trans- ported by the good steamshhip now lying at the port of and bound for , with liberty to call at being marked and num- bered as per margin (weight, quality, contents and value unknown), and to be delivered in like good order and condition at the port of unto , or to his or their assigns, he or they paying freight on the said goods on delivery at the rate of and charges as per margin. General average payable according to York-Antwerp rules. It is mutually agreed that the ship shall have liberty to sail without pilots ; to tow and assist vessels in distress ; to deviate for the purpose of saving life or property ; to convey goods in lighters to and from the ship at the risk of the owners of the goods but at ship's expense ; and in case the ship shall put into a port of refuge for repairs, to trans- mit the goods to their destination by any other steamship. It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by the perils of the sea, or other waters, by fire from any cause on land or on water, by barratry of the master or crew, by enemies, pirates or robbers, by arrest and restraint of princes, rulers or people, by explosion, bursting of boilers, breakage of shafts, or any latent defect in hull or machinery, by collisions, stranding, or other ac- cidents of navigation (even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners or other servants of PRODUCE EXCHANGE BILL OF LADING. 35 1 those wliicli have beeu conferred upon the New York Produce Exchange and that the considerations as to the action of the ship owner, not resulting, however, in any case, from want of due diligence by the owners of the ship or any of them, or by the ship's husband or manager) ; nor for decay, putrefaction, rust, sweat, change of character, drainage, leakage, breakage, or any loss or damage arising from the nature of the goods or the insufificiency of packages ; nor for land damages; nor for the obliteration or absence of marks or numbers; nor for any loss or damage caused by the prolongation of the voy- age. 1. It is also mutually agreed that the carrier shall not be liable for gold, silver, bullion, specie, documents, jewelry, pictures, embroideries, works of art, silks, furs, china, porcelain, watches, clocks, or for goods of any description which are above the value of $500 per package, un- less bills of lading are signed therefor, with the value therein expressed and a special agreement is made. 2. Also, that shippers shall be liable for any loss or damage to ship or cargo caused by inflammable, explosive or dangerous goods, shipped without full disclosure of their nature, whether such shipper be princi- pal or agent ; and such goods may be thrown overboard or destroyed at any time without compensation. 3. Also, that the carrier shall have a lien on the goods for all fines or damages which the ship or cargo may incur or suffer by reason of the incorrect or insufficient marking of packages or description of their con- tents. 4. Also, that in case the ship shall be prevented from reaching her destination by quarantine, the carrier may discharge the goods into any depot or lazaretto, and such discharge shall be deemed a final de- livery under this contract, and all the expenses thereby incurred on the goods shall be a lien thereon. 5. Also, that if the goods be not taken by the consignee within such time as is provided by the regulations of the port of discharge, they may be stored by the carrier at the expense and risk of their owners. 6. Also, that full freight is payable on damaged goods ; but no freight is due on any increase in bulk or weight caused by the absorp- tion of water during the voyage. 7. Also, that if on the sale of the goods at destination for freight and charges, the proceeds fail to cover said freight and charges, the carrier shall be entitled to recover the difference from the shipper. 8. Also, that in the event of claims for short delivery when the ship reaches her destination, the price shall be the market price at the port of destination on the day of the ship's entry at the custom house, less all charges saved. And finally, in accepting this bill of lading, the shipper, owner and consignee of the goods agree to be bound by all of its stipulations, excep- tions and conditions, whether written or printed, as fully as if they were all signed by such shipper, owner or consignee. In witness whereof, the master or agent of the said sliiphas affirmed 352 THE MODERN LAW OF CARRIERS. that body already stated apply to them also. In any case it is believed that the Courts will be reluctant to decide that an agreement which all representative commercial bodies unite in, is against commercial policy. to three bills of lading, all of this tenor and date, drawn as "first," " second " and " third," one of which being accomplished, the others to stand void. Dated in , this day of i88 . INDEX. ABANDONED VOYAGE. effect on contract of exemption, 93. duty of carrier, 309. ABANDONMENT OF INTEREST in ship and freight, 56, 70. not barred by abandonment to underwriters, 72. ABROGATION OF LIABILITY. assent of shipper necessary to, 115. assent of shipper to bill of lading may be presumed, 222, 227, et seq. contract necessary for, 114. distinction between and limitation of amount, 119. notice of not sufficient, 221. See Bill of Lading; Leased Line; Limitation by Contract; Limitation by Statute of Ship- owner's Liability; Negligence Connecting Carrier; Notice; Rules and Regulations. ACCEPTING GOODS. makes carrier liable for them, 93, 105, iii. for leased line, iii. reasons for not, waived by acceptance, 237. ACT OF 185 1, limiting liability of mariner. See Statute. ACT OF CARRIER. error in giving wrong ticket, 165, et seq. omission to afford facilities for compliance with its rules, 220. cannot abrogate its liability, 221. when negligence of carrier contributes to loss from excepted risk, 235, 299, et seq. ACT OF GOD. definition, 296, 298. when synonomous with perils of seas, &c., 297, 303. loss by deviation necessitated by defective equipment is not, 305- unusual natural phenomena a question of degree, 307. unusual weather, 300. 23 354 INDEX. ACT OF OWNER. duty of disclosure contents package, 206, et seq. fraudulent concealment contents package, 210, et seq. may affect liability, 215. owner's right to expect reasonable diligence, 215. acting under direction of carrier, 215. his presence without control over cargo, 215. knowing defective equipment before shipping, 216. knowing defects he should insist on remedy, 216. or agent in course of employment, 217. act of consignee considered as, 217. contributing to loss, 218. smuggling, 219. See Act of Shipper; Illegal Voyage. ACT OF RECEIVER OR ASSIGNEE, 112. ACT OF SHIPPER. contributory negligence, 103, 112. fraudulent concealment contents package, 210, et seq. mis?tatement as to contents package, 212. error in direction of goods, 213. negligence must be contributory to exempt carrier, 214. See Act of Owner. ADMIRALTY. jurisdiction on lakes, 6. in United States, i, 6. to administer Act of 185 1, 7. when proceedings in advisable, 51, 53. ADMISSIONS IN RECEIPT. See Evidence. ADVANCE FREIGHT and passage money, 60. AGENTS OF CARRIER. power of. See Conduct Ticket Agent; Employee. ALL RAIL. meaning of, 236. AMOUNT OF LIABILITY. limitations as to, 114. "ARTICLE" IN BILL OF LADING. meaning of, 121. ASSENT OF SHIPPER TO LIMITATION. when presumed, 222, 225. when question fact for jury, 223. when necessary, 225, et seq., 233, how proved, 225, et seq. INDEX. 355 ASSENT OF SHIPPER TO LIMITATION— continued. circumstantial evidence as to, 225. express receipts, 225, 264 n. shipper presumed to read receipt, 228, 229. signature to receipt not necessary, 229. presumed from previous dealings, 229, 230. when not presumed from usage, 240. special contract prepared by him, 252. when acceptance of receipt constitutes, 231. ASSIGNEE IN BANKRUPTCY OF CARRIER. carrier not liable for, 112. ASSIGNEE OF BILL OF LADING. See Bill of Lading. ASSIGNMENT OF PASSENGER TICKET. See Ticket. ATTACHMENT. seizure under ; when defence to carrier, 316, ef seq. AUTHORITY OF AGENT. See Conflict of Laws; Conductor; Ticket Agent. AUTHORITY OF MASTER. See Conflict of Laws. AUTHORITY OF SHIPPING AGENT. after shipment, 274 n. i, 275 ;/. i. to make terms for shipping, 274, 275. to limit liability, 274, 275. to make limitations binding on owner; rule in Illinois, 274, 275- when objections to his act are to be made, 275. drayman, 275, 276. carrier's agent acting for shipper, 275 n. 2. drover, 276. when agent of both carrier and shipper, 276. as to connecting lines. See Connecting Carriers. BAGGAGE. under the statute, limiting shipowner's liability, 24, 49. liability for, 107. of free passenger, 107. consideration for carriage, no. rules respecting custody, 161. not placed in custody of carrier, 162. lien on for fare, 177. carrying merchandise as such, 177. merchandise as, carrier may charge extra rates, 210. 35^ INDEX. B A G G A G E — continued. merchandise as, carrier may refuse, 210. if received knowingly, carrier responsible, 213. See Value, Disclosure of. BAGGAGE CAR. See Cars Classified. BAGGAGE CHECK. effect of as evidence, 231. notice printed on, 264. BARGES, CANAL BOAT, &c., 38, 41. See Statute. BARRATRY. definition of, 322. whether clause excepting is valid, 320. See Master and Mariner. BILL OF LADING. definition of, 288. nature of, 273. is a contract, when, 222. shipper bound to read, 222, 223. when it controls printed agreement, 224. affected by previous contract, 224, 270, 272, et seq. assent of shipper to, 225. admissions in, 266, et seq., 290. quasi- negotiable, 272, 273. acceptance of makes binding, 273. when contradicted by parol, 266, 267. printed clauses controlled by written, 278, 293 n. to what extent cannot be contradicted in hands of assignee for value, 290. notes in the margin, 293, 294. as adopted by Produce Exchange, 343. See Common Exceptions; Master and Mariners; Evidence; Limitation by Contract; Re- ceived IN Good Order. BILLS OF LADING, DOMESTIC. See Express Receipts. BOILER. explosion of, 310. BREAKAGE. loss from, 327 ?i. 3, 330. BUOY SHIFTED, 302. BURDEN OF PROOF. as to usual weather, 261. INDEX. 357 BURDEN OF VKOOY— continued. as to a paper received by shipper being known to be contract, 225. of special contract is on carrier, 251. rebutting proof of special contract, 251. fraud and duress of carrier in special contract, 251. negligence and loss. prima facie proof of carrier's liability, 251. rebutting proof of liability, 251 «. carrier must account for loss and injury, 252, 258 n. loss within the exception, 252, 254. proof of loss changing burden, 252, 258 «., 327. between connecting carriers, 253 «., 254 n. presumption as to negligence, 255. ■ presumption as to negligence when loss proved to be with- in excepted peril, 255, 256, et seq., 327. presumption when goods in owner's custody, 254 «. when package returned by connecting carrier, 254 n. negligence concurring with exempted peril, 255. when peril clearly excepted, 255. that loss inevitable, 255. when amount of liability limited, 256 fi. concurrent negligence and excepted peril, 257 «. if contract requires shipper to prove negligence, 256. excepted peril proved, 255, ei seq. negligence not presumed, 259, et seq. sickness of live stock, 260. violence of weather, circumstantial evidence, 258, et seq. presumption, grounding on a dark night, 260. presumption unusual occurrence, 260 n. 4. presumption particular circumstance, 258, et seq. that negligence did not contribute to loss, 262. delay contributing to loss, 263. presumption marine and land disaster, 261, 262 n. 2. received in good order, 291 n. i. presumption— that contents as well as package in good order, 291. shifted by words, value and contents unknown, 291, et seq. when contents said to be "more or less," 294 n. i. CANAL BOATS. See Barges. CAPTAIN. See Master and Mariners. 358 INDEX. CARRIER. common law liability, i. is an insurer, i. whether bound to transport live stock, &c., 105. obligation of not dependent on contract, 106, 108. liability for goods carried by express companies, 11 1. liability for goods on leased line, iii. right of to exclude persons hostile in business, 157. negligence of carrier's employees, 82. when carrier considered an employee or agent of another, 89, 277, 278 n. 2. liability likened to that of innkeeper, 162. of special class of freight, 248. See Act of Carrier; Abrogation of Liability; Conflict of Laws; Carrier by Sea; Deliv- ery; Duty of Carrier; Live Stock; Manner OF Presenting Claims; Notice; Rules and Regulations ; Value, Disclosure of. CARRIER BY SEA. European limitations of his liability, 3. history of limitation of liability, 3. limited liability in Holland, 5. limited liability in England, 5, 7. limitation of liability prior to statute, 12. limitation of liability applies to contracts as well as torts, 20. CARS CLASSIFIED. riding on freight trains, 138. women's car, 151, 157 n. women's car; man entering without objection, 151. male passengers not having seats may occupy ladies' car, 151. right to equal accommodation, 152. no right to ride on freight train, 153. no right to ride on mail or baggage car, 154. conductor may modify rules as to, 157. passenger must follow change in directions as to, 160. for different classes of stock and freight, 162. CAUSA CAUSANS. See Efficient Cause and Proximate Cause. CAUSA PROXIMA. See Efficient Cause and Proximate Cause. CAUSE. See Efficient Cause and Proximate Cause. CHARTERER OF R. R. CAR, 105, 112. CHARTER PARTY. when controls bill of lading, 266 n. i. INDEX. 359 CLASSIFIED CARS. See Cars Classified. COAL DUST. when a peril of the sea, 306 n. 4. C. O. D., 120. COLLECTOR. carrier acting as, 233. COLLISION. statute as to rule of road, 10. when both boats to blame; limitation by statute in such case, 43- claim of injured vessel, whether need be surrendered under the statute, 45. when negligence of passenger not a bar to action, 158. when peril of sea, 301, 304 n. 2. when excepted in bill of lading, 301. not an act of God even if without negligence, 301. when proximate cause loss, 306. COLORED PERSONS. rights of in passenger cars, 152. COMMERCE. protection to, 2. COMMERCIAL LAW. of United States, 200, et seq. See Conflict of Laws; Maritime Law. COMMISSIONS TO CLERK AND MARSHAL, 74. COMMON EXCEPTIONS. against intrinsic defects, 326. do not cover negligence, 327. sweating, 327, 329. weather, 327 n. 2. breakage or drainage, 330. leakage, 328. leakage average or ordinary, 327 n. 3, 330. stowage, duty as to, 328. stowage, usage as to, 245, 329. sinking, 330. rust, 330. See, also, Fire, Barratry, Master and Mariners, and other special headings; Limitation by Con- tract. COMMON LAW. flexible and adaptable, 347. jurisdiction in cases involving limitation liability, 51, 53. 360 INDEX. COMMUTERS AND COMMUTATION TICKETS, 142, 150, 173, 174. 177- COMPETING LINES. connections with, 131. agents of, 157. CONCEALMENT. contents package, 210, et seq. CONCURRENT NEGLIGENCE. See Act of Carrier ; Act of Owner ; Act of Shipper; Delivery; Negligence. CONDUCTOR. authority of, agreement to stop at unused station, 159 ;/. 2. may dispense with rules in particular cases, 157. CONFLICT OF LAWS. States composing United States for some purposes foreign to each other, 182. different rulings in English. Federal and State courts, 181, 200, et seq. law place of contract, 183, 189 n. contract valid where made and to be performed valid every- where, 183. law place performance, 185. illegal contract, 186. contract made in one place to be performed in another, what law governs, 185. rate of interest according to either place allowed, 187. presumption valid contract intended, 196. when intention of parties governs, 187. construction of contract determined by law of place where made, 187. law of flag, 188, et seq., 203, 204. law of place of making contract, when held to prevail over law of flag, 189, 196 n. maritime lien, 189 n., 190 n. law of the forum, 193. contract to be performed in several places— law of each place regulates performance in that place, 183, 192, 195, et seq. torts, 194. comity of courts, 195. enforcement of foreign law, 195. evidence as to law in contemplation of parties, 198, et seq., 349- presumption as to same subject, 184, 186, 187, 197. INDEX. 361 CONFLICT OF Y.hSN'^— continued. enforcement of State statutes in Federal courts, 199. construction State statutes by State courts, followed by Fed- eral courts, and vice versa, 199. when Federal courts and courts of sister States refuse to fol- low decisions of State courts upon unwritten law, 200, et seq. commercial law of United States, 200, et seq. commercial law of England, 203. CONNECTING CARRIERS. when entitled to limitation liability, 35, 36. rules of, 131. commercial law as to, 201. first carrier, when liable only as forwarder, 223. delivery to, 245, 254. first carrier, when liable as carrier, 271 «. authority of first line to contract with next, 276, et seq. exemption of first in bill of lading when extended to second and following carriers, 277, 278. exemption extended to second carrier, when no through con- tract, 277, 278. first carrier shipping agent, 277, 280. liability several, 278. notice of terms of second carrier given to first, 279. contract between, 279. through freight, 280, 281. through contract, 280, 281. receipt of second carrier, when shipper bound by, 280. when last carrier agent of first, 278 n. 2, 282 n. first carrier liable for others, when, 281 n. i, 284. through bill of lading, last carrier protected by, though only liable on his own line, 280, 281. delivery to second carrier, 282, et seq. liability of second carrier to first for injuries, delay in receiv- ing, 282 n. I. when second carrier delays or neglects to receive, 283 n. i. when first carrier may warehouse goods, 283 n. 2, 284 n. i. reasonable time to deliver to second carrier, 283 ;/. i. receipt of goods marked beyond line, presumption from, 284 n. 2. obligations to carry beyond route, 284. carrier, when bound to carry beyond terminus, 285, 286. 362 INDEX. CONNECTING CARRIERS, -con/im/ecf. last carrier, who is, 286 n. responsibility of, 286 n. passenger, authority first carrier as to, 286. contracts between, 286. when carrier selected to receive goods is, 287. See Delivery, Forwarder; Usage. CONNECTING LINES. See Connecting Carriers. CONSIDERATION. affecting liability, 106. for returning bags free, no. affects question of validity of special contracts, no. for limitation of liability, 112, 223. " for change in contract, 272. CONSIGNOR. See Acts of Owner. CONSOLATO DEL MARE, 5 CONSTITUTIONALITY of statutes limiting liability, 8. 51. of rules of court limiting liability, 69. CONSTRUCTION OF CONTRACTS. to be construed as a whole, 238, 293 «., 295. negligence must be expressed, 120, 234. against carrier, 238, 318 n. 4. of admissions in bill of lading, 290. when construed as absolute and binding, irrespective of ordi- nary exceptions, 303 «. i, 313. favorably to shipper, 318 n. 4. particular contracts, 288, et seq. against fire, 324. "dangers" same as "unavoidable accident," 325. against negligence, 233, et seq. "article," 121, 122. "invoice value," 122. See Conflict of Laws; Insurance. CONSTRUCTION OF STATUTES. See Statutes. CONTENTS UNKNOWN. See Value and Contents Unknown. CONTINENTAL LAW. followed by United States in maritime matters, 11. as to contracts of exemption for consequences negligence, 97. CONTINUOUS TRIP. passenger on steamer may go ashore, 147. "good for this trip only," 147. coupon tickets, 147, 148. INDEX. 363 CONTINUOUS T'SaV— continued. passenger traveling on single-trip ticket cannot stop over, 145, 146, 148. passenger may change trains if the one he is on does not stop at station, 160. statute of Maine respecting, 149. See Ticket. CONTRACTS. See Carrier; Construction of Contracts; Limi- tation BY Contract ; Notice. CONTRIBUTORY NEGLIGENCE, of passenger, 158, 206, et seq. of shipper, 103, 112, 208, et seq. of carrier, 235, 262, 299. when damage will be apportioned between two causes, 302. when it combines with excepted peril to produce loss, 235, 299> 3i4> 318, 324, 327, et seq. See Act of Carrier; Act of Owner; Act of Shipper; Delivery; Negligence. CORPORATIONS. right to contract out of their own State, 16, 182. extra territorial contracts of, 182. foreign carrier, contracts of, 182. incorporation of, under general statutes, 345. in limited liability proceedings, 67. COSTS. CREW. liability of, not limited by statute, even if part owner, 37. CUSTOM. See Usage. DAMAGES. apportionment between two causes of injury, 302. measure of. See Conflict of Laws. DANGERS. See Perils. DECAY OF CARGO. liability for, 104. DECK CARGO, 299 n. i. DEFECTIVE EQUIPMENT. damage from. 25, 31, 50, 80, 343. known to shipper, 216, 217. 364 INDEX. DEFECTIVE EQUIFUENT— continued. position Produce Exchange respecting, 343. See Limitation by Statute of Ship Owner's Lia- bility. DEFECTS. See Intrinsic Defects ; Received in Good Order. DELAYS. in carrying live stock, 102, 103. must not be unreasonable, 215. combining with excepted peril, 237 n. 2, 238 n. 2. in transporting after delivery to carrier, 238. usage as to, in forwarding, 245. when excusable exonerates carrier, 305. caused by low water, 308 n. 3. loss during, 309. not ground for abandoning voyage, 309. caused by strikes, mobs, etc., 314, 315. DELIVERY. negligence of consignee, 217. manner of, should be according to usage of place of delivery, 241, 244. usage of carrier, 244. not complete while waiting turn to discharge, 244. rule at common law, 330. rule in Massachusetts, 331 «. i. from tackles of steamer, 333. carrier's liability after notice of arrival of goods and readiness to deliver, 334. when ready to discharge, 334. notice of arrival, ^^3^ 334. receiving from ship's side, ;^;^;^. reasonable opportunity to remove, 332 n. 2., 334. to wrong person, 334. in business hours, 334 ». 5. contracts against giving notice of arrival of goods, 334. place of, 335. to customs officer, 335. must be according to bill of lading, 336. at port, 337 n. to bank, 337 n. at intermediate port, 337 n. to assignee bill of lading, 337 «. See Connecting Carrier and Usage. INDEX. 365 DESERTION. not a peril of sea, 302. DETAINING passenger to collect fare, 176. DEVIATION OF CARRIER. how it affects contract of limitation, 92, et seq., 236, 342. " all rail " construed, 236. DILIGENCE. proof of, 257. carrier bound to take precaution against perils of the sea, 298, 306, 307. against violence, 314, 318. to extricate passengers or cargo from disaster, 307. See Burden of Proof. DIRECTION. owner assuming, 215, if/ seq. owner assuming, has right to expect diligence by carrier, 215. DISCLOSURE. of character of goods, 206, et seq. of baggage as merchandise, 210. DISCLOSURE OF VALUE. See Value, Disclosure of. DISORDERLY PERSONS. duty of carrier as to, 154. DOMESTIC BILLS OF LADING. See Express Receipt. DRAINAGE. loss from, 330. DRAWING room cars, 151, 164. DROVER. authority to bind the owner, 276. DROVER'S PASS, 88, 107, 265, 266. DUTY OF CARRIER. carrying live stock, 98, et seq. fragile goods, 105. to receive and carry goods within its ordinary business, 105, 106. as to colored persons, 151, 152. as to disorderly and intoxicated persons, 154, 155. to furnish suitable accommodation to passenger on train, 155, 161. not required to carry persons injuring its own business, 157. to carry in reasonable time, 215. 366 INDEX. DUTY OF CARRIER— conii'mted. to guard against ordinary risks, 298, 300, 307. to save passengers and cargo after disaster, 307. when voyage interrupted, 309. to save life before property, 311. stowage, 245, 249, 328, 330. EARTHQUAKE, 299. EFFICIENT CAUSE, 300, 304, ef se^. EJECTION of passenger, 170, ef se^. for refusing to show ticket, 141. when fare must be returned, 156. whether must be at station, 171, 172. • whether passenger who has made special contract has right to resist eviction in violation of it, 164, e^ seq. for violation of carrier's regulations, 170. whether at station, 171. at reasonable time and place, 173. with violence, 172. refusal to pay fare by person in charge, 173. damages when erroneous but in good faith, 173. while train moving, 173. commuter, 174, 176. his right to explanation, 174. right to re-enter cars, 174, et seq. payment of fare on re-entering cars, 176. regard must be had for his health and condition, 176. EJECTION OF TRESPASSER. reasonable regard must be had for his safety, 173. ELECTION OF REMEDIES. shipper against carrier or insurer, 340. EMPLOYEE OF CARRIER. contracts exemption for negligence of. See Negligence of Carrier. EMPLOYEE OF SHIPPER. not acting in course of employment, 217. ENGLISH SHIP. included within U. S. Limited Liability Act of 185 1, 18. ENGLISH STATUTORY LIMITATION. of liability of carriers by sea, 7. different from U. S., 18. ENROLLED and licensed vessels. U. S. Statute limiting liability applies to, 42. INDEX. 367 EQUIPMENT. See Limitation by Statute of Shipowner's Liability; Privity; Negligence of Carrier. EQUITY jurisdiction in cases limitation liability, 53. ERROR OF CARRIER. See Act of Carrier. ERROR OF JUDGMENT. is not negligence, 256, 310. ERROR OF OWNER. See Act of Owner. ERROR OF SHIPPER. See Act of Shipper. EUROPEAN LAW limiting liability of carrier by sea adopted in the U. S., 2, 7. EVIDENCE. rules of, in Federal Courts, 64. value other vessels, 64. foreign law, 198, et seq. law in contemplation parties, 198, et seq. preparation of contract by shipper, proof of his assent, 251, 252. ticket is evidence of contract, 230, 231, 265. ticket not conclusive evidence, 265. baggage check is. 264. as to making contract of limitation, 24:. as to loss being caused by excepted peril, 254. admissions in bill of lading or receipt not conclusive, 266, 2S9. " said to contain" on receipt evidence of value, 267. presumption of through contract from marks on goods, 284 n. 2. to rebut presumption of negligence from bill of lading, 289. circumstantial, 241, 259, et seq., 292 n. 1. appearance of package, 260 n., 289, 295. contradicting admission in bill of lading, 292 n. i. See Assent of Shipper ; Burden of Proof ; Parol Evidence ; Presumption ; Received in Good Order. EXCURSION TICKETS, 144, 148, 164, 169, 174. EXPLOSION OF BOILER, 310. EXPRESS COMPANIES. negligence as between them and railroad, 89, 90. ;68 INDEX. EXPRESS RECEIPT. when presumed a contract, 225. when not a contract, 227. analogy to marine bills of lading, 227. furnished by shipper, 230. FARE. FIRE. liability carrier to gratuitous passenger, 106. carrier's liability to drovers and mail clerks, 107, 108. returning bags free, no «. 2. agreement to pay, implied, 106 n. 2, 112.^^ - must be reasonable, 136. (;/t^L-(^-/<--^ / ^ 4^ return of if carrier refuses to carry, 156. _ -? reduction in, consideration for limitation, 106 n. 2 (p. 108), 223. action for regulated by different rules from actions for dama- ges, 311 n. I. statute exempting ship-owner from loss by, 22. when may be pleaded as a defense, 23. remedy of ship-owner in admiralty, 23, 28. does not apply to goods on wharf, 24. does not apply to trucks or horses on vessel, 24. baggage of passengers, 24. " merchandise," 24. ship-owner's duty in general average, 26. stipulation against, does not cover negligence, 235. burden of proof in case of, 256, 259 n. not a peril of sea, 302. carrier liable for loss by, 302, 324. caused by negligence, 324. contract against, given limited construction, 325. custom affecting liability for, 326. See Statute. 204. FLAG. law of the, 1S8, et seq., 20- FLOODS. Inland navigation. 303 n. i, 308 «. i, 309. when an act of God, 309. FOREIGN LAW. how proved that contract is made with reference to, 198, 199. INDEX. 369 FOREIGN SHIPS. Act of 1 85 1, and U. S. Rev. Stat, applies to, 16. FORESIGHT. See Diligence. FORFEITURE OF TICKET. when not transferable, 150. commuter refusing to show ticket, 177. See Ticket. FORWARDER. when bill of lading will control as to whether carrier is, 224. See Connecting Carrier. FRAGILE ARTICLES, 105, 121. See Intrinsic Defects. FRAUD. in personating owner of non-transferable ticket, 150. See Value, Disclosure of; and Concealment. FREE CARRIAGE. of money, 248. FREE PASS, 87, 88, 106, et seq. newsman, 106 n. 2 (p. 108). See Ticket; Drover's Pass. FREE PASSENGER. See Free Pass. FREIGHT. regulations as to transportation, 162. FREIGHT CARS. See Cars Classified. FREIGHT-MONEY. reduced, as consideration for exemption shipper must have knowledge of exemption, 231. pro rata, 309 n. 4. unearned not recoverable, 310. action for, different from action for damages, 311 n. i. carrier cannot recover when goods not delivered to consignee, though not liable for loss, 326. See Fare. FROST, injury from, 309. GAMBLERS. right to exclude from cars, 156. GENERAL NOTICE. See Notice. 34 370 INDEX. GOOD ORDER. See Burden of Proof; Received in Good Order. GOVERNMENT intervention, 312, 313. See Vis major. GRATUITOUS PASSENGER. See Drover's Pass; Free Pass. GROSS NEGLIGENCE. See Live Stock ; Negligence. GUARANTY of Quantity, by carrier, 295. HIGH SEAS. territorial status of vessel on, 190, et seq.^ 204. HOLLAND. limited liability of ship-owner in, 5 ICE. injury from, 309. ILLEGAL CONTRACTS, 185. ILLEGAL VOYAGE. carrier not liable, 218. Sunday, 219. IMMORAL PURPOSE. right to exclude person entering cars for, 156. INEVITABLE ACCIDENT, 303. See Act of God. INJUNCTION. in limited liability proceedings, 52, 68. INLAND NAVIGATION. See Statute. INSURANCE. whether stipulation should include, 60. by carrier, 224, 339 n. 2. construction policy, in cases theft, robbery and piracy, 318. if carrier entitled to, when insured must disclose to insurer, 339' 340- form of clauses in bill of lading, 337. carrier may contract for benefit of insurance, 339. when not, 338. carrier's right to does not compel shipper to sue on policy, 340- INDEX. 371 INSURANCE— confined. shippers' primary remedy is against carrier when carrier con- tracts for benefit of insurance, 340. underwriter subrogated to rights of shipper, 338. when underwriter's rights cannot be defeated, 339. subrogation of underwriter, theory of rule and limitation, 339- special contracts, 340, ef seq. contract that carrier shall not be liable for insurable risk, 341, et seq. contract by carrier to insure, 342. See Fire. INSURER. carrier is, i. who pays loss has no greater right than insured, 47. right of carrier as insurer to know value of freight and bag- gage. See Value, Disclosure of. INSURRECTION. See Vis major. INTENTION. of person breaking rules, 150. INTEREST. on value of ship when included in stipulation, 70. when agreement may be made for legal rate in either of two jurisdictions, 187. INTOXICATED PERSONS. duty of carrier as to, 154. INTRINSIC defects of cargo. perishable goods, carrier's liability, 97, et seq. live stock, 98. perishable, to be forwarded without delay, 104. carrier to take notice of, 104. fragile articles, 104, 275 «. 2. See Common Exceptions. INVOICE VALUE. See Value. JETTISON. when loss from excepted, 299. JETTISONED CARGO. freight on, 310. 372 INDEX. JEWELRY, 47, 121. JUDGMENT. error in not negligerce, 256, 310, 311. LADIES' CAR. See Cars Classified. LAKES AND RIVERS. damage on, what is, 303. LAND, part of carriage on. See Statute Limiting Liability of Ship-owner. LATENT DEFECTS. See Received in Good Order. LAW. See Statute; Limitation by Statute, and Limi- tation BY Statute of Ship-owner's Liabil- ity. LAW MERCHANT. general in U. S., 13, et seq. how proved, 14, 15, 347. origin and growth of, 347. LAW of the Flag, 188, et seq., 203, 204. LEAKAGE. when carrier is liable for, 328. when excepted, 310, 326 See Common Exceptions. LEASED LINE. liability on, in LEGISLATURE. delegation of power to make rules, 345. LIABILITY OF CARRIER. See Assignee in Bankruptcy of Carrier; Car- rier; Connecting Carrier; Delivery; Duty OF Carrier ; Leased Line ; Limitation by Contract; Limitation by Statute of Ship- owner's Liability ; Receiver of Carrier. LIBEL. See Limitation by Statute of Ship-owner's Liability. LIEN. for repairs and supplies to vessel, 11. on baggage, 177. INDEX. 373 LIFE. should be saved before property, 311. LIGHTERS. See Barges. LIMITATION OF LIABILITY. See Abrogation of Liability; Carrier; Car- rier BY Sea; Conflict of Laws; Connecting Carrier; Delivery; Free Pass; Leased Line; Limitation by Contract; Limitation by Statute; Limitation by Statute of Ship- owner's Liability; Live Stock; Manner of Presenting Claims; Notice; Rules and Regulations; Statute; Ticket; Value. LIMITATION BY CONTRACT. liability as affected by Act of 185 1, 20. in general, 75 . mode of transportation fixed by contract must be followed, 93. live stock, 97. might formerly be made by notice, not now, 75, 114. notice of generally held valid if assented to, 115. generally held valid as to amount, 115. in what jurisdictions limitations as to amount not valid in case of negligence, 117, et seq. invoice value, 118. if intended to cover negligence must be explicit, 120. prohibited contracts, 185. how it may be made, 220, et seq. affected by consideration, 224. reasonableness not a test, 232. what forms part of contract, 263, et seq. must (expressly or by implication) be made before or at ship- ment, 270, et seq. signature of bill of lading by shipper, 273. See Abrogation of Liability ; Bill of Lading ; Carrier; Connecting Carrier; Delivery; Evidence ; Leased Line ; Limitation by Statute ; Limitation by Statute of Ship- owner's Liability; Live Stock; Manner OF Presenting Claim; Negligence; Notice; Rules and Regulations; Statutes; Ticket; Time of Making Contract ; Time of Pre- senting Claim; and Value, Disclosure of. 374 INDEX. LIMITATION BY NOTICE. See Notice. LIMITATION BY STATUTE. statutes of States affecting right to contract against negli- gence, 90. statute prohibiting limitation of tickets as to time, 143. as to breaking journey, 149. as to amount liability, 193. State statutes in Federal Courts, 199. Utah statute as to burden of proof, 255 n. 2, 256. construction of statutes prohibiting limitation of liability, 339. LIMITATION BY STATUTE OF SHIP-OWNER'S LIABILITY. Ordonnance de la Marine, 3. French rule as to owner's negligence, 34. Consolato del Mare, 5 . English statute, 7. considered a municipal regulation, 11. extent of limitation under, 18. negligence in equipment, 34. U. S. Act of 1851, U. S. R. S. (§§ 4282-4289), 22, 51. admiralty has jurisdiction to administer, 7. constitutionality of, 8. adopts continental maritime law, 9, 15. interpreted by continental rather than English law, 8. applies to foreign vessels, 15, 18. application to foreign vessels good policy, not comity, 19. original Revised Statutes (§4282,^/^^^.) do not change Act of 1851, 21. to be liberally construed, 21, 22. U. S. Rev. Stat. (§ 4282), loss by fire, 22. may be pleaded as a defense, 23. remedy of ship-owner in admiralty, 23, 28. does not apply to goods on wharf, 24. does not apply to trucks and horses on ferry-boat, 24. baggage of passengers lost, 24. "merchandise," 25. meaning of "neglect of owner," 25. ship-owner's duty in general average, 26. U. S. Rev. Stat. (§ 4283) limits liability to value of vessel and freight, 26. applies to personal injuries, 26. does not apply to losses on land, 27, INDEX. 375 LIMITATION BY STATUTE, 'ETC— continued. injury to another vessel, 27. privity or knowledge of owner, 26, 28, 30, et seq. insufificient equipment, 31, et seq. acts of crew, 35. See Negligence. U. S. Rev. Stat. (§ 4286); charterer, when deemed owner, 35. connecting ship not chartered, 35. U. S. Rev. Stat. (§ 4287), liability of master or seaman, 37. remedies against crew preserved, 37. U. S. Rev. Stat. (§ 4289), to what vessels the limitation ap- plies, 38. barges, lighters, &c., 38. inland navigation, 39, 41. Act of 1884, as to part owner, 39. amendment of 1886, 41. separate losses on same voyage, 40. when part of carriage is on land, 42. losses on the last voyage only, 42. effect of bottomry bond on, 43. applies to vessel in wrecked condition, 43. cases of collision, 43. ship-owner need not surrender his cargo, 44. all questions may be tried in a common law court, 51. U. S. Rev. Stat. (§ 4281) limits liability for valuables, 47. carrier not liable for negligence under, 49. U. S. Rev. Stat. (§ 4493), liability of carrier for damages sus- tained by passenger or his baggage, 50. LIVE STOCK. whether carrier bound to carry, 98, 105. gross negligence in transporting, 99. carrier's liability for, 99. duty of carrier to feed and water, loi. special contracts for carrying, 102. construction of contracts as to, 102, 238. reduced freight on, 108 n. i. drovers' passes, 107, 108. See Intrinsic Defects of Cargo, and Negligence. LOSS OF TICKET, 139. LOW WATER. whether a peril of navigation, 308. delay and loss, 308, 309. as affecting right of reshipment, 342. 37^ inde:x. MAIL AGENTS, 107. MAIL CARS. carrier's right to exclude from, 154. MALA PER SE, 185. MALA PROHIBITA, 185. MANAGEMENT OF SHIP. definition of, 324. MANNER OF PRESENTING CLAIM. limitation lawful, 125. written notice, 126. at carrier's ofifice, 127. connecting lines, 127. with bill of lading attached, 127. MARINE TORTS. See Conflict of Laws. MARINERS. definition of, 323, et seq. See Master and Mariners. MARITIME LAW. to what extent adopted in U. S., 9 «. 13. MARITIME LIENS, 189, 190 n. MASTER AND MARINERS. liability of, not limited by U. S. statute, even if part owner, 37- authority of master, 188 ;/., 189, 190, 310. weight to be given to judgment of, 310. validity of contracts against negligence of, 319. negligence of, rule in Federal Courts, 319. torts of, contracts against, 320. torts of, rule not the same as to negligence, 320. barratry of, 320, 322. barratry common law rule, 322. definition of mariners, 323, et seq. any act of, includes theft, 324. "loss by robbers" does not include mariners, 318. See Barratry. MAXIMS. cessante ratione, cessat et ipsa lex, 347. ex turpi contractu non oritur actio, 195. in pari delicto potior est conditio defendentis^ 219. stare decisis, 199 n. 2. ut res niagis valeat quam pereat, 197. INDEX. 377 MEMORANDUM ARTICLES, policy of insurance, ii. MERCANTILE LAW. See Law Merchant. MERCHANDISE AS BAaOAGE. See Baggage. MILITARY AUTHORITIES. liability of carrier for loss when road under control of, in. MOBS. See Vis Major. MODE OF TRANSPORTATION. carrier's stipulation as to, must be kept, 92, et seg., 236, 342. MONEY, as baggage. See Value, Disclosure of. NAVIGATION. dangers of, definition, 308. obstructions to, 309. NEGLIGENCE OF CARRIER, what it consists in, failing to provide servant with safe machinery, 30. failing to equip as required by law, 25, 31, 50, 80, 103, 216, 324- failing to equip vessel, English rule, 34, 81. French rule, 34. when it occurs with his "privity or knowledge," 32, 81. contract against personal negligence void, 77. when negligence of agent of corporation is personal negligence of corporation, 78. when employees do not use means provided, 81. contract of master not to be liable to servant for negligence of fellow-servant, 85. distinction between negligence of carrier and of carrier's em- ployee, 83. contracts against negligence of employee. valid in England, 86. and on Continent, 97. invalid in Federal Courts, 82, 319. invalid in some States, 83, 85. valid in other States, 86. affected by consideration, 88, 106, et seq. gross and ordinary negligence, 91, no. 37^ INDEX. NEGLIGENCE OF CARRIER— continued. to sustain, carrier must perform his part, 92. validity affected by public policy, 95, validity of, maintained, 95. in drover's pass, 107. limitations as to amount, 114, et seq. must be express, 120, 234, 324, 334 n. 2. liability of express company for negligence of railroad, 89. when carrier is a receiver or assignee in bankruptcy, 112. defective equipment known to shipper, 216. construction contracts relating to negligence, 233, et seq. evidence as to loss, 254. evidence of injury from, 292 n. i, 295. in collision, 301. compared with error of judgment, 254, 310. must be diligence and skill to prevent loss, 257 «., 314. never presumed, 260, et seq. when inferred from circumstances, 260, 261, 295. after disaster, 307. a question of fact, 261, 329. in stowage. See Common Exceptions; Stowage. See Act of Carrier; Act of Owner; Act of Shipper; Burden of Proof ; Contributory Negligence; Efficient Cause ; Live Stock; Limitation by Contract; Limitation by Statute of Ship-owner's Liability; Master AND Mariner; Proximate Cause. NOTICE. to claimants, how given, 56. limitation of amount by. 75, 114. of value, what is sufficient, 120. when good limitation of time, 143. not to ride on platform, 155. of rules and regulations, when necessary, 177, et seq. what constitutes, 179. when must be given, of change in rules, 180. when becomes a contract, 231, 233. must be brought home to shipper, 231, 233. when not contract, 231, 263. public, posted in office, 232. to shipper of inability to transport, 257 «. 3. usage as evidence of assent to, 242, 243. INDEX. 379 NOTIC Y.— continued. when treated as part of contract, 263, et seq. printed on bill of lading or receipt, when part of contract, 263, et seq., 273 n. i. posted on steamboat, 264. on baggage check, 264. printed on passenger ticket, 264, 265, 272. incorporated in receipt, 264. shipper relying on, is bound by as a whole, 266. between connecting carriers, 279. See Delivery ; Limitation by Contract ; and Rules and Regulations. OBLIGATION OF CARRIER. See Duty; Chartered Car. ORDONNANCE JDE LA MARINE, 4. OWNER'S RISK, 234 «., 258 «., 280. PARLOR CARS, 151. See Ticket. PAROL EVIDENCE. to contradict time limit of ticket, 144. leave to stop over, 148. as to assent of shipper to limit action, 229. of contract of affreightment in absence of writing, 251. of usage to modify bill of lading, 239, 240. of usage. See Usage. to contradict receipt, 267, et seq. that value stated in receipt was too small, 267, to contradict contract in receipt or bill of lading, 267, 268. to explain bill of lading, 269. of modification or waiver, 267, 268. to vary legal implication from writing, 268. shipper's consent to manner of navigation, 267. collateral contract, 269. consideration for change in contract, 272. to contradict "received in good order," 288, 290. of circulars, advertisements, etc., to modify contract, 303. degree of certainty necessary to contradict receipt, 289. PART OWNERS OF SHIP. liability under statute, 37. under Act of 1884, 39. 380 INDEX. PASS. See Drover's Pass ; Free Passenger; Ticket. PASSENGERS. another traveling under non-transferrable pass cannot recover for injuries, 150. entitled to seat, 151, 159. right to equal accommodations, 152, 153. whom carrier may refuse to carry, 155, 157. remedy for violation special contract with carrier's agent, 164, et seq. to be saved before goods, 311. See Ejection of Passenger; Free Pass; Free Passenger. PERILS OF NAVIGATION. See Perils of Sea. PERILS OF SEA, &c. what are, 296, 298, et seq. when carrier liable for, 297, et seq. ordinary, carrier must guard against, 298, 307. rivers, 299, 304. leakage, 327, 328. coal dust, 306 n. 4. pirates, 317. when negligence of carrier contributes, 327. proof of loss by, 252, 254. See Act of God ; Contributory Negligence. PERISHABLE GOODS. See Intrinsic Defects of Cargo. PICTURES. statute as to, 48. PIRACY. liability owner for, 320 n. 3. PIRATES. not "public enemy,"' 317. insurance against loss through, 318. PLATFORM. riding on, 155. PLEADING. in admiralty proceedings to limit liability, 55, et seq. answer in admiralty, 66. defense under clause as to time of suit, ^27 n. 4. rules of carrier must be pleaded, 131. POLICY OF THE LAW, 95, 181. PRESUMPTION. as to law with reference to which contract made, 184, 186, 187, 197. INDKX. 381 FRESU MOTION— :onh'nued. '\ that valid contract intended, 196. See Burden of Proof. PRIVITY OF KNOWLEDGE. of owner, 26, 32, ei seq., 51. of shipper, 216. See Limitation by Statute of Ship-owner's Lia- bility; Negligence OF Carrier. PROCEDURE under U. S. Rev. St. §§ 4282-4289. when owner may plead statute without admiralty proceedings, 53- when must file libel, 53. where had. 53. regulated by rules of court, 54. when vessel totally lost, 54. what libel must contain, 55, ^^ seq. question of owner's liability may be determined in, 55. owner, denying all liability, should plead facts in detail, 56. is primarily in rem., 57. who entitled to notice of, 57. stipulation for value when should be offered, 59. advantage over surrender of wreck, 56. amount of, how determined, 57. who entitled to be heard as to amount, 57. notice of hearing served on attorney, 58. does not cover insurance on vessel, 60. whether it should include advance freight and pas- sage money, 60. at what time value taken, 7, 62. evidence as to value, 64. " freight " means net freighf, 64. filing commissioners report as to value and excep- tions, 65. monition to present claims, 65. hearing on the merits, 66. how objections to libel should be taken, dd. report of commissioner on claims, 67. who entitled to share in fund, 67. costs to successful claimants, 67. exception to report on claims, 68. injunction against actions at law desirable, 68. interest on value of ship, 70. surrender of ship or freight, when to be made, 70. 382 INDEX. VROCEDVRE—confinued. not necessary when all injured parties are before admiralty court in one cause, 71. if not begun before judgment for damages, latter is binding, 70. jurisdiction not ousted by excess of value over claims, 73. citizenship of trustee, 73. PROCESS LEGAL. when defense to carriers, 316, et seq. PRODUCE EXCHANGE. purposes of incorporation, 343. legal character of its action, 344, et seq. PRODUCE EXCHANGE Bill of Lading. history of negotiations that resulted in adoption of, 343, et seq, terms of, generally carried out in good faith, 349, et seq. form of, 350 «. I. PRO RATA freight, 309 n. 4. PROXIMA CAUSA. See Proximate Cause. PROXIMATE CAUSE. contributory negligence of consignee, 218. in general, 237, 300, et seq., 304. in insurance, 304, 305. proof that negligence is, 300, 301, 304, et seq. negligence concurring with public enemy, 314. burden of proof in case concurrent negligence. See Burden of Proof. PUBLIC ENEMIES. Confederate troops and cruisers, 311, 314 n. i. Confederate Government, 311. Carrier's Government, 312 n. i, 313. marauding Indians, 312. loss arising through, 311, et seq. contract to be liable for, not implied from agreement to trans- port within specific time, 313. whether pirates are or are not, 312 n. i, 317. PUBLIC POLICY. how far courts may consider, 95, 346. extent to which courts have held negligence contracts|| invalid as against, 346. change in, how shown, 347. INDEX. 385 QUANTITY GUARANTEED, 295. QUARANTINE REGULATIONS, effect on liability, 313. RATS, 300. REASONABLE rules and regulations — what are, 130. when contract need not be, 232. REASONABLENESS RULES AND REGULATIONS. when question law and when of fact, 132, 158. REBUTTING prima facie case. See Burden of Proof. RECEIPT. notice printed on back, 264. temporary shipping, 273. in bill of lading, how far binding in favor of assignee, 290 See Bill of Lading; Limitation by Contract; Notice; Received in Good Order. "RECEIVED IN GOOD ORDER." only prima facie evidence of fact, 266, 288. contradicted by appearance of package, 289. refers only to apparent condition, 290. contradicting bill lading in hands of assignee, 290. when it relates only to outside of package, 291, 292. latent defect, 328. See Burden of Proof ; Evidence ; Value and Contents Unknown. RECEIVER OR ASSIGNEE in bankruptcy of carrier. liability of, 112. RE-SHIPMENT. construction of clause concerning, 342. RIOTS. See Vis major. RISKS AND PERILS. See Perils of Sea, &c. RISK OF OWNER, 234 n. 1. ROBBERS. meaning of word in bill of lading, 318. insurance against loss through, 318. exception against loss by does not include the case of contrib- utory negligence, 318. 384 INDEX. RULES AND REGULATIONS, as to live stock, 103, as to value, 119. passenger or shipper must have notice of, 115, 119. right to notice of affected by custom, 179. shipper must take notice of certain, 130. must be reasonable, 130. burden of showing reasonableness, 131. when this is question law and when of fact, 132. must be consistent with duty as carrier, 131. of connecting carrier, 131. carrier must prove, 133. carrier of live stock, 103. ticket; purchase before entering car, 132. extra fare if without, 133. reduced fare to those buying, 134. if not bought extra fare not exceeding legal rate, 134. to ride on freight train, 138. ticket office — duty to keep open, 134, et seq. enforcement of, forfeiture of ticket, 177. non-transferable ticket, 149, 150. detaining passenger, 140, 176. classified cars, 151, et seq. removal of passenger from train, 170, et seq. lien on baggage, 177. refusal to sell ticket, 177. requiring contents of trunk to be stated in writing, 177. intent of passenger breaking, 150. if not seat for passenger in car, 151. disobedience when not bar to action, 158. reasonableness whether question of fact or law, 158. custody of baggage, 162. power of employee to alter or waive, 157, 163. when should be explained, 174. resisting unreasonable exactions, iG^jet seq. printed on ticket sufficient, 179. notice of posted in carrier's office, 179. when passenger bound to enquire, 178. notice of time limit to ticket must be given, 178. passenger bound to obtain baggage check if possible, 16 1 n. 3, 220. effect of neglect to enforce, 164, 247. INDEX. 385 RULES AND REGULATlONS-c^////////^^. how affected by usage, 239. eifect^of when adopted under Legislative authority, 345. See Cars Classified ; Ejection of Passenger ; Engine ; Noi ice ; Platform ; Stations ; TicKEi ; Time for Presenting Claims; Waiver. RUST. ' loss from, 330 n. 2. SeeX^OMMON Exceptions. SALVAGE EXPENSES, 65. SEATS. passenger's remedy if not furnished, 151, SEAWORTHINESS of ship, 32, et secj. SHIP. when treated as wrong-doer, 46, 320 n. 3. SHIPPING AGENT. See Authority of Shipping Agent. SHIPPING RECEIPTS, temporary. See Limitation by Contract; Time of Making Contract. SHRINKAGE. See Common Exceptions. SIGNATURE OF SHIPPER. not necessary to contract, 229. SINKING. loss from, 330 n. 2. SKILL AND FORESIGHT. See Diligence. SLAVES. carrier's liability for injury to, 98. SLEEPING-CAR. ticket for, 230. SPECIAL CARRIER, 248. STATES OF THE AMERICAN UNION. effect given to statute law, 199. unwritten commercial law of, 200, et seq. STATIONS. carrier may make rules as to stopping at particular stations, 159- 25 586 INDEX. STATION S — continued. carrier not bound to stop, excepting according to rules, 159. passenger must enquire when train stops, 159. train not stopping at, passenger may change train, 160. train must stop at station if required by statute, 161. usage as to stopping, 244. See Rules and Regulations. STATUTES. affecting right to contract against negligence, 90. giving right of action for negligence, 113. l)rohit)iting limitation of tickets as to time. 143. as to breaking journey, 149. State statutes in Federal courts, 199, 348. Utah, as to burden of proof, 255 n. 2, 256. construction of statutes prohibiting limitation of liability, 339. See LiMii ATioN by Statute ; Limitation by Statute of Ship-owner's Liability. STIPULATION FOR VALUE. See Procedure under U. S. Statute. STOP-OVER TICKET. See Ticket. STORAGE OF CARGO during obstruction to navigation; 309 n. 4. STORMS. when not termed acts of God, 296, 306. STOWAGE. usage as to, 245, 329, et seq. duty as to, 328. loss from, 329. by owner of goods, 112. STRANDING. when it is peril of the s^a, 306. STRIKES, as a defense. See Vis Major. SUBROGATION of insurer to rights of shipper, 338, et seq. when and how this right may be taken away, 339. et seq. SUNDAY. passenger riding on, 219. See Illec;al Voyage. SURRENDER of ship and freight. - See Abandonment of Interest in Ship and Freichi ; Procedure under U. S. Statute, INDEX. 387 SWEATING. See Common Exceptions. TEMPORARY OBSTRUCTION. . no ground for abandoning voyagf, 309. THIEVES. what words will include, 318, 322 n. 5. * loss by, when held to include loss by violence, 318, 322 n. 5. definition in policies of insurance, 318. insurance against, not implied, 341. TICKET AGENT. authority of, 166. TICKET OFFICE. duty to keep open, 134, et seq. TICKETS. free drover's pass, 107, 108. must be shown, 139. lost, 139. must be shown, even if conductor knows of them, 140. rule to show need not be on, 141. when may be taken up, 141. exchanged for checks, 141. in coupons, 141, 147, 180. limit as to time, right to limit, 142. commutation tickets, 142, 150, 173, 174, 177. limit as to time, notice of limitation, 143. limited as to time, reduced fare, 142. statutes prohibiting, 143. verbal waiver of, 144. beginning trip on last day, 144. expiring Sunday, 144. stop-over, 145, 148. right to break journey, 146, 148. , when passenger must pay a second time, 146. * if not valid, conductor may not retain, 147. right to ride part way, 148. non-transferable used by passenger for part of journey cannot be transferred for remainder, 149. right to take from vendee, 150. stranger traveling under such a pass cannot recover for injuries, X50. forfeiture for breach of contract not to assign, 150. 388 INDEX. T I C K E r S — continued. loaned to a stranger, 150. may be assigned, if no nil': to contrary, 151. special for freight train, 153. when carrier has sold wrong, 165, 166 n. i. drawing-room car, where company not liable to person riding under, 164. refusal to sell commutation, 177. what language necessary to make contract. 230. a voucher, not contract. 230. admissible as evidence, 231. not conclusive evidence, 265, 272. construction of, 238. printed matter on, when part of contract, 264. 265, 272. over connecting lines, 286. authority line selling ticket, 286. See Continuous Trip ; Ejection of Passenger ; Free Pass; Free Passenger. TIME. for fixing valuation to limit liability, 7, 62. occupied in transit, must be reasonable, 215. See Time of Presenting Claim. TIME FOR BRINGING ACTION. limitation not extended by negotiation, 128. waiver of limitation, 128. TIME OF MAKING CONTRACT. stipulation inserted after shipment a fraud on shipper, 271. receipt sent to consignee, 271 «. receipt sent to shipper after shipment. 271. passenger ticket not read, 272. after delivery of bill of lading, 272. change in contract a consideration, 272. receipt referring to future contracts, 274. shipping receipt before bill of lading, 274. receipt delivered to shipper's agent after shipment, 274 n. acceptance of bill of lading after loss of goods, 274. when objections to shipping agent's contract are to be made within a limited time, 275. TIME OF PRESENTING CLAIM. may be limited, 123. limitation must be reasonable, 123. and definite, 129. at delivery of goods, 123, 134. INDEX. 389 TIME OF PRESENTING CI. AIM— continued. where limitation does not include claim for latent injuries, 126. not limited by notice, 127. limitation does not cover negligence unless expressed, 127. limitation does not include claim for collection to be made by carrier for shipper, 127. whether extended by negotiation, 128. when it begins to run, 128, 129. / See Rules and Regulations. TORTS. liability of master for wilful torts of servant, 320, et seq. See Conflict of Laws. TRANSPORTATION. does not include time while waiting, 238. mode of contracted for, must be followed, 92, et seq., 236. time occupied in, must be reasonable, 215. TRESPASSER. ejection of, 173. TRUSTEE. assignment to, of interest in vessel, &c., 45, 64, 73. duty of, 74. ULTRA VIRES. railroad belonging to foreign corporation, 182. USAGE. as to baggage, 211. as to place of receiving parcels, 211. must be legal, 246. USAGE OF CARRIER. binding on himself, 244, 245, 246 n. 3. as evidence of shipper's assent, 227, 239, 241. cannot be shown to contradict contract, 239. not to be responsible for certain losses, 240. parol evidence as to usual form of bill of lading, 239, 240. of place of delivery determines manner, 244. as to manner of delivery, 241, 243, 244, et seq. what will constitute proof of usage, 243. as to delivery, binds carrier and shipper, 244. as to stopping train, 244. as to delivery to connecting line, 245. as to delivery in forwarding, 245, 246. stowage, 246, 249, 329. 390 INDfiX. USAGE OF CARRIER— con/inued. will not justify dangerous mode of stowage when better mode known, 246, 329. as to mode of transportation binding, 246, 247. evidence of, to exception bill of lading, 246, 247. evidence of, to contradict bill of lading, 239, 247. as affecting waiver, 247. necessity of notice of, 115, 242. whether knowledge of, by shipper or consignee, necessary to make usage binding, 242, > ^''lOMV-SOl^ .OFCALIFO% ^\\^EUNIVER5'//, CD R^ 'omm ?133NV-S01^ :^l:UNiVtKi/^- •ANGEi£| ^ 6: •^Ay3AINQ-3V\V .OFCAilFO% >r v:. i:kJ//a %0-invi-^o- TA'VSOl^ fLZ^\ ^ cxT UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 884 548 9 ^^1^ 1^ m ^^m-MliEs^ i.Alli6^ ,^;x^till5KAli: \ ^ :>v .-.-^ I minilllllllliWlluilimil Ml i iiiii sii '\\\\[ mm illillP liliillii^ .liiiiii iiiiiii m mWMlM Hi: B wmw illiiii^ iiiiiiii lii :^iiil I'iiititH'frf'V'HHH 11 !)l UUr :- HI ¥ ■lii ,"(^^! rl'i) ■; ' I '■''1