v^ 
 
 THE LIBRARY 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 GIFT OF 
 
 "'waiter Yf, Atlcinson 
 Dell L, Falls 
 C. Douglas Wikle 
 Of class of »53L
 
 NEGLIGENCE 
 
 OF 
 
 IMPOSED DUTIES, 
 
 CARRIERS OF FREIGHT. 
 
 B^ c^^Sk^v 
 
 CHAELES A. RAY, LL. D. 
 
 (Ex-Chief Justice of Indiana Supreme Court. Author of Negligence of 
 
 Imposed Duties, Personal, and Carriers of Passengers, 
 
 AND Contractual Limitations.) 
 
 EOCHESTER, N. Y. 
 The Lawyers' Co-Operative Publishing Company. 
 
 1895.
 
 
 Entered according to Act of Congress, in the year eig-hteen hundred and ninety-flve, by 
 
 THE LAWYERS' CO-OPERATIVE PUBLISHING CO., 
 
 In the Office of the Librarian of Congress, at Washington, D. C. 
 
 a. ANDREWS, PRINTER, ROCHESTER, N. T.
 
 
 CI 
 
 TABLE or CONTENTS. 
 
 CHAPTEIi I.— 1-33. 
 
 LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 
 Sec. 1. Who are Common Carriers. 
 
 a. Express Companies Liable as Common Carriers. 
 Sec. 2. Distinction in Liability Between Carriers of Goods and Passenger 
 
 Carriers. 
 Sec. 8. Carriers by Rail Must Furnish Suitable Cars. 
 Sec. 4. Cars Must be Adapted to their Intended Use. 
 Sec. 5. When Failure to Furnish Cars Excused. 
 Sec. 6. Duty of Carrier by Water to Furnish Seaworthy Vessel, etc. 
 Sec. 7. Carrier by Water Must Answer for Competency of Officers and Crew. 
 Sec. 8. Duty of Carrier of Goods to Inspect Present Condition of Implements 
 
 of Transportation. 
 Sec. 9. Discrimination Between Express Companies in Furnishing Facilities. 
 
 CHAPTER IL— 34-73. 
 
 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 Sec. 10. The Common Law Liability of Freight Carriers. 
 
 Sec. 11. Limitation of Liability by Notice. 
 
 Sec. 12. Limitation of Liability in Particular Instances. 
 
 Sec. 13. Release of Liability Must Rest upon a Consideration. 
 
 Sec. 14. Denial of Right to Contract against Negligence. 
 
 Sec. 15. Refusal of Federal Courts to Recognize Contracts Releasing Liability 
 
 for Negligence. 
 Sec. 16. When Exemption by Contract Permitted, Exemption Must be Clear 
 
 and Explicit. 
 Sec. 17. Statutes Limiting Power of Carrier to Contract against its own Neg 
 
 ligence. 
 Sec. 18. Limitation of Amount of Liability by Statute — Act of Congress. 
 Sec. 19. Law of Place of Contract of Affreightment. 
 
 CHAPTER III.— 74-89. 
 
 ACCEPTANCE OF GOODS BY CARRIER. 
 Sec. 20. Duty of Carrier to Accept Goods. 
 
 Sec. 21. What Constitutes Delivery, Fixing Responsibility of Carrier. 
 Sec. 22. Liability of Shippers for Goods of a Dangerous Character. 
 Sec. 23. Liability of Shipper of Dangerous Goods to Employe of Carrier. 
 
 CHAPTER lY.— 90-123. 
 
 BILL OF LADING. 
 Sec. 24. Definition of Bill of Lading. 
 Sec. 25. Bill of Lading as a Contract and as a Receipt. 
 Sec. 26. Fraud or Mistake in Bill of Lading. 
 Sec. 27. Bill of Lading Should be Delivered.
 
 VI TABLE OF CONTENTS. 
 
 Sec. 28. "Contents and Value Unknown" — "Weight Unknown " — "More or 
 
 Less." 
 
 Sec. 29. Assignment of Bill of Lading. 
 
 Sec. 30. " Order" or "Assign" in Bill of Lading. 
 
 Sec. 31. Bill of Lading with Draft Attached. 
 
 Sec. 32. "Charges to be Collected"—" C. O. D." 
 
 Sec. 83. Usage or Custom as Affecting Carrier's Liability. 
 
 CHAPTEE Y.— 12^157. 
 
 VALIDITY OF BILL OF LADING— ITS LIMITATIONS OF LIABILITY. 
 
 Sec. 34. Whether Notice or Acceptance of Bill Constitutes Contract. 
 
 Sec. 35. When Acceptance of Bill Concludes Contract. 
 
 Sec. 36. Bill Delivered after Accepting Goods. 
 
 Sec. 37. Limitation Consented to by Agent. 
 
 Sec. 38. Validity of Bill Depends on Reception of Goods by Carrier. 
 
 Sec. 39. Exceptions in Bill Waived by Negligence. 
 
 Sec. 40. Effect of Exception in Bill. 
 
 CHAPTER YL— 158-192. 
 
 "ACT OF GOD"— "PERILS OF THE SEA"— "FIRE CLAUSE"— NEG- 
 LIGENCE— PRESUMPTIONS. 
 Sec. 41. " Act of God," What Constitutes. 
 
 Sec. 42. Inevitable Accident Not Resulting from Natural Causes. 
 Sec. 43. "Perils Of the Sea;" "Dangers of the River," "of Lakes," "of 
 
 Waters," or " of Navigation." 
 Sec. 44. When " Act of God" or other Inevitable Cause No Excuse. 
 Sec-. 45. "Fire Clause." 
 
 Sec. 46. Statutory Provisions Regarding "Fire Clause." 
 Sec. 47. Goods in Transit or Depot — " Fire Clause." 
 Sec. 48. Negligence Defeats "Fire Clause." 
 Sec. 49. Burden of Proof for Loss Under Exceptions, 
 
 CHAPTER YII.— 193-227. 
 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 Sec. 50. Charges and Liability Proportioned to Value. 
 
 Sec. 51. Tariff Value and Liability Must be in Reasonable Proportion. 
 
 Sec. 53. Tariff Based on Value, Without Stating Limit of Liability. 
 
 Sec. 53. Fraud or Imposition Respecting Value and Estoppel. 
 
 Sec. 54. Carrier May Recover Where Value of Goods Concealed. 
 
 Sec. 55. When Limit Applies to each Article. 
 
 Sec. 56. Statutory Provisions Respecting Statement of Value. 
 
 Sec. 57. Limiting Time for Commencing Action. 
 
 a. Stipulation Regarding Notice to Consignee. 
 
 CHAPTER YIIL— 228-297. 
 
 TRANSPORTATION OF CATTLE. 
 Sec. 58. Duty to Furnish Suitable Cars. 
 Sec. 59. Acceptance of Car by Shipper. 
 Sec. 60. Duty to Provide Place to Receive and Deliver Stock. 
 
 a. " Texas Fever." 
 Sec. 61. Carrier Must not Discriminate between Shippers. 
 Sec. 62. Duty to Feed, Water and Care for Stock. 
 Sec. 63. Extraordinary Unloading of Livestock in transitu.
 
 TABLE OF CONTENTS. Vll 
 
 Sec. 64. Carrier's Responsibility for Livestock. 
 
 Sec. 65. Forwarding by Connecting Line. 
 
 Sec. 66. Damages for Refusal or for Failure to Transport. 
 
 Sec. 67. Delay in Shipment and Delivery of Livestock. 
 
 a. Breach of Contract for Cars. 
 
 b. Damages to Livestock by Delay in Transportation. 
 
 c. Opinions of Expert Witnesses as to Damages. 
 Sec. 68. Damages for Negligent Loss of or Injury to Cattle. 
 
 Sec. 69. Liability for Miscarriage and Wrongful Delivery of Livestock. 
 Sec. 70. Stipulation for Notice of Injury to Livestock. 
 
 a. Limit of Time for Notice. 
 
 b. Forbidding Removal before Notice. 
 Sec. 71. Restricting Liability for Livestock. 
 Sec. 72. Contributory Negligence of Shipper. 
 
 CHAPTER IX.— 298-311. 
 
 PACKING AND STOWING GOODS. 
 
 Sec. 73. Duty of Carrier and Shipper — Clean Bill of Lading. 
 
 Sec. 74. Custom Controlling Stowage. 
 
 Sec. 75. Stowage of Goods on Deck. 
 
 Sec. 76. Owner's Knowledge of Improper Stowage — Owner's Risk. 
 
 Sec. 77. Negligence in Stowage and Handling. 
 
 Sec. 78. Jettison. 
 
 CHAPTEE X.— 312-319. 
 
 DEVIATION FROM ROUTE. 
 
 Sec. 79. What Constitutes a Deviation. 
 
 Sec. 80. What not a Deviation from Route. 
 
 Sec. 81. Justifiable Deviation from Route. 
 
 Sec. 82. Responsibility of Connecting Carrier for Deviation. 
 
 CHAPTER XL— 320-347. 
 
 DELAY OF TRANSPORTATION OF GOODS. 
 
 Sec. 83. What will be Considered Delay. 
 
 Sec. 84. Insufficient Means of Transportation. 
 
 Sec. 85. Delay from Storm or Collision. 
 
 Sec. 86. Delay in Delivering to Connecting Carrier. 
 
 Sec. 87. Duty to Forward Goods in Case of Wreck or Delay. 
 
 Sec. 88. Care of Goods During Delay. 
 
 Sec. 89. Contract to Deliver at Specified Date. 
 
 Sec. 90. Consequences of Delay. 
 
 a. When Caused by Strikers, etc. 
 
 CHAPTER XII.— 348-363. 
 
 NEGLIGENT LOSS OR ILLEGAL CAPTURE OF CARGO. 
 
 Sec. 91. Negligent Navigation — Collision. 
 
 Sec. 92. Recovery for Injury to or Loss of Cargo. 
 
 Sec. 93. Damages for Illegal Capture of Cargo, 
 
 Sec. 94. Carrier may Recover for Loss of Cargo.
 
 VUl TABLE OF CONTENTS. 
 
 CHAPTEK XIII.— 364-402. 
 
 TRANSPORTATION BY CARRIER OVER CONNECTING LINES. 
 
 Sec. 95. Liability for Goods to be Transported beyond Termination of Line.. 
 
 Sec. 96. Carrier may Restrict Liability to its own Line. 
 
 Sec. 97. May Contract for Freight and Transportation beyond its own Line. 
 
 Sec. 98. Must Deliver Goods to Connecting Carrier. 
 
 Sec. 99. Contract for Through Carriage. 
 
 Sec. 100. Contract by Agent for Through Carriage. 
 
 CHAPTER XIY.— 403-480. 
 
 LIABILITIES— CHARGES — FACILITIES — CONNECTING CARRIERS 
 —COMBINATIONS. 
 
 Sec. 101. Stipulation of Initial Carrier Limiting Liabilities. 
 
 Sec. 103. Freight Charges of Connecting Carrier. 
 
 Sec. 103. Carrier Assuming Joint and Several Liability — Partnership. 
 
 Sec. 104. Facilities Furnished Connecting Carrier. 
 
 Sec. 105. Provisions Enforcing Connections and Forbidding Combinations. 
 
 CHAPTER XV.— 481-603. 
 
 INTERSTATE AND STATE COMMERCE. 
 
 Sec. 106. Power to Regulate Commerce. 
 
 See. 107. State Regulations Affecting Common Carriers. 
 
 Sec. 108. Interstate Commerce Commission — Jurisdiction and Practice. 
 
 Sec. 109. State Railroad Commission. 
 
 Sec. 110. Uniform Classification. 
 
 Sec. 111. Classification of Freight and Rates. 
 
 Sec. 112. Reasonable Rates for Freight. 
 
 CHAPTER XYL— 604-656. 
 
 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 Sec. 113. Substantially Similar Circumstances and Conditions. 
 
 Sec. 114. What Circumstances and Conditions Influence Rates for Long or 
 Short Haul. 
 
 Sec. 115. Competition with Water Carrier; with Foreign Railroads; with Non- 
 Interstate Railroads; in "Rare and Peculiar Cases," 
 
 Sec. 116. Long and Short Hauls and Group Rates. 
 
 CHAPTER XYII.— 657-707. 
 
 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE 
 
 — Continued. 
 Sec. 117. Water Transportation a Controlling Factor, 
 Sec. 118. Railways Need not Make Through Rates with Water Craft. 
 Sec. 119. Through Routes and Through Rates. 
 Sec. 120. Combinations between Rival Carriers. 
 Sec. 121. Rebate — Contract to Repay the Shipper a Part of the Rate. 
 
 CHAPTER XYIIL— 708-785. 
 
 UNJUST DISCRIMINATION. 
 
 Sec. 122. Discrimination by One Carrier against Another. 
 
 Sec. 123. Blanket or Group Rate — Preference Given one Locality over Another^ 
 
 Sec. 124. Discrimination between Shippers — Rebate.
 
 TABLE OF CONTENTS. IX 
 
 CHAPTER XIX.— 786-844. 
 UNJUST DISCRIMINATION— Continued. 
 Sec. 125. Carrier, as Shipper, Must not Favor Itself. 
 
 CHAPTER XX.— 845-886. 
 
 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 Sec. 126. Freight Charges. 
 
 Sec. 127. Contract Rates on Freight. 
 
 Sec. 128. Carrier's Lien for Charges. 
 
 Sec. 129. Sale to Enforce Lien on, from Necessity. 
 
 Sec. 130. Lien of Contract of Affreightment. 
 
 Sec. 131. Overcharge on Freight — Underbilling. 
 
 Sec. 132. Rate Sheets. 
 
 Sec. 133. Rebate. 
 
 CHAPTER XXL— 887-937. 
 
 DELIVERY OF GOODS. 
 Sec. 134. Place of Delivery by Carrier on Land. 
 Sec. 135. Time and Manner of Delivery — Custom — Law of Contract. 
 Sec. 136. Delivery to Proper Person — Bill of Lading — Draft. 
 Sec. 137. Notice to Consignee of Arrival of Goods. 
 Sec. 138. Collections by Carrier — Sale of Goods. 
 Sec. 139. Delivery to Wrong Person — Conversion. 
 Sec. 140. Delivery in Bad Condition — Shortage. 
 Sec. 141. Failure to Deliver. 
 Sec. 142. Statutory Penalties for Non-Delivery. 
 Sec. 143. What vrill Excuse Non-Delivery of Goods. 
 
 CHAPTER XXII.— 938-1002. 
 
 DELIVERY OF GOODS— Continued. 
 Sec. 144. Delivery by Carrier by Water. 
 Sec. 145. Demurrage. 
 Sec. 146. When Liable only as Warehouseman. 
 
 CHAPTER XXIIL— 1003-1093. 
 
 ACTION AGAINST CARRIER OF GOODS— INSURANCE— PRESUMP- 
 TION— STATUTORY LIMITATION OF LIABILITY. 
 Sec. 147. Title in Goods Shipped — Who May Sue for Loss. 
 Sec. 148. Insurance on Goods by Carrier. 
 Sec. 149. Liability of Carrier of Goods. 
 
 Sec. 150. Presumption from Loss of Goods — Burden of Proof. 
 Sec. 151. Damages for Loss, Injury or Delay of Goods. 
 Sec. 152. Limitation of Right of Action. 
 Sec. 153. Claim of Limit of Liability under Revised Statutes of the United 
 
 States. 
 Sec. 154. When the United States Courts Have Jurisdiction. 
 Sec. 155. Proceedings against Violators of the Interstate Commerce Act.
 
 TABLE OF CASES. 
 
 A. 
 
 Aaron v. Adams Exp. Co. 27 Ohio 
 
 L. J. 183 115, 907 
 
 Abbott «. Baltimore & R. Steam 
 Paclvet Co. 1 Md. Ch. 
 
 543 32 
 
 V. Jolinstown, G. & K. Horse 
 R. Co. 80 N. Y. 27, 86 
 
 Am. Rep. 572 440 
 
 V. National SS. Co. 33 Fed. 
 
 Rep. 895 -.154, 155 
 
 Aberdeen Commercial Co. v. Great 
 North of Scotland R. 
 Co. 3 Ry. & Caual Traf- 
 fic Cas. 205. 836 
 
 Abrams v. Milwaukee, L. S. & W. 
 
 R. Co. 87 Wis. 485.243, 286 
 Acatos V. Burns, L. R. 3 Exch. 
 
 Div. 282 866 
 
 Ackley v. Chicago, M. & St. P. R. 
 
 Co. 36 Wis. 252 409 
 
 Adam v. Hay, 7 N. C. 149 167 
 
 Adams v. Bissell, 28 Barb. l,82 ...1005 
 D. Clark,9Cush.215, 57Am. 
 
 Dec. 41 861 
 
 V. O'Connor, 100 Mass. 515, 
 
 1 Am. Rep. 137 109 
 
 V. Royal Mail S. Packet Co. 
 
 5 C. B. N. S. 492. 299 
 
 V. Scott, 104 Mass. 166 936 
 
 Adams Exp. Co. v. Fendrick, 38 
 
 Ind. 150... ...43, 45 
 
 V. Harris, 7 L. R. A. 214, 120 
 
 Ind. 73 
 
 .45, 201, 403, 406, 863, 1013 
 
 V. Havnes, 42 III. 89 146 
 
 V. McConnell, 27 Kan. 238. 114 
 V. Reagan, 29 Ind. 21, 92 
 
 Am. Dec. 332.. 55, 224, 225 
 «. Stettaners, 61 111. 184, 14 
 
 Am. Rep. 57 43, 208 
 
 V. Williams (Ark.) June 4, 
 
 1890 9 
 
 Adella S. Hills, The, 47 Fed. Rep. 
 
 76 846, 920, 940 
 
 Adriatic, The, 16 Blatchf. 424 
 
 1030, 1032 
 
 Advertiser & T. Co. v. Detroit, 43 
 
 Mich. 116 118 
 
 ^tna P. Ins. Co. v. Tyler. 16 
 Wend.385, SOAm. Dec. 
 90 1020 
 
 ^tna Ins. Co. v. Wheeler, 49 N. 
 
 Y. 616 391, 400, 405 
 
 Agnew V. Contra Costa, The, 27 
 
 Cal. 425. 87 Am. Dec. 
 
 87...... ....179,1028 
 
 Ah Fong. Ex parte, 3 Sawy. 145.. 486 
 Aigen v. Boston & M. R. Co. 132 
 
 Mass. 423 412, 414 
 
 Aiken v. Chicago, B. & Q. R. Co. 
 
 68 Iowa. 363 84 
 
 Alabama, The, v. DeLa Casas, 92 
 
 U. S. 695, 23 L. ed. 763, 
 
 rev'g 11 Blatchf. 482 .. 357 
 Alabama & G. S. R. Co. v. Thomas, 
 
 89 Ala. 294 ..257, 317 
 
 Alabama & T. R. Co. v. Kidd, 35 
 
 Ala. 209--.. 966 
 
 Alabama G. S. R. Co. v. Cureton. 
 
 68 Ga. 824 : 854 
 
 V. Eichofer, 100 Ala. 224... 919 
 V. Little, 71 Ala. 611 _. 208. 1030 
 V. Thomas, 83 Ala. 343.194, 258 
 Alabama Nat. Bank v. Mobile &0. 
 
 R. Co. 42 Mo. App. 284 937 
 Alair v. Northern Pac. R. Co. 19 
 
 L. R. A. 764, 53 Minn. 
 
 160... 197, 199,203,283,286 
 Albany, The, 44 Fed. Rep. 431... 868 
 Alderman v. Eastern R. Co. 115 
 
 Mass. 234 902 
 
 Aldridge v. Great Western R. Co. 
 
 15 C. B.N. S. 582 856 
 
 Aleppo, The, 7 Ben. 125.. 363 
 
 Alexander v. Greene, 3 Hill, 9, 7 
 
 Hill, 553.... 4 
 
 Alford V. Chicago, R. I. & P. R. 
 
 Co. 2 Inters. Com. Rep. 
 
 771 ..424, 514 
 
 Alice, The, 12 Fed. Rep. 496 138 
 
 Aline, The, 19 Fed. Rep. 875 952 
 
 Allan V. Gripper, 2 Cromp. & J. 
 
 218, 2Tvrw. 217 889 
 
 V. State SS. Co. 29 N. Y. S. 
 
 R. 288... 25 
 
 Allday v. Great Western R. Co. 34 
 
 L. J. Q. B. 5, 5 Best. & 
 
 S. 903 44 
 
 XI
 
 xn 
 
 TABLE OF CASES. 
 
 Alleged Excessive Freight Rates & 
 Charges on Food Pro- 
 ducts, Re, 3 Inters. Com. 
 
 Rep. 9:i 525, 577 
 
 Allen V. Brown, 44 N. Y. 228.-. 1008 
 V. Coltart, L. R. 11 Q. B. 
 
 Div. 783._ 218 
 
 V. Louisville, N. A. & C. R. 
 Co. 1 Inters. Com. Rep. 
 
 621 -- 409,601 
 
 V. Mercantile Mut. Ins. Co. 
 44 N. Y. 437. 4 Am. 
 
 Rep. 700 853 
 
 V. Newberry, 62 U. S. 21 
 How. 244, 10 L. ed. 110 
 
 495, 1048 
 
 V. Sackrider, 37 N. Y. 341. 3 
 V. Williams, 12 Pick. 297.. 
 
 109, 901 
 
 Alliance Ins. Co. v. Morning Light, 
 The, 69 U. S. 2 Wall. 
 
 560, 17 L. ed. 864 162 
 
 Allison V. Chandler, 11 Mich. 
 
 542 363 
 
 Alston V. Herring, 11 Exch. 822.. 
 
 .298, 301 
 
 Alvah, The, 59 Fed. Rep. 630.... 241 
 Alvord v. Latham, 31 Barb. 294.. 1005 
 Amalia, The, 34 L. J. Adm. 21... 357 
 Ambach v. Baltimore & O. R. Co. 
 
 30 Ohio L. J. Ill 196 
 
 American Exp. Co. v. Fletcher, 25 
 
 Ind. 492... 915, 916 
 
 V. Greenhalgh, 80 111. 68 ... 927 
 «. Haire, 21 Ind. 4, 83 Am. 
 
 Dec. 334 32 
 
 V. Hockett, 30 Ind. 250, 95 
 
 Am. Dec. 691... 8 
 
 V. Lesem, 39 III. 312. 906 
 
 -». Perkins, 42 111. 458 146 
 
 V. Sands, 55 Pa. 140 
 
 41,51, 194, 199 
 
 V. Second Nat. Bank or Ti- 
 twsville, 69 Pa. 394, 8 
 
 Am. Rep. 268 111, 365 
 
 7). Smith, 33 Ohio St. 511, 31 
 
 Am. Rep. 501. .161, 333, 389 
 
 V. Stack, 29 Ind. 27 8, 915 
 
 American Ins. Co. ■». Centre, 4 
 
 Wend. 45 806 
 
 V. Ogden, 15 Wend. 532 ... 867 
 American Merchants U. Exp. Co. 
 
 V. Wiltsie, 79 111. 92... 116 
 
 V. ^\o\t 79 111.430 31, 114 
 
 American Transp. Co. v. Moore, 5 
 
 Mich. 368 178 
 
 American U. Exp. Co. t. Robin- 
 sou, 72 Pa. 274. 31 
 
 Ames V. New York U. Ins. Co. 14 
 
 N. Y. 253 220, 222 
 
 Amesbury v. Bowditch Mut. F. 
 
 Ins. Co. 6 Gray, 596 ... 220 
 Amiable Nancy, The, 16 U. S. 3 
 
 Wheat. 546, 4 L. ed. 456 
 
 358, 36a 
 
 Amies v. Stevens, 1 Strange, 128. 
 
 13,17, 101. 174, 17S 
 
 Anderson v. Clark, 2 Bing. 20 
 
 1005, 1006 
 
 V. Dunn, 19 U. S. 6 Wheat. 
 
 204, 5 L. ed. 242.1084, 1088 
 V. Jett, 6 L. R. A. 390, 89 
 
 Ky. 375 461 
 
 Andover, The, 3 Blatchf. 303 .. 846 
 Andrews v. Dieterich, 14 Wend. 31 319^ 
 v. Kneeland, 6 Cow. 354 
 
 108, 394 
 
 Andrews Soap Co. v. Pittsburg, C. 
 
 & St. L. R. Co. 3 Inters. 
 
 Com. Rep. 77.... 558 
 
 Angel v. Cuuard SS. Co. 55 Fed. 
 
 Rep. 1005 221 
 
 Angle V. Mississippi & M. R. Co. 9 
 
 Iowa, 487.. 388 
 
 Anglo African Co. v. Lamzed, L. 
 
 R. 1 C. P. 229 301 
 
 Anna Catharine, The, 4 C. Rob. 
 
 Adm. 107 360 
 
 Anna Catharine, The, 6 C. Rob. 
 
 Adm. 10 363 
 
 Anna Green, The, 1 Gall. 294.359, 360 
 Anna Maria. The, 15 U. S. 2 Wheat. 
 
 327, 4 L. ed. 252... 358, 363 
 Annapolis, W. & B. R. Co., Re, 1 
 
 Inters. Com. Rep. 315. 
 
 91, 527 
 
 Annas v. Milwaukee & N. R. Co. 
 
 67 Wis. 46 1012 
 
 Ann Caroline, The, v. Wells, 69 U. 
 
 S. 2 Wall. 538, 17 L. ed. 
 
 833 358 
 
 Ansell V. Waterhouse, 2 Chitty, 1, 
 
 6Maule & S. 393 ...11, 14 
 Anthony «. ^tna Ins. Co. 1 Abb. 
 
 (U. S.)343 166 
 
 Anthony Salt Co. «. Missouri Pac. 
 
 R. Co. 4 Inters. Cora. 
 
 Rep. 33... 549. 562, 718. 719 
 Antonia Johanna, The. 14 U. S. 1 
 
 Wheat. 159, 4 L. ed. 60 359 
 Appollon, The, 22 U. S. 9 Wheat. 
 
 362, 6L. ed. Ill 363 
 
 Arbuckle v. Thompson, 37 Pa. 
 
 170 1008 
 
 Archer «. Tcrre Haute & I. R. Co. 
 
 102111. 498 44a
 
 TABLE OF CASES. 
 
 XUl 
 
 Arctic F. Ins. Co. v. Austin, 54 
 
 Barb. 559 4 
 
 Arend v. Liverpool, N. Y. & P. 
 
 SS. Co. 6 Lans. 457, 64 
 
 Barb. 118 95, 148, 1027 
 
 Arkansas & L. R. Co. v. Smith, 4 
 
 Inters. Com. Rep. 415, 
 
 42 Am. & Eng. R. Cas. 
 
 348 877 
 
 Arklow, The, L. R. 9 App. Cas. 
 
 136. 351 
 
 Armory ». Delamirie,l Strange,505 361 
 Armour v. Michigan Cent. R. Co. 
 
 65 N. Y. Ill, 22 Am. 
 
 Rep. 603 143 
 
 Armstrong v. Chicago, M.& St. P. 
 
 R. Co. 53 Minn. 183... 274 
 Arnold v. Georgia R. & Bkg. Co. 
 
 50 Ga. 304 874 
 
 V. Illinois Cent. R. Co. 83 
 
 I11.273,25Am. Rep. 386 53 
 V. National SS. Co. 29 Fed. 
 
 Rep. 184. 942 
 
 Arnot T. Pittsion & E. Coal Co. 68 
 
 N. Y. 558, 28 Am. Rep. 
 
 190... 437, 694 
 
 A. R. Robinson, The, 57 Fed. Rep. 
 
 657.... 354 
 
 Arthur v. Cassius, The, 2 Story, 81 
 
 .3o8,*866, 966 
 
 Ashburner v. Balchen, 7 N.Y. 262 847 
 Asher v. Texas, 128 U. S. 129, 32 
 
 L. ed. 368, 2 Inters. 
 
 Com. Rep. 143 485 
 
 Ashley v. Ryan, 153 U. S. 436, 38 
 
 L. ed. 773 495 
 
 Ashmole v. Wainwright, 2 Q. B. 
 
 837. 14 
 
 Ashmore ®. Pennsylvania Steam 
 
 Towing Transp. Co. 28 
 
 N. J. L. 180.. 4, 146 
 
 Asphodel, The, 53 Fed. Rep. 835. 140 
 Assicurazioni Generali v. Bessie 
 
 ]\Iorris Co., The [1892] 
 
 2Q. B. 652.... 332 
 
 Aston V. Heaven, 2 Esp. 533 11 
 
 Astrup V. Lewy, 19 Fed. Rep. 536 
 
 -- 160, 866 
 
 Atcheson v. Mallon, 43 N. Y. 147, 
 
 3 Am. Rep. 678 691 
 
 Atchison & N. R. Co. v. Wash- 
 burn, 5 Neb. 117 295 
 
 Atchison, T. & S. F. R. Co. v. Col- 
 lin.*, 47 Kan. 11 277 
 
 V. Denver & N. O. R. Co. 
 
 110 U. S. 667. 28 L. ed. 
 
 291 318 
 
 393," 4127427^4317 668, 709 
 
 Atchison v. Dill, 48 Kan. 210 
 
 130, 135, 287, 292, 406 
 
 V. Roberts, 3 Tex. Civ. App. 
 
 370 921,922 
 
 V. Temple, 13 L. R. A. 362. 
 
 47 Kan. 7 52, 194, 277 
 
 Atkinson v. Maling, 2 T. R. 462 
 
 .891, 964 
 
 V. Ritchie, 10 East, 530 338 
 
 Atlanta &W. P. R. Co.. i?e.2 Inters. 
 
 Com. Rep. 461 533, 682 
 
 Atlanta & W. P. R. Co. v. Rags- 
 dale, 46 Miss. 458 322 
 
 V. Texas Grate Co. 81 Ga. 
 
 602 343 
 
 Atlantic & P. R. Co. v. Laird, 58 
 
 Fed. Rep. 760 3, 253 
 
 Atlantic Exp. Co. v. Wilmington 
 
 & W. R. Co. 4 Inters. 
 
 Com. Rep. 284, 18 L. 
 
 R. A.393, 111 N. C. 463 
 
 11. 536 
 
 Atlantic Ins. Co. v. Conard, 4 
 
 Wash. C. C. 676 109 
 
 V. Storrow, 1 Edvsr. Ch. 621, 
 
 5 Paige, 285 1020 
 
 Atlantic Mut. M. Ins. Co. v. Huth, 
 
 L. R. 16 Ch. Div. 474.. 866 
 Atlee V. Northwestern U. Packet 
 
 Co. 88 U. S. 21 Wall. 
 
 389, 22L. ed. 619 1047 
 
 Attorney General v. Birmingham 
 
 6 D. J. R. Co. 2 "Eng. 
 Ry. & Canal Cas. 124. . 610 
 
 V. Niagara Falls Interna- 
 tional Bridge Co. 20 
 Grant Ch. 34.... 440 
 
 Atwood V. Reliance Transp. Co. 9 
 Watts, 87, 34 Am. Dec. 
 503 313 
 
 Audenried v. Philadelphia & R. 
 R. Co. 68 Pa. 370, 8 Am. 
 Rep. 195.. 571, 737, 755, 885 
 
 August, The [1891]- Prob. 328 175 
 
 Augusto, The, 29 Fed. Rep. 334.. 308 
 
 Austin V. Manchester, S. & L. R. 
 Co. 11 Eng. L & Eq. 
 506, 16 Q. B. 600, 15 
 Jur. 670. -.41, 96, 231, 1006 
 V. New Jersey S. B. Co. 43 
 N. Y. 75, 3 Am, Rep. 
 663 349 
 
 Australian Steam Nav. Co. v. 
 
 Morse, L. R. 4 P. C. 222 866 
 
 Avinger v. South Carolina R. Co. 
 
 29 S. C. 265 ..740, 757 
 
 Ayers v. Western R. Corp. 14 
 
 Blatchf. 9 388
 
 XIV 
 
 TABLE OF CASES. 
 
 Ay mar v. Astor, 6 Cow. 266 168 
 
 Ajres V. Chicago & N. W. R. Co. 
 
 71 Wis. 373 20, 
 
 228, 229, 254, 267, 760, 1033 
 V. Chicago & N. W. R. Co. 
 
 75 Wis. 215.-., 75 
 
 B. 
 
 Babcock v. Lake Shore & M. S. R. 
 
 Co. 49 N. Y. 491, 48 
 
 How. Pr. 317 404-406 
 
 Bacharach v. Chester Freight Line, 
 
 133 Pa. 414 864, 968 
 
 Backhouse v. Sneed, 5 N. C. 173- - 177 
 Bagg V. Wilmington, C. & A. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 803, 14 L. R. A. 596, 
 
 109 N. C. 279 324. 921 
 
 Bailey ». Hudson River R. Co. 49 
 
 N. Y. 70 -.90, 111,889 
 
 Baird v. St. Louis. I. M. & S. R. 
 
 Co. 41 Fed. Rep. 592, 
 
 42 Am. & Eng. R. Cas. 
 
 281 99 
 
 Baker v. Briuson, 9 Rich. L. 201, 
 
 67 Am. Dec. 548 1030 
 
 V. Michigan 8. & N. I. R. 
 
 Co. 42111. 73 134 
 
 V. Missouri Pac. R. Co. 34 
 
 Mo. App. 98 154 
 
 Baldwin v. Liverpool & G. W. SS. 
 
 Co. 74 N. Y. 125, 30 
 
 Am. Rep. 277 86 
 
 Ball V. Berwind, 29 Fed. Rep. 541 356 
 Ballard v. Burgett, Langd. Cas. 
 
 Sales, 730. 40.N. Y. 314 913 
 Ballentine «. North Missouri R. 
 
 Co. 40 Mo. 491, 93 Am. 
 
 Dec. 315 320, 327 
 
 Ballou V. Earle, 14 L, R. A. 433, 
 
 17 R. I. 441 9, 200. 214 
 
 Balsley v. St. Louis, A. & T. H. 
 
 R. Co. 119 111. 68, 59 
 
 Am. Rep. 784 442 
 
 Baltimore, The, 34 Fed. Rep. 660 350 
 V. Rowland, 75 U. S. 8 
 
 Wall. 377, 19 L. ed. 463 
 
 -- 60, 358, 1040 
 
 Baltimore & O. Exp. Co. v. 
 
 Cooper, 66 Miss. 558.9, 224 
 Baltimore & O. R. (Jo. v. Brady, 
 
 32 Md. 333-. 46, 146 
 
 V. Davis. 20 W. N. C. 504. 928 
 
 V. Green, 25 Md. 72 -. 888 
 
 ■0. Keedy, 75 Md. 320. 49 
 
 Am. & Eng. R. Cas. 124 173 
 
 Baltimore & O. R. Co. v. Mary- 
 land, 88 U. S. 21 Wall. 
 456, 22 L. ed. 678.-494, 495 
 V. Morehead, 5 W. Va. 293-1028 
 V. O'Donnell. 49 Ohio St. 489 
 
 260,273, 
 
 330, 343, 859, 890, 908. 936 
 V. Rathbone, 1 W. Va. 87, 
 
 88 Am. Dec. 664.- -147, 185 
 V. Schumacher, 29 Md. 168, 
 
 96 Am. Dec. 510- 366 
 
 V. Skeels, 3 W. Va. 556.45, 185 
 V. Sulphur Springs Inde- 
 pendent School Dist, 
 96 Pa. 65, 42 Am. Rep. 
 
 529 ..- 176 
 
 T. Wilkens. 44 Md. 11, 22 
 
 Am. Rep. 26 95. 141 
 
 Baltimore & P. S. R. Co. v. Brown. 
 
 54 Pa. 77 98, 866, 412 
 
 Bancroft's Case, cited in Kenrig v. 
 
 Eggleston, Aleyn, 93.. 169 
 Bancroft v. Merchants Dispatch 
 Transp. Co. 47 Iowa, 
 262. 29 Am. Rep. 482.7, 405 
 Bankard v. Baltimore & O. R. Co. 
 
 34Md. 197 ..1030 
 
 Bank of Augusta «. Earle, 38 U. S. 
 13 Pet. 519, 10 L. ed. 
 
 274 73, 896 
 
 V. New York, L. E. & W. 
 R. Co. 106 N. Y. 195, 
 
 60 Am. Rep. 440 
 
 -- 143. 144, 909 
 
 of Kentucky v. Adams Exp. 
 C0.93U.S. 174, 23L.ed. 
 872-8. 72, 103, 126, 194, 198 
 of Rochester v. Jones, 4N. Y. 
 
 497, 55 Am. Dec. 290- . 107 
 of St. Thomas v. Julia Blake, 
 The, 107 U. S. 418, 27 
 
 L. ed. 595 866 
 
 Bansemer v. Toledo & W. R. Co. 
 25 Ind. 484, 87 Am. 
 
 Dec. 867 888 
 
 Barber v. Brace, 3 Conn. 9, 8 Am. 
 
 Dec. 149.. 94, 302, 306, 311 
 Barclay v. Cuculla Y Gana, 3 
 
 Dougl. 389 12, 16. 151 
 
 V. Hygena, 1 T. R. 33 151 
 
 Bardwell v. American Exp. Co. 35 
 
 Minn. 344-- 8, 220 
 
 Barker v. Swallow, The, 44 Fed. 
 
 Rep. 771 311 
 
 Barlow v. Lambert, 28 Ala. 704, 65 
 
 Am. Dec. 374 118 
 
 Barnard v. Kellogg, 77 U. 8. 10 
 
 Wall. 388, 19 L. ed. 987 302
 
 TABLE OF CASES. 
 
 XV 
 
 Barnard v. Kobbe. 54 N. Y. 516 - 928 
 Barnett v. London & N. W. R. 
 
 Co. 5 Hurlst. & N. 604. 80 
 Barney B.Burnsteinbinder, 64 Barb. 
 
 212.. 87 
 
 Barnwell v. Hussy, 1 Mill, Const. 
 
 114 314 
 
 Barracouta, The, 39 Fed. Rep. 288 
 
 ...309, 1030 
 
 Barrel!®. Mohawk, The ("The Mo- 
 hawk") 75 U. S. 8 Wall. 
 
 153, 19 L. ed. 406 
 
 .169, 866,872, 941 
 
 Barrett v. Rogers, 7 Mass. 297, 5 
 
 Am. Dec. 45... .94, 96, 105 
 Barron v. Eldredge, 100 Mass. 455, 
 
 1 Am. Rep. 126.77, 83, 141 
 Barter v. Wheeler, 49 N. H. 9, 6 
 
 Am. Rep. 434... 
 
 55, 180, 398, 399, 411, 412 
 Barllett v. Philadelphia, 32 Mo. 
 
 256 966 
 
 V. Pittsburg, C. & St. L. R. 
 
 Co. 94 Ind. 281 
 
 43, 46, 262, 346, 1012 
 
 Barton ?j. Walliford, Comb. 56.. . 171 
 Bassett v. Connecticut River R. 
 
 Co. 145 Mass. 129. ...15, 58 
 Bates®. Cunningham, 12 Hun, 31.1005 
 V. Pennsylvania R. Co. 2 
 
 Inters. Com. Rep. 715.. 
 
 557, 561, 782 
 
 V. Stanton, 1 Duer, 79.. 109, 927 
 Batson v. Donovan, 4 Barn. »& Aid. 
 
 21.. 50, 75 
 
 Baugbman v. Louisville, E. & St. 
 
 L. R. Co. 14 Ky. L. 
 
 Rep. 268 197, 204 
 
 V. Louisville, E. & St. L. R. 
 
 Co. 14 Ky. L. Rep. 775. 280 
 Baumbach v. Gulf. C. & S. F. R. 
 
 Co. 4 Tex. Civ.App. 650 342 
 BaumvoU Manufacturer Von 
 
 Scheibler v. Gilchrist 
 
 [1891] 2Q. B. 310 104 
 
 Bauserman v. Blunt, 147 U. S. 647, 
 
 37L. ed. 316. ..1049 
 
 Baxendale v. Bristol & E. R. Co. 1 
 
 Nev. & McN. 202 735 
 
 V. Great Eastern R. Co. 4 Q. 
 
 B. 244, 38 L. J. Q. B. 
 137. 44, 218 
 
 V. Great Western R. Co. 5 
 
 C. B. N. S. 336, 1 Nev. 
 
 & McN. 202... 576. 749, 836 
 V. London & S. W. R. Co. 
 
 L. R. 1 Exch. 137 
 
 759,704, 771 
 
 Baxter v. Leland, Abb. Adm. 115. 
 
 12, 94, 163 
 
 V. Rodman, 3 Pick. 435 1008 
 
 Bayles v. Kansas Pac. R. Co. 2 
 Inters. Com. Rep. 643, 
 5 L. R. A. 480, 13 Colo. 
 181.. 571, 707, 740. 749, 853 
 
 Baylies v. Pettyplace, 7 Mass. 
 
 324 338 
 
 Bazin v. Steamship Co., The, 3 
 
 Wall. Jr. 229 1028 
 
 B. C. Terry, The, 30 Fed. Rep. 
 
 711 - _. 350 
 
 Beadle v. Kansas City, Ft. S. & 
 
 M. R. Co. 51 Kan. 248. 874 
 
 Beal V. Chase, 31 Mich. 490 464 
 
 V. South Devon R. 3 Hurlst. 
 
 &C. 337 46 
 
 Reals V. Allen, 18 Johns. 363, 9 
 
 Am. Dec. 221 394 
 
 Beard v. Illinois Cent. R. Co. 7 L. 
 R. A. 280, 79 Iowa, 518 
 
 18, 148, 200, 310 
 
 V. St. Louis, A. & T. H. R. 
 Co. 79 Iowa, 527, 42 
 Am. & Eng. R. Cas. 509 398 
 
 Beaumont v. Canadian Pac. R. Co. 
 5 Mont. L. Rep. (Sup. 
 Ct.)255 257. 342, 392 
 
 Beaver v. Pittsburg, C. & St. L. R. 
 Co. 3 Inters. Com. Rep. 
 564 549 
 
 Beck®. Evans, 16 East. 243 213 
 
 Beckwith v. Frisbie, 32 Vt. 559.327, 968 
 
 Behreno v. Great Northern R. Co. 
 
 31 L. J. Exch. 299 204 
 
 Belden v. Davies, 2 Hall, 433 100 
 
 Belfast, The, v. Boon, 74 U. S. 7 
 Wall. 624, 19 L. ed. 266 
 495. 871, 874 
 
 Belfast Cent. R. Co. v. Great North- 
 ern R. Co, 4 Railway 
 Corars. Rep. 159 687 
 
 Belgenland, The, ®. Jensen, 114 U. 
 
 S. 355, 32 L. ed. 152... 35 
 
 Belger v. Dinsmore, 51 N. Y. 166, 
 
 10 Am. Rep. 575.. .203, 215 
 
 Bell V. London, etc. R. Co. 2 Nev. 
 
 &McN. 185... 732, 735, 771 
 V. Reed, 4 Binn. 127, 5 Am. 
 
 Dec. 398 .163, 185 
 
 Bellona, The, 4 Ben. 503 1032 
 
 Bellsdyke Coal Co. v. North Brit- 
 ish R. Co. 2 Nev. & 
 McN. 39 ..576, 594, 735, 749 
 
 Bennett v. American Exp. Co. 13 
 L. R. A. 33, 83 Me. 236 
 83, 935
 
 XVI 
 
 TABLE OF CASES. 
 
 Bennett v. Bryam, 38 Miss. 17, 75 
 
 Am. Dec. 90 320, 321 
 
 V. Dutton. 10 K H. 486.... 
 
 11,84, 760 
 
 V. Northern Pac. Exp. Co. 
 
 12 Or. 49 7, 224 
 
 Bennitt v. Missouri Pac. K. Co. 46 
 
 Mo. App. 656 396 
 
 Benson, Ex jmrte, 18 S. C. 38, 44 
 
 Am. Rep. 564 
 
 571,734, 740, 744 
 
 V. Gray, 13 L. R. A. 262, 154 
 
 Mass. 391 ...122, 265 
 
 Berg V. Narragansett SS. Co. 5 
 
 Daly, 394.... 396 
 
 Bergenseren, Tiie, 36 Fed. Rep. 
 
 700 169,333 
 
 Berger v. Dinsmore, 51 N. Y. 166, 
 
 10 Am. Rep. 575 . . . .202. 203 
 Berkley v. Watlins, 7 Ad. & El. 29.1006 
 Berkshire, The, 59 Fed. Rep. 1007 63 
 Berkshire Woolen Co. v. Proctor, 
 
 7 Cush. 422... 903 
 
 Bermuda, The, 29 Fed. Rep. 399. 
 
 213, 217, 218 
 
 Bernstein v. Baxendale, 6 C. B. N. 
 
 S. 251 218 
 
 Bernstine v. Union Exp. Co. 40 
 
 Ohio St. 451 7 
 
 Berry v. Cooper, 28 Ga. 543 
 
 ...-43, 188, 1030 
 
 Bethea v. Northeastern R. Co. 26 
 
 S. C. 91 393, 1013 
 
 Bickford v. Metropolitan SS. Co. 
 
 109 Mass. 151 906 
 
 Biddle v. Bond, 6 Best. & S. 225.. 927 
 Bigbee «& W. R. Packet Co. v. Mo- 
 bile &0. R. Co. 4 Inters. 
 
 Com. Rep. 829, 60 Fed. 
 
 Rep. 545 732 
 
 Billu. Smith, 39 Conn. 206 348 
 
 Bills V. New York Cent. R. Co. 84 
 
 N. Y. 5... ...160, 244, 247 
 
 Binford «. Johnston, 82 Ind. 426, 
 
 42 Am. Rep. 508 87 
 
 Bird V. Astcock, 2 Bulst. 280 169 
 
 V. Cromwell, 1 Mo. 81, 13 
 
 Am. Dec. 470 333, 337 
 
 Bird of Paradise, The, v. Heyne- 
 
 man. 72 U. S. 5 Wall. 
 
 555, 18 L. ed. 664... 95, 868 
 Birney v. Wabash, St. L. & P. R. 
 
 Co. 20 Mo. App. 470... 260 
 Bishop V. Shepherd, 23 Pick. 492.1008 
 
 Bissel V. Price. 16 111. 408 105 
 
 Bissell V. New York Cent. R. Co. 
 
 25 N. Y. 442, 82 Am. 
 
 Dec. 369 253 
 
 Bixby V. Deemar, 54 Fed. Rep. 718 
 
 174, 330, 332, 345 
 
 Black V. Baxendale, 1 Exch. 410.. 
 
 147, 968 
 
 V. Chicago, B. & Q. R. Co. 
 
 30 Neb. 197. 
 
 15, 160, 161, 175, 253 
 
 V. Goodrich, 55 Wis. 319, 43 
 
 Am. Rep. 713.-127, 200, 201 
 V. Southern Pac. R. Co. 39 
 
 Fed. Rep. 565 .--1042, 1049 
 Blackett v. Royal Exch. Assur. Co. 
 
 2Cromp. «& J. 250 --.. 304 
 Blackstock v. New York & E. R. 
 
 Co. 20 N. Y. 48, 75 Am. 
 
 Dec. 372 ....262,347 
 
 Blaikie v. Stembridge, 5 Jur. N. S. 
 
 1128---- 302 
 
 Blaisdell •». Connecticut River R. 
 
 Co. 145 Mass. 132.--. 15, 58 
 Blake v. Winona & St. P. R. Co. 
 
 19 Minn. 418, 18 Am. 
 
 Rep. 345 518 
 
 Blakeley «. LaDuc, 19 Minn. 
 
 187 81 
 
 Blanchard v. Isaacs, 3 Barb. 
 
 388 80 
 
 v. Martha Washington, The, 
 
 I Cliff. 473 486 
 
 V. Page, 8 Gray, 281 -. 
 
 .---90, 110, 889, 1007, 1008 
 ». Western U. Teleg. Co. 60 
 
 N. Y. 510 1032 
 
 Bland v. Southern Exp. Co. 1 
 
 Hughes, 345 32 
 
 Blane v. Proudfit, 3 Call, 207, 3 
 
 Am. Dec. 546 108, 394 
 
 Bliven v. Hudson River R. Co. 35 
 
 Barb. 191, aff'd. 36 N. 
 
 Y. 403 929, 935, 937 
 
 Block V. Fitchburg R. Co. 139 
 
 Mass. 308 412, 414 
 
 Blodgett V. Abbott, 72 Wis. 516.. 340 
 Blossom V. Dodd, 43 N. Y. 264, 3 
 
 Am. Rep. 701 219 
 
 V. Griffin, 13 N. Y. 569, 67 
 
 Am. Dec. 75 84 
 
 V. Smith, 3 Blatchf. 316 891 
 
 Blower v. Great Western R. Co. L. 
 
 R. 7 C. P. 655 15, 254 
 
 Blumenthal v. Brainerd, 38 Vt. 
 
 402, 91 Am. Dec. 350.. 
 
 124, 185, 920 
 
 Biythe «. Denver & R. G. R. Co. 
 
 II L.R. A. 615, 15 Colo. 
 333_ 161, 180, 186 
 
 Boardman v. Spooner, 13 Allen, 
 
 353, 90 Am. Dec. 196.. 132
 
 TABLE OF CASES. 
 
 XVll 
 
 Board of Tirade of Chattanooga v. 
 
 East Tennessee, V. & G. 
 
 R. Co. 4 Inters. Cora. 
 
 Rep. 213.. 598. 719 
 
 of Chicago v. Chicago & A. 
 
 R. Co. 3 Inters. Com. 
 
 Rep. 233_ 724 
 
 of Troy v. Alabama Midland 
 
 R. Co. 4 Inters. Com. 
 
 Rep. 348 
 
 535, 683, 685, 687, 715 
 
 Boards of Trade Union v. Chicago, 
 
 M. & St. P. R. Co. 1 
 
 Inters. Com. Rep. 608. 
 
 .572, 710 
 
 Boatmen's Sav. Bank v. Western 
 
 & A. R Co. 81 Ga. 221 114 
 Boaz V. Central R. & Bkg. Co. 87 
 
 Ga. 463 242, 1006 
 
 Bodley v. Reynolds. 8 Q. B. 779.. 968 
 Boedefeld v. Reed, 55 Cal. 299 ... 489 
 Boehl V. Chicago, M. & St. P. R. 
 
 Co. 44 Minn. 191, 45 
 
 Am. & Eng. R. Cas. 351 
 
 ...50, 52. 194. 253, 254, 279 
 Bogg V. Wilmington, C. & A. R. 
 
 Co. 14 L. R. A. 596, 109 
 
 N. C. 279.. 488 
 
 Bohannan v. Hammond, 42 Cal. 
 
 227 11 35 
 
 Bohemia, The,"38 Fed RepyVsG.. 156 
 Boies V. Hartford & N. H. R. Co. 
 
 37 Conn. 272. 188 
 
 Bonanno v. Boskenna Bay, The, 36 
 
 Fed. Rep. 697 227 
 
 Boner «. Merchants SS. Co. 1 Jones, 
 
 L. 211 ...320, 321 
 
 Bonner «. Blum (Tex. Civ. App.) 
 
 Jan. 25, 1894. 36 
 
 Bonsteel v. Vanderbilt, 21 Barb. 26 339 
 Boorman v. American Exp. Co. 21 
 
 Wis. 154 200, 202, 221 
 
 Bork V. Norton, 2 McLean, 422.. «73 
 Borries v. Hutchinson, 34 L. J. C. 
 
 P. 169 279 
 
 Boscowitz V. Adams Exp. Co. 93 
 
 111. 523, 34 Am. Rep. 
 
 191. ...7, 18, 130, 213, 1012 
 Boskenna Bay, The, 22 Fed. Rep. 
 
 662 952 
 
 Boston, The, 1 Low. Dec. 464 944 
 
 Boston V. Crowley, 38 Fed. Rep. 
 
 202 1049 
 
 Boston & A. R. Co. •». Boston & 
 
 L. R. Co. 1 Inters. Com. 
 
 Rep. 571 531. 
 
 582, 647, 648, 651, 653 
 
 V. Shanly, 107 Mass. 568... 89 
 
 2 
 
 Boston & M. R. Co. •P.York County 
 
 Comrs. 79 Me. 386 ... . 531 
 Boston, C. & M. R. Co. v. Slate, 
 
 32 N. H. 215 1090 
 
 Boston Chamber of Commerce v. 
 
 Lake Shore & M. S. R. 
 
 Co. 1 Inters. Com. Rep. 
 
 754 .572, 
 
 573, 598, 699, 730, 734 
 
 Boston Fruit & P. Exch. v. New 
 
 York & N. E. R. Co. 3 
 
 Inters. Com. Rep. 493. 
 
 397. 681 
 
 Bostwick V. Baltimore & O. R. Co. 
 
 45 N. Y. 712 ..94, 
 
 128, 134. 147 
 
 V. Baltimore & O. R. Co. 55 
 
 Barb. 137 129, 151, 316 
 
 Botsford V. Plummer, 67 Mich. 264 327 
 Bowen v. Matheson, 14 Allen. 499 462 
 V. Stoddard, 10 Met. 381... 117 
 Bowering v. Thebaud, 56 Fed. Rep. 
 
 520 22 
 
 Bowman v. Chicago & N. W. R. 
 
 Co. 125 U. S. 465, 31 L. 
 
 ed. 700. 1 Inters. Com. 
 
 Rep. 823 83, 485, 
 
 486, 488, 497, 502, 510, 527 
 V. Teall, 23 Wend. 306, 35 
 
 Am. Dec. 562 161, 
 
 . 320-322, 327, 926 
 
 Boyce «. Anderson, 27 U. S. 2 Pet. 
 
 150, 7 L. ed. 379 926 
 
 Boyd V. Dubois, 3 Campb. 133 ... 253 
 V. Moses, 74 U. S. 7 Wall. 
 
 316, 19 L. ed.l92...85, 305 
 V. United States, 116 U. S. 
 
 616, 29 L. ed. 746 1078 
 
 Boylan v. Hot Springs R. Co. 132 
 
 U. S 146, 33 L. ed. 290.1006 
 Boyle v. McLaughlin, 4 Har. & J. 
 
 291 36 
 
 Bradford v. Cunard SS. Co. 147 
 
 Mass. 58 202 
 
 V. South Carolina R. Co. 7 
 
 Rich. L. 201, 62 Am. 
 
 Dec. 411 412 
 
 Bradley v. Dunipace, 1 Hurlst. & 
 
 C. 521 95 
 
 Bradley Fertilizer Co. v. Edwin I. 
 
 Morrison, The, 153 U 
 
 S. 199, 38L. ed. 688.23, 
 
 .173, 190 
 
 Bradstreet v. Heran, Abb. Adm. 
 
 209 96 
 
 Brady v. Pennsylvania R. Co. 2 
 
 Inters. Com. Rep. 78.. 
 
 603, 683, 719, 730
 
 XV 111 
 
 TABLE OF CASES. 
 
 Braithwaite v. Power, 1 N. D. 455 
 
 413, 853, 873 
 
 Branch v. Wilmington & W. R. 
 
 Co. 88 N. C. 573 1012 
 
 Brands. Lisley, Yelv. 161. _ 109 
 
 Brandt v. Bowlby, 2 Barn. & Ad. 
 
 932. 90, 1004 
 
 Branley v. Southeastern R. Co. 12 
 
 C. B. N. S. 63... 759 
 
 Brantford City, The, 29 Fed. Rep. 
 
 373 .68, 72 
 
 Brasher v. Denver & R. G. R. Co. 
 
 12 Colo. 384 899, 914 
 
 Brass r. Maitland, 6 El. & Bl. 482 
 
 .85,86, 89 
 
 V. North Dakota. 153 U. S. 
 
 391, 38 L. ed. 757 498 
 
 Breese v. United States Teleg. Co. 
 
 48 N. Y. 132, 8 Am. 
 
 Rep. 526 96, 220 
 
 Brehme^-. Adams Exp. Co. 25 Md. 
 
 328 200, 213 
 
 Brennan v. Tracy, 2 Mo. App. 
 
 540 .-1090 
 
 Bretherton v. Wood, 3 Brod. «fe B. 
 
 54 14 
 
 Briddon v. Great Northern R. Co. 
 
 28 L. J. Exch. 51.-320, 
 
 321, 327,331 
 
 Briggs v. Boston & L. R. Co. 6 
 
 Allen, 246, 83 Am. Dec. 
 
 626 319, 860, 863, 865 
 
 V. New York Cent. R. Co. 
 
 28 Barb. 515 919, 1036 
 
 Brinckerhoff v. Brown. 7 Johns. 
 
 Ch. 217. 472 
 
 Brind v. Dale, 8 Car. & P. 207.76, 141 
 Brinkman, Be, 7 Nat. Bankr. Res. 
 
 ■ 425 r. 482 
 
 Brintnall v. Saratoga & W. R. Co. 
 
 32 Vt. 665 366, 388 
 
 Bristol, The, 29 Fed. Rep. 867--- 
 
 61, 358, 1040 
 
 Bristol &E. R. Co. v. Collins, 29 L. 
 
 J. Exch. 41, 5 Hurlst. 
 
 & N. 969, 7 H. L. Cas. 
 
 194 -364, 399, 402, 404 
 
 Bristol & West of England Bank 
 
 V. Midland R. Co. L. R. 
 
 2 Q. B. Div. 653 112 
 
 British Consul, The, v. Thompson, 
 
 Bee, 144 359 
 
 British & F. M. Ins. Co. v. Gulf, 
 
 C. & S. F. R. Co. 63 
 
 Tex. 475, 51 Am. Rep. 
 
 661 1013 
 
 V. Southern Pac. R. Co. 55 
 
 Fed. Rep. 82 410 
 
 Brittan v. Barnaby, 62 U. S. 21 
 How. 527, 16 L. ed. 177 
 
 95, 118, 
 
 845, 847, 857, 939, 964, 966 
 Brittannic, The, 39 Fed. Rep. 395 156 
 Broadnax v. Cheraw & S. R. Co. 
 
 1 Pa. Dist. Rep. 251... 23 
 Broadwell v. Butler, 6 McLean, 
 296, 1 Newb. Adm. 171 
 
 320 939 
 Brooklyn City & N." R." Co. v. Na- 
 tional Bank of the Re- 
 public, 102 U. S. 14, 26 
 
 L. ed. 61 ---.53, 895 
 
 Brooklyn Crosstown R. Co. v. 
 Brooklyn City R. Co. 
 
 51 Hun, 600 424 
 
 Brooks V. American Exp. Co. 14 
 
 Hun, 364 116 
 
 ®. Martin, 69 U. 8. 2 Wall. 
 
 70, 17 L. ed. 732 703 
 
 v. New York, L. E. & W. 
 R. Co. 108 Pa. 529, 56 
 Am. Rep. 235.143, 893, 894 
 V. Oriental Ins. Co. 7 Pick. 
 
 259 -- --- 304 
 
 Brouncker v. Scott, 4 Taunt. 1... 970 
 Brousseau v. Hudson, The, 11 La, 
 
 Ann. 427 179 
 
 Brower v. Peabody, 13 N. Y. 121 
 
 108, 109 
 
 V. Water Witch, The, 19 
 
 How. Pr. 241 871 
 
 Brown, Re, 3 Nat. Bankr. Reg. 250 482 
 V. Adams Exp. Co. 15 W. 
 
 Va. 812 126, 188, 1030 
 
 V. Blunt, 72 Me. 415- 101 
 
 V. Camden & A. R. Co. 83 
 
 Pa. 316 ---86, 893, 894 
 
 V. Clayton, 12 Ga. 564 918 
 
 «. Combs, 63 N. Y. 598. -..1005 
 V. Cunard SS. Co. 147 Mass. 
 
 58 218 
 
 V. Hodgson, 2 Campb. 36.-1003 
 V. Houston, 114 U. S. 622, 
 
 29 L. ed. 257.. 487, 497, 850 
 V. Louisville & N. R. Co. 36 
 
 111. App. 140 136, 183 
 
 V. Manchester, S. & L. R. 
 Co. L. R. 10 Q. B. Div. 
 350, L. R. 8 App. Cas. 
 
 703 42, 44 
 
 V. Maryland, 25 U. S. 12 
 Wheat. 419, 6 L. ed. 678 
 
 ...1070 
 
 V. Powell Duffryn Steam 
 Coal Co. L. R. 10 C. P. 
 562. 138
 
 TABLE OF CASES. 
 
 XIX 
 
 Biown V. Roger Williams Ins. Co. 
 
 5 R. I. 394 223 
 
 «. Roger Williams Ins. Co. 
 
 7 R. I. 301 220 
 
 V. Rounsavell, 78 111. 589-.. 4G5 
 V. Savannah Mut. Ins. Co. 
 
 24 Ga. 97... 220 
 
 V. Wabash, St. L. & P. R. 
 Co. 18 Mo. App. 568.- 
 202, 203 
 
 Brownell v. Columbus & C. M. R. 
 Co. 4 Inters. Cora. Rep. 
 
 285 524, 
 
 534. 549, 554. 561, 593, 778 
 
 Browning r. Goodrich Transp. Co. 
 
 10 L. R. A. 415, 78 Wis. 
 391.... 406, 1028, 1030, 1033 
 
 V. Magill, 2 Har. & J. 308. . 859 
 Bruce v. Wait, 3 Mees. & W. 15.. 1005 
 Brundred v. Rice, 49 Ohio St. 640. 762 
 Bryans v. Nix. 4 Mees. & W. 902_ .1005 
 Bryant i;. Com. Ins. Co. 6 Pick. 131 333 
 V. Southwestern R. Co. 68 
 
 Ga. 805. ...239,241 
 
 Buchanan v. Northern Pac. R. Co. 
 
 3 Inters. Com. Rep. 655 598 
 Bucher v. Cheshire R.Co. 125 U. S. 
 
 555, 31 L. ed. 795 53 
 
 Buckland v. Adams Exp. Co. 97 
 
 Mass. 124, 93 Am. Dec. 
 
 68 7, 82, 396, 912, 914 
 
 Buckfastleigh, T. & 8. D. R. Co. 
 
 V. South Devon R. Co. 
 
 1 Nev. &McN. 321.... 411 
 
 Bucklin v. Beals, 38 Vt. 653 909 
 
 Buckman v. Levi, 3 Campb. 414.. 
 
 ....76, 141 
 
 Budd V. London & N. W. R. Co. 
 
 36 L. T. N. S. 802. 25 
 
 Week. Rep. 752-... 613, 770 
 V. New York, 143 U. 8. 517, 
 ' 36 L. ed. 247, 4 Inters. 
 
 Com. Rep. 45 498 
 
 Buddy V. Waba.sh, St. L. & P. R. 
 
 Co. 20 Mo. App. 206.. 
 
 241, 904 
 
 Budgett V. Binnington [1891] 1 Q. 
 
 B. 35 339 
 
 Buffington v. Curtis, 15 Mass. 527, 
 
 8 Am. Dec. 115 109 
 
 Bulkley v. Naumkeag Steam Cot- 
 ton Co. 65 U. 8. 24 How. 
 
 386, 16 L. ed. 599 
 
 81, 179, 847 
 
 BuUard v. Northern Pac. R. Co. 3 
 Inters. Com. Rep. 576, 
 
 11 L. R. A. 246. 10 
 Mout. 168 836, 851, 886 
 
 Bullert). Fisher, 3 Esp. 67- 164 
 
 Bullock V. Babcock, 3 Wend. 291. 178 
 Bunts V. Cole, 7 Biackf. 265, 41 
 
 Am. Dec. 226 691 
 
 Burditt V. Hunt, 25 Me. 419, 43 
 
 Am. Dec. 289 910 
 
 Burgess v, Seligman, 107 U. S. 20, 
 
 27 L. ed. 359 ..53, 895 
 
 Burke v. South Eastern R. Co. L. 
 
 R. 5C. P. Div. 1 215 
 
 Burlington, C. R. & N. R. Co. v. 
 
 Dey, 12 L. R. A. 436, 
 
 82 Iowa, 31 2.. 426. 521, 602 
 «. Northwestern Fuel Co. 31 
 
 Fed. Rep. 652.. 749, 753, 773 
 Burroughs v. Grand Trunk R. Co. 
 
 67 Mich. 351 126 
 
 ®. Norwich & W. R. Co. 100 
 
 Mass. 26, 1 Am. Rep. 78 
 
 ...365, 402. 414 
 
 Burtis V. Buffalo & 8. L. R. Co. 24 
 
 N. Y. 269...- 394 
 
 Burton v. English, L. R. 2 Q. B. 
 
 Div. 218 -. 127 
 
 V. Wilkinson, 18 Vt. 186, 46 
 
 Am. Dec. 145 935 
 
 Burton Stock Car Co. v. Chicago, 
 
 B. & Q. R. Co. 1 Inters. 
 
 Com. Rep. 329. .430, 576, 594 
 Bush V. St. Louis, K. C. & N. R. 
 
 Co. 3 Mo. App. 62-. 915, 926 
 Bushel V. Wheeler, 15 Q. B. 442... 889 
 Business Mens' Asso. v. Chicago & 
 
 N. W. R. Co. 2 Inters. 
 
 Com. Rep. 48 533, 590 
 
 ®. Chicago, St. P. M. & O. 
 
 R. Co. 2 Inters. Com. 
 
 Rep. 41 578, 590, 
 
 592, 597, 633, 662, 6G4, 684 
 Bussey v. Mississippi Valley 
 
 Transp. Co. 24 La. Ann. 
 
 165, 13 Am. Rep. 120.. 4 
 Butler V. Arrow, The, Newb. 59.. 95 
 V. Boston & 8. SS. Co. 130 
 
 U. S. 527. 22 L. ed. 1017 
 
 .-..60,63 
 
 c. Fisher, 3 Esp. 67 156 
 
 r. Heane, 2 Campb. 415 127 
 
 V. Murray, 30 N. Y. 88, 86 
 
 Am. Dec. 355 866 
 
 C. 
 
 C. Accame, The, 20 Fed. Rep. 642 
 
 1047 
 
 Cafiero v. Welsh, 8 Phila. 130.... 94 
 Caldwell v. Ball, 1 T. R. 205 109
 
 XX 
 
 TABLE OF CASES. 
 
 Caldwell v. New Jersey S. B.Co. 56 
 
 Barb. 425..-. 169 
 
 V. New Jersey S. B. Co. 47 
 
 N. Y.283 1032 
 
 Caledonia, The, 43 Fed. Rep. 681 
 
 ... 21, 156, 190,344 
 
 California v. Central Pac. R. Co. 
 
 127 U. S. 1, 33 L. ed. 
 
 150, 2 Inters. Com. Rep. 
 
 153 488, 492 
 
 Callender ®. Insurance Co. of N. A. 
 
 5Binn. 525 873 
 
 Calvin v. Newberry, 6 Bligh. N. S. 
 
 189 26 
 
 Camblos v. Philadelphia & R. R. 
 
 Co. 9Phila. 411 593 
 
 Cambridge v. Anderton, 2 Barn. & 
 
 C. 693 867 
 
 Camden & A. R. Co. v. Baldauf, 
 
 16 Pa. 67, 55 Am. Dec. 
 
 481 .41. 42, 127 
 
 V. Forsyth, 61 Pa. 81 
 
 ....184, 316, 393,400 
 
 V. Megs Landing & E. H. C. 
 
 R. Co. 48 N. J. L. 28.. 433 
 Camden »& A. R. & Transp. Co. v. 
 
 Belknap, 21 Wend. 354 84 
 V. Brady, 66 U. S. 1 Black, 
 
 62, 17L. ed.84 349 
 
 Cameron v. Rich, 4 Slrobh. L. 168, 
 
 53 Am. Dec. 670.. 1028, 1032 
 Cammell v. Sewell, 3 Hurlst & N. 
 
 617 866 
 
 Camp V. Hartford & N. Y. S. B. 
 
 Co. 43 Conn. 333 
 
 50, 54, 1006 
 
 Campbell v. Chicago, M. & St. P. 
 
 R. Co. 17 L. R. A. 443, 
 
 4 Inters. Com. Rep. 203, 
 
 86 Iowa, 587 ..527.528 
 
 V. Marietta & C. R. Co. 23 
 
 Ohio St. 168- - 591, 852 
 
 V. Morse, 1 Harp. L. 468... 
 
 13, 159, 174, 176, 317 
 
 Canada G. T. R. Co. v. Stevens, 95 
 
 U. S. 655, 24 L. ed. 535 72 
 Canada Southern R. Co. v. Inter- 
 national Bridge Co. L. 
 
 R. 8 App. Cas. 723 577 
 
 Candee v. Pennsylvania R. Co. 21 
 
 Wis. 582, 94 Am. Dec. 
 
 566 396 
 
 Canfield v. Baltimore & O. R. Co. 
 
 93 N. Y. 532, 45 Am. 
 
 Rep. 268. --53. 56. 147,1030 
 Canisteo, The, 47 Fed. Rep. 908.. 355 
 Cannan v. Meaburn, 1 Bing. 243.. 
 
 866,867 
 
 Cannon v. Jackson, 40 Ark. 417.. 101 
 V. New Orleans, 87 U. 8. 20 
 
 Wall. 577, 22 L. ed. 417 496 
 Cantu V. Bennett, 39 Tex. 303.893, 894 
 Cantwell v. Pacific Exp. Co. 58 
 
 Ark. 487 323 
 
 Capehart v. Louisville & N. R. Co. 
 
 3 Inters. Com. Rep. 278 
 
 ..424,670, 671,677,680, 877 
 V. Seaboard & R. R. Co. 81 
 
 N. C. 438... 224 
 
 Card V. Hine. 39 Fed. Rep. 818.260. 330 
 Cardwell v. American River Bridge 
 
 Co. 113 U. S. 205, 28 L. 
 
 ed. 959 496 
 
 Carew v. Rutherford, 106 Mass. 1, 
 
 8 Am. Rep. 297 462 
 
 Carl Gustaf, The, 53 Fed. Rep. 846 354 
 
 Carlotta, The, 9 Ben. 6 158 
 
 Carolina, The, 30 Fed. Rep. 199. _ 871 
 Caroline Miller. The, 53 Fed. Rep. 
 
 136 .- 139 
 
 Carpenter v. Providence Washing- 
 ton Ins. Co. 41 U. S. 16 
 
 Pet. 495, 10 L. ed. 1044 53 
 Carr v. Lancashire & Y. R. Co. 7 
 
 Exch. 711 755 
 
 V. Schafer, 15 Colo. 48_.16, 340 
 Carriage of Persons Free or at Re 
 
 duced Rates, Re, 3 
 
 Inters. Com. Rep. 717.. 534 
 Carrier v. Chicago, R. I. & P. R. 
 
 Co. 6 L. R. A. 799, 79 
 
 Iowa, 80... 878 
 
 V. Concord R. Corp. 48 N. 
 
 H.321.-. 433 
 
 Carroll v. Missouri Pac. R. Co. 88 
 
 Mo.239,57 Am.Rep.382. 1012 
 V. Southern Exp. Co. 37 S. 
 
 C. 452 9 
 
 V. Walton & W. Co. 48 Fed. 
 
 Rep. 123 87 
 
 Carstairs ®. Mechanics & T. Ins. 
 
 Co. 18 Fed. Rep. 473.. 
 
 1012. 1017 
 
 Carter v. Humboldt F. Ins. Co. 12 
 
 Iowa, 287 220 
 
 V. Peck, 4 Sueed, 203, 67 Am. 
 
 Dec. 604 75, 366 
 
 Cartwright's Case. 114 Mass. 230.. 1088 
 
 Casco, The, 4 Law Rep. 471 25 
 
 Casco, The, 2 Ware, 188. 871 
 
 Cass V. Boston & L. R. Co. 14 
 
 Allen, 448---- 389 
 
 Caterham R. Co. v. London, B. «& 
 
 S. C. R. Co. 1 C. B. N. 
 
 S. 410, 1 Nev. & McN. 
 
 32 776
 
 TABLE OF CASES. 
 
 Catharine, The, v. Dickinson, 58 
 
 U. S. 17 How. 170, 15 
 
 L. ed. 233 359 
 
 Catlcy «. WintringhanQ, Peake, 150 893 
 Caxon V. Great Western R. Co. 29 
 
 L. J. Exch. 165 399 
 
 Cayuga, The, v. Hoboken Land & 
 
 Imp. Co. 81 U. S. 14 
 
 Wall. 270, 20 L. ed. 828 
 
 -.60. 1040 
 
 Caze V. Baltimore Ins. Co. 11 U. 
 
 S. 7 Cranch, 359, 3 L. 
 
 ed. 370 878 
 
 C. E. Conrad, The, 57 Fed. Rep. 
 
 256 326 
 
 Central & M. R. Co. v. Morris, 68 
 
 Tex. 49. 847 
 
 Central Ohio Salt Co. v. Guthrie, 
 
 35 Ohio St. 666..- 461 
 
 Central R. & Bkg. Co. v. Avant, 
 
 80 Ga. 195 392 
 
 V. Georgia Fruit & V. Exch. 
 
 (Ga.) 55 Am. & Ene. R. 
 
 Cas. 606 .....^.... 347 
 
 V. Hasselkus, 91 Ga, 382... 
 
 ..129, 226,398 
 
 «. Hines, 19 Ga. 203 35 
 
 V. Lampley, 76 Ala. 357, 52 
 
 Am. Rep. 334 2, 74 
 
 V. State, 54Ga. 401 431 
 
 Central R. Co. v. Collins, 40 Ga. 
 
 583.. 431,442, 462, 690 
 
 V. Dwight Mfg. Co. 75 Ga. 
 
 609 134 
 
 Central Trust Co. v. Ohio Cent. R. 
 
 Co. 23 Fed. Rep. 306, 
 
 23 Am. & Eng. R. Cas. 
 
 666_ 699, 703 
 
 V. Wabash, St. L. & P. R. 
 
 Co. 31 Fed. Rep. 441.. 159 
 V. Wabash, St. L. & P. R. 
 
 Co. 38 Fed. Rep. 561.. 602 
 Central Vermont R. Co. v. Soper, 
 
 59 Fed. Rep. 879 1039 
 
 Centurion, The, 57 Fed. Rep. 412. 
 
 -. .307, 309 
 
 Ceres, The, 7 W. N. C. 576 1047 
 
 Chaffee v. Mississippi & T. R. Co. 
 
 59 Miss. 182 889 
 
 Chamber of Commerce of Minne- 
 apolis v. Great Northern 
 
 R. Co. 4 Inters. Com. 
 
 Rep. 230.. ...717, 720 
 
 Chamberlain v. Ward, 62 U. S. 21 
 
 How. 548, 16 L. ed. 211 24 
 v. Western Transp. Co. 45 
 
 Barb. 218 187 
 
 Chambers v. Grantzon, 7 Bosw. 414 867 
 
 Champion r. Bostwick, 18 Wend. 
 
 175, 31 Am. Dec. 376.. 413 
 Champneys v. Peck, 1 Stark. 404. 954 
 Chandler v. Belden, 18 Johns. 157, 
 
 9 Am. Dec. 193.. 109 
 
 V. Sprague, 5 Met. 306, 38 
 
 Am. Dec. 404 93, 1004 
 
 Chapin v. Chicago, M. & St. P. R. 
 
 Co. 79 Iowa, 582. 161 
 
 Chaplin v. Rogers, 1 East, 192.891, 964 
 Chapman v. Chicago & N. W. R. 
 
 Co. 26 Wis. 295, 7 Am. 
 
 Rep. 81 357 
 
 V. Great Western R. Co. 42 
 
 L. T. N. S. 252 906 
 
 V. New Orleans, J. & G. N. 
 
 R. Co. 21 La. Ann. 224, 
 
 99 Am. Dec. 722 1028 
 
 Charles J. Willard. The, 38 Fed. 
 
 Rep. 759 23, 187, 1028 
 
 Charles Runyon, The, 46 Fed. 
 
 Rep. 813 333 
 
 Charleston & C. S. B. Co. v. Bason, 
 
 1 Harp. L. 262 159. 174 
 
 Chartered Mercantile Bank of 
 
 India v. Netherlands I. 
 
 S. Nav. Co. L. R. 9 Q. 
 
 B. Div. 118, L. R. 10 Q. 
 
 B. Div. 521 66, 349 
 
 Chasca, The. 23 Fed. Rep. 156.... 168 
 Chase v. Washburn, 1 Ohio St. 244, 
 
 59 Am. Dec. 623 84 
 
 Cheboygan Lumber Co. v. Delta 
 
 Transp. Co. 100 Mich. 
 
 16.. 63 
 
 Cheeseman v. Exall, 6 Exch. 341. 927 
 Cherokee Nation v. Southern Kan- 
 sas R. Co. 135 U. S. 641, 
 
 34 L. ed. 295 489, 1074 
 
 Cheshire, The, 2 Sprague, 28.... 871 
 Chester Nat. Bank «. Atlanta & C. 
 
 A. L. R. Co. 25 S. C. 
 
 216 898 
 
 Chevallier v. Straham, 2 Tex. 115, 
 
 47 Am. Dec. 639 178 
 
 Cheviot®. Brooks, 1 Johns. 367. . 333 
 Chicago V. Robbins, 67 U. S. 2 
 
 Black, 418, 17 L. ed. 
 
 298 - 895 
 
 Chicago, etc. R. Co. v. Atty. 
 
 Gen. 9 West J ur. 347.. 439 
 Chicago & A. R. Co. v. Erickson, 
 
 91 111. 613, 33 Am. Rep. 
 
 70 746 
 
 V. People, 67 111. 11, 16 Am. 
 
 Rep. 599 
 
 ..27, 576, 594, 599,735, 
 
 749, 755, 756. 761, 762, 764
 
 XXll 
 
 TABLE OF CASES. 
 
 Chicago & A. R. Co. v. Suffern, 
 27 111. App. 404, aff'd. 
 
 in 129 111. 274 
 
 16, 423, 432, 710 
 
 Chicago & E. I. R. Co. v. Katzen- 
 
 bach, 118 Ind. 174 .... 287 
 Chicago & G. T. R. Co. v. Well- 
 man, 143 U. S. 339, 36 
 
 L. ed. 176 521 
 
 Chicago & I. Coal R. Co. v. De 
 
 Baum, 2 Ind. App. 281 237 
 Chicago & N. W. R. Co. «. Becker, 
 
 33 111. App. 290 856 
 
 v. Chapman, 8 L. R. A. 508, 
 
 133 111. 96 50, 53, 205 
 
 V. Dey, 2 Inters. Com. Rep. 
 325, 1 L. R. A. 744, 35 
 Fed. Rep. 866.537, 540, 541 
 
 V. Fuller, 84 U. S. 17 Wall. 
 
 560, 21 L. ed. 710 484 
 
 V. Merrill, 48 111. 425 116 
 
 V. Monlfort, 60 111. 175 128 
 
 V. Northern Line Packet Co. 
 
 70 111. 218. 399, 400 
 
 «. Osborne, 4 Inters. Com. 
 Rep. 257, 10 U. S. App. 
 430, 53 Am. & Eng. R. 
 Cas. 18, 52 Fed. Rep. 
 912 654. 677, 682 
 
 ®. Sawyer, 69 111. 289. 18 
 
 Am. Rep. 613 158, 342 
 
 Chicago & S. W. R. Co. v. North- 
 western U. Packet Co. 
 
 38 Iowa, 377 856 
 
 Chicago, B. & Q. R. Co. v. Bur- 
 lington, C. R. & N. R. 
 Co. 34 Fed. Rep. 
 481 76 
 
 ®. Cutis, 94 U. S. 155, 24 L. 
 ed. 94.- .....520, 751 
 
 V. Dey, 38 Fed. Rep. 656 .. 540 
 
 ®. Iowa, 94 U. S. 155, 24 L. 
 
 ed. 94 498, 518, 755 
 
 V. Jones, 149 111. 361, 24 L. 
 R. A. 141.... 539 
 
 V. Manning, 23 Neb. 552.. 
 
 188, 1030 
 
 v. Owen, 21 111. App. 339.. 296 
 
 V. Parks. 18 111. 460, 68 Am. 
 
 Dec. 562 770 
 
 Chicago Gaslight & C. Co. v. Peo- 
 ple's Gaslight & C. Co. 
 
 121 111. 530 465, 466 
 
 Chicago, M. & St. P. R. Co. v. 
 Ackley, 94 U. S. 179, 
 24 L. ed. 99 518 
 
 V. Hovt. 149 U. S. 1. 37 L. 
 
 ed. 625 159 
 
 Chicago, M. & St. P. R. Co. ». 
 
 Minnesota.l34U.S. 418, 
 33 L. ed. 970, 3 Inters. 
 Com. Rep. 209.520, 521. 599 
 Chicago, R. I. & P. R. Co. v. Chi- 
 cago & A. R. Co. 2 
 
 Inters. Com. Rep. 721. 685 
 ■». Harmon, 17 111. App. 640 203 
 
 V. Witty, 32 Neb. 275 295 
 
 Chicago, St. L. & N. O. R. Co. v. 
 
 Abels, 60 Miss. 1017.. 
 
 204, 254 
 
 V. Moss, 60 Miss. 1003, 45 
 
 Am. Rep. 428 ....188, 1030 
 V. Pullman Southern Car 
 
 Co. 139 U. S. 79, 35 L. 
 
 ed. 97 460,467 
 
 Chicago, St. P. & K. C. R. Co., 
 
 Re. 2 Inters. Com. Rep. 
 
 137__575, 590, 634, 651. 733 
 Chicago, St. P. M. & O. R. Co. «. 
 
 Becker, 35 Fed. Rep. 
 
 883 541 
 
 Chickering v. Fowler, 4 Pick. 371 
 
 892, 938, 940 
 
 Chidester v. Consolidated Ditch 
 
 Co. 59Cal. 202 174 
 
 Childs V. Little Miami R. Co. 1 
 
 Cin. S. C. (Ohio) 480 -.1028 
 China Mut. Ins. Co. v. Force, 142 
 
 N. Y. 90.. 307. 845,846,863 
 Chippendale v. Lancaster & Y. R. 
 
 Co. 21 L. J. Q. B. N. S. 
 
 22 233 
 
 Chouteau v. St. Anthony, The, 16 
 
 Mo. 216, 20 Mo. 519.... 2 
 t). Union R. & Transit Co. 
 
 22 Mo. App. 286.... 441, 770 
 Chouteaux v. Leech, 18 Pa. 224, 57 
 
 Am. Dec. 602 
 
 94, 171, 333, 337, 412 
 
 Christenson v. American Exp. Co. 
 
 15 Minn. 270, 2 Am. 
 
 Rep. 122.7, 45, 80, 194, 279 
 Christie v. Craigton, The, 41 Fed. 
 
 Rep. 62 168,188 
 
 D. Griggs, 1 Campb. 79 11 
 
 V. Lewis, 2 Brod. & B. 410 
 
 ..26,846 
 
 V. Missouri Pac. R. Co. 2 
 
 Inters. Com. Rep. 22, 94 
 
 Mo. 453.. 571, 707, 740, 749 
 Chseuff. The, 32 Fed. Rep. 237.. 350 
 Churchill v. Welsh, 47 Wis. 39... 909 
 Chy Lung v. Freeman, 92 U. S. 
 
 275, 23 L. ed. 550 482 
 
 Ciampa Amelia, The, 46 Fed. Rep. 
 
 866 354
 
 TABLE OF CASES. 
 
 XXIU 
 
 Cincinnati & L.M. R. Co. v. Boal, 
 
 15Ind. 345 2 
 
 Cincinnati, H. «& D. H. Co. v. Pon- 
 tius, 19 Oiiio St. 221, 2 
 
 An). Rep. 391 414 
 
 V. Spratt, 2 Duv. 4 411, 412 
 
 Cincinnati, I. St. L. & C. R. Co. v. 
 
 Case, 123 Ind. 310.... 
 
 263, 320, 968 
 
 Cincinnati, P. B. S. & P. Packet 
 
 Co. V. Catlettsburg, 105 
 
 U. 8. 559, 26L. ed. 1169 
 
 496. 511, 517 
 
 Citizen's Bank v. Nantucket S. B. 
 
 Co. 2 Story, 17. 2, 32 
 
 Citizen's Ins. Co. v. Kountz Line, 
 
 4 Woods, 268 414 
 
 City Bank v. Rome, W. & O. R. 
 
 Co. 44 N. Y. 136 
 
 ...109, 110, 896 
 
 City of Alexandria, The, 24 
 
 Blatchf. 50,28 Fed. Rep. 
 
 202 81, 311 
 
 City of Carlisle, The, 5 L. R. A. 
 
 52, 39 Fed. Rep. 807.. 1049 
 City of Erie, The, v. Canfield, 27 
 
 Mich. 479 _ 1047 
 
 City of Hartford, The, v. Rideout, 
 
 97U. S. 323, 24L.ed.930 357 
 City of Lincoln, The, 25 Fed. Rep. 
 
 835 -...967, 1049 
 
 City of Macon, The, 47 Fed. Rep. 
 
 919 352 
 
 City of Manchester, The, 5 Prob. 
 
 Div. 221 349 
 
 City of Norwich, The, 3 Ben. 579 14 
 City of Norwich, The, 4 Ben. 271 196 
 City of Para, The, 44 Fed. Rep. 
 
 689 60 
 
 Citv of Springfield, The, 39 Fed. 
 
 Rep. 923 163 
 
 Claflin V. Boston & L. R. Co. 7 
 
 Allen, 341 ..._273, 915 
 
 Clapp V. Stanton, 20 La. Ann. 495, 
 
 96 Am. Dec. 417 4 
 
 Clark, Be, 2 Inters. Com. Rep. 797 
 
 424, 670 
 
 V. Barnwell, 53 U. S. 12 
 
 How. 272, 13 L. ed. 985 
 
 14, 95, 103, 105, 155, 160, 
 
 168, 179. 188, 299, 326, 
 
 887, 919, 1027, 1028, 1031 
 V. Lowell & L. R. Co. 9 
 
 Gray, 231.... 859, 861 
 
 1). Needles, 25 Pa. 338 79 
 
 v. Richards, 1 Conn. 54 167 
 
 V. St. Louis, K. C. & N. R. 
 
 Co. 64 Mo. 440 ....241, 315 
 
 Clarke v. Blackmar. 47 N. Y. 156 689 
 V. Hall & D. Lumber Co. 41 
 
 Minn. 105 117 
 
 V. Hutchins, 14 East, 475.. 137 
 V. Rochester & S. R. Co. 14 
 
 N.Y. 570, 67 Am. Dec. 
 
 205 231, 253 
 
 Clarkson v. Edes, 4 Cow. 470.... 26 
 
 Clay V. Willan, 1 H. Bl. 298 202 
 
 V. Willis, 1 Barn. & C. 156.1045 
 Clayton v. Corby, 2 Q. B. 819. . . . 46 
 Clements. New York Cent. &H.R. 
 
 R. Co. 30 N.Y. S. R.713 908 
 Cleveland & M. R. Co. v. Himrod 
 
 Furnace Co. 37 Ohio St. 
 
 434 - 851 
 
 Cleveland & P. R. Co. v. Sargent, 
 
 19 Ohio St. 438 914 
 
 Cleveland, C. C. & I. R. Co. v. 
 
 Closser, 3 Inters. Com. 
 
 Rep. 387, 9 L. R. A. 
 
 754, 126 Ind. 348 ...20 
 
 571, 573, 603, 688, 689, 
 
 692, 694, 706, 747, 751, 
 
 756, 767, 848, 851, 875, 886 
 Cleveland, P. & A. R. Co. v. Cur- 
 ran, 19 Ohio St. 1,2 Am. 
 
 Rep. 362 1012 
 
 Clyde V. Richmond & D. R. Co. 
 
 57 Fed. Rep. 436 ..539, 576 
 Coates V. United States Exp. Co. 
 
 45 Mo. 238 412 
 
 Cobb V. Abbott, 14 Pick. 289 413 
 
 Cobban t). Downe, 5 Esp. 41 82 
 
 Cobden?). Bolton, 2 Campb. 108.. 127 
 
 Cock V. Taylor, 13 East, 399 846 
 
 Coe V. Errol, 116 U. S. 517, 29 L. 
 
 ed. 715 83, 530 
 
 V. Louisville & N. R. Co. 3 
 
 Fed. Rep. 775 442 
 
 Coggill V. Hartford & N. H. R. 
 
 Co. 3 Gray, 545 865 
 
 Coggs V. Bernard, 2 Ld. Raym. 
 
 919, 1 Smith, Lead. Cas. 
 
 369.-4. 13, 35, 155, 160, 759 
 Cohen v. Hume, 1 McCord, L. 439 81 
 V. Southeastern R. Co. L. R. 
 
 2Exch. Div. 253. 85 
 
 V. Southern Exp. Co. 45 Ga. 
 
 148 399 
 
 Cole V. Goodwin, 19 Wend. 251, 
 
 32 Am. Dec. 470 ....41, 746 
 V. Western U. Teleg. Co. 33 
 
 Minn. 227 275 
 
 «. Williams, 12 Neb. 440... 101 
 Coleman v. Riches. 16 C. B. 104, 
 
 29Eng. L. & Eq. 323.. 
 
 138, 141, 868
 
 XXIV 
 
 TABLE OF CASES. 
 
 Coles V. Central R. & Bkg. Co. 86 
 
 Ga. 251,45 Am. &Eng. 
 
 R.Cas. 328 426, 727 
 
 V. Louisville, E. <fe St. L. R. 
 
 Co. 41 II). App. 607... 221 
 Colgate V. Pennsylvania Co. 102 N. 
 
 Y. 120 897 
 
 Collard v. Southeastern R. Co. 30 
 
 L. J. Exch. ;^93 279 
 
 Collender v. Dinsmore, 55 N. Y. 
 
 200, 14 Am. Rep. 224.. 
 
 32, 96, 103,123 
 
 Collins V. Bristol & E. R. Co. 1 
 
 Hurlst. &N. 517 403 
 
 v. Bristol & E. R. Co. 11 
 
 Exch. 790 312, 315, 364 
 
 V. Burns, 63 N. Y. 1 '... 945 
 
 Collman v. Collins, 2 Hall, 569 ... 859 
 Colt V. McMechen, 6 Johns. 160, 5 
 
 Am. Dec. 200 
 
 13, 14, 164. 170, 174 
 
 Colton V. Cleveland & P. R. Co. 67 
 
 Pa. 211, 5 Am. Rep. 
 
 424 180, 185, 188, 1028 
 
 Columbian Ins. Co. v. Catlett. 25 
 
 U. S. 12 Wheat. 383. 6 
 
 L. ed. 664 873, 946 
 
 Columbo, The. 3 Blatchf. .521.-95, 105 
 Columbus & W. R. Co. v. Ludden, 
 
 89 Ala. 612, 42 Am. & 
 
 Eng. R. Cas. 404.. 904, 968 
 Combe v. London & S. W. R. Co. 
 
 31 L. T. N. S. 613..-. 16 
 Commercen, The, 14 U. S. 1 
 
 Wheat. 382. 4 L. ed. 
 
 118. 2 Gall. 264.... 359, 360 
 Commercial Bank of Keokuk v. 
 
 Pfeififer, 23 Hun, 327.. 112 
 Commercial Transp. Co. v. Fitz- 
 
 hugh, 66 U. S. 1 Black, 
 
 574, 17 L. ed. 107.360, 1045 
 Com. V. Carey, 147 Mass. 40, 
 
 note 33 
 
 V. Carlisle, Bright (Pa.) 36. 462 
 V. Central Bridge Corp. 12 
 
 Cush. 242 ...1089 
 
 V. New Bedford Bridge 
 
 Proprs. 2 Gray, 339 1089 
 
 r O'Harra, 1 Nat. Bankr. 
 
 Reg. 86 482 
 
 n. Power, 7 Met. 596, 41 Am. 
 
 Dec. 465 7.53, 770 
 
 V. Shoe & L. Dealers F. & 
 
 M. Ins. Co. 112 Mass. 
 
 131 1009 
 
 v. Vermont & M. R. Corp. 
 
 4 Gray, 22 1089 
 
 Comota, The, 4 Sawv. 375 1027 
 
 Concord & P. R. Co. v. Forsaith, 
 
 59 N. H. 122, 47 Am. 
 
 Rep. 181 572, 757 
 
 Condict V. Grand Trunk R. Co. 54 
 
 N. Y. 500. ..75, 
 
 177, 178, 186, 331, 388, 395 
 Condon v. Marquette & O. R. Co. 
 
 55 Mich. 218, 54 Am. 
 
 Rep. 367.. ..389, 390 
 
 Congar v. Chicago & N. W. R. Co. 
 
 24 Wfs. 157, 1 Am. Rep. 
 
 164 914 
 
 V. Galena & C. U. R. Co. 17 
 
 Wis. 485 902 
 
 Conger v. Hudson River R. Co 6 
 
 Duer, 375 326, 341 
 
 Conkey v. Milwaukee & St. P. R. 
 
 Co. 31 Wis. 619, 11 Am. 
 
 Rep. 630 ..386, 390 
 
 Connecticut Mut. L. Ins. Co. v. 
 
 Duerson, 28 Gratt. 630.1043 
 Connemara, The, 51 Fed. Rep. 
 
 304 240 
 
 Conover v. Pacific Exp. Co. 40 Mo. 
 
 App. 31 48, 204 
 
 Conrad v. Atlantic Ins. Co. of N. 
 
 Y. 26 U. S. 1 Pet. 386, 
 
 7L. ed. 189.. 107 
 
 Considerant v. Brisbane, 22 N. Y. 
 
 389 1007 
 
 Constable v. National SS. Co. 154 
 
 U. S. 51. 38 L. ed. 903. 
 
 939, 943, 963. 1040 
 
 Converse v. Boston & M. R. Co. 
 
 58 N. H. 521 914 
 
 V. Brainerd, 27 Conn. 607.. 156 
 «. Norwich & N. Y. Transp. 
 
 Co. 33 Conn. 166 
 
 ...79,366, 391, 394 
 
 Conway v. Tavlor, 66 U. S. 1 
 
 Black, 603, 17 L. ed. 
 
 191 496, 504 
 
 Cook V. Chicago, R. I. & P. R. 
 
 Co. 3 Infers. Com. Rep. 
 
 383, 9 L. R. A. 764, 81 
 
 Iowa. 551 571, 
 
 706, 753, 756, 767, 875, 886 
 V. Erie R. Co. 58 Barb. 312. 968 
 t\ Gourdin, 2 Nott. & McC. 
 
 19 81 
 
 V. Loomis, 26 Conn. 483.-. 909 
 Cooley V. Minnesota Transfer R. 
 
 Co. 53 Minn. 327 857 
 
 V. Philadelphia Port War- 
 dens, 53 U. S. 12 How. 
 
 299, 13 L. ed. 996 
 
 ..486, 496, 510 
 
 Cooper V. Berry, 21 Ga. 526 45
 
 TABLE OF OAbiiS. 
 
 XXV 
 
 Cooper v. Kane, 19 Wend. 386, 33 
 
 Am. Dec. 512 385 
 
 V. London & S. W. R. Co. 
 
 4 C. B. N. S. 738, 27 L. 
 
 J. C. P. 324, 1 Nev. & 
 
 McN. 185 ...723, 781 
 
 Cope ». Cordova, 1 Rawle, 203... 
 
 891-893, 938, 940, 966 
 
 Copeland v. New England M. Ins. 
 
 Co. 2 Met. 432_.-1009, 1010 
 Copp V. Louisville «& N. R. Co. 3 
 
 Inters. Com. Rep. 625, 
 
 12 L. R. A. 725, 43 La. 
 
 Ann. 511 1050 
 
 Corbett «. Chicago. St. P. M. &0. 
 
 R. Co. 86 Wis. 82 264 
 
 Corier Maritimo, The, 1 C. Rob. 
 
 Adm. 241 359 
 
 Cory V. Thames Iron Works & S. 
 
 B. Co. 37 L. J. Q. B. 
 
 68 279 
 
 Costa Rica, The, 3 Sawy. 540 .. . 160 
 Costello V. 734,700 Laths, 44 Fed. 
 
 Rep. 105 137. 854, 863 
 
 V. Syracuse, B. & N. Y. R. 
 
 Co. 65 Barb. 92.. 16 
 
 Costigan v. Michael Transp. Co. 
 
 33 Mo. App. 269, 38 
 
 Mo. App. 219 165 
 
 Cottingham v. Grand Trunk R. 
 
 Co. 7 Mont. L. Rep. 
 
 (Sup. Ct.)385 860, 908 
 
 CottrilU. Krum, 100 Mo. 398.... 101 
 Couch V. Watson Coal Co. 46 
 
 Iowa, 20. 903 
 
 Council «. Western & A. R. Co. 1 
 
 Inters. Com. Rep. 638.1052 
 Counselmant). Hitchcock, Sinters. 
 
 Com. Rep. 816, 142 U. 
 
 S. 547, 35 L. ed. 1110.. 1078 
 Coup V. Wabash, St. L. & P. R. 
 
 Co. 56 Mich. Ill, 56 
 
 Am. Rep. 374 2, 5, 74 
 
 CouDland «. Housatonic R. Co. 15 
 
 L. R. A. 534, 61 Conn. 
 
 531 ..125, 212 
 
 229, 235, 253, 281, 292, 879 
 Covington & C. Bridge Co. v. 
 
 Kentucky, 154 U. S. 
 
 204, 38 L. ed. 962.. 502, 505 
 Covington Slock Yards Co. «. 
 
 Keith, 139 U. S. 128, 35 
 
 L. ed. 73 236 
 
 Cowan V. Bond, 2 Inters. Com. 
 
 Rep. 542 636, 687, 783 
 
 Cowden v. Pacilic Coast SS. Co. 18 
 
 L. R. A. 221, 94 Cal. 
 
 470 734 
 
 Cox V. Bruce, L. R. 18 Q. B. Div. 
 
 147 138 
 
 V. Columbus & W. R. Co. 
 
 91 Ala. 392 907, 914 
 
 V. Peterson, 30 Ala. 608, 68 
 
 Am. Dec. 145.118, 160, 178 
 Coxe v. Harden, 4 East, 211.1004, 1005 
 V. Lehigh Valley R. Co. 3 
 
 Inters. Com. Rep. 460.. 
 
 .549, 590 
 
 599, 654, 683, 727, 787, 789 
 Cozon V. Great Western R. Co. 5 
 
 Hurlst. & N. 274 364 
 
 Craft V. McConoughy, 79 111. 346, 
 
 22 Am. Rep. 171, ..461, 694 
 Cragin v. Lovell, 109 U. S. 194, 27 
 
 L. ed. 903 954 
 
 V. New York Cent. R. Co. 51 
 
 N. Y. 61, 10 Am. Rep. 
 
 559.. 51, 239, 254 
 
 Crandall v. Nevada, 73 U. S. 6 
 
 Wall. 35, 18 L. ed. 745 
 
 ..486, 497 
 
 Crapo V. Kelly, 83 U. S. 16 Wall. 
 
 610, 21 L. ed. 430 109 
 
 Crass V. Memphis & C. R. Co. 96 
 
 Ala. 447.. 857 
 
 Crawford v. Southern R. Asso. 51 
 
 Miss. 222, 24 Am. Rep. 
 
 626 366 
 
 V. Wick, 18 Ohio St. 190. 18 
 
 Am. Dec. 103 740 
 
 Cray v. Hartford Ins. Co. 1 Blatchf. 
 
 280 221 
 
 Creery ». Holly, 14 Wend. 26 
 
 96, 301, 304 
 
 Crenshaw v. Pearce, 43 Fed. Rep. 
 
 803. 99, 414 
 
 Cressington, The, [1891] Prob. 152 170 
 Crews V. Richmond & D. R. Co. 1 
 
 Inters. Com. Rep. 703. 
 
 409,575, 
 
 592, 715, 719, 733, 774, 775 
 Crofts V. Waterhouse, 3 Ring. 319 11 
 Cronkite v. AVells, 32 N. Y. 247 .. 80 
 Crosby v. Fitch, 12 Conn. 410, 3il 
 
 Am. Dec. 745 
 
 4, 35, 161, 164, 
 
 185, 310, 312, 317. 320, 946 
 Cross V. McFaden, 1 Tex. Civ. 
 
 App. 461 265 
 
 v. O'Donnell, 44 N. Y. 661, 
 
 4 Am. Rep. 721 889 
 
 Crossan v. New York & N. E. R. 
 
 Co. 3 L. R. A. 766, 149 
 
 Mass. 196 259, 863 
 
 Crouch V. Great Northern R. Co. 
 
 llExcb. 742 279
 
 XXVI 
 
 TABLE OF CASES. 
 
 Crouch V. Great Northera R. Co. 34 
 
 Eng. L. & Eq. 572.. 758, 760 
 V. Great Western R. Co. 2 
 
 Hurlst. & N. 491, 3 
 
 Hurlst. & N. 183 364 
 
 V. London & N. W. R. Co. 
 
 2Car. &K. 789 76 
 
 V. London & N. W. R. Co. 
 
 14 C. B. 256, 7 Excb. 
 
 705 41, 85, 86, 296, 758 
 
 Crowley «. Cohen, 3 Barn. & Ad. 
 
 478 1009 
 
 Crownhurst v. Amersham Burial 
 
 Board, L. R. 4 Exch. 
 
 Div. 5 --- 87 
 
 Cuflf V. 95 Tons of Coal, 46 Fed. 
 
 Rep. 670 - 863 
 
 Culbreth v. Philadelphia, W. &B. 
 
 R. Co. 3 Houst. (Del.) 
 
 392. 310 
 
 Cumberland "Valley R. Co's App. 
 
 62 Pa. 218... 760 
 
 Cumming v. Barracouta, The, 40 
 
 Fed. Rep. 498 917 
 
 Cummings v. Saux. 30 La. Ann. 207 694 
 Currier v. Concord R. Corp. 48 N. 
 
 H.325 701 
 
 The Curtis, The Camden and The 
 
 Welcome, The City of 
 
 Milwaukee, Libelant, 3 
 
 L. R. A. 711, 37 Fed. 
 
 Rep. 705 1048 
 
 Curtis V. Chicago & N. W. R. Co. 
 
 18 Wis. 312 327 
 
 V. Delaware, L. & W. R. Co, 
 
 74 N. Y. 116, 30 Am. 
 
 Rep. 271 896 
 
 Cutting V. Florida R. & Nav. Co. 
 
 3 Inters. Com. Rep. 665, 
 
 46 Fed. Rep. 641 531 
 
 V. Florida R. & Nav. Co. 4 
 
 Inters. Codq. Rep. 424, 
 
 30 Fed. Rep. 663. 574 
 
 V. Grand Trunk R. Co. 13 
 
 Allen, 381 ..1036 
 
 Cutts V. Brainerd, 42 Vt. 566, 1 
 
 Am. Rep. 353 396, 397 
 
 D. 
 
 Daggett V. Shaw, 3 Mo. 264 85 
 
 Dale V. Hall, 1 Wils. 281.12, 13, 79, 168 
 
 Dame v. Baldwin, 8 Mass. 518 859 
 
 Damora v. Craig, 48 Fed. Rep. 
 
 736 852 
 
 Dan. The, 40 Fed. Rep. 691 302 
 
 Dana v. Kemble, 19 Pick. 112.... 954 
 
 Daniel Ball, The, v. United States, 
 77 U. S. 10 Wall. 557, 
 
 19 L. ed. 999 83, 529 
 
 Daniel Burns, The, 52 Fed. Rep. 
 
 159 918 
 
 Daniels v. Ballantine, 23 Obio St. 
 
 532, 13 Am. Rep. 264.. 
 
 176, 177 
 
 Darling v. Boston & W. R. Corp. 
 
 11 Allen, 295.. 398 
 
 Davenport Nat. Bank v. Homeyer, 
 
 45 Mo. 145, 100 Am. 
 
 Dec. 363 107 
 
 Davidson «. Graham, 2 Ohio St. 
 
 131 41, 45, 96, 194, 1028 
 
 Davis V. Chicago, R. L & P. R. 
 
 Co. 83 Iowa, 744 218 
 
 V. Cincinnati, H. & D. R. 
 
 Co. 1 Disney (Ohio) 23.1038 
 V. Garrett, 6 Ring. 716 
 
 185, 312, 333, 342, 946, 968 
 V. Nuzum (Wis.) 1 L. R. A. 
 
 774 101 
 
 V. Wabash, St. L. & P. R. 
 
 Co. 89 Mo. 319 .- 
 
 172. 178, 1030, 1031 
 
 Dawe V. Morris (Mass.) 4 L. R. A. 
 
 158 - 101 
 
 Dawes v. Peck, 8 T. R. 330 1003 
 
 Dawson v. St. Louis, K. C. & N. 
 
 R. Co. 76Mo. 514.._42, 239 
 Day V. Ridley, 16 Vt. 48, 42 Am. 
 
 Dec. 489 167 
 
 Davton v. Parke, 142 N. Y. 391.. 970 
 Dean v. King, 22 Ohio St. 118.. 94, 141 
 V. Vaccaro, 2 Head. 488, 75 
 
 Am. Dec. 744 966 
 
 Decan v. Shipper, 35 Pa. 239, 78 
 
 Am. Dec. 334... 108 
 
 Decker v. Baltimore & N. Y. R. 
 
 Co. 1 Inters. Corn. Rep. 
 
 434. 30 Fed. Rep. 723.. 488 
 Dedekam v. Vose, 3 Blatchf . 44.. 307 
 DeForest v. Fulton F. Ins. Co. 1 
 
 Hall, 84 1009 
 
 DeGroot v. United States, 72 U. S. 
 
 5 Wall.419,18 L.ed. 700.1083 
 Delaware, The. v. Oregon Iron Co. 
 
 81 U. S. 14 Wall. 579, 
 
 20 L. ed. 779 13, 
 
 93, 94. 96, 103, 118, 140, 
 141, 299, 301-304, 311, 868 
 
 Delaware & H. Canal Co. v. Com. 
 (Pa.) 1 L. R. A. 232, 2 
 Inters. Com. Rep. 222.. 531 
 V. Pennsylvania Coal Co. 75 
 U. 8. 8 Wall. 276. 19 L. 
 ed. 349... 97, 316
 
 TABLE OF CASES. 
 
 Delaware, L. & W. R. Co. «. Cen- 
 tral Stock Yard & T. 
 Co. 43 N. J. Eq. 81.-.. 520 
 V. Trautwein, 7 L. R. A. 435, 
 52 N. J. L. 169, 41 Am. 
 &EDg. R. Cas. 187..-. 11 
 
 Delaware State Grange P. of H. v. 
 New York, P. & N. R. 
 Co. 3 Inters. Com. Rep. 
 554 552 
 
 Del Col V. Arnold, 3 U. S. 3 Dall. 
 
 333, 1 L. ed. 624 358 
 
 Delhi, The, 4 Ben. 319... ..1032 
 
 Deming v. Grand Trunk R. Co. 48 
 N. H. 455, 2 Am. Rep. 
 
 267 75, 331, 1036 
 
 V. Merchants Cotton Press & 
 S. Co. 13 L. R. A. 518, 
 90Tenn. 306.. 183, 187, 1022 
 
 Den V. Hoboken Land & Imp. Co. 
 59 U. 8. 18 How. 272, 
 15 L. ed. 372.... .1074 
 
 Denaby Main Colliery Co. v. Man- 
 chester, S. & L. R. Co. 
 L. R. 11 App. Cas. 97,3 
 Nev.&McN. 441,6 Nev. 
 & McN. 133, L. R. 10 
 H. L.97, 26Am. &Eng. 
 
 R. Cas. 293.. 
 
 565, 576, 594, 
 
 601, 715, 735, 764, 770, 784 
 
 Denmark, The, 27 Fed. Rep. 141. 
 
 -- ...217, 218 
 
 Denny v. New York Cent. R. Co. 
 13 Gray, 481, 74 Am. 
 
 Dec. 645 .150, 
 
 160, 161, 176, 320, 327, 340 
 
 Denver & N. O. R. Co. v. Atchi- 
 son, T. & S. F. R. Co. 
 15 Fed. Rep. 650. 4 Mc- 
 Crarv, 325, 16 Cent. L. 
 J. 209, rev'd 110 U. S. 
 
 667, 28 L. ed. 291 
 
 430, 431, 461, 746 
 
 Denver & R. G. R. Co. v. DeWitt, 
 
 1 Colo. App. 419.. -329, 390 
 
 De Peyster v. Columbian Ins. Co. 
 
 2Cal. 85 .168 
 
 Der Mohr, The, 3 C. Rob. Adm. 
 
 90 360 
 
 Derwort v. Loomer, 31 Conn. 
 
 246 41 
 
 Detroit Board of Trade v. Grand 
 Trunk R. Co. 2 Inters. 
 
 Com. Rep. 199 
 
 - .-.-650,663, 733, 734 
 
 Devereux v. Barclay, 2 Barn. & 
 
 Aid. 702 908 
 
 De Witt Wire Cloth Co. v. New 
 
 Jersey Wire Cloth Co. 
 
 14 N. Y. Supp. 277.... 461 
 De Wolf V. New York Firemen 
 
 Ins. Co. 20 Johns. 214.1004 
 
 Diadem, The, 4 Ben. 247 . 939 
 
 Diamond Match Co. v. Roeber, 106 
 
 N. Y. 473, 60 Am. Rep. 
 
 464. 464 
 
 Dias V. Revenge, The, 3 Wash. C. 
 
 C. 262 25 
 
 Dibble v. Morgan, 1 Woods, 406.. 
 
 164,177, 938, 940 
 
 Dickinson v. Gay, 7 Allen, 29, 83 
 
 Am. Dec. 656 122 
 
 Dickson «. Bell, 5 Maule & S. 198 87 
 Dictator. The, 30 Fed. Rep. 637.. 940 
 
 Dill V. Wareham, 7 Met. 438 703 
 
 Dillard v. Louisville & N. R. Co. 2 
 
 Lea, 288 96, 130, 179 
 
 Dillingham v. Fischl, 1 Tex. Civ. 
 
 App. 546 408, 923 
 
 Dillon V. Barnard, 88 U. S. 21 
 
 Wall. 430, 22 L. ed. 673 473 
 Dinsmore v. Missouri, K. & T. R. 
 
 Co. 3 Am. & Eng. R. 
 
 Cas. 602 755 
 
 Diphwys Casson Slate Co. v. Fes- 
 
 tiniog R. Co. 2 Nev. & 
 
 McN. 73, 32L.T. N. S. 
 
 271. .710, 715 
 
 Dixie, The, 56 Fed. Rep. 403 106 
 
 Dixon V. Baldwin, 5 East, 181 .... 889 
 V. Dunham, 14 111. 324.. 941, 944 
 Doan V. St. Louis, K. & N. W. R. 
 
 Co. 38 Mo. App. 408.. 
 
 ..-.12,15, 196, 201 
 
 Doanei). Russell, 3 Gray, 382 866 
 
 Dobbins v. Michigan Cent. R. Co. 
 
 56 Mich. 522 -- 914 
 
 Dodd V. Farlow, 11 Allen, 426, 87 
 
 Am. Dec. 726 122 
 
 Dodge V. Boston & B. SS. Co. 2 L. 
 
 R. A. 83, 148 Mass. 207 11 
 
 V. Meyer, 61 Cal. 405 107 
 
 Doe V. Turford, 3 Barn. & Ad. 890 954 
 Doolan v. Midland R. Co. 10 Ir. C. 
 
 L. Rep. 47 260 
 
 Doris Eckhoflf, The, 32 Fed. Rep. 
 
 555 350 
 
 Dorr V. New Jersey Steam Nav. 
 
 Co. 11 N. Y. 485, 62 
 
 Am. Dec. 125 
 
 -.41, 45, 96, 136. 220 
 
 Doty V. Strong, 1 Pinney, 313, 40 
 
 Am. Dec. 773.... 85 
 
 Douglas V. Moody. 9 Mass. 550 334 
 
 V. Scougall. 4Dow. P. C. 269 192
 
 XXVIU 
 
 TABLE OF CASES. 
 
 Dow V. Beidelman, 125 U. S. 680, 
 
 31 L. ed. 841, 2 Inters. 
 
 Com. Rep. 56.- 
 
 .509,518. 557, 599 
 
 Doward v. Lindsay, L. R. 5 P. C. 
 
 338 - 350 
 
 Down V. Fremont. 4 Campb. 40-- 218 
 Downs V. National Exch. Bank of 
 
 Milwauliee, 91U.S. 618, 
 
 23 L. ed.214 113 
 
 Dows V. Cobb, 12 Barb. 310, 10 N. 
 
 Y. Leg. Obs. 161-1005,1006 
 «. Greene. 24 N. Y. 638 
 
 .- 108, 110, 901 
 
 ■B. Greene, 32 Barb. 490.--. 
 
 .-- 1005, 1006 
 
 V. National Exch. Bank, 91 
 
 U. S. 618, 28 L. ed. 214 
 
 107, 907 
 
 V. Perrin. 16 N. Y. 325..-. 108 
 Druid, The. 1 W. Rob. Adm. 391 25 
 D. S. Gregory, The, 2 Ben. 226.. 357 
 Duff V. Budd, 8 Brod. & B. 177-. 
 
 314, 908, 915,1004 
 
 Duling V. Philadelphia, W. & B. 
 
 R. Co. 66 Md. 120 965 
 
 Duncan v. Atchison, T. & S. F. R. 
 
 Co. 4 Inters. Com. Rep. 
 
 885..- 410, 
 
 549, 560, 590, 596, 680, 782 
 Dundee, The, 1 Hagg. Adm. 109. 
 
 -- 25, 357, 1045 
 
 Dunham v. Boston & M. R. Co. 70 
 
 Me. 164, 85 Am. Rep. 
 
 314 386, 392, 905 
 
 Dunlap V. International S. B. Co. 
 
 98 Mass. 317 50 
 
 Dunlop r. Lambert, 6 Clark & F. 
 
 600 - 1007 
 
 Dunn V. Hannibal & St. J. R. Co. 
 
 68 Mo. 268 239, 245 
 
 Dunselh v. Wade, 3 111. 285 36, 315 
 
 Duntley v. Boston & M. R. Co. (N. 
 
 H.) 9 L. R. A. 449.207, 
 
 280, 282, 283, 285, 1013, 1035 
 Dupont V. Vance, 60 U. S. 19 How. 
 
 162, 15 L. ed. 584... 22, 311 
 Durgin v. American Exp. Co. (N. 
 
 H.)9L. R. A. 453 
 
 7, 9, 46. 52, 130, 
 
 194, 201, 203, 207, 281, 1012 
 Dutton V. Solomonson, 3 Bos. & 
 
 P. 584 1003 
 
 Dwight V. Brewster, 1 Pick. 50, 11 
 
 Am. Dec. 133 3, 80 
 
 Dwyer v. Gulf, C. & S. F. R. Co. 
 
 7 L. R. A. 478, 75 Tex. 
 
 572 404. 924 
 
 Dye V. Virginia M. R. Co. 9 
 
 Mackey, 63 413 
 
 Dyer v. Great Northern R. Co. 51 
 
 Minn. 345 898 
 
 V. National Steam Nav. Co. 
 
 14 Blatchf. 483, 24 Int. 
 
 Rev. Rec. 198 857 
 
 Dygert». Bradley, 8 Wend. 473-. 161 
 Dyke v. Erie R. Co. 45 N. Y, 113, 
 
 6 Am. Rep. 48 894 
 
 E. 
 
 Eagle V. White, 6 Whart. 505, 87 
 
 Am. Dec. 434- -35, 891, 939 
 Eagle Ins. Co. v. Lafayette Ins. Co. 
 
 9Ind. 443....--.. -221, 222 
 Earl V. Holderness, 4 Bing. 462... 909 
 Earnest v. Southern Exp. Co. 1 
 
 Woods, 573 45. 50, 202 
 
 East & West Junction R. Co..t\ 
 Great Western R. Co. 1 
 
 Nev. & McN. 331 410 
 
 East Anglian R. Co. v. Lythgoe, 2 
 
 Eng. L. &Eq. 333 868 
 
 Eastern SS. Co. v. Smith [1891] 
 
 App. Cas. 310 _-..'..-.. 351 
 Eastern Transp. Line v. Hope, 95 
 
 U. S. 297, 24 L. ed. 477 4 
 East Hartford v. American Nat. 
 
 Bank, 49 Conn. 539 879 
 
 East Line & R. R. Co. v. Hall, 64 
 
 Tex. 615- 80 
 
 V. State, 75 Tex. 434- 689 
 
 Easton v. Dudley, 78 Tex. 236, 45 
 
 Am. & Eng. R. Cas. 340 21 
 V. Houston & T. C. R. Co. 
 
 32 Fed. Rep. 893 751 
 
 V. Worthington, 5 Serg. & 
 
 R. 130-- 859 
 
 East Tennessee & G. R. Co. v. Nel- 
 son, 1 Coldw. 272 
 
 75, 261, 320, 321. 326 
 
 V. Whittle, 27 Ga. 535, 78 
 
 Am. Dec. 741 5 
 
 East Tennessee, V. & G. R. Co. v. 
 
 Hale, 85 Tenn. 69 254 
 
 V. Hermann, 92 Ga. 384 237 
 
 V. Johnson, 85 Ga. 497 406 
 
 V. Johnston. 75 Ala. 596. 51 
 
 Am. Rep. 489..-. 885 
 
 V. Kane, 22 L. R. A. 315, 92 
 
 Ga. 187 327 
 
 V. Rogers, 6 Heisk. 143, 19 
 
 Am. Rep. 589 396 
 
 V. Wright, 76 Ga. 533 
 
 157, 170,405
 
 TABLE OF CASES. 
 
 XXIX 
 
 Eatou V. Neumark, 33 Fed. Rep. 
 
 891, 37 Fed. Rep. 375.. 
 
 ...154, 917 
 
 Eau Claire Board of Trade v. Chi- 
 cago, M. & St. P. R. Co. 
 
 4 luter.s. Com. Rep. 65. 
 
 573, 592, 654. 716, 726, 727 
 Edsall V. Camden & A. R. & 
 
 Transp. Co. 50 N. Y. 
 
 661 55, 127, 147 
 
 Edwards v. Cheraw & D. R. Co. 
 
 32 S. C. 117.. 890 
 
 V. Lycoming County Mut. 
 
 Ins. Co. 75 Pa. 378.... 220 
 
 «. Sherratt, 1 East, 604 75 
 
 V. White Line Transit Co. 
 
 104 Mass. 159, 6 Am. 
 
 Rep. 213 
 
 35, 928, 929, 935. 936 
 
 Eells «. St. Louis, K. & N. W. R. 
 
 Co. 52 Fed. Rep. 903.. 196 
 Egan V. Cargo of Spruce Laths, 43 
 
 Fed. Rep. 480 863 
 
 E. H. Fittler, The, 1 Low. Dec. 
 
 114 941 
 
 Eiswald v. Southern Exp. Co. 60 
 
 Ga. 496 115 
 
 Elkins V. Camden & A. R. Co. 36 
 
 N. J. Eq. 5 442, 690 
 
 V. Empire Transp. Co. 81 
 
 Pa. 315 150, 203 
 
 Ellis ». Turner, 8 T. R. 531 342 
 
 V. Willard, 9 N. Y. 529-... 
 
 94-96 299 
 
 Elliott V. Levings, 54 111. 213 ' 100 
 
 V. New York Cent & H. R. 
 
 R. Co. 33 N. Y. S. R. 
 
 861 56, 194 
 
 «. Rossell, 10 Johns. 1 
 
 4, 12, 13, 103, 
 
 160, 176, 182, 187, 260, 385 
 Elvey V. Illinois Cent. R. Co. 2 
 
 Inters. Com. Rep. 804 
 
 781, 877 
 
 Elwell V. Skiddy, 77 N. Y. 282... 217 
 Ely V. New Haven S. B. Co. 53 
 
 Barb. 207.. 891 
 
 Emerson v. St. Louis & H. R. Co. 
 
 Ill Mo. 161 229 
 
 Emery v. Boston M. Ins. Co. 138 
 
 Mass. 398.. 122 
 
 V. Hersey, 4 Me. 407, 16 Am. 
 
 Dec. 268.. .26, 36 
 
 «. Irving Nat. Bank, 25 Ohio 
 
 St. 360, 18 Am. Rep. 
 
 299_- ...107, 112 
 
 Emma Johnson, The, 1 Sprague, 
 
 527 1027 
 
 Emma Kate Ross, The, 46 Fed. 
 
 Rep. 872 355 
 
 Empire State, The, 2 Ben. 179... 359 
 Empire Transp. Co. v. Steele, 70 
 
 Pa. 190. 109 
 
 V. Wallace. 68 Pa. 302, 8 
 
 Am. Rep. 178 
 
 ..320, 328. 331, 389 
 
 V. Wamsutta Oil R. & M, 
 
 Co. 63 Pa. 14, 3 Am. 
 
 Rep. 515 19, 43. 75, 187 
 
 Energia, The, 56 Fed. Rep. 124.. 53 
 
 Enrique, The, 5 Hughes, 275 169 
 
 Episcopal Charitable Society v. 
 
 Episcopal Church in 
 
 Dedham, 1 Pick. 373.. 703 
 Erie & P. Despatch v. Cecil, 112 
 
 111. 185.... 749 
 
 Erie & W. Transp. Co. v. Dater, 
 
 91 111. 195, 83 Am. Rep. 
 
 51 125 
 
 Erie Dispatch v. Johnson, 87 Tenn. 
 
 490 908 
 
 Erie R. Co. v. Lockwood, 28 Ohio 
 
 St. 358 126 
 
 ■y. Wilcox, 84 111. 239, 25 Am. 
 
 Rep. 451.. 53, 126, 128, 914 
 
 Erwinw. Clark, 13 Mich. 10 118 
 
 Escanaba & L. M. Transp. Co. v. 
 
 Chicago, 107 U. S. 678, 
 
 27 L. ed. 442 496, 510 
 
 Estill V. New York, L. E. & W. 
 
 R. Co. 41 Fed. Rep. 
 
 849. 256, 269 
 
 Etheridge v. Philadelphia, 26 Fed. 
 
 Rep. 43 1047 
 
 Evans v. Eaton, 16 U. S. 3 Wheat. 
 
 454, 4 L. ed. 433, 20 U. 
 
 S. 7 Wheat. 356. 5 L. 
 
 ed. 472, 1 Pet. C. C. 
 
 332 848 
 
 V. Fitchburg R. Co. Ill 
 
 Mass, 142, 15 Am. Rep. 
 
 19 231, 232, 254 
 
 V. Foster, 1 Barn. & Ad. 
 
 118, 20 E. C. L. 420... 970 
 V. Marlett, 1 Ld. Raym. 271.1005 
 i\ Nichol, 4 Scott, N. R. 43.1005 
 V. Oregon R. & Nav. Co. 1 
 
 Inters. Com. Rep. 641 
 
 572, 575 
 
 V. Spreckles, 45 Fed. Rep. 
 
 265 _ 157 
 
 Evansville & C. R. Co. v. Andros- 
 coggin Mills, 89 U. 8. 
 
 22 Wall. 594, 22 L. ed 
 
 724 .396, 405, 412 
 
 V. Young, 28 Ind. 516.254, 1012
 
 XXX 
 
 TABLE OF CASES. 
 
 E7ansville& T. H. R. Co. v. Keith 
 
 8Ind. App. 57 122, 847 
 
 Everett v. Saltus, 15 Wend. 474-- 334 
 Evershed v. London & N. W. R. 
 
 Co. L. R. 3 Q. B. Div. 
 
 134, L. R. 2 Q. B. Div. 
 
 254, L. R. 3 App. Cas. 
 
 1029 614, 771, 773 
 
 Ewartc. Kerr, 2 McMull. L. 141. 860 
 V. Street, 2 Bail. L. 157, 23 
 
 Ani. Dec. 131 11, 
 
 174, 176, 1027, 1028 
 
 Ewbank v. Nutting, 7 C. B. 797-. 866 
 Exchange F. Ins. Co. v. Delaware 
 
 & H. Canal Co. 10 Bosw. 
 
 180 5 
 
 Exe, The. 57 Fed. Rep. 399 169 
 
 Express, The, 46 Fed. Rep. 860 . . 356 
 
 F. 
 
 Fairchild v. Philadelphia, W. & 
 
 B. R. Co. 148 Pa. 527.. 65 
 V. Slocum, 19 Wend. 329, 7 
 
 Hill, 292. ...163, 164 
 
 Falkenau v. Fargo, 55 N. Y. 642. 41 
 
 Falkner v. Earle, 3 Best. & S. 363. 301 
 
 Fanny & Elmira, The, Edw. Adm. 
 
 117 867 
 
 Fargo V. Milburn, 100 N. Y. 94 . . 855 
 V. Stevens, 121 U. S. 230. 30 
 L. ed. 888, 1 Inters. 
 Com. Rep. 51 522 
 
 Farmers & M. Bank v. Charaplain 
 Transp. Co. 23 Vt. 186, 
 56 Am. Dec. 68 944, 964 
 
 Farmers & M. Nat. Bank v. Hazel- 
 tine, 78 N. Y. 104, 34 
 
 Am. Rep. 518 112 
 
 V. Logan, 74 N. Y. 568.... 907 
 
 Farmers Loan & T. Co. v. St. Jo- 
 seph & D. C. R. Co. 1 
 McCrary, 247, 2 Fed. 
 Rep. 117 703 
 
 Farnham v. Camden & A. R. Co. 
 55 Pa. 53... 43, 51, 111, 
 131, 184, 185, 199, 1028, 1030 
 
 Farrant v. Barnes, 11 C. B. N. S. 
 
 558.. ....87, 89 
 
 Farrar v. East Tennessee, V. & G. 
 R. Co. 1 Inters. Com. 
 Rep. 764 592, 688 
 
 Farrell v. Richmond & D. R. Co. 
 3 L. R. A. 647, 102 N. 
 
 C. 390 486 
 
 Faulkner v. Hart, 82 N. Y. 416, 37 
 
 Am Rep.. 754 896 
 
 Faulkner v. Southern Pac. R. Co 
 
 51 Mo. 311 325, 1036 
 
 V. Wright, 1 Rice, L. 107.. 
 
 161, 177 
 
 Faust V. South Carolina R. Co. 8 
 
 S. C. 118- 931 
 
 Favors. Philbrick, 5 N. H. 358.. 939 
 Fay V. Alliance Ins. Co. 16 Gray, 
 
 461 903 
 
 V. New World, The, 1 Cal. 
 
 348 303 
 
 Fearon v. Bowers, 1 Smith, Lead. 
 
 Cas. 864. 901 
 
 Feinberg v. Delaware, L. & W. R. 
 
 Co. 52 N. J. L, 451.-.. 
 
 161, 2.'55, 264, 271 
 
 Fellows v.B.W. Powell, The, 16 
 
 La. Ann. 316, 79 Am. 
 
 Dec. 581 141 
 
 Fenner v. Buffalo & S. L. R. Co. 
 
 44 N. Y. 505, 4 Am. 
 
 Rep. 709 - 966 
 
 V. Buffalo & S. L. R. Co. 46 
 
 Barb. 103 391 
 
 Ferguson v. Cappeau, 6 Har. & J. 
 
 394 .- 96 
 
 Fergusson v. Brent, 12 Md. 33, 71 
 
 Am. Dec. 582 158, 162 
 
 Ferro, The [1893] Prob. 38 307 
 
 Fibel V. Livingston, 64 Barb. 
 
 179 45 
 
 Field V. Chicago & R. I. R. Co. 71 
 
 111. 458 .-128, 130 
 
 V. New York Cent. R. Co. 
 
 32N. Y. 339.. 19 
 
 Fifth Nat. Bank of Chicago v. Bay- 
 ley, 115 Mass. 228 109 
 
 Figgins V. Willie, 2 W. Bl. 1186-. 892 
 Filing Copies of Joint Tariff, Be, 
 
 1 Inters. Com. Rep. 76 881 
 Fillebrown v. Grand Trunk R. Co. 
 
 55 Me. 463, 93 Am. Dec. 
 
 606- -..43, 83, 135, 319, 936 
 Filli V. Delaware, L. & W. R. Co. 
 
 37 Fed. Rep. 65 .-1044 
 
 Finlayson v. Finlayson (Or.) 3 L. 
 
 R. A. 801 101 
 
 Finn «. Western R. Corp. 103 Mass. 
 
 383, 113 Mass. 524. 17 
 
 Am. Rep. 123.343,1007, 1008 
 Finnie v. Gla.«gow & S. W. R. Co. 
 
 2 Macq. H. L. Cas. 177. 
 
 3 Macq. H. L. Cas . 75, 
 26 L. T.ll, 1 Patterson, 
 520 .770, 772, 776 
 
 Firemen's Charitable Asso. v. 
 Berghans, 13 La. A,nn. 
 209 694
 
 TABLE OF CASES. 
 
 XXXI 
 
 First Nat. Bank of Cairo v. Crock- 
 er, 111 Mass. 163 -- 109, 112 
 of Cbeyenae «.Swan. 3 Wyo. 
 
 356 101 
 
 of Green Bay v. Dearborn, 
 115 Mass. 219, 15 Am. 
 
 Rep. 92 107, 109, 112 
 
 of Peoria v. Northern R. Co. 
 
 58 N. H. 203.. 896 
 
 of Starksville v. Meyer, 43 
 
 La. Ann. 1....110, 112, 113 
 of Toledo V. Shaw, 61 N.Y. 
 
 283 - .108, 893 
 
 Fish V. Chapman, 2 Ga. 349, 46 
 
 Am. Dec. 393.. 3, 35, 41, 74 
 
 V. Clark, 49 N. Y. 122 3 
 
 Fisher v. Concord R. Co. 50 N. H. 
 
 208 702 
 
 V. Geddes, 15 La. Ann. 14.. 80 
 Fisk 1). Newton, 1 Denio, 45, 43 
 
 Am. Dec. 649 891 
 
 Fitch V. Newberrv, 1 " Dougl. 
 
 (Mich.) 1,'40 Am. Dec. 
 
 33. -.318, 319, 861, 863, 914 
 
 Fitchburg & W. R. Co. v. Hanna, 
 
 6 Gray, 539, 66 Am. Dec. 
 
 427. 876 
 
 Fitchburg R. Co. v. Gage, 12 Gray, 
 393 
 
 .. 57lV739V746,"749,'756, 763 
 Fitz «. Amelie, The, 73 U. S. 6 
 Wall. 18, 18 L. ed. 806, 
 
 2 Cliff, 440 ...310, 867 
 
 Fitzgerald v. Grand Trunk R. Co. 
 
 3 Inters. Com. Rep. 633, 
 13 L. R. A. 70, 63 Vt. 
 169 757,848,886 
 
 Fitzhugh V. Wiman, 9 N. Y. 559. 1007 
 Fitzsimmons v. Academy of Chris- 
 tian Brothers, 81 Mo. 37 385 
 Flagg V. Baldwin, 38 N. J. Eq. 219, 
 
 48 Am. Rep. 308. ...73, 896 
 
 Flash, The, Abb. Adm. 67. 868 
 
 Flautt V. Lashley, 36 La. Ann. 106 3 
 Fletcher v. Inglis, 2 Barn. & Aid. 
 
 315 171 
 
 V. Peck, 10 U. S. 6 Cranch. 
 
 87, 3 L. ed. 162 1077 
 
 Flinn v. Philadelphia, W. & B. R. 
 
 Co. 1 Houst (Del.) 469. 1012 
 Florence Mach. Co. v. Daggett, 135 
 
 Mass. 582 385 
 
 Florida Fruit Exch. v. Savannah, 
 
 F. & VV. R. Co. 4 Inters. 
 
 Com. Rep. 400.578, 598, 687 
 Foard v. Atlantic & N. C. R. Co. 
 
 53 N. C. 235, 58 Am. 
 
 Dec. 277 1037, 1038 
 
 Foggan v. Lake Shore & M. S. R. 
 
 Co. 40 N. Y. S. R. 718. 
 
 908, 1024 
 
 Feng Yue Ting v. United States, 
 
 149 U. S. 698, 37 L. ed. 
 
 905. 1086 
 
 Fonseca v. Cunard SS. Co. 12 L. 
 
 R. A. 340, 153 Mass. 
 
 553 893 
 
 Forbes v. Boston & L. R. Co. 133 
 
 Mass. 154. Ill, 887, 903, 915 
 Ford V. Cotesworth, L. R. 4 Q. B. 
 
 127 970 
 
 V. London & S. W. R. Co. 
 
 2 Fost. &F. 730 19 
 
 V. Mitchell, 21 Ind. 54 78 
 
 Fordyce v. Johnson, 56 Ark. 430. 
 
 865, 925 
 
 V. McFlvnn, 56 Ark. 424... 
 
 ..." ...235, 255, 297 
 
 Forelanders v. Hicks, 6 Ind. 448.. 691 
 Foreman v. Great Eastern R. Co. 
 
 2Nev. &McN. 202.... 
 
 576, 659, 735 
 
 Forepaugh d. Delaware, L. & W. 
 
 R. Co. 5 L. R. A. 508. 
 
 128 Pa. 217 73, 895 
 
 Forsyth «. Walker, 9 Pa. 148 296 
 
 Ft. Worth & D. C. R. Co. v. Fuller, 
 
 3 Tex. Civ. App. 340 .. 415 
 V. Greathouse, 82 Tex. 104. 
 
 ..52, 194, 267, 269,278, 293 
 «. Whitehead, 6 Tex. Civ. 
 
 App. 595 509 
 
 V. Williams, 77 Tex. 121.. 
 
 259, 415 
 
 Forward v. Pittard, 1 T. R. 27... 
 
 13.36,84, 160, 178,322, 1027 
 
 Foster v. Davenport, 63 U. S. 22 
 
 How. 244, 16 L. ed. 248 530 
 V. Mackinnon, L. R. 4 C. P. 
 
 704.. 100 
 
 V. Sampson, 1 Sprague, 182, 24 
 
 Foulke V. San Diego & G. S. P. R. 
 
 Co. 51 Cal. 365 703 
 
 Foulkes V. Metropolitan Dist. R. 
 
 Co. 28 Week. Rep. 526. 399 
 
 Foulks V. Falls, 91 Ind. 315 97 
 
 Fourth Annual Report of Inter- 
 state Commerce Com- 
 mission, 3 Inters. Com. 
 Rep. 337 676 
 
 Fowle V. Park, 131 U. S. 88, 33 L. 
 
 ed. 67 457, 464 
 
 Fowler v. Liverpool & G. W. Steam 
 
 Co. 87 N. Y. 190 339 
 
 Fowles V. Great Western R. Co. 7 
 
 Exch. 699 364
 
 xxxn 
 
 TABLE OF CASES. 
 
 Fox V. Boston & M. R. Co. 1 L. R. 
 
 A. 702, 148 Mass. 220 
 11, 177, 344 
 
 ®. Holt, 36 Conn. 558 103 
 
 Fraeano «. Long, 4 Barn. & C. 
 
 219... 1003 
 
 Frances, The, 12 U. S. 8 Cranch. 
 
 359, 3 L. ed. 589, 13 U. 
 
 S. 9 Cranch. 183, 3 L. 
 
 ed. 698 359, 1003, 1004 
 
 Frances v. Dubuque & S. C. R. Co. 
 
 25 Iowa, 60, 95 Am. 
 
 Dec. 769... 893 
 
 Franchot v. Leach, 5 Cow. 506-.. 100 
 
 Francis, The. 2 Gall. 391 1003 
 
 Franconia, The, 16 Fed. Rep. 149. 357 
 Frazer v. Bigelow Carpet Co. 141 
 
 Mass. 126 357 
 
 Frazier v. Kansas City, St. J. & C. 
 
 B. R. Co. 48 Iowa, 571 
 77, 78 
 
 Fredericks v. Northern Cent. R. 
 
 Co. 22 L. R. A. 306, 157 
 
 Pa. 103 327 
 
 Fred H. Rice, The, 40 Fed. Rep. 
 
 690 333, 348 
 
 Freeman, The, v. Buckingham, 59 
 
 U. S. 18 How. 182, 15 
 
 L. ed. 341 137, 138, 140 
 
 Freeman v. Birch, 1 Nev. & M. 
 
 420 1004 
 
 I). East India Co. 5 Barn. & 
 
 Aid. 617 866, 867 
 
 French «. Buffalo & E. R. Co. 2 
 
 Abb. App. Dec. 196 .. 1030 
 «). Buffalo, N.Y.&E.R. Co. 
 
 4 Keyes, 108.. 53, 147 
 
 ®. Lafayette Ins. Co. 5 Mc- 
 Lean, 461 221, 222 
 
 Friend ®. Woods, 6 Gratt. 189, 52 
 
 Am. Dec. 119. ..35, 177, 179 
 Friedlander v. Texas & P. R. Co. 
 
 130 U. S. 416. 32 L. ed. 
 
 991 108, 138, 139, 141 
 
 Fry V. Louisville, N. A. & C. R. 
 
 Co. 103 Ind. 265.... 90, 392 
 F. Schumacher Milling Co. v. 
 
 Chicago, R. I. & P. R. 
 
 Co. 4 Inters. Com. Rep. 
 
 373...552, 560, 561, 578, 727 
 Fullam V. New York U. Ins. Co. 
 
 7 Gray, 61, 66 Am. Dec. 
 
 462 .." .• 220, 222 
 
 Fulton V. Chicago, St. P. M. & O.' 
 
 R. Co. 1 Inters. Com. 
 
 Rep. 375.. 532 
 
 V. Lydecker, 41 N. Y. S. R. 
 
 457 273, 907 
 
 Furley v. Chicago, M. & St. P. R. 
 Co. (Iowa) 23 L. R. A. 
 73. 238 
 
 Furman v. Chicago, R. I. & P. R. 
 Co. 81 Iowa, 540, 45 
 Am. & Eng. R. Cas. 385 927 
 V. Union Pac. R. Co. 106 N. 
 
 Y. 579.. 114, 
 
 227, 896, 897, 905, 909, 910 
 
 Furness v. White [1894] 1 Q. B. 483 858 
 
 G. 
 
 Gabay v. Lloyd, 3 Barn. & C. 793 169 
 Gaetano, The, L. R. 7 Prob. Div. 
 
 137 .- 35, 64 
 
 Gage 1}. Meyers, 59 Mich. 300 118 
 
 V. Tirrell, 9 Alien, 299.-54, 171 
 Gaines v. Union Transp. & Ins. 
 
 Co. 28 Ohio St. 418.127,188 
 Galena & C. -U. R. Co. v. Rae, 18 
 111. 488, 68 Am. Dec. 
 
 574 147, 762, 1036 
 
 Galena, D. D. & M. Packet Co. v. 
 Rock Island R. Bridge 
 ("The Rock Island 
 Bridge") 73 U. S. 6 
 Wall. 213, 18 L. ed. 753 
 
 871, 1045, 1047 
 
 Gait v. Adams Exp. Co. McArth. 
 
 & M. 124 8 
 
 Galveston, H. & H. R. Co. v. Al- 
 lison, 59 Tex. 193_-312, 315 
 Galveston, H. & S. A. R. Co. v. 
 
 Ball, 80 Tex. 602 
 
 -.52, 194, 224 
 
 ®. Bowman (Tex. Civ. App.) 
 
 Jan. 17, 1894- -.. 766 
 
 e. Herring (Tex. Civ. App.) 
 
 Jan. 10, 1894 243 
 
 V. Ivey (Tex. Civ. App.) 
 
 Oct. 4.1893 241 
 
 v. Parsley (Tex. Civ. App.) 
 
 Jan. 3. 1894 51 
 
 v. Short (Tex. Civ. App.) 
 
 Feb. 7. 1894 273 
 
 ». Silegman (Tex. Civ. App.) 
 
 Oct. 4, 1893.- 274 
 
 V. Tuckett(Tex. Civ. App.) 
 
 Feb. 7. 1894 .-- 262 
 
 V. Williams (Tex. Civ. App.) 
 
 Feb. 7, 1894- 274, 276 
 
 Garden Grove Bank v. Huraeston 
 & S. R. R. Co. 67 
 
 Iowa, 534 - 903 
 
 Gardner v. Howland, 2 Pick. 
 
 599 109
 
 TABLE OF CASES. 
 
 XXXIU 
 
 Garnett v. Willan, 5 Bam. & Aid. 
 
 53 314 
 
 Garnsey v. Rogers. 47 N. Y. 233, 
 
 7 Am. Rep. 440 958 
 
 Garrigues v. Coxe, 1 Binn. 592, 2 
 
 Am. Dec. 493 167, 168 
 
 Garrison v. Memphis Ins. Co. 60 
 
 U. S. 19 How. 312, 15 
 
 L. ed. 656 
 
 .14, 118, 165. 166, 169, 180 
 Garside??. Trent & M. Nav. Proprs. 
 
 4T. R. 581 891, 896 
 
 Garston Co., The. v. Hickie, L. R. 
 
 18 Q. B. Div. 17 164 
 
 Garten v. Bristol & E. R. Co. 6 C. 
 
 B. N. S. 639, 28 L. J. 
 
 C. P. 306, 1 Nev. & 
 McN. 218. 1 Best & 8. 
 
 112 576, 613, 735, 
 
 749, 758-760, 764, 785, 836 
 
 Gass c. New York, P. & B. R. Co. 
 
 99 Mass. 220, 96 Am, 
 
 Dec. 742 184, 388, 412 
 
 Gatliffe v. Bourne, 4 Bing. K C. 
 
 314... 892, 893,904, 939, 944 
 Gates V. Ryan, 37 Fed. Rep. 154.. 218 
 V. Thomp'son, 57 Me. 442, 
 
 99 Am. Dec. 782 867 
 
 Gaudet v. Brown, L. R. 5 P. C. 236 967 
 Geismer v. Lake Shore & M. S. R. 
 
 Co. 102 N. Y. 563, 55 
 
 Am. Rep. 837 321, 346 
 
 Gelpcke v. Dubuque, 68 U. S. 1 
 
 Wall. 175, 17 L. ed. 520 896 
 Gelvin v. Kansas City, St. J. & C. 
 
 B. R. Co. 21 Mo. App. 
 
 273 260, 265. 266 
 
 General Mut. Ins. Co. v. Sher- 
 wood, 55 U. S. 14 How. 
 
 352, 14 L. ed. 452.. 160. 1007 
 
 Gentleman, The, Olcott, 118 333 
 
 George v. Concord, 45 N. H. 434.. 848 
 V. Tate, 102 U.S. 564, 26 L. 
 
 ed. 232.. 100 
 
 George E. Starr, The, 47 Fed. Rep. 
 
 749 351, 353 
 
 George Washington, The, v. Cavan, 
 
 76 U. S. 9 Wall. 513, 19 
 
 L. ed. 787 357 
 
 Georgia Pac. R. Co. v. Hughart, 
 
 90 Ala. 36-49. 196, 204, 208 
 Georgia Packing Co. ■». JIacon, 22 
 
 L. R. A. 775, 4 Inters. 
 
 Com. Rep. 508, 60 Fed. 
 
 Rep. 774 484 
 
 Georgia R. & Bkg. Co. v. Smith, 
 
 128 U. S. 174, 22 L. ed. 
 
 377 518 
 
 
 
 Georgia R. Co. v. Cole, 68 Ga. 623 389 
 
 V. Gann, 68 Ga. 350. 1012 
 
 V. Murray, 85 Ga. 453. 8 Ry. 
 
 & Corp. L. J. 247 408 
 
 Gerhard v. Neese, 36 Tex. 635 
 
 ..320, 321, 939 
 
 Gerke Brew. Co. v. Louisville & 
 
 N.R. Co. 4 Inters. Com. 
 
 Rep. 267. 650, 653, 654 
 
 Germania F. I us. Co. v. Memphis 
 
 & C. R. Co. 72 N. Y. 
 
 90. 28 Am. Rep. 113, 
 
 Arg7 Hun, 233. 
 
 129, 131, 134,215 
 
 Germania Ins. Co. v. Lady Pike, 
 
 The, 88 U. S. 21 Wall. 
 
 1, 22 L. ed. 499 
 
 12, 21, 24, 887 
 
 Gessley v. Blissouri Pac. R. Co. 32 
 
 Mo. App. 413 889 
 
 Ghormley ». Dinsmore, 19 Jones 
 
 &S. 196 224 
 
 Gibbon v. Paynton, 4 Burr. 2298. 
 
 50. 296 
 
 Gibbons v. Ogden, 22 U. 8. 9 
 
 Wheat. 1, 6 L. ed. 23, 
 
 17 Johns. 488 
 
 94, 481, 489, 
 
 496, 503, 515, 850, 1069, 1070 
 Gibbs v. Consolidated Gas Co. 130 
 
 U. S. 396, 32 L. ed. 979 
 
 ..457, 461, 462, 464-466, 694 
 «. Liverpool Docks Trustees, 
 
 SHurlst. & K 164.... 5 
 
 V. Smith, 115 Mass. 592 691 
 
 Gibson v. American Merchants U. 
 
 Exp. Co. 1 Hun, 387.- 115 
 V. Brown, 44 Fed. Rep. 98.. 854 
 V. Culver, 17 Wend. 305, 31 
 
 Am. Dec. 297 386, 
 
 892, 904. 938, 940. 942, 944 
 v. Stevens, 3 McLean, 562.. 
 
 109, 891, 964 
 
 V. Stevens, 49 U. S. 8 How. 
 
 384, 12 L. ed. 1123 107 
 
 Giglio, The, v. Britannia, The, 31 
 
 Fed. Rep. 432 154, 333 
 
 Gilbert v. Carter, 10 Ind. 16, 68 
 
 Am. Dec. 655 691 
 
 V. New York Cent. & H. R. 
 
 R. Co. 4 Hun, 378, 6 
 
 Thomp. & C. 662 83 
 
 Giles V. Fargo, 43 N. Y. S. R. 65 
 
 -.14, 147 
 
 «. Manchester, S. & L.R.Co. 
 
 L. R. 8Q. B. 186 260 
 
 Gillespie v. St. Louis, K. C. & N. 
 
 R. Co. 6 Mo. App. 554. 175
 
 XX XIV 
 
 TABLE OF CASES. 
 
 GilletttJ. Ellis, 11 111. 579. ...169, 300 
 Gilliam v. Brown, 43 Miss. 641... 703 
 Oilman v. Philadelphia, 70 U. S. 
 
 3 Wall. 713, 18 L. ed. 
 
 96. ...486, 491 
 
 Gilmore v. Carman, 1 Smedes & 
 
 M. 279, 40 Am. Dec. 96 180 
 Gilson V. Gwinn, 107 3Iass. 126, 9 
 
 Am. Rep. 13 859, 861 
 
 Girardot v. Midland R. Co. 4 Ry. 
 
 & Canal Traffic Cas. 
 
 291.. 572, 576, 594, 714, 735 
 Girolamo, The, 3 Hagg. Adm. 169 349 
 
 Gisbourn «. Hurst, 1 Salk. 249 3 
 
 Glascock V. Chicago & A. R. Co. 
 
 69 Mo. 589 147 
 
 Glasgow & S. W. R. Co. v. Mac- 
 Kinnon, L. R. 11 App. 
 
 Cas. 386. 27 Am. & 
 
 Eng. R. Cas. 1 750 
 
 Glass V. Betsey, The, 3 U. S. 3 
 
 Dall. 16, IL. ed. 489.. 359 
 Glasscock v. Wells, 23 La. Ann. 
 
 517 .- 694 
 
 Gleadeu v. Thomson, 56 N. Y. 194 947 
 Gleeson v. Virginia Midland R. 
 
 Co. 140 U. S. 435, 35 L. 
 
 ed. 4.58... 161, 173, 176, 178 
 Glendevon, Be [1893] Prob. 269.. 870 
 Glenfinlas, The, 1 U. S. App. 22, 
 
 48 Fed. Rep. 758 965 
 
 Glenfruin, The, 10 Prob. Div. 103 190 
 Glenn v. Charlotte & S. C. R. Co. 
 
 63 N. C. 510 829 
 
 V. Southern Exp. Co. 86 
 
 Tenn. 594 224 
 
 Glidden v. Lucas, 7 Cal. 26 109 
 
 Gloucester Ferry Co. v. Pennsyl- 
 vania, 114 U. S. 196, 29 
 
 L. ed. 158, 1 Inters. 
 
 Com. Rep. 382.. 
 
 486, 488, 502, 
 
 507, 508, 518, 522, 527, 850 
 Gloucester Isinglass & G. Co. v. 
 
 Russia Cement Co. 154 
 
 Mass. 92 465 
 
 Glover, The, 1 Brown. Adm. 166. 891 
 Glaucus, The, 1 Low. Dec. 371... 363 
 Glyn V. East & West India Dock 
 
 Co. L. R. 5 Q. B. Div. 
 
 129 102 
 
 Goddard v. Mallory, 52 Barb. 87.. 312 
 Goggin V. Kansas Pac. R. Co. 12 
 
 Kan. 416 275 
 
 Golden v. Manning, 3 Willes, 420. 893 
 Goldey v. Pennsylvania R. Co. 30 
 
 Pa. 242, 72 Am. Dec. 
 
 703 43, 154 
 
 Gold Hunter, The, 2 Blatchf. & H. 
 
 300 164 
 
 Goldsmith v. Chicago & A. R. Co. 
 
 12 Mo. App. 479 414 
 
 V. Tower Hill SS. Co. 37 
 
 Fed. Rep. 806 268,345 
 
 Good V. Galveston, H. & S. A. R. 
 Co. (Tex.) 4 L. R. A. 
 
 801 242,269, 276, 341 
 
 Goodman v. Oregon R. & Nav. Co. 
 22 Or. 14, 49 Am. & 
 
 Eng. R. Cas. 87.. 299 
 
 Goodrich v. Norris, Abb. Adm. 196 93 
 V. Thompson, 44 N. Y. 824 
 
 312, 317 
 
 Goodridge v. Union Pac. R. Co. 37 
 
 Fed. Rep. 182.. 706 
 
 Goold V. Chapin, 20 N. Y. 259, 75 
 
 Am. Dec. 398.. 389, 391 
 
 V. Chapin, 10 Barb. 612 891 
 
 Gordon v. Buchanan, 5 Yerg. 71. 
 
 13, 159, 171 
 
 V. Massachusetts, F. & M. 
 
 Ins. Co. 2 Pick. 249... 867 
 V. United States, 117 U. 8. 
 
 Appx. 697 1082 
 
 Gorham Mfg. Co. v. Fargo, 45 
 How. Pr. 90, 3 Jones & 
 
 S. 434 204 
 
 Gosling V. Higgins, 1 Camob. 451 928 
 
 Gould «. Hill, 2 Hill, 623." 220 
 
 V. Oliver, 4 Bing. N. C. 134 310 
 V. Oliver, 2 Maule & G. 
 
 208 301 
 
 Grace v. Adams, 100 Mass. 505, 97 
 
 Am. Dec. 117, 1 Am. 
 
 Rep. 131-41,45, 95, 206, 215 
 
 Gracie v. Marine Ins. Co. 19 U. S. 
 
 8 Cranch, 75, 3 L. ed. 
 
 492... 947 
 
 V. Palmer, 21 U. S. 8 Wheat. 
 
 605, 5 L. ed. 696 846 
 
 Grafton, The, Olcott, 43, Abb. 
 
 Adm. 552, iioie.. 964 
 
 Grafton, The, 1 Blatchf. 173 891 
 
 Graham v. Chicago, M. & St. P. R. 
 
 Co. 53 Wis. 472... 874, 1006 
 V. Davis, 4 Ohio St. 362, 62 
 Am. Dec. 285... 43, 45, 
 166, 177, 197, 312, 315, 1030 
 Grand Trunk R. Co., Be, 2 Inters. 
 
 Com. Rep. 496 
 
 533, 683, 730, 879, 881 
 
 V. McMillan, 16 Can. (S. C.) 
 543, 42 Am. & Eng. R. 
 
 Cas. 468 341, 365, 893 
 
 V. Stevens, 95 U. S. 655, 24 
 L. ed. 535 198
 
 TABLE OF CASKS. 
 
 XXXV 
 
 Grant v. Norway, 10 C. B. 665... 
 
 138, 140, 141 
 
 Gratitudine, The, 3 C. Kob. Adm. 
 
 240.. ...173, 334, 866 
 
 Graves v. Lake Shore & M. S. R. 
 
 Co. 137 Mass. 33, 50 
 
 Am. Rep. 282 203, 
 
 207-209. 282, 283, 285, 1035 
 Gray v. Chicago, I. & N. R. Co. 
 
 ("The Clinton Bridge") 
 
 77 U. S. 10 AVall. 454, 
 
 19 L. ed. 969 491 
 
 V. Jackson, 51 N. H. 9. 12 
 
 Am. Rep. 1...365. G89, 893 
 Great Northern R. Co. v. Swaffeld, 
 
 L. R. 9 Exch. 132 239 
 
 V. Taylor, 35 L. J. C. P. 
 
 210 331 
 
 Great Western R. Co. v. Braid, 
 
 Moore, P. C. N. S. 101 174 
 V. Blower, 41 L. J. C. P. 268, 
 
 L. R. 7C. P. 655 17 
 
 «. Burns, 60 111. 284 
 
 75, 323, 325, 762 
 
 V. Crouch, 8 Hurlst. & N. 
 
 183 114, 906 
 
 V. Hawkins, 18 Mich. 427.. 231 
 
 V. McDonald. 18 111. 172 133 
 
 V. Sutton, L. R. 4 H. L. 238 
 
 749, 775 
 
 Green, v. Clarke, 12 N. Y. 343 1008 
 
 V. Dunn, 3 Campb. 215 927 
 
 V. Milwaukee & St. P. R. 
 
 Co. 38 Iowa, 100 79 
 
 Greene, Re, 52 Fed. Rep. 104 
 
 .458,464, 478 
 
 Greenock v. Southeastern R. Co. 
 
 2 Nev. & McN. 319.572, 758 
 Greenstine v. Borchard, 50 Mich. 
 
 434. 45 Am. Rep. 51.. _ 118 
 Gregg V. Illinois Cent. R. Co. 147 
 
 111. 550, Aff'g 47 111. 
 
 App. 590 905, 906 
 
 Gregory v. Wabash R. Co. 46 Mo. 
 
 App. 574 G23 
 
 «. West Midland Co. 83 L. 
 
 J. Exch. 155--- 44 
 
 Greismer v. Lake Shore & M. S. 
 
 R. Co. 102 N. Y. 563, 
 
 26 Am. & Eng. R. Cas. 
 
 290-.- 262 
 
 Grey «. Mobile Trade Co. 55 Ala. 
 
 387, 28 Am. Rep. 729-. 
 
 126, 1030 
 
 Griffee v. Burlington & M. R. Co. 
 
 2 Inters. Com. Rep. 194 776 
 Griffin v. Colver, 16 N. Y. 489, 69 
 
 Am. Dec. 718 363 
 
 Griffith V. Ingledew, 6 Serg. & R. 
 
 429, 9 Am. Dec. 444... 
 
 136, 1004 
 
 Grigsby v. Chaopell, 5 Rich. L. 
 
 443--* 5 
 
 Grill V. General Iron Screw Col- 
 liery Co. L. R. 1 C. P. 
 
 600, L. R. 3 C. P. 476- 
 
 14, 156. 175 
 
 Grindle v. Eastern Exp. Co. 67 
 
 Me. 317, 24 Am. Rep. 
 
 31 365 
 
 Grinnell v. Wisconsin Cent. R. Co. 
 
 47 Minn. 569 918 
 
 Griswold v. New York & N. E. R. 
 
 Co. ^3 Conn. 371, 55 
 
 Am. Rep. 115 287 
 
 Grogan v. Adams Exp. Co. 114 Pa. 
 
 523, 60 Am. Rep. 360- . 
 
 7. 45, 194, 
 
 197, 199. 1012, 1027, 1028 
 Grosvenor v. New York Cent. R. 
 
 Co. 39N. Y. 34 76 
 
 V. Phillips, 2 Hill, 147 1005 
 
 Grover & B. Sewing Mach. Co. v. 
 
 Missouri Pac. R. Co. 70 
 
 Mo. 672, 35 Am. Rep. 
 
 444--.. 366,402 
 
 Grozier v. Atwood, 4 Pick. 234. _. 1008 
 Guiding Star, The, 53 Fed. Rep. 
 
 936 186,324. 869, 1022 
 
 Guildhall, The, 58 Fed. Rep. 796- 
 
 24, 56,63, 73, 173 
 
 Guillaume v. General Transp. Co. 
 
 100 N. Y. 491.130, 134, 914 
 V. Hamburg & A. Packet 
 
 Co. 42 N. Y. 212, 1 Am. 
 
 Rep. 512 147 
 
 Guinn v. Wabash, St. L. & P. R. 
 
 Co. 20 Mo. App. 453.. 263 
 Gulf, C. & S. F. R. Co. V. Adair 
 
 (Tex. App.) Dec. 7, 1889 
 
 - 409, 925 
 
 V. Allcorn (Tex. Civ. App.) 
 
 Sept. 13, 1893 257 
 
 V. Baird, 75 Tex. 256, 40 Am. 
 
 &Eng. R. Cas. 160 415 
 
 V. Booton (Tex. App.) March 
 
 18, 1891 219, 1035 
 
 V. Boston (Tex. App.) March 
 
 15, 1890 ". 876 
 
 V. Brown (Tex. Civ. App.) 
 
 Jan. 31, 1894 225 
 
 V. Clarke, 5 Tex. Civ. App. 
 
 547 -- 401 
 
 «. Dwyer, 84 Tex. 194 925 
 
 V. Eddins (Tex. Civ. App.) 
 
 April 25. 1894 258, 273
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Gulf, C. & S. F. R. Co. V. Free- 
 man (Tex. Civ, App.) 
 
 9 Ry. & Corp. L. .J. 497 937 
 V. Gatewood, 10 L. R. A. 
 
 419, 79 Tex. 89.. 
 
 2, 43, 225, 346, 1012 
 
 V. Gilbert, 4 Tex. Civ. App. 
 
 369 341 
 
 ffl, Godair, 3 Tex. Civ. App. 
 
 514.. 261 
 
 " V. Gray (Tex. Civ. App.) 
 
 Jan. 24, 1894 242 
 
 ®. Hume, 6 Tex. Civ. App. 
 
 653 20, 226 
 
 V. Levi, 8 L. R. A. 323, 76 
 
 Tex. 337 43, 346. 1012 
 
 «. Loonie, 84 Tex. 259.. 344, 923 
 «. McCowu (Tex. Civ. App.) 
 
 25 S. W. 435, s. c. 26 
 
 S. W. 745 897, 920-924 
 
 V. McCorquodale, 71 Tex. 41 160 
 V. Nelson, 5 Tex. Civ. App. 
 
 387. 680 
 
 •p. State, 3 Inters. Cora. Rep. 
 
 335, 1 L. R. A. 849, 73 
 
 Tex. 404- 510, 689, 690 
 
 «. Tennaut (Tex. Civ. App.) 
 
 June 8, 1893 258 
 
 v. Thompson (Tex. Civ. 
 
 App.) Feb. 8, 1893 893 
 
 V. Trawick, 68 Tex. 314.... 
 
 57 120 233 
 v. Tra'wickrSO Tex."276.236', 375 
 V. Wilhelm (Tex. App.) 
 
 April 29, 1891 239 
 
 V. Wilson (Tex. Civ. App.) 
 
 April 25, 1894 259 
 
 D, Wright, 1 Tex. Civ. App. 
 
 402 258 
 
 V. Zimmerman, 81 Tex. 605 
 
 .149,189, 1010, 1032 
 
 Gurley v. Armstead, 3 L. R. A. 80, 
 
 148 Mass. 267 912, 914 
 
 Gurney v. Behreud, 3 El. & Bl. 
 
 623 -- 110 
 
 Gypsum Prince, The, 57 Fed. Rep. 
 
 859 353 
 
 Haas V. Kansas City, Ft. S. & G. 
 
 R. Co. 81 Ga. 792 346 
 
 Hackett v. Boston, C. & M. R. Co. 
 
 35 K H. 390.. 1036 
 
 Hadd V. United States & C. Exp. 
 
 Co. 52 Vt. 335, 36 Am. 
 
 Rep. 757 7, 365, 366 
 
 Haddock v. Delaware, L. & W. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 302 -- 598, 787,819 
 
 Haddow v. Parry, 3 Taunt. 303 .. 
 
 -. 105, 106 
 
 Hadji, The, 18 Fed. Rep. 459 .... 203 
 Hadley v. Baxendale, 9 Exch. 341 279 
 V. Clarke, 8 T. R. 259 
 
 .-..330,331, 338, 873 
 
 Hagedorn «. Whitmore, 1 Stark. 
 
 157. 170 
 
 Hagerman v. Empire Slate Co. 97 
 
 Pa. 534. ..1044 
 
 Haille v. Smith, 1 Bos. & P. 563.-1005 
 Hale v. Bonner, 14 L. R. A. 336, 
 
 82 Tex. 33. ..1027 
 
 V. Milwaukee Dock Co. 29 
 
 Wis. 483, 9 Am.Rep.603 109 
 ». Missouri Pac. R. Co. 36 
 
 Neb. 266 345 
 
 D. New Jersey Steam Nav. 
 
 Co. 15 Conn. 539, 39 
 
 Am. Dec. 398.-14, 180, 893 
 Hales 1). London & N. W. R. Co. 
 
 4 Best. & S. 66, 32 L. J. 
 
 Q. B. 292. 321 
 
 Hall V. Cheney, 36 N. H. 26.. 178, 1028 
 V. DeCuir, 95 U. S. 495, 34 
 
 L. ed. 547 499 
 
 V. Franklin Ins. Co. 9 Pick. 
 
 466 866 
 
 v. Nashville & C. R. Co. 80 
 
 U. S. 13 Wall. 369, 80 
 
 L. ed.594....14, 1020, 1021 
 V. Ocean Ins. Co. 37 Fed. 
 
 Rep. 371.. 866 
 
 Halliday ». Hamilton, 78 U. S. 11 
 
 Wall. 510, 20 L. ed. 314 109 
 v. St. Louis, K. & N. R. Co. 
 
 74 Mo. 159, 41 Am. Rep. 
 
 309 399 
 
 Halsey «. Warden, 25 Kan. 128 .. 
 
 107.114 
 
 Hamburg, The, 2 Moore, P. C. N. 
 
 S. 289, Brown & L. 
 
 Adm. 253 35 
 
 Hamburg- American Packet Co. v, 
 
 Gattman, 37 111. xipp. 
 
 183, affd. 127 III. 598.- 
 
 928, 940 
 
 Hamilton v. Chattanooga, R. & C. 
 
 R. Co. 3 Inters. Com. 
 
 Rep. 482 591, 682, 687 
 
 V. Western N. C. R. Co. 96 
 
 N. C. 898 346 
 
 Hamilton Mfg. Co. ■». Massachu- 
 setts, 73 U. S. 6 Wall. 
 
 632, 18 L. ed. 904 495
 
 TABLE OF CASES. 
 
 XXXVU 
 
 Hand v. Baynes, 4 Whart. 204, 33 
 Am. Dec. 54. 
 
 312, 317, 331, 338, 939 
 
 Handy v. Cleveland & M. R. Co. 
 
 31 Fed. Rep. 689 785 
 
 Haney v. Kansas Citv, 94 Mo. 334 15 
 
 Hannah v. Fife, 27 Mich. 173 691 
 
 Hannibal «fc St. J. R. Co. v. Huseu, 
 
 95 U. S. 465, 24 L. ed. 
 
 537 483. 485, 510, 937 
 
 V. Swift, 79 U. S. 12 Wall. 
 
 263, SOL. ed. 433.5,13. 
 
 15,18,35,51,74,78,185,298 
 Hansen v. HHrrold [1894] 1 Q. B. 
 
 613-. 865 
 
 V. Flint. & P. M. R. Co. 73 
 
 Wis. 346. -398, 403 
 
 Harding v. Chicago, St. P. M. & 
 
 O. R. Co. 1 Inters. Com. 
 
 Rep. 375 -533, 601 
 
 Hardman v. B/etf, 3 L. R. A. 173, 
 
 37 Fed. Rep. 803 
 
 361, 363, 1025 
 
 T. Willcock. 9 Bing. 383... 937 
 Hare v. London & N. W. R. Co. 
 
 3 John.<5. & H. 80, 7 Jur. 
 
 N. S. 1145 697, 699 
 
 Harker v. Dement, 9 Gill. 7, 53 
 
 Am. Dec. 670 361 
 
 Harmon v. Chicago, 147 U. S. 396, 
 
 37L. ed. 216 483 
 
 V. Chicago (111.) 34 Am. & 
 
 Eng. Corp. Cas. 149... 530 
 Harmony v. Bingham, 13 N. Y. 99, 
 
 63 Am. Dec. 143 
 
 ...333, 338, 339 
 
 Harned v. Missouri Pac. R. Co. 51 
 
 Mo. App. 483 374 
 
 Harrell^. Owens, 18 N.C. 373.... 11 
 V. W^ilmington & W. R. Co. 
 
 106 N. C. 358. 43 Am. 
 
 & Eng. R. Cas. 417-.. . 78 
 V. Zimpleman, 66 Tex. 393. 
 
 385. 964 
 
 Harriet Newhall, The, 3 Ware, 105 358 
 Harrington v. Lyles, 2 Nott & McC. 
 
 88 - 333 
 
 Harris, Re, 57 Fed. Rep. 243 1011 
 
 V. Cockermouth& W. R. Co. 
 
 1 Nev. & McN. 97, 3 C. 
 
 B. N. S. 693--- .- 
 
 576, 613, 614, 735, 764, 773 
 •e. Duval, 2 Inters. Com. 
 
 Rep. 514.... 600 
 
 V. Great Western R. Co. L. 
 
 R. 1 Q. B. Div. 515 ... 215 
 V. Moody, 30 N. Y. 366, 86 
 
 Am. Dec. 375 300 
 
 Harris v. Xorthen. Indiana R. Co. 
 
 SON. \. 332.11,17,239,243 
 V. Panama R. Co. 3 Bosw. 7 920 
 V. Rand, 4 N. H.259, 17 Am. 
 
 Dec. 431 161, 333 
 
 Harrisburg, The. v. Rickards, 119 
 
 U. S. 199. 30 L. ed. 358 35 
 Harrison v. London, B. & S. C. R. 
 
 Co. 3Best«&S. 133.-.. 201 
 V. New Orleans, J. & G. N. 
 
 R. Co. 28 La. Ann. 777.1038 
 Hart V. Allen, 2 Watts, 114. ..176, 185 
 V. Chicago & N. W. R. Co. 
 
 69Iowa, 485.-.57, 219, 1012 
 V. Pennsylvania R. Co. 112 
 
 U. S. 331, 28 L. ed. 717 
 
 45, 50, 
 
 72. 181, 197, 202, 207- 
 
 210, 317, 354. 383, 385, 1035 
 «?. Rensselaer ifc S. R. Co. 8 
 
 N. Y. 37, 59 Am. Dec. 
 
 447 418,413 
 
 v. Western R. Corp. 13 Met. 
 
 99. 46 Am. Dec. 719... 1020 
 Hartford & N. H. R. Co. v. New 
 
 York & N. H. R. Co. 3 
 
 Robt. 411 
 
 439, 442, 443. 690, 691 
 
 Hartman v. Will, The, 4 Pa. L. J. 
 
 Rep. 350 867 
 
 Hartshorn v. Day, 60 U. S. 19 
 
 How. 213, 15 L. ed. 605 100 
 Hartwell v. Louisville & N. R. Co. 
 
 15 Ky. L. Rep. 778.... 
 
 889, 896, 898 
 
 «. Northern Pac. Exp. Co. 
 
 3 L. R. A. 343, 5 Dak. 
 
 463.-36, 138, 177, 336. 1013 
 Harvard t. Pennsylvania Co. 3 
 
 Inters. Com. Rep. 357 
 
 551, 553, 556 
 
 Harvey v. Cady, 3 Mich. 431 118 
 
 V. Connecticut & P. R. Co. 
 
 134 Mass. 431, 36 Am. 
 
 Rep. 673.. 343 
 
 V. Lloyd, 3 Pa. 331 441 
 
 V. Terre Haute & I. R. Co. 
 
 74 Mo. 538 
 
 45, 50, 203, 213, 283 
 
 Harwell v. Columbus & W. R. Co. 
 
 1 Inters. Com. Reo. 631 
 
 .:. 659, 663 
 
 Haskind v. Warren, 115 Mass. 514 132 
 Hastings v. Pepper, 11 Pick. 41.. 
 
 4, !)4. 
 
 96, 163, 299. 306. 926. 1038 
 Hathaway v. Haynes, 124 Muss. 
 
 311 113
 
 xxxvm 
 
 TABLE OF CASES. 
 
 Hatton V. Melita, The, 3 Hughes, 
 
 494 871 
 
 Havemeyer v. Havemeyer, 11 
 
 Jones & S. 506 431 
 
 Hawkins v. Great Western R. Co. 
 
 17 Mich. 63, 97 Am. 
 
 Am. Dec. 179, 18 Mich. 
 
 427.. 18, 146, 231 
 
 V. Hoffman, 6 Hill, 586, 41 
 
 Am. Dec. 767 11, 968 
 
 Hawks V. Locke, 139 Mass. 205, 52 
 
 Am. Rep. 702 862 
 
 Hawley v. Kansas & T. Coal Co. 
 
 48 Kan. 593 885 
 
 Hayburn's Case, 2 U. S. 2 Dall. 
 
 409, 1 L. ed. 436 1080 
 
 Hayden v. Davis, 9 Cal. 573 928 
 
 Hayes v. Campbell, 63 Cal. 143... 136 
 V. Wells, 23 Cal. 185, 83 
 
 Am. Dec. 89 295 
 
 Hayman v. Molton, 5 Esp. 65.310, 867 
 Hays V. Kennedy, 41 Pa. 378, 80 
 
 Am. Dec. 627.. 156, 161, 164 
 ®. Millar, 77 Pa. 238, 18 
 
 Am. Rep. 445 4 
 
 V. Pennsylvania Co. 12 Fed. 
 
 Rep."309..572, 613, 749, 
 
 751, 753, 757, 761, 770, 773 
 
 Hays». Risher, 32 Pa. 169.. 441 
 
 Hazard v. Abel. 15 Abb. Pr. N. S. 
 
 413 90 
 
 «. Fiske, 83 N. Y. 287 107 
 
 V. Illinois Cent. R. Co. 67 
 
 Miss. 32 142 
 
 V. New England M. Ins. 
 
 Co. 1 Sumn. 218, 33 U. 
 
 S. 8 Pet. 557, 8 L. ed. 
 
 1043 164 
 
 Hazel V. Chicago, M. & St. P. R. 
 
 Co. 82 Iowa, 477 893 
 
 Hazlehurst v. Savannah, G. & N. 
 
 A. R. Co. 43 Ga. 13. .. 462 
 Hearne ». Garton, 2 EI. & Bl. 66.. 86 
 Heck V. East Tennessee, V. & G. 
 
 R. Co. 1 Inters. Com. 
 
 Rep. 775 
 
 531, 532. 785, 836, 1053 
 
 Hedden v. Roberts, 134 Mass. 38, 
 
 45 Am. Rep. 276 122 
 
 Hedges v. Hudson River R. Co. 49 
 
 N. Y. 223 968 
 
 Heineman v. Grand Trunk R. Co. 
 
 31 How. Pr. 430 239 
 
 Heiserman v. Burlington, C. R. & 
 
 N. R. Co. "63 Iowa, 732 875 
 Heiskell v. Farmers' & M. Nat. 
 
 Bank, 89 Pa. 155, 33 
 
 Am. Rep. 745 112 
 
 Hematite Min. Co. v. East Ten- 
 nessee, V. & G. R. Co. 
 
 92 Ga. 268 100, 103 
 
 Henderson v. London & N. W. R. 
 
 Co. L. R. 5 Exch. 90.. 218 
 V. Three Hundred Tons of 
 
 Iron Ore, 38 Fed. Rep. 
 
 36 .105, 846 
 
 «. Wickham, 92 U. S. 259, 
 
 23 L. ed. 543.. 482, 486, 489 
 Hendrick, The, v. Hudson, 3 Ben. 
 
 419, 7 Law Rep. N. S. 
 
 93 8?1 
 
 Hendricks «. Lindsay, 93 U. S. 
 
 143, 23 L. ed. 855 954 
 
 Hennick, Be, 1 Inters. Com. Rep. 
 
 66, 5 Mackey, 489 522 
 
 Henry v. Central R. & Bkg. Co. 89 
 
 Ga. 815... 299 
 
 Hentz V. Idaho, The, 93 U. S. 575, 
 
 23 L. ed. 978- -137, 927, 931 
 Hermann v. Goodrich, 21 Wis. 543, 
 
 94 Am. Dec. 562 966 
 
 Hern v. Nichols, 1 Salk. 289 913 
 
 Herrick v. Gallagher, 60 Barb. 566 
 
 115, 906 
 
 Hersh v. Northern Cent. R. Co. 74 
 
 Pa. 181-.-571, 591. 749, 756 
 Hess V. Missouri Pac. R. Co. 40 
 
 Mo. App. 202 223 
 
 Hezel Mill Co. v. St. Louis, A. & 
 
 T. H. R. Co. 3 Inters. 
 
 Com. Rep. 701 
 
 203, 779, 781, 883, 885 
 
 Hewitt V. Chicago, B. & Q. R. Co. 
 
 63 Iowa, 612 18, 320 
 
 H. G. Johnson, The, 48 Fed. Rep. 
 
 696 104, 307, 1005 
 
 Hibler v. McCartney, 31 Ala. 502. 178 
 Hick V. Rodocanachi [1891] 2 Q. 
 
 B. 626 346 
 
 V. Rodocanachi (Eng. Ct. 
 
 App.) 65 L. T. Rep. N. 
 
 S. 300, 44 Alb. L. J. 
 
 462 857 
 
 Hickox 9). Naugatuck R. Co. 31 
 
 Conn. 281, 83 Am. Dec. 
 
 143 84 
 
 Hide V. Trent & M. Nav. Co. 1 
 
 Esp. 36 14 
 
 Higgins v. Moore, 34 N. Y. 425.- 904 
 V. New Orleans, M. & C. R. 
 
 Co. 28 La. Ann. 133... 53 
 V. United States Mail SS. 
 
 Co. 3 Blatchf. 282 891 
 
 Hill V. Boston, H. T. & W. R. Co. 
 
 144 Mass. 284 
 
 203, 208, 282, 283, 285, 287
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Hill V. Burlington, C. R. & N. R. 
 
 Co. 60 Iowa, 196, 9 Am. 
 
 & Eng. R. Cas. 21... 
 
 400, 407 
 
 t). Denver & R. G. R. Co. 4 
 
 L. R. A. 376, 13 Colo. 
 
 35 ..319, 859 
 
 V. Humphreys, 5 Watts. & 
 
 S. 123, 39 Ain. Dec. 117 
 
 891, 939 
 
 v. Sturgeon, 28 Mo. 323.. 11, 157 
 V. Syracuse, B. & N. Y. R. 
 
 Co. 8Huu, 296 125 
 
 V. Syracuse, B. & N. Y. R. 
 
 Co. 73 N. Y. 351, 29 
 
 Am. Rep. 163.. 97, 131, 215 
 Hill Mfg. Co. V. Boston & L. R. 
 
 Corp. 104 Mass. 122. 6 
 
 Am. Rep. 202.182, 394, 395 
 Hinckley v. Gildersleeve, 10 Grant 
 
 Ch.212_. 440 
 
 V. New York Cent. & H. R. 
 
 R. Co. 56 K Y. 429.. 
 
 94, 97, 316, 393 
 
 Hindman r. Timme, 4 Ind. App. 
 
 416 292 
 
 Hintoni;. Dibbin, 2 Q. B. 646.... 
 
 14. 41, 42 
 
 Hirshberg v. Dinsmore, 12 Daly, 
 
 429 275 
 
 Hoadley ®. Lizzie, The, 39 Fed. 
 
 Rep. 44.... 341 
 
 «. Northern Transp. Co. 115 
 
 Mass. 304, 15 Am. Rep. 
 
 106.... ...161, 176 
 
 Hoagland v. Hannibal & St. J. R. 
 
 Co. 39 Mo. 451... 32 
 
 Hobart®. Drogan, 35 U. S. 10 Pet. 
 
 108, 9 L. ed. 363 333 
 
 Hodge V. Sloan, 107 N. Y. 244... 465 
 Hoffman v. Carow, 22 Wend. 
 
 285 859 
 
 Holbrook v. St. Paul. M. & M. R. 
 
 Co. 1 Inters. Com. Rep. 
 
 323 533 
 
 V. Wight, 24 Wend. 169, 35 
 
 Am. Dec. 607.... 109 
 
 Holden v. New York Cent. R. Co. 
 
 54 N. Y. 662. 1034 
 
 Holford V. Adams, 2 Duer, 471... 746 
 Holladay v. Kennard, 79 U. S. 12 
 
 Wall. 254, 20 L. ed. 390 
 
 ...14, 148 
 
 Holland, etc. R. Co. v. Festiniog 
 
 R. Co. 2 Nev. & McN. 
 
 287 735 
 
 Hollingsworth v. Brodrlck, 7 Ad. 
 
 &E1. 50... 163, 165 
 
 Hollister v. Nowlen, 19 Wend. 
 
 234, 32 Am. Dec. 455.. 
 
 ......14. 40,41, 215 
 
 Holman v. Georgia R. Co. 67 Ga. 
 
 595 ..401 
 
 Holmes t). Bailey, 92 Pa. 57 112 
 
 V. German Security Bank, 
 
 87 Pa. 525 ..107, 112 
 
 Holsapple v. Rome, W. & O. R. 
 
 Co. 86 N. Y. 275.... 55, 147 
 
 Holyoke v. Depew, 2 Ben. 334 339 
 
 Home Ins. Co. v. Baltimore Ware- 
 house Co. 93 U. S. 527, 
 
 23 L. ed. 868. 1009 
 
 V. Western Transp. Co. 4 
 
 Robt. 267 1020, 1021 
 
 Honeyman v. Oregon & C. R. Co. 
 
 13 Or. 352, 57 Am. Rep. 
 
 20 -2. 74, 256 
 
 Hood V. New York & N. H. R. 
 
 Co. 22 Conn. 1 366, 394 
 
 Hooker v. Vandewater, 4 Denio, 
 
 349, 47 Am. Dec. 258. . 
 
 434, 437, 442, 461, 690, 692 
 Hooper v. Chicago & N. W. R. 
 
 Co. 27 Wis. 81, 9 Am. 
 
 Rep. 434 387 
 
 «. Wells, Fargo & Co. 27 
 
 Cal. 11, 85 Am. Dec. 211 194 
 Hoosier Stone Co. v. Louisville, 
 
 N. A. & C. R. Co. 131 
 
 Ind. 575 229 
 
 Hoover v. Pennsylvania R. Co. 156 
 
 Pa. 220 765,885 
 
 Hope V. Hope, 8 DeG. M. & G. 731 
 
 73, 896 
 
 1). State Bank, 4 La. 212.302, 306 
 Hopkins v. Lewis, 15 L. R. A. 397, 
 
 4 Inters. Cora. Rep. 63, 
 
 84 Iowa, 620... 513 
 
 V. Westcott, 6 Blatchf. 64.. 
 
 45, 50. 55, 202, 255 
 
 Hoppet, The, Edw. Adm. 369 359 
 
 Hore V. Whitmore, 2 Cowp. 784.. 338 
 Home V. Midland R. Co. L. R. 8 
 
 C. P. 131, 42 L.J. C. P. 
 
 59 .... 279 
 
 Horner v. Graves, 7 Bing. 735 464 
 
 Hornthal v. Roanoke, N. & B. S. 
 
 B. Co. 107 N. C. 76... 389 
 Hosack 1). Weaver, 1 Yeates, 478. 859 
 Hosea V. McCrory, 12 Ala. 349... 2 
 Hostetter v. Baltimore & O. R. Co. 
 
 (Pa.) 10 Cent. Rep. 352 316 
 V. Park, 137 U. S. 30, 34 L. 
 
 ed. 568 171, 177, 946 
 
 Hotchkiss V. Artisan's Bank, 2 
 
 Abb. App. Dec. 403... Ill
 
 xl 
 
 TABLE OF CASES. 
 
 Hot Springs R. Co. v. Trippe, 42 
 Ark, 465, 48 Am. Rep. 
 
 65-.- .413, 414 
 
 Hough «. Western Transp. Co. 
 
 ("The Plymouth") 70 U. 
 
 S. 3 Wall. 20, 18 L. ed. 
 
 125 .1045-1048 
 
 Houston & G. Nav. Co. v. Dwyer, 
 
 29 Tex. 376 179 
 
 Houston & T. C. R. Co. v. Adams, 
 
 49 Tex. 748, 30 Am. 
 
 Rep. 116 915 
 
 V. Burke, 55 Tex. 323, 40 
 
 Am. Rep. 808 296 
 
 T. Rust, 58 Tex. 98 736, 746 
 
 V. Smith, 63 Tex. 322 
 
 .757, 760 
 
 How v. Kirchner, 11 Moore, P. C. 
 
 21 95 
 
 Howard v. Shepherd, 9 C. B. 297 
 
 ..110,896 
 
 Howard, The, «. Wissman, 59 U. 
 
 S. 18 How. 231, 15 L. 
 
 ed. 363.. 919 
 
 Howe V. Oswego & S. R. Co. 56 
 
 Barb. 121 35, 919 
 
 Howell v. New York, L. E. & W. 
 
 R. Co. 2 Inters. Com. 
 
 Rep. 162 
 
 572, 573, 600, 601, 728, 729 
 Howland v. Greenway, 63 U. S. 22 
 
 How. 491. 16 L. ed. 391 
 
 25, 146, 172, 940. 
 
 966. 1028 
 
 Hozier v. Caledonia R. Co. 24 L. 
 
 T. 339, 1 Nev. & M. 27 
 
 611, 714, 749 
 
 Hubbard «. Harnden Exp. Co. 10 
 
 R. I. 244 188 
 
 V. Miller, 27 Mich. 15, 15 
 
 Am. Rep. 153 464 
 
 Hubbersty v. Ward, 18 C. B. 
 
 551 141 
 
 V. Ward, 8 Exch. 330.. 138, 889 
 Hughes V. Great Western R. Co. 
 
 14 C. B. 637 320, 321 
 
 V. Sun Mut. Ins. Co. 100 
 
 N. Y. 58... 853 
 
 Hugo, The, 57 Fed. Rep. 403.... 
 
 ...151, 194, 230 
 
 Hull V. Butler, 7 Ind. 267 97 
 
 V. Chicago, St. P. M. & O. 
 
 R. Co. 5 L. R. A. 587. 
 
 41 Minn. 510 177, 1012 
 
 Humphreys v. Perry. 148 U. S. 
 
 627, 37 L. ed. 587 212 
 
 Hunnewell v. Taber, 2 Sprague, 1 
 
 312, 315, 340 
 
 Hunt®. Cleveland, The, 6 McLean, 
 
 76 1027 
 
 V. Colburn, 1 Sprague, 215. 24 
 V. Haskell, 24 Me. 339, 41 
 
 Am. Dec. 387 866 
 
 D. Mississippi Cent. R. Co. 
 
 29 La. Ann. 446 95, 141 
 
 v. Morris, 6 Mart. (La.) 676. 
 
 12 Am. Dec. 489 14, 178 
 
 V. New York & E. R. Co. 1 
 
 Hilt. 228 400 
 
 Hunter®. Pfeiffer. 108 lud. 197... 691 
 V. Potts, 4 Campb. 203.. 168, 253 
 v. Southern Pac. R. Co. 76 
 
 Tex. 195 365 
 
 Huntingdon v. Din.smore, 4 Hun, 
 
 66 Ill 
 
 Hurlburt®. Lake Shore & M. S. R. 
 Co. 2 Inters. Com. Rep. 
 81. -.552, 556, 557, 559. 836 
 Hurley v. Milward, 1 Jones & C. 
 
 224 299 
 
 Huse V. Glover, 119 U. S. 543, 30 
 
 L. ed. 487 496,510 
 
 Hussey «. Taragossa, The, 3 
 
 Woods, 380 272 
 
 Hutchings v. Ladd. 16 Mich. 493. 118 
 Hutchinson v. Chicago, St. P. M. 
 & O. R. Co. 37 Minn. 
 
 524 52, 281, 296 
 
 V. Guion, 5 C. B. N. S. 149.85, 8& 
 Hutton V. Osborne, 1 Selw. N. P. 
 
 407 . 4 
 
 Hyde v. Trent & M. Nav. Co. 5 
 
 T. R. 389 178, 182, 
 
 891, 893, 896, 938, 940, 94^ 
 
 I. 
 
 Idle V. Roval Exch. Assur. Co. 8 
 
 "Taunt. 755 867 
 
 lesson V. Solly, 4 Taunt. 52 970 
 
 Illidge V. Goodwin, 5 Car. & P. 
 
 192 87 
 
 Illinois & St. L. R. & Coal Co. v. 
 
 Beaird, 24 111. App. 322 571 
 Illinois Cent. R. Co. v. Adams, 42 
 111. 474, 92 Am. Dec. 85 
 
 239 240 247 
 V. Ashme"ad,"58"fll."487..80! 324 
 
 «. Baches, 55 111. 379 16 
 
 V. Brelsford, 13 111. App. 251 
 
 231. 254 
 
 V. Foley, 53 Fed. Rep. 459. 237 
 D. Frankenberg, 54 111. 88, 5 
 
 Am. Rep. 92 
 
 128, 129, 185, 395, 399
 
 TABLE OF CASES. 
 
 xU 
 
 Illinois Cent. R. Co. v. Friend, 64 
 
 111. 303 966 
 
 V. Haynes, 63 Miss. 485 229 
 
 V. Hornberger, 77 111. 457.. 75 
 
 V. Kerr, 68 Miss. 14 400 
 
 V. McClellan, 54 111. 58, 5 
 
 Am. Eep. 83 
 
 84. 154. 323, 1034 
 
 V. Miller, 32 111. App. 259.. 322 
 
 V. Morrison, 19 111. 136 46 
 
 •y. Owens, 53 III. 391 160 
 
 V. People, 121 111. 304, 108 
 
 U. S. 541, 27 L. ed. 818 733 
 V. Peterson, 14 L. R. A. 550, 
 
 68 Miss. 454- 249 
 
 V. Smyser, 38 III. 354, 87 
 
 Am. Dec. 301. 84, 122 
 
 Illinois M. R. Co. v. People, 84 111. 
 
 426 432 
 
 Ilsley V. Stubbs, 9 Mass. 65, 6 Am. 
 
 Dec. 29- 1004 
 
 Ilwaco R. & Nav. Co. v. Oregon 
 Short Line & U. N. R. 
 Co. 57 Fed. Rep. 673.. 714 
 Immanuel, The, 2 C. Rob. Adm. 
 
 186 360 
 
 Imperial Coal Co. e. Pittsburg & 
 L. E. R. Co. 2 Inters. 
 Com. Rep. 162 ....650, 728 
 Independent Mills Co. v. Burling- 
 ton, C. R. & N. R. Co. 
 72 Iowa, 535-. 313, 318, 393 
 Independent Refiners Asso. v. 
 Western New York & 
 P. R. Co. 4 Inters. Com. 
 
 Rep. 162- 688, 777 
 
 India Bagging Asso. v. Kock, 14 
 
 La. Ann. 164 461, 694 
 
 Indiana v. United States, 148 U.S. 
 
 148, 37L. ed. 401 489 
 
 Indiana Nat. Bank v. Colgate, 4 
 
 Daly, 41 -- 109, 112 
 
 Indianapolis & C. R. Co. v. Cox, 
 29 Ind. 360, 95 Am. 
 
 Dec. 640 126, 200 
 
 «. Remmy, 13 Ind. 519 
 
 98, 316, 393 
 
 Indianapolis & St. L. R. Co. v. 
 
 Herndon, 81 111. 143..- 865 
 ®. Jurey, 8 111. App. 160.231, 254 
 Indianapolis, B. & W. R. Co. v. 
 
 Strain, 81 111. 504-.231, 257 
 Indianapolis, D. & S. R. Co. v. 
 
 Davis, 32 111. App. 67. 886 
 
 V. Erin, 118 111. 250 571, 750 
 
 Indianapolis, D. & W. R. Co. ■». 
 Forsythe, 4 Ind. App. 
 326 .-45, 179 
 
 Indianapolis, P. & C. R. Co. v. 
 Allen, 81 Ind. 394.-.. 
 
 50.51. 185,294 
 
 V. Rinard, 46 Ind. 293 
 
 757, 762, 770 
 
 Indian River S. B. Co. v. East 
 Coast Transp. Co. 28 
 Pla. 387, 49 Am. & 
 Eng. R. Cas. 212 427 
 
 Industrie. The [1894] Prob. 58... 855 
 
 Infracombe T. C. Co. v. London 
 S. W. R. Co. Weekly 
 Notes, 289 611 
 
 Ingledew v. Northern R. Co. 7 
 
 Gray, 86 343 
 
 Inman v. South Carolina R. Co. 
 129 U. S. 118, 32 L. ed. 
 
 612 
 
 72, 76, 1013, 1017. 1020, 1028 
 
 Inman SS. Co. -v. Tinker, 94 U. S. 
 
 238, 24 L. ed. 118 485 
 
 Insurance Co. of N. A. «. Dela- 
 ware Mut. S. Ins. Co. 
 
 91 Tenn. 537 1024 
 
 V. Easton, 3 L. R. A. 424, 
 
 73 Tex. 167.. 
 
 177, 1012, 1013, 1016 
 
 V. St. Louis, I. M. & S. R. 
 
 Co. 3 McCrary, 233.19, 186 
 International & G. N. R. Co. v. 
 
 Anderson, 3 Tex. Civ. 
 
 App. 8 ...263,292, 293 
 
 V. Armstrong (Tex. Civ. 
 
 App.) Sept. 20. 1893... 241 
 ■a. Dinimitt County Pasture 
 
 Co. 5 Tex. Civ. App. 
 
 186 255 
 
 V. Folts. 3 Tex. Civ. App. 
 
 644 133 
 
 V. Hynes, 3 Tex. Civ. App. 
 
 20... 262 
 
 V. Lewis (Tex. Civ. App.) 
 
 Oct. 4. 1893 240 
 
 V. McRae, 82 Tex. 614. 345 
 V. Mahula, 1 Tex. Civ. App. 
 
 182. 257 
 
 V. Thornton, 3 Tex. Civ. 
 
 App. 197 258 
 
 ®. Tisdale, 4 L. R. A. 545, 
 
 74 Tex. 8.241, 256, 339, 
 396, 399, 413, 1033, 1034 
 
 V. Wright, 1 Tex. Civ. App. 
 
 402 - 266 
 
 V. Wright, 2 Tex. Civ. App. 
 
 198 -... 257 
 
 International Exp. Co. v. Grand 
 
 Trunk R. Co. 81 Me. 92 
 
 28, 760
 
 xlii 
 
 TABLE OF CASES. 
 
 Interstate Commerce Commission, 
 Re, 4 Inters. Com. Rep. 
 315, 53 Fed. Rep. 476. 
 
 536, 1068 
 
 v. Atchison, T. & S. F. R. 
 Co. 4 Inters. Com. Rep. 
 323, 50 Fed. Rep. 295.. 
 
 535, 631,658, 659, 1055 
 
 V. Baltimore & O. R. Co. 145 
 U. S. 263, 36L. ed. 699, 
 4 Inters. Com. Rep. 92, 
 49 Am. & Eng. R. Cas. 
 
 243 611, 688. 775, 776 
 
 V. Baltimore & O. R. Co. 3 
 Inters. Com. Rep. 192, 
 
 43 Fed. Rep. 37. 749 
 
 ~ V. Brimson, 154 U. S. 447, 
 38 L. ed. 1047, 4 Inters. 
 
 Com. Rep. 545 536 
 
 V. Cincinnati, N. O. & T. P. 
 R. Co. 4 Inters. Com. 
 Rep. 332, 56 Fed. Rep. 
 
 925... 410 
 
 651, 654, 677, 682, 727, 1055 
 <D. Detroit. G. H. & M. R. 
 Co. 4 Inters. Com. Rep. 
 722. 57 Fed. Rep. 1005 
 
 648, 649. 726, 781 
 
 «. Lehigh Valley R. Co. 3 
 Inters. Com. Rep. 796, 
 
 49 Fed. Rep. 177 1055 
 
 . «. Texas & P. R. Co. 4 
 Inters. Com. Rep. 62.- 
 
 535, 774 
 
 v. Texas & P. R. Co. 4 
 Inters. Com. Rep. 408. 
 57 Fed. Rep. 948. ..659, 776 
 Interstate Land Co. v. Maxwell 
 Land Grant Co. 139 U. 
 S. 569, 35 L. ed. 278.. _ 
 
 473 
 
 Investment Co. of Philadelphia v. 
 Ohio & N. W. R. Co. 
 
 41 Fed. Rep. 378 415 
 
 Invincible, The, 3 Sawy. 176 307 
 
 Iowa, The, 50 Fed. Rep. 561 
 
 22, 233, 1023 
 
 Iowa Barb Steel Wire Co., Be. 1 
 Inters. Com. Rep. 605 
 
 526. 533. 534 
 
 Iowa Grain S. S. Asso. v. Chicago 
 &N.W.R. Co. 2Intefs. 
 
 Com. Rep. 431 782 
 
 Ira B. Ellens. The, 48 Fed. Rep. 
 
 591 863 
 
 Ireland v. Livingstone, L. R. 5 H. 
 
 L. 395 862 
 
 V. Thomson, 4 C. B. 149... 867 
 
 Irish V. Milwaukee & St. P. R.Co. 
 19 Minn. 376, 18 Am. 
 Rep. 340 388 
 
 Iron R. Co. v. Lawrence Furnace 
 
 Co. 49 Ohio St. 102 5iQ 
 
 Isaacson v. New York Cent. & H. 
 R. R. Co. 94 N. Y. 278, 
 46 Am. Rep. 142 313 
 
 Isabella Thompson, The, y. United 
 States, 70 U. S. 3 Wall. 
 155, 18 L. ed. 55 359 
 
 Isham T. Greenham, 1 Handy, 357 861 
 
 Itinerant, The, 2 W. Rob. Adm. 
 
 236 349 
 
 Izett V. Mountain, 4 East. 371 202 
 
 Jack V. Des Moines & Ft. D. R. 
 
 Co. 53 Iowa, 399 878 
 
 Jackson «. Julia Smith, The, 6 Mc- 
 Lean, 484, Newb. Adm. 
 
 61 871 
 
 V. McLean, 36 Fed. Rep. 
 
 213 694 
 
 V. Magnolia, The, 61 U. S. 
 20 How. 296, 15 L. ed. 
 
 909 ..1045 
 
 Jackson Co. v. Boylston Mut. Ins. 
 Co. 139 Mass. 508, 52 
 
 Am. Rep. 728 
 
 1011, 1013, 1016 
 
 Jacksonville S. E. R. Co. v. Rab- 
 bit, 29 111. App. 288__- 877 
 Jacob Dold Packing Co. v. Ober & 
 
 Sons Co. 71 Md. 1.55. .. 226 
 Jacobs V. Credit Lyonnais. L. R. 
 12 Q. B. Div. 589, 53 L. 
 
 J. Q. B. N. S. 156 893 
 
 Jacobs v. Tutt, 33 Fed. Rep. 412.. 15 
 James v. Canadian Pac. R. Co. 4 
 Inters. Com. Rep. 274 
 
 534, 578, 659, 660, 716 
 
 v. East Tennessee, V. & G. 
 R. Co. 2 Inters. Com. 
 Rep. 609.. 590, 599, 649, 658 
 James & M. Buggy Co. v. Cincin- 
 nati, N. O. & T. P. R. 
 Co. 3 Inters. Com. Rep. 
 
 682... 636, 
 
 -...651, 654, 658, 683, 782 
 Jasper Trust Co. v. Kansas City, 
 M. & B. R. Co. 99 Ala. 
 
 416 138,916 
 
 Jeffersonville, M. & I. R. Co. v. 
 
 Irvin, 46 Ind. 180 109 
 
 «. Worland, 50 Ind. 339 98
 
 TABLE OF CASES. 
 
 xliii 
 
 Jeffersonville R. Co. v. Cleveland, 
 
 ■6 Bush. 468- 888, 892 
 
 Jeffrey v. Bigelow, 13 Wend. 518, 
 
 28 Am. Dec. 476 87 
 
 Jencks t. Coleman, 2 Suran. 221.. 4 
 Jenneson v. Camden & A. li. & 
 Transp. Co. (Pa.) 4 Am. 
 
 L. Reg. 234 366 
 
 Jennings v. Grand Trunk R. Co. 
 52 Hun, 227, 127 N. Y. 
 438, 49 Am. & Eng. R. 
 
 Cas. 98 55, 80, 98 
 
 99, 137, 147, 148, 225, 359 
 Jennings County Comrs. v. Ver- 
 
 barg, 63 Ind. 107 691 
 
 Jessel V. Bath, L. R. 2 Exch. 267 
 
 105, 106, 138 
 
 J. E. Trudeau, The, 48 Fed. Rep. 
 
 847 .- -.-- -- 352 
 
 Jewett V. Olsen, 18 Or. 419, 42 Am. 
 
 & Eng. R. Cas. 435.927, 928 
 Johanne, The, 48 Fed. Rep. 733.. 306 
 John H. Pearson, The, 33 Fed. 
 
 Rep. 845 -- 316 
 
 Johnson v. Alabama & V. R. Co. 
 
 69 Mi.ss. 191 194, 244 
 
 V. East Tennessee, V. & Q. 
 
 R. Co. 90 Ga. 810.. 321, 400 
 D. Midland R. Co. 4 Exch. 
 
 372 -- 85 
 
 V. New York Cent. R. Co. 
 
 31 Barb. 196 317 
 
 V. New York Cent. R. Co. 
 33 N. Y. 610, 88 Am. 
 
 Dec. 416 317 
 
 V. Pensacola & P. R. Co. 16 
 Fla. 623, 26 Am. Rep. 
 
 731 571, 574 
 
 734, 740, 744, 749, 760, 845 
 Johnstone v. Richmond & D. R. 
 
 Co. 39 S. C. 55 49, 
 
 51, 202, 281 
 
 Joint Water & Rail Lines, Ee, 2 
 Inters. Com. Rep. 486 
 
 424, 671, 709 
 
 Jones T. Clark, 9 Ind. 341... 97 
 
 », Eastern Counties R. Co. 
 3 C. B. N. S. 718, 1 
 Nev. & McN. 45.. 611, 
 
 612, 714, 749 
 
 V. Fell, 5 Fla. 510 465 
 
 V. New York & E. R. Co. 
 
 29 Barb. 633 525, 888 
 
 T. Pitcher, 3 Stew. & P. 
 (Ala.) 135, 24 Am. Dec. 
 
 716 ...156, 163 
 
 i>. Voorhees, 10 Ohio St. 145 
 
 41, 219, 220 
 
 Jordan v. Fall River R. Co. 5 Cush. 
 
 69, 51 Am. Dec. 44 746 
 
 Joseph Grant, The, 1 Biss. 193 .. 138 
 Joshua Barker, The, Abb. Adm. 
 
 215 357, 358, 363 
 
 Joslyn V. Grand Trunk R. Co. 51 
 
 Vt. 92 112 
 
 Jourdan v. Long Island R. Co. 115 
 
 N. Y. 380 424 
 
 Joyce V. Kennard, L. R. 7 Q. B. 
 
 78 -. 1009 
 
 Joyner v. South Carolina R. Co. 
 
 26S. C.49.. 17 
 
 Judson V. Western R. Corp. 4 Al- 
 len, 520, 81 Am. Dec. 
 
 718 415 
 
 t>. Western R. Corp. 6 Allen, 
 
 486, 83 Am. Dec. 646.. 
 
 125, 912 
 
 Julia, The, 14 Moore, P. C. 210.. 4 
 Julien V. Peninsular & O. Co. 3 
 
 MooreP. C. N. S. 282-. 64 
 Juniata Paton, The, 1 Biss. 15.. 
 
 171, 1027 
 
 Junod V. Chicago & N. W. R. Co. 
 
 3 Inters. Com. Rep. 663, 
 
 47 Fed. Rep. 290.. 649, 
 
 719, 880, 1092 
 
 Juston V. Ballam, 1 Salk. 34 334 
 
 J. W. Brown, The, 1 Biss. 79.... 94 
 
 Kallman v. United States Exp. Co. 
 
 3 Kan. 205.. 45, 95, 200, 202 
 Kansas City, M. & B. R. Co. v. 
 
 Holland, 68 Miss. 351.. 
 
 127, 147. 232 
 
 V. Lilly (Miss.) 45 Am. & 
 
 Eng. R. Cas. 379. ...77, 80 
 Kansas City, St. J. & C. B. R. Co. 
 
 V. Simpson, 30 Kan. 645, 
 
 46 Am. Rep. 104... 213, 254 
 Kansas Pac. R. Co. v. Bayles, 19 
 
 Colo. 348 764, 771, 852 
 
 V. Reynolds, 8 Kan. 629... 
 
 188, 1028, 1030 
 
 Karnak, The, L. R. 2 P. C. 505.. 64 
 
 Kate, The, 12 Fed. Rep. 881 967 
 
 v. Aitkin, 39 Fed. Rep. 328. 105 
 Kauffman Mill Co. v. Missouri 
 
 Pac. R. Co. 3 Inters. 
 
 Com. Rep. 400.. 
 
 481, 569, 783 
 
 Kay V. Wheeler, L. R. 2 C. P. 
 
 302 168 
 
 Keeling v. Griffin, 56 Pa. 305.-.. 441
 
 xliv 
 
 TABLE OF CASES. 
 
 Keeney v. Grand Trunk R. Co. 47 
 N. Y. 525, 59 Barb. 104 
 340, 757 
 
 Keith V. Amende, 1 Bush. 455 95 
 
 D. Kentucky Ceat. R. Co. 
 (Ky.) 1 Inters. Com. 
 Rep. 601 236, 238 
 
 Kelham v. Kensington, 24 La. 
 
 Ann. 100 188 
 
 Keliher v. Nebo, The, 40 Fed. 
 
 Rep. 31... 23 
 
 Kellogg V. La Crosse & M. Packet 
 
 Co. 3Biss. 496 167 
 
 V. Laikiu, 3 Pinney, 123... 464 
 
 Kelton V. Taylor, 11 Lea, 264, 47 
 
 Am. Rep. 284 385 
 
 Kemp V. Coughtry, 11 Johns. 107 
 
 .160, 906 
 
 Kendall v. London & S. W. R. 
 Co. L. R. 7 Exch. 373, 
 
 41 L. J. Exch. 184 
 
 15 253 254 
 
 Kennedy v. Ry all', '67 N. ' Y. 379 - ' 25 
 
 Kenney v. Grand Trunk R. Co. 59 
 Barb. 104, 47 N. Y. 525 
 
 -312 315 
 «. New York 'Cen't."&'H. R. 
 R. Co. 125 K Y. 422.. 
 55, 56, 194 
 
 Kent V. Hudson River R. Co. 22 
 
 Barb. 278 325, 343, 888 
 
 Kentucky & I. Bridge Co. v. Lou- 
 isville & N. R. Co. 2 
 Inters. Com. Rep. 389, 
 2 L. R. A. 325, 37 Fed. 
 
 Reo. 630 5, 417. 
 
 422, 424, 430, 433, 532, 
 574, GOO, 677, 679, 849, 1055 
 
 Keokuk, The, v. Home Ins. Co. 
 ("The Northern Belle") 
 76 U. S. 9 Wall. 52G, 19 
 
 L. ed. 746 22, 23, 868 
 
 V. Robson, 76 U. S. 9 Wall. 
 
 517, 19 L. ed. 744 871 
 
 Keokuk N. L. Packet Co. v. Keo- 
 kuk, 95 U. S. 80, 24 L. 
 ed. 377 ...496, 511, 517 
 
 Kerbuish v. Havermeyer's & E. 
 Sugar Ref. Co. 42 Fed. 
 Rep. 511. 918 
 
 Kersey Oil Co. v. Oil Creek & A. 
 
 R. Co. 12 Phila. 374... 441 
 
 Ketchum v. American Merchants 
 
 D. Exp. Co. 52 Mo. 390 . 
 43, 1030. 1033 
 
 Kettle River R. Co. «. Eastern R. 
 Co. 6 L. R. A. 211, 41 
 Minn. 461 688 
 
 Keystone, The, 31 Fed. Rep. 413. 
 
 .305, 308, 309, 383 
 
 Kidd V. Pearson, 128 U. S. 1, 32 
 
 L. ed. 346, 2 Inters. 
 
 Com. Rep. 232 851, 937 
 
 Kiff V. Atchison, T. & S. F. R. Co. 
 
 32 Kan. 2G3 403 
 
 V. Old Colony & N. R. Co. 
 
 117 Mass. 591, 19 Am. 
 
 Dec. 429 35, 936 
 
 Kilbourn v. Thompson, 103 U. S. 
 
 168, 26L.ed. 377.1078, 1084 
 Killmer v. New York Cent. & H. 
 
 R. R. Co. 100 N. Y. 395, 
 
 53 Am. Rep. 194 
 
 520, 749. 763 
 
 Kimball v. Rutland & B. R. Co. 26 
 
 Vt. 247, 62 Am. Dec. 
 
 5G7 
 
 5, 41, 74, 96, 124, 146, 1013 
 Kimmish v. Ball, 129 U. S. 217, 33 
 
 L. ed. 695, 3 Inters. 
 
 Com. Rep. 407 509 
 
 King V. Lady Franklin. The. 75 U. 
 
 S. 8 Wall. 325, 19 L. ed. 
 
 455. -.94, 107, 137-139, 141 
 v. New York & N. H. R. Co. 
 
 3 Inters. Com. Rep. 272 
 
 .662, 666, 728 
 
 v. Richards, 6 Whart. 418, 
 
 37 Am. Dec. 420 927 
 
 V. Shepherd, 3 Story. 349.. 
 
 12, 164, 
 
 176. 182, 260,335, 336, 1028 
 Kingsford«>. Marshall, 8 Bing. 458 171 
 Kinnick v. Chicago, R. I. & P. R. 
 
 Co. 69 Iowa, 666 
 
 239, 247, 256, 262, 321, 327 
 Kinsley v. Buffalo, N. Y. & P. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 318, 37 Fed. Rep. 181.. 
 
 571, 753 
 
 Kirby v. Adams Exp. Co. 2 Mo. 
 
 App. 369.... 194, 208, 1027 
 V. Western U. Telcg. Co. (S. 
 
 D.) June 26, 1893.. 128, 151 
 Kirchner ». Venus, 12 Moore, P. 
 
 C. 384 95 
 
 Kirkland v. Dinsmore, 62 N. Y. 
 
 171. 20 Am. Rep. 475.. 
 
 .96, 103, 131 
 
 Kirtland «. Montgomery, 1 Swan. 
 
 453. 2 
 
 Kitchen V. Vanadar, 1 Blackf. 356, 
 
 13 Am. Dec. 249 866 
 
 Kleiner. Catava. 2 Gall. 61. 847 
 
 Knapp V. United States & C. Exp. 
 
 Co. 55 N. H. 348... 32, 115
 
 TABLE OF CASES. 
 
 xiv 
 
 Knell V. United States & B. SS. Co. 
 
 1 Jones & S. 423 14G 
 
 Knight V. Providence & W. R. Co. 
 
 13 R. I. 573, 43 Am. 
 
 Rep. 46 -- 862 
 
 V. Southern Pac. R. Co. 41 
 
 Tex. 406 852 
 
 Knott V. 100 Bales of Rags, 60 Fed. 
 
 Kcp. 634 970 
 
 V. Raleigh & G. R. Co. 98 
 
 N. C. 73.. 414 
 
 Knowlton v. Erie R. Co. 19 Ohio 
 
 St. 260, 2 Am. Rep. 395 
 
 43, 893 
 
 Knox V. Ninetta, The, Crabbe, 534 93 
 Koehler, Ex parte, 1 Inters. Com. 
 
 Rep. 28, 30 Fed. Rep. 
 
 8r.7 526,527. 530, 531 
 
 Koehler, Ex parte, 1 Inters. Com. 
 
 Rep. 317, 31 Fed. Rep. 
 
 315 659 
 
 Kohn «. Packard, 3 La. 224, 23 
 
 Am. Dec. 453 892, 964 
 
 Kopitoff V. Wilson, L. R.- 1 Q. B. 
 
 Div. 377 190 
 
 Kopper V. Dyer, 59 Vt. 477, 59 
 
 Am. Rep. 742 162 
 
 Krulder v. Ellison, 47 N. Y. 37, 7 
 
 Am. Rep. 402.111, 902, 1008 
 Kyle V. Lawrence R. Co. 10 Rich. 
 
 L. 382, 70 Am. Dec. 231 920 
 
 La Amistad de Rues, 18 U. S. 5 
 
 Wheat. 385, 5L.ed. 115 358 
 Lacour v. New York, 3 Duer, 406 363 
 La Crosse Manufacturers & J. 
 
 Union v. Chicago, M. & 
 
 St. P. R. Co. 2 Inters. 
 
 Com. Rep. 9.. 
 
 526, 532, 592, 684 
 
 Ladd V. Foster, 31 Fed. Rep. 827. 
 
 162, 175 
 
 Ladue v. Griffith, 25 N. Y. 364, 82 
 
 Am. Dec. 360.. 84 
 
 Lady Pike, The, 2 Biss. 145... 13, 178 
 Laing v. Colder, 8 Pa. 479, 49 Am. 
 
 Dec. 533 42 
 
 Lake Erie & W. R. Co. v. Hatch, 
 
 6 Ohio, C. C. 230 905 
 
 V. Rosenberg, 31 111. App. 47 
 
 .264, 323 
 
 JLake Shore & M. S. R. Co. v. Ben- 
 nett, 89 Ind. 457. 6 Am. 
 
 &Eng. R. Cas. 391.... 
 
 43,262, 346, 1006 
 
 Lake Shore & M. S. R. Co. v. 
 
 Hodapp, 83 Pa. 22.... 914 
 V. State, 8 Ohio, C. C. 220.. 514 
 Lake Superior & M. R. Co. v. 
 
 United States, 93 U. S. 
 
 444, 23 L. ed. 967 5 
 
 Lakin v. Willamette Valley & C. 
 
 R. Co. 13 Or. 436, 57 
 
 Am. Rep. 25 442 
 
 Lallande v. His Creditors, 42 La. 
 
 Ann. 705 71, 141 
 
 Lamb v. Camden & A. R. & 
 
 Transp. Co. 46 N. Y. 
 
 271, 7 Am. Rep. 327, 
 
 reversing 2 Daly, 454.. 
 
 131, 
 
 147, 185, 312, 404, 1029, 1030 
 V. Camden & A. R. Co. 4 
 
 Daly, 483 133, 181 
 
 «. Henderson, 63 Mich. 302 
 
 118, 964 
 
 V. Parkman, 1 Sprague, 343 
 
 ...95, 306 
 
 Lancashire & Y. R. Co. v. Green- 
 wood, L. R. 21 Q. B. 
 
 Div. 215, 35 Am. & 
 
 Eng. R. Cas. 537 614 
 
 Lancaster Canal Co. v. Parnaby, 
 
 11 Ad. & El. 223 5 
 
 Lancaster Mills v. Merchants Cot- 
 ton Press & S. Co. 89 
 
 Tenn. 1, 45 Am. & Eng. 
 
 R. Cas. 423 14, 183 
 
 Lance ■». Cowan, 1 Dana, 195 859 
 
 Land v. Wilmington & W. R. Co. 
 
 104 N. C. 48, 40 Am. & 
 
 Eng. R. Cas. 379.... 77, 80 
 
 Lander®. Clark, 1 Hall, 355 26 
 
 Landsberg v. Dinsmore, 4 Daly, 
 
 490 203 
 
 Lane v. Atlantic Works, 111 Mass. 
 
 141 ■ 87 
 
 V. Cotton, 1 Ld. Raym. 646 
 
 75, 76 
 
 Lang v. Pennsylvania R. Co. 20 L. 
 
 R. A. 360, 154 Pa. 342. 
 
 152, 204 
 
 Lapham v. Atlas Ins. Co. 24 Pick. 
 
 1 302, 306 
 
 Larrinaga v. 2000 Bags of Sugar, 
 
 40 Fed. Rep. 507 865 
 
 Larrison v. Chicago & G. T. R. Co. 
 
 1 Inters. Com. Rep. 
 
 369 881 
 
 Larrows v. Lewis, 44 Hun, 226... 964 
 Latham v. Lawrence, 13 Conn. 299 26 
 V. Rutley, 2 Barn. & C. 
 
 20 96
 
 xlvi 
 
 TABLE OF CASES, 
 
 La Tourrette v. Burton ("The Com- 
 mander-in-Chief") 68 U. 
 
 S. 1 Wall. 43, 17 L. ed. 
 
 609 4, 12, 35. 173, 
 
 360, 361, 363, 887, 1003, 1007 
 Laurie v. Douglas, 15 Mees. & W. 
 
 746 169 
 
 Laveroni v. Drury, 8 Exch. 166.- 
 
 168. 887 
 
 Lavoie «. Reg. 3 Can. Exch. 96.. 
 
 394, 395, 1024 
 
 Law V. Bottsford, 36 Fed. Rep. 651 138 
 Lawrence v. Aberdein. 5 Barn. & 
 
 Aid. 107 169 
 
 V. DenbreenH (" Collenburg, 
 
 The,") 66 U. S. 1 Black, 
 
 170, 17 L. ed. 89... 337, 919 
 V. Milwaukee, L. S. & W. 
 
 R. Co. 84 Wis. 427.. 
 
 361, 265 
 
 v. Minturn, 58 U. S. 17 How. 
 
 100, 15 L. ed. 58 
 
 169, 303, 310, 311, 903, 1007 
 V. New York, P. & B. R. 
 
 Co. 36 Conn. 63 
 
 ....95, 146, 203, 1012, 1035 
 V. Winona & St. P. R. Co. 
 
 15 Minn. 390, 2 Am. 
 
 Rep. 130 365 
 
 Lawrence R. Co. v. Cobb, 35 Ohio 
 
 St. 94 357 
 
 Lawton v. Comer, 7 L. R. A. 55, 
 
 40 Fed. Rep. 480 1013 
 
 Leadbetter v. JStna Ins. Co. 18 
 
 Me. 267, 29 Am. Dec. 
 
 505 230 
 
 Leame». Bray, 3 East, 593 178 
 
 Leather Cloth Co. v. Lorsont, L. 
 
 R. 9 Eq. 345 459,464 
 
 Leathers v. Blessing, 105 U. S. 626, 
 
 36 L. ed. 1193... 1045, 1046 
 Lebeau v. General Steam Nav. Co. 
 
 L. R. 8C. P. 88 105 
 
 Lechouizer v. Hamburg- American 
 
 Packet Co. 8 Misc. 213 37 
 LeConteur v. London & S. W . R. 
 
 Co. 35 L. J. Q. B. 241. 44 
 Ledyard v. Hibbard, 48 Mich. 431, 
 
 42 Am. Rep. 474 118 
 
 Lee V. Bargess, 9 Bush. 653 2 
 
 V. Boardman, 3 Mass. 238, 
 
 3 Am. Dec. 134 -. 26 
 
 V. Raleigh & G. R. Co. 72 
 
 N. C. 236 254 
 
 Lehigh Valley R. Co. v. Pennsyl- 
 vania, 145 U. S. 192, 36 
 
 L. ed. 672, 4 Inters. 
 
 Com. Rep. 87 508, 527 
 
 Lehmann v. Southern Pac. Co. 
 3 Inters. Com. Rep. 80 
 
 577, 667, 710 
 
 «. Texas & P. R. Co. 3 In- 
 ters. Com. Rep. 706 
 
 686, 727, 879 
 
 Leigh «. Smith, 1 Car. & P. 638.76, 141 
 
 Leisy v. Hardin, 135 U. S. 100, 34 
 L. ed. 128. 3 Inters. 
 Com. Rep. 36.. 81, 851, 937 
 
 Leloup V. Mobile, 137 U. S. 640, 33 
 L. ed. 311, 3 Inters. 
 Com. Rep. 134... 487 
 
 Lenox «. United Ins. Co. 3 Johns. 
 
 Cas. 178 304, 310 
 
 Leonard v. American Exp. Co. 26 
 
 U. C. Q. B. 533 135 
 
 v. Chicago & A. R. Co. 2 
 
 Inters. Com. Rep. 599 . 
 
 1709 ggQ 
 
 V. Decker ,'32' Fed. Rep. 74l' 
 
 1045 
 
 V. Fitchburg R. Co. 143 
 
 Mass. 307 .- 119, 269 
 
 V. Tidd, 3 Met. 6 910, 911 
 
 Lesinsky v. Great Western Dis- 
 patch, 10 Mo. App. 134. 389 
 Leslie v. Loiillard, 1 L. R. A. 456, 
 
 HON. Y. 519. 440, 699 
 
 Letchford v. Golden Eagle, The, 
 
 17La. Ann. 9 35 
 
 Levering v. Union Transp. & Ins. 
 Co. 42 Mo. 88, 97 Am. 
 Dec. 330-. 19,185, 1038, 1030 
 Levy V. Pontchartrain R. Co. 23 
 
 La. Ann. 477 180 
 
 V. Southern Exp. Co. 4 S. C. 
 
 234 200, 204, 208, 404 
 
 Lewis V. Alexander, 51 Tex. 578.. 703 
 V. Great Western R. Co. L. 
 
 R. 3 Q. B. Div. 195.... 44 
 V. Great Western R. Co. 5 
 Hurlst. & N. 867, 47 L. 
 
 J. Q. B. N. S. 131 
 
 80, 181, 221,332 
 
 V. Ludwick, 6 Coldw. 368, 
 
 98Am. Dec. 454 35 
 
 1). Smith, 107 Mass. 334... 1029 
 Lewisohn v. National SS. Co. 56 
 
 Fed. Rep. 602... 54 
 
 Libby«. Ingalls, 124 Mass. 503... Ill 
 License Tax Cases, 72 U. S. 5 Wall. 
 
 463, 18 L. ed. 497 495 
 
 Lickbarrow v. Mason, 1 Smith, 
 Lead. Cas. 848, 3 T. R. 
 63, 6 East, 21 ..109,866,901 
 
 V. Mason, 5 T. R. 683 90 
 
 Liddard v. Lopes, 10 East, 526 ... 873
 
 TABLE OF CASES. 
 
 xlvii 
 
 Ligo, The, 2 Hagg. Adm. 356 349 
 
 Lincoln Board of Trade v. Burling- 
 ton & M. R. Co. 3 In- 
 ters. Com. Rep. 95 
 
 589,600, 664, 716 
 
 V. Missouri Pac. R. Co. 2 In- 
 ters. Com. Rep. 98 .655, 730 
 Lincoln Creamery v. Union Pac. 
 R. Co. 3 Inters. Com. 
 
 Rep. 794. 600, 602 
 
 Lindsley v. Chicago, M. & St. P. 
 R. Co. 36 Minn. 539... 
 
 254, 272 
 
 Lipford V. Charlotte & S. C. R. Co. 
 
 7 Rich. L. 409-147, 161, 326 
 Lippman i\ Illinois Cent. R. Co. 
 
 2 Inters. Com. Rep. 414. 685 
 Little V. Boston & M. R. Co. 66 
 
 Me. 239 207, 1027 
 
 V. Fargo, 43 Hun, 233 
 
 119, 346. 965 
 
 V. Semple, 8 Mo. 99, 40 Am. 
 
 Dec. 123 397 
 
 Littlefield v. Fitchburg R. Co. 158 
 
 Mass. 1 542 
 
 Little Miami, C. & X. R. Co. v. 
 Dodds, 1 Cin. Super. Ct. 
 
 47 141 
 
 Little Miami R. Co. v. Washburn, 
 
 22 Ohio St. 324 392 
 
 Little Rock & Ft. S. R. Co. v. 
 
 Bruce, 55 Ark. 65 
 
 520, 559, 602, 921, 925 
 
 V. Cravens, 18 L. R. A. 527, 
 
 57 Ark. 112.. 181 
 
 V. Daniels, 49 Ark. 352 409 
 
 V. Hanniford, 49 Ark. 291, 
 1 Inters. Com. Rep. 580, 
 ..97, 510, 521, 920, 922, 925 
 
 V. Hunter, 42 Ark. 200 77 
 
 Little Rock &, M. R. Co. v. East 
 Tennessee V. & G. R. 
 Co. 2 Inters. Com. Rep. 
 
 454... .424, 677 
 
 v. St. Louis. I. M. & S. R. 
 Co. 2 Inters. Com. Rep. 
 765, 41 Fed. Rep. 563.. 677 
 V. St. Louis, I. M. & S. R. 
 Co. 59 Fed. Rep. 400 
 . 417, 419-421, 677, 713, 776 
 Little Rock, M. R. & T. R. Co. v. 
 
 Corcoran, 40 Ark. 375. 1030 
 V. Glideweil. 39 Ark. 487 .. 915 
 
 V. Harper, 44 Ark. 208 188 
 
 V. Talbot, 39 Ark. 524 
 
 127, 1012, 1030 
 
 V. Talbot, 47 Ark. 97 185 
 
 Lively, The, 1 Gall. 325.. 358, 359, 363 
 
 Liver Alkali Co. v. Johnson, L. R. 
 7 Exch. 267, L. R. 9 
 Exch. 338 3 
 
 Liverpool & G. W. Steam Co. e. 
 Phffinix Ins. Co. ("The 
 Montana") 129 U. S. 
 
 397, 32 L. ed. 788 
 
 12, 34, 35,46, 
 
 52, 53, 64, 68, 72, 165, 
 170. 191, 217, 894, 1017, 1021 
 
 Liverpool Corn Trade Asso. v. 
 London &N. W. R. Co. 
 [1891] 1 Q. B. 120, 45 
 Am. & Eng. R. Cas. 216, 
 9 Ry. & Corp. L. J. 83 
 576, 613, 635, 710, 717 
 
 Live Yankee, The, Deady, 420 
 
 1027 
 
 Livingston v. New York Cent. & 
 H. R. R. Co. 5 Hun, 
 562 320, 327 
 
 Lloyd V. General Iron Screw Col- 
 lier Co. 3 Hurlst. & C. 
 • 284, 33 L. J. Exch. 269. 349 
 
 Lloyd V. Guibert, 6 Best. & S. 100, 
 
 L. R. 1 Q. B. 115 
 
 -35, 64, 66, 894 
 
 Logan «. Mobile Trade Co. 46 Ala. 
 
 514 Ill 
 
 London & L. F. Ins. Co. v. Rome, 
 VV. & O. R. Co. 68 Hun, 
 598 78. 79, 130 
 
 London & N. W. R. Co. v. Bart- 
 lett, 7 Hurlst. & N. 
 
 600 ..- 80 
 
 V. Evershed, L. R. 3 App. 
 
 Cas. 1029 785, 845 
 
 V. Evershed, 26 Week. Rep. 
 
 868--. 759 
 
 London & N. W. R. Co. v. Glyn, 
 
 1 El. &E1. 652 1009 
 
 Lonergan v. Stewart, 55 111. 44.-. 386 
 
 Long V. New York Cent. R. Co. 
 
 50N.Y. 76-.94, 99, 111, 129 
 V. Straus, 107 lud. 94, 57 
 
 Am. Rep. 87 96, 97 
 
 Longhurst v. Star Ins. Co. 19 Iowa, 
 
 364.-. 224 
 
 Lord V. Good ale, N. & P. SS. Co. 
 102 U. S. 541, 26 L. ed. 
 224 59, 495, 527, 528 
 
 Lord Cochrane, The, 8 Jur. 716.. 867 
 
 Loring v. Mulcahy, 3 Allen, 575.. 
 
 910. 911 
 
 Lotspeicb ■». Central R. & Bkg. Co. 
 73 Ala. 306, 18 Am. & 
 
 Eng. R. Cas. 491 
 
 576, 594, 735,764
 
 xlviii 
 
 TABLE OF CASES. 
 
 Loud V. South Carolina R. Co. 4 
 
 Inters. Com. Rep. 205. 
 
 577, 594, 600 
 
 Lough n. Oiiterbridge, 66 Hun, 103 575 
 V. Outer bridge, 68 Hun, 486 
 
 764, 771 
 
 Louisiana Nat. Bank v. Laneville, 
 
 52 Mo. 380 -.. 95, 141 
 
 Louisville & N. R. Co. Be, 4 Inters. 
 
 Com. Rep. 157 725, 781 
 
 V. Baldwin, 85 Ala. 619-522, 523 
 T. Barkhouse, 100 Ala. 543. 908 
 V. Bell, 13 Ky. L. Rep. 393. 
 
 ..266, 347 
 
 V. Boland, 18 L. R. A. 260, 
 
 96Ala.626 426 
 
 T. Brownlee, 14 Bush, 590. 
 
 130,183,1012 
 
 V. Campbell, 7 Heisk. 253.. 
 
 388, 389 
 
 V. Com. 13 Bush, 388 1090 
 
 V. Dies, 91 Tenn. 177... 332. 333 
 V. Fulgham, 91 Ala. 555, 9 
 
 Ry. &Corp. L. J.431_. 
 
 707, 876, 886 
 
 D. Gerson (Ala.) Feb. 13, 
 
 1894 272 
 
 V. Gilbert, 7 L. R. A. 162, 88 
 
 Tenn. 430 
 
 .43, 45, 46, 52, 126, 179, 181 
 V. Giimer, 89 Ala. 534. 42 
 
 Am. & Eng. R. Cas, 
 
 450 889 
 
 V. Lawson, 11 Ky. L. Rep, 
 
 38 227, 914 
 
 V. McGuire, 79 Ala. 395.... 
 
 .256, 864, 1032 
 
 V. Manchester Mills, 88 
 
 Tenn. 653 48,188,202 
 
 V. Oden, 80 Ala. 38 
 
 .49, 183, 188, 202, 203 
 
 V. Owen, 14 Ky. L. Rep. 118 194 
 V. Railroad Commission of 
 
 Tennessee, 19 Fed. Rep. 
 
 679 530 
 
 D. Sherrod, 84 Ala. 178 .... 
 
 202, 203, 283 
 
 V. Sowell, 90 Tenn. 17, 9 Ry. 
 
 & Corp. L. J. 385 
 
 ....45. 46, 49, 280, 283, 284 
 V. State, 3 Head. 523, 75 Am. 
 
 Dec. 778.. 1089 
 
 V. Touart, 97 Ala. 514.. 124. 185 
 
 «. Trent, 16 Lea, 419 270 
 
 v. Wynn, 88 Tenn. 320 
 
 204,253, 254, 272 
 
 Louisville, C. & L. R. Co. v. Hed- 
 
 ger, 9 Bush, 645 254 
 
 Louisville, E. & St. L. Consol. R. 
 
 Co. V. Crown Coal Co, 
 
 43 111. App. 228.559, 762, 767 
 «. Wilson. 18 L. R. A. 105, 
 
 132 Ind. 517.. 756, 844, 1024 
 v. Wilson, 4 L. R. A. 244. 
 
 119 Ind, 352.90, 98, 155. 845 
 Louisville, N. A. & C. R. Co. v. 
 
 Faylor, 126 Ind. 126.52, 194 
 v. Flanagan, 113 Ind. 488.. 
 
 80, 603, 751 
 
 «, Godman, 104 Ind. 490... 78 
 «. Hart, 4 L. R. A. 549, 119 
 
 Ind. 273... ..264, 365 
 
 V. Nicholai, 4 Ind. App, 
 
 119, 45 Alb. L. J. 412.. 1029 
 V. Steele, 6 Ind. App. 183.. 277 
 Louisville, N. O. & T. R. Co. v. 
 
 Bigger, 66 Miss. 319... 
 
 - 254, 271 
 
 V. Mississippi, 138 U, S. 587, 
 
 38 L. ed. 784, 2 Inters. 
 
 Com. Rep. 801 509, 537 
 
 Lovett «. Hobbs, 2 Show, 128 75 
 
 Low V. DeWolf, 8 Pick. 101 109 
 
 Lowe V. East Tennessee, V. & G. 
 
 R. Co. 90 Ga. 85 322 
 
 Lowenberg v. Arkansas & L, R. 
 
 Co. 56 Ark. 439.. 865 
 
 Lucesco Oil Co. v. Pennsylvania 
 
 R. Co. 2 Pittsb. 477.--. 150 
 Lucy, The, 3 C. Rob. Adm. 208.. 359 
 Ludlow V. Bowne, 1 Johns. 1, 3 
 
 Am. Dec. 277... 1004 
 
 Luke'W. Syde, 2 Burr. 882 853 
 
 Luxton V. North River Bridge Co. 
 
 147 U. S. 337, 37 L. ed, 
 
 194 493 
 
 Lydian Monarch, The, 23 Fed. 
 
 Rep. 2 198,203 
 
 Lyng V. Michigan, 135 U. S. 166, 
 
 34 L. ed. 153. 3 Inters. 
 
 Com. Rep. 148 485 
 
 Lynx, The, v. King, 12 Mo. 272, 49 
 
 Am. Dec. 135 337 
 
 Lyon ». Lennon, 106 Ind. 567 386 
 
 V. Mells, 5 East, 428 
 
 14,17, 42, 190 
 
 V. Tiflfany, 76 Mich. 158.-21, 22 
 Lyons v. Hill, 46 N. H. 49 115, 906 
 
 M. 
 
 McAbsher v. Richmond & D. R. 
 
 Co. 108 N. C. 344. --20, 345 
 McAlister v. Chicago, R. I. & P. 
 
 R. Co. 74 Mo. 351 243
 
 TABLE OF CASES. 
 
 xlix 
 
 MacAndrew v. Electric Teleg. Co. 
 
 17 C. B. 3, 2 Am. L. 
 
 Rev. 615, 33 Eng. L. & 
 
 Eq. 180 42, 220 
 
 V. Whitlock. 52 N. Y. 40, 11 
 
 Am. Kep. 657, aft'g 2 
 
 Sweeny, 623 -.325, 940, 967 
 Mc Arthur v. Sears, 21 Wend. 19(5. 
 
 -.13, 118, 159, 164, 177, 182 
 McBeath v. Wabash, St. L. & P. 
 
 R. Co. 20 Mo. App. 445 
 
 241, 271, 274 
 
 McCall V. California, 136 U. S. 104, 
 
 34 L. ed. 391, 3 Inters. 
 
 Com. Rep. 181 485 
 
 McCance v. London & N. W. R. 
 
 Co. 31 L. J. Exch. 65, 
 
 7Hur]st. & N. 477-. 44, 202 
 McCarthy v. Louisville & N. R. 
 
 Co. (Ala.) 61 Am. & 
 
 Eng. R. Cas. 178 ..172, 299 
 McCarty v. Gulf, C. & S. F. R. Co. 
 
 79 Tex. 33 21, 235 
 
 McCombie v. Davies, 6 East, 538. 866 
 NcConnell v. Norfolk & W. R. Co. 
 
 86 Va. 248 365 
 
 McCool V. Smith, 66 U. S. 1 Black, 
 
 459, 17L. ed. 218 458 
 
 McCoy V. Cincinnati, I. St. L. & 
 
 C. R. Co. 13 Fed. Rep. 
 
 31 286.238 
 
 V. Erie & W. Transp. Co. 
 
 •42Md. 498 155 
 
 V. Keokuk & D. M. R. Co. 
 
 44 Iowa, 424 254 
 
 l^IcCready «. Holmes (S. C.)6Am. 
 
 L. Reg. 229.... 95 
 
 McCulloch V. Maryland, 17 U. S. 4 
 
 Wheat. 316, 4 L. ed. 579 
 
 .488, 1071 
 
 McCullough V. Hellweg, 66Md.269 941 
 V. Wabash Western R. Co. 
 
 34 Mo. App. 23.-78, 96, 135 
 McCune v. Burlington, C. R. & N. 
 
 R. Co. 52 Iowa, 600... 256 
 McDaniel v. Chicago & N. W. R. 
 
 Co. 24 Iowa, 412. -.150, 893 
 McDonald v. Highland R. Co. 2 
 
 Ct.ofSess. (3d series) 614 15 
 V. Hovey, 110 U. S. 619,28 
 
 L. ed. 271 458 
 
 V. Western R. Corp. 34 N. 
 
 Y. 497.. 390 
 
 McDuflfee v. Portland & R. R. Co. 
 
 52 N. H. 430, 13 Am. 
 
 Rep. 72 
 
 27, 571, 744, 749, 
 
 755, 758, 763, 769, 770, 885 
 D 
 
 McEntee v. New Jersey S. B. Co. 
 
 45 N. Y. 34, 6 Am. Rep. 
 
 28 887, 915 
 
 McEwen v. Jefforsonville & I. R. 
 
 Co. 23 Ind. 3G8, 5 Am. 
 
 Rep.216 900 
 
 McFadden v. Missouri Pac. R. Co. 
 
 92 Mo. 343 201, 254 
 
 McGaw V. Ocean Ins. Co. 23 Pick. 
 
 405 873 
 
 McGraw v. Baltimore & O. R. Co. 
 
 18 W. Va. 361, 41 Am. 
 
 Rep. 696 320, 321 
 
 McGrew v. Browder, 2 Mart. N. 
 
 8. 17... 859 
 
 V. Missouri Pac. R. Co. 109 
 
 Mo. 582 .-..20, 266 
 
 McGwigan v. Wilmington & W. 
 
 R. Co. 95 N. C. 432... 921 
 McHenry v. Philadelphia, W. & 
 
 B. R. Co. 4 Harr. (Del.) 
 
 448.. ...158, 322 
 
 Mclntyre «. Bowne, 1 Johns. 229.. 1004 
 McKay v. New York Cent. & H. 
 
 R. R. Co. 50 Hun, 563. 
 
 56, 329 
 
 McKean v. Mclver, L. R. 6 Exch. 
 
 36 915 
 
 McKernan v. May hew, 21 Ind. 
 
 291 97 
 
 Mackey v. Peterson, 29 Minn. 298, 
 
 43 Am. Rep. 211 101 
 
 McKinlay v. Morrish, 62 U. S. 21 
 
 How. 343, 16 L. ed. 
 
 100 919 
 
 McLaren v. Detroit & M. R. Co. 23 
 
 Wis. 138 829 
 
 McLean v. Fleming, L. R. 2 H. L. 
 
 128 .- 138 
 
 Macloon v. Cliicago «& N. W. R. 
 
 Co. 8 Inters. Com. Rep. 
 
 711 17, 538,885, 1053 
 
 McMahon v. Macy, 51 N. Y. 
 
 155. Ill 
 
 McManus «. Lancaster & Y. R. 
 
 Co. 2 Hurlst. & N. 702, 
 
 4 Hurlst. & N. 346, 28 
 
 L. J. Exch. 353. 
 
 39,44. 254, 755 
 
 McMasters v. Pennsylvania R. Co. 
 
 69 Pa. 874, 8 Am. Rep. 
 
 264 964 
 
 McMillan v. Michigan S. & N. I. 
 
 R. Co. 16 Mich. 79, 93 
 
 Am. Dec. 208.. 96, 147, 366 
 V. Western Classification 
 
 Committee, 3 Inters. 
 
 Com. Rep. 382 551
 
 1 
 
 TABLE OF CASES. 
 
 McMorran v. Grand Trunk R. Co. 
 
 2 Inters. Com. Rep. 
 
 604.. -561, 590, 599, 653, 781 
 McNeal v. Braun, 53 N. J. L. 617. 905 
 McNees v. Missouri Pac. R. Co. 23 
 
 Mo. App. 224. 571, 740 
 
 McNichol V. Pacific Exp. Co. 12 
 
 Mo. App. 401 116 
 
 McNiel, Ex parte, 80 U. S. 13 
 
 Wall. 336, 20 L. ed. 
 
 624... -486, 496 
 
 Macomber». Parker, 13 Pick. 175- 118 
 Macon v. Macon & W. R. Co. 7 
 
 Ga.221 32 
 
 Madison Ave. Baptist Church ®. 
 
 Baptist Church in Olive 
 
 Street, 73N. Y. 82_... 703 
 Maggie Hammond, The, v. Mor- 
 
 land, 76 U. S. 9 Wall. 
 
 435, 19 L. ed. 772 
 
 95, 331, 361, 869, 873 
 
 Maggie J. Smith, The, «. Walker, 
 
 123 U. S . 349, 31 L. 
 
 ed. 175 351 
 
 Maggie M., The, 30 Fed. Rep. 
 
 692 298 
 
 Maghee v. Camden & A. R. 
 
 Transp. Co. 45 K Y. 
 
 514, 6 Am. Rep. 124..- 
 
 215, 312,404, 405 
 
 Magnin v. Dinsmore, 56 N. Y. 
 
 168. 96, 146, 147 
 
 «. Dinsmore, 70 N. Y. 410, 
 
 26 Am. Rep. 608, afl'g 
 
 60 N. Y. 35, 20 Am. 
 Rep. 442, 50 How. Pr. 
 
 457 51, 203, 
 
 207, 213, 285, 295, 315, 1035 
 
 Maguire t). Smock, 42 Ind. 1 691 
 
 Mahon v. Blake, 125 Mass. 477.. 
 
 296, 914 
 
 Mailler v. Express Propeller Line, 
 
 61 N. Y. 312 .- 357 
 
 Main, The, v. Williams, 152 U. S. 
 
 122, 38 L. ed. 381 62 
 
 Majestic, The, 48 Fed. Rep. 730.. 354 
 Majestic, The, 13 N. Y. Leg. Obs. 
 
 100 ..-- 938 
 
 Maley v. Shattuck, 7 U. S. 3 
 
 Cranch, 458, 3 L. ed. 
 
 498 359 
 
 Mallan v. May, 11 Mees. & W. 
 
 653 459, 464 
 
 Mallory, He, 1 Inters. Com. Rep. 
 
 294 714 
 
 V. Tioga 11. Co. 39 Barb. 488. 5 
 Malpica v. McKown, 1 La. 248, 
 
 20 Am. Dec. 279 213 
 
 Manchester «. Milne, Abb. Adm. 
 
 115 94 
 
 Manchester & L. R. Co. v. Concord 
 
 R. Co. 3 Inters. Com. 
 
 Rep. 319, 9 L. R. A. 
 
 ,689, 66 N. H. — 
 
 464, 467,471,695, 699 
 
 Manchester, S. & L. R. Co. v. 
 
 Brown, L. R. 8 App. 
 
 Cas. 703 46, 47 
 
 V. Denabv Main Colliery Co. 
 
 L. R. 14 Q. B. Div. 
 
 309. L. R. 11 App. Cas. 
 
 97, 26 Am. & Eng. R. 
 
 Cas. 93 613,614 
 
 Manchisa «.Card, 39 Fed. Rep.492. 305 
 Manhattan Oil Co. v. Camden & 
 
 A. R. Co. 52 Barb. 73 
 
 5 Abb. Pr. N. S. 389, 54 
 
 N. Y. 197 .-..404, 405 
 
 Mann v. Birchard, 40 Vt. 326 
 
 124, 125, 146, 185, 323, 1035 
 Manning i>. Hoover, Abb. Adm. 
 
 188 95 
 
 Manufacturers & J. Union «. 
 
 Minneapolis & St. L. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 115 590, 711.731, 770 
 
 Marcardier v. Chesapeake Ins. Co. 
 
 12 U. S. 8 Wheat. 605. 
 
 5L. ed. 696 26 
 
 Marckwald v. Oceanic Steam Nav. 
 
 Co. 11 Hun, 462 315 
 
 Margaret, The, v. Bliss, 94 U. S. 
 
 494, 24 L. ed. 146 4 
 
 Margetson v. Glynn [1892] 1 Q. B. 
 
 337 [1893] App. Cas. 351 315 
 
 Maria, The, 4 Rob. Adm. 348 35 
 
 Marine Bank of Chicago©. Wright, 
 
 48 N. Y. 1 112 
 
 Marlborough, The, 47 Fed. Rep. 
 
 667 33, 27, 811 
 
 Marpeaia, The. L. R. 4 C. P. 212.. 349 
 Marquardt v. French, 53 Fed. Rep. 
 
 603 1032 
 
 Marquette, H. & O. R. Co. ■«. 
 
 Kirkwood, 45 Mich. 51, 
 
 40 Am. Rep. 453.. 393 
 
 Marr «. Western U. Teleg. Co. 85 
 
 Tenn. 542.. 45, 181 
 
 Marsh v. Blythe. 1 McCord L. 360. 156 
 
 V. Redder, Holt, 74 109 
 
 «. Russell, 66 N. Y. 288.... 473 
 Marshall v. American Exp. Co. 7 
 
 Wis. 1, 73 Am. Dec. 381 
 
 891, 906 
 
 V. New York Cent. R. Co. 
 
 45 Barb. 502 337.343
 
 TABLE OF CASES. 
 
 Martello, The, v. Willey. 153 U. S. 
 
 64, 38 L. ed. 637... 185, 188 
 
 Martha, The, Olcott, 140 94 
 
 Martin v. Berens. 67 Pa. 459 101 
 
 V. Berry, 37 Cal. 208 482 
 
 V. Chicago, B. & Q. R. Co. 
 
 2 Inters. Com. Rep. 32.. 
 715, 719 
 
 V. Ft. Worth & D. C. R. Co. 
 
 3 Tex. Civ. App. 556.. 104 
 V. Hunter, 14 U. S. 1 Wheat. 
 
 326, 4 L. ed. 102 483 
 
 V. St. Louis, I. M. & S. R. 
 
 Co. 55 Ark. 510 143 
 
 V. Salem Ins. Co. 2 Mass. 
 
 421 168 
 
 V. Southern Pac. Co. 2 
 
 Inters. Com. Rep. 1 
 
 561. 599, 653 
 
 Marx V. Britannia, The, 34 Fed. 
 
 Rep. 906 .-..157, 1030 
 
 Mary & Susan, The, 14 U. S. 1 
 
 Wheat. 25, 4 L. ed. 27.. 1004 
 Mary J. Vaughan, The, 2 Ben. 47, 
 
 SrU. S, 14 Wall. 258, 
 
 20 L. ed. 807 357, 363 
 
 Maryland Ins. Co. v. Ruden, 10 
 
 U. S. 6 Cranch, 338, 3 
 
 L. ed.242..- 94 
 
 Mary Powell, The, 31 Fed. Rep. 
 
 622. 351 
 
 Mary Stewart, The, 10 Fed. Rep. 
 
 137 1046 
 
 Mary Washington, The, v. Avres, 
 
 5 Am. L. Reg. N. S. 
 
 692 938 
 
 Mascotte, The. 48 Fed. Rep. 119.. 869 
 Maslin v. Baltimore & O. R. Co. 
 
 14 W. Va. 180, 35 Am. 
 
 Rep. 748 231 
 
 Mason v. Missouri Pac. R. Co. 25 
 
 Mo. App. 375.16, 18, 76, 236 
 Massengale v. Western U. Teleg. 
 
 Co. 17 Mo. App. 257.- 275 
 Master Stevedore's Asso. ©.Walsh, 
 
 2 Daly, 1 465 
 
 Mather v. American Exp. Co. 138 
 
 Mass. 55, 52 Am. Rep. 
 
 258 7 
 
 Matthiessen & W. Sugar Ref. Co. 
 
 V. Gusi,29Fed. 794 
 
 155, 157, 168 
 
 Mattlngly v. Pennsylvania Co. 2 
 
 Inters. Com. Rep. 806.. 
 
 393, 681 
 
 Maud Webster, The, 8 Ben. 547.. 1047 
 ]\[aury v. Talmadge, 2 McLean, 157 12 
 Mavingc. Todd,l Stark. 72... 84, 137 
 
 Maxey v. Williamson County Ct. 
 
 72 111.207. 100 
 
 Maxfield v. Schwartz, 10 L. R. A. 
 
 606, 43 .Minn. 221 100 
 
 May«. Babcock, 4 Ohio, 334. .94, 299 
 Mayall v. Boston & M. R. Co. 19 
 
 N. H. 122, 49 Am. Dec. 
 
 149 401 
 
 Mayell v. Potter, 2 Johns. Cas. 371 
 
 892, 965, 966 
 
 Mayflower, The, 1 Brown, Adm. 
 
 387 363 
 
 May Flower, The,"3"Ware",'30o!-'I 103 
 Mayhew v. Eames, 3 Barn. & C. 
 
 601 137 
 
 Maynard v. Svracuse, B. & N. Y. 
 
 R. Co. 71 N. Y. 180, 27 
 
 Am. Rep. 28 .55, 56 
 
 Means v. Bank of Randall, 156 U. 
 
 S. 620, 36 L. ed. 1107. . 
 
 107, 108 
 
 Mears v. Waples, 3 Houst. (Del.) 
 
 582 109 
 
 Mechanics & T. Bank v. Gordon, 5 
 
 La. Ann. 604.. 295 
 
 Mechanics Bank v. Straiten, 3 
 
 Keyes, 365 Ill 
 
 Medbury v. New York & E. R. Co. 
 
 26 Barb. 564 1034 
 
 Meeker v, Claghorn, 44 N. Y. 349.1008 
 Meissuer v. Brun, 128 U. S. 474, 
 
 32 L. ed. 496 847, 853 
 
 Melbourne «. Louisville & N. R. 
 
 Co. 88 Ala. 443.. -.889, 890 
 Melloy V. Lehigh & AV. Coal Co. 
 
 37 Fed. Rep. 377 261 
 
 Memphis & C. R. Co. v. Reeves, 77 
 
 U. S. 10 Wall. 176, 19 
 
 L. ed. 909....13, 15, 35, 
 
 148, 160, 161, 172, 175, 
 
 176, 179, 188, 327, 1028, 1030 
 Memphis&L. R. R. Co.«. Southern 
 
 Exp. Co. 117 U. S. 1. 
 
 29 L. ed. 791. ...29, 32,520 
 Menacho v. Ward, 27 Fed. Rep. 
 
 529 734. 739, 763 
 
 Menzell v. Chicago & N. W. R. 
 
 Co. 1 Dill. 531 151 
 
 Mercantile Mut. Ins. Co. v. Calebs, 
 
 20 N. Y. 173.1012, 1015, 1017 
 V. Chase, 1 E. D. Smith, 115 
 
 41, 220 
 
 Merchants & M. Ins. Co. Shillito, 
 
 15 Ohio St. 559, 80 Am. 
 
 Dec. 491.. 299 
 
 Merchants Bank of Canada v. 
 
 Union R. & Transp. Co. 
 
 C9N. Y. 373 109, 901
 
 lii 
 
 TABLE OF CASES. 
 
 Merchants Cotton Press & S. Co. v. 
 Insurance Co. of N. A. 
 151 U. S. 368, 38 L. ed. 
 
 195. --- 885 
 
 Merchants Despatch & Transp. Co. 
 V. Cornforth. 3 Colo. 
 280, 35 Am. Rep. 757.. 7, 18 
 
 V. Merriam, 111 Ind. 5 909 
 
 Merchants Dispatch Transp. Co. v. 
 
 Bloch, 86Tenn. 393 
 
 6, 7, 45, 139; 413, 1013 
 
 V. Bolles, 80 111. 473 86, 405 
 
 V. Furthmann, 149 111. 66. . 133 
 V. Furthermann, 149 111. 
 
 App. 561. 135 
 
 V. Joesting, 89 111. 153 7 
 
 «. Kahn, 76 111. 530... .815, 388 
 
 V. Leysor, 89 111.43 ..7, 130 
 
 V. Theilbar, 86 111. 71 127 
 
 Merchants Mut. Ins. Co. v. Butler, 
 
 20Md. 41... 873 
 
 v. Lacroix, 35 Tex. 349. 14 
 
 Am. Rep. 370. 320 
 
 Merchants Nat. Bank of Cincin- 
 nati V. Bangs, 103 Mass. 
 
 291. 94 
 
 Merchants Union of Spokane Falls 
 V. Northern Pac. R. Co. 
 4 Inters. Com. Rep. 183 
 
 659, 661 
 
 Meriwether v. Lowndes County, 89 
 
 Ala. 362 159 
 
 Merriam v. Hartford & N. H. R. 
 Co. 20 Conn. 354, 52 
 Am. Dec. 344.. 79, 390, 746 
 Merrill v. American Exp. Co. 63 
 
 N. H. 514 9, 806, 1013 
 
 V. Grinnell, 30 N. T. 594. -.1008 
 Merrimack, The, 13 U.S. 8 Cranch, 
 
 317, 3 L. ed. 575 1004 
 
 Merriman v. May Queen, The, 
 
 Newb. Adm. 464 147 
 
 MerrittB. Earle, 39 N. Y. 117, 86 
 Am. Dec. 292, 31 Barb. 
 
 38 161, 176, 177, 179 
 
 t>. Old Colony & N. R. Co. 
 
 11 Allen, 80 84 
 
 Merry v. Glasgow R. Co. 4 Ry. & 
 
 Canal Traffic Cas. 383.. 775 
 Mersey Docks & H. Board «. 
 Gibb.s, L. R. 1 H. L. 93, 
 
 35 L. J. Exch. 335 5 
 
 ®. Penhallow, 7 Hurlst, & 
 N. 329, 30 L. J. Exch. 
 
 339 5 
 
 Mershon v. Hobensack, 22 N. J. L. 
 
 373. 35, 177, 178 
 
 Merwin v. Butler, 17 Conn. 138.. 891 
 
 Messenger v. Pennsylvania R. Co. 
 36 N. J. L. 407, 13 Am. 
 Rep. 457.. -.737, 744, 
 746, 749,751,755,757,770,885 
 9. Pennsylvania R. Co. 37 
 N. J. L. 531, 18 Am. 
 
 Rep. 754 
 
 744. 746, 750, 756, 760, 769 
 Metcalf V. McLaughlin, 122 Mass, 
 
 84. ....910, 911, 914 
 
 V. Weld, 14 Gray, 210 117 
 
 Metropolitan Bank v. Van Dyck, 
 
 27N.Y. 400 848 
 
 Metzger v. Cleveland, 3 Ind. Law 
 
 Mag. 42. 432 
 
 Meyer v. Chicago & N. TV. R. Co. 
 24 Wis. 566, 1 Am. Rep. 
 
 207 187 
 
 D. Dresser, 16 C. B. N. S. 
 
 657... .--.138,140 
 
 V. Leracke, 31 Ind. 208.-115, 906 
 V. Vicksburg, S. & P. R. Co. 
 
 41 La. Ann. 639 77, 79 
 
 Meyerstein v. Barber, L. R. 2 C. 
 
 P. 38, L. R. 4 Eng. & 
 
 Ir. App. 317- -103, 107, 109 
 
 Miami Powder Co. v. Port Royal 
 
 & W. C. R. C0.38S. C. 
 
 78-. 860, 861, 936 
 
 Michaels v. New York Cent. R. 
 Co. 30 N.Y. 564, 86 Am. 
 
 Dec. 415 
 
 ..11, 150, 176, 313, 343, 946 
 Michigan Cent. R. Co. v. Burrows, 
 
 33 Mich. 6.176, 177, 330, 325 
 
 «. Curtis, 80 111. 324 177 
 
 V. Hale, 6 Mich. 243 
 
 95, 124, 197 
 
 V. Mineral Springs Mfg. Co. 
 83 U. S. 16 Wall. 318, 
 
 21L. ed. 297 124, 
 
 125, 147, 387, 388, 390, 944 
 v. Phillips, 60 111. 190.. 107, 109 
 Michigan Congress Water Co. v. 
 Chicago & G. T. R. Co. 
 2 Inters. Com. Rep. 428 
 
 27, 600, 686 
 
 Michigan S. & N. I. R. Co. ■c. Cas- 
 ter, 13 Ind. 167. .1034 
 
 V. Day, 20 111. 375, 71 Am. 
 
 Dec. 278.-261, 330, 331, 329 
 V. Heaton. 37 Ind. 448, 10 
 
 Am. Rep. 89. -.43, 126, 185 
 V. McDonough, 21 Mich. 
 
 165 ..253. 254 
 
 V. Shurtz, 7 Mich. 518.77, 84, 391 
 Middlesex, The, 11 Law Rep. N. 
 
 S. 14 940
 
 TABLE OF CASES. 
 
 iiii 
 
 Midland R. Co. v. Bromley, 17 C. 
 
 B. 376 -.1028 
 
 Mignano v. Mc Andrews, 53 Fed. 
 
 Rep. 958 ---- 870 
 
 Milan, The, Lush Adra. 388, 31 L. 
 
 J. Adm. 105 349 
 
 Milburn v. 35,000 Boxes of 
 Oranges & Lemons, 57 
 
 Fed. Rep. 236 870 
 
 Miles B. Cattle. 6 Bing. 743. 14 
 
 V. Fletcher, 1 Dougl. 231.. 867 
 V. James, 1 McCord. L. 157 81 
 Miller v. Hannibal & St. J. R. Co. 
 90 N. Y. 430, 43 Am. 
 
 Rep. 179.. 105, 106 
 
 V. Hannibal & St. J. R. Co. 
 
 24 Hun. 607 150 
 
 «. New York, 109 U. S. 385, 
 
 27 L. ed. 971 491 
 
 V. Resolution, The, 2 U. S. 
 2 Dall. 19, 1 L. ed. 
 
 263 359 
 
 V. South Carolina R. Co. 9 
 L. R. A. 833. 33 S. C. 
 
 359... 924, 1034 
 
 V. Steam Nav. Co. 10 N. Y. 
 
 431 178 
 
 V. Thompson. 60 Me. 322.. 867 
 ®. Tiffany, 68 U. S. 1 Wall. 
 
 310, 17 L. ed. 543 893 
 
 Millhiser v. Erdmann, 103 N. C. 27 913 
 Milligan v. Grand Trunk R. Co. 17 
 
 U. C. C. P. 115 342 
 
 Milliken «. Dehon, 27 N. Y. 
 
 364 1005 
 
 Milloy «. Grand Trunk R. Co. 23 
 Ont. Rep. 454, 55 Am. 
 &Eng. R. Cas. 579.... 184 
 Mills V. Central R. Co. of N. J. 41 
 
 N. J. Eq. 1 433 
 
 «. Michigan Cent. R. Co. 45 
 N. Y. 622, 6 Am. Rep. 
 
 152 80, 888 
 
 Milton D. Denver & R. G. R. Co. 
 
 1 Colo. App. 307 
 
 342, 875, 1023 
 
 Milwaukee & M. R. Co. v. Fair- 
 child, 6 Wis. 403 920 
 
 Milwaukee & St. P. R. Co. v. 
 
 Smith, 74 III. 197 895 
 
 Milwaukee Belle, The, 2 Biss. 
 
 197 - 300 
 
 Milwaukee Chamber of Commerce 
 ■». Fliut & P. M. R. Co. 
 
 2 Inters. Com. Rep. 393 
 684, 685, 733 
 
 Minerva, The, 3 C. Rob. Adm. 
 
 34 360 
 
 Minnie Smith, The, 57 Fed. Rep. 
 
 251 353 
 
 Missouri & L. R. Tie & Lumber 
 
 Co. V. Cape Girardeau 
 
 & S. W. R. Co. 1 Inters. 
 
 Com. Rep. 607 526, 531 
 
 Missouri Coal & Oil Co. v. Hanni- 
 bal & St. J. R. Co. 35 
 
 Mo. 84 80 
 
 Missouri, K. & T. R. Co. v. Graves 
 • (Tex. App.) May 3, 1890 
 
 ...20, 21, 194, 225,230, 275 
 «. Olive (Tex. Civ. App.) 
 
 Oct. 4,1893 262 
 
 V. Stoner, 5 Tex. Civ. App. 
 
 50 407, 409, 925 
 
 v. Trinity County Lumber 
 
 Co. 1 Tex. Civ. App. 
 
 .553-. 556, 601, 878 
 
 Missouri Pac. R. Co. v. Childers, 1 
 
 Tex. Civ. App. 302.... 275 
 V. China Mfg. Co. 79 Tex. 26 188 
 v. Edwards, 78 Tex. 307.270, 271 
 ». Fagan, 2 L. R. A. 75, 72 
 
 Tex. 127. -120, 
 
 241, 254, 270, 276, 293, 390 
 
 t). Finley, 38 Kan. 550 238 
 
 B. Harraonson (Tex. App.) 
 
 April 23, 1890 21 
 
 u Harris, 67 Tex. 166 
 
 57. 120, 224, 254, 276 
 
 V. Haynes, 72 Tex. 175 237 
 
 V. Heath (Tex.) Dec. 1, 
 
 1891 270 
 
 D. Heidenheimer, 82 Tex. 
 
 195 .908, 909, 926, 1005 
 
 V. International M. Ins. Co. 
 
 84 Tex. 149 136 
 
 V. Ivy, 1 L. R. A. 500, 71 
 
 Tex. 409. 1012 
 
 V. Ivy, 79 Tex. 444 244 
 
 1). Levi (Tex. App.) Oct. 26, 
 
 1889 346, 347 
 
 «. M'Fiidden, 154 U. S. 155, 
 
 38 L. ed. 944.. 107, 139, 141 
 V. Paine, 1 Tex. Civ. App. 
 
 621 -. .- 275 
 
 V. Sherwood, 17 L. R. A. 
 
 643, 4 Inters. Com. Rep. 
 
 240, 84 Tex. 125.57, 183, 529 
 
 V. Smith, 84 Tex. 348 52, 194 
 
 V. Texas & P. R. Co. 30 Fed. 
 
 Rep. 2 ...572, 573, 756, 758 
 V. Texas & P. R. Co. 31 Fed. 
 
 Rep. 527 630 
 
 v. Texas & P. R. Co. 41 Fed. 
 
 Rep. 319 242 
 
 V. Twiss, 35 Neb. 267.-399, 404
 
 liv 
 
 TABLE OF CASES. 
 
 Missouri Pac. R. Co. v. Vande 
 water, 3 L. R. A. 129,26 
 
 Neb. 222 56, 295, 1012 
 
 V. Weisman, 2 Tex. Civ. 
 
 App. 86. 425 
 
 Missouri SS. Co. Re, L. R. 42 Ch. 
 
 Div. 321 893, 894 
 
 Be (Eag. Ct. Anp.) 7 Ry. & 
 
 Corp. L. J. 5.. 65 
 
 Missouri Valley R. Co. ». Cald- 
 well, 8 Kan. 244 185 
 
 Miston v. Lord, 1 Blatchf. 354_ . 334 
 
 Mitcbel V. Ede, 11 Ad. & El. 888, 
 
 3 Perry & D. 513.. 889, 1004 
 Mitchell v. Reynolds, 1 P. Wms. 
 
 181, 1 Smith Lead. Cas. 
 
 (7th ed.) 708... 
 
 117, 436, 462, 473 
 
 V. Steelman, 8 Cal. 363 486 
 
 V. United States Exp. Co. 
 
 46 Iowa, 214 188 
 
 M. M. Chase, The. 37 Fed. Rep. 
 
 708 928 
 
 Mobile & M. R. Co. v. Jurey, 111 
 U. S. 584, 28 L. ed. 527 
 
 90, 98, 1021, 1022, 1034 
 
 V. Steiner, 61 Ala. 559 
 
 ..591, 852, 874 
 
 Mobile & O. R. Co. v. Dismukes, 
 
 4 Inters. Com. Rep. 200, 
 17 L. R. A. 113, 94 Ala. 
 
 131 ..522,851 
 
 V. Hopkins, 41 Ala. 496, 94 
 
 Am, Dec. 607 124, 208 
 
 V. Jarboe, 41 Ala. 644 
 
 - 147, 154. 1030 
 
 v. Weiner, 49 Miss. 725 
 
 41, 126, 1013 
 
 Mobile County v. Kimball, 102 U. 
 
 S. 691, 26L. ed. 238.-. 
 
 83,486, 496, 510 
 
 Moflfat«. Strong. 10 Johns. 12 174 
 
 Mogul SS. Co. '0. McGregor, L. R. 
 
 21 Q. B. Div. 544, 39 
 
 Alb. L. J. 50-. 463, 467, 751 
 V. McGregor [1892] 1 App. 
 
 Cas. 25 694, 751 
 
 Mohawk, The, 75 U. S. 8 Wall. 
 
 153, 19 L. ed. 406 873 
 
 Mollie Mohler, The, v. Home Ins. 
 
 Co. ("The Mohler") 2 
 
 Biss. 508, 88 U. S. 21 
 
 Wall. 230, 22 L. ed. 485 
 
 ..13, 178, 1028 
 
 Mondego, The, 56 Fed. Rep. 
 
 268 230 
 
 Montell V. Wm. H. Rutan, The, 1 
 
 Int. R-v. Rec. 125 868 
 
 Monticello, The, ». Mollison, 58 U. 
 
 S. 17 How. 152, 15 L. 
 
 ed. 68 362, 363, 1023 
 
 Monitor, The, 3 Biss. 25. 357 
 
 Monitor Mut. F. Ins. Co. -e. Buf- 
 
 fiim, 115 Mass. 343 215 
 
 Montana, The, 17 Fed. Rep. 377.. 333 
 Montgomery «. Port Adelaide, 
 
 The, 38 Fed. Rep. 753. 
 
 941, 964 
 
 Montgomery & E. R. Co. v. Kolb, 
 
 73 Ala. 396, 49 Am. Rep. 
 
 54 79 
 
 Montgomery & W. P. R. Co. v. Ed- 
 monds, 41 Ala. 667 185 
 
 Mooney ®. Howard Ins. Co. 138 
 
 Mass. 375, 52 Am. Rep. 
 
 277 385 
 
 Moore v. American Transp. Co. 65 
 
 U. S. 24 How. 1, 16 L. 
 
 ed. 674 59 
 
 V. Evans, 14 Barb. 524 ...45, 53 
 V. Great Northern R. Co. L. 
 
 R. 10 Ir. Ch. Div. 
 
 95.. 39, 42 
 
 «. Hill, 38 Fed. Rep. 330... 866 
 «. Michigan Cent. R. Co. 3 
 
 Mich. 23 178 
 
 Moore v. Midland R. Co. 9Ir. C. L. 
 
 Rep. 20 260 
 
 V. Wilson, 1 T. R. 659 1004 
 
 Moran v. New Orleans, 112 U. S. 
 
 69, 18L. ed. 653.... 506, 530 
 «. Portland Steam Packet 
 
 Co. 35 Me. 55.. 361 
 
 V. Ross, 79 Cal. 549.. 537 
 
 Mordecai v. Lindsay ("The Eddy") 
 
 72 U. S. 5 Wall. 481, 18 
 
 L. ed. 486.... 863, 868, 
 
 938, 939, 940, 942, 966, 967 
 Morewood v. Pollok, 1 El. & Bl. 
 
 743 943 
 
 Morewood, The, v. Enequist, 64 
 
 U. S. 23 How. 491, 16 L. 
 
 ed. 516 868, 1047 
 
 Morgan v. Donovan, 58 Ala. 241.. 
 
 442, 443, 690, 691 
 
 «. Pike, 25 Eng. L. & Eq. 
 
 287 758 
 
 Morgan's L. & T. R. & SS. Co. v. 
 
 Louisiana Board of 
 
 Health, 118 U. S. 455, 
 
 30 L. ed. 237 
 
 484, 486. 496, 510, 511, 850 
 Moriarty ®. Harnden's Express, 1 
 
 Daly, 227 80, 203 
 
 Morning Mail, The, 17 Fed. Rep. 
 
 545 196
 
 TABLE OF CASES. 
 
 Iv 
 
 Mornins'Star v. Cunningham, 110 
 Ind. 328, 59 Am. Kep. 
 
 211 118, 385 
 
 Morrill v. Boston & M. R Co. 55 
 
 N. H. 531. 461, 694 
 
 Morris, Ee, 2 Inters. Com. Rep. 617 229 
 V. Delaware, L. & W. R. Co. 
 2 Inters. Com. Rep. 617, 
 
 40 Fed. Rep. 101 
 
 ....773, 774, 779 
 
 V. Piatt, 32 Conn. 85 - 159 
 
 Morrison v. Davis, 20 Pa. 171, 57 
 
 Am. Dec. 695 
 
 ...35,149,161,164, 175,176 
 
 V. Gray, 2 Bing. 260 1005 
 
 V. I. & V. Florio SS. Co. 36 
 
 Fed. Rep. 569.- 345 
 
 v. Phillips & C. Constr. Co. 
 
 44 Wis. 405, 28 Am. 
 Rep. 599 46, 231, 287 
 
 Morris Run Coal Co. v. Barclay 
 Coal Co. 68 Pa. 173, 8 
 Am. Rep. 159 .461, 694 
 
 Morritt v. North Eastern R. Co. 
 L. R. 1 Q. B. Div. 302, 
 
 45 L. J. Q. B. 289 365 
 
 Morse v. Slue, T. Raym. 220, 1 
 
 Vent. 190, 238-. 13 
 
 Moses V. Boston & M. R. Co. 24 N. 
 
 H. 71 , 55 Am. Dec. 222, 
 
 32 N. H. 523, 64 Am. 
 
 Dec. 381. 124, 
 
 141, 206, 213, 285, 323, 892 
 
 V. Norris, 4 N. H. 304 11 
 
 V. Port Townsend S. R. Co. 
 
 5 Wash. 594 408 
 
 Mosher t. Southern Exp. Co. 38 
 
 Ga. 87 399 
 
 Moulton V. St. Paul, M. & M. R. 
 
 Co. 31 Minn. 85, 47 Am. 
 
 Rep. 781.. 204, 208, 254, 279 
 Mount Pleasant Mfg. Co. v. Cape 
 
 Fear & T. V. R. Co. 106 
 
 N. C. 207, 42 Am. & 
 
 Eng. R. Cas. 498... 409, 875 
 Mt. Vernon Co. v. Alabama G. S. 
 
 R. Co. 92 Ala. 296.. 388, 391 
 
 Mouse's Case, 12 Coke, 63 169 
 
 Mower v. Leicester, 9 Mass. 247, 6 
 
 Am. Dec. 63 1089 
 
 Muddle V. Stride, 9 Car. & P. 380 189 
 Mugler V, Kansas, 123 U. S. 623, 
 
 31 L. ed. 205 937 
 
 Mullarky v. Philadelphia, W. &B. 
 
 R. Co. 9 Phila. 114.... 366 
 MuUer v. Cincinnati, H. & D. R. 
 
 Co. 2 Cin. Super. Ct. 
 
 280 133 
 
 Mulligan v. Illinois Cent. R. Co. 
 
 36 Iowa, 181, 14 Am. 
 
 Rep. 514 129 
 
 Mumford v. Commercial Ins. Co. 5 
 
 Johns. 262 334 
 
 Munball v. Pennsylvania R. Co. 92 
 
 Pa. 150. 710 
 
 Munn V. Baker, 2 Stark. 255 127 
 
 V. Commission Co. 15 Johns. 
 
 44, 8 Am. Dec. 219 .108, 394 
 V. Illinois, 94 U. S. 113, 24 
 
 L. ed. 77 
 
 497, 499, 500, 746, 755, 758 
 Murphy v. Dunham, 38 Fed. Rep. 
 
 503 359 
 
 ®. Staton^ 3 'MunfV239" 1 '. '. Il027 
 V. Wabash R. Co. 3 Inters. 
 
 Com. Rep. 725 594 
 
 Murray v. Glasgow & S. W. R. Co. 
 
 4 Ry. & Canal Traffic 
 
 Cas. 456 613 
 
 V. Vanderbilt, 39 Barb. 140 
 
 443, 691 
 
 V. Warner, 55 N. H. 546, 20 
 
 Am. Rep. 227 906 
 
 Muschamp v. Lancaster & P. J. R. 
 
 Co.8Mees. & W. 421.. 
 
 .364, 399 
 
 Muser v. American Exp. Co. 1 Fed. 
 
 Rep. 382 197, 202 
 
 v. Holland, 17 Blatchf. 412. 
 
 45, 50, 202 
 
 Musurius, The, 1 C. Rob. Adm. 80 359 
 Mutton V. Midland R. Co. 4 Hurlst. 
 
 &N. 515 364 
 
 Myers v. Bay more, 10 Pa. 114, 49 
 
 Am. Dec. 586 866 
 
 V. PennsylvaniaCo. 2 Inters. 
 
 Com. Rep. 403 551, 597 
 
 Myaard v. Syrf>^cuse, B. & N. Y. R. 
 
 Co. 71 N. Y. 180, 27 
 
 Am. Rep. 28 146, 147 
 
 Myrick v. Michigan Cent. R. Co. 
 
 107 U. S. 103, 27 L. ed. 
 
 325 53 
 
 Mytton V. Midland R. Co. 28 L. J. 
 
 Exch. 385 399 
 
 N. 
 
 Nacoochee, The, 24 Blatchf. 99, 28 
 
 Fed. Rep. 462 163, 350 
 
 Napier v. Glasgow & S. W. R. Co. 
 
 1 Nev. & McN. 292 667 
 
 Narcissus, The, 4 C. Rob. Adm. 
 
 17. 359 
 
 Narragansett, The, Olcott, 246.358, 360
 
 Ivi 
 
 TABLE OF CASES. 
 
 Nashua Lock Co. v. Worcester & 
 N. R. Co. 48 N. H. 339. 
 
 2 Am. Rep. 242.. 
 
 396, 399, 412, 413 
 
 Nashville & C. R. Co. v. David, 
 
 6 Heisk. 261, 19 Am. 
 Rep. 594.. 161, 175, 327, 389 
 
 T. Jackson, 6 Heisk. 271... 
 
 ..43, 147, 161 
 
 «. King. 6 Heisk. 269 161 
 
 Nashville, C. & St. L. R. Co. v. 
 Alabama, 128 U. S. 96, 
 32 L. ed. 352, 2 Inters. 
 Com. Rep. 228, aff'g 83 
 
 Ala. 71 484, 522 
 
 V. Heggie, 86 Ga. 210 244 
 
 Nathaniel Hooper, The, 3 Sumn. 
 
 542. 853 
 
 National Bank of Chester v. At- 
 lanta & C. A. L. R. Co. 
 
 25S. C. 216 78 
 
 of Commerce B. Chicago, B. & 
 N. R. Co. 9 L. R. A. 
 
 263, 44 Minn. 224 
 
 143, 145, 926 
 
 National Mercantile Bank v. Ry 
 
 mill, 44 L. T. N. S. 767 910 
 
 National Steam Nav. Co. v. Dyer, 
 (" The Scotland") 105 
 U. S. 24, 26 L. ed. 100 
 -...34. 58, 59, 61, 357, 1041 
 
 Nebeker v. Cutsinger, 48 Ind. 436 101 
 
 Neil Cochran, The, 1 Brown, 
 
 Adm. 162. 1047 
 
 Neilsen v. Jesup, 30 Fed. Rep. 138 
 
 133, 218, 968 
 
 Nelson ®. Hudson River R. Co. 48 
 
 N. Y. 498 49, 80, 136 
 
 ■«. Iverson, 17 Ala. 216 910 
 
 V. Odiorne, 45 N. Y. 489... 339 
 V. Woodrulf, 66 U. S. 1 
 Black. 156, 17 L. ed. 97 
 -.-...95, 168, .919 
 
 Nemesis, The, Edw. Adm. 50 359 
 
 Nettles «. South Carolina R. Co. 
 
 7 Rich. L. 190, 62 Am. 
 Dec. 409 147 
 
 New Albany & S. R. Co. v. Camp- 
 bell, 12 Ind. 55 905 
 
 Newborn v. Just, 2 Car. & P. 76. 197 
 
 New Brunswick, S. B. & C. 
 Transp. Co. v. Tiers, 24 
 N. J. L. 697, 64 Am. 
 Dec. 394. ...11, 35, 174, 179 
 
 Newburger v. Howard & Co's Ex- 
 press, 6 Phila. 174..-. 203 
 
 Newby v. Chicago, R. I. & P. R. 
 
 Co. 19 Mo. App. 391.. 3351 
 
 Newell V. Norton, 70 U. S. 3 Wall 
 
 257, 18 L. ed. 271 
 
 360, 362. 1007 
 
 New England Exp. Co. v. Maine 
 Cent. R. Co. 57 Me. 188, 
 2 Am. Rep. 31.... 571, 739. 
 744, 746, 760, 763, 769, 885 
 
 New England Ins. Co. v. Sarah 
 Ann, The. 38 U. S. 13 
 Pet. 387, 10 L. ed. 213 
 .'310. 866, 867 
 
 New England M. Ins. Co. v. Dun- 
 ham, 78 U. S. 11 Wall. 
 1, 20 L. ed. 90 1047 
 
 New England Mut. L. Ins. Co. v. 
 Woodworth, 111 U. S. 
 138, 28 L. ed. 379 1043 
 
 Newes v. Scott, 54 U. S. 13 How. 
 
 268, 14 L. ed. 140 895 
 
 Newhall «. Central Pac. R. Co. 51 
 Cal. 350, 21 Am. Rep. 
 713 109 
 
 New Jersey, The, Olcoti, 444 
 
 156, 178, 358 
 
 New Jersey Steam Nav. Co. v. 
 Merchants Bank of Bos- 
 ton, 47 U. S. 6 How. 
 
 425, 12 L. ed. 465 
 
 7, 12, 14, 42, 80, 
 
 125, 175. 180. 182, 197, 
 198, 746, 944, 1007, 1047 
 
 New Orleans, The, 26 Fed. Rep. 
 
 44 .-..303, 304 
 
 New Orleans Cotton Exch. v. Cin- 
 cinnati, N. O. & T. P. 
 R. Co. 2 Inters. Com, 
 
 Rep. 289 
 
 528, 572, 575, 590, 600, 794 
 v. Illinois Cent. R. Co. 2 
 Inters. Com. Rep. 777 
 
 552, 658, 662. 663, 684 
 
 V. Louisville, N. O. & T. R. 
 Co. 3 Inters. Com. Rep. 
 523 880, 882 
 
 New Orleans Gaslight Co. v. Lou- 
 isiana Light & H. P. & 
 Mfg. Co. 115 U. S. 650, 
 29 L. ed. 516 489, 850 
 
 New Orleans Mut. Ins. Co. v. New 
 Orleans, J. & G. N. R. 
 Co. 20 La. Ann. 302.43, 180 
 
 New Orleans, St. L. & C. R. Co. 
 
 V. Faler, 58 Miss. 911-. 186 
 
 Newport, The, Swab. Adm. 
 
 335 873 
 
 Newson v. Thornton, 6 East, 
 
 41 109^ 
 
 Newstadt v. Adams, 5 Duer, 43 .. 203
 
 TABLE OF CASES. 
 
 Ivii 
 
 New World, The, v. King, 57 U. 
 S. 16 How. 469, 14 L. 
 ed. 1019. 11, 124 
 
 New York v. Hamilton Ins. Co. 
 39 N. Y. 46, 100 Am. 
 Dec. 400 220 
 
 T. Miln, 36 U. S. 11 Pet. 155, 
 
 9L. ed.669 .-.486, 496 
 
 V. Pentz, 24 Wend. 668... .1020 
 New York & N. R. Co. v. New 
 York & N. E. R. Co. 3 
 Inters. Com. Rep. 542 
 
 417, 422, 423, 713 
 
 New York &W. SS. Co. v. Mount 
 ("The Benefactor") 103 
 U. S. 247, 26 L. ed. 466 
 58, 62, 63, 1041, 1043 
 
 New York Board of Trade & 
 Transportation v. Penn- 
 sylvania R. Co. 3 Inters. 
 Com. Rep. 417. ...527, 
 549, 552, 575, 680, 778, 879 
 
 New York Cent. & H. R. R. Co. 
 V. Fraloff, 100 U. S. 24, 
 
 25 L. ed. 531 50, 202 
 
 «. Standard Oil Co. 87 N. 
 
 Y. 486 856 
 
 New York Cent. R. Co. v. Lock- 
 wood, 84 U. S. 17 Wall. 
 
 357, 21 L. ed. 627 
 
 2, 43, 45, 50, 
 
 53. 72, 94. 146, 179, 181. 
 294, 198, 278, 412, 895, 952 
 
 New York, L. E. & W. R. Co. v. 
 Atlantic Ref. Co. 129 
 N. Y. 597, 49 Am. & 
 
 Eng. R. Cas. 131 969 
 
 T. National SS. Co. 37 N. 
 
 Y. S. R. 731.. 847 
 
 New York L. Ins. Co. v. Roulet, 
 
 24 Wend. 513 1020, 1021 
 
 New York Produce E.xch. v. New 
 York Cent. & H. R. R. 
 Co. 2 Inters. Com. Reo. 
 553 649, 680, 880, 883 
 
 New York, T. & M. R. Co. v. Gal- 
 
 laher, 79 Tex. 685.-766, 777 
 
 Niagara, The, v. Cordes. 62 U. S. 
 21 How. 7, 16 L. ed. 41 
 
 .12, 14, 25, 103, 
 
 149, 159, 187, 260, 301, 
 329-336. 361, 887, 941, 1040 
 
 Nicholas v. New York Cent. & H. 
 R. R. Co. 89 N. Y. 370, 
 55, 56, 146, 147, 965 
 
 Nicholls V. Webb, 21 U. S. 8 
 Wheat. 320, 5 L. ed. 
 628 - 954 
 
 Nichols V. Clent, 3 Price, 547 1004 
 
 V. DeWolf. 1 R. I. 277 .... 14 
 Nicholson v. Great Western R. 
 Co. 1 Nev. &McN. 121, 
 
 5C. B.N. S. 306 
 
 575,576.593. 
 
 714. 735, 736, 748, 753, 
 758, 759, 764, 771, 772, 785 
 
 «. Willan, 5 East, 507 
 
 37,41, 202, 314 
 
 Nickey v. St. Louis, I. M. & S. R. 
 
 Co. 35 Mo. App. 79... 909 
 NicoU V. East Tennessee, V. & G. 
 
 R. Co. 89 Ga. 260 292 
 
 Nifa, The [1892] Prob. 411 870 
 
 Nine Thousand Six Hundred & 
 Eighty-One Dry Ox 
 
 Hides, 6 Ben. 200 846 
 
 Nith, The. 36 Fed. Rep. 86. 85 
 
 Nitshill etc. Coal Co. v. Caledonia 
 R. Co. 2 Nev. & ]McN. 
 39. ...559, 594. 735,775,785 
 Noble V. Kennoway, 2 Dougl. 
 
 513 119 
 
 Noe®. Christie, 51 N. Y. 270 1008 
 
 Nora Costello, The, 46 Fed. Rep. 
 
 869 - 356 
 
 Norfolk & W. R. Co. v. Pendleton, 
 
 86 Va. 1004 519 
 
 v. Pennsylvania, 136 U. S. 
 114, 34 L. ed. 394, 3 
 Inters. Com. Rep. 178. 530 
 V. Suffolk, 89 W. Va. 703.. 258 
 v. Sutherland, 89 Va. 703.. 255 
 Norfolk Southern R. Co. v. 
 Barnes, 5 L. R. A. 611, 
 
 104 N. C. 25 116, 913 
 
 Norman v. Binnington, L. R. 25 
 
 Q. B. Div. 475.127, 156, 333 
 Norris v. Savannah, F. & W. R. 
 
 Co. 23Fla. 182 
 
 161,326, 327, 341 
 
 North V. Merchants & M. Transp. 
 
 Co. 146 Mass. 315.-392. 394 
 Northampton, The, 1 Spinks, 
 
 152 349 
 
 North British & M. Ins. Co. v. 
 London, L. & G. Ins. 
 Co. L. R. 5 Ch. Div. 
 
 569 1009, 1011 
 
 Northern Belle, The, v. Robson, 
 76 U. S. 9 Wall. 526, 19 
 L. ed. 748.... 22, 23, 26, 167 
 Northern Packet Co. v. Shearer, 
 
 61 111. 263 1007 
 
 North German Lloyd v. Henle, 10 
 L. R. A. 814. 44 Fed. 
 Rep. 100 218, 878
 
 Iviii 
 
 TABLE OF CASES. 
 
 North Pennsylvania R. Co. v. Com- 
 mercial Nat. Bank of 
 Chicago, 123 U. S. 727, 
 
 31 L. ed. 287 
 
 111, 227, 273, 407, 
 
 887, 897, 898, 904, 907, 910 
 
 Norwalk Bank v. Adams Exp. Co. 
 
 4 Blatchf. 455 915 
 
 Norway Plains Co. i}. Boston &M. 
 R. Co. 1 Gray, 263, 61 
 Am. Dec. 423 336, 891 
 
 Northwestern Ins. Co. v. Phoenix 
 Oil& Candle Co. 31 Pa. 
 448 220, 222 
 
 Northwestern Iowa Grain & S. S. 
 Asso. V. Chicago & N. 
 W. R. Co. 2 Inters. 
 
 Com. Rep. 431 
 
 590, 597, 637, 650 
 
 Northwestern U. Packet Co. ■». St. 
 Louis, 100 U. S. 423, 
 25 L. ed. 688- -496, 511, 597 
 
 Norwich & N. Y. Transp. Co. v. 
 Wright, 80 U. S. 18 
 Wall. 104. 20 L. ed. 585 
 60, 61, 1040, 1041 
 
 Notara v. Henderson, L. R. 6 Q. 
 B. 346, L. R. 7 Q. B. 
 225 337, 866 
 
 Nounnan v. Sutter County Land 
 
 Co. (Cal.)6L. R. A.219 101 
 
 Nudd«. Wells, 11 Wis. 408.. 821, 939 
 
 Nugent V. Smith, L. R. 1 C. P. 
 Div. 428, 45 L. J. C. P. 
 607. ---15, 74, 175 
 
 Nutting V. Connecticut River R. 
 
 Co. 1 Gray, 502 388 
 
 Oakley v. Port of Portsmouth & 
 R. U. S. Packet Co. 84 
 Eng. L. &Eq. 530 159 
 
 Gates V. First Nat. Bank of Mont- 
 gomery, 100 U. S. 239, 
 25 L. ed. 580- 895 
 
 Catting 15. Grand Trunk R. Co. 13 
 
 Allen, 381.- 343 
 
 Ober«. Smith, 78 N. C. 313 913 
 
 O'Brien v. Gilchrist, 34 Me. 554, 
 
 56 Am. Dec. 676 93 
 
 Ocean Queen, The, 5 Blatchf. 
 
 494 ..-357, 363 
 
 O'Conuell v. Reg. 11 Clark & F. 
 
 155 438 
 
 Oderkirk v. Farc;o, 58 Hun, 347-. 7 
 V. Fargo, 61 Hun, 418 10 
 
 Odiorne v. New England Mut. M. 
 
 Ins. Co. 101 Mass. 551, 
 
 3 Am. Rep. 401 122 
 
 O'Dougherty v. Boston & W. R. 
 
 Co. 1 Thomp. & C. 477. Ill 
 Oelricks v. Ford, 64 U. S. 23 How. 
 
 63, 16 L. ed. 538 302 
 
 Ogden V. Parsons, 64 U. S. 23 How. 
 
 167, 16 L.ed. 410 75 
 
 «. Saunders, 25 U. S. 12 
 
 Wheat. 213, 6 L. ed. 
 
 606 _ -- 482 
 
 Ogdensburg & L. C. R. Co. v. 
 
 Pratt, 89 U. S. 22 Wall. 
 
 123,21L.ed.827.-17, 18, 72, 
 
 198, 231, 232, 394, 406, 412 
 Ogle v. Atkinson, 1 Marsh. 323, 
 
 5 Taunt. 759- 1004 
 
 O'Hanlan v. Great Western R. Co. 
 
 34 L. J. Q. B. 154, 13 
 
 Week. Rep. 741 279 
 
 Ohio & M. R. Co. V. Brown, 46 
 
 111. App. 137 297 
 
 V. Dunbar. 20 111. 623, 71 
 
 Am. Dec 291 5 
 
 V. Emrich, 24111. App. 245.. 392 
 V. Hamlin, 42 111. App. 441. 128 
 V. McCarthy, 96 U. S. 258, 
 
 24 L. ed. 693 394, 406 
 
 V. Savage, 38 111. App. 
 
 148 852 
 
 V. Selby. 47 Ind. 471, 17 
 
 Am. Dec. 719 43, 1012 
 
 V. Yoke, 51 Ind. 181, 19 
 
 Am. Rep. 727 928 
 
 Ohrloff V. Briscall, L. R. 1 P. C. 
 
 231 188 
 
 Olbers, The, 3 Ben. 150 95 
 
 Olcottw. Bantill, 4 N. H. 537.... 746 
 V. Fond du Lac County 
 
 Suprs. 83 U. S. 16 Wall. 
 
 678, 21 L.ed. 382 896 
 
 Old Colony R. Co. v. Tripp, 147 
 
 Mass 35 33 
 
 V. Wilder, 187 Mass.' 536.] 1 906 
 Oliver ®. Maryland Ins. Co. 11 U. 
 
 S. 7 Cranch, 487, 8 L. 
 
 ed. 414 946 
 
 Omslaer v. Philadelphia Co. 31 
 
 Fed. Rep. 354 163 
 
 Oneida Bank v. Ontario Bank, 21 
 
 N. Y. 490 703 
 
 O'Neill V. New York Cent. & H. 
 
 R.R. Co. 60N.Y. 138.- 
 
 ---.77, 83 
 
 One Thousand Bags of Sugar v. 
 
 Harrison, 53 Fed. Rep. 
 
 828 854
 
 TABLE OF CASKS. 
 
 lix 
 
 Ontario Bant v. Hanlon, 23 Hun, 
 
 283 102 
 
 V. New Jersey S. B. Co. 59 
 
 X. Y. 510,.. 90 
 
 Ontario Salt Co. v. ]\Ierchant8 
 
 Salt Co. 18 Grant Ch. 
 
 540 - 464 
 
 ODOenheimer v. Russell, 3 Bos. & 
 
 P. 42 926 
 
 X. United States Exp. Co. 69 
 
 111. 02, 18 Am. Rep. 
 
 596.... 45, 50. 200, 213, 222 
 Orange County Bank v. Brown, 
 
 3 Wend. 158 --1006 
 
 V. Brown, 9 Wend. 85, 24 
 
 Am. Dec. 129... 34, 35, 212 
 Order as to Publication of Joint 
 
 Tariffs, 1 Inters. Com. 
 
 Rep. 598. 881 
 
 O'Regan v. Cunard SS. Co. 160 
 
 Mass. 356 307 
 
 Oregon v. Jenuiniis, 119 U. S. 74, 
 
 30 L. ed. 323 100 
 
 Oregon Short Line & U. N. R. Co. 
 
 V. Northern Pac. R. Co. 
 
 4 Inters. Com. Rep. 
 249, 51 Fed. Rep. 465, 
 51 Am. & Eng. R. Cas. 
 145. -- .-427, 429. 864 
 
 <D. Northern Pac. R. Co. 61 
 
 Fed. Rep. 158.. 427, 429, 714 
 V. Northern Pac. R. Co. 3 
 
 Inters. Com. Rep. 205.. 
 
 ...428, 712 
 
 Oregon Steam Nav. Co. w-Winsor, 
 
 87 U. S. 20 Wall. 61, 22 
 
 L. ed. 315. --464, 467 
 
 Oriental SS. Co. ■». Taylor [1893] 
 
 2 Q. B. 518 856 
 
 Orient Mut. Ins. Co. v. Adams, 
 
 123 U. S. 67, 31 L. ed. 
 
 63 1009 
 
 Oriflamme, The, 1 Sawy. 176.... 95 
 Orizaba, The, 57 Fed. Rep. 
 
 247 350 
 
 Orndorff v. Adams Exp. Co. 3 
 
 Bush, 194, 96 Am. Dec. 
 
 207 .208, 219 
 
 O'Rourke «. Chicago, B. & Q. R. 
 
 Co. 44 Iowa, 526 914 
 
 Ortt V. Minneapolis & St. L, R. 
 
 Co. 36 Minn. 396.. 279, 394 
 Osborn v. Bank of United States, 
 
 22 U. S. 9 Wheat. 738, 
 
 6L. ed. 204..488, 1074, 1087 
 Osborne v. Chicai^o & N. W. R, 
 
 Co. 48 Fed. Rep. 49... 
 
 632,650, 719, 781 
 
 Oscanyan v. W Inchester Repeating 
 Arcis Co. 103 U. S. 276, 
 26 L. ed. 545 73, 896 
 
 Osceola, The, 33 Fed. Rep. 719... 162 
 
 Osgood V. Groning, 2 Campb. 
 
 471 873 
 
 Osterhout v. Shoemaker, 3 Hill, 
 
 513 100 
 
 Ostrander v. Brown, 15 Johns. 39, 
 
 8 Am. Dec. 211 
 
 892, 893, 938, 940, 964, 965 
 
 Otis Co. t. Missouri Pac. R. Co. 
 
 112 Mo. 622 182, 186 
 
 Ottawa, The. 1 Brown, Adm. 356.. 1047 
 
 Ottinger v. Southern Pac. R. Co. 
 lInters.Com.Rep.607-- 
 532, 533 
 
 Ouachita & M. R. Packet Co. v. 
 Aiken, 121 U. S. 444, 
 30 L. ed. 976, 1 Inters. 
 
 Com. Rep. 379 
 
 496, 508,512, 514 
 
 Overland Mail & Exp. Co. v. Car- 
 roll, 7 Colo. 43 8 
 
 Owen®. Davis, 1 Bail. L. 315 703 
 
 V. Louisville & N. R. Co. 87 
 Ky. 026- -.224, 237.277, 278 
 
 Oxlade v. Northeastern R. Co. 1 
 C. B. N. S. 454. 26 L. 
 J. C. P 129, 1 Nev. & 
 
 McN.72 
 
 749. 759, 764, 784, 785 
 
 •0. Northeastern R. Co. 9 
 
 Week. Rep. 272 85 
 
 P. 
 
 Pacific, The, Deady, 17.. .24, 125, 147 
 Pacific Coast SS. Co. i). Railroad 
 
 Corars. 9 Sawy. 253... 528 
 Pacific Exp. Co. v. Darnell, 62 
 
 Tex. 639 7, 224 
 
 V. Foley, 12 L. R. A. 799, 
 
 46 Kan. 457- 49, 201 
 
 Pacific Mail SS. Co. v. Joiiffe, 69 
 
 U. S. 2 Wall. 450, 17 L. 
 
 ed. 805--- 496 
 
 Pacific R. Commission, Re, 32 
 
 Fed. Rep. 241 1078 
 
 Packard v. Getman, 6 Cow. 757, 16 
 
 Am. Dec. 475-.. 80, 82,226 
 •5. Taylor, 35 Ark. 402, 37 
 
 Am. Rep. 37 399 
 
 Pase v. Cowasjee Eduljee, L. R. 
 
 1 P. C.127 867 
 
 Paine v. Pennsylvania R. Co. 7 
 
 Kulp, 187 765
 
 Ix 
 
 TABLE OF CASES. 
 
 Painter v. London, B. & S. C. R. 
 
 Co. 2C. B. N. S. 702 _. 611 
 Palm V. New York, N. H. & H. 
 
 R. Co. 43 K Y. S. R. 
 
 219 603 
 
 Palmer v. Atchison, T. & S. F. R. 
 
 Co. 101 Cal. 187 390 
 
 V. Chicago, B. & Q. R. Co. 
 
 56 Conn. 137. .313, 391, 393 
 V. Great Western Ins. Co. 
 
 116 N.Y. 599 1033 
 
 V. Holland, 51 N. Y. 416, 10 
 
 Am. Rep. 616.... 32 
 
 V. Lorillard, 16 Johns. 348. 330 
 ». Pennsylvania Co. 2 L. R. 
 
 A. 353, 111 N. Y. 488 163 
 
 Palmer, L. & S. W. R. Co. Be, 1 
 
 Nev. & McK 371, L. R. 
 
 6 C. P. 194.. 426 
 
 Pankey v. Richmond & D. R. Co. 
 
 3 Inters. Com. Rep. 
 
 33 ... 393 
 
 Paradine v. Jane, Aleyn, 26 339 
 
 Paragon, The, Ware, 333 ....304, 868 
 Paramore «. Western R. Co. 53 Ga. 
 
 385 18 
 
 Parcher v. Cuddy (" The Mamie") 
 
 105 U. S. 773, 36 L. ed. 
 
 937 1043 
 
 Pardington v. South Wales R. Co. 
 
 1 Hurlst. & N. 396.354, 755 
 Park V. Preston, 108 N. Y. 434... 133 
 Parker v. Flacg, 36 Me. 181, 45 
 
 AmTDec. 101 178 
 
 V. Milwaukee & St. P. R. 
 
 Co. 30 Wis, 689 893 
 
 V. Overman, 59 U. S. 18 
 
 How. 137, 15 L. ed. 318.1044 
 Parkersburg & O. R. Traasp. Co. 
 
 V. Parkersburg, 107 U. 
 
 U. 691, 37 L. ed. 584.. 
 
 510-513, 517 
 
 Parkinson v. Great Western R. Co. 
 
 L. L. 6C. P. 554 435 
 
 Parlin v. Small, 68 Mo. 290 101 
 
 Parrott v. Barney, 3 Abb. (U. S.) 
 
 197, 1 Sawy. 433, 1 
 
 Deady, 405 309 
 
 c. Knickerbocker Ice Co. 46 
 
 N. Y. 361 357 
 
 V. Wells, 83 U. S. 15 Wall. 
 
 534. 21 L. ed. 306 ..16, 
 
 85, 86, 309 
 
 Parsons v. Hardy, 14 Wend. 215, 
 
 28 Am. Dec. 521. .161, 
 
 320, 321, 322, 338, 331, 939 
 V. Monteath. 13 Barb. 353.. 
 
 ....41,45, 220 
 
 Passaic Bridges, The, 3 Wall. 
 
 appx. 782. _ 491 
 
 Passenger Tariffs, Be, 2 Inters. 
 
 Com. Rep. 445 879 
 
 Passenger Tariffs and Rate Wars, 
 
 Be, 2 Inters. Com. Rep. 
 
 340 592 
 
 Patapsco Ins. Co. v. Coulter, 28 
 
 U. S. 3 Pet. 222, 7 L. 
 
 ed. 659 182 
 
 Patee v. Adams, 37 Kan. 133 238 
 
 Paterson v. Dakin, 31 Fed. Rep. 
 
 682 103 
 
 Patrick v. Farmers Ins. Co. 43 N. 
 
 H. 631, 80 Am. Dec. 
 
 197 220 
 
 Patten v. Thompson, 5 Maule & S. 
 
 356 1005 
 
 V. Union Pac. R. Co. 39 
 
 Fed. Rep. 590 313 
 
 319, 387, 393, 863 
 
 Patterson v. Clyde, 67 Pa. 500 
 
 188, 1038, 1030 
 
 V. Kansas City, Ft. S. & M. 
 
 R. Co. 47 Mo. App. 
 
 570 400 
 
 V. Kentucky, 97 U. S. 501, 
 
 34L. ed. 1115 495 
 
 V. Perry, 5 Bosw. 518, 10 
 
 Abb. Pr. 83 ....1006 
 
 Pattison v. Culton, 33 Ind. 340, 5 
 
 Am. Rep. 199 109 
 
 Paturzo V. Compagnie Francaise, 
 
 31 Fed. Rep. 619 308 
 
 Pavitt V. Lehigh Valley R. Co. 
 
 153 Pa. 303 149, 221 
 
 P. Caland, The [1892] Prob. 191.. 353 
 Pearce i). Madison & I. R. Co. 62 
 
 U. S. 21 How. 441, 16 
 
 L. ed. 184 413 
 
 V. Thomas Newton, The, 41 
 
 Fed. Rep. 106 161, 
 
 173, 327, 337 
 
 Pearse v. Quebec SS. Co. 24 Fed. 
 
 Rep. 285 2ia 
 
 Pease v. Gloahec, L. R. 1 C. P. 
 
 219 109 
 
 Peck «. Smith, 1 Conn. 105. 6 Am. 
 
 Dec. 216 76 
 
 T. Weeks, 34 Conn. 145 
 
 .... 146, 327, 337, 389, 1028 
 Peek V. North Staffordshire R. 
 
 Co. 10 H. L. Cas. 473.. 
 
 41, 42, 44, 46, 47, 146 
 
 Peerless, The, 48 Fed. Rep. 844.. 354 
 Peet 1). Chicago & N. W. R. Co. 
 
 20 Wis. 594, 91 Am. 
 
 Dec. 416.. 75, 325, 326, 1086
 
 TABLE OF CASES. 
 
 bd 
 
 Peik V. Chicaco & N. W. R. Co. 
 94 "^U. S. 164, 24 L. ed. 
 
 97 - 499 
 
 Pemberton Co. v. New York 
 Cent. R. Co. 104 Mass. 
 
 144 - 98 
 
 Pembina Consol. S. Min. &M. Co. 
 
 V. Pennsj'lvania, 125 U. 
 
 S. 181, 31 L. ed. 650. 3 
 
 Inters. Com. Rep. 24.. 482 
 
 Pence v. St. Paul, M. & M. R. Co. 
 
 28 Minn. 488 433 
 
 Pendergasl «. Adams Exp. Co. 101 
 
 Mass. 120 -- 95 
 
 V. Kalorama The (" The 
 Kalorama") 77 U. S. 
 10 Wall. 204, 19 L. ed. 
 
 941 - -- 874 
 
 Peninsular & O. Steam Nav. Co. 
 V. Shand, 3 Moore, P. 
 
 C. N. S 272 35, 66 
 
 V. Shand, 11 Jur. N. S. 771. 893 
 Penn v. Buffalo & E. R. Co. 49 N. 
 Y. 204, 10 Am. Rep. 
 
 355 -.242, 253, 254 
 
 Pennewill v. CuUen, 5 Harr. (Del.) 
 
 238 - 3 
 
 Pennsylvania v. Miller. 87 Pa. 395 189 
 V. Wheelina; & B. Bridge 
 Co. 59^^11. S. 18 How. 
 421, 15 L. ed. 435._490, 497 
 Pennsylvania Co. v. Clark, 2 Ind. 
 App. 153, aff'g on re- 
 hearing, 2 Ind. App. 
 
 146. - 262 
 
 e. Fairchild, 69 111. 260.... 893 
 V. Louisville, N. A. & C. R. 
 
 2 Inters. Com. Rep. 603 600 
 Pennsylvania, D. & M. S. Nav. 
 Co. V. Danbridge, 8 
 Gill. & J. 248, 29 Am. 
 
 Dec. 543 4 
 
 Pennsylvania R. Co. v. Berry, 68 
 
 Pa. 272 366 
 
 V. Cora. (Pa.) 4 Cent. Rep. 
 
 495 ...442, 443, 691 
 
 V. Fries, 87 Pa. 234 179 
 
 V. Henderson, 51 Pa. 315.. 43 
 V. McCloskey, 23 Pa. 526.. 
 
 .42, 131, 185 
 
 «. Raiordan, 119 Pa. 577.. 
 
 41, 45, 51. 270, 271 
 
 «. St. Louis. A. & T. H. R. 
 Co. 118 U, S. 290, 30 L. 
 
 ed. 83. 443 
 
 V. Stern, 119 Pa. 24 111, 
 
 113, 393, 907, 910 
 
 Tenoyer v. Hallett, 15 Johns. 332. 846 
 
 Pensacola & A. R. Co. v. State, 2 
 
 Inters. Com. Rep. 522, 
 
 3 L. R. A. 661, 25 Fla. 
 
 310 538, 688 
 
 Pensacola Teleg. Co. v. Western 
 
 U. Teleg. Co. 96 U. S. 
 
 1, 24 L. ed. 708 487 
 
 People V. Albany, 11 Wend. 539, 
 
 27 Am. Dec. 95 1089 
 
 V. Boston & A. R. Co. 70 N. 
 
 Y. 569 439 
 
 V. Boston, H. T. & W. R. 
 
 Co. 12 Abb. N. C. 230. 434 
 V. Central Pac. R. Co. 43 
 
 Cal. 404 486 
 
 V. Chicago & A. R. Co. 155 
 
 111. 95, 8 Am. Rep. 631 
 
 32 762 
 «. Chicago & A. R. Co. 130 
 
 111. 175. 77 
 
 V. Fisher, 14 Wend. 10, 28 
 
 Am. Dec. 501.437. 461, 462 
 v. New York, L. E. & W. 
 
 R. Co. 22 Hun, 533.... 76 
 V. New York. L. E. & W. 
 
 R. Co. 104 N. Y. 58, 58 
 
 Am. Rep. 484 541 
 
 «. North River Sugar Ref. 
 
 Co. 2 L. R. A. 33. 54 
 
 Hun, 355, 7iote, aff'd 9 
 
 L. R. A. 33, 121 N. Y. 
 
 582 461, 691 
 
 V. Rome, W. & O. R. Co. 
 
 103 N. Y. 95 541 
 
 V. Sheldon, 22 L. R. A. 221, 
 
 139 N. Y. 251. 434 
 
 V. Utica Cement Co. 22 111. 
 
 App. 159 161 
 
 Peoria & P. U. R. Co. ». United 
 
 States Rolling Stock Co. 
 
 136 111. 043, rev'g 36 
 
 111. App. 552 388, 429 
 
 Peoria, M. & F. Ins. Co. v. Hall, 
 
 12 Mich. 210 223 
 
 v. Whitehill, 25 111. 466.... 220 
 Percival v. Hickey, 18 Johns. 289, 
 
 9 Am. Dec. 210 178 
 
 Perkins v. Hill, 2 Woodb. & M. 
 
 158, 1 Sprague, 123.103, 846 
 
 V. Lyman, 9 Mass. 522 464 
 
 «. Nichols, 11 Allen. 542... 472 
 V. Portland, S. & P. R. Co. 
 
 47 Me. 578, 74 Am. Dec. 
 
 507 365 
 
 Perry v. Florida Cent. & P. R. Co. 
 
 3 Inters. Com. Rep. 740 
 
 591, 686 
 
 V. Thompson, 98 Mass. 249. 95
 
 Ixii 
 
 TABLE OF CASES. 
 
 Ppilh, The, 3 Hagg. Adm. 414... 349 
 Peter der Grosse.The, L. R. 1 Prob. 
 
 Div. 414 105 
 
 Peterson v. Case, 21 Fed. Rep. 885 389 
 V. Chicago, R. I. & P. R. 
 Co. 80 Iowa, 92, 8 Ry. 
 
 &Corp. L. J. 95 413 
 
 V. Walson, Blatchf. & H. 
 
 487.. 1045 
 
 Petitioners of Louisville & N. R. 
 Co., He, 1 Inters. Com. 
 
 Rep. 278 617 
 
 Petrel, The, [1893] L. R. 3 Prob. 
 
 Div. 320. -1043 
 
 Peytona, The, 2 Curt. 23 303, 966 
 
 Phelps «). Hill, 1 Q. B. 605 947 
 
 V. Illinois Cent. R. Co. 94 
 
 111. 548 75 
 
 V. Texas & P. R. Co. 4 
 Inters. Com. Rep. 363. 
 
 603, 859, 875, 879, 897 
 
 Phenix Ins. Co., Ex parte, 118 U. 
 
 S. 610, 30 L. ed. 274.. .1045 
 Philadelphia & R. R. Co. v. Barn- 
 ard, 3 Ben. 39 218, 846 
 
 «. Beck, 125 Pa. 620 315 
 
 V. Derby, 55 U. S. 14 How. 
 
 486, 14 L. ed. 509 .. . 124 
 «. Pennsylvania (" State Tax 
 on Railway Gross Re- 
 ceipts") 82 U, S. 15 
 Wall. 284, 31 L. ed. 
 
 164 483 
 
 «. Pennsylvania ("The State 
 Freight Tax") 82 U. S. 
 15 Wall. 232, 31 L. ed. 
 
 146 .- 482 
 
 ®. Wireman, 88 Pa. 264 889 
 
 Philadelphia & S. Mail SS. Co. v. 
 Pennsylvania, 122 U. S. 
 326, 30 L. ed. 1200, 1 
 Inters. Com. Rep. 308 
 
 485, 486, 513, 1070 
 
 Philadelphia Loan Co. v. Towner, 
 
 13 Conn. 249.. 703 
 
 Philadelphia. W. & B. R. Co. v. 
 Lehman, 56 Md. 209, 40 
 Am. Rep. 415.. 320, 321, 327 
 V. Philadelphia & H. de G. 
 Steam Tow Boat Co. 64 
 U. S. 23 How. 209, 16 
 
 L. ed. 433 1045 
 
 Philleo V. Sanford, 17 Tex. 227, 67 
 
 Am. Dec. 654 296 
 
 Phillips V. Bingham, 26 Ga. 617.. 317 
 
 V. Earle,'8 Pick. 183 212, 213 
 
 -y. Watson, 63 Iowa, 33 689 
 
 Phippen v. Stickney, 3 Met. 384.. 473 
 
 Phipps V. London, & N. W. R. 
 
 Co. [1893] 2 Q. B. 229. 
 
 614,735 
 
 Phoebe, The, Ware, 363 868 
 
 Phoenix Clay Pot Works v. Pitts- 
 burg & L. E. R. Co. 139 
 
 Pa. 284 .56, 149 
 
 Phoenix Ins. Co. v. Atlas, The, 93 
 
 U. S. 302, 23 L. ed. 863, 
 
 Rev'g 10 Blatchf. 459. 
 
 Reaft'd 4 Ben. 27.-357, 1023 
 Phoenix Ins. Co. v. Erie & W. 
 
 Transp. Co. 127 U. S. 
 
 312, 29 L. ed. 873 
 
 73 303 
 
 393,' 944, " 1013." 1013, 'l031 
 Pickering «. Barkley, Style, 132, 2 
 
 Rolle, Abr. 248.. ..164, 171 
 V. Weld, 159 Mass. 522.117, 323 
 
 Pickett®. Downer, 4 Vt. 31 892 
 
 Pickford v. Grand Junction R. Co. 
 
 8 Mees. & W. 372... 74, 847 
 V. Grand Junction R. Co. 10 
 
 Mees. & W.399 759 
 
 Pickman e. Woods, 6 Pick. 251.. 26 
 Piedmont Mfg. Co. v. Columbia & 
 
 G. R. Co. 19 S. C. 353 
 
 74, 129. 400 
 
 Pierce v. Columbia Ins. Co. 14 
 
 Allen, 320. 863 
 
 V. Milwaukee & St. P. R. 
 
 Co. 33 Wis. 387 856 
 
 «. New Hampshire, 46 U. S. 
 
 5 How. 504, 13 L. ed. 
 256- 937 
 
 V. Ocean Ins. Co. 18 Pick. 
 
 83 867 
 
 «. Win.'jor, 3 Sprague, 35, 3 
 
 Cliff. 18 86. 89, 309 
 
 Pike V. Balch, 38 Me. 303, 61 Am. 
 
 Dec. 248.- 867 
 
 Pilgrim, The, 57 Fed. Rep. 670.. 363 
 Pindell v. St. Louis & H. R. Co. 
 
 34 Mo. App. 675 119 
 
 V. St. Louis & H. R. Co. 41 
 
 Mo. App. 84 905 
 
 Pingree v. Detroit, L. & N. R. Co. 
 
 66 Mich. 143 
 
 14, 859, 928, 931 
 
 Pitkin V. Brainerd, 5 Conn. 451, 13 
 
 Am. Dec. 79.- 36 
 
 Pitlock V. Wells, Fargo & Ca 109 
 
 Mass. 453 4,74 
 
 Pittsburg & C. R. Co. v. Bedford 
 
 6 B. R. Co. 81 Pa. 104 440 
 Pittsburg & O. R. Transp. Co. v. 
 
 Parkersburg, 107 U. S. 
 691, 27L. ed. 584 496
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Pittsburg, C. & St. L. R. Co. v. 
 
 Barrett, 36 Ohio St. 453 118 
 V. Columbus. C. & I. C. R. 
 
 Co. 8 Biss. 456 433 
 
 V. Morton. 61 Ind. 539, 28 
 
 Am. Rep. 68-3. -..2, 74, 325 
 Pittsburg, C. C. & St. L. R. Co. v. 
 
 Bennett 9 lud. App. 93 296 
 V. Racer, 5 Ind. App. 209- . 
 
 263, 265 
 
 Pittsburg, Ft. W. & C. R. Co. v. 
 
 Hazen, 84 111. 36, 25 
 
 Am. Rep. 423 347 
 
 Place V. ]Srorwich'& N. Transp. 
 
 Co. (" City of Norwich, 
 
 The") 118 U.S. 468,80 
 
 L. ed. 134 60-62, 1043 
 
 ■D. Union Exp. Co. 2 Hilt. 
 
 19 7, 75, 224, 338, 345 
 
 Plaisted v. Boston & K. S. Nav. 
 
 Co. 27 Me. 132. 46 Am. 
 
 Dec. 587 156, 161, 179 
 
 Planters Bank of Tennessee v. 
 
 Union Bank of Louisi- 
 ana, 83 U. S. 16 Wall. 
 
 483, 21 L. ed. 473 703 
 
 Plasters. Burger, 5 Ind. 233 691 
 
 Piatt V. Hibbard, 7 Cow. 497 77 
 
 V. Richmond, Y. R. & C. 
 
 R. Co. 108 N. Y. 358.- 
 
 1013, 1023 
 
 Pollard V. Hngan, 44 U. S. 3 How. 
 
 213, 11 L. ed. 565.. 481, 508 
 V. Vinton, 105 U. S., 7. 26 L. 
 
 ed. 998.93, 107, 137, 138, 141 
 Polynesia, The, 30 Fed. Rep. 210.1033 
 Pope «. Nickerson, 3 Story, 465.- 
 
 866, 867 
 
 Portage County Mut. F. Ins. Co. 
 
 V. Stukey, 18 Ohio St. 
 
 455 220 
 
 V. West, 6 Ohio St. 599.... 220 
 Portland Bank v. Stubbs, 6 Mass. 
 
 423, 4 Am. Dec. 151.. 94, 96 
 Portsmouth, The, v. Onondaga 
 
 Salt Co. 76 U. S. 9 Wall. 
 
 683, 19L. ed. 754 
 
 25, 165, 171, 311 
 
 Portuense, The, 35 Fed. Rep. 670. 157 
 Post V. Jones, 60 U. S. 19 How. 
 
 150, 15 L. ed. 618.. 310, 866 
 Potomac, The. v. Cannon, 105 U. 
 
 S. 630, 26 L. ed. 1194.. 1021 
 Potter ». Lansing, 1 Johns. 215, 3 
 
 Am. Dec. 210.. ..1004 
 
 V. Majestic, The, 26 L. R. A. ' 
 
 74G, 60 Fed. Rep. 635.. 
 
 133, 167 
 
 Potter V. Suffolk Ins. Co. 2 Sumn. 
 
 197 164, 165, 171 
 
 Potter Mfg. Co. v. Chicago & G. 
 T. R. Co. 4 Inters. Com. 
 
 Rep. 223. 598, 775 
 
 Potts V. New York & N. E. R. Co. 
 131 Mass. 455, 41 Am. 
 
 Rep. 247 .- 860 
 
 V. Wabash, St. L. & P. R. 
 
 Co. 17 Mo. App. 394.. 16, 18 
 Poucher v. New York Cent. R. Co. 
 49 N. Y. 263, 10 Am. 
 
 Rep. 364 51, 146 
 
 Poughkeepsie Iron Co. v. New 
 York Cent. & H. R. R. 
 Co. 3 Inters. Com. Rep. 
 
 248 654,663. 721, 835 
 
 Pound V. Turck, 95 U. S. 459, 34 
 
 L. ed. 536 486, 496 
 
 Powell V. Buck. 4 Strobh. L. 437. 866 
 1). Mills, 30 Miss. 331, 64 Am. 
 
 Rep. 158 35 
 
 V. Myers, 26 Wend. 591.891, 915 
 V. Pennsylvania R. Co. 32 
 Pa. 414, 75 Am. Dec. 
 
 564. 43, 331, 396 
 
 D. Thompson, 80 Ala. 51.118, 964 
 Powers V. Harlow, 53 Mich. 507, 
 
 51 Am. Rep. 154 87 
 
 Powhatan S. B. Co. v. Appomat- 
 tox R. Co. 65 U. S. 24 
 How. 247, 16 L. ed. 682. 387 
 Pratt V. Grand Trunk R. Co. 55 
 Me. 462, 92 Am. Dec. 
 
 606. .- 82 
 
 V. Grand Trunk R. Co. 95 
 
 U. S. 43, 34 L. ed. 336. 391 
 V. Ogdensburg & L. C. R. 
 Co. 102 Mass. 557, 89 
 U. S. 22 Wall. 123, 22 
 
 L. ed. 847 16, 55, 231 
 
 ®. Parkman, 24 Pick. 42... 109 
 V. Short, 79 N. Y. 437, 35 
 
 Am. Rep. 531 703 
 
 Presser v. Illinois, 116 U. S. 253, 
 
 29 L. ed. 6.. 850 
 
 Price V. Denver & R. G. R. Co. 12 
 
 Colo. 402 318, 319 
 
 V. Hartshorn, 44 N. Y. 94, 4 
 
 Am. Rep. 645 54, 310 
 
 V. Kansas Pac. R. Co. 63 
 
 Mo. 314. -. 224 
 
 ®. Oswego & S. R. Co. 50 
 N. Y. 215, 10 Am. Rep. 
 
 475 915 
 
 V. Powell, 3 N. Y. 322 96 
 
 V. Torrington, 1 Salk. 285.. 954 
 ■o.Uriel,The,10 La. Ann. 413.1030
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Priestly V. Northern I. & C. R. Co. 
 
 26 111. 205 1037 
 
 Primula, The, [1894] Prob. 128. ... 855 
 Prince v. Boston & L R. Co. 101 
 
 Mass. 542, 100 Am. Dec. 
 
 129 904 
 
 Printing & N. Reg. Co. v. Samp- 
 son, L. R. 19Eq. 462.- 473 
 Pritt V. Pairclough, 3 Campb. 305. 954 
 Proctor V. Cincinnati, H. & D. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 131 559,597 
 
 Professor Morse. The, 23 Fed. 
 
 Rep. 803 .1047 
 
 Prouty V. Lake Shore & M. S. R. 
 
 Co. 6 Hun, 246, 64 N. 
 
 Y. 641. 440 
 
 Providence & N. Y. SS. Co. v. Hill 
 
 Mfg. Co. 109 U. S. 578, 
 
 27 L. ed. 1038. 
 
 ....59,178, 1040, 1042 
 
 Providence Coal Co. v. Providence 
 & W. R. Co. 1 Inters. 
 
 Com. Rep. 363 119, 
 
 576, 613, 730, 735, 753, 776 
 «. Providence & W. R. Co. 
 
 15 R. I. 303 .-- 520 
 
 Providence Ins. Co. v. Morse, 150 
 
 U. S.99, 37 L.ed. 1013-1021 
 
 Provident Inst, for Savings v. Mas- 
 sachusetts, 73 U. S. 6 
 Wall.611,18L. ed. 907- 495 
 
 Pruitt 1). Hannibal & St. J. R. Co. 
 
 62 Mo. 527... -176, 177, 401 
 
 Public Opinion, The, 2 Hagg. 
 
 Adm. 398 1045 
 
 Pullman Palace Car Co. v. Mis- 
 souri Pac. R. Co. 115 
 U. S. 587, 29 L. ed. 
 499 -. 668 
 
 Pyle V. East Tennessee, V. & G. R. 
 Co. 1 Inters. Com. Rep. 
 767 559 
 
 Q. 
 
 Queen of the Pacific, The, 61 Fed. 
 
 Rep. 213 870, 871 
 
 Queensmore, The, 53 Fed. Rep. 
 
 1022, aff'g 51 Fed, Rep. 
 
 250 854 
 
 Quimby v. Boston & M. R. Co. 5 
 
 L. R. A. 846, 150 Mass. 
 
 365 215 
 
 V. Vanderbilt,'i7 N.' Y." 306^ 
 
 72 Am. Dec. 469. -.395, 413 
 
 R. 
 
 Ragan v. Aiken, 9 Lea, 609, 42 
 Am. Rep. 684 519, 
 
 734, 736, 740, 746, 749, 876 
 Railroad Commission of Florida v. 
 
 Savannah, P. & W. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 688 601 
 
 Ralston v. State Rights, The, 
 
 Crabbe, 22 358 
 
 Randall v. Richmond & D. R. Co. 
 
 108 N. C. 612 710 
 
 Rankin v. Memphis & C. Packet 
 
 Co. 9Heisk. 564, 24Am. 
 
 Rep. 339 865, 866 
 
 Ransome ®. Eastern Counties R. 
 
 Co. 1 Nev. & McN. 63, 
 
 1 C. B. N. S. 437, 2 
 
 Nev. & McN.202..576, 
 
 735, 749, 756,759,764,770,785 
 V. Eastern Counties R. Co. 
 
 4C. B. N. S. 135 
 
 613, 614,718, 758 
 
 Raphael v. Pickford, 5 Man. & G. 
 
 551 3''0 3^1 
 
 Raritan, The, 3"2'Fed.'Rep.""8"4'7-t-' 350 
 Rate Sheets, Ee, 1 Inters. Com. 
 
 Rep. 316 - 881 
 
 Rathbonew. New York Cent. & H. 
 
 R. R. Co. 140 N.Y. 48- 204 
 Rathbun?). Citizens S. B. Co. 76 
 N. Y. 376, 32 Am. Rep. 
 
 321 116 
 
 Rawlsw. Deshler. 3 Keyes, 572.-1005 
 Raworth v. Northern Pac. R. Co. 
 3 Inters. Com. Rep. 857 
 
 651, 660, 718 
 
 Rawson v. Holland, 5 Daly, 155, 
 aff'd 59 N. Y. 611, 18 
 
 Am. Rep. 394 
 
 --80, 365, 385, 388, 392, 393 
 D. Newport News & M. V. 
 Co. 2 Inters. Com. Rep. 
 
 626 ..600, 1053 
 
 Raymond ®. Chicago, M. & St. P. 
 R. Co. 1 Inters. Com. 
 
 Rep. 627 711, 715 
 
 Read v. Bonham, 3 Brod& B. 147. 867 
 v. St. Louis, K. C. & N. R. 
 
 Co. 60 Mo. 199. 
 
 177. 1027, 1030. 1033 
 
 V. Spaulding, 5Bosw.39i, 30 
 N. Y. 630, 86 Am. Dec. 
 426.-7,11,159,161,315,325 
 Reade v. Commercial Ins. Co. 3 
 Johns. 352, 3 Am. Dec. 
 495 - -. 26
 
 TABLE OF CASES. 
 
 Ix^ 
 
 Reagan v. Farmers Loan & T. Co. 
 
 4 Inters. Com. Rep. 560, 
 
 154 U. S. 302, 38 L. ed. 
 
 1014 578, 1051 
 
 Reaves v. Waterman, 2 Spears, L. 
 
 197 179 
 
 Rebecca, The, Blatchf. & H. 347. 358 
 
 Rebecca, The, Ware, 188 25, 868 
 
 Rebecca Shepherd, The, 33 Fed. 
 
 Rep. 926-.-. 163 
 
 Redmond v. Liverpool, N. T. & P. 
 
 S. B. Co. 46 N. Y. 578, 
 
 7 Am. Rep. 390 967 
 
 Redpath v. Vaughan, 52 Barb. 489 171 
 Reed v. Philadelphia, W. & B. R. 
 
 Co. 3 Iloust. (Del.) 176 310 
 V. United States Exp. Co. 48 
 
 N. y. 462, 7 Am. Rep. 
 
 561... 365, 396 
 
 Reeside, The, 2 Sumn. 567 
 
 94, 118, 164. 165, 192 
 
 Reg. V. Bradford Nav. Co. 6 Best 
 
 &S. 631 1090 
 
 v. Grand Junction R. Co. 4 
 
 Q. B. 16 755 
 
 V. Great North of England 
 
 R. Co. 9Q. B. 315 1089 
 
 V. Manchester, 7 El. & Bl. 
 
 453... 1090 
 
 ■B. Railway Comrs. & D. I. 
 
 Co. L. R. 22 Q. B. Div. 
 
 642, 40 Am. & Eng. R. 
 
 Cas. 59 425, 745 
 
 Regan v. Grand Trunk R. Co. 61 
 
 N. H. 579 317, 318,389 
 
 Reid V. Evansville & T. H. R. Co. 
 
 (Ind.App.)Dec.l5.1893, 340 
 
 Reissneri'. Oxley, 80 Ind. 580 386 
 
 Relative Tank & Barrel Rates on 
 
 Oil, lie, 2 Inters. Com. 
 
 Rep. 245 .596, 600 
 
 Relf V. Rapp, 3 Watts & S. 21, 37 
 
 Am. Dec. 528.. 50, 212, 296 
 Religious Teachers, Be, 1 Inters. 
 
 Com. Rep. 21 736 
 
 Rend ». Chicago & N. W. R. Co. 
 
 2 Inters. Com. Rep. 313 
 
 578, 729 
 
 Reno V. Hogan, 12 B. Mon. 63, 54 
 
 Am. Rep. 513 41, 1013 
 
 Rensselaer & S. R. Co. v. Davis, 
 
 48 N. Y. 187 439 
 
 Retzer v. Wood, 109 U. S. 185, 27 
 
 L. ed. 900 9 
 
 Reuben Doud, The, 46 Fed. Rep. 
 
 800 ....869,967 
 
 ^Reynolds t. St. Louis, I. M. & S. 
 
 R. Co. 22 Mo. App. 609 272 
 E 
 
 Reynolds v. Toppan, 15 Mass. 370, 
 
 8 Am. Dec. 110 25. 26 
 
 «. Vanderbiit ("The North 
 
 Star") 106 U. S. 17, 27 
 
 L. ed. 91 62 
 
 V. Western N. Y. & P. 
 R. Co. 1 Inters. Com. 
 
 Rep. 685 ..559,836 
 
 Rhodes v. Louisville & N. R. Co. 
 
 9 Bush, 688 50, 231 
 
 V. Newhall, 35 N. Y. S. R. 
 
 415 -. 154 
 
 Rice V. Atchison, T. & S. F. R. Co. 
 
 3 Inters. Com. Rep. 263 
 
 660, 728, 882 
 
 ©. Baxendale, 30 L.J. Exch. 
 
 371. 279 
 
 V. Cincinnati, W. & B. R. 
 
 Co. 2 Inters. Com. Rep. 
 
 584 571, 781 
 
 v. Cincinnati, W. & B. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 841.. ...659, 714, 780 
 
 V. Indianapolis & St. L. R. 
 
 Co. 3 Mo. App. 27-... 878 
 V. Louisville & N. R. Co. 1 
 
 Inters. Com. Rep. 722. 
 
 .-533, 881 
 
 V. Western N. Y. & P. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 162.17,18,559,575,576, 
 
 597, 695, 720, 779, 780, 837 
 Rich V. Lambert, 53 XJ. S. 12 How. 
 
 347, 13 L. ed. 1017 1027 
 
 Richards «. Doe, 100 Mass. 524... 95 
 v. London & S. C. R. Co. 7 
 
 C. B. 839 187 
 
 Richardson v. Canadian Pac. R.Co. 
 
 19 Ont. Rep. 369, 45 
 
 Am. & Eng. R. Cas. 413 
 
 .406, 888 
 
 •D. Charles P. Chouteau, The, 
 
 37 Fed. Rep. 532 412 
 
 V. God.lard, 64 U.S. 23 How. 
 
 28, 16 L. ed. 412 
 
 891, 892, 938, 
 
 939, 940, 941, 942, 964, 967 
 V. Goss, 3 Bos. & P. 119... 889 
 V. Great Eastern R. Co. L. 
 
 R. 10 C. P. 486. 407 
 
 V. Mellish, 3 Ring. 252 458 
 
 V. Midland R. Co. 4 Ry. & 
 
 Canal Traffic Cas. 1... 714 
 V. Winsor, 3 Cliff. 401... 14, 887 
 
 V. Young. 38 Pa. 169 873 
 
 Richelieu & O. Nav. Co. v. Fortier, 
 
 5 Mont. L. Rep. 224... 
 
 165, 171
 
 Ixvi 
 
 TABLE OF CASES. 
 
 Rickerson Roller-Mill Co. «. Grand 
 
 Rapids & I. R. Co. 67 
 
 Mich. 110 391 
 
 Richmond v. Dubuque & S. C. R. 
 
 Co. 26 Iowa, 191 432 
 
 V. Union S. B. Co. 87 N. Y, 
 
 240-_ -941, 944 
 
 Richmond & D. R. Co. v. Bedell, 
 
 88 Ga. 591. 338 
 
 V. Benson, 86 Ga. 203 
 
 -...313, 919, 920 
 
 V. Payne, 6 L. R. A. 849, 86 
 
 Va. 481... 46, 48, 202, 1012 
 V. Trammel, 53 Fed. Rep. 
 
 196 539, 540 
 
 V. Trousdale, 99 Ala. 389.. 267 
 V. White, 88 Ga. 805 
 
 174, 175, 264 
 
 Riddle v. Baltimore & O. R. Co. 1 
 
 Inters. Com. Rep. 778. 
 
 522, 780 
 
 V. New York, L. E. & W. 
 
 R. Co. 1 Inters. Com. 
 
 Rep. 787 20, 
 
 105, 582, 574, 577 713 
 
 V. New York, L. E. & W. 
 
 R. Co. 3 Inters. Com. 
 
 Rep. 230 1044 
 
 V. Pittsburg & L. E. R. Co. 
 
 1 Inters. Com. Rep. 
 
 685 836 
 
 Riddlesbarger v. Hartford F. Ins. 
 
 Co. 74 U. S. 7 Wall. 386, 
 
 19 L. ed. 257. 220 
 
 Riley v. Home, 5 Bing. 217 
 
 11,35, 75. 86 
 
 Ringgold V. Haven, 1 Cal. 108 1028 
 
 Rintoul V. New York Cent. & H. 
 
 R. R. Co. 21 Blatchf. 
 
 439 1013, 1017 
 
 Rio Grande R. Co. v. Cross, 5 Tex, 
 
 Civ. App. 454 55 
 
 Ripley v. iEtna Ins. Co. 30 N. Y. 
 
 136, 86 Am. Dec. 362.. 220 
 Rixford v. Smith, 52 N. H. 355, 13 
 
 Am. Rep. 42... 11, 254, 296 
 Roanoke, The, 53 Fed. Rep. 270.. 
 
 180, 868 
 
 Robbins v. Shelby County Tax. 
 
 Dist. 1 Inters. Com. 
 
 Rep. 45, 120 U. S. 489, 
 
 SOL. ed. 694 
 
 485, 486, 511, 522, 850, 1070 
 Roberts v. Riley, 15 La. Ann. 103, 
 
 77 Am. Dec. 183... 41, 1013 
 Robertson v. Clarke, 1 Bing. 446. 867 
 V. Kennedy, 2 Dana, 43, 26 
 
 Am. Dec. 466 13 
 
 Robertson v. National SS. Co. 43 
 
 N. Y. 3. R. 694 314 
 
 v. National SS. Co. 139 N. 
 
 Y.416 816 
 
 D. National SS. Co. 14 N.Y. 
 
 Supp. 313 313 
 
 V. Woodward, 3 Rich. L. 251 931 
 Robins «. Ruff, 2 Hill, L. 406.... 983 
 Robinson, Ex parte, 86 U. S. 19 
 
 Wall. 505, 22 L. ed. 205.1088 
 V. Baker, 5 Cush. 137, 51 
 
 Am. Dec. 54.. 319, 861, 863 
 V. Commonwealth Ins. Co. 3 
 
 Sumn. 220 867 
 
 «. Cornish, 34 N. Y. S. R. 
 
 695. 3 
 
 V. Dunmore, 2 Bos. & P. 416 3 
 V. Memphis & C. R. Co. 9 
 Fed. Rep. 129, 16 Fed. 
 
 Rep. 1 ....110, 138 
 
 V. Merchants Despatch 
 Transp. Co. 45 Iowa, 
 
 470 
 
 7, 80, 182, 312, 315, 396, 893 
 7). Stuart, 68 Me. 61.... 107, 109 
 Rockingham Mut. F. Ins. Co. v. 
 Bosher, 39 Me. 253. 63 
 
 Am. Dec. 618 14 
 
 Rock Island & P. R. Co. v. Potter, 
 
 36 111. App. 590 258 
 
 Rodd v. Heartt ("The Lnttawan- 
 na") 88 U. S. 21 Wall. 
 558, 22 L. ed. 654... 34, 495 
 
 Roe V. Jerome, 18 Conn. 153 1035 
 
 Rogers v. Hosack, 18 Wend. 319.-1020 
 V. Long Island R. Co. 2 Laus. 
 
 269 78 
 
 «. Weir, 34 N. Y. 6, 8 Am. 
 
 Rep. 511 915, 927 
 
 «. Wheeler, 52 N. Y. 262 
 
 83 296 
 
 Rohl «. Parr, 1 Esp. 445 253 
 
 Roland v. Gundy, 5 Ohio, 202 859 
 
 V. Miln, 2 Hilt. 150 940 
 
 Rolfe V. Boskenna Bay, The, 6 L. 
 R. A. 172, 40 Fed. Rep. 
 
 91 227, 969 
 
 Rome R. Co. v. Sloan, 39 Ga. 636. 920 
 
 V. Sullivan, 32 Ga. 400 343 
 
 Romney Marsh v. Trinity House, 
 
 L. R. 5Exch. 208 349 
 
 Root V. Great Western R. Co. 45 
 
 N. Y. 524 366, 395, 396 
 
 V. Long Island R. Co. 2 
 Inters. Com. Rep. 576, 
 4L. R. A. 331. 114 N. 
 
 Y. 300 
 
 571, 706. 749, 756, 765
 
 TABLE OF CASES. 
 
 Ixvii 
 
 Booth V. North Eastern R. Co. L. 
 
 R. 2 Exch. 173, 36 L. J. 
 
 Exch. 83.. 44, 46 
 
 Rosenfeld v. Peoria, D. & E. R. 
 
 Co. 103 Ind. 121, 53 
 
 Am. Rep. 500 204, 213 
 
 Rosenfield v. Express Co. 1 Woods, 
 
 131 - 927 
 
 Roskell V. Waterhouse, 2 Stark. 
 
 461 .- 77 
 
 Ross V. Kansas City, St. J. & C. B. 
 
 R. Co. Ill Mo. 18.. 540. 853 
 V. Missouri, K. & T. R. Co. 
 
 4 Mo. App. 582. 296 
 
 Rossiter v. Chester, 1 Dougl. 
 
 (Mich.) 154 873 
 
 Roth V. Hamburg- American Pacliet 
 
 Co. 27 Jones &S. 49.. 
 
 ....155, 1032 
 
 Rothchild v. Wabash, St. L. & P. 
 
 R. Co. 92 Mo. 91 877 
 
 Rousillon V. Rousillon, L. R. 14 
 
 Ch. Div.351.73, 464,473, 896 
 Rowe V. City of Dublin, The, 1 
 
 Ben. 56 888 
 
 v. Pickford, 8 Taunt. 88, 1 
 
 Moore, 526 889 
 
 Rowland v. New York, N. H. & 
 
 H. R. Co. 61 Conn. 103 
 
 49 Am. & Eng. R. Cas. 
 
 61 852 
 
 Rubens v. Judgate Hill S. S. Co. 
 
 48 N. Y. S. R. 732.. 54, 101 
 Ruggles V. Illinois, 108 U. S. 526. 
 
 27 L. ed. 812 .499, 518 
 
 Rushville v. Rushville Nat. Gas 
 
 Co.l32Ind.575,15L. R. 
 
 A. 321 .... 759 
 
 Russia, The, 3 Ben. 479 360 
 
 Russell V. Southard, 53 U. S. 12 
 
 How. 139, 13 L. ed. 927 895 
 V. South Britain Soc. 9 Conn. 
 
 522 1006 
 
 Rutland & W. R. Co. v. Bank of 
 
 Middlebury, 32 Vt. 639 909 
 Ryan v. Missouri, K. & T. R. Co. 
 
 65 Tex. 13, 57 Am. Rep. 
 
 589 893, 1030 
 
 S. 
 
 Sabine & E. T. R. Co. v. Cruse, 83 
 
 Tex. 400 875 
 
 Sack V. Ford, 13 C. B. N. S. 100.. 299 
 Sackett's Harbor Bank v. Codd, 18 
 
 K Y. 248 703 
 
 Sager v. Portsmouth, S. & P. «feE. 
 R. Co. 31 Me. 228, 50 
 
 Am. Dec. 659 
 
 ....18, 43, 75, 125,148, 
 185. 188, 254, 310, 1012, 1030 
 St. Clair v. Chicago, B. & Q. R. 
 Co. SO Iowa. 304, 42 
 Am. & Eng. R. Cas. 414 323 
 St. John V. New York, 6Duer, 315 363 
 St. JcseDh, H. & St. J. R. Co. v. 
 
 Saville. 39 Mo. 451 32 
 
 St. Joze ludiano. The, 14 U. S. 1 
 
 Wheat. 208, 4 L. ed. 73.1004 
 St. Juan Baptista, The, 5 C. Rob. 
 
 Adm. 36... 359 
 
 St. Louis, A. & T. H. R. Co. v. 
 Montgomery, 39 111. 335 
 
 77. 926 
 
 St. Louis, A. & T. R. Co. v. John- 
 son, 53 Ark. 282 918 
 
 V. McKee (Tex.) Oct. 26, 
 
 1889 921, 923 
 
 v. Neel, 56 Ark. 279, 12 Ry. 
 
 & Corp. L. J. 110 
 
 299, 918, 1024, 1034 
 
 v. Philadelphia F. Asso. 55 
 
 Ark. 163 79 
 
 V. Robbins (Tex. App.) Dec. 
 
 14, 1889 57,196, 219 
 
 V. Turner, 1 Tex. Civ. App. 
 
 625 ...241, 275 
 
 St. Louis & I. M. R. Co. v. Lamed, 
 
 103 111. 293 143. 915 
 
 St. Louis & S. E. R. Co. v. Dor- 
 man, 72 111. 504 231 
 
 St. Louis & S. E. R. Co. v. Smuck, 
 
 49 Ind. 302. ....46, 55 
 
 St. Louis «fc S. F. R. Co. v. Clark, 
 
 48 Kan. 321 253, 287 
 
 V. Gill, 11 L. R. A. 452, 54 
 
 Ark. 101. 515 
 
 V. Ryan, 56 Ark. 245 520 
 
 St. Louis, I. M. & S. R. Co. v. 
 
 Bone, 52 Ark. 26 189 
 
 V. Commercial U. Ins. Co. 
 139 U. S. 223, 35 L. ed. 
 
 154... 
 
 77, 140, 141, 391, 1021, 1023 
 V. Henderson, 57 Ark. 402.. 230 
 V. Knight, 122 U. S. 79, 30 
 
 L. ed. 1077 
 
 90, 105, 138, 141, 155 
 
 V. Lear, 54 Ark. a99....411, 876 
 
 V. Lesser. 46 Ark. 236 202 
 
 V. Mud ford, 44 Ark. 439.260, 343 
 
 V. Spann, 57Ark. 127 293 
 
 V. Weakly, 50 Ark. 397.... 
 
 ..46, 130, 202, 207, 280, 404
 
 Jxvaii 
 
 TABLE OF CASES. 
 
 St. Louis Ins. Co. «. St. Louis, V. 
 
 T. H. & I. R. Co. 104 
 
 U. S. 146, 26 L. ed. 679 
 
 6, 389, 412 
 
 St. Louis, K. C. & N. R. Co. v. 
 
 Piper, 13 Kan. 505.259, 1012 
 Salmon Falls Mfg. Co. ■». Tangier, 
 
 The, 1 Cliff, 396, 6 Am. 
 
 L. Reg. 504 
 
 938, 939, 941, 944 
 
 Saltus V. Everett, 20 Wend. 267, 32 
 
 Am. Dec. 541 
 
 109,859, 860, 865 
 
 V. Ocean Ins. Co. 12 Johns. 
 
 107, 7 Am. Dec. 290... 853 
 Samms v. Stewart, 20 Ohio, 69, 55 
 
 Am. Dec. 445 3 
 
 Samuel v. Cheney, 135 Mass. 278, 
 
 46 Am. Rep. 467 915 
 
 Samuel E. Spring, The, 29 Fed. 
 
 Rep. 397. ..23, 307 
 
 Samuels «. Louisville & N. R. Co. 4 
 
 Inters. Com. Rep. 420, 
 
 31 Fed. Rep. 57 
 
 521,746, 757, 784 
 
 San Antonio & N. P. R. Co. 
 
 V. Bailey (Tex. App.) 
 
 March 19, 1890 230 
 
 San Barnardino Board of Trade v. 
 
 Atchison, T. & S. F. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 138 658, 717, 881 
 
 Sanborn, Ee, 148 U. S. 222, 37 L. 
 
 ed. 439 1082, 1094 
 
 Sanborn o. Webster, 2 Minn. 523. 357 
 Sandeman v. Scurr, L. R. 2 Q. B. 
 
 98 301 
 
 Sanders «. Van Zeller, 4 Q. B. 260 217 
 Sandford ®. Cattawissa, W. & E. 
 
 R. Co. 24 Pa. 378, 64 
 
 Am. Dec. 667 .27, 746 
 
 Santa Clara Valley Mill & L. Co. 
 
 1). Hayes, 76 Cal. 387.. 
 
 -461, 694 
 
 Santee, The. 48 Fed. Rep. 126 353 
 
 Santee, The, 7 Blatchf. 186... 945, 967 
 
 Sarah, The, 2 Sprague, 30 871 
 
 Sarah Christiana, The, 1 C. Rob. 
 
 Adm. 237 360 
 
 Sargent v. Morris, 3 Barn. & Aid. 
 
 273.. 1005-1007 
 
 Satterlee v. Groat, 1 Wend. 272... 3 
 Saugerties, The, 44 Fed. Rep. 625 
 
 23, 113, 307 
 
 Savage v. Corn Exchange F. & I. 
 
 Ins. Co. 36 N. Y. 655. 1008 
 Savannah, The, cited in 1 Parsons, 
 
 Ship. & Adm. 532 1047 
 
 Savannah, F. & W. R. Co. v. Har- 
 ris, 26 Fla. 148 865 
 
 Savannah, 6. & N. A. R. Co. v. 
 
 State, 55 Ga. 557 431 
 
 T. Wilcox, 48 Ga. 432 ..928, 935 
 Sa villa v. Campion, 2 Barn. & Aid. 
 
 503. 846 
 
 Sayre v. Louisville Union Benev. 
 
 Asso. 1 Duv. 143, 85 
 
 Am. Dec. 613.. 442, 690, 692 
 Say ward v. Stevens, 3 Gray, 101.. 302 
 Scammon v. Kansas City, St. J. & 
 
 C. B. R, Co. 41 Mo. 
 
 App. 194 529 
 
 V. Welis, Fargo & Co. 84 
 
 Cal. 311,42Am. &Eng. 
 
 R. Cas. 400 213, 928 
 
 Scheu V. Benedict, 116 N. Y. 510 . 968 
 Schieffelin t\ Harvey, 6. Johns. 169, 
 
 5 Am. Dec. 206 -.4, 28, 176 
 Schloss V. Atchison. T. & S. F. R. 
 
 Co. 85 Tex. 601 932 
 
 Schneider v. Evans, 25 Wis. 241, 3 
 
 Am. Rep. 56.. 319, 398, 863 
 Scholl V. Albany Iron Co. 101 N. 
 
 Y. 602 970 
 
 School Dist. in Medfield v. Boston, 
 
 H. & E. R. Co. 102 
 
 Mass. 552, 3 Am. Rep. 
 
 503... 43, 50, 131, 185, 1012 
 Schroeder v. Hudson River R. Co. 
 
 5Duer, 55 888, 915 
 
 Schultz V. Pietro G, The, 40 Fed. 
 
 Rep. 497 917 
 
 Scofield V. Lake Shore & M. S. R. 
 
 Co. 43 Ohio St. 571, 54 
 
 Am. Rep, 846 
 
 ...3, 511, 573,757, 762, 
 
 740, 741, 749, 770. 775, 785 
 V. Lake Shore & M. S. R. Co. 
 
 2 Inters. Com. Rep. 67 
 
 ..228, 778, 781 
 
 Scothorn v. South Staffordshire R. 
 
 Co. 8 Exch. 341 ... 364, 856 
 Scott V. Baltimore, C. & R. S. B. 
 
 Co. 19 Fed. Rep. 56... 944 
 V. Boston & N. O. SS. Co. 
 
 106 Mass. 468 343 
 
 V. Pettit, 3 Bos. & P. 473 .. 889 
 Scovill V. Griffith, 12 N Y. 509.342, 968 
 Scudder v. Union Nat. Bank, 91 U. 
 
 S. 406, 23 L. ed. 245. .. 893 
 Scull V. Briddle, 2 Wash.C. C. 150. 867 
 Seaman v. Crescent City, The, 1 
 
 Bond, 123 363 
 
 r. Thames, The, 81 U. S. 
 
 14Wall.98,20L.ed.804 90 
 SearleJ). Scovell, 4 Johns. Ch. 218. 334
 
 TABLE OF CASES. 
 
 Ixix 
 
 Sears «. Wills, 6G U. S. 1 Black,112, 
 
 17 L. ed. 35 868 
 
 V. Winijate, 3 Allen, 103... 141 
 Seavey v. Shimck, 110 Ind. 494 .. 118 
 Seccomb v. Provincial ins. Co. 10 
 
 Allen, 305 122 
 
 Second Nat. Bank of St. Louis v. 
 
 Grand Lodge, F. & A. 
 
 M. 98 U. S. 123, 25 L. 
 
 ed. 75 ....954, 958 
 
 Selby V. Wilmington & W. R. Co. 
 
 113 N. C. 58S 239, 278 
 
 Seller v. PaciOc, The, 1 Or. 409 . 1012 
 Selway v. Holloway, 1 Ld. llaym. 
 
 46. ...76, 82, 141 
 
 Senator D. C. Chase, The, 46 Fed. 
 
 Rep. 874.. 355 
 
 Serraino v. Campbell, L. R. 25 Q. 
 
 B. Div. 501 155 
 
 Sewall V. Allen. 6 Wend. 346 2, 14 
 
 Sewall's Falls Bridge v. Fisk, 23 
 
 N. H. 171 -. 363 
 
 Shackleford v. Wilcox, 9 Pa. 38.. 304 
 Shamberg v. Delaware, L. & W. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 502 886 
 
 Shannon, The, 2 W. Rob. Adm. 
 
 463 349 
 
 Sharpless v. Philadelphia, 21 Pa. 
 
 147, 59 Am. Dec. 759.. 
 
 744, 746, 769 
 
 Shaw V. Great Western R. Co. 
 
 [1894] IQ.B. 375. 148 
 
 V. Merchants Nat. Bank of 
 
 St. Louis, 101 U. S. 557, 
 
 25 L. ed. 892 
 
 108, 109, 110, 902 
 
 V. York & N. M. R. Co. 13 
 
 Q. B. 347 17, 96 
 
 Shearer ». Pacific Exp. Co. 43 111. 
 
 App. 641 6 
 
 Sheets v. Wilgus, 56 Barb. 662 .. 1007 
 Sheffield v. Paige, 1 Sprague, 285. 24 
 Shelbyville R. Co. v. Louisville, C. 
 
 &L. R. Co. 82 Ky. 541. 390 
 Shellenberger v. Brinton, 52 Pa. 9. 848 
 Shelton v. Merchants Despatch 
 
 Transp. Co. 59 N. Y. 
 
 258 135, 891 
 
 Shenk v. Philadelphia Steam Pro- 
 peller Co. GO Pa. 109, 
 
 100 Am. Dec. 541.-938, 940 
 Shepherd v. Nay lor, 5 Gray, 591 
 
 105, 106 
 
 Sheridan v. New Quay Co. 4 C. B. 
 
 N. S. 618 9-'6, 927 
 
 Sherlock v. Ailing, 92 U. S. 99, 23 
 
 L. ed. 819 513 
 
 Sherman v. Hudson River R. Co. 
 
 64 N. Y. 254.... 392 
 
 V. Inman SS. Co, 26 Hun, 
 
 107.. 165 
 
 Shipley v. Carroll, 45 III. 285 100 
 
 Shipper v. Pennsylvania R. Co. 47 
 
 Pa. 338. - 
 
 739. 746, 755, 757. 763, 876 
 Shipton V. Thornton, 9 Ad. & El. 
 
 314 333 
 
 Shoenbergcr v. Mulhollan, 8 Pa. 
 
 ' 134 441 
 
 Shriver v. Sioux City & St. P. R. 
 
 Co. 24 Minn. 506. 31 
 
 Am. Rep. 353.188, 279, 1012 
 Shulbrick v. Salmond, 3 Burr. 
 
 1637.. 20, 21 
 
 Sidney, The, 23 Fed. Rep. 88 ... 1012 
 Silver v. Hale, 2 Mo. App. 557.318, 325 
 Simkins v. Norwich & N. L. S. B. 
 
 Co. 11 Gush. 102 97, 316 
 
 Simmes v. Marine Ins. Co. 2 
 
 Cranch, C. C. 618 846 
 
 Simmons?). Law, 3 Keyes, 219 303 
 
 Simms v. South Carolina R. Co. 26 
 
 S. C. 490 407 
 
 Simons v. Great Western R. Co. 26 
 
 L. J. C. P. 25. 44 
 
 Simpson v. Story, 145 Mass. 497.. 59 
 Simsou «. Brown. 68 N. Y. 355... 958 
 Singleton v. Hilliard, 1 Strobh. L. 
 
 203 14, 180 
 
 V. Phosnix Ins. Co. 132 N. 
 
 Y. 298. 23 
 
 Sinnot v. Davenport, 63 U. S. 22 
 
 How. 227, 16 L. ed. 243 
 
 486, 530 
 
 Siordet v. Hall, 4 Bing. 607 176 
 
 Sioux City & P. R. Co. v. Fii-st 
 
 Nat. Bank of Fremont, 
 
 10 Neb. 556, 35 Am. Rep. 
 
 488 143 
 
 Sisson V. Cleveland & T. R. Co. 14 
 
 Mich. 489, 90 Am. Dec. 
 
 252 329,345, 413, 1036 
 
 Six Hundred & Thirty Quarter 
 
 Casks of Sherry Wine, 
 
 14 Blatchf. 517 1032 
 
 Skinner v. Hall, 60 Me. 477 365 
 
 Skinninggrove Iron Co. v. North- 
 eastern R. Co. 5 Ry. & 
 
 Canal Traffic Cas. 244 835 
 Skrainka v. Scharriughausen, 8 
 
 Mo. App. 522 462, 464 
 
 Slater v. Northern Pac. R. Co. 
 
 2Inters. Com.Rep. 243. 533 
 V. South Carolina R. Co. 29 
 
 S. C. 96 .160, 101, 188
 
 Ixx 
 
 TABLE OF CASES. 
 
 Slayter t. Havward Rubber Co. 26 
 
 Conn. 128 178 
 
 Slayton, Ex parte, 105 U. S. 451, 
 
 26 L. ed. 1066 ...1041 
 
 Sleade v. Payne, 14 La. Ann. 453. 891 
 Sleat V. Fagg, 5 Barn. & Aid. 342 314 
 Slim «. Great Northern R. Co. 26 
 
 Eng. L. &Eq. 297 41 
 
 Sloan «. Pacific R. Co. 61 Mo. 24, 
 
 21 Am. Rep. 397 746 
 
 Smith V. Alabama, 124 U. S. 465, 
 
 31 L. ed. 508, 1 Inters. 
 
 Com, Rep. 804 
 
 53,484, 512, 522, 523 
 
 V. Cleveland, C. C. & St. L. 
 
 R. Co. 92 Ga. 539 325 
 
 V. Clews, 4 L. R. A. 392, 114 
 
 N. Y. 190 118, 385, 386 
 
 V. Condry, 42 U. S. 1 How. 
 
 28, 11 L. ed. 35.357. 358, 363 
 
 V. Jones, 7 Cow. 328 361 
 
 V. McGiiire, 27 L. J. Exch. 
 
 496. 847 
 
 «. Martin, 6 Binn. 262 866 
 
 13. Mictiigan Cent. R. Co. 
 
 100 Mich. 148 243, 268 
 
 ■V. Mobile Nav. & Mut. Ins. 
 
 Co. 30 Ala. 167 118 
 
 ■». New Haven & N. R. Co. 
 
 12 Allen, 531, 90 Am. 
 
 Dec. 166.... 16, 231, 253, 254 
 «. New York & N. Granite 
 
 Pciv. Block Co. 56 Fed. 
 
 Rep. 527. aff'g 56 Fed. 
 
 Rep. 525.. 941 
 
 V. New York Cent. R. Co. 
 
 43 Barb. 255 1030 
 
 ®. North Carolina R. Co. 64 
 
 N. C. 235 125. 180, 188 
 
 v. North Carolina R. Co. 68 
 
 N. C. 107 1037 
 
 •B. Pyman [1891] 1 Q. B. 742, 
 
 rev'g [1891] 1 Q. B. 42. 855 
 V. Rosario Nitrate Co. (1893) 
 
 2Q. B. 323 324 
 
 «. Shepherd, Abbott, Ship- 
 ping, 383. 161 
 
 V. Turner. 48 U. S. 7 How. 
 
 283, 12 L. ed. 702.-481,482 
 v. Wright, 1 Cal. 43, 2 Am. 
 
 Dec. 162.. 169, 301, 310, 937 
 Smitha v. Louisville & N. R. Co. 
 
 86Tenn. 198 254, 278 
 
 Smyrl v. Niolon, 2 Bail. L. 421, 23 
 
 Am. Dec. 146 
 
 .35, 161,177, 336 
 
 Snaw V. Great AVestern R. Co. 
 
 [1894] 1 Q. B. 378 152 
 
 Snelling ®. Hall, 107 Mass. 134... 123 
 Snider v. Adams Exp. Co. 63 Mo. 
 
 376 111, 197, 200, 414 
 
 Snow ©. Indiana, B. & W. R. Co. 
 109 Ind. 422.... 94, 96, 
 97, 130, 134, 316, 393, 1006 
 D. Wheeler, 113 Mass. 179.. 462 
 Societe, The, 13 U. S. 9 Cranch, 
 
 209, 3L. ed. 707 359 
 
 Society for Savings i). Coite. 73 U. 
 S. 6 Wall. 594, 18L. ed. 
 
 897 . 495 
 
 Solomon v. Philadelphia & N. Y. 
 Exp. S. B. Co. 2 Daly, 
 
 104 938, 940 
 
 Solomons «. Dawes, 1 Esp. 83 927 
 
 Sorrell v. Central R. Co. 75 Ga. 509 877 
 Soumet V. National Exp. Co. 66 
 
 Barb. 284. 131 
 
 South & North Ala. R. Co. v. Hein- 
 lein, 52 Ala. 606, 56 
 
 Ala. 368. 
 
 45, 50, 203, 239, 240, 254, 283 
 Southern Exp. Co. v. BouUemet 
 
 100 Ala. 275... 10 
 
 V. Caldwell, 88 U. S. 21 
 Wall. 264, 22 L. ed. 72 
 
 .198, 221, 222 
 
 «. Caperton, 44 Ala. 101, 4 
 
 Am. Rep. 118 224 
 
 V. Crook, 44 Ala. 408, 4 Am. 
 
 Rep. 140 7 
 
 «. Dickson, 94 U. S. 549, 24 
 
 L. ed. 285 103, 915 
 
 V. Everett. 37 Ga. 6S8 295 
 
 ©. Glenn, 16 Lea, 472 8 
 
 1). Hunnicutt, 54 Miss. 566, 
 
 28 Am. Rep. 385 375 
 
 V. Kaufman, 12 Heisk. 161. 
 
 296, 914 
 
 «. McVeigh, 20 Gratt. 264.. 7 
 
 v. Moon, 39 Miss. 822 
 
 ..43,204, 219, 1012 
 
 V. Newby, 36 Ga. 635, 91 
 
 Am. Dec. 783.. 8, 79 
 
 «. Seide, 67 Miss. 609, 8 Ry. 
 
 &Corp. L. J. 153 
 
 196, 197, 1013 
 
 V. Shea, 38 Ga. 519 399 
 
 «. VanMeter, 17 Fla. 783, 35 
 
 Am. Rep. 107 -.7, 915 
 
 V, Womack, 1 Heisk. 256 .. 
 
 7. 75. 177 
 
 Southern Pac. R. Co. v. Haas (Tex.) 
 
 Nov. 3, 1891 411 
 
 V. Johnson (Tex. App.) 45 
 
 Am. «& Ena:. R. Cas. 338 347 
 V. Maddox, 75 Tex. 300.136, 196
 
 TABLE OF CASKS. 
 
 Ixxi 
 
 V. Stell (Tex. App.) Jan. 18, 
 
 1890 347 
 
 Southern R. & SS. Asso. Re, 1 
 
 Inters. Com. Rep. 278. 
 
 417, ;.33, 574, 
 
 601, 615. 647-649, 653, 662 
 Southern SS. Co. v. New Orleans 
 
 Port Wardens, 73 U. S. 
 
 6 Wall. 31, 18 L. ed. 
 
 749 488 
 
 Southern Wire Co. v. St. Louis 
 
 Bridge & T. R. Co. 38 
 
 Mo. App. 191 851 
 
 Spartali v. Benecke, 10 C. B. 222. 302 
 
 Spartan, The, 25 Fed. Rep. 44 967 
 
 Spartanburg Board of Trade v. 
 
 Richmond & D. R. Co. 
 
 2 Inters. Com. Rep. 193 
 
 590, 600, 727 
 
 Spears v. Ward, 48 Ind. 541 118 
 
 Spence v. Chodwick, 10 Q. B. 517 873 
 
 Spencer v. Daggett, 2 Vt. 92 160 
 
 Spinetti V. Atlas SS. Co. 80 N. Y. 
 
 71, 36 Am. Rep. 575... 51 
 Spofford V. Boston & M. R. Co. 128 
 
 Mass. 326..-.. 740, 749 
 
 Sprague v. Missouri Pac. R. Co. 34 
 
 Kan. 347. 375 
 
 Sproat V. Donnell, 26 Me. 187, 45 
 
 Am. Dec. 103. 302, 306 
 
 Spurgin v. Traub, 65 111. 170 101 
 
 Squire v. Michigan Cent. R. Co. 3 
 
 Inters. Com. Rep. 515.. 
 
 552 ,-556, 577, 776, 784 
 
 V. New York Cent. R. Co. 98 
 
 Mass. 239, 93 Am. Dec. 
 
 162 ..46,80, 
 
 95, 202, 209, 247, 254, 
 
 283, 285, 287, 392, 1012, 1035 
 Stacy V. Ross. 27 Tex. 3, 84 Am. 
 
 Dec. 604. 100 
 
 Standard Oil Co. v. Tierney, 14 L. 
 
 R. A. 677, 92 Ky. 367.. 88 
 Stanley v. Wabash, St. L. & P. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 176 229 
 
 Stanton v. Allen, 5 Denio, 434, 49 
 
 Am. Dec. 282 
 
 434, 437, 442, 461, 690 
 
 V. Eager, 16 Pick. 467 1003 
 
 Starnes v. Louisville & N. R. Co. 
 
 91 Tenn. 516 286 
 
 Star of Hope, The, v. Church, 84 
 
 U. S. 17 Wall. 651, 21 
 
 L. ed. 719 300, 303, 306 
 
 State V. Atchison & N. R. Co. 24 
 
 Neb. 143, 32Am.&EDg. 
 
 R. Cas. 388 443, 691 
 
 State r. Chicago, B. & Q. R. Co. 
 
 (Iowa) May 14, 1894... 541 
 V. Chicago. M. & St. P. R. 
 
 Co. 88 Iowa, 445 535 
 
 v. Chicago, St. P. M. & O. 
 
 R. Co. 2 Inters. Com. 
 
 Rep. 519, 3 L. R. A. 
 
 238, 40 Minn. 267 528 
 
 V. Cincinnati, N. O. & T. P. 
 
 R. Co. 7 L. R. A. 319, 
 
 47 Ohio St. 130.... 571, 
 757, 763, 784 
 
 V. Delaware, L. & W. R. Co. 
 
 48 N. J. L. 55, 57 Am. 
 Rep. .543 ...738, 757 
 
 V. Fremont, E. & M. V. R. 
 
 Co. 22 Neb. 313... 521, 540 
 V. Goss, 59 Vt. 266, 59 Am. 
 
 Rep. 706 10 
 
 V. Harrub (Ala.) 4 Inters. 
 
 Com. Rep. 99, 15 L. R. 
 
 A. 761 508 
 
 v. Hartford & N. H. R. Co. 
 
 29 Conn. 538. 442, 
 
 ..443, 690, 691 
 
 V. Hibernia Underground R. 
 
 Co. 47 N.J. L. 47 689 
 
 V. Indiana & O. Oil G. & 
 
 Min. Co. 2 Inters. Com. 
 
 Rep. 758, 6 L. R. A. 
 
 579, 120 Ind. 575 513 
 
 V. Intoxicating Liquors, 3 
 
 Inters. Com. Rep. 581, 
 
 83 Me. 158 .1003 
 
 v. Kansas Cent. R. Co. 47 
 
 Kan. 497, 49 Am. & 
 
 Eng. R. Cas. 176. 542 
 
 V. Kennedy, 19 La. Ann. 
 
 397 .-'. 481 
 
 V. Lewis, 73 N. C. 138, 21 
 
 Am. Rep. 461 913 
 
 V. Missouri Pac. R. Co. 29 
 
 Neb. 550, 42 Am. & 
 
 Eng. R. Cas. 661 766 
 
 V. Mobile & M. R. Co. 59 
 
 Ala. 321 ...591, 853 
 
 V. Moore, 104 N. C. 714.... 483 
 v. Morris & E. R. Co. 23 N. 
 
 J. L. 360.- 1089 
 
 V. Murfreesboro, 11 Humph. 
 
 217 ...1090 
 
 «. Newton, 2 Inters. Com. 
 
 Rep. 63, 50 N. J. L. 
 
 534 509 
 
 «. Peck, 53 Me. 284 913 
 
 V. Peiisacola & A. R. Co. 27 
 
 Fla. 403, 46 Am. & 
 
 Eng. R. Cas. 704 883
 
 Ixxii 
 
 TABLE OF CASES. 
 
 Btate V. Richmond & D. R. Co. 
 72 N. C. 634. 73 N. C. 
 527, 21 Am. Kep. 478.. 441 
 V. Rogers, 22 Or. 348.-539, 645 
 V. Suffolk & C. R. Co. 100 
 
 N. C. 158 80 
 
 V. Vanderbilt, 37 Ohio St. 
 
 590 441, 443, 691 
 
 «>, Woodruff Sleeping & Par- 
 lor Coach Co. 1 Inters. 
 Com. Rep. 798, 104 Ind. 
 
 155 512, 522 
 
 Steel V. State Line SS. Co. L. R. 3 
 
 App. Cas. 72 191 
 
 Steele v. McTyer, 31 Ala. 667, 70 
 
 Am. Dec. 516 3 
 
 «. Thacher, 1 Ware, 93... .1048 
 V. Townsend, 37 Ala. 247, 
 
 79 Am Dec. 49. 43 
 
 Steers v. Liverpool, N. Y. & P. SS. 
 Co. 42 N. Y. 1, 15 Am. 
 
 Rep. 453 202. 203, 215 
 
 Steinman v. Angier Line [1891] 1 
 
 Q. B. 619 151 
 
 Steinweg v. Erie R. Co. 43 N. Y. 
 123, 3 Am. Rep. 673... 
 
 18, 19, 96, 151, 185 
 
 Stephens v. Elwall, 4 Maule & S. 
 
 259 908 
 
 Stephenson v. Hart, 4 Bine:. 476.. 
 
 .89^2. 966. 1004 
 
 Sterling, The, v. Petersen, 106 U. 
 
 S. 647, 27 L. ed. 98.... 357 
 Sternberger v. Cape Ftar & Y. V. 
 R. Co. 2 Inters. Com. 
 Rep. 426, 2 L. R. A. 
 
 105, 29 S. C. 510 528 
 
 Stevens v. Boston & M. R. Co. 1 
 
 Gray, 277 187 
 
 V. Boston & W. R. Corp. 8 
 
 Gray, 262.. 859, 861 
 
 «. NavigazioneGeneraleltal- 
 iana, 39 Fed. Rep. 562. 
 
 168, 333 
 
 Stewart v. Erie & W. Transp. Co. 
 
 17 Minn. 372 461, 473 
 
 V. Lehigh Valley R. Co. 38 
 
 N. J. L. 505.. 571, 749. 750 
 t>. Merchants Dispatch 
 Transp. Co. 47 Iowa, 
 229, 29 Am. Rep. 476 
 
 .7, 315 
 
 Stickney v. Munroe, 44 Me. 197.. 908 
 Stiles V. Davis, 66 U. S. 1 Black. 
 
 101, 17 L. ed. 33. ..927. 931 
 V. Howlaud, 32 N. Y. 309.. 926 
 
 Stimson v. Helps, 9 Colo. 33 100 
 
 V. Jackson, 58 N. H. 138... 914 
 
 Stockton V. Baltimore & N. Y. R. 
 
 Co. 1 Inters. Com. Rep. 
 
 411, 32 Fed. Rep. 9.... 491 
 Stockton V. Frey, 4 Gill, 407, 45 
 
 Am. Dec. 138 11 
 
 Stockton & D. R. Co. v. Barrett, 
 
 11 Clark &F. 590 591 
 
 Stoddard v. Long Island R. Co. 5 
 
 Sandf. 180 45 
 
 Stoer «. Crowley, McClel. & Y. 
 
 129 114 
 
 Stokes V. Saltoustall, 38 U. S. 13 
 
 Pet. 181, 10 L. ed. 115.1028 
 Stollenwerck v. Thatcher, 115 
 
 Mass. 224 108, 110, 112 
 
 Stone V. Detroit, G. H. & M. R. 
 
 Co. 3 Inters. Com. Rep. 
 
 60 ..707, 726 
 
 V. Farmers Loan & T. Co. 
 
 ("Railroad Commission 
 
 Cases") 116 U. S. 307, 
 
 29 L. ed. 636 
 
 500, 510, 518-521, 542 
 
 Storrs V. Pensacola & A. R. Co. 
 
 29 Fla. 617 ...542, 597 
 
 Stoutenburgh v. Hennick, 129 U. 
 
 S. 141, 32 L. ed. 637... 1070 
 Straker v. Hartland, 2 Hem. & jVI. 
 
 570 857 
 
 Strick V. Swansea Canal Co. 16 C. 
 
 B. N. S. 245.. 613, 758, 785- 
 Strieker «. Leathers. 13 L. R. A. 
 
 600. 68 Miss. 803 966 
 
 Strickland v. Barrett, 20 Pick. 415 
 
 910, 911, 914 
 
 Strohn v. Detroit & M. R. Co. 21 
 
 Wis. 554, 94 Am. Dec. 
 
 564 129, 133, 339 
 
 Strong V. A Certain Quantity of 
 
 Wheat, 70 U. S. 3 Wall. 
 
 225, 18 L. ed. 194 389 
 
 V. Natally, 4 Bos. & P. 16.. 939 
 Strouss V. Wabash, St. L. & P. R, 
 
 Co. 17 Fed. Rep. 209.. 172 
 Stump V. Hutchinson, 11 Pa. 533. 96 
 Sturges V. Crowniushield, 17 U. S. 
 
 4 Wheat. 192, 196, 4 L. 
 
 ed. 547 489, 496 
 
 Suffolk, The, 31 Fed. Rep. 835... 268 
 Sullivan v. Jernigan, 21 Fla. 264 
 
 ...117, 965 
 
 Sultana, The, v. Chapman, 5 Wis. 
 
 454 ..941, 944, 966 
 
 Summer v. Hamlet, 12 Pick. 76.. 109 
 Sumner v. Walker, 30 Fed. Rep. 
 
 261 - 331 
 
 Susquehanna &; B. Turn p. R. Co. 
 
 c. People, 15 Wend. 267.108&
 
 TABLE OF CASES. 
 
 Ixxiii 
 
 Susquehanna Fertilizer Co. v. 
 
 White, 66 Md. 444, 59 
 
 Am. Rep. 186 117-119 
 
 Sutherland v. Second Nat. Bank 
 
 of Peoria, 78 Ky. 250.. 889 
 Sutton V. Cieri, L. R. 15 App. Cas. 
 
 144 -..- -- 96 
 
 Swain v. Shepherd, 1 Mood, tfc R. 
 
 224 1004 
 
 Swainston (•. Garrick. 2 L. J. Exch. 
 
 N. S. 355 301 
 
 Swann v. Swann, 21 Fed. Rep. 
 
 299 460 
 
 Sweatt V. Bo-'ton, H. & E. R. Co. 
 
 5 Xat. Bankr. Reg. 243 13 
 Sweeney /'. Thompson, 39 Fed. 
 
 Rep. 121-. 23 
 
 Sweet V. Barney, 23 N. Y. 335,- 
 
 Ill, 1007 
 
 Swetland v. Boston & A. R. Corp. 
 
 102 Mass. 276.. 176, 327, 337 
 Swift V. Browneli, 1 Holmes, 467. 363 
 V. Pacific Mail SS. Co. 106 
 
 N. Y. 206 134, 
 
 135, 395, 411, 412, 1006 
 
 V. Philadelphia & R. R. Co. 
 
 58 Fed. Rep. 858. -.509, 574 
 V. Tyson, 41 U. S. 16 Pet. 1, 
 
 10 L. ed. 865 -.. 895 
 
 Swindler v. Hilliard, 2 Rich. L. 
 
 286, 45 Am. Dec. 732.35, 43 
 Switzer v. Pinconning Mfg. Co. 
 
 59 Mich. 488 338 
 
 Sword V. Young, 89 Tenn. 126 
 
 ..915. 916 
 
 Symonds r. Pain, 6 Hurlst. & N. 
 
 709. 4 
 
 Syracuse, The, v. Laneley, 79 U. 
 
 S. 12 Wall." 167. 20 L. 
 
 ed. 382 348 
 
 T. 
 
 Taff Vale R. Co. v. Giles, 23 L. J, 
 
 Q. B. 43.- .- 239 
 
 Tainter v. Clark, 5 Allen, 66 472 
 
 Talbot V. Janson, 3 U. S. 3 Dall. 
 
 133, 1 L. ed. 540 359 
 
 Merchants Despatch 
 
 Transp. Co. 41 Iowa, 
 
 247, 20 Am. Rep. 589.. 
 
 893, 894 
 
 V. Wakeman, 19 How. Pr. 
 
 36.. 871 
 
 Tallis V. Tallis, 1 El. & Bl. 391.463, 473 
 
 Tally V. Ayres, 3 Sneed, 677 87 
 
 Tan Bark Case, The, 1 Brown, 
 
 Adm. 154 95 
 
 Tanco v. Booth, 39 N. Y. S. R. 82. 87a 
 Tangier, The, 32 Fed. Rep. 230.. 855 
 Tappan v. Albany Brewing Co. 
 
 (Cal.)5L.R. A. 428... 101 
 Tarbell v. Royal Exch. Shipping 
 
 Co." HON. Y. 170 945 
 
 Tarbox v. Eastern S. B. Co. 50 
 
 Me. 339 -.1028 
 
 Tariffs of Columbus &W.R. Co. Be, 
 
 2 Inters. Com. Rep. 11. 575 
 Tariffs of the Transcontinental 
 Lines, Be, 2 Inters. 
 
 Com. Rep. 203 
 
 598, 715, 727, 732, 733, 881 
 Tate V. Hvslop. L. R. 15 Q. B. 
 
 biv. 368. ...1011,1013 
 
 V. Meek, 8 Taunt. 280 846 
 
 Tattersall v. National SS. Co. L. 
 
 R. 12 Q. B. Div. 297.. 256 
 
 Taylor t). Ely. 25 Conn. 258 1035 
 
 V. Great Northern R. Co. 
 
 L. R. IC. P. 385... 320, 321 
 V. Little Rock, M. R. & T. 
 
 R. Co. 39 Ark. 148.... 403 
 V. Liverpool & G. W. Steam 
 
 Co. L. R. 2Q. B. 546.. 127 
 Taylor, B. & H. R. Co. v. Mont- 
 gomery (Tex. App.) 
 
 April 29, 1891... 
 
 219, 242, 245, 1035 
 
 V. Sublett (Tex. App.) April 
 
 29, 1891 219, 242, 1035 
 
 Tebo V. Jordan, 67 Hun, 392 354 
 
 Tecumseh Celery Co. v. Cincinnati, 
 J. & M. R. Co. 4 Inters. 
 
 Com. Rep. 318 525, 561 
 
 Telegraph, The, v. Gordon 
 ("Vaughan & Tele- 
 graph, The") 81 U. 
 S. 14 Wall. 258, 20 L. 
 
 ed.807 257, 1007, 1034 
 
 Terre Haute & I. R. Co. v. Sher- 
 wood, 17 L. R. A. 339, 
 
 132 Ind. 129 51 
 
 V. Struble, 109 U. S. 381, 27 
 
 L. ed. 970.. 260 
 
 Terry, Ex parte, 128 U. S. 289, 32 
 
 L.ed.405 1088 
 
 Teutonia, The, L. R. 3 Adm. 394. 873 
 Texas & P. R. Co. v. Clark, 4 Tex. 
 
 Civ. App. 611 766 
 
 v. Cuteman(Tex. App.) Oct. 
 
 16. 1889 104 
 
 V. Klepper (Tex. Civ. App.) 
 
 Dec. 20, 1893 274 
 
 V. Kuteraan, 54 Fed. Rep. 
 547, 79 Tex. 465, dis- 
 tinguished 655, 656, 1045
 
 Ixxiv 
 
 TABLE OF CASES. 
 
 Texas «. Southern Pac. R. Co. 41 
 
 La. Ann. 970, 137 U. 
 
 S. 48, 34 L. ed. 614 
 
 .- 689, 694 
 
 c. Wood (Tex. Civ. App.) 
 
 Nov. 1, 1893 922 
 
 Thames, The, 5 C.Rob.Adm. 308- -1045 
 V. Seaman, 81 U. S. 14 
 
 Wall. 98, 20 L. ed. 804, 
 
 7 Blatchf. 226, 3 Ben. 
 
 279. --.95, 102,109, 897,907 
 Tharsis Sulphur & C. Co. v. Morel 
 
 Bros. & Co. [1891] 2 Q. 
 
 B. G47_-.- 869 
 
 Thatcher v. Fitchburg & A. R. Co. 
 
 llnters. Com. Rep. 22-. 648 
 V. Fitchburg R. Co. 1 Inters. 
 
 Com. Rep. 356 533, 648 
 
 Thayer v. St. Louis, A. & T. H. 
 
 R. Co. 22 Ind. 26, 85 
 
 Am. Dec. 409 185 
 
 Theatrical Rates, Re, 1 Inters. 
 
 Com. Rep. 18- --. 533 
 
 Thingvalla,The,48Fed.Rep.764.. 352 
 Thomas v. Boston & P. R. Corp. 
 
 10 Met. 472, 43 Am. 
 
 Dec. 444 31. 35, 42, 891 
 
 V. Day, 4 Esp. 262. 84 
 
 V. Lane, 2 Sumn. 9 1048 
 
 V. Winchester, 6 N. Y. 397, 
 
 57 Am, Dec. 455 87 
 
 Thomas Melville, The, 31 Fed. 
 
 Rep. 486 1049 
 
 Thommessen v. Whitwell, 118 U. 
 
 S. 523. 30 L. ed. 156-.. 
 
 -- 60, 61, 1041 
 
 Thompson v. Chicago & A. R. Co. 
 
 22 Mo. App. 321 230 
 
 V. Dominv, 14 Mees. & W. 
 
 403--" 110, 1006 
 
 «. Stewart, 3 Conn. 172, 8 
 
 Am. Dec. 168 -108, 394 
 
 Thornley, The, 7 Jur. 659 349 
 
 Thouron v. East Tennessee, V. & 
 
 G. R. Co. 90 Tenn. 609, 
 
 5Ry.&Corp. L. J. 77-. 
 
 443, 691 
 
 Thrift V. Youle, L. R. 2 C. P. 
 
 Div. 434--- 157 
 
 Thurber v. New York Cent. & H. 
 
 R. R. Co. 2 Inters. 
 
 Com. Rep. 742 
 
 -548, 551,754, 785 
 
 Thurman v. Wells, Fargo & Co. 
 
 18 Barb. 500- 35 
 
 Tichburne v. White, 1 Strange, 
 
 145 213 
 
 Tiedeman v. Knox, 53 Md. 613..- 110 
 
 Tierney v. New York Cent. & H. 
 
 R. R. Co. 76 N. Y. 305, 
 
 10 Hun, 569 325 
 
 Tigress, The, Brown & L. 38 102 
 
 Tiiden v. Minor, 45 Vt. 196 107 
 
 Tilton, The, 5 Mason. 476 867 
 
 Timor,The, 46 Fed. Rep. 859.-149. 167 
 Tindal v. Taylor, 4 El. & Bl. 219- . 896 
 Tippecanoe County Comrs. v. 
 
 Lafayette, M. & B. R. 
 
 Co. 50 Ind. 85 443, 691 
 
 Tisloe«. Graeter, 1 Blatchf. 353-. 97 
 Tison V. Howard, 57 Ga. 410.. 108-110 
 Toledo, A. A. & N. M. R. Co. v. 
 
 Pennsylvania Co. 19 L. 
 
 R. A. 395, 54 Fed. Rep. 
 
 746 423 
 
 Toledo, F. & M. Ins. Co. «. Speares, 
 
 16 Ind, 52 299 
 
 Toledo, P. & W. R. Co. v. Merri- 
 
 man, 52 111. 123, 4 Am. 
 
 Rep. 590- 397 
 
 Toledo Produce Exch. v. Lake 
 Shore & M. S. R. Co. 3 
 
 Inters. Com. Rep. 830- . 
 
 598, 687, 720 
 
 Toledo, W. & W. R. Co. v. Beggs, 
 
 85 111. 80, 28 Am. Rep. 
 
 613 53, 1012 
 
 V. Elliott, 76 111. 67 749 
 
 V. Hamilton, 76 111. 393 
 
 .239, 240, 254 
 
 «. Hammond, 33 Ind. 379, 5 
 
 Am. Rep. 221 890 
 
 V. Lockhart, 71 111. 627 75 
 
 V. Roberts, 71 111. 540.. 851, 852 
 V. Thompson, 71 111. 434... 
 
 239,240, 247 
 
 Tomlinson ®. London & N. W. R. 
 
 Co. 8 Ry. & Corp. L. 
 
 J. 328- .... 687 
 
 Tonawanda Valley & C. R. Co. v. 
 
 New York. L. E. & W. 
 
 R.Co. 42 Hun, 496.-441,694 
 Torgorm, The, 48 Fed. Rep. 584.. 394 
 Toulmin v. Anderson, 1 Taunt. 227, 182 
 Tozer v. United States, 4 Inters. 
 
 Com. Rep. 245, 52 Fed. 
 
 Rep. 917- 783 
 
 Tracey v. Good, 1 Pa. L. J. 472.. 909 
 Tracy v. Talmage, 14 N. Y. 162, 
 
 67 Am. Dec. 132 703 
 
 Trade Mark Cases, 100 U. S. 82. 25 
 
 L. ed. 550.... 495 
 
 Traders & T. Union v. Philadel- 
 phia & R. R. Co. 1 
 
 Inters. Com. Rep. 371. 
 
 533, 534
 
 TABLE OF CASES. 
 
 Ixxv 
 
 Train v. Boston Disinfecting Co. 
 
 144 Mass. 523, 59 Am. 
 
 Kep. 113 484 
 
 Trammell v. Clyde SS. Co. 4 Inters. 
 
 Com. Rep. 120.534, 535, 
 
 608, 612, 615, 619, 621, 
 
 623, 637, 651, 653, 681, 683 
 Transportation Cases, Whart. 
 
 Prec. No. 658 434 
 
 Trask r. Duvall, 4 Wash. C. C. 181 846 
 Travis v. Thompson, 37 Barb. 236 859 
 Trent & M. Nav. Co. v. Wood, 4 
 
 Dougl. 287, 3 Esp. 127. 
 
 13, 14, 16, 35, 151, 159, 177 
 Trinacria, The, 42 Fed. Rep. 863. 168 
 Tronson v. Dent, 36 Eng. L. & Eq. 
 
 41 333 
 
 Trowbridge v. Chapin, 23 Conn. 
 
 595... 78 
 
 Troy & B. R. Co. v. Boston, H. T. 
 
 & W. R. Co. 86 N. Y. 
 
 107 440 
 
 Troy Board of Trade v. Alabama 
 
 Midland R. Co. 4 Inters. 
 
 Com. Rep. 348 387 
 
 Truax v. Philadelphia, W. & B. R. 
 
 Co. 3 Houst. (Del.) 233 310 
 
 Tufts V. Sylvester. 72 Me. 213 926 
 
 Turner v. Black Warrior, The, 1 
 
 McAll. 181 95 
 
 V. Maryland, 107 U. S. 38, 
 
 27 L. ed. 370.. 486, 496, 510 
 ©. Protection Ins. Co. 25 
 
 Me. 515, 43 Am. Dec. 
 
 294 165 
 
 V. St. Louis' &"s.'f.'r.' Co'. 
 
 20 Mo. App. 632.94, 96, 403 
 Turney v. Wilson, 7 Yerg. 340, 27 
 
 Am. Dec. 515 _ 
 
 11, 13, 36, 1028, 1030 
 
 Tuttlei). Becker, 47 Iowa, 486... 902 
 Twenty-one Friends, The, 33 Fed. 
 
 Rep. 190 163 
 
 Tybee, The, 1 Woods, 358 
 
 938, 940, 964 
 
 Tygert Co. ■». Charles P. Sinnick- 
 
 son, The, 24 Fed. Rep. 
 
 804 187, 1027 
 
 U. 
 
 Udell V. Illinois Cent. R. Co. 13 
 
 Mo. App. 254 19 
 
 Umbria, The, 46 Fed. Rep. 927.. 1037 
 Underbiliing, Be, 1 Inters. Com. 
 
 Rep. 813 783 
 
 Union Bridge Co. v. TrOy & L. R. 
 
 Co. 7 Lan.s. 240 439 
 
 Union Exp. Co. v. Graham, 26 
 
 Ohio St. 595. -.75, 197, 1030 
 Union Locomotive & Exp. Co. v. 
 
 Erie R. Co. 37 N. J. L. 
 
 23. 757,770 
 
 Union Mut. Ins. Co. v. Indianapo- 
 lis & C. R. Co. 1 Disney, 
 
 480.. 131, 185, 189 
 
 Union Pac. R. Co. v. Chicago, R. 
 
 I. & P. R. Co. 10 U.S. 
 
 App. 98, 51 Fed. Rep. 
 
 309 479 
 
 V. Gondridge, 149 U. S. 680, 
 
 37 L. ed. 896.. 760, 767, 874 
 
 V. Marston, 30 Neb. 241 135 
 
 v. Moyer, 40 Kan. 184 914 
 
 V. Myers ("Pac. R. Removal 
 
 Cases") 115 U. S. 1, 39 
 
 L. ed. 319 488 
 
 V. Rainey, 19 Colo. 225.. 53, 333 
 V. United States ("Sinking 
 
 Fund Cases") 99 U. S. 
 
 700, 25 L. ed. 496.755, 1073 
 V. United States, 117 U. S. 
 
 355, 39 L. ed. 930 749 
 
 Union R. & Transp. Co. v. Riegel, 
 
 73 Pa. 72 906 
 
 V. Yeager, 34 Ind. 1 109 
 
 United Ins. Co. v. Robinson, 3 Cat. 
 
 280 26 
 
 V. Scott, 1 Johns. 106 26 
 
 United States v. Armstrong, 3 
 
 Curt. 446 458 
 
 V. Baltimore & O. R. Co. 7 
 
 Am. L. Reg. N. S. 757.1090 
 V. Bradley, 35 U. S. 10 Pet. 
 
 343.9 L. ed. 448 963 
 
 V. Cleveland, C. & S. R. Co. 
 
 3 Inters. Com. Rep. 290.1090 
 «. Combs, 37 U. S. 13 Pet. 
 
 72, 9 L. ed. 1004 486 
 
 V. Coppersmith, 4 Fed. Rep. 
 
 198 458 
 
 V. Davis, 2 Sumn. 482, 3 
 
 Hale, P. C. 17 1048 
 
 V. Delaware Ins. Co. 4 Wash. 
 
 C. C. 432 109 
 
 V. De Witt, 76 U. S. 9 Wall. 
 
 41, 19 L. ed. 593 495 
 
 ®. Eagan. 3 Inters. Com. 
 
 Rep. 583, 47 Fed. Rep. 
 
 112 1093 
 
 V. Ferreira, 54 U. S. 13 How. 
 
 40, 14 L. ed. 42 ..1080 
 
 V. Hodsou, 77 U. S. 10 Wall. 
 
 395, 19 L. ed. 937 963
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 United States v. Hudson, 11 U. S. 7 
 
 Cranch,32, 3L. ed. 259.1088 
 
 V. Jellico Mountain Coal & 
 C. Co. 12 L. R. A. 753, 
 46 Fed. Rep. 432 461 
 
 e. The Juniata ("The Juni- 
 ata") 93 U. S. 337, 23 
 L. ed. 930 1023 
 
 V. Knicht, 3 Inters. Com. 
 
 mp.801 .-1092 
 
 V. Mairill,l Wash. C. C. 463-1048 
 
 V. Marigold, 50 U. S. 9 How. 
 
 5G0, 13 L. ed. 257 481 
 
 V. Mellen, 4 Inters. Com. 
 Rep. 247, 53 Fed. Rep. 
 229 655, 1092, 1093 
 
 ■v. Michigan Cent. R. Co. 3 
 Inters. Com. Rep. 287, 
 
 43 Fed. Rep. 26 
 
 720, 782. 1090 
 
 V. Montello, The, 78 U. S. 11 
 Wall. 411, 20 L.ed. 191, 
 87 U. S. 20 Wall. 430, 
 22 L. ed. 391 494 
 
 «. Morsman, 3 Inters. Com. 
 Rep. 112, 42 Fed. Rep. 
 448 1092 
 
 V. New Bedford Bridge, 1 
 
 Woodb. & M. 421 486 
 
 Nuestra Senora de Regla, 
 The, 108 U. S. 92, 27 
 L. ed. 662- 359 
 
 V. Railroad Bridge Co. 6 
 
 McLean, 517 _ 490 
 
 V. Saul, 58 Fed. Rep. 763.. 86 
 
 V. Tiiigey, 30 U. S. 5 Pet. 
 
 115, 8L. ed. 66 962 
 
 V. Tudd, 54 U. S. 13 How. 
 
 52, 14 L. ed. 47 1080 
 
 V. Tozer, 2 Inters. Com. 
 Rep. 422, 2 L. R. A. 
 444, 37 Fed. Rep. 635. 
 688, 1090 
 
 V. Tozer, 2 Inters. Com. 
 Rep. 597, 39 Fed. Rep. 
 904, aff'g 2 Inters. Com. 
 
 Rep. 540 -425, 
 
 599. 601, 086, 719, 753, 774 
 
 V. Trans-Missouri Freight 
 Asso. 53 Fed. Rep. 440 443 
 
 V. Trans-Missouri Freight 
 Asso. 24 L. R. A. 73, 58 
 Fed. Rep. 58.-436, 443, 480 
 
 V. Winchester, 99 U. S. 372, 
 
 25 L. ed. 479--- 1048 
 
 «. Workingmen's Amalga- 
 mated Council, 54 Fed. 
 Rep. 994 463 
 
 United States Exp. Co. v. Back- 
 man, 28 Ohio St. 144.- 
 
 ..7, 213, 1030 
 
 V. Harris, 51 Ind. 127 275 
 
 «. Keefer, 59 Ind. 268.. 115, 116 
 V. Kountze, 75 U. S. 8 Wall. 
 
 342, 19 L. ed. 457 
 
 ..9, 121, 175, 315 
 
 1). Lucas, 36 Ind. ;^6l 703- 
 
 V. Root, 47 Mich. 231 7 
 
 Upshare v. Aidee, 1 Comyns, 25, 
 
 Bull. N. P. 70 3 
 
 Upton V. Tribilcock, 91 U. S. 50, 
 
 23 L. ed. 205.. 879 
 
 Utopia, The, v. Primula, The 
 
 [1893] App. Cas. 492. , 356 
 
 V. 
 
 Vanatta v. State Bank, 9 Ohio St. 
 
 27 703 
 
 Van Brocklin v. Anderson, 117 U. 
 
 S. 151, 29 L. ed. 845... 489 
 Van Buskirk v. Purinton, 2 Hall, 
 
 561 859 
 
 V. Roberts, 31 N. Y. 661.21, 366 
 Vandewaler v. Mills, 60 U. S. 19 
 
 How. 82, 15 L. ed. 554. 
 
 ....95, 868 
 
 Van Etten v. Newton, 134 N. Y. 
 
 143 970> 
 
 Van Natta «. Mutual Security Ins. 
 
 Co. 2 Sandf. 490 13 
 
 Van Norden «. Robinson, 45 Hun, 
 
 567 348 
 
 Van Nostrand v. Carr, 30 Md. 128, 
 
 2 Nat. Bankr. Reg. 155 489 
 Van Santvoord v. St. John, 6 Hill, 
 
 157 383,964 
 
 Van Schaack v. Northern Transp. 
 
 Co. 3 Biss. 394 45, 128 
 
 Van Tell v. Southeastern R. Co. 13 
 
 C. B. N. S. 75 222 
 
 Van Valkenburg v. Rouk, 12 
 
 Johns. 337 100 
 
 Van Winkle v. Adams Exp. Co, 3 
 
 Robt. 59--. 213 
 
 V. South Carolina R. Co. 38 
 
 Ga. 32.- 1028 
 
 V. United States Mail SS. Co. 
 
 37 Barb. 122 934 
 
 Varble v. Bigley, 14 Bush. 698, 29 
 
 Am. Rep. 435 4 
 
 Vass«. Riddick, 89 N. C. 6 913 
 
 Vaughns. Providence &W. R. Co. 
 
 13 R. L 578 862, 863
 
 TABLE OF CASES. 
 
 Ixxvii 
 
 Veazie v. Moor, 55 U. S. 14 How. 
 
 568, 14 L.ed. 545... 482, 494 
 Ventress v. Smith, 35 U. S. 10 Pet, 
 
 1G1,9 L. ed. 382 859 
 
 Venus, The, 12 U. S. 8 Cranch, 
 
 253, 3L. ed. 553 1004 
 
 Vernard v. Hudson, 3 Sumn. 406. 302 
 Vertue v. Jewell, 4 Campb. 31. -.1005 
 Vicksburg v. Tobin, 100 U. S. 430, 
 
 25 L. ed. 690 517 
 
 Vicksburg & M. R. Co. v. Rags- 
 dale, 46 Miss. 458 
 
 161, 320- 
 
 321, 322, 327, 1034, 1036,1037 
 Vicksburg Liquor & T. Co. v. 
 
 United States Exp. Co. 
 
 68 Miss. 149 10 
 
 Vidal«. Philadelphia, 43 U. S. 2 
 
 How. 127, 11 L.ed. 205 460 
 Ville De Paris, The, 3 Ben. 277.. 938 
 Vincent v. Chicago & A. R. Co. 49 
 
 111. 33. ...746, 727, 761, 762 
 Viner x. New York, A. G. & VV. 
 
 SS. Co. 50 K Y. 24... 
 
 .273, 909, 915 
 
 Virgil, The, 2 W. Rob. Adm. 205 349 
 Virginia & T. R. Co. v. Sayers, 26 
 
 Gratt. 328 1012 
 
 Virginia Cent. R. Co. v. Sanger, 15 
 
 Gratt. 237 177 
 
 Virginia Ehrmau, The, v. Curtis, 
 
 97 U. S. 309, 24 L. ed. 
 
 890 348 
 
 Vivid, The, 4 Ben. 319 1032 
 
 Vlierboon v. Chapman, 13 Mees. 
 
 & W. 230 866 
 
 Volunteer. The, 1 Sumn. 551 846 
 
 Vorley v. Cooke, 1 Giflf. 230. 100 
 
 Vroman «. American Merchants 
 
 U. Exp. Co. 5 Thomp. 
 
 &C. 22 200 
 
 Vrooman v. Turner, 69 N. Y. 280 958 
 Vrow Henrica, 4 C. Rob. Adm. 343 360 
 
 W. 
 
 Wabasb, St. L. & P. R. Co, ©. 
 
 Black, 11 111. App. 465 42 
 V. Illinois, 118 U. S. 557, 30 
 L. ed. 244, 1 Inters. 
 Com. Rep. 31.484, 500. 
 512, 522, 527, 530, 835, 850 
 o. Jaggerman, 15 111. 407... 
 
 72, 128, 340 
 
 V. Pratt, 15 111. App. 177... 239 
 Wade V. Wheeler, 3 Lans. 201, 47 
 
 N. Y. 658 84 
 
 Wakeman v. Robinson, 1 Bing. 213 161 
 
 Waldo, The, 4 Law. Rep. 382 25 
 
 Waldo, The, 2 Ware, 161.301, 304, 871 
 Waldron v. Romaine, 22 N. Y. 368 889 
 V. Willard, 17 N. Y. 466.. .1008 
 Walker ». Maitbmd, 5 Barn. & 
 
 Aid. 171 1010 
 
 V. New York & -N. M. R. 
 
 Co. 3Car. & K. 279... 41 
 V. Western Transp. Co. 70 
 U. S. 3 Wall. 150, 18 L. 
 
 ed. 172 ...124, 182 
 
 Wallace v. Clayton, 42 Ga. 443.161, 327 
 t?. Long Island R. Co. 12 
 
 Hun, 460.. 440 
 
 V. Matthews, 39 Ga. 617, 99 
 
 Am. Dec. 473.41. 185, 1013 
 
 «. Sanders, 42 Ga. 486 125 
 
 Walley v. Montgomery, 3 East, 
 
 585 1005 
 
 Walling V. Michigan, 116 U. S. 
 
 446, 29 L. ed. 691 
 
 ...485, 487, 850 
 
 Wallingford v. Columbia & G. R. 
 
 Co. 26 S. C. 258... 148, 407 
 Walls v. Bailey, 49 N. Y. 473, 10 
 
 Am. Rep. 407 904 
 
 Walston V. Myers, 50 N. C. 174.. 4 
 
 Walter®. Post, 6 Duer, 363 363 
 
 V. Ross, 2 Wash. (C. C.) 283 109 
 Walters «. Western & A. R. Co. 
 
 56 Fed. Rep. 369 104 
 
 Wanata, The, v. Avery, 95 U. S. 
 
 600, 24 L. ed. 461 59 
 
 Wannell v. Kem, 57 Mo. 478 101 
 
 Ward V. Chamberlain, 62 U. S. 21 
 
 How. 572, 16 L. ed. 219 24 
 v. Marvland, 79 U. S. 12 
 
 Wall. 408, 20 L. ed. 449 482 
 V. New York Cent. R. Co. 
 47 N. Y. 29. 7 Am. Rep. 
 
 405 .939. 1036 
 
 Warden «. Mourillyan, 2 Esp. 693 893 
 Warden v. Greer, 6 Watts, 424... 94 
 Waring ?;. Clarke, 46 U. S. 5 How. 
 
 441, 12 L. ed. 226 1045 
 
 V. Cox, 1 Campb. 369 1005 
 
 V. Morse, 7 Ala. 343 301 
 
 Warner v. New York Cent. & H. 
 R. R. Co. 3 Inters. Com. 
 
 Rep. 74... 552, 558 
 
 9. Western Transp. Co. 5 
 
 Robt. 490 212 
 
 Washington &, G. R. Co. «. Var- 
 nell, 98 U. S. 479, 25 L. 
 
 ed. 233 160 
 
 Wasserberg ■o. Cunard Steamship 
 
 Co. 8 Misc. 78 203
 
 Ixxviii 
 
 TABLE OF CASES. 
 
 Waters v. Merchants Louisville 
 Ins. Co. 36 U. S. 11 
 Pet, 213, 9L. ed. 691.. 
 
 164, 165, 1010 
 
 V. Monarch, L. &F. Ins. Co. 
 
 5 El. &B1. 870.. 1009 
 
 V. Richmond & D. R. Co. 16 
 L. R. A. 834, 110 N. C. 
 
 338 266, 897, 937, 1024 
 
 Watertown Thermometer Co. v. 
 
 Pool, 51 Hun, 157-.459, 465 
 Watkinson v. Wrexham etc. R. 
 
 Co. 3Nev. &McN. 5-. 715 
 Watson V. Arabergate, N. & B. R. 
 
 Co. 3 Eng. L. & Eq. 497 364 
 v. Hoosac Tunnel Line Co. 
 
 13 Mo. App. 263 111 
 
 Watts ». Boston & L. R. Corp. 106 
 
 Mass. 466 84 
 
 Wausau Boom Co. v. Dunbar, 75 
 
 AVis. 153 117 
 
 Wayland v. Mosely, 5 Ala. 480, 39 
 
 Am. Dec. 335.-- 94 
 
 Weatherby, The, 48 Fed. Rep. 
 
 734 : 1035 
 
 Weaver*. Ward, Hob. 134 178 
 
 Webb V. Anderson, Taney, 512... 109 
 Webber v. Great Western R. Co. 
 
 3 Hurlst. &C. 771 364 
 
 Weed V. Saratoga & S. R. Co. 19 
 
 Wend. 534 395 
 
 Weiller v. Pennsylvania R. Co. 134 
 Pa. 310, 43 Am. & Eng. 
 
 R. Cas, 390 200, 1013 
 
 Weinberg v. National SS. Co. 25 
 
 Jones & S. 586.. 56 
 
 Weir V. Adams Exp. Co. 5 Phila. 
 
 355 222. 275 
 
 Welch «. Boston & A. R. Co. 41 
 
 Conn. 333 50 
 
 V. Hicks, 6 Cow. 504, 16 Am. 
 
 Dec. 443. 872, 873 
 
 Wellington, The, 1 Biss. 280 94 
 
 Wellington v. Apthorp, 145 Mass. 
 
 603 69 
 
 Wellmanz). Chicago &G. T. R. Co. 
 
 83 Mich. 592 515 
 
 Wells v. American Exp. Co. 55 
 Wis. 23, 42 Am. Rep. 
 
 695... 8, 927 
 
 V. Armstrong, 29 Fed. Rep. 
 
 216... 350 
 
 ». Maine SS. Co. 4 Cliff. 228 937 
 «. Pillsburg, Ft. W. & C. R. 
 Co. 10 Ohio St. 65, 75 
 
 Am. Dec. 490 42 
 
 ». Steam Nav. Co. 8 N. Y. 
 
 380 .- 53 
 
 Wells ». Thomas, 27 Mo. 17, 72 
 
 Am. Dec. 228 862 
 
 ®. Wilmington & W. R. Co. 
 51 N. C. 47, 72 Am. 
 
 Dec. 556 80 
 
 Wells City, The, 57 Fed. Rep. 
 
 "317 328 
 
 Wells, Fargo & Co. v. Fuller, 4 
 
 Tex. Civ. App. 213 313 
 
 V. Oregon. R. & Nav. Co. 32 
 
 Fed. Rep. 51 898 
 
 Welsh V. Pittsburg, Ft. W. & C. 
 R. Co. 10 Ohio St. 65, 
 
 75 Am. Dec. 490 
 
 16, 18,43,53, 231 
 
 Welton «. Missouri, 91 U. S. 275, 
 
 23 L. cd. 347-. 
 
 ...83,482, 484, 485 
 
 Wencke v. Vaughan, 60 Fed. Rep. 
 
 448-. 21 
 
 Wernwag v. Philadelphia, W. & 
 B. R. Co. 117 Pa. 46.-.- 
 
 .908, 914. 926 
 
 Wertheimer v. Pennsylvania R. 
 Co. 17 Blatchf. 421, 1 
 
 Fed. Rep. 232 129. 189 
 
 Westcott V. Fargo, 63 Barb. 349, 6 
 Lans. 319, aff'd 61 N.Y. 
 542, 19 Am. Rep. 300 
 96, 147, 188, 200, 201, 1029 
 Western & A. R. Co. v. Exposition 
 Cotton Mills. 2 L. R. A. 
 
 102, 81 Ga. 522 
 
 73, 148, 306, 340, 405 
 
 «. McElwee 6 Heisk. 208.. 399 
 Western R. Co. v. Harwell, 91 Ala. 
 
 340.. 188, 221, 283, 296, 405 
 V. Harwell, 97 Ala. 341-... 255 
 
 i\ Little, 86 Ala. 159 227 
 
 Western Transp. Co. ■». Barber, 56 
 
 N. Y. 544 865, 927 
 
 ■0. Downer, 78 U. S. 11 Wall. 
 129, 20L. ed. 160..171, 
 175, 179,188,1028, 1030-1032 
 «. Hawley, 1 Daly, 327.-938,940 
 V. Hoyt, 69 N. Y. 230, 25 
 
 Am. Rep. 175 873 
 
 «. Newhall, 24 111. 466, 76 
 
 Am. Dec. 760... 197 
 
 Western U. Teleg. Co. «. American 
 U, Teleg. Co. 65 Ga. 
 160, 38 Am. Rep. 781.. 
 
 462. 465, 466 
 
 «. New York, 2 Inters. Com. 
 
 533, 38 Fed. Rep. 552 _. 538 
 «. Pendleton, 122 U. S. 347, 
 30 L. ed. 1187, 1 Inters. 
 Com. Rep. 206.484, 512, 522
 
 TABLE OF CASES. 
 
 Ixxix 
 
 Western U. Teleg. Co. t. Texas, 
 105 U. S. 460, 26 L. ed. 
 1067 - --- 487 
 
 C. Union Pac. R. Co. 1 Mc- 
 
 Crary, 558, 3 Fed. Rep. 
 
 423 - 703 
 
 "Weston V. Grand Trunk R. Co. 54 
 
 Me. 370, 92 Am. Dec. 
 
 552 ..1036 
 
 V. Minot. 3 Woodb. & M. 
 
 442 846 
 
 Westray v. Miletus, 2 Int. Rev. 
 
 Rec. 61 168 
 
 West Virginia Transp. Co. ■». Ohio 
 
 River Pipe Line Co. 22 
 
 W. Va. 600 465, 466, 688 
 
 Wetzell V. Chicago & A. R. Co. 12 
 
 Mo. App. 599 19 
 
 V. Dinsmore, 54 N. Y. 496. 218 
 Weyandt). Atchison, T. & S. F. 
 
 R. Co. 1 L. R. A. 650, 
 
 75 Iowa, 573 900, 904 
 
 Wheeler v. Kew Brun.swick & C. 
 
 R. Co. 115 U. S. 29, 29 
 
 L. ed. 341 134 
 
 «. Oceanic Steam Nav. Co. 
 
 125 N. Y. 155, Rev'g52 
 
 Hun. 75. 15, 1040 
 
 V. San Francisco & A. R. 
 
 Co. 31 Cal. 46, 89 Am. 
 
 Dec. 147 - 757 
 
 Wheelwright v. Depeyster, 1 
 
 Johns. 480 859 
 
 Whitaker v. Howe, 3 Beav. 383.. 
 
 459,464 
 
 Whitcomb's Case, 120 Mass. 118, 
 
 21 Am. Rep. 502 1084 
 
 White V. Ash ton, 51 N.Y. 280.... 
 
 97, 316, 393 
 
 V. Cincinnati, N. O. & T. P. 
 
 R. Co. 7 L. R. A. 44, 89 
 
 Ky. 478 297 
 
 V. Franklin Bank, 22 Pick. 
 
 181.. 703 
 
 V. Mary Ann, The, 6 Cal. 
 
 462, 65 Am. Dec. 523.. 4 
 V. Michigan Cent. R. Co. 2 
 
 Inters. Com. Rep. 641. 532 
 
 D. Missouri Pac. R. Co. 19 
 
 Mo. App. 400.. 96, 339, 400 
 
 t, Webb, 15 Conn. 305 361 
 
 V. "Winnisimmet Co. 7 Cush. 
 
 155... 81 
 
 Whitesides v. Russell, 8 Watts & 
 
 S. 44 .1028 
 
 V. Thurlkill, 12 Smedes & 
 
 M. 599, 51 Am. Dec. 
 
 128 156 
 
 Whitmore v. Caroline, The, 20 Mo. 
 
 513 2 
 
 Whitney v. Beckford, 105 Mass. 
 
 267 862 
 
 V. Merchants U. Exp. Co. 
 
 104 Mass. 152, 6 Am. 
 
 Rep. 207. 32 
 
 V. Peay, 24 Ark. 22 703 
 
 Whitney Mfg. Co. v. Richmond & 
 
 D. R. Co. 38 S. C. 365 183 
 Whitworth v. Erie R. Co. 13 .Tones 
 
 & S. 602, aff'd 87 N. Y. 
 
 414 389,403, 404, 1030 
 
 Wibert v. New York & E. R. Co. 
 
 12 N. Y. 245... 
 
 ..75, 262, 320, 321, 322, 325 
 Wichita & W. R. Co. v. Koch, 47 
 
 Kan. 753 277, 278 
 
 "Wichita Sav. Bank v. Atchison, T. 
 
 & S. F. R. Co. 20 Kan. 
 
 519 143 
 
 Wickens v. Evans, 3 Younge & J. 
 
 318 - .- 464 
 
 Wiggins V. Erie R. Co. 5 Hun, 185 137 
 Wiggins Ferry Co. v. Chicago & 
 
 A. R. Co. 73 Mo. 389, 
 
 39 Am. Dec. 519, 5 Mo. 
 
 App. 347 433, 465. 467 
 
 V. East St. Louis, 107 U. S. 
 
 365, 27 L. ed. 419 504 
 
 Wilby V. West Cornwall R. Co. 3 
 
 Hurlst. &N. 703, 707.. 
 
 364, 399 
 
 Wilcox V. Chicago, M. & St. P. R. 
 
 Co. 24 Minn. 269 401 
 
 Wilde V. Merchants Dispatch 
 
 Transp. Co, 47 Iowa, 
 
 247, 29 Am. Reo. 479-. 7 
 Wilhelm, The, 52 Fed. Rep. 602.. 355 
 
 Wilhelmina, The, 3 Ben. 110 1032 
 
 Wilkerson v. Rahrer, 140 U. S. 
 
 545, 35 L. ed. 572 485 
 
 Wilkinson v. King, 2 Campb. 335 
 
 108, 393 
 
 Willamette Iron Bridge Co. v. 
 
 Hatch, 125 U. S. 1, 31 
 
 L. ed. 629_ 492 
 
 Willard v. Wood, 135 U. S. 309, 
 
 34 L. ed. 210. 957 
 
 Wm. Marshall, The, 29 Fed. Rep. 
 
 328 -- 969 
 
 Williams «. Branson, 5 N. C. 417, 
 
 4 Am. Dec. 562 94, 165 
 
 V. East India Co. 3 East, 
 
 192 89 
 
 V. Grant, 1 Conn. 487, 7 Am. 
 
 Dec. 235. .11, IfiO, 104, 
 
 170, 177, 178, 185, 333, 946
 
 Ixxx 
 
 TABLE OF CASES. 
 
 Williams v. Holland, 22 How. Pr. 
 
 137 - 966 
 
 V. Tilt, 36 K Y. 319. -1005 
 
 V. Vermont Mut. Ins. Co. 20 
 
 Vt. 223... 220 
 
 V. Wilmington & W. R. Co. 
 
 93 N. C. 42 141 
 
 Williamson v. Barrett, 54 U. S. 13 
 
 How. 101, 14 L. ed. 68 358 
 Willis V. City of Austin, The, 2 
 
 Fed. Eep. 412..... 967 
 
 Wilmington & W. R. Co. v. Kit- 
 chin, 91 N. C. 39 913 
 
 Wilmshurst v. Bowker, 5 Bing. N. 
 
 C. 541, 7 Scott, 561, 2 
 
 Man. & G. 792 1003 
 
 Wilson V. Adams Exp. Co. 27 Mo. 
 
 App. 360.... 915, 916 
 
 V. Adams Exp. Co. 43 Mo. 
 
 App, 659 273 
 
 v. ^tua Ins. Co. 27 Vt. 99. 
 
 220, 222 
 
 V. Anderton, 1 Barn. & Aid. 
 
 450 928 
 
 v. Atlanta & C. R. Co. 82 
 
 Ga. 386, 40 Am. & Eng. 
 
 R. Cas. 25 76,77.138 
 
 V. Ban man, 80 111. 494 903 
 
 V. Black Bird Creek Marsh 
 
 Co. 27 U. S. 2 Pet. 245, 
 
 7L. ed. 412.- 486, 496 
 
 V. Dickson, 2 Barn. & Aid. 2 866 
 V. Freeman, 3 Campb. 527.. 208 
 V. Hamilton, 4 Ohio St. 
 
 722 - 254 
 
 V. Lancashire & Y. R. Co. 9 
 
 C. B. K S. 632 888 
 
 V. IMcNamee, 102 U. S. 572, 
 
 26 L. ed. 234 486, 496 
 
 v. Nason, 4 Bosw. 155 1005 
 
 V. Wabash, St. L. & P. R. 
 
 Co. 23 Mo. App. 50--. 273 
 Wing D. New York & E. R. Co. 1 
 
 Hilt. 231 18, 190 
 
 Winne v. Illinois Cent. R. Co. 31 
 
 Iowa, 5H3 187, 1028, 1036 
 
 Winona & St. P. R. Co. v. Blake, 
 
 94 -J. S. 180, 24 L. ed. 
 99--. 3, 518, 746 
 
 Winslow V. Vermont & M. R. Co. 
 
 42 Vt. 700 915 
 
 Winsor Coal Co. v. Chicago & A. 
 
 R. Co. 52 Fed. Rep. 716 542 
 Wise V. Groat Western R. Co. 1 
 
 Hiirlst. &N. 63 -. 296 
 
 Witbeck v. Holland, 45 N. Y. 17, 
 
 6 Am. Rep. 23, 55 Barb. 
 
 443 33,888 
 
 Witting V. St. Louis & S. F. R. Co. 
 10 L. R. A. 602, 101 Mo. 
 631, 42 Alb. L. J. 511, 
 
 . note --188, 
 
 1012, 1027, 1031, 1032, 1038 
 Wolf V. American Exp. Co. 43 Mo. 
 433, 97 Am. Dec. 406.- 
 
 --- -- 174, 177 
 
 V. Hough, 22 Kan. 659 862 
 
 V. Western U. Teleg. Co. 63 
 Pa. 83, 1 Am. Rep. 387 
 
 - 219, 220, 222 
 
 Wolfe V. Missouri Pac. R. Co. 3 L. 
 R. A. 539, 97 Mo. 473. 
 
 910, 927 
 
 ®. Myers, 3 Sandf. 7 94 
 
 Wood V. Chicago, M. & St. P. R. 
 
 Co. 59 Iowa, 196 401 
 
 V. Chicago, M. & St. P. R. 
 Co. 68 Iowa, 491, 56 
 
 Am. Rep. 861 239 
 
 V. Crocker, 18 Wis. 845, 86 
 
 Am. Dec. 773 893 
 
 V. Milwaukee & St. P. R. 
 Co. 27 Wis. 541, 9 xim. 
 
 Rep. 465 386, 388, 389 
 
 «. Roach, 3 U. S. 3Dall. 180, 
 
 IL. ed. 340 109 
 
 Woodburn v. Cincinnati, N. O. & 
 T. P. R. Co. 40 Fed. 
 
 Rep. 731 200, 406 
 
 Woodbury v. Frink, 14 111. 279.. .1028 
 Woodland, The, 7 Ben. 110, 14 
 Blatchf. 499, 104 U. S. 
 
 180, 26 L. ed. 705 64 
 
 Woodlife's Case, Moore, 464, 1 
 
 Rolle. Abr. 2 151 
 
 Woodruff «. Berry, 40 Ark. 253.. 462 
 v. Erie R, Co. 25 Hun, 246. 440 
 Woods V. Devin, 13 111. 747, 56 
 
 Am. Dec. 483. 84 
 
 Woodstock Iron Co. v. Richmond 
 & D. Extension Co. 129 
 U. S. 644, 32 L. ed. 819 694 
 Woodward v. Illinois Cent. R. Co. 
 
 1 Biss. 447 131,405 
 
 V. Illinois Cent, R. Co. 33 
 
 111. App. 433. 892 
 
 Woodworlh v. Bennett, 43 N. Y. 
 
 273, 3 Am. Rep. 706.-- 691 
 Work V. Leathers, 97 U. S. 379, 24 
 
 L. ed. 1013 .- -- 22 
 
 Wren v. Eastern Counties R. Co. 
 
 1 L. T. N. S. 5 331 
 
 Wright V. Caldwell, 3 Mich. 51-.. 80 
 V. Campbell, 4 Burr. 3046.. 109 
 V. Clark, 50 Vt. 130, 38 Am. 
 
 Rep. 496 - 87
 
 TABLE OF CASES. 
 
 Ixxxi 
 
 Wright V. Howe (Tex. Civ. App.) 
 
 Dec. 7, 1893 921 
 
 0. Nagle, 101 U. S. 791, 25 
 
 L. ed. 921 491 
 
 Wyanoke, The, 40 Fed. Rep. 702. 350 
 Wyckoff V. Queens County Ferry 
 
 Co. 52 N. Y. 32, 11 Am. 
 
 Rep.650. --. 81 
 
 Wyld V. Pickford, 8 Mees. & W. 
 
 442. 41, 42 
 
 Wylde v. Northern R. Co. of N. J. 
 
 53 N. Y. 156 895. 412 
 
 Xantho, The, L. R. 12 App. Cas. 
 
 503 164, 175 
 
 Youl c. Harbottle, Peake, 68 908 
 
 York Mfg. Co. v. lUiDois Cent. R. 
 Co. 1 Biss. 377, 70 U. S. 
 3 Wall. 107, 18 L. ed. 
 
 170 43, 
 
 49, 80, 95, 96, 124, 131, 
 178, 179, 185, 198. 392, 944 
 P 
 
 Young V. East Alabama R. Co. 80 
 
 Ala. 100 927 
 
 V. Smith, 3 Dana, 92, 28 Am. 
 
 Dec. 57 .- 891 
 
 V. Western U. Teleg. Co. 2 
 
 Jones & S. 390 - - 
 
 219,220, 222, 275 
 
 V. Western U. Teleg. Co. 65 
 
 N. Y. 163 96 
 
 Z. 
 
 Zacheman, The, 5 C. Rob. Adm. 
 
 152 359 
 
 Zambrino v. Galveston, H. & S. A. 
 
 R. Co. 38 Fed. Rep. 
 
 449 1044 
 
 Zee Star, The, 4 C. Rob. Adm. 71 359 
 Zenobia, The, 1 Abb. Adm. 80.... 177 
 Zerega v. Poppe, Abb. Adm. 397. 94 
 Zimmer v. New York Cent. & H. 
 
 R. R. Co. 42 N. Y. S. 
 
 R. 63 45, 55, 202. 1023 
 
 v. New York Cent. & H. R. 
 
 R. Co. 137 N. Y. 460.. 136 
 Zipsey«. Hill, iFost. & F. 573.138,140 
 Zouch V. Chesapeake & O. R. Co. 
 
 17 L. R. A. 116, 36 W. 
 
 Va. 524 
 
 ...42, 45, 200, 208, 282, 287
 
 I^EGLIGEJSTCE 
 
 OF 
 
 IMPOSED DUTIES, 
 
 CARRIERS OF GOODS. 
 
 CHAPTER I. 
 
 LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 
 
 § 1. Who Are Common Carriers. 
 
 a. Express Coinpanies Liable as Common Carriers. 
 
 § 2. Distinction in Liahility Between Carriers of Goods and Pas- 
 senger Carriers. 
 
 § 3. Carriers hy Rail Must Furnish Suitable Cars. 
 
 § 4. Cars Must be Adapted to their Intended use. 
 
 § 5. When Failure to Furnish Cars Excused. 
 
 § 6. Duty of Carrier by Water to Furnish Seaworthy Vessel, etc. 
 
 § 7. Carrier by Water Must Answer for Competency of Officers and 
 Crew. 
 
 § 8. Duty of Carrier of Goods to Inspect Present Condition of Im- 
 plements of Transportation. 
 
 § 9. Discrimination Between Express Companies in Furnishing 
 Facilities. 
 
 § 1. Who are Common Carriers. 
 
 The employment of a common carrier is a public one, charging 
 him with the duty of accommodating the public in the line of his 
 employment. He is such by virtue of his occupation, not by vir- 
 tue of the responsibilities under which he rests. Even if the 
 extent of those responsibilities is restricted by law or by contract, 
 the nature of his occupation makes him a common carrier still. 
 A common carrier may become a private carrier or a bailee for 
 hire when, as a matter of accommodation or special engagement, 
 he imdertakes to carry something which it is not his business to 
 1 1
 
 2 LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 
 
 carry. For the carrier is only subject to the responsibility of a 
 common carrier as to such goods as he is in the habit of transport- 
 ing in that employment, and such other goods as he accepts with- 
 out any limit of responsibility,' and over the route and by the 
 method he usually employs.^ 
 
 Whether a steamboat will be held liable as a common carrier 
 for money delivered to the clerk to be paid over at another land- 
 ing is still a question on which courts will differ,' As will 
 appear by an examination of the cases above cited, unless it 
 can be shown that some compensation is paid at some fixed rate 
 and the transfer is not undertaken in the mere hoj)e of patron- 
 age induced by the accommodation, the liability will not be es- 
 tablished." But a liability will be established where it is shown 
 that, from usage and practice, this has grown to be part of the 
 business.' And when a carrier has a regularly established business 
 for carrying all of certain articles, and especially if that carrier is 
 a corporation created for the purpose of the carrying trade, and 
 the carriage of the articles is embraced within the scope of its 
 chartered powers, it is a common carrier, and a special contract 
 about its responsibility does not, in many jurisdictions, divest it 
 of that character. The fundamental principle upon which the 
 law of common carriers was established, was to secure the utmost 
 care and diligence in the performance of their duties. That end 
 was effected in regard to goods, by charging the common carrier 
 as an insurer, and in regard to passengers by exacting the highest 
 degree of carefulness and diligence. ° 
 
 All who undertake to carry goods indifferently for hire, are 
 common carriers. A person who makes it a business to solicit 
 
 ^Eoneyman v. Oregon & 0. R. Co. 13 Or. 352, 57 Am. Rep. 20; NetoYork Cent. 
 
 R. Co. V. Lockicood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; Central R. & Bkg. 
 
 Co. V. Lampley, 76 Ala. 357, 52 Am. Rep. 334. 
 » Coup V. Wabmh, St. L. & P. R. Co. 56 Mich. Ill, 56 Am. Rep. 374; Pittsburg, 
 
 C. cfi St. L. R. Co. V. Morton, 61 Ind. 539, 28 Am. Rep. 682; PitLock v. Wells, 
 
 Fargo & Co. 109 Mass. 452. 
 'Sewall V. Allen, 6 Wend. 346; Lee v. Bargess, 9 Bush, 652; Citizens Bank v. 
 
 Nantiicket S. B. Co. 2 Story, 33; Cincinnati & L. M. L. Co. v. Boal, 15 Ind. 
 
 345; Whitmore v. The Caroline, 20 Mo. 513. 
 * Chouteau v. The St. Anthony, 16 Mo. 216, 20 Mo. 519. 
 ^ Rosea v. McCrory, 12 Ala. 349; Kirtland v. Montgomery, 1 Swan, 452. 
 e Oulf, C. & S. F. R. Co. V. Oatewood, 10 L. R. A. 419, 79 Tex. 89.
 
 WHO AKE COMMON CARRIERS. 6 
 
 carriage of trunks and packages from place to place for hire is a 
 common carrier.' Such persons were chargeable, in the general 
 custom of the realm, for their faults or miscarriage,' but a pri- 
 vate person who carries for hire, although as an occupation, but 
 selecting his customers, is not resj^onsible as a common carrier.^ 
 
 The regularity of the trips or the fixed points between which 
 the carriage is done, is not an absolute essential in determining 
 whether the carrier be a private or common carrier,* and one 
 who is only a carrier in a particular case and does not exercise the 
 business of a common carrier, is only answerable for ordinary 
 negligence, miless he assumes a greater liability by express con- 
 tract.* The cases of Gordon v. Hutchinson, 1 Watts & S. 285, 
 37 Am. Dec. 464, and Jfoss v. Bettis, 4 Heisk. 601, 14 Am. Rep. 
 1, have not extended the law of common carriers so as to include 
 occasional volvinteers who carry under special contract, as in Pow- 
 ers V. Davenport, 7 Blackf. 497, 43 Am. Dec. 100. The cases 
 are evidently founded on false premises and are not recognized as 
 changing the rule." 
 
 But truckmen, teamsters, eartmen, porters and the like, who 
 undertake to carry goods for hire, as an employment, from one 
 towa to another or from one part of a town or city to another, 
 are common carriers.' A railroad company is a common carrier 
 and subject to judicial control." 
 
 Owners and masters of ships are common carriers by water, 
 whether they are regular packet ships or carrying smacks or 
 
 ^Robinson v. Coi-nish, 34 N. Y. S. R. 695; Oishourn v. Hurst, 1 Salk. 249; 
 
 Dicight V. Breicster, 1 Pick. 50, 11 Am. Dec. 138. 
 » Upshare v. Aidee, 1 Comyns, 25; Bull, N. P. 70. 
 
 ^Robinson v. Dunmore, 2 Bos. & P. 416; Satterlee v. Groat, 1 "Wend. 272. 
 *PennewiU v. Cullen, 5 Harr. (Del.) 238; Lixer Alkali Co. v. Johnson, L. R. 7 
 
 Exch. 267. L. R. 9 Exch. 338. 
 ' Robinson v. Dunmore, 2 Bos. & P. 416. 
 ^Samms v. Stewart, 20 Ohio, 69, 55 Am. Dec. 445; Steele v. McTyer, 31 Ala. 
 
 667. 70 Am. Dec. 516; Fish v. Clark, 49 N. Y. 122; Allen v. Sackrider, 37 N. 
 
 Y. 341 ; Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Flautt v. Lashley, 36 
 
 La. Ann. 106. 
 ' Gi.sbourn v. Hurst, 1 Salk. 249. 
 8 Scofield V. Lake Shore & M. S. R. Co. 43 Ohio St. 571, 54 Am. Rep. 846; TFt- 
 
 nona <fc St. P. R. Co. v. Blake, 94 U. S. 180, 24 L. ed. 99; Atlantic & P. R. 
 
 Co. V. Laird, 58 Fed. Rep. 760.
 
 4: LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 
 
 coasting ships or other ships taking on general freight,* Whether 
 towboats are common carriers, in as much as they do not take 
 possession of their tow as the carrier does of his goods, has 
 been answered in the affirmative in Louisiana, North Carolina 
 and California ; depending, however, upon the fact that the voy- 
 age was a long one and the vessels in tow placed completely un- 
 der control of the towing vessel." Elsewhere this liability is 
 denied." 
 
 A corporation which, being under no legal obligation to do so, 
 voluntarily contracts to switch cars over its tracks, between two 
 or more railways, for which service it collects a certain switching 
 charge for switching the cars, loaded or empty, but charges no 
 traffic rates on the freight transported or transferred in the cars 
 in the performance of such service, assumes none of the responsi- 
 bilities of a common carrier, but only those of a switchman. 
 Where a railroad company, by contract with a bridge company, 
 acquires the riglit to use a bridge, with its approaches, for the en- 
 gines, cars and trains of the railway company, the first section of 
 the "Act to Regulate Commerce," regards the railway company 
 as the owner, or operator of the bridge and approaches, for the 
 time being, as to all freight transported by the railway company 
 over the bridge. And as to all such traffic, the railway company, 
 and not the bridge company, must be regarded as the common 
 carrier. Such a bridge company is not, either in law or in fact, 
 a common carrier of interstate traffic, within the scope and mean- 
 
 ^ LaTourette v. Burton ("TJie Commander-in-Chief"), 68 U. S. 1 Wall. 43, 17 
 L. ed. 609; Schieffelin v. Harvey, 6 Johns. 170; Ellioit v. Rossell, 10 Johns. 
 1; Iluttonv. Osborne, 1 Selw. N. P. 407; Hastings v. Pepper, 11 Pick. 41; 
 Jencks v. Coleman, 2 Sumn. 221; Coggs v. Bernard, 2 Ld. Raym. 909; Orange 
 County Bank v. Brown, 9 Wend. 85, 24 Am. Dec. 129; Crosby v. Fitch, 12 
 Conn. 410. 31 Am. Dec. 745. 
 
 * Clapp V. Stanton, 20 La. Ann. 495, 96 Am. Dec. 417; Bussey v. Mississippi 
 Valley Transp. Co. 24 La. Ann. 165, 13 Am. Rep. 120; Walston v. Myers, 
 50 N. C. 174; White v. The Mary Ann, 6 Cal. 462, 65 Am. Dec. 523; Ash- 
 more V. Pennsylvania Steam Towing Transp. Co. 28 N. J. L. 180. 
 
 ^Arctic F. Ins. Co. v. Austin, 54 Barb. 559; Alexander v. Greene, 3 Hill, 9, 
 7 Hill, 553; Hays v. Millar, 77 Pa. 238, 18 Am. Rep. 445; Eastern Transp. 
 Line V. Hope, 95 U. S. 297, 24 L. ed. 477; The Margaret v. Bliss, 94 U. 8. 
 494, 24 L. ed. 146; The Julia. 14 Moore, P. C.210; Pennsylvania, D. & M. 
 S. Nav. Co. V. Danbridge, 8 Gill. & J. 248, 29 Am. Dec. 543; Varble v. Big- 
 ley, 14 Bush, 698. 29 Am. Rep. 435; Symonds v. Pain, 6 Hu^l8^ & N. 709.
 
 WHO AKE COMMON CAKRIEKS. O 
 
 ing of said section ; and it cannot invoke the provisions of said 
 Act, to compel railway companies to transact business with, or 
 through such bridge company. Between such a bridge company, 
 and the railway carriers of the country, the Act establishes no 
 such reciprocal relations, duties, and obligations, as require the 
 latter to form business connections with the former.^ 
 
 The common carriers named and referred to in the last clause 
 of section 3 of the Act to Regulate Commerce are such alone as 
 are subject to the provisions of that statute. Companies engaged 
 in simply furnishing a roadway as bridge companies, turnpike and 
 canal corporations, are not common carriers." 
 
 Where the cars are hired by the shipper, and motive power and 
 use of the road is provided by the carrier railroad the question 
 has arisen as to the liability assumed by the latter. In the Su- 
 preme Court of the United States and the supreme court of iS^ew 
 York, the liability of a carrier has been imj)osed,^ But, in two 
 or three of the states this liability has been denied.^ And the 
 same denial of liability was made where the consignor is the owner 
 of the cars transported." 
 
 It may be said as a general proposition that if the duties im- 
 posed by statute are of the nature of a carrier of passengers, in 
 the absence of any express limit of liability, it would be reason- 
 able to assume that the intention was, in imposing a duty, that 
 the one who undertook it should assume the ordinary liability of 
 the carrier/ 
 
 1 Kentucky & I. Bridge Co. v. Louisville & iV. R. Co. 2 L. R. A. 289, 2 Inters 
 
 Com. Rep. 351, 37 Fed. Rep. 567. 
 ' Origshy v. CMppell, 5 Rich. L. 443; Lake Superior & M. B. Co. v. United 
 
 States, 93 U. S. 444, 23 L. ed. 967; Exchange F. Ins. Co. v. Delaware & H 
 
 Canal Co. 10 Bosw. 180. 
 
 ^Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423; Mal- 
 
 hry V. Tioga R. Co. 39 Barb. 488. 
 * Kimball v. Rutland & B. R. Co. 26 Vt. 247, 62 Am. Dec. 567; East Tennessee 
 
 & G. R. Co. V. Whittle, 27 Ga. 535, 73 Am. Dec. 741 ; Ohio & M. R. Co v 
 
 Dunbar, 20 111. 623, 71 Am. Dec. 291. 
 » Coup V. Wabash, St. L. & P. R. Co. 56 Mich. Ill, 56 Am. Rep. 874. 
 « Gibbs V. Liverpool Docks Trustees, 8 Hurlst. & N. 164; Mersey Docks & H. 
 
 Board v. Gibbs, L. R. 1 H. L. 93, 35 L. J. Exch. 225; Lancaster Canal Co. 
 
 V. Parnaby, 11 Ad. & El. 223; Mersey Docks & II. Board v. Penhallow, 7 
 
 Hurlst. & N. 329. 30 L. J. Exch. 329.
 
 6 LIABILITY AND DUTY TO PKOVIDE SAFE TKANSPOETATION. 
 
 a. Express Com^^anies Liable as Common Carriers, 
 
 Althoiic'li express companies avail themselves of the transporta- 
 tion facilities aiiorded by other carriers, this in no sense releases 
 them from liability ; but renders them, in fact, responsible for 
 the ao;ents which they employ. A railroad company carrying 
 packages for an express company is the agent of the latter, and 
 the express company cannot stipulate for exemption from liabil- 
 ity for the railroad company's negligence.* 
 
 A transportation company not owning or controlling any means 
 of conveyance itself, but engaging on its own behalf in the busi- 
 ness of transporting goods through the agency and over the lines 
 of other carriers of its own selection and employment, is a com- 
 mon carrier, and subject to all the responsibilities attaching to 
 that character." 
 
 An express company is bound at its peril to deliver packages 
 consigned to its care ; and a failure to do so, not induced by any 
 negligence of the consignor, will not excuse it, regardless of the 
 fraud or imposition which induced a delivery to an impostor. It 
 is liable for a package of money delivered to an impostor, although 
 his telegram induced its shipment and the real consignee acted 
 with him in conspiring to defraud.' 
 
 An arrangement between a dispatch company in St. Louis, Mo., 
 and sundry railroad companies whose lines terminated at N^ew 
 York, whereby the latter separately agreed to carry all goods for 
 the transportation of which the former should contract at the 
 established rate or at any special rate furnished by the railroad 
 does not involve joint liability upon the part of railroad coinpa- 
 nies nor make them partners, either inter esse or as to third 
 persons.* 
 
 An express company carrying money, goods and parcels for 
 hire, from one locality to another, is a common carrier.^ And, 
 
 > Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 873. 
 
 * Merchants Dispatch Transp. Co. v. Bloch, 86 Tenn. 392. 
 
 * Shearer v. Pacific Exp. Co. 43 111. App. 641. 
 
 *<S7. Loais Ins. Co. v. St. Louis, V. T. H. & I. R. Co. 104 U. S. 146, 26 L. ed. 
 679. 
 
 *Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872.
 
 EXPRESS COMPANIES LIABLE AS COMMON CAKRIEES. 7 
 
 though they assume the name of dispatch companies, forwarders, 
 fast freight lines, — the business in which they engage being, in 
 fact, that of common carrier, they assume its responsibilities.' 
 
 In common law, the obligation of "the carrier is not that he will, 
 through his own agency, carry and deliver the goods entrusted to 
 him. The real contract is, that the goods are to be carried to 
 their destination, unless the fulfillment of this undertaking is pre- 
 vented by the act of God, or the public enemy. This is the en- 
 tire contract in fact, — whether the goods are to' be carried by land 
 or water, — by the carrier himself or by agencies employed by 
 him. There is no personal trust employed in the sense that the 
 contract can not as well be executed through an agent and by 
 means of transportation employed by it; — and yet not actually 
 under its personal control. And, it is still true that the particu- 
 lar mode or agency by which it is performed does not enter into 
 the contract of the carriage with the owner or consignor.^ 
 
 Certainly the fact that express companies undertake to secure 
 greater care and more speedy delivery, and that they cause this 
 delivery to be made to the consignee personally, is not to be held 
 as waiving any duty already resting upon them as common car- 
 riers.' 
 
 ' Buckland v. Adams Exp. Co. 97 Mass. 124, 93 Am. Dec. 68. 
 
 ' Merchants Dispatch Transp. Co. v. Block, 86 Tenn. 392; Place v. Union Exp. 
 Co. 2 Hilt. 27; Bank of Kentucky v. Adams Exp. Co. and Buckland v. Adams 
 Exp. Co. supra; United States Exp, Co. v. Backman, 28 Ohio St. 144. 
 
 » Oderkirk v. Fargo, 58 Hun, 347; Durgin v. American Exp. Co. (N. H.) 9 L. 
 R. A. 453; New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 U. 
 S. 6 How. 344, 12 L. ed. 465; Merchants Dispatch Transp. Co. v. Block, 86 
 Tenn. 392; Christenson v. American Exp. Co. 15 Minn. 270, 2 Am. Rep. 122; 
 Bead V. Spaulding, 5 Bosw. 395; Mercltants Despatch Transp. Co. v. Joest- 
 ing, 89111. 152; Merchants Dispatch Transp. Co. v. Cornfortk, 3 Colo. 280, 
 25 Am. Rep. 757; Bancroft v. Merchants Despatch Transp. Co. 47 Iowa, 262, 
 29 Am. Rep. 482; Wilde v. Merchants Despatch Transp. Co. 47 Iowa, 247, 
 29 Am. Rep. 479; Merchants Despatch Trayisp. Co. v. Leysor, 89 111. 43; 
 Southern Exp. Co. v. McVeigh, 20 Gratt. 264; Robinson v. Merchants Des- 
 patch Transp. Co. 45 Iowa, 470; Stewart v. Merchants Despatch Transp. Co. 
 47 Iowa, 229, 29 Am. Rep. 476; Grogan v. Adams E.rp. Co. 114 Pa. 523, 60 
 Am. Rep. 360; Bennett v. Northern Pac. Exp. Co. 12 Or. 49; Southern Exp. 
 Co. V. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Mather v. American Exp. 
 Co. 138 Mass. 55, 52 Am. Rep. 258; Southern Exp. Co. ^.Womack, 1 Heisk. 
 256; Southern Eup. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140; Boscowitz v. 
 Adams Exp. Co. 93 111. 523, 34 Am. Rep. 191; Bernstine v. Union Exp. Co. 
 40 Ohio St. 451; Pacific E.rp. Co. v. Darnell, 62 Tex. 639; Hadd v. United 
 Stales & C. Exp. Co. 52 Vt. 335, 36 Am. Rep. 757; United States Exp. Co. v.
 
 8 LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 
 
 In a suit against an express company for the value of a pack- 
 age of money received by it to be carried and delivered to the 
 plaintiff, which it failed to do, — the answer was that the package 
 was duly received at the office of the defendant at the town to 
 which it was directed ; that the defendant, upon inquiry, could 
 not find the residence of the plaintiff to be in the said town or its 
 vicinity, and, being ignorant of his real place of business or post- 
 office address, the defendant, on the day of the arrival of said 
 package, wrote a notice informing the plaintiff of its arrival at 
 said office and that it was ready for delivery, and inclosed said 
 notice in an envelope addressed to said plaintiff at said town and 
 duly stamped, and dropped the same into the postoffice at said 
 town, and placed said package in a safe owned by the defendant, 
 wherein defendant kept all money packages arriving by express 
 for parties, and safely locked the same, the package remaining 
 thus securely locked up for several days, and no one calling for 
 it until it had been stolen by burglars, who in the night-time vio- 
 lently broke into the office of defendant, where the safe was, and, 
 without knowledge of the defendant, broke open said safe and 
 feloniously stole, took, and carried away said package of money, 
 without any fault or neglect of the defendant, — it was held, that 
 the facts alleged in the answer were not sufficient to discharge 
 the defendant from liability as a common carrier, and that if they 
 could be so deemed, still, the answer failed to show that the de- 
 fendant exercised reasonable care with the package as bailee, after 
 the termination of such liability.' 
 
 In a suit against an express company for the loss of a package 
 by the delivery of it to the wrong person, the court declined to 
 examine the question whether the liability of the company, under 
 the contract, was that of a common carrier or of a warehouseman, 
 — because, in either case, the company was bound to deliver to 
 the right person." 
 
 Root, 47 Jlich. 231; Southern Exp. Co. v. Olenn, 16 Lea, 472; Southern Exp. 
 
 Co. V. Newhy, 30 Ga. 635, 91 Am. Dec. 783; Bardwell v. American Exp. Co. 
 
 35 Minn. 344; Overland Mail & E.vp. Co. v. Carroll, 7 Colo. 43; Gait v. 
 
 Adams Exp. Co., McArth «fc M. 124; Wells v. American Exp. Co. 55 Wis. 23, 
 
 42 Am. Rep. 695. 
 > American Exp. Co. v. Hockett, 30 Ind. 250, 95 Am. Dec. 691. 
 ' American Exp. Co. v. Stack, 29 Ind. 27.
 
 EXPRESS COMPANIES LIABLE AS COMMON CAKKIERS. V 
 
 An express company is liable for daniao^es to fruit by reason of 
 unreasonable delay in transportation,' for an express business in- 
 volves the idea of promptness and regularity as to route or time, 
 or both.^ "Where there are two routes for sending goods by ex- 
 press, the one safe and the other hazardous, and yet the express 
 company, in defiance of the wishes of the owner, rejects the safe 
 route and adopts the hazardous one, and the goods are lost by 
 robbery, the company is liable/ 
 
 A stipulation in an express contract that claim for loss or dam- 
 age shall be presented in writing at the office issuing the receipt, 
 is not binding where the loss is by failure to forward the freight 
 promptly, and therefore the negligence is necessarily known to 
 that office/ A shij^per is presumed to know and assent to the 
 terms of an express company's receipt which is given him for 
 goods, — especially where those terms are made prominent and 
 noticeable, and a book of such blank receipts is in his own posses- 
 sion/ Where the receipt or bill of lading given by an express com- 
 pany provides that, in case of loss, proof shall be made within a 
 limited time and in a particular manner, if notice of loss is given 
 within the time limited and no objection is made to its sufficiency, 
 but the objection to payment is put by the company upon other 
 grounds, all defects in such notice will be regarded as waived/ 
 
 An express company is not liable for a money package which 
 the consignee fails to receive, where the latter for his own con- 
 venience, by promising to relieve the agent from responsibility, 
 causes the latter to depart from its known rule to require a re- 
 ceipt before delivery, and to attempt delivery by throwing it to 
 the consignee while he is standing on a car platform/ It is 
 within the apparent scope of an express agent's authority to 
 make an arrangement with the consignee of a trunk, before 
 
 ' Adams Exp. Co. v. Williams (Ark.) June 4, 1890. 
 
 « Retzer v. Wood, 109 U. S. 185, 27 L. ed. 900. 
 
 ^United States Exp. Co. v. Eountze, 75 U. S. 8 Wall. 342, 19 L. ed. 457. 
 
 ■> Baltimore & 0. Exp. Co. v. Cooi)er, 66 Miss. 558, 40 Am. & Eng. R. Cas. 97. 
 
 * Ballon V. Earle, 14 L. R. A. 433, 17 R. I. 441; Durgin v. American Exp. Co. 
 
 (N. H.) 9 L. R. A. 453. 
 ^Merrill v. American Exp. Co. 62 N. H. 514. 
 ' Carroll v. Southern Exp. Co. 37 S. C. 452.
 
 10 LIABILITY AND DUTY TO PKOVIDE SAFE TEANSPOETATION. 
 
 the payment of the charges and the signing of the receipt there- 
 for, to leave it in the express office until the next day, with a view 
 to giving him a reasonable time to send for the trunk ; and such 
 arrangement will bind the company in the absence of notice to 
 the consignee of any restriction on the agent's authority.' An 
 express company was not liable for the loss of a trunk which 
 reached the Grand Central Depot in New York about twenty- 
 four hours ahead of the passenger, although its employes took it 
 out of the baggage car on arrival, but left it in possession of the 
 railroad company, in the baggage room, and an agent of the ex- 
 press company obtained the check from the passenger upon the 
 train, but when it was presented to the railroad employes within 
 seven minutes after the arrival of the train the trunk could not 
 be found.''' 
 
 An express company is not liable for refusal to accept goods 
 for shipment which are not packed according to its rules, though 
 it had made a previous arrangement with the shipper to transport 
 such goods not so packed, as it has the right to withdraw from 
 such arrangement at any time.* 
 
 It is within the scope of the authority of an express agent to 
 give rates at which property shipped and reaching the point of 
 destination over the comj^any's line of carriage will be delivered 
 to consignees at the latter point, and bind his company to deliv- 
 ery at such rates ; and for a mistake in the rate at which a con- 
 tract of shipment is made, the company, and not the consignee, 
 is responsible and must bear the loss as between them/ 
 
 An express company is not bound to transport and deliver any 
 intoxicating liquor, if thereby it would incur a penalty, but an 
 express company, as a general thing, is not bound to know the 
 contents of packages offered for carriage, nor are its agents pre- 
 sumed to know/ 
 
 ' Oderkirk v. Fargo, 61 Hun, 418. 
 
 « Aikin v. Westcott, 123 N. Y. 363. 
 
 3 Vicksburg Liquor & T. Co. v. United States Exp. Co. 68 Miss. 149. 
 
 * Southern Exp. Co. v. Boullemet (Ala.) Nov. 9, 1893. 
 
 ^ State V. Ooss, 59 Vt. 266, 59 Am. Rep. 706.
 
 DISTINCTION IN LIABILITY. 11 
 
 § 2. Distinction in Liability between. Carriers of 
 Goods and Passenger Carriers. 
 
 There is a plain distinction between the liabilities of carriers of 
 goods and of passengers.' The duty of common carriers with re- 
 spect to the transportation of persons and property is independent 
 of contract." The liability of a carrier of passengers, like that of 
 a common carrier of goods, arises out of his duty, implied by law ; 
 but, unlike that of the latter, it is not that of an insurer. He does 
 not warrant the safety of the passengers at all events, but only 
 that, so far as human care and foresight can reasonably be re- 
 quired to go, their safe conveyance will be provided for.^ 
 
 In the case of the common carrier of goods, the responsibility 
 of an insurer is superadded to the responsibility which arises out 
 of his contract to carrj- for reward.* Carriers are insurers of the 
 goods received by them to be carried against all casualties except 
 those which arise from the act of God, the public enemy, the fault 
 of the shipper, or the inherent quality of the property itself.' 
 It is, however, not enough that the goods have been lost or 
 injured by the act of God ; if the negligence of the carrier him- 
 self has in any measure contributed to bring about the injury, he 
 is, nevertheless, liable.' 
 
 ' Aston V. Heaven, 2 Esp. 533; Christie v. Griggs, 1 Campb. 79; Dodge v. 
 Boston & B. SB. Co. 2 L. R. A. 83, 148 Mass. 207; Atlantic Exp. Co. v. Wil- 
 mington & W. R. Co. 18 L. R. A. 393, 111 N. C. 463. 
 
 ^Delaware, L. & W. R. Cc. v. Trautwein, 7 L. R. A. 435, 52 N. J. L. 169, 
 41 Am. & Eng. R. Cas. 187. 
 
 'Smith, Mercantile Law (7th ed.) 282; Anseli v. Waterhouse, 6 Maule & S. 
 393; Crofts v. Waterhouse, 3 Ring. 319. 
 
 * Riley v. Home, 5 Ring. 220; Fox v. Boston <& M. R. Co. 1 L. R. A. 702, 148 
 Mass. 220; Bennett v. Button, 10 N. H. A81; Hawkins v. Hoffman, 6 Hill, 
 586. 41 Am. Dec. 767; Stockton v. Frey, 4 Gill, 407, 45 Am. Dec. 138; The 
 New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019. 
 
 ^Harris v. Northern Indiana R. Co. 20 N. Y. 232; Bohannan v. Hammond, 
 43 Cal. 327; Rixford v. Smith, 53 N. H. 355. 13 Am. Rep. 42; Williams v. 
 Grant, 1 Conn. 487, 7 Am. Dec. 235; Moses v. Norris, 4 N. H. 304; Harrell 
 V. Oicens, 18 N. C. 273; Turney v. Wilson, 7 Yerg. 340, 27 Am. Dec. 515; 
 Ewart V. Street, 2 Bail. L. 157, 23 Am. Dec. 131, this being an extension 
 of the rule as laid down by Lord Holt in the leading case of Coggs v. Ber- 
 nard, 2 Ld. Raym. 909. 
 
 *Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Michaels v. New York 
 Cent. R. Co. 30 N. Y. 564, 86 Am. Dec. 415; New Brunswick, S. cfc C 
 Transp. Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 394; Hill v. Sturgeon, 
 28 Mo. 323.
 
 12 LIABILITY AND DUTF TO PROVIDE SAFE TKANSPOKTATION. 
 
 But there is no difference between carriers by land and carriers 
 by water in respect to their rights, duties and obligations ; each 
 incurs the same liabilities and is subject to the same duties and is 
 governed by the same rules of law.' All vessels employed in 
 transporting goods from port to port are carriers, and as such are 
 liable for the safe custody, due transport and right delivery of the 
 goods.'* The master is bound to carry the goods on his own ship to 
 their destination unless prevented by the act of God, the public 
 enemy, or some peril excepted in the contract of shipment. In the 
 absence of a special contract, the carrier is ordinarily liable under 
 his common law obligation, without establishing negligence in 
 the transportation of property,' 
 
 By the settled law, in the absence of some valid agreement to 
 the contrary, the owner of a general ship carrying goods for hire 
 whether employed in internal, in coasting or in foreign, com- 
 merce, is a common carrier, with the liability of an insurer 
 against all losses, except only such as arise from irresistible 
 causes, as the act of God and public enemies.* Carriers of mer- 
 chandise by water are insurers, and liable for every loss or dam- 
 age to the merchandise, unless it happened by the act of God, the 
 public enemy, the shipper, or by some other cause excepted in 
 the contract of shipment.^ 
 
 A common carrier who insures a cargo, accepted by liim to 
 carry from New York to Buffalo, against all losses excepting 
 those occasioned by theft, robbery or barratry of the master or 
 crew of the vessel on which they are shipped, or want of care and 
 
 * King v. Shej^herd, 3 Story, 349; Elliott v. Rosnell, 10 Johns. 1; Baxter v. Le- 
 
 lan'd, Abb. Adm. 350; Maury v. Talmadge, 2 McLeaa, 157; New Jersey 
 
 Steam Nav. Go. v. Merchants Bank of Boston, 47 U. S. 6 How. 428, 12 L. 
 
 ed. 465; Dale v. Hall, 1 Wils. 281. 
 ^LaTourette v. Burton {''The Commander-in-Chief") 68 U. S. 1 "Wall. 43, 17 
 
 L. ed. 609. 
 ^Doan V. St. Louis, K. & N. W. R. Co. 38 Mo. App. 408. 
 
 * Liverpool & O. W. Steam Co. v. Phenix Ins. Co. {"The Montana") 129 U. S. 
 
 397, 32 L. ed. 788; Barclay v. Cucullay Gana, 3 Dougl. 389; The Niagara 
 V. Cordes, 62 U. S. 21 How. 7, 23, 16 L. ed. 41, 46; Oermania Ins. Co. v. 
 The Lady Pike, 88 U. S. 11 Wall. 1, 14, 22 L. ed. 499, 503; 2 Bac. Abr. 
 title "Carriers" a; 2 Kent, Com. 598, 599; Story, Bailm. § 501. 
 
 * Oermania Ins. Co. v. The Lady Pike, and The Niagara v. Cordes, supra; 
 
 Uaunibal & St. J. B. Co. v. swift, 79 U. S. 12 Wall. 263, 20 L. ed. 423.
 
 DISTINCTION IN LIABILITY. 13 
 
 skill, may recover the full value of the goods insured by him on 
 showing a loss by fire, for which he is answerable.' 
 
 By the general custom, or, as it is termed in England, the cus- 
 tom of the realm, which is the foundation of the common law on 
 the subject, the common carrier intrusted with goods for carriage 
 is responsible at all events for every injury arising in any other 
 way than by the act of God or of public enemies." Loss by flood 
 or storm is loss by the act of God ; and a common carrier is excused 
 when the damage resulted from this cause immediately.' His 
 responsibility is established with a view to public policy, to the 
 reward which he receives, to his character as an insurer and 
 to the terms of his contract, express or implied.^ He must 
 answer for all losses not caused by the act of God or the King's 
 enemies.^ The act of God means something quite different from 
 what is expressed by the terms '' inevitable accident" as these are 
 ordinarily used. In fact, the carrier has been held answerable for 
 losses caused by accidents which were to him entirely inevitable.® 
 Where the loss happens in any way through the agency of man 
 it cannot be considered the act of God.' 
 
 The carrier of goods is liable in all events and for every loss or 
 damage, unless it happens by the act of God, or the public enemy, 
 or without fault on his part under some express exception in the 
 bill of lading." A freight carrier remains liable for loss through 
 its negligence, under a contract of shipment of fruit providing 
 that the same shall be at the owner's risk, where the contract does 
 
 ' Van Natta v. Mutual Security Ins. Co. 2 Sandf. 490; Edwards, Bailm. 356. 
 ^ Coggs V. Bernard, 2 Ld. Raym. 919; Dale v. Hall, 1 Wils. 281. 
 ^Memphis & C. R. Co. v. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909. 
 ^Jeremy, Carriers, 31-38. 
 
 ^ Morse v. Slue, T. Raym. 220, 1 Vent. 190, 238; Colt v. McMechen, 6 Johns 
 160, 5 Am. Dec. 200. 
 
 6 Abbott, Shipping, pt. 3, chap. 4, § 1; Fortmrd v. Piitard, 1 T. R. 34; Mo- 
 Arthur V. Sears, 21 Wend. 196; Trent & M. Nav. Co. v. Wood, 3 Esp. 127. 
 
 ' Foncard v. Pittard, 1 T. R. 27; Campbell v. Morse, 1 Harp. L. iQS: Elliott v. 
 Rossell, 10 Johns. 1; Robertson v. Kennedy, 2 Dana, 43, 26 Am. Dec. 466; 
 Gordon v. Buchanan, 5 Yerg. 82; Turney v. Wilson, 7 Yerg. 340, 27 Am.' 
 Dec. 515; Amies v. Stevens, 1 Strange, 128; Edwards, Bailm, 456. ' 
 
 »SiceaU V. Bo.^ton H. & E. R. Co. 5 Nat. Bankr. Reg. 243; T?ie Lady Pike, 2 
 Biss. 145; The Molly Mohler, 2Biss. 508: Amies v. Stevens, 1 Strange, 128; The 
 Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779; Elliott v. Ros-
 
 l-± LIABILITY AND DUTY TO PKOVIDE SAFE TRANSPOKTATIOiM. 
 
 not in clear and unmistakable terms exempt it from such liability. 
 It is liable for loss by lire produced from other than natural causes, 
 wli ether accidentally or communicated from other vessels or from 
 the shore, and whether it produces the moti ^e power or not' The 
 failure, however, of a cotton press company to perform its agree- 
 ment with carriers to insure for its full insurable value, cov- 
 ering all interests, including the owner's, all cotton delivered to it 
 for compression, does not impose on the carrier any obligation to 
 insure, or render it liable as an insurer of the cotton/ 
 
 A carrier of goods is liable, whether he is careful or not, for 
 any act or omission not caused by the act of God or the public 
 enemy.* And although a common carrier is not responsible for 
 the destruction or loss of goods by the act of the public enemy, he 
 is, nevertheless, bound to use due diligence to prevent sach destruc- 
 tion or loss and if his negligence contributed thereto, he will be lia- 
 ble.* Where an obligation or duty is imposed upon a person by 
 law, he will be absolved from liability for non-performance of the 
 obligation, if such non-performance was occasioned by the act of 
 God. The rule is illustrated in the case of common carriers in 
 Central Trust Co. v. Wahash, St. L. & P. R, Co. 31 Fed. Kep. 
 
 sell, 10 Johns. 1; The Niagara v. Oordes, 63 U. S. 21 How. 7, 16 L. ed. 41; 
 Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985; Eollister v. Nowlen, 19 
 Wend. 234; New Jersey Steam Nav. Go. v. Merchants Bank of Boston, 47 U. 
 S. 6 How. 428, 12 L. ed. 465; Trent & M. Nav. Co. v. Wood, 4 Dougl. 287, 
 3 Esp. 127; Bewail v. Allen, 6 Wend. 335; Ashmole v. Wainriglit, 2 Q. B. 
 837; Ansell v. Waterhouse, 2 Chitty, 1; Bretherton v. Wood, 3 Brod. &B. 54; 
 Hide V. Trent & M. Nav. Co. 1 Esp. 36; Hinton v. I>ibM7i, 2 Q. B. 646; Bich- 
 ardson v. Winsor, 3 Cliff. 401; Colt v. McMecIien, 6 Johns. 160, 5 Am. Dec. 
 200; Nichols v. De Wolf, 1 R. I. 277. 
 
 ' Giles V. Fargo, 43 N. Y. S. R. 65. 
 
 ' Gai'rison v. Memphis Ins. Co. 60 U. S. 19 How. 315, 15 L. ed. 657; Si7igleton 
 V. Ilillyard, 1 Sirobh. L. 203; Hall v. Nashville & G. R. Co. 80 U. S. 13 
 Wall. 372, 20 L. ed. 596; Rockingham Mut. F. Ins. Co. v. Bosher, 39 Me. 
 253, 63 Am. Dec. 618; Oilmore v. Carman, 1 Smedes & M. 279, 40 Am. Dec. 
 96; Neto Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 U. S. 6 
 How. 425, 12 L. ed. 465; Hale v. New Jersey Steam Nav. Co. 15 Conn. 539, 
 39 Am. Dec. 398; The City of Norwich, 3 Ben. 579; HoUister v. Nowlen, 19 
 Wend. 234, 32 Am. Dec. 455; Hunt v. Morris, 6 ]\Iart. (La.) 676; Miles v. 
 Cattle. 6 Bing. 748; Lyon v. Mells, 5 East, 428; Grill v. General Iron Screw 
 Collier Co. L. R. 1 C. P. 600. 
 
 *Lancast^-^ Mills v. Merchants C. P. & S. Co. 45 Am. & Eng. R. Cas. 423, 89 
 Tenn. 1. 
 
 * Pingree v. Detroit, L. & N. R. Co. 66 Mich. 143, and authorities cited. 
 
 ^Rolliday v. Kennard, 79 U. S. 12 Wall. 254, 20 L. ed. 390.
 
 DISTINCTION IN LIABILITY. 15 
 
 440. A carrier is not bound to the highest degree of diligence 
 to preserve the property from injury resulting from the act of 
 God, but is required to bestow such care as an ordinarily prudent 
 person or carrier would use under like circumstances, and is liable 
 for failure to do so.' But it is liable where its neeligence, 
 mingled with the act of God, caused loss." Still, in the case 
 of loss by flood or storm, if it is charged that the carrier's negli- 
 gence contributed to the loss, proof of this must come from those 
 who assert or rely upon it. Though a shipper assumes the duty 
 of loading the property, the carrier is liable for the injury which 
 was likely to result from moving the car by reason of the manner 
 of loading.* A common carrier of merchandise is an insurer 
 of property and its liability is not relieved by the fact that the 
 property was loaded by the owner or that he accompanies it." 
 A carrier's liability for freight arises from its failure to make 
 an absolutely safe carriage and delivery which it assumes by its 
 undertaking." In a contract for carriage, a common carrier is an 
 insurer, until the transit is ended, and then liable only as ware- 
 houseman during such reasonable time as the goods are in its cus- 
 tody awaiting the call of the consignee.' But a common carrier 
 cannot be held liable only as a warehouseman, until its contract 
 as carrier has been fulfilled.'' 
 
 Where the transportation of an article or thing involves, in it- 
 self, extraordinary risks, and an injury occurs in consequence 
 thereof, the carrier is only liable where he has been negligent ;' 
 as in transportation of animals by land or sea.' The explosion of 
 
 ^ Black V. Chicago, B. & Q. E. Co. 30 Neb. 197. 
 ^ Haney v. Kansas City, 94 Mo. 334, and authorities there collected. 
 3 Memphis & C. R. Co. v. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909; Doan v. 
 St. Louis, K. & N. W. R. Co. 38 Mo. App. 408. 
 
 * Hannibal & St. J. B. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 
 ^Jacobs V. Tutt, 33 Fed. Rep. 412. 
 
 * Bassett V. Connecticut River R. Co. 145 Mass. 129; Blaisdell v. Connecticut 
 
 River R. Co. 145 Mass. 132. 
 ' Wheeler v. Oceanic Steam Nav. Co. 52 Hun, 75. 
 8 McDonald v. Highland R. Co. 2 Ct. of Sess. (3d Series) 614. 
 ^Bloicer v. GreatWestern R. Co. L. R. 7 P. C. 656; Kendall v. London cfi <?. 
 
 W. R. Co. L. R. 7 Exch. 373, 41 L. J. Exch. 184; ^'ugent v. Smith, L. R. 
 
 1 C. P. Div. 423, 45 L. J. C. P. 697.
 
 16 LIABILITY AND DUTY TO PROVIDE SAFE TEANSPORTATION. 
 
 a package of nitro-glycerine while in the hands of a carrier who 
 has received it without information as to its dangerous character, 
 will not render the carrier liable.' But common carriers are 
 responsible for the wrongful acts of mere strangers in regard 
 to property committed to them for transportation/ 
 
 § 3. Carriers hy Rail Must Furnish Suitable Cars. 
 
 One of the obligations of the common carrier of freight by 
 railroad, universally recognized, is that requiring it to supply safe 
 and suitable cars for the transportation of all freight usually 
 transported over railroads.^ A railroad company cannot discon- 
 tinue an established switch connection with a coal mine, merely 
 because the cars of another company may be taken upon its line 
 over such switch, thereby endangering its property and the lives 
 of its passengers and employes." The company is required to 
 have suitable brakes upon its cars and in suitable repair ; and if 
 it neglects this duty and an accident results from such neglect, 
 liability attaches for resulting injuries." It will be liable for 
 injury from the defects of a car, even if it belongs to another 
 company, if it adopts it for the purposes of its own transit. ° 
 
 Where the shipper voluntarily makes his own selection of the 
 means of transportation, unless the carrier fails to disclose some 
 inherent defect known to him, he will be released from any loss 
 occurring through a defect which does not charge him with neg- 
 ligence.' If it furnishes unfit or insufficient vehicles, he is not 
 ordinarily exempted from responsibility by the fact that the shipper 
 
 ' Parrott v. Wells, 82 U. S. 15 Wall. 524, 21 L. ed. 206. 
 
 * Barclay V. Cucullay Gana, 3 Dougl. 389; Trent & M. Nav. Co. v. Wood, 3 
 
 Esp. 127, 4 Dougl. 287. 
 ^Smithy. New Haven & N. R. Co. 12 Allen, 531, 90 Am. Dec. 166; Pratt v. 
 Ogdensburg & L. C. R. Co. 102 Mass. 557, 89 U. 8. 22 Wall. 123, 134, 22 L. 
 ed. 827, 831; Potts v. Wabash, St. L. & f. R. Co. 17 Mo. App. 394; Mason 
 V. Missouri Pac. R. Co. 25 Mo. App. 473; Welsh v. Pittsburg, Ft. W. & C. R. 
 Co. 10 Ohio St. 65, 75 Am. Dec. 490. 
 
 * Chicago & A. R. Co. v. Suffern, 27 111. App. 404, affirmed in 129 111. 274. 
 
 » Costello V. Syracuse, B. & N. T. R. Co. 65 Barb. 92; Illinois Cent. R. Co. v. 
 
 Baches, 55 111. 379. 
 « Combe v. London d: S. W. R. Co. 31 L. T. N. S. 613. 
 ' Carr v. Schafer, 15 Colo. 48.
 
 CAKS MUST BE ADAJ^TED TO THEIK INTENDED USE. 17 
 
 knew them to be defective.' But when the owner of the prop- 
 erty to be transported makes his selection of the vehicles under 
 circumstances which charge him with full knowledge of all their 
 capabilities and defects, there being safe vehicles offered him, at 
 reasonable rates, the company is not responsible for any injury 
 which may result exclusively from such defects.' But it is suffi- 
 cient if the company provides a carriage which, without extra- 
 ordinary accident, will probably perform the journey.^ 
 
 It is a carrier's duty to equip its road with instrumentalities of 
 carriage suitable for the traffic it undertakes to carry, and to fur- 
 nish them alike to all who have occasion for their use ; and its 
 duty to furnish equipment cannot be transferred to or required 
 of shippers." The rule requiring a shipper to clean and repair 
 cars furnished on a side track is unreasonaljle.^ 
 
 A statute which provides for brakemen on trains, applies to 
 passenger trains and freight trains considered separately, and 
 cannot be applied to a mixed train ; but the duty in regard to 
 such trains is to provide the usual and proper appliances.' 
 
 § Jf. Cars Must he Adapted to their Intended Use. 
 
 See also § 58. 
 
 K railway company is bound to provide cars reasonably fixed 
 for the conveyance of the particular class of goods it undertakes 
 to carry.' It is the duty of the carrier to provide suitable means 
 of transportation adapted in each case to the particular class of 
 goods he undertakes to transport. He must protect his goods from 
 destruction or injury by the elements, from the effects of delay, 
 from every source of injury which, in the exercise of care and 
 ordinary intelligence, may be known or anticipated. The nature 
 of the goods must be considered in determining the carrier's duty. 
 
 1 Ogdensburg & L. G. B. Go. v. PMt, 89 U. S. 22 Wall. 123, 22 L. ed. 827. 
 
 ^Harris v. Northern Indiana R. Co. 20 N. Y. 232, 235. 
 
 * Amies v. Stevens, 1 Strange, 128; Great Western M. Co. v. Bloicer, 41 L J C 
 
 P. 268, L. R. 7 C. P. 655. 
 4 Rice V. Western K Y. & P. R. Go. 3 Inters. Com. Rep. 163. 
 « Joyner v. South Carolina R. Co. 26 S. C. 49. 
 ^Madoon v. Chicago & N.W. R. Co. 3 Inters. Com. Rep. 711. 
 ' Lyon V. Wells, 5 East, 428; Shaw v. York & N. M. R. Co. 13 Q. B. 347. 
 2
 
 18 LIABILITY AND DUTY TO PKOVIDE SAFE TEANSPOKTATION. 
 
 Where the marks on the package and the waybill disclosed that 
 the subject of shipment is such as should be transported in refrig- 
 erator cars during warm weather, the carrier will be liable for 
 neglect in providing such means of transportation.' 
 
 A carrier's duty is not limited to the transportation of goods 
 delivered for carriage. He must exercise such diligence as is re- 
 quired by law to protect the goods from destruction and injury 
 from any source, which may be averted and which, in the exer- 
 cise of care and ordinary intelligence may be known or antici- 
 pated. Many articles of commerce, when transported, must be 
 protected from storms, rain, sunshine and heat, and must have 
 cars suitable for their safe transportation. Thus, the sealing of a 
 car containing butter, when received from a connecting carrier, 
 is no excuse for failure to put ice in the car, if necessary to pro- 
 tect the butter from the heat. Nor can a carrier that has accepted 
 butter for transportation escape liability for damage to the butter 
 from the heat during transportation by the fact that it did not 
 have refrigerator cars which were ready for use ; at least when 
 it could have been carried safely by the use of ice in the cars 
 which were used. Where no specific agreement is shown for any 
 specific class of cars, and nothing is said about the character of 
 the cars to be used in the transportation of an article shipped 
 which requires to be protected from heat, the railroad company is 
 bound to provide refrigerator or other cars in which ice can be 
 used to protect the commodity when necessary, although the rate 
 of charges named is the rate for common cars.' 
 
 The carrier must guard the goods from injury from the effects 
 
 ^ Rice V. Western N. T. & P. R. Co. 3 Inters. Com. Rep. 162; Beard v. Illinois 
 Cent. R. Co. 7 L. R. A. 280, 79 Iowa, 518; Ma.wn v. Missouri Pac. R. Co. 
 25 i\Io. App. 473; Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 
 20 L. ed. 423; Heicitt v. Chicago B. & Q. R. Co. 63 Iowa, 612; Ogdensburg 
 & L. C. R. Co. V. Pratt, 89 U. S. 22 Wall. 123, 21 L. ed. 827; Potts v. Wa- 
 bash. St. L. & P. R. Co. 17 Mo. App. 394; Boscowitz v. Adams Exp. Co. 93 
 111. 525, 34 Am. Rep. 191 ; Steinweg v. Erie R. Co. 43 N. Y. 123, 3 Am. Rep. 
 673; Sager v. Portsjnouth, S. & P. & E. R. Co. 31 Me. 228, 50 Am. Dec. 659; 
 Wing V. NeioTork & E. R. Co. 1 Hilt. 241; Hawkins v. Great Wester nR. Go. 
 17 Mich. 62, 97 Am. Dec. 179, 18 Mich. 427; Merchants Despatch & Transp. 
 Co. V. Comfort?!,, 3 Colo. 280, 25 Am. Rep. 757; Welsh v. Pittsburg, Ft. W. 
 & C. R. Co. 10 Ohio St. 65, 75 Am. Dec. 490; Paramore v. Western R. Co. 
 53 Ga. 385. 
 
 * Beard v. Illinois Cent. R. Co. 7 L. R. A. 280, 79 Iowa, 518.
 
 WHEN FAILURE TO FURNISH CARS EXCUSED. 19 
 
 of delay. Some articles may be transported safely in open cars, 
 and others, when so carried, may prevent the carrier from avail- 
 ing himself of an exception in his bill of lading. Thus, cotton, 
 though its carriage be thus exempted from the peril of fire, must 
 not be needlessly exposed to danger.* The failure to provide the 
 appliances by which a locomotive was made to consume its own 
 sparks, may avoid the exemption from the peril of fire in favor of 
 the carrier.* But, this requirement does not impose upon the car- 
 rier the use of every possible prevention not reduced to practical 
 use, — but only such as the test of experience and reason has shown 
 to be practicable.' Indeed, there are cases which deny that it is the 
 duty of a carrier to provide special cars, — such as are in use by 
 other carriers — for the purpose of transporting special classes of 
 freight.' 
 
 § 5. When Failure to Furnish Cars Excused. 
 
 Refusing to furnish cars for transportation, when all cars are 
 needed for transportation of freight which has accumulated along 
 the line is not a violation of the Interstate Commerce Act. But it 
 is the duty of the carrier to furnish cars ratably to shippers along 
 its line until the emergency is passed. At times of special pres- 
 sure, regular customers are not entitled to preference over occa- 
 sional ones. Shipper need not make special contract with carrier 
 to be entitled to transportation of goods. Less desirable freight 
 must be accepted upon reasonable terms, as well as that which is 
 more desirable. When equipment of carrier usually applied to 
 transportation of a particular article is not equal to the demand, 
 carrier must appropriate other cars to such service. Carrier is not 
 justified in refusing cars for transportation of coal at certain points 
 
 ' Letering v. Union Tramp. & Ins. Co. 42 Mo. 88, 97 Am. Dec. 320; Empire 
 Transp. Co. v. Wamsutta Oil R. & M. Co. 63 Pa. 14, 3 Am. Rep. 515; In- 
 surance of N. A. V. St. louis, I M. dc S. B. Co. 3 McCrary, 233. 
 
 « Steimceg v. Erie R. Co. 43 N. Y. 123, 3 Am. Rep. 673. 
 
 » Field V. NeioYork Cent. R. Co. 32 N. Y. 339; Ford v. London & S. W. R. Co. 
 2 Fost. & F. 730. 
 
 ^ Wetzell V. Chicago & A. R. Co. 12 Mo. App. 599; Udell v. Illinois Cent. R. Co. 
 13 Mo. App. 254.
 
 20 LIABILITY AND DUTY TO PKOVIDE SAFE TKANSPOKTATION. 
 
 by the fact that it could make more money by using its regular 
 coal cars on another portion of the line.' 
 
 A railway corporation, when sued for its failure to furnish a 
 shipper with cars on request, must show its inability to furnish 
 such cars, even though plaintifE has expressly pleaded the con- 
 trary, the facts being peculiarly within the knowledge of defend- 
 ant.^ Delivery of cars by a railroad company at any hour during 
 the day for which they are ordered, though too late to be used that 
 day, is sufficient where no hour has been specified in the order/ 
 
 An unavoidable accident is no excuse for breach of an express 
 contract of a railroad company to furnish cars on a certain day.* 
 Nor will heavy and unprecedented traffic release a carrier from the 
 consequences that result from a breach of a contract to furnish cars 
 at a specified time.* A contract binding a carrier to transport 
 as many carloads of grain as the shi])per may desire transported 
 is valid as to acts done in performance of it, and until revoked." 
 A stipulation in a written contract of interstate shipment, re- 
 leasing the carrier from liability for damages sustained by the 
 breach of a prior verbal contract to supply cars for shipment, is 
 unreasonable, oppressive, and invalid.' An oral contract to pro- 
 vide transportation on a certain day is not, after a breach and 
 damages, merged in a subsequent written contract of shipment 
 duly performed, so as to deprive the shipper of his right to re- 
 cover damages for the breach.* 
 
 A local railroad station agent's lack of authority of which the 
 shipper had no knowledge, to make a verbal contract to supply 
 cars for transportation, will not relieve the company from liabil- 
 ity for a breach of such contract which is within the apparent 
 
 ' Riddle v. New York, L. E. &W. B. Co. 1 Inters. Com. Rep. 787. 
 « Ay res v. Chicago & N. W. R. Co. 71 Wis. 372. 
 ^ McOreic v. Missouri Pac. R. Go. 109 Mo. 5S3. 
 
 * Shulbrick v. Salmond, 3 Burr. 1637. 
 
 » Oulf, C. & 8. F. R. Co. V. Hume, 6 Tex. Civ. App. 653. 
 
 • Cleveland, C. C. <& 1. R. Co. v. Closser, 3 Inters. Com, Rep. 387, 9 L. R. A, 
 
 754, 126 Ind. 348. 
 •' Missouri, K. & T. R. Co. v. Grams (Tex. App.) May 3, 1890. 
 8 McAbsh&r v. Richmond & D. R. Co. 108 N. C. 344.
 
 DUTY OF CARRIEKS TO FUKNISH SEAWORTHY VESSELS. 21 
 
 scope of his general authority.' A station agent for a railroad 
 company has authority to make a special contract binding upon 
 the company, to furnish cars at the station for shipment on a 
 specified day.' 
 
 The act of the 20th Texas legislature imposing a penalty upon 
 railroad companies for failure to furnish freight cars, after de- 
 mand therefor in writing, does not abrogate the common law 
 right to recover from a company damages caused by its breach of 
 a verbal contract to furnish cars.' 
 
 § 6. Duty of Carrier hy Water to Furnish Sea- 
 worthy Vessel, etc. 
 
 The carrier by water must supply a seaworthy vessel, well 
 furnished with proper motive power and necessary equipment/ 
 Want of readiness of a vessel to receive cargo at the time a 
 notice that she is ready is given, is waived by failure to object, 
 where she could, at the time of giving the notice, have been put 
 in readiness in two days by the work of three men.^ But an ex- 
 press covenant to have a ship at a certain port by a certain day 
 is not excused by inability to fulfill it because of contrary winds 
 and bad weather." An act of God does not excuse a carrier for 
 failure to perform its express contract to transport within a rea- 
 sonable time.^ "Where there is nothing said on the subject, sea- 
 worthiness is an implied condition of a hiring of shipping.' A 
 warranty of seaworthiness is absolute in every contract for the 
 carriage of goods by sea, unless otherwise expressly stipulated." 
 AVhere the owner of a vessel charters her or offers her for trade, 
 he is bound to show that she is seaworthy and suitable for the 
 
 ' Missouri, K. & T. B. Co. v. Graves, siipra. 
 
 ^EciHton V. Dudley, 78 Tex. 236, 45 Am. & Ene. R. Cas. 340; McCarty v. 
 
 Gulf, C. & S. F. B. Co. 79 Tex. 33; Missouri,^K. & T. B. Co. v. Graves, 
 
 supra. 
 
 * Missouri Pac. B. Co. v. Harmonson (Tex. App.) April 23, 1890. 
 
 « Germania Ins. Co. v. The Lady Pike, 88 U. S. 21 Wall. 1, 22 L. ed. 499. 
 
 * Wencke v. Vaughan, 60 Fed. Rep. 448. 
 1 Shulbrick v. Salmond, 3 Burr. 1637. 
 
 « Van Buskirk v. Boherts, 31 N. Y. 661. 
 ^Lyony. Tiffany, 76 Mich. 158. 
 » The Caledonia, 43 Fed. Rep. 681.
 
 22 LIABILITY AND DUTY TO PROVIDE SAFE TKANSPOETATION. 
 
 service in which she is employed. If there are defects known or 
 unknown, he is not excused. He is obhged to keep her in proper 
 repair unless prevented by perils of the sea or inevitable accident.' 
 
 The owners of a vessel under charter are bound, under the cove- 
 nant for seaworthiness, to have the vessel in proper condition for 
 her voyage at the time of breaking ground ; and this obligation 
 is not affected by an express warranty of seaworthiness of the 
 vessel which contains no provision as to when it shall attach." 
 
 A clause in a bill of lading of cattle shipped upon a vessel, by 
 which the shipper assumes all risk of the fittings, is void as against 
 public policy, in so far as it relates to a defective condition of the 
 fittings through insufficient fastening due to the negligence of the 
 employes of the vessel, and unknown to the shipper at the time 
 of sailing.* Under a contract for the lease of shipping providing 
 that the lessees assume all liability for loss or damage to the cargoes 
 from whatever cause, and that neither the lessor nor the shipping 
 itself shall be held responsible, nothing being said about seaworthi- 
 ness, the lessor is liable for damage occasioned by an excessive leak- 
 age.* To constitute seaworthiness of the hull of a vessel in respect 
 to the cargo, the hull must be so tight, staunch and strong as to be 
 able to resist all ordinary action of the sea, and to prosecute and 
 complete the voyage, without damage to the cargo under deck.' 
 
 A vessel is ordinarily presumed to have been seaworthy upon 
 commencing her voyage ; but the presumption is otherwise where, 
 shortly after its commencement, without encountering any stress 
 of weather or unusual peril, she becomes so leaky as to be obliged 
 to put into a port of refuge for repairs.' 
 
 Prima facie the fact of injury to a cargo from a leak in a vessel 
 makes a case of negligence against the carrier ; throwing upon 
 him the burden of proving that the direct cause was a peril of the 
 
 ^Work V. Leathers, 97 U. S. 379, 24 L. ed. 1013; The Keokuk v. Home Ins. Co. 
 
 76 U. S. 9 Wall. 526, 19 L. ed. 746; The JSorthern Belle v. Eobson, 76 U. S. 
 
 9 Wall. 526. 19 L. ed. 748. 
 « Bowring v. Thebaud, 56 Fed. Rep. 520. 
 8 The Iowa, 50 Fed. Rep. 561. 
 *Lyon V. Tiffany, 76 Mich. 158. 
 
 'Uupont V. Vance, 60 U. S. 19 How. 162, 15 L. ed. 584. 
 ^Broadnax v. Cheraw & 8. B. Co. 1 Pa. Dist. Rep. 251.
 
 DUTY OF CAREIEES TO ^UK^'ISH SEAWORTHY VESSELS. 23 
 
 sea.' But unseaworthiness in a vessel cannot be inferred from the 
 mere fact of the slacking of a cargo of lime while on board.* 
 A vessel cannot be deemed unseaworthy because her decks had 
 a year before been repaired, and opened and leaked after being 
 exposed to a hurricane, where after recaulking she safely crossed 
 the Mediterranean and Atlantic in much rough weather.' 
 
 The fact of a welding defect at the place of the fracture of the 
 sliaft of a ship's engine will not show unseaworthiness, if the solid 
 part of the shaft at that place is mathematically established to 
 have been nearly two and one half times the strength requii'ed 
 for the performance of the ordinary duty in navigating the ship.* 
 And where damage to cargo was caused by water taken aboard 
 through a bilge pump hole, if there be any doubt upon the evi- 
 dence whether the cap and plate covering that hole were in good 
 condition and knocked off through extraordinary contingencies, 
 that doubt must be resolved against the charterer." Where 
 a cargo of sugar in the hold of a vessel was injured by water, 
 and the limber holes were stopped up, preventing the water 
 from running into the wells, and the pumps were out of order 
 and practically useless, and the windows through which it was 
 claimed that some of the water came were not shuttered, the ves- 
 sel is liable for the damages.* A vessel is liable for damage to a 
 cargo of ice, caused by the escape of steam from a defective drip 
 valve.'' A ship is liable for injuries sustained, by persons unload- 
 ing a cargo, by the falling of a platform on account of a defective 
 support which officers of the ship permitted to be used, although 
 they advised the men not to put too much weight upon it.* The 
 owner is liable for damage to the cargo from the sinking of an old and 
 insufficient bridge or from the timber of the bridge being rotten.' 
 
 • The Samuel E. Spring, 29 Fed. Eep. 397. 
 
 « Singleton v. Phcenix Ins. Co. 132 N. Y. 298. 
 » The Marlborough, 47 Fed. Rep. 6G7. 
 
 * Sweeney v. Thompson, 39 Fed. Rep. 121. 
 
 i Bradley Fertilizer Co. v. The Echcin I. Morrison, 153 U. S. 199, 38 L. ed. 688. 
 « The Charles J. Willard, 38 Fed. Rep. 759. 
 "> The Saugerties, 44 Fed. Rep. 625. 
 6 Keliher v. The Nebo, 40 Fed. Rep. 31. 
 
 *The Keokuk v. Home Ins. Co. 76 U. S. 9 Wall. 526, 19 L. ed. 746; The 
 Northern Belle v. Robson, 76 U. S. 9 Wall. 526, 19 L. ed. 748.
 
 24 LIABILITY AND DUTY TO PKOVIDE SAFE TRANSPORTATION. 
 
 § 7 . Carrier 'by Water Must Answer for Compe- 
 tency of Officers and Creiv. 
 
 The owner of a vessel engaged in service as common carrier 
 must see that the master is competent, skillful, of sound judg- 
 ment and discretion and of sufficient knowledge and experience,' 
 and that the crew is sufficient in numbers and qualified for its 
 duties, as both the owners and vessel are responsible for their 
 want of skill and judgment, or for their negligence.'' 
 
 Owners of a vessel are guilty of negligence toward the owners 
 of cargo in employing a master of such intemperate habits and so 
 addicted to intoxication as to render him unfit for his position. 
 The owners of a vessel are liable to the owners of cargo for dam- 
 ages from a collision occuring in the master's watch while the 
 navigation was in sole charge of the second mate, where such 
 master was incompetent by reason of his habits of intoxication, 
 and the owners were guilty of negligence in his appointment, and 
 at the time of the collision there was instant need of a master's 
 skill and experience, but the master was stupefied with drink, 
 and when he got on deck a few minutes after the collision, gave 
 a wrong order which the second mate was obliged to reverse.^ 
 The owner of the vessel is responsible for the direct negligence 
 or any. wrong doing of the master which is done by him as mas- 
 ter in the discharge of his duty and under the authority given 
 him as master." 
 
 The owner of the ship as well as the master, is responsible for 
 the goods which he has undertaken to carry, if stolen or embez- 
 zled by the crew, or by any otlier person, though no fault or 
 negligence may be imputable to him.° 
 
 The responsibility of owners for the acts of the master is not, 
 however, universal, but is confined to cases within the scope of 
 
 » The Ouildhall, 58 Fed. Rep. 796. 
 
 » Ward V. Chamberlain, 62 U. S. 21 How. 572, 16 L. ed. 219. 
 
 « The Guildhall, 58 Fed. Rep. 796; Chamberlain v. Ward, 62 U. S. 21 How. 
 548. 16 L. ed. 211; Germania Ins. Co. v. T/ie Lady Pike, 88 U. S. 21 Wall. 
 1. 22 L. ed. 499. 
 
 * Sheffield V. Pai(/e, 1 Sprague, 285; Hunt v. Colburn, 1 Sprague, 215; Foster 
 V. Sampson, 1 Sprague, 182; 2 Parsons, Ship. & Adm. 29. 
 
 *Schieffelin v. Harvey, 6 Johns. 170, 5 Am. Dec. 206; Watkinson v. Laugh- 
 ton, 8 Johns. 213.
 
 COMPETENCY OF OFFICEKS AND CKEW. 25 
 
 the authority confided to him.* They are not, therefore, liable 
 for acts of piracy committed by him.' A master cannot abandon his 
 ship and cargo upon any grounds when it is possible by human 
 exertions, skill and prudence to save tiiem from impending peril. 
 It depends upon the circumstances, whether the act of the master 
 in seeking shelter in a harbor, was reasonable and necessary, and 
 if it was, then he is not in fault. Masters have a right and often 
 it is their duty to seek shelter from a storm.* After stranding, it 
 is the master's duty to take all possible care of the cargo.* The 
 master was held guilty of the grossest negligence for not having 
 made any effort himself or requested it of others, either to get his 
 steamer off when stranded, or to remove and store the goods in 
 port' 
 
 It is the duty of the master of a vessel to acquaint himself with 
 the laws of the country with which he is trading and to conform 
 his conduct with those laws. He cannot defend himself where 
 he has been negligent under an asserted ignorance or erroneous 
 information on the subject." 
 
 The rule of mercantile law, making the master of a vessel lia- 
 ble for the negligent acts of those under his authority to the same 
 extent as if he were the owner, applies without regard to the 
 question whether the officers or men were employed by himself or 
 the owners.' A steamship company which keeps medicines on hand 
 for the use of passengers in case of sickness is bound to keep them 
 arranged so that a physician of ordinary skill can select them when 
 asked for, and is liable where, on account of their being badly 
 arranged, the ship's physician gives a passenger a different medi- 
 cine from that called for, from which the latter suffers permanent 
 injuries.* 
 
 * Reynolds V. Toppan, 15 Mass. 370, 8 Am. Dec. 110; The Rebecca, 1 Ware 
 
 188; The Druid, 1 W. Rob. Adm. 301; The Waldo, 4 Law. Kep. 382; The 
 
 Casco, 4 Law. Rep. 471. 
 *Dias V. Tfie Revenge, 3 Wasb. C. C. 262; The Dundee, 1 Hagg. Adm. 109 
 
 113, 120. 
 « The Niagara v. Cordes, 62 U. S. 21 How. 7, 16 L. ed. 41. 
 < The Portsmouth v, Onondaga Salt Co. 76 U. S. 9 Wall. 682, 19 L. ed. 754. 
 
 * The Niagara v. Cordes, supra. 
 
 « Rowland v. Greemnay, 63 U. S. 22 How. 491, 16 L. ed. 391. 
 ^ Kennedy v. Ryall, 67 N. Y. 379. 
 
 * Allan V. 8tate SS. Co. 29 N. Y. S. R. 288.
 
 26 LIABILITY AND DUTY TO PKOVIDE SAFE TKANSPORTATION. 
 
 "Where the freio;hter hires the possession, command and navi- 
 gation of the ship for the voyage, he becomes tlie owner and is 
 responsible for the conduct of the master and mariners ; and the 
 general owner is not liable for the nondelivery of goods shipped 
 or of goods lost/ In Massachusetts, the charterer of a vessel is 
 declared to be the owner in respect to responsibility for embezzle- 
 ment by the crew in case he navigates the vessel at his own ex- 
 pense." In case of abandonment to indemnitors, the latter become, 
 by relation, owners from the time of the loss on account of which 
 the abandonment was made, and they are consequently liable for 
 all repairs and necessary expenses incurred after the loss/ 
 
 § 8. Duty of Carrier of Goods to Inspect Present 
 Condition of Implements of Transportation. 
 
 The rule already stated as to the duty of inspecting the present 
 condition and soundness of the machinery and means of transporting 
 passengers is equally applicable to the common carriers of goods.* 
 The failure of the owners to have a vessel thoroughly inspected 
 after a prior accident to her, is inexcusable negligence. It is their 
 duty to have her often examined, and thoroughly inspected.^ 
 After a freight tank car has just returned from one long jour- 
 ney, it is the duty of the carrier, before permitting it to start out 
 loaded on another distant run, in which the lives and safety of 
 brakemen, trainmen, and the property of the shipper will be in- 
 volved, to have such car carefully inspected by a competent in- 
 spector, in order to ascertain whether it is in a safe condition for 
 
 ' Cliristtle v. Lewis, 2 Brod. & B. 410; Marcardier v. Chesapeake Ins. Co. 12 U. 
 
 S. 8 Wheat. 605, 5 L. ed. 696; Pitkin v. Brainerd, 5 Conn. 451, 13 Am. 
 
 Dec. 79; Latham v. Lawrence. 13 Conn. 299; Ciarksonv. Edes, 4 Cow. 470; 
 
 Reynolds v. Toppan, 15 Mass. 370, 8 Am. Dec. 110; Emery v. Hersey, 4 Me. 
 
 407, IG Am. Dec. 268; Lander v. Clark, 1 Hall, 355; Calvin v. Newberry, 6 
 
 Bligb, N. S. 189; Pickman v. Woods, 6 Pick. 251, 
 2 Rev. Stat, of 1835, 1[ 1, cl. 32, § 3. 
 * United Ins. Co. v. Robinson, 2 Cai. 280; United Ins. Co. v. Scott, 1 Johns. 
 
 106; Reade v. Commercial Ins. Co. 3 Johns. 352, 3 Am. Dec. 495; Lee v. 
 
 Boardman, 3 Mass. 238, 3 Am. Dec. 134; 2 Emerigon, Ins. 194, 196; 
 
 Pothier, Contract d' Assurance, 138. 
 *See " Imposed Duties Passenger Carriers," § 19. 
 « The Northern Belle v. Robson, 76 U. S. 9 Wall. 526, 19 L. ed. 748.
 
 DISCRIMINATION BETWEEN EXPRESS COMPANIES. 27 
 
 such service." But a master of a vessel is not guilty of improper 
 conduct in failing to have her decks renewed upon putting into 
 port after passing through a hurricane, when everything recom- 
 mended by the surveyors, one of whom represented the cargo 
 as agent of the underwriters, was done/ 
 
 § 9. Discrimination Between Express Companies 
 in Furnishing Facilities. 
 
 In N^ew Hampshire, it was held that a railroad company was 
 bound to furnish equal facilities to all express companies, for the 
 transportation of their merchandise ; and that this rule existed at 
 common law, without the aid of a statute.' In Pennsylvania, a 
 special contract with an express company, giving it exclusive 
 privileges of carrying freight upon its passenger trains, was or- 
 dered to be canceled.* In Illinois, it is said that the duties and 
 liabilities of common carriers are clearly defined by the common 
 law, and have been settled for centuries. In accepting their 
 charters which gave them an artificial existence as common car- 
 riers, they necessarily accepted them with all the duties and lia- 
 bilities, attached by the existing law to the functions of a com- 
 mon carrier. While the law now imposes and always has 
 imposed upon individuals exercising the vocation of a common 
 carrier, the obligation of rendering service to all persons without 
 injustice to any, how utterly unreasonable is it to claim that a 
 corporation is to be permitted to discriminate in its tolls, at its 
 own discretion, and without regard to justice, etc.^ 
 
 In New England Exp. Go. v. Maine Cent. R. Co. 57 Me. 18S, 
 2 Am. Rep. 31, an action in case for damages was brought under 
 circumstances like those that gave the ground for injunction in 
 the case cited from Pennsylvania. Defendant had refused to 
 
 ' Michigan Congress Water Go. v. Chicago & G. T. E. Co. 2 Inters. Com. Rep. 
 
 428. 
 » The Marlborough, 47 Fed. Rep. 667. 
 
 3 McDuffee v. Portland & R. R. Co. 52 N. H. 430, 13 Am. Rep. 72. 
 *Sandford v. Cattaicissa, W. & E. R. Co. 24 Pa. 378, 64 Am. Dec. 667. 
 » Chicago & A. R. Co. v. People, 67 111. 11, 16, 16 Am. Rep. 599.
 
 26 LIABILITY AND DUTY TO PKOVIDE SAFE TEANSPOETATION. 
 
 carry goods for plaintiff because, some years before it had made 
 a contract with another express company to give it the exclusive 
 right to carry express matter on its cars. The court says : "Com- 
 mon carriers are bound to carry indifferently, within the range of 
 their business, for a reasonable compensation, all freight offered. 
 For similar equal services, they are entitled to the same compen- 
 sation. They cannot legally make unjust and undue preferences 
 nor make unequal and extravagant charges. A toll is granted. 
 But a toll implies uniformity of compensation for equality of ser- 
 vice. The very definition of a common carrier excludes the idea 
 of the right to grant monopolies or to give special or imdue pre- 
 ference. They owe an equal duty to each citizen. They are 
 allowed to impose a toll but it is not to be so imposed as to spe- 
 cially benefit one and injure another. Such is the common law 
 on the subject. The legislation of the state has been in accord- 
 ance with these views." Again the court says : " The very defi- 
 nition of a common carrier excludes the idea of the right to grant 
 monopolies or to give special and unequal preferences. It im- 
 plies indifference as to whom they may serve and an equal readi- 
 ness to serve all that may apply and in the order of their applica- 
 tion. The defendants derived their chartered rights from the 
 state. . They owe an equal duty to each citizen." * 
 
 In Dlnsmore v. St. Louis, C. c& L. R. Co. 2 Fed. Eep. 465, 
 two cases were disposed of by Judge Baxter, one in the circuit 
 court of the United States for Kentucky, and the other for Ten- 
 nessee. On p. 469, Judge Baxter, having treated of the duty to 
 supply all the accommodations and facilities demanded by the 
 business of the country, says : " And next in importance to this 
 leading idea is the obligation to do exact and even-handed justice 
 to everybody offering to do business with them. . . . The 
 defendant, to the extent of its corporate authority, the Union 
 Express Company and all other persons or companies wishing to 
 engage in the carrying of express matter over defendant's road, 
 can enter on that business on equal terms with the complainant. 
 Neither the railroad companies nor the courts can discriminate in 
 favur of one or more parties or against others. All are entitled 
 
 ' See ^^0 International Exp. Co. v. Grand Trunk B. Co. of Canada, 81 Me. 93.
 
 DISCRIMINATION BETWEEN EXPRESS COISIPANIES. 2y 
 
 to the same measure of accommodation who may offer to do the 
 like business, and it is the duty of the court to enforce, whenever 
 appHed to this legal rule of impartial justice." 
 
 Five cases reported in 10 Fed. Rep. 210, were decided before 
 Justice Miller and Judges McCrary and Treat, arising in the 
 various circuit courts of the United States for Mississippi, Ar- 
 kansas, Kansas, and Colorado ; and Justice Miller, on p. 214, 
 states as the tiftli point in his opinion : " I am of the opinion 
 that it is the duty of every railroad company to provide such con- 
 veyances, by special cars or otherwise, as are required for the safe 
 and proper transportation of the express matter on their roads ; 
 and that the use of their facilities should be extended on equal 
 terms to all who are actually and usually engaged in the express 
 business." In the case of Southern Eep. Co. v. Memphis & L. 
 R. Co. 8 Fed. Rep. 709. the complainant, an express company, 
 had been for many years engaged in carrying on an express busi- 
 ness over the defendant's railroad. No written contract was ever 
 entered into between the parties, but the business was carried on 
 without objection, and upon terms mutually satisfactory, until some 
 time in the year 1880, when the defendant asserted its own right 
 to transact all the express business upon its line, and attempted to 
 eject the complainant therefrom. Upon the application of com- 
 plainant, a temporary injunction was granted ; and, nj)on a motion 
 to dissolve the same, McCrary, «/., said that it was the duty of 
 the defendant, as a public servant, to receive and cany goods for 
 all persons alike, without injurious discrimination as to rates or 
 terms ; that railroad companies must carry express packages and 
 the messenger in charge of them, for all express companies tliat 
 apply, on the same terms, unless excused by the fact that so many 
 apply that it is impossible to accommodate all. 
 
 Some of these cases coming on appeal from the United States 
 circuit courts, were considered together by the Suj^reme Court 
 of the. United States, and it was there decided, that in the 
 absence of some special statute, there is no law or usage having 
 the force of law, which requires railroad comi)anies to furnish 
 express facilities to all express companies which demand them.' 
 
 ^Memphis <& L. R. R. Co. v. Soutliern Exp. Co. 117 U. S. 1, 29 L. ed. 791.
 
 30 LIABILITY AND DUTY TO PROVIDE SAFE TEANSPOKTATION. 
 
 The car space that can be given to the express business on a pas- 
 senger train is, to a certain extent, limited ; and as is well known, 
 that which is to be allotted to a particular carrier must be, in a 
 measure, under its exclusive control. 'No express company can 
 do a successful business, unless it is at all times reasonably sure of 
 the means it requires for transportation. On important lines one 
 company will at times fill all the space the railroad company can 
 well allow for the business. If this space had to be divided 
 among several companies, there might be occasion when the pub- 
 lic would be put to inconvenience by delays which could other- 
 wise be avoided. So long as the public are served to their rea- 
 sonable satisfaction, it is a matter of no importance who serves 
 them. The railroad company performs its whole duty to the 
 public at large and to each individual, when it affords the public 
 all reasonable express accommodations. If this is done the rail- 
 road company owes no duty to the public as to the particular 
 agencies it shall select for that purpose. The public require the 
 carriage, but the company may choose its own appropriate means 
 of carriage, always provided they are such as to insure reasonable 
 promptness and security. 
 
 The inconvenience that would come from allowing more than 
 one express company on a railroad at the same time, was appar- 
 ently so well understood, both by the express companies and the 
 railroad companies that the tliree principal express companies, — 
 the Adams, the American, and the United States, — almost imme- 
 diately on their organization, now some forty years ago, by 
 agreement divided the territory in the United States traversed by 
 railroads among themselves ; and since that time each has confined 
 its own operations to the particular roads, which, under this di- 
 vision, have been set apart for its special use. No one of these 
 companies have ever interfered with the other, and each has 
 worked its allotted territory, always extending its liiies in the 
 agreed directions as circumstances would permit. At the begin- 
 ning of the late civil war the Adams Express Company gave up 
 its teri-ilory in the southern states to the Southern Company, 
 and since then the Adams and Southern have occupied, under 
 arrangements between themselves, that part of the ground origi-
 
 DISCRIMINATION lil;.i\ViiKN EXrKliSS COMPANIES. 31 
 
 nallj assigned to the Adams alone. In this way, these three or 
 four important and influential companies were able substantially 
 to control, from 1854 until now, all the railway express business 
 in the United States,except upon the Paciflc roads and in certain 
 comparatively limited localities. In fact, as was shown some 
 ten years ago, the Adams then occupied 155 railroads, with a 
 mileage of 21,216 miles, the American 200 roads with a mileage 
 of 28,000 miles, and the Southern 95 roads, with a mileage 
 age of 10,000 miles. Through their business arrangements with 
 each other, and with other connecting lines, they have been able 
 for a long time to receive and contract for the delivery of any 
 package committed to their charge at almost any place of import- 
 ance in the United States and Canada, and even at some places in 
 Europe and the West Indies. They have invested millions of 
 dollars in their business, and have secured public confidence to 
 such a degree that they are trusted unhesitatingly by all who 
 need their services. The good will of their business is of very 
 great value, if they can keep their present facilities for trans- 
 portation. The longer their lines and the more favorable their 
 connections, the greater will be their own profit and the better 
 their means of serving the public. In making their investments 
 and in extending their business they have undoubtedly relied on 
 securing and keeping favorable railroad transportation, and in 
 this they were encouraged by the apparent willingness of the 
 railroad companies to accommodate them ; but the fact still re- 
 mains that they have never been allowed to do l)usiness on any 
 road except under a special contract, and that, as a rule, onl}^ one 
 express company has been admitted on a road at the same time. 
 The simple transportation of property on a railway is but a 
 small percentage — 40 per cent — of the express business. The 
 remaining 60 per cent is of business done off the lines of railway, 
 and is of a character not included even by implication in the right 
 to transport passengers and goods, wares and merchandise on a 
 prescribed line. Such service, it has been said, cannot lawfully 
 be required from a railway company.* 
 
 ^American Merchants U. Exp. Co. v. Wolf, 79 111. 430; American U. Exp. 
 Co. V. Robirmn, 73 Pa. 274; Thomas v. Boston & P. B. Corp. 10 Met. 477,
 
 O'Ji LIABILITY AND DUTY TO I'liOV^IDE SAFE TKANSPOKTATION. 
 
 But, although ruling that railroads are not common carriers as 
 to express companies so as to be compelled to transport their 
 matter witliout any preference or discrimination between such 
 companies, and that the question is admittedly one proper for legis- 
 lative action, the Supreme Court of the United. States is inclined 
 to regard it as the duty of the railroad companies to furnish such 
 facilities to the public and, in stating its rulings on the ques- 
 tion of discrimination between express companies, it is said that 
 the obligation of railroad companies either to carry express mat- 
 ter themselves or to allow it to be carried by their trains is, 
 however, a different question.' Still it may be said that a statute 
 making it unlawful for any common carrier to give undue or 
 unreasonable preference to any person, company, firm, corpora- 
 tion, or locality, does not require equal facilities to be given 
 to express companies for carrying on business over a railroad, 
 unless it holds itself out as a common carrier of such companies.' 
 But in granting the right, the interest of the carrier may be con- 
 sidered. Justice Pratt, in the supremo court, Brooklyn, granted a 
 temporary injunction restraining the Kew York & jSiew England 
 Railroad Company, and othei-s, from executing and delivering any 
 contract granting express privileges over the lines of the company, 
 to the American Express Company, and from putting that com- 
 pany in possession of any such facilities over the lines of the 
 railroad company. The application for the injunction was made 
 in behalf of a stockholder in the Kew York & IS'ew England 
 Company. In his affidavit, on which the injunction is granted, he 
 alleges that the railroad company rejected an offer which would in 
 all other respects equal that made by the American Express Com- 
 pany, and in addition guaranteed $22,000 more a year as a mini- 
 
 43 Am. Dec. 444; Witbeck v. Holland, 45 N. Y. 17, 6 Am. Rep. 23, 5~> 
 Barb. 448; Hoagland v. Hannibal & St. J. R. Co. 39 Mo. 451; 5/1. Joseph, H. 
 & St. J. R. Co. V. Saville, 39 Mo. 460; People v. Ghicaga & A. R. Co. 55 111. 95 
 Am. Dec. 631 ; Macon v. Macon & W. R. Co. 7 Ga. 231 ; Abbott v. Baltimore & 
 R. Steam Packet Co. 1 Md. Ch. 542; Citizen's Bank v. Nantucket S. B. Co. 
 2 Story, 17; Collender v. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 234; Bland 
 V. Southern Exp. Co. 1 Hughes, 345; Knapp v. United States & C. Exp. Co. 
 55 N. H. 348; Whitney v. Merchant's U. Exp. Co. 104 Mass. 153, 6 Am. 
 Rep. 207; Palmer v. 'Holland, 51 N. Y. 416, 10 Am. Rep. QIQ; Ameri- 
 can Exp. Co. V. Haire, 21 Ind. 4, 83 Am. Dec. 334. 
 ^Memphis & L. R. R. Co. v. Southern Exp. Co. 117 U. S. 1, 29 L. ed. 791.
 
 DISCRIMINATION BETWEEN EXPRESS COMPANIES. 33 
 
 mum compensation for the privileges, and which would make a 
 gain to the New York & New England Company of at least 
 $110,000 for the proposed five years' contract. The railroad 
 company would also lose certain incidental advantages which 
 would accrue to it from making a contract with the United States 
 Express Company, which had made the larger offer, by reason of 
 its connections with the Reading Company, which directly con- 
 nects with the New England Company at Hopewell Junction and 
 at Hartford, and with which there now exist traffic contracts. 
 The plaintiff gave a bond of $5000. By the terms of the con- 
 tract, the performance of whicli is thus enjoined, the American 
 Express Company was to have assumed control of the express 
 business over the New York & New England road. Heretofore 
 this business has been done by the Adams Express Company. 
 
 A carrier allowing an expressman to occupy a stand at its 
 depot is not required by common law to furnish equal facilities to 
 all persons, nor will a statute be given such a construction in 
 order to bring it within any express theory of public policy.' 
 
 ' Old Colony B. Co. v. Tripp, 147 Mass. 35; Co7n. v. Carey, 147 Mass. 40 note. 
 
 3
 
 CHAPTER II. 
 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 § 10. TJie Common Law Liability of Freight Carriers. 
 
 §11. Limitation of Liability hy Notice. 
 
 § 12, Limitation of Liability in Particular Instances. 
 
 § 13. Release of LiaMlity Must Rest upon a Co7isideration. 
 
 § 14. Denial of Right to Contract against Negligence. 
 
 § 15. Refusal of United States Courts to Recognize Contracts Re- 
 leasing Liability for Negligence. 
 
 § 16. Wlien Exem]}tion by Contract is Permitted, it Must be Clear 
 ayid Explicit. 
 
 § 17. Statutes Limiting Power of Carrier to Contract against its 
 oion Negligence. 
 
 § 1 8. Limitatio7i of Amount of LiaMlity by Statu te — A ct of Congress. 
 
 § 19. Laio of Place of Contract of Affreightment. 
 
 % 10. The Coimnoji Law Liahiliby of Freight 
 Carriers. 
 
 In pointing out the distinction in liability between carriers of 
 goods and passenger carriers, in § 2, ante, something has neces- 
 sarily been said of the common law liability of the former, and 
 what is now written is in continuation of the discussion pointing 
 out the permitted modifications of such liability. What has b.een 
 called the general maritime law is enforced in this country and 
 other countries, so far only as it has been adopted by the laws or 
 usages thereof ; and no i^ule of general maritime law (if any ex- 
 ists) concerning the validity of a stipulation authorizing a carrier 
 upon water to contract against his liability for negligence has ever 
 been adopted in the United States or in England or recognized 
 in the admiralty courts of either.* 
 
 ^Liverpool & O. W. Steam Co. v. Phenix Ins. Co. {" The Montana ") 129 U. S. 
 397, 32 L. ed. 788; Bodd v. Eeartt (" The Lottawanna") 88 U. S. 21 Wall. 
 558, 22 L. ed. 654; National Steam Nav. Co. v. Dyer (" The Scotland") 105 
 
 34
 
 THE COMMON LAW LIABILITY OF FKKIGHT CAKKIERS. 85 
 
 But there is not, in fact, any general maritime law recognizing 
 the right of a carrier of goods or passengers by water to stipulate 
 for exemption from all liability for liis own negligence. The de- 
 cisions of courts and opinions of commentators in France, Italy, 
 Germany and Holland, tending to show the existence of sucli a 
 rule, do not appear to have been based on general maritime law, 
 but largely, if not wholly, upon provisions or omissions in the 
 codes of the particular countries, and it has been said by many 
 jurists that the law of France, at least, was otherwise.' 
 
 The common law charges the common carrier, whether by land 
 or water, against all events but acts of God, of the king's enemies 
 or of the shipper ; so that a common carrier is an insurer against 
 all perils or losses not within the exception. This rule is part of 
 the common law of this country, and it is not a defense to the 
 claim of an owner that a carrier has done the best he could or 
 that the accident causing the loss was unavoidable. He must 
 bring himself clearly within one of these exceptions.* 
 
 U. S. 24, 26 L. ed. 1001; The Belgenland v. Jenxen. 114 U. S. 355, 33 L. ed. 
 152; T/i^ Harrisburgv. Bickards, 119 U. S. 199. 30 L. ed. 358: The Ham- 
 burgh, 2 Moore, P. C. N. S. 289, 319, Brown & L. Adm. 253. 272; Lloydv. 
 Ouihert, L. R. 1 Q. B. 115, 6 Best & S. 100, 136; TIte Gaetano, L. R. 7 
 Prob. Div. 137. 
 
 ^Liverpool & Q. W. Steam Co. v. Phenix Ins. Co. {" The Montana") supra; 4 
 Goujet & Meyer, Diet. Droit Com. (2d ed.); Voiturier, Nos. 1, 81; 2d Trop- 
 long. Droit Civile, Nos. 894, 910, 942, and other cases cited in Peninsular & 
 0. Steam Nav. Co. v. Shand, 3 Moore, P. C. N. S. 272, 278, 285, 286; Mel- 
 lish, L. J., in Cohen v. Southeastern R. Co. L. R. 2 Exch. Div. 253. 
 
 * Coggs V. Bernard, 2 Ld. Raym. 909; Trent & M. Nav. Co. v. Wood, 3 Esp. 
 127; Riley v. Home, 5 Bing. 217; The Maria, 4 Rob. Adm. 348; LaTourette 
 V. Barton (" The Commander-in-Chief"') 68 U. S. 1 Wall. 43. 17 L. ed. 609; 
 Leichford^. The Oolden Eagle, 17 La. Ann. 9; Friend v. Woods, 6 Gratt. 
 189; Orange County Bank v. Brown, 9 Wend. 85, 24 Am. Dec. 129; Thur 
 man v. Wells, Fargo & Co. 18 Barb. 500; Mershon v. Hobensack, 23 N. J. L. 
 580; Thomas v. Boston & P. R. Corp. 10 Met. 476, 43 Am. Dec. 444; Crosby 
 V. Fitch, 12 Conn. 419, 31 Am. Dec. 745; Lewis v. Luditick, 6 Coldw. 368, 
 98 Am. Dec. 454; Fish v. Chairman, 2 Ga. 349, 46 Am. Dec. 393; New 
 Brunswick, S. B. & C Transp. Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 
 394; Swindler v. Hilliard, 2 Rich. L. 286, 45 Am. Dec. 732; Kiff v. Old 
 Colony & N. R. Co. 117 Mass. 591, 19 Am. Rep. 429; Eagle v. Wliite, 6 
 Whart. 517, 37 Am. Dec. 434; Sviyrlv. Niolon, 2 Bail. L. 421, 23 Am. Dec. 
 146; Hannibal & St. J. R. Co. v. tiicift, 79 U. S. 12 Wall. 262, 20 L. ed. 423; 
 Memphis & C. R. Co. v. Reeves, 77 U. S. 10 Wall. 176. 19 L. ed. 909; Powell 
 V. Mills, 30 iMiss. 231, 64 Am. Rep. 158; Edwards v. White Line Transit Co. 
 104 Mass. 159, 6 Am. Rep. 213; Morri.wn v. Davis, 20 Pa. 171, 57 Am. Dec. 
 695; Central R. tfe Bkg. Co. v. Hines, 19 Ga. 203; Daggett y. Shaw, 3 Mo. 
 264; Bohannan v. Hammond, 42 Cal. %Z1;' Howev. Oswego <& S. R. Co. 56
 
 36 LIMITATIOI:* OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 A carrier which makes no inquiry as to the vahie of his baggage 
 of a passenger who uses no device to escape injury is liable for the 
 full value of jewelry and personal ornaments contained therein, 
 unless they are in excess, in quantity or value, of articles usually 
 taken by persons in like positions making like trips.' 
 
 The rules of the common law are simple and well defined. The 
 carrier was always liable for all losses, except those occasioned by 
 the act of God, or the public enemy. He was an insurer of the 
 property committed to his custody, even against fire and theft or 
 robbery by armed men. This was on grounds of public policy, to 
 prevent conspiracy of the carrier with the thief or trespasser.^ 
 
 Holt, Ch. J., in Coggs v. Bernard^ 2 Ld. Kaym. 918, says : " This 
 is a politic establishment, contrived by the policy of the law for the 
 safety of all persons, the necessity of whose affairs oblige them to 
 trust these sorts of persons, that they be safe in their ways of deal- 
 ing." Lord Mansfield says' the carrier was held liable for such loss 
 " to prevent litigation, collusion, and the necessity of going into cir- 
 cumstances impossible to be unraveled. The law presumes against 
 the carrier, unless he shows it was done by the King's enemies, or 
 by such act as could not happen by the intervention of man ; as 
 storms, lightning, and tempests . . It appears from all the 
 
 cases for a hundred years back that there are events for which the 
 carrier is liable, independent of his contract. By the nature of 
 his contract, he is liable for all due care and diligence, and for 
 any negligence he is suable on his contract. But there is a fur- 
 ther degree of responsibility by the custom of the realm ; that is, 
 by the common law, a carrier is in the nature of an insurer." 
 
 % 11. Limitation of Liability hy JVotice. 
 
 Burrough, J"., in Smith v. Horne^ 8 Taunt. 144, says : "Tlie 
 doctrine of notice was never known until the case of Forward \. 
 
 Barb. 121; Turner v. Wilson, 7 Yerg. 340; Emery v. Hersey, 4 Me. 411, 16 
 Am. Dec. 268; Boyle v. McLaughlin, 4 Harr. & J. 291; Dunseih v. Wade 3 
 111. 285. 
 
 I Bonner v. Blum (Tex. Civ. App.) Jan. 25, 1894. 
 
 * Hart well v. Northern Pac. Exp. Co. 3 L. R. A. 843, 5 Dak. 463. 
 
 'Forward v. Pittard, 1 T. K. 27.
 
 LIMITATION OF LIABILITY BY NOTICE. 37 
 
 Pitfard,^^ from which we quote the langua<re of Lord Mans- 
 field, which he says he argued many years before. An ex- 
 amination of that case fails to show any such limitation, or to 
 make any reference to the subject of notice. The doctrine seems 
 first to have been recognized that the liability of the carrier could 
 be limited by a special contract and notice brought home to the 
 party in 1804,' by Lord EUenborough, though the doctrine was 
 expressly denied by Lord Kenyon in 1793, Hide v. Trent <& M. 
 Nav. Froprs. 1 Esp. 36, in which he says : " Where a man is 
 bound to any duty, and chargeable to a certain extent by the 
 operation of law, in such case he cannot, by any act of his own, 
 discharge himself," And again referring to the common carrier, 
 he says : "They cannot discharge themselves by any act of their 
 own, as by giving notice, for example, to that effect." The doc- 
 trine, however, announced by Lord EUenborough in Nicholson 
 V. Willan, seems to have subsequently obtained, and to have 
 been carried so far as to allow the common carrier to cast off 
 all liability whatsoever. And in Maving v. Todd, 1 Stark. 72, 
 the defendant carrier having given notice that "he would not 
 be responsible for loss by fire." Lord EUenborough nonsuited the 
 plaintiff; remarking, however, that "if this action had been 
 brought twenty years ago, the defendant would have been liable 
 since by the common law a carrier is liable in all cases except 
 two — where the loss is occasioned by the act of God, or the King's 
 enemies using an overwhelming force which persons with ordi- 
 nary means of resistance cannot guard against" — thus showing the 
 departure that the courts had made in so short a period. 
 
 But liability of a steamship company for baggage is not 
 affected by a limitation of a paper given a passenger when he is 
 already at sea and powerless to repudiate the pretended contract.* 
 
 Judge Bronson in Hollister v. Nowlen, 19 Wend. 234:-242, 32 
 Am. Dec. 455, after reviewing the common law decisions, and 
 referring to the innovation made by Lord EUenborough upon the 
 doctrine of notice, says that the doctrine (referring to the decis- 
 
 ^McholsoiiY. Willan, 5 East, 507. 
 
 * Leclwuitzer v. HamburQ- American Packet Co. 8 Misc. 213.
 
 3.5 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 ion of Lord Ellenborough, supra) in question was not received in 
 "Westminster Hall without much doubt ; and although it ulti- 
 mately obtained something like a firin footing, many of the 
 English judges have expressed their regret that it was ever sanc- 
 tioned by the courts. Departing, as it did, from the simplicity 
 and certainty of the common law rule, it proved one of the most 
 fruitful sources of legal controversy which has existed in modern 
 times. "When it was once settled that a carrier might restrict his 
 liability by a notice brought home to his employer, a multitude 
 of questions sprung up in the courts which no human foresight 
 could have anticipated. Each carrier adopted such a form of 
 notice as he thought l)est calculated to shield himself from 
 responsibility without the loss of employment, and the legal effect 
 of each particular form of notice could only be settled by juiacial 
 decision. Whether one who had given notice that he would not 
 be answerable for goods beyond a certain value, unless specially 
 entered and paid for, was liable in case of loss to the extent of 
 the value mentioned in the notice, or was discharged altogether ; 
 whether, notwithstanding the notice, he was liable for a loss by 
 negligence, and, if so, what degree of negligence would charge 
 him ; what should be sufficient evidence that notice came to the 
 knowledge of the employer ; whether it should be left to the jury 
 to presume that he saw it in a newspaper which he was accus- 
 tomed to read, or observed it posted up in the office where the 
 carrier transacted his business ; and, then, whether it was printed 
 in large or small letters, and whether the owner went himself or 
 sent his servant with the goods, and whether the servant could 
 read — these, and many other questions were debated in the courts 
 while the public suli'ered an almost incalculable injury in conse- 
 quence of the doubt and uncertainty which hung over this 
 important branch of the law. See 1 Bell, Com. 474. After 
 years of litigation, Parliament interfered, and relieved both the 
 courts and the public, by substantially reasserting the rule of the 
 comuKju law. The Statute of 1 "Wm. IV., chap. 68, among other 
 things enacted : "No public notice or declaration heretofore 
 made, or hereafter to be made, shall be deemed^ or construed to 
 limit, or in any wise affect, the liability at common law of any
 
 LIMITATION OF LIALJILITY BY NOTICE. 39 
 
 carriers, but that all and every such carrier shall be liable as at 
 common law to answer for the loss or injury of the property, any 
 public notice or declaration by them made and given contrary 
 tliereto, or in any wise limiting such liability, notwithstanding." 
 It would seem, then, that the common law of England, as it 
 existed up to the time of our lievolution, did not permit a carrier 
 to limit his liability by notice. Under the Act of Parliament, 
 requiring that stipulations exempting the common carrier from 
 his common law liability must be reasonable to be valid, the 
 English courts have held that stipulations which would have the 
 effect of releasing the common carrier from loss caused by neg- 
 ligence were unreasonable and void in toto, leaving such common 
 carrier under his full common law liabilit3\' 
 
 If, after a trial of thirty years, the people of Great Britain, 
 whose interests and pursuits are not very dissimilar to our own, 
 have condemned the whole doctrine of limiting the carrier's lia- 
 bility by a notice; if after a long course of legal controversy they 
 have retraced their steps, and returned to the simplicity and cer- 
 tainty of the common law rule — we surely ought to profit by their 
 experience, and should hesitate long before we sanction a j^ractice 
 which not only leads to doubt and uncertainty concerning the 
 rights and duties of the parties, but which encourages negligence, 
 and opens a wide door to fraud. 
 
 The question in Hollister v. Nowlen^ from which this quota- 
 tion is made, was one of notice — whether the carrier by general 
 notice could limit his liability for the luggage of the passenger ; 
 and in discussing this question of notice the learned judge fur- 
 ther uses the following pertinent language : "The argument is 
 that where a party delivers goods to be carried, after seeing a 
 notice that the carrier intends to limit his responsibility, his assent 
 to the terms of the notice may be implied. But this argument 
 entirely overlooks a very important consideration. Notwith- 
 standing the notice, the owner has a right to insist that the car- 
 rier shall receive the goods subject to all the responsibilities 
 incident to his employment. If the delivery of goods under such 
 
 ^ McManus v. Lancmliire <& Y. R. Co. 4 Hurlst. & N. 327-349- Moore v 
 Great NortJiern R. Co. L. R. 10 Ir. Ch. Div. 95.
 
 40 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 circumstances antliorizes an implication of any kind, the pre- 
 sumption is as strong to say the least, that the owner intended to 
 insist on his legal rights, as it is that he was willing to yield to 
 the wishes of the carrier. If a coat be ordered from a mechanic 
 after he has given the customer notice that he will not furnish 
 the article at a less price than $100, the assent of the customer 
 to pay that sum, though it be double the value, may perhaps be 
 implied; but if the mechanic had been under a legal obligation, 
 not only to furnish the coat, but to do so at a reasonable price, 
 no such implication could arise." And, referring to the common 
 law, he says that "the doctrine that a carrier may limit his respon- 
 sibility by a notice was wholly unknown to the common law at 
 the time of our Revolution. It has never been received in this, 
 nor so far as I have observed in any of the other states.'" 
 
 This subject received also, at the same time, a very careful con- 
 sideration in Cole V. Goodwin, 19 Wend. 251, 23 Am. Dec. 470, 
 in which the carrier sought to avoid his liability for a trunk of 
 the passenger by notice brought home to him that " all baggage 
 is at the risk of the owner." 
 
 Judge Cowen, after a very elaborate review of all the common 
 law decisions, announced his conclusion as follows : " I therefore 
 think the defendants in the case at bar must take the conse- 
 quences of their obligation as common carriers, notwithstanding 
 the notice to the plaintiff. Admitting that the plaintiff acceded 
 in the clearest manner to the proposition in the notice that his 
 baggage should be carried on the terms mentioned, I think the 
 contract thus made was void on his part, as contrary to the plain- 
 est principles of public policy. In thus holding, we follow the 
 law as it is expressly admitted by the English judges to have 
 stood at the period when our ancestors declared themselves inde- 
 pendent ; and, while we thus fulfill our constitutional duty, we 
 are not, like Westminster Hall, obliged to lament while we en- 
 force the law." 
 
 The doctrine of these cases was extended in Gould v. Hill, 2 
 Hill, 623, in which a majority of the court held that " common 
 
 > Hollister v. Nowlen, 19 Wend. 248, 32 Am. Dec. 455.
 
 LIMITATION OF LIABILITY IN PAlcTICULAK INSTANCES. 41 
 
 carriers cannot limit tlieir liability or evade the consequences of a 
 breach of their legal duties as such, bj an express agreement or 
 special acceptance of the goods to be transported." In Moses v. 
 Boston (& M. B. Co. 24 N. H. 90, 55 Am. Dec. 222. the court 
 adhere to the rule that the legal responsibility of a common car- 
 rier cannot be discharged by a public notice.' 
 
 § 12. LijnitatioTi of Liability in Particular In- 
 stances. 
 
 The court of appeals of ISTew York^ denies the doctrine 
 of Gould V. Hill, 2 Hill, 623, and says : "' That a carrier 
 maj', by express contract, restrict his common law liabil- 
 ity, is now a well established rule of law ;" citing English and 
 American cases. The case of Dorr v. Hew Jersey Steam JS^av. 
 Co. was one of carriage of merchandise in which the car- 
 rier sought, by notice contained in the bill of lading, to limit its 
 liability as to fire, accidents, etc., holding itself liable only " for 
 ordinary care and diligence.'" And the validity of an express 
 contract between the owner of goods and a carrier, limiting the 
 general responsibility of the latter, is, in some courts, recognized. ■" 
 A special contract between the owner of goods and a common 
 carrier, limiting the strict common law liability of the latter, has 
 been held valid.' But without an express contract the law gov- 
 
 * See also Jones v. Voorh^es, 10 Ohio, 145; Fish v. Chapman, 2 Ga. 349, 46 Am. 
 
 Dec. 393; Wyld v. Pickford, 8 Mees. «fe W. 443; Binion v. DMi?i, 2 Q. B. 
 646. See also chapter V. § 34. 
 
 * Dorr V. Ifew Jersey Steam Nav. Co. 11 N. Y. 485, 62 Am. Dec. 125; affirm- 
 
 ing the doctrine of Eollister v. JSfowlen, 19 Wend, 234, 32 Am. Dec. 455, 
 and Cole v. Goodwin, 19 Wend. 251, 32 Am. Dec. 470. 
 ' See also Parsons y.Monteath, 13 Barb. 353; Mercantile Mut. Ins. Co. v. Chase, 
 1 E. D. Smith, 115; Austin v. Manchester, S. & L. R. Co. 11 Eng. L. & Eq. 
 506; Peek v. North Staffordshire R. Co. 10 H. L. Cas. 473, 494. 
 
 * Kimball y. Rutland & B. R. Co. 26 Vt. 256, 62 Am. Dec. 567; Pennsylvania 
 
 R. Co. V. Raiordon, 119 Pa. 577; Wallace v. Matthews, 39 Ga. 617, 99 Am. 
 Dec. 473; Reno v. Hogan, 12 B. Mon. 63, 54 Am. Dec. 513; Roberts v. Riley, 
 15 La. Ann. 103. 77 Am. Dec. 183; Mobile & 0. R. Co. v. Weiner, 49 Miss. 
 725; American Exp. Co. v. Sands, 55 Pa. 140; Camden & A.R. Co. v. Bald- 
 auf, 16 Pa. 67, 55 Am. Dec. 481; Falkenau v. Fargo, 55 N. Y. 642; Walker 
 V. NetoYork & N. M. R. Co. 3 Car, & K. 279; Slim v. Great Northern R. Co. 
 26 Eng. L. & Eq. 297; Crouch v. London & N. W. R. Co. 14 0. B. 297. 
 
 * Davidson v. Graham, 2 Ohio St. 131; Nicholson v. Willan, 5 East, 507; Grace 
 
 V. Adams, 100 Mass. 505, 1 Am. Rep. 131, 97 Am. Dec. 117; Derwort v. 
 Loomer, 21 Conn. 246.
 
 42 LIMITATION OF LIABILITY BY CONTEACT AND BY' STATUTE. 
 
 erning common carriers both in England and America, is to-day 
 as substantially as laid down by Lord Holt in the year 1T03, that 
 '* The law charges this person, thus intrusted to carry goods, against 
 all events but the acts of God and the public enemy.'" As 
 has been shown by the common law of England and America 
 before the Declaration of Independence, recognized by the weight 
 of English authorities for half a century afterwards, and upheld 
 by decisions of the highest courts of many states of the Union, 
 common carriers could not stipulate for immunity for their own 
 or their servant's negligence. However particular such a con- 
 tract might be in its terms, it could only have the eliect of re- 
 ducing the liability of a common carrier to that of a private car- 
 rier for hire, who is bound to the use of ordinary care.^ 
 
 The English Eailway & Canal Traffic Act of 1854 (Stat. 17 & 
 18 Vict. chap. 31, § 7) declaring void all notices and conditions 
 made by those classes of common carriers, except such as should 
 be held by the court or judge before whom the case should be 
 tried to be just and reasonable, is to a substantial degree a return 
 to the rule of the common law.' 
 
 To protect themselves against the hardship of a rule of law^ 
 which requires them to do a particular thing, whether or not that 
 thing be possible to accomplish by the use of all diligence and 
 every agency available to them, common carriers have adopted 
 the custom of receiving and transporting freight under special 
 contract. They are, with exceptions, as in New York and West 
 Virginia,^ liable in any case for damages resulting from their neg- 
 ligence, under the decided weight of authority.' But they 
 
 ' 19 Cent. L. J. 164; WabasJi., St. L. & P. R. Co. v. Black, 11 111. App. 465; 
 Dawnonv. St. Louis, K. C. & N. R. Co. 76 Mo. 514; Moore v. Great Northern 
 R. Co. L. R. 10 Ir. Ch. Div. 95. 
 
 * New Jersey Steam Nav. Co. v. Mercliants Bank of Boston, 47 U. S. 6 How. 
 
 344, 12 L. ed. 465: Lyon v. Melh, 5 East, 428; Wyld v. Pickford, 8 Mees. & 
 W. 442; Uinton y.Dibbin, 2 Q. B. 646; Thomas v. Boston & P. R. Cor'p. 10 
 Met. 472, 43 Am. Dec. 444; Pennsylvania R. Co. v. McCloskey, 23 Pa. 526; 
 Powell V. Penmylvania R. Co. 32 Pa. 414, 75 Am. Dec. 564; Welsh v. Pitts- 
 burg, Ft. W. & G. R. Co. 10 Ohio St. 65, 75 Am. Dec. 490. 
 
 » Brown v. Manchester, S. & L. R. Co. L. R. 10 Q. B. Div. 280; Peek v. North 
 Staffordshire R. Co. 10 H. L. Cas. 473, 493; McAndrews v. Electric Teleg. Co. 
 33 Eng. L. & Eq. 180, 185. 
 
 *Zouch V. Chesapeake & 0. R. Co. 17 L. R. A. 116, 36 W. Va. 524. 
 
 * Laing v. Colder, 8 Pa. 479, 49 Am. Dec. 533; Camden & A. R. Co. v. Baldauf,
 
 LIMITATION OF LIABILITY IN PAKTICULAR INSTANCES. 43 
 
 are not liable, under such contract, for damages resulting from 
 delay occasioned by any cause beyond their power to control 
 by the use of all means reasonably available to them.' This 
 exemption from liability for damages so occasioned is avail- 
 able to the carrier whether the contract of shipment be inter- 
 state, or whether it is to be performed wholly within the state." 
 In the language of Mr. Justice Strong, in the opinion of the 
 Supreme Court of the United States in the case of Soathern Exp. 
 Co. V. Caldwell, 88 U. S. 21 Walh 264, 22 L. ed. 556: "Not- 
 withstanding the great rigor with which courts of law have always 
 enforced the obligations assumed by common carriers, and not- 
 withstanding the reluctance with which modilications of that re- 
 sponsibility imposed upon them by public policy have been 
 allowed, it is undoubtedly true that special contracts with their 
 employers limiting their liability are recognized as valid if, in the 
 judgment of the court, they are just and reasonable — if they are 
 not in conflict with sound legal policy.'" 
 
 16 Pa. 67, 55 Am. Dec. 481 ; Ooldey v. Penmylmnia R. Co. 30 Pa. 242, 72 
 Am. Dec. 703; Pennsylvania B. Co. v. Uendernon, 51 Pa. 315; Farnham v. 
 Camden & A. R. Co. 55 Pa. 53; Empire Transp. Co. v. Wamsutta Oil R. <& 
 M. R. Co. 63 Pa. 14, 3 Am. Rep. 515; Knoiclton v. Erie R. Co. 19 Ohio St. 
 260, 2 Am. Rep. 395; Graham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; 
 
 Welsh V. Pittsburg, Ft. W. & C. R. Co. 10 Ohio St. 65, 75 Am. Dec. 490; Fil- 
 lebrown v. Orand Trunk R. Co. 55 Me. 462, 93 Am. Dec. 606; Sager v. Ports- 
 mouth, 8. & P.&E. R. Co. 31 Me. 228, 50 Am. Dec. 659; Michigan S. & N. 
 I. R. Co. V. Heaton, 37 Ind. 448, 10 Am. Rep. 89; Adams Exp. Co. v. Fen- 
 drick, 38 Ind. 150; Ohio & M. R. Co. v. Selby, 47 Ind. 471, 17 Am. Dec. 719; 
 ScJiool District in Medfield v. Boston, H. & E. R. Co. 102 Mass. 552, 3 Am. 
 Rep. 502; Adams Exp. Co. v. Stettaners, 61 111. 184, 14 Am. Rep. 57; Nash- 
 ville & C. R. Co. V.Jackson, 6 Heisk. 271; Ketchum v. American Merchants 
 
 U. E.r.p. Co. 52 Mo. 390; New Orleans Mut. Ins. Co. v. New Orleans, J. & 
 O. N. R. Co. 20 La. Ann. 302; Southern E.ip. Co. v. Moon, 39 Miss. 822; 
 Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; Berry v. Cooper, 28 Ga. 
 543: Swindler v. Hilliard, 2 Rich. L. 286, 45 Am. Dec. 732; Flinn v. Phila- 
 delphia, W. & B. R. Co. 1 Houst. (Del.) 469. 
 
 ' Oulf, C. & S. F. R. Co. V. Levi, 76 Tex. 337; Lake Shore & M. S. R. Co. v. 
 Bennett, 89 Ind. 475, 6 Am. & Eng. R. Gas. 391; Barllett v. Pittsburg, C. 
 & St. L. R. Co. 94 Ind. 281, 18 Am. & Eng. R. Cas. 549. 
 
 « Oulf, C. & S. F. R. Co. V. Oatewood, 10 L. R. A. 419, 79 Tex. 89. 
 
 *This opinion, last above cited, was delivered in October, 1874, and scarcely 
 more than sub^taiilially followed the earlier ones of York Mfg. Co. v. Illi- 
 nois Cent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170, and New York Cent. 
 R. Go. V. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; see Louisville & 
 N. R. Co. v. Gilbert, 7 L. K. A. 162, 88 Tenn. 430.
 
 44 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 § 13. Release of Liability Must Best upon a 
 Consideration. 
 
 "Where a distinct option is given, under which the consignor 
 may ship his goods under the ordinary habihty of the carrier, or 
 he may secure a cheaper rate by waiving all liability whatever, 
 except for willful misconduct, the contract in England has been 
 held effective.' So, in England, a contract proposed by a car- 
 rier, which seeks to release all liability, to the exclusion of any 
 contract at a different rate, which will reserve the consignor's 
 rights, has been held to be unreasonable.'' 
 
 In Brown v. 3fanche9ter, S. (& L. R. Co.^ it was said by Brett 
 and Bagallay, L. JJ., that the condition extending to willful 
 misconduct and exempting from all liability whatever, cannot be 
 reasonable, and in Ashenden v. London^ B. & S. C. R. Co., 42 
 L. T. N. S. 586, it was held that the giving of an option would 
 not render such a contract valid. By the carrier's act of 1830, 
 Parliament declared that carriers should not be liable for loss or 
 injury to certain goods above the value of ten pounds, unless their 
 value be declared and an increased charge paid. These articles 
 included gold or silver in coin, or manufactured or unmanufac- 
 tured state bank notes, title deed, engravings, glass, china and 
 silks, whether contained in any parcel, either to be carried for 
 hire, or upon the person of any passenger. The act applies only 
 where the loss takes place on land.' 
 
 The statement that a common carrier may, by contract, limit its 
 common law liability except where it is guilty of negligence has 
 been made in a multitude of cases, and this has been repeatedly 
 declared to be a well established doctrine. But a careful exami- 
 
 > Brown v. Manchester, S. & L. R. Go. 10 Q. B. Div. 250, L. R. 8 App. Cas. 
 
 70B; LewiH v. Great Western R. Co. L. R. 3 Q. B. Div. 195; Simons v. Great 
 
 Western R. Co. 26 L. J. C. P. 25. 
 * Brown v. Manchester, S. & L. R. Co. supra; McManui v. Lancashire & T. 
 
 R. Co. 28 L. J. Exch. 353; Gregorii v. West Midla^id Co. 33 L. J. Exch. 155; 
 
 AUihiy V. Great Western R. Co. 34 L. J. Q. B. 5, 5 Best. & S. 903; McCance 
 
 V. London <& iV. W. R. Co. 31 L. J. Exch. 65; Rooth v. Worth Eastern R. Co. 
 
 L. 15. 2 Exch. 173, 36 L. J. Exch. 83; Feek v. JVorth Staffordshire R. Co. 32 
 
 L. J. Q. B. 241. 
 » LeCouteur v. London & S. W. R. Co. 35 L. J. Q. B. 40, L. R. 1 Q B. 54; Bax- 
 
 endale v. Great Eastern R. Co. 4 Q. B. 244, 38 L. J. Q. B. 137.
 
 RELEASE OF LIABILITY MUST KKST UPOX A CO^'SIDEIiAT^0N. 4:0 
 
 nation of the numerous cases in which tliis doctrine has been laid 
 down shows tliat in them the question of right to refuse the ship- 
 per an option to pay to have liis goods carried without any limi- 
 tation of the carrier's liability at reasonable rates was not pre- 
 sented.' 
 
 A limitation of liability in the bill of lading will not control 
 where the damao-e is an effect of the carrier's neo-lioence and 
 where it does not appear that the limitation was in consideration 
 of a lower rate of freight." Or a carrier does not prove this fact 
 on the trial.' A carrier cannot wholly exempt himself from lia- 
 bility for negligence, but may, by special contract fairly made 
 with the shipj)er and signed by him in consideration of a reduced 
 freight charge, restrict his liability for loss, even through his 
 prima facie negligence, to a valuation fixed by the agreement." 
 A limitation of the liability of a carrier, to a specified amount, 
 for property carried at a reduced rate, is valid. ^ 
 
 It is not every special contract that is effective. To be valid, it 
 must be fairly obtained, founded upon a consideration, and be 
 just and reasonable.' The shipper should have the alternative of 
 
 ' Among the many such cases are the following: Dorr v. New Jersey Steam 
 
 Nav. Co. 11 N. Y. 485, 63 Am. Dec. 125; Fibel v. Limngston, 64 Barb. 179; 
 
 Parsons v. Monteaih, 13 Barb. 353; Stoddard v. Long Island R. Go. 5 Sandf. 
 
 180; Moore v. Evans, 14 Barb. 524; Pennsylvania R. Co. v. Raioi'don, 119 
 
 Pa. 577; Grogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360; Van 
 
 Schaack v. Northern Transp. Co. 3 Bias. 394; Indianapolis, D. & W. R. Co. 
 
 V. Forsyth-e, 4 Ind. App. 326; Adams Exp. Co. v. Fendrick, 38 Ind. 150; 
 
 Cooper V. Berry, 21 Ga. 526; Kallman v. United States Exp. Co. 3 Kan. 205; 
 
 Grace v. Adams. 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Chris- 
 
 tenson v. American Exp. Co. 15 Minn. 270, 2 Am. Rep. 123; Davidson v. 
 
 Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362, 62 Am. Rep. 
 
 285; Baltimore cB 0. R. Co. v. Skeels, 3 W. Va. 556. 
 » Adams Exp. Co. v. Harris, 7 L. R. A. 214, 120 Ind. 73. 
 » Loiii.sville & N. R. Co. v. Soioell, 90 Tenn. 17, 9 Ry. Corp. L. J. 385. 
 *Zouch V. Chesapeake & 0. R. Co. 17 L. R. A. 116, 36 W. Va. 524. 
 ^Zimmer v. Neio York Cent. & H. R. R. Co. 42 N. Y. S. R. 63; Muser v. Hol- 
 land, 17 Blatchf. 412; Earnest v. Express Co. 1 Woods, 573; Hopkins v. 
 
 Wesicott, 6 Blatchf. 64; Oppenheimer v. United States Exp. Co. 69 111. 62; 
 
 South (& North Ala. R. Co. v. Henlein, 52 Ala. 606, 56 Ala. 368; Harvey v. 
 
 Terre Haute & I. R. Co. 74 Mo. 538. 
 * Louisville & N. R. Co. v. Gilbert, 7 L. R. A. 162, 88 Tenn. 430; New York 
 
 Cent. R. Co. v.' Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; Hart v. 
 
 Pennsylvania R. Co. 112 U. S. 338, 28 L. ed. 730: Marr v. Western U. 
 
 Teleg. Co. 85 Tenn. 543; Merchants Dispatch Transp. Co. v. Bloch, 86 Teun. 
 
 397.
 
 46 LIMITATION OF LIABILITY BY CONTKACT AND BY STATUTE. 
 
 sliipping under the common law liability, or a less or restricted 
 liability, at his option.' A condition to be reasonable must be 
 coupled with compensating advantages. It may not contravene 
 public policy.' It must be fairly obtained.^ In numerous other 
 cases where a limitation of liability by contract is held to be 
 allowable, the report shows that there was, in fact, a considera- 
 tion therefor in a reduction of rates, although this was not ex- 
 pressly mentioned by the court as a reason for the decision.' 
 The English doctrine, until it was modified by an act of Parlia- 
 ment, is generally said to be tliat the carrier may limit his liability 
 to any extent by contract ; but that the EngHsh decisions to this 
 effect do not mean to free the carrier from liability to carry the 
 goods without limitation of liability on reasonable terms, clearly 
 appears by examination of them. Thus, in Harris v. Packwood, 
 3 Taunt. 271, in which a special acceptance limiting liability was 
 held allowable, the court says that carriers " will not be insurers 
 unless paid according to value," so in Wyld v. Pickford, 8 Mees. 
 & W. 44:3, it is declared that a carrier is entitled by common law 
 to insist upon the full price of carriage, and that he may, if such 
 price be not paid, refuse to carry upon the terms imposed by the 
 common law and insist upon his own. A common carrier is bound 
 to transport for a reasonable remuneration and if he offers to do 
 so and at the same time offers to carry on condition that he shall 
 assume no liability, and holds forth, as an inducement, a reduction 
 of price, or some additional advantage which he does not give to 
 those who employ him with a common law liability, the conditions 
 
 1 Peek V. North Staffordshire R. Co. 10 H. L. Cas. 473; Louismlle & N. E. Co. 
 
 V Gilbert, supra; Manchester, S. & L. R. Co. v. Brown, L. R. 8 App. Cas. 
 
 703- Beal v. South Devon R. 3 Hurlst. & C. 337; Liverpool & O, W. 
 
 Steam Co. v. Phenix Ins. Co. (" The Montana") 129 U. S. 397, 32 L. ed. 788. 
 » aayton V. Corby, 2 Q. B. 819. 
 3 Booth V. North Eastern R. Co. L. R. 2 Exch. 173. 
 * St Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397; Illinois Cent. R. Go. v. 
 
 Morrison, 19 111. 136; St. Louis & S. E. R. Co. v. Smuck, 49 Ind. H02; Bari- 
 
 lett V. Pittsburg, C. & St. L. R. Co. 94 Ind. 281; Squire v. New Tork Cent. 
 
 R. Co. 98 Mass. 239, 93 Am. Dec. 162; Durgin v. American Exp. Co. (N. H.) 
 
 9 L. R. A. 4o3; Baltimore & 0. R. Co. v. Brady, 32 Md. 333; Loire v. Booth, 
 
 13 Price 329; Morrison v. PMllipps & C. Constr. R. Co. 44 Wis. 405, 28 Am. 
 
 Rep. 599; Richmond & D. R. Co. v. Payne, 6 L. R. A. 849. 86 Ya. 481; 
 
 Louisville & N. R. Co. v. Soicell, 90 Tenn. 17, 9 Ry. & Corp. L. J. 385.
 
 RELEASE OF LIABILITY MUST BEST UPON A CONSIDERATION. 47 
 
 thus offered are reasonable.' "Where tlie shipper knew that the 
 carrier had two rates, according to the service desired, and he 
 chose the lower terms, he must stand to his bargain.' 
 
 The other Enghsh cases in which special acceptances, as they 
 are termed, limiting lialnlity, are upheld, are not opposed to this 
 doctrine; but decisions allowing a restriction of the carrier's liabil- 
 ity are clearly to be construed as permitting it only in case of a 
 reduction of rates. So, in many American cases where the doc- 
 trine is not clearly stated, it is fairly implied. Thus, in Little 
 Rock (& Ft. S. E. Co. V. Cravens, 18 L. R. A. 527, 57 Ark. 112, 
 it was declared that a carrier cannot, by special contract, limit its 
 common law liability for losses not occasioned by negligence where 
 it does not afford the shipper an opportunity to contract for the 
 service required without such restriction, even if he makes the spe- 
 cial contract without objection or demand for a different one, and 
 in Farnham v. Camden & A. R. Co. 55 Pa. 53, in which a limi- 
 tation of liability was upheld, the court says : " We are to pre- 
 sume, of course, that the charge for transportation was in propor- 
 tion to the risk." And in Judson v. Western R. Corp. 6 Allen, 
 486, 83 Am. Dec. (J-^Q, the court says : " The carrier has not the 
 option to accept or refuse the carriage of the goods at his pleas- 
 ure, but the person seeking to have them transported can choose 
 whether they shall be carried without any restriction of tlie 
 carrier's duty as prescribed by law." And in New York Mfg. 
 Co. V. Illinois Cent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170, 
 the court says the carrier cannot " coerce the owner to yield as- 
 sent to a limitation of responsibility by making exorbitant 
 charges when such assent is refused," but that he may "fix a 
 rate of charges proportionate to the magnitude of the risks." 
 Likewise in Graham v. Dams, 4 Ohio St. 302, 62 Am. Dec. 
 285, the court says the carrier is " still regarded as exercising a 
 public employment and incapable by any act of his own of lim- 
 iting or evading the responsibility which the law attaches, to its 
 exercise." 
 
 In a few cases the courts have still more clearly and explicitly 
 
 > Peek V. North Staffordshire R. Co. 10 H. L. Cas. 483. 
 
 * Mandiesier, S. & L. li. Co. v. Brotcn, L. R. 8 App. Cas. 703,
 
 48 LIMITATION OF LIABILITY BY CONTEACT AND BY STATUTE. 
 
 announced the doctrine vrhich may fairly be regarded as underly- 
 ing all the decisions, even those in which the general statement of 
 the right of a carrier to limit his liability may seem to deny it. 
 Thus a condition in a bill of lading which limits the carrier's 
 liability is reasonable if coupled with compensating advantages to 
 the shipper, and the latter has the alternative of getting rid of the 
 condition by paying a reasonably higher freight rate.' A stipu- 
 lation by a carrier limiting its liability to a stated sum unless 
 the value of the propert}^ is disclosed will not relieve the car- 
 rier from liability, although the shipper refused to state the 
 amount, where there was no consideration for the stipulation by 
 reduction of charges or otherwise.' 
 
 In AtcMson, T. <& S. F. R. Co. v. Dill, 48 Kan. 210, it is ex- 
 pressly declared that a carrier cannot limit his liability unless the 
 contract is freely and fairly made, and that he cannot exact as a 
 condition precedent to carrying goods that the shipper shall sign 
 a contract limiting or changing the common law liability. Also 
 that if the carrier has two rates, one for the common law liability 
 and the other for the special contract, the sliipper must have real 
 freedom in making his selection. So in McMillan v. Michigan 
 S. (& N. I. R. Co. 16 Mich. 79, 93 Am. Dec. 208, it is said by 
 Judge Cooley in the opinion of the court that "subject to reason- 
 able regulations every man has a right to insist that his property, 
 if of such description as the carrier assumes to convey, shall be 
 transported subject to the common law liability." Again, in 
 Olwell V. Adams Exp. Co. 1 Cent. L. J. 186, it is said : " A 
 stipulation limiting the common law liability of the carrier in or- 
 der to be binding must be based on a special consideration such 
 as a lower rate of freight or something equivalent." This is re- 
 affirmed in Dillard v. Louisville <& JV. R. Co. 2 Lea, 288, decid- 
 ing that a lower rate of freight or something equivalent thereto 
 will constitute a sufficient consideration for a limitation of liabil- 
 ity. So is the decision in Louisville c& N. R. Co. v. Gilbert, 7 
 L. R. A. 162, 88 Tenn. 430, that a " fire clause in a bill of lading 
 
 ' Louimlle & N. R. Go. v. Mancl ester Mills, 88 Tenn. 653; Bichmond & D. It. 
 
 Co. V. Payne, 6 L. R. A. 84'), f6 Va. 481. 
 • Conover v. Pacific Exp. Go. 40 Mo. App. 31.
 
 EELEASE OF LIABILITY MUST KEST UPON A CONSIDEKATION. 4i) 
 
 exempting the carrier from liability for loss by fire is not valid 
 where transportation under the rules of the common law is not 
 offered as an alternative and no reduction of rates is made as a 
 consideration for the exemption." The same principle in sub- 
 stance is announced in Missouri Pac. R. Co. v. Fagan, 2 L. R. A. 
 75, 72 Tex. 127, holding that a common carrier has no right to 
 demand of a shipper a waiver of his rights as a condition prece- 
 dent to receiving freight. 
 
 Unquestionably there must be some consideration for a release 
 by the shipper, of the carrier from liability which rests upon it 
 under the common law. The rule has been stated, that where 
 tliere is no evidence that a consideration was not given for the 
 stipulation, a consideration expressed is sufficient to support the 
 contract ; the court presuming that the carrier probably had rates 
 of charges proportioned to the risk they assumed from the nature 
 of the goods carried, and that the exception must necessarily have 
 effected the compensation demanded.' 
 
 A carrier need not specifically tender a contract omitting the 
 limited liability clause, in order to avail itself, in an action for 
 damages to stock during transportation, of the defense that it was 
 willing and ready to execute a contract with the shipper upon 
 terms reasonable to the latter, where it sets up a contract limiting 
 its liability to an agreed valuation, as the shipper should demand 
 such contract if it prefers it.' 
 
 By statute in some places a limitation of a carrier's liability by 
 contract is prohibited. Thus in Texas, by Kev. Stat. art. 278, and 
 in several other states by similar provisions. And in England 
 the Act of Parliament allows only such limitations as shall be 
 found by the courts to be " just and reasonable." The same doc- 
 trine which seems clearly to underlie the general current of de- 
 cisions, appears in cases as to the limitation of the amount of 
 liability, as to which, see §§ 50, 51.' 
 
 ^Yurk Mfg. Co. v. Illinois Cent. B. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170; 
 
 Lonisville & N. R. Go. v. Oden, 80 Ala. 38; Nelson v. Hudson River R. Co. 
 
 48 N. Y. 498. 
 » Louisville & N. R. Co. v. Sotcell, 90 Tenn. 17, 9 Ry. & Corp. L. J. 385. 
 ^Pacific Exp. Co. V. Foley, 13 L. R. A. 799, 46 Kan. 457; Georgia Pac. R. Co. 
 
 V. llughart, 90 Ala. 36; Johnstone v. Richmoyid & D. R. Co. 39 S. C. 55. 
 
 4
 
 50 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 As a general rale, and in the absence of fraud or imposition, a 
 common carrier is answerable for tlie loss of a package of goods, 
 though he is ignorant of its contents and though its contents are 
 ever so valuable, if he does not make a special acceptance. But 
 if the shipper is guilty of fraud or imposition, he destroys his 
 claim to indemnity.' 
 
 Where the contract of carriage signed by the shipper is fairly 
 made, agreeing on a valuation with the rate of freight based on 
 the condition that the carrier assumes liability only to the extent 
 of the agreed valuation, even in case of loss or damage by the 
 negligence of the carrier, the contract will be upheld as a proper 
 and lawful mode of securing a due proportion between the amount 
 for which the carrier may be responsible and the freight he re- 
 ceives, and of protecting himself against extravagant and fanciful 
 valuations.* 
 
 § IJf. Denial of Right to Contract Against Negli- 
 gence. 
 
 While it is true that in some of the states the carrier may con- 
 tract against its own negligence, as appears by the review of the 
 authorities in Ray on Negligence of Imj^osed Duties, Passenger 
 Carriers, § SO, yet the ancient rule is recognized in almost all of the 
 courts that a carrier cannot contract against its own want of dili- 
 gence.' While it is admitted in some of the states that a carrier may 
 
 ' Eart V. Pennsylvania B. Co. 112 U. S. 331, 28 L. ed. 717, citing 2 Kent, 
 Com. 603; Belfv. Rapp, 3 Watts & S. 21, 37 Am. Dec. 528; Du7ilap v. In- 
 ternational 8. B. Co. 98 Mass. 317; NewTork Cent. & H. R. R. Co. v. Fra- 
 loff, 100 U. S. 24, 25 L. ed. 531; Gibbon v. Paynton, 4 Burr. 2298; Batson 
 V. Donovan, 4 Barn. & Aid. 21. 
 
 ^Muser v. UoUand, 17 Blatcbf. 412; Earnest v. Expess Co. 1 Woods, 573; Hop- 
 kins V. Wesicott, 6 Blatchf. 64; Oppenheimer v. United States Exp. Co. 69 111. 
 62; South d North Ala. R. Co. v. Henlein, 52 Ala. 606, 56 Ala. 368; Harvey 
 V. Terre Haute & I. R. Co. 74 Mo. 538. 
 
 « Boehl V. Chicago, M. & St. P. R. Co. 14 Minn. 191; Chicago <& N. W. R. Co. 
 V. Chapman, 8 L. R. A. 508. 133 111. 96; Welch v. Boston & A. R. Co. 41 
 Conn. 333; Camp v. Hartford & N. Y. S. B. Co. 43 Conn. 333; School Hist, 
 in Medjield v. Boston, H. & E. R. Co. 102 Mass. 552, 3 Am. Rep. 502; Mw 
 York Cent. R. Co. v. Lockioood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; In- 
 dianapolis, P. & C. R. Co. V. Allen, 31 Ind. 394; Welsh v. Pittsburg, Ft. W. 
 tfe C. R. Co. 10 Ohio St. 65, 75 Am. Dec. 490; Rhodes v. Louisville & N. R. 
 Co. 9 Bush. 688.
 
 DENIAL OF KIGIIT TO CONTKACT AGAINST NEGLIGENCE. 51 
 
 stipulate upon a sufficient consideration for exemption from lia- 
 bility for the ordinary negligence of its servants — yet, this ex- 
 emption will not be extended to an act of positive misfeasance. 
 It need not necessarily be intentional wrong-doing, to prevent its 
 excusing from responsibility, but it must be an affirmative act, 
 not merely ordinary neglect in the course of the bailment, nor 
 the omission of ordinary care in the safe keeping and carriage of 
 the goods.* A carrier may, by special contract, free himself from 
 many common law liabilities, although not from his own fraud or 
 negligence.' A common carrier is an insurer of property, and his lia- 
 bility is not limited by the fact that the pro^Derty was not loaded 
 by the owner, or that the owner accompanies it.' 
 
 From the cases from the various state courts except, perhaps, 
 in New York' and West Virginia, it w^ould seem that a common car- 
 rier cannot be exempted, by contract, from liability for loss of goods 
 from his own negligence or that of his servants ; he can limit his 
 liability only as an insurer of transportation as to every cause of 
 injury except that arising from his own want of care,* and become 
 thus subject to the laws of bailment only.° 
 
 The apparent contradiction of this doctrine, as contained in 
 Hart V. Pennsylvania ^. C'o. 112 U. S. 331, 28 L. ed. TIT, 
 which Grogan v. Adams Exp. Co. Ill Pa. 523, refused to follow 
 is referable to the fact that the shipper in that case was estopped 
 by his own act. A common carrier cannot contract against lia- 
 bility from loss from his own ordinary negligence. Such a con- 
 dition is void as against public policy." It cannot, by special con- 
 tract, limit its liability so as to exempt it from responsibility for 
 losses occasioned by its negligence.* 
 
 • Mngnin v. Dimmore, 70 N. Y. 410, 26 Am. Rep. 608. 
 
 ' Terre Haute & I. R. Co. v. Sherwood, 17 L. R. A. 339, 132 Ind. 129; Gal- 
 veston, H. & S. A. R. Co. y. Parsley (Tex. Civ. App.) Jan. 3, 1894. 
 
 » Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 
 
 *Spinetti v. Atlas SS. Co. 80 N. Y. 71, 36 Am. Rep. 579; Cragin v. New Fork 
 Cent. R. Co. 51 N. Y. 61, 10 Am. Rep. 559; Poucher v. New York Cent. R. 
 Co. 49 N. Y. 263. 
 
 ^ Farnham v. Camden & A. R. Co. 55 Pa. 53; Pennsylvania li. Co. v. Raior- 
 don, 119 Pa. 577. 
 
 ^ American E-vj). Co. v. Sands, 55 Pa. 140. 
 
 ■> Indianapolis, P. & C. R. Co. v. Allen, 31 Ind. 394. 
 
 8 Johnstone v. Richmond & D. R. Co. 39 S. C. 55.
 
 52 LIMITATION or LIABILITY BY CONTKACT AND BY STATUTE. 
 
 The right of a carrier to Hmit its common law hability by 
 special contract does not extend to acts which result from its 
 negligence or the negligence of its employes.' It may, by special 
 contract, limit its liability to the owner of stock or goods, so long 
 as the limitation does not relate to its liability for negligence or 
 misconduct." JS'or can it limit its liability for the negligence of 
 its employes by stipulating that those furnished to assist the 
 shipper in loading and unloading freight shall be the employes of 
 the latter.' A carrier cannot limit its liability for its own neg- 
 ligence by contract, either as to the right or the amount of re- 
 covery." Nor can a common carrier in Colorado provide by 
 contract against liability for its negligence.^ It cannot restrict its 
 ]ial)ility for damages for its own negligence to less than the true 
 value of the property by a provision that in case of loss the value 
 at the place of shipment shall be the measure of damages ;° and a 
 stipulation limiting the liability of a common carrier for the loss 
 of goods delivered to it for transportation is void where it does 
 not provide for full payment in ease of its negligence.^ An ex- 
 press stipulation by any common carrier for hire, in a contract 
 of carriage, that he shall be exempt from liability for losses 
 caused by the negligence of himself or his servants, is unreason- 
 able and contrary to public policy, and consequently void.* To 
 be valid, a contract restricting a carrier's liability must be fairly 
 obtained, just and reasonable.* The authorities almost universally 
 concede the carrier's liability for losses accruing through his gross 
 negligence under a contract that property shall be transported at 
 
 ' Louisville, If. A. & C. E. Co. v. Faylor, 126 Ind. 126; Durgin v. American 
 
 Exp. Co. (N. H.) 9 L. R. A. 453. 
 » AfcJiison, T. tt- S. F. R. Go. v. Temple, 13 L. R. A. 362, 47 Kan. 7. 
 'Missouri Pac. R. Co. v. Smith, 84 Tex. 348. 
 *Boehl V. Chicago, M. & St. P. R. Co. 44 Minn. 191. 45 Am. & Eng. R. Cas. 
 
 351; Hutchinson v. Chicago, St. P. M. & 0. R. Co. 87 Minn. 524. 
 » Union Pac. R. Co. v. Rainey (Colo.) Dec. 4, 1893. 
 « Fort Worth & D. C. R. Co. v. Qreathome, 82 Tex. 104. 
 ^ Galveston, U. & S. A. R. Go. v. Ball, 80 Tex. 602. 
 '^Liverpool & G. W. Steam Co. v. Phenix Ins. Co. {"The Montana") 129 U. S. 
 
 397, 32 L. ed. 788. 
 * Louisville & M. R. Go. v. Gilbert, 7 L. R. A. 162, 88 Tenn. 430.
 
 REFUSAL OF FEDIlKAL COLKTS TO KECOGKIZE CONTKACTS. 53 
 
 the owner's risk,' and unless in the excepted courts a common 
 carrier cannot, even by express contract, exempt itself from lia- 
 bility from gross negligence or willful misconduct." 
 
 § 15. Refusal of Feeler al Courts to Recognize Con- 
 tracts Releasing Liability for JVegligence. 
 
 On the question of the right of a carrier of goods or passengers 
 by land or water, to stipulate for exemption from all liability for 
 his own negligence, as in any question depending upon mercan- 
 tile law and not upon local statute or usage, it is well settled that 
 the courts of the United States are not bound by decisions of the 
 courts of the state, but will exercise their own judgment, even 
 when their jurisdiction attaches only by reason of citizenship of 
 the parties in an action at law, of which the courts of the state 
 have concurrent jurisdiction, upon a contract made and to be* 
 performed within the state.' Upon a New York contract ex- 
 empting a carrier from liability for negligence, the Circuit Court 
 of the United States for the New York District is not bound to 
 hold the exemption valid because of the decisions of the New 
 York courts.* A stipulation in a charter or bill of lading for 
 the adoption of the law of a foreign country, by which a carrier 
 may be exempted from responsibility for negligence, is invalid in 
 United States courts.' And a provision of a bill of lading exempt- 
 ing the ship from liability for damage caused by negligence will not 
 be enforced by the United States courts, although the bill of lading 
 
 » Canfield v. Baltimore & 0. B. Co. 93 N. T. 532, 45 Am. Rep. 268; Moore v. 
 Evans. 14 Barb. 524; Wells v. Steam Nav. Co. 8 N. Y. 380; French v. Buf- 
 falo, N. T. & E. R. Co. 4 Keyes, 113; Higgins v. Neto Orleans, M. & G. R. 
 Co. 28 La. Ann. 133; Erie R. Co. v. Wilcox, 84 111. 239, 25 Am. Rep. 451; 
 Toledo, W. & W. R. Co. v. Beggs, 85 111. 80, 28 Am. Rep. 613; Arnold v. 
 Illinois Cent. R. Co. 83 111. 273, 25 Am. Rep. 386. 
 
 » Chicago & N. W. R. Co. v. Chapman, 8 L. R. A. 508, 133 111. 96. 
 
 * Liverpool & O. W. Steam Go. v. Phenix Ins. Co. {"The Montana") 129 U. S. 
 397, 32 L. ed. 788; Myrickv. Michigan Cent. R. Co. 107 U. S. 102, 27 L. ed. 
 325; Carpenter v. Providence Washington Ins. Co. 41 U. S. 16 Pet. 495, 571, 
 10 L. ed. 1044, 1073; Brooklyn City '& N. R. Co. v. National Bank of New 
 York, 102 U. S. 14, 26 L. ed. 61; Burgess v. Seligman, 107 U. S. 20, 27 L. 
 ed. 359; ISmith v. Alabama, 124 U. S. 465, 478, 31 L. ed. 508, 513; Bucher 
 V. Cheshire R. Co. 125 Mass. 555, 583, 31 L. ed. 795, 798. 
 
 *New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627. 
 
 6 The Energia, 56 Fed. Rep. 124.
 
 54 LIMITATIOif OF LIABILITY BY CONTKACT AND BY STATUTE. 
 
 provides that tlie contract shall be governed by the laws of the 
 flag of the ship, and by such law such provision is valid.' 
 
 % 16. When Exemption by Contract Permitted, 
 Exception Must he Clear and Explicit. 
 
 There is no public policy which prevents the carrier from as- 
 suming enlarged liabilities ; indeed he may by contract become an 
 absolute insurer. But, the same rule applies when the liability of 
 the carrier is extended, that is enforced where he seeks to restrict 
 his common law liability. There must be shown, in either case, 
 a distinct contract expressed in clear and unmistakable terms.* 
 There is no public policy, requiring exemptions from legal lia- 
 bility on the part of carriers to be sustained as far as possible.^ 
 The liability of common carriers as such is properly regulated 
 by law and not by the contract of the carrier. Some courts, not- 
 ably those of Kew York, hold as the English courts had come to 
 hold before the Act of Parliament, that the common carrier may 
 stipulate for total exemption from his common law liability as a 
 carrier, but the New York court has expressed its regret over the 
 adoption of that rule* and await the consideration of the legisla- 
 ture to remedy it. The validity of a contract exempting a carrier 
 from liability for negligence of its servants does not depend alone 
 upon its granting reduced rates in consideration thereof; but its 
 agreement to perform services respecting the goods is sufficient 
 consideration therefor. A carrier is exempted from liability for 
 the negligent stowage of oil in the same compartment with furs, 
 in consequence of which the latter are damaged by a clause of the 
 bill of lading exempting it from liability for " injury from cor- 
 ruption, frost, decay, stowage ... or from any act or omis- 
 sion, negligence, default, or error in judgment of the pilot, master, 
 mariners, engineers, stevedores, or other persons in the service of 
 the ship's owners."* 
 
 ' Lewisohn v. National 88. Co. 56 Fed. Rep. 603. 
 
 * Price V. Bartshorn, 44 N. Y. 94, 4 Am. Rep. 645; Oage v. Tirrell, 9 Allen, 
 
 299. 
 
 * Camp V. Hartford <& iV. 7. 8. B. Co. 43 Conn. 340. 
 
 * 71 N. Y. 185, 27 Am. Rep. 28. 
 
 « Rnbens v. Ludrjate Hill 88. Co. 48 N. Y. S. R. 733.
 
 WHEN EXEMI'TION BY CONTRACT IS PERMITTED, 55 
 
 Such courts require the carrier, if he desires to be exempt from 
 the results of his negligence, so to state in the contract, " ipsissi- 
 mis verbis.""^ Every limitation of the responsibility of a common 
 carrier should be expressed in each case in unequivocal terms.'' A 
 shipping contract, though made at a reduced rate and pro- 
 viding for the exemption of the carrier from liability for its neg- 
 ligence, vrill not exempt it from any kind or sort of negligence 
 not specifically and expressly stated in the contract/ A stipula- 
 tion in a bill of lading for the shipment of money over a railroad 
 and steamship line, that it is to be conveyed " upon said steam- 
 ship" with certain limitations of liability, does not apply to its 
 conveyance over the railroad.* 
 
 Where general terms of exemption are employed, the special 
 risks thereafter enumerated and excepted will limit the general 
 exceptions to the class of risks especially mentioned, if such a 
 construction can be reasonably placed upon the language em- 
 ployed.* If a common carrier may limit his liability by express 
 contract, the limitation must be reasonable in itself, and not such 
 as to operate as a snare or fraud upon the public' 
 
 Although a carrier of freight and passengers in the state of 
 J^ew York may lawfully stipulate for exemption from liability for 
 negligence of itself and servants when supported by a good con- 
 sideration, such as carrying the goods at the lowest rate made for 
 this class of freight,' such stipulation is to be strictly construed, 
 and the exemption must be expressed in terms ; and if general 
 words of release are used, such construction as will exclude ex- 
 emption from negligence must obtain, if the release is not thereby 
 
 ' Kenney v. New York Cent. & H. B. R. Co. 125 N. Y. 422; Mynnrd v. Syra- 
 cme, B. & N. Y. R. Co. 71 N. Y. 180, 27 Am. Rep. 28; Holsapple v. Rome, 
 W. & 0. R. Co. 86 N. Y. 275; Nicholas v. New York Cent. & H. R. R. Co. 
 89 N. Y. 370. 
 
 ^ Hopkins V. Westcott, 6 Blatchf. 67; Pratt v. Ogdensburg & L. C. R. Co. 102 
 Mass. 557. 
 
 « Zimmer v. New York Cent. & H. R. R. Co. 42 N. Y. S. R. 63. 
 
 * Rio Grande R. Co. v. Cross, 5 Tex. Civ. App. 454. 
 
 » St. Louis <& S. E. R. Co. v. Smuck, 49 Iml. 302; Barter v. Wheeler, 49 N. H. 
 9, 6 Am. Rep. 434; Edsall v. Camden tfc A. R. & Transp. Co. 50 N. Y. 061. 
 
 < Adams Exp. Co. v. Reagan, 29 Ind. 21, 92 Am. Dec. 333. 
 
 ■ Jennings v. Orand Trunk R. Co. 52 Hun, 227.
 
 5t) LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 rendered inoperative.' A contract releasing a carrier from all 
 damage to goods from any cause not the result of collision or cars 
 being thrown off the track, does not release from liability for 
 negligence not resulting in collision or derailment.* 
 
 A bill of lading relieving a carrier of perishable goods, gener- 
 ally, from all responsibility for delays, will not relieve it from lia- 
 bility for the delays occasioned by the negligence of its own 
 agents and servants where they are not expressly specified.' A 
 common carrier which enters into a contract exempting it from 
 liability for the negligence of its servants is not thereby exempt 
 from liability for its own negligence." An exception in a bill of 
 lading, in regard to liability for injury to cargo of any neglect 
 or default of the master, mariners, or others in the service of the 
 owners, does not include negligence of the owners themselves.* 
 A shipping contract will not so operate unless the intent is so 
 clearly expressed that the shipper could not be misled. It cannot 
 be inferred from general words in the contract, such as " damages 
 occasioned by delays from any cause or from change of weather.'" 
 
 % 17. Statutes Limiting Power of Carrier to 
 Contract against its own JVegligence. 
 
 In many of the states the power of the carrier to limit its com- 
 mon law liability by special contract is restricted by statute or 
 entirely denied. A railroad company operating a line of railroad 
 in Nebraska is a common carrier, and cannot, under the provis- 
 ions of the Constitution, limit its liability as such by special 
 agreement with a shipper,' A stipulation in a contract of ship- 
 ment, limiting the liability of the carrier to a certain amount in 
 
 > Elliott V. New York Cent. <& H. R. R. Co. 33 N. Y. S. R. 861; Keiiney v. 
 
 Neio York Cent. & H. R. R. Co. 125 N. Y. 423, affirming 54 Hun, 143. 
 « Phanix Clay Pot Works v. Pittsburg iSc L. E. R. Co. 139 Pa. 284. 
 » McKay v. New York Cent. & H. R. R. Co. 50 Hun, 563. 
 
 * Weinberg v. National 88. Co. 25 Jones & S. 586. 
 » The Guildhall, 58 Fed. Rep. 796. 
 
 • NicJiolas V. New York Cent. & H. R. R. Co. 89 N. Y. 370; Canfeld v. Balti- 
 
 more & 0. R. Co. 93 N. Y. 532, 45 Am. Rep. 268; Mynard v. Syracuse, B. 
 & N. Y. R. Co. 71 N. Y. 183. 27 Am. Rep. 28. 
 ' Missouri Pac. R. Go. v. Vandeventer, 3 L. R. A. 129, 26 Neb. 222.
 
 STATUTES LIMITING POWER OF CARKIER TO CONTRACT. 57 
 
 case of damage to the property shipped, is not valid and binding 
 on the sliipper ; and he may recover the damages to which he 
 shows himself entitled under the measure of damages fixed by 
 law in Texas.' 
 
 And in Texas a statute enacted in 1860 is to the effect that car- 
 riers within that state may not " limit or restrict their liability, by 
 any general or special notice, nor by inserting exceptions in the 
 bill of lading or memorandum given upon the receipt of the goods 
 for transportation, nor in any other manner whatever. And no 
 special agreement made in contravention of the foregoing pro- 
 visions shall be valid.^ 
 
 A provision limiting the liability of a railway company to its 
 own line, in a bill of lading from a railway station in Texas to 
 Galveston, in the same state, thence by steamer to Liverpool, pur- 
 porting to be a foreign bill of lading and signed by one who signs 
 as agent severally for the railway and the steamship companies, 
 does not make it a domestic bill of lading so as to bring it within 
 Tex. Rev. Stat. art. 278, forbidding carriers between points within 
 the state from limiting their common law liability.^ 
 
 Since Christenson v. American Exp. Co., 15 Minn. 270, it has 
 been settled by judicial decision in that state that a common car- 
 rier cannot exonerate himself by contract from liability for his own 
 negligence, and this rule is now recognized by statute." 
 
 Under section 1308 of the Iowa Code, a contract between a 
 railroad company and a shipper of horses, limiting the liability of 
 the company for the horses to an amount less than their actual 
 value, is invalid. The section of the Iowa Code which provides 
 that all contracts by which carriers seek to limit their liability 
 shall be declared invalid is not repugnant to the Constitution of 
 the United States, as being a regulation of commerce." 
 
 Under the Massachusetts Public Statutes, chap. 112, § 214, a 
 railroad company is not liable for goods destroyed by fire while 
 
 «R Lmn, A. & T. B. Co. v. Bobbitis (Tex. App.) Dec. 14, 1889. 
 
 * Missouri Pac. R. Co. v. Sherwood, 17 L. R. A. 643, 4 Inters. Com. Rep. 640 
 
 84 Tex. 125. 
 « Gen. Laws, 1885, chap. 188, § 26. 
 *EartY. Chicago & N. W. R. Co. 69 Iowa, 485. 
 i Missouri Pac. R. Co. v. Harris, m Tex. 166; Oulf, C. & S. F. R. Co. v. 
 
 Trawick, 68 Tex. 314.
 
 58 LIMITATION OF LIADILITY BY CONTRACT AND BY STATUTE. 
 
 in its possession, under a contract of carriage excepting this risk. 
 Where the goods are in its possession not under such exception 
 in the contract, it is liable for their destruction by lire communi- 
 cated by locomotives.' 
 
 § 18. Limitation of Amount of Liability hy Stat- 
 ute— Act of Congress. 
 
 The maritime law of the United States, as found in the stat- 
 utes, is the same as the general maritime law of Europe. It is 
 different from that of Great Britain in this : the former gauges 
 the liability of the value of the ship and freight after the loss or 
 injury, and the latter by their value before the loss or injury, not 
 exceeding fifteen pounds per ton.' 
 
 The institution of proceedings in the district court of the 
 United States, under the Limited Liability Act of 1851, super- 
 sedes the prosecution in other courts of claims for the same losses 
 and injuries. The first section of the Act exempts shipowners 
 from liability for losses by fire, " unless such fire is caused by the 
 design or neglect of such owner or owners." The second section 
 relates to the shipping of precious metals and other valuables 
 without giving notice of their character and value, and exempts 
 the- master and owners, in such cases, from liability as carriers.* 
 
 The third section declares that the liability of shipowners for 
 embezzlement, loss or destruction of goods on board ship by the 
 
 *NoTE. — "Trinkets," within the meaning of U. S. Rev. Stat. § 4281, requir- 
 ing shippers of certain articles to give written notice to the carrier of the true 
 character and value thereof, include fans and parasols made of delicate and 
 expensive materials, ornamented with carving, fragile in construction, and in- 
 tended more for ornament than use, although possessing to some extent the 
 quality of utility. A lady's shawl made exclusively of Chantilly lace is "lace" 
 within the meaning of U. S. Rev. Stat. § 4281, requiring notice to carriers of the 
 true character and value of certain articles shipped. Ocean SS. Co. v. Way, 
 20 L. R. A. 123, 90 Ga. 747. 
 
 ^ Bassett v. Connecticut River R. Go. 145 Mass. 129; Blaisdell v. Connecticut 
 
 River R. Co. 145 Mass. 132. 
 ^National Steam Nav. Co. v. Byer ("The Scotland") 105 U. S. 24, 26 L. ed. 
 
 1001; ^^e^rYork &W. SS. Co. v. Mount ("The Benefacto?-") 103 U. S. 239, 26 
 
 L. ed. 466.
 
 LIMITATION OF AMOUNT OF LIABILITY BY STATUTE. 59 
 
 master, crew, passengers or others, or for loss or damage bj col- 
 lision, or for any act, matter or tiling, loss, damage or forfeiture, 
 done, occasioned or incurred, without privity or knowledge of the 
 owner or owners, shall in no case exceed the value of the interest 
 of such owner or owners in such ship and the freight then pend- 
 ing. Section 4 prescribes the mode of proceedings to be taken 
 by freighters and owners for the purpose of apportioning the sum 
 for which the owner or owners may be liable amongst the parties 
 entitled thereto. The last section declares that the Act shall not 
 apply to the owner or owners of any canal-boat, barge or lighter, 
 or other vessel used in rivers or inland navigation.' 
 
 In the words "Any vessel of any description whatsoever, used 
 in river or inland navigation," excepting the owner of such vessel 
 from the benefit of limitation of liability, given by the Act to 
 owners of other vessels, the word " used " means " enijDloyed." * 
 
 The Federal Statutes of 1884, chapter 121, section 18, did not, 
 prior to the statute of 1886, chapter 21, extend the limitation of 
 responsibility therein provided for to owners of fishing vessels 
 and their actual liability remained.' The Limited Liability Act, 
 reproduced in Kevised Statutes, § 5282, etc., applied to owners of 
 foreign as well as domestic vessels, and acts done on the high seas 
 as well as in the waters of the United States, except when a col- 
 lision occurs between two vessels of the same foreign nation or 
 perhaps of two foreign nations, having the same maritime law.* 
 It applies to vessels navigating the high seas between ports and 
 places within the same state.^ It does not release the owners 
 from the payment of costs in a district court beyond the amount 
 of the stipulation filed therefor, if they appear and make defense, 
 or on appeal to the circuit court or from interest in the nature of 
 damages occasioned by the appeal.* 
 
 ' Providence & N. Y. 88. Co. v. Hill Mfg. Co. 109 U. S. 578, 27 L. ed. 1038, 
 reversing 113 Mass. 495, 125 Mass. 292, Field, J., dissenting. 
 
 * Moore v. American Traiisp. Co. 65 U. S. 24 How. 1, 16 L. ed. 674. 
 ^Simpson v. Story, 145 JNIass. 497. 
 
 * National Steam Nav. Co. v. Dyer ("77t^ Scotland") 105 U. S. 24, 26 L ed. 
 
 1001. 
 ^Lord V. Ooodall, N. & P. SS. Co. 102 U. S. 541, 26 L. ed. 224. 
 *TheWanata v. Avery, 95 U. 8. 600, 24 L. ed. 461.
 
 60 LIMITATION OB LIABILITi' BY GONTKACT AND BY STATUTK. 
 
 The Act of Congress of 1851 limiting the liability of shipown- 
 ers, includes collisions as well as injuries to the cargo' and the 
 limitation of liability under Kev. Stat. §§ 4282, 4287, in a 
 case where a vessel is injured by a collision by causes over which 
 it had no control, is applicable to proceedings in rem against the 
 ship as well as to proceedings in personam against the owner. 
 The limitation extends to the owner of property as well as to 
 his person.' Under the Act of 1851, the owners of ships and ves- 
 sels are not liable for injury by collision occasioned without their 
 knowledge beyond the amount of their interest in such ship or ves- 
 sel.* The owners of a vessel stranded by negligence of the master 
 are entitled to limitation of their liability, under U. S. Rev. Stat. 
 §§ 4283-4287, if they were in no way privy to the faults that 
 brought about the stranding.* 
 
 The law of limited liability of shipowners applies to cases of 
 personal injury and death, as well as to cases of loss of, or injury 
 to, property. It extends to liability for every kind of loss and 
 injury." Limited liability may be claimed (1) by way of defense 
 to an action, or (2) by surrendering the ship or paying the value into 
 court. The latter method is only necessary when the owner de- 
 sires to bring all the creditors claiming damages into concourse 
 for distribution.' The right to proceed for limitation of liability is 
 not lost or waived by a surrender of the ship to underwriters. Where 
 the owner pays into court the amount of his liability it extinguishes 
 the claims against the vessel in rem, as well as against him in 
 pe7'sonam. The time at which the amount or value of the own- 
 er's interest in a ship and freight is to be determined, is the ter- 
 mination of the voyage, in which the loss or damage occurred, 
 which is terminated for that purpose when the ship is lost at sea 
 or the voyage is otherwise broken up before arriving at the port 
 
 • Norwich & N. T. Transp. Go. v. Wright, 80 U. S. 13 Wall. 104, 20 L. ed. 585. 
 ^ Place V. Norwich & N. T. Transp. Co. {''The City of Norwich") 118 U. S. 468, 
 
 30 L. ed. 134. 
 » The Bnltirrwre v. Rowland, 75 U. 8. 8 Wall. 377, 19 L. ed. 463; Tlie Cayuga 
 V. Uohoken Land & Imp. Co. 81 U. S. 14 Wall. 270, 20 L. ed. 828. 
 
 * Tlie City of Para, 44 Fed. Rep. 689. 
 
 » Butler V. Boston & S. SS. Co. 130 U. S. 527, 32 L. ed. 1017. 
 » Tfwmmesaen v. WhitwUl, 118 U. S. 523, 30 L. ed. 156.
 
 LIMITATION OF AMOUNT OF LIABILITY BY STATUTE. 61 
 
 of destination.' "Where the offending vessel in a collision did not 
 sink in consequence thereof, but was afterwards sunk and wrecked 
 in the same voyage by negligent navigation, this was the termi- 
 nation of the voyage for fixing the liability of her owners.' 
 Where a collision occurred by which an offending ship and her 
 cargo were sunk at sea, but strippings from the ship were rescued 
 before she went down, from which the owners afterwards realized 
 several thousand dollars, it was decided, in awarding damages 
 against the owners under Revised Statutes, sections 4283-4287, 
 limiting liability to the amount of their interest in the ship, that 
 the court is not bound to allow interest on the proceeds of the 
 wreck, or strippings, but may in its discretion allow interest or 
 not. Allowance of interest by way of damages, in cases of col- 
 lision and other cases of pure damage, as well as the allowance of 
 costs, is in the discretion of the court.^ 
 
 This liability of shipowners ma}' be discharged by their surren- 
 dering and assigning the vessel and freight for the benefit of the 
 parties injured, in pursuance of section 4, although these may 
 have been diminished in value by collision or other casualty dur- 
 ing the voyage, and, it seems that for their total loss, the owners 
 will be entirely discharged. The amount, if insufiicient to pay 
 the damages caused, will be apportioned j^o rata among the own- 
 ers of the injured vessel, and the cargoes of both vessels, in pro- 
 portion to their respective losses.'' 
 
 Insurance is no part of the owner's interest in the ship or 
 freight, within the meaning of the law and does not enter into the 
 amount for which the owner is held liable.* 
 
 In a case of collision occasioned by the negligence of the offi- 
 cers or hands of one of the vessels, without any neglect, privity 
 or knowledge of her owner, where such vessel took tire, and sank, 
 
 1 Place V. Norwich & N. 7. Transp. Go. {"The City of N(yrwicK") 118 U. S. 468, 
 
 30 L. ed. 134. 
 » Thommessen v. Whiticill, supra. 
 ' National Steam Wav. Co. v. Bi/er {"The Scotland") 105 U. S. 24, 26 L. ed. 
 
 1001. 
 * Norwich d; NY. Transp. Co. v. Wright, 80 U. S. 13 Wall. 104, 20 L. ed. 585. 
 6 Tlwmmessen v. Whitwill, 118 U. S. 523, 30 L. ed. 156; T7ie Bristol, 29 Fed. 
 
 Rep. 867.
 
 62 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 with loss of the cargo, and therefore never completed her voyage, 
 nor earned any freight, but was afterwards raised by her owner 
 and repaired, and being then libeled and seized on behalf of the 
 owners of her cargo, was claimed by him and bonded at her then 
 value and an answer and a petition for limited liability filed, al- 
 though he had received insurance on the ship for loss by fire, and 
 he was held entitled to a limitation of liability to the value of his 
 interest in ship and freight after she had sunk, under Revised 
 Statutes, sections 4282, 4287 (Act of 1851).' 
 
 As between two vessels, both of which are in fault in a collision? 
 the statute as to the liability of the owners applies only to a claim 
 for one half the difference between their respective losses, that 
 being the extent of the owners' liability.'' 
 
 The amount recovered in a collision suit, whether before limi- 
 tation proceedings are commenced or afterwards, and whether in 
 a court of first instance or in an appellate court, will stand as a 
 basis for priority of division when the fund is distributed. In 
 all other respects, the proceedings for limitation of liability may be 
 conducted within the ordinary course.' The subsequent raising 
 and repairing of a sunken vessel and giving her increased value 
 has nothing to do with the amount of liability. No freight is to 
 be estimated in finding the amount except what is earned. The 
 appraisement of a vessel upon which she is delivered to claimants 
 upon a stipulation for her value in a collision suit, does not take 
 away the jurisdiction of the court to allow a reappraisement for 
 the purpose of fixing her value, in proceedings for limitation of 
 liability.^ Under the Limited Liability Act (U. S. Rev. Stat. 
 § 4283) the liability of a ship owner for the " freight then pend- 
 ing " extends to passage money, and to freight prepaid at the port 
 of departure.^ 
 
 ^ Place V. Norwich & N. Y. Transp. Co. (" The City of Noricich") 118 U. S. 
 
 4C8, 30 L. ed. 134. 
 ^Reynolds v. Vanderbilt (" Tlie North Star") 106 U. S. 17, 27 L. ed. 91. 
 i Place V. Noo'wich c6 N. T. Transp. Go. (" T7ie City of Norwich") 118 U. S. 
 
 468, 30 L. ed. 134; New York & W. 88. Go. v. Mount (" The Benefactor") 
 
 103 U. S. 247, 26 L. ed. 466. 
 * Place V. Norioich & N. Y. Transp. Co. (" The City of Norwich") 118 U. S. 
 
 468, 30 L. ed. 134. 
 » The Main v. Williams, 152 U. S. 122, 38 L. ed. 381.
 
 LAW OF PLACE OF CONTKACT OF AFFREIGHTMENT. 63 
 
 The owners of a steamer are not relieved from their common 
 law liability for failing to use appliances necessary for the protec- 
 tion of property on shore, by United States Revised Statutes, sec- 
 tion 4491, providing that no kind of instrument, machine, or 
 equipment for the better security of life shall be used on any 
 steam vessel, which shall not be first approved by designated per- 
 sons, as such provision is made for the benefit of the passengers.' 
 The provision of the Act of Congress of Feb. 13, 1893, § 3, in 
 terms exempting vessels and their owners from all liabilities what- 
 ever if the vessel is seaworthy and properly manned, equipped 
 and supplied, must be read with the limitation that it relates only 
 to the rights and liabilities of owners and shippers as between 
 themselves with respect to tlie cargo, which are the subjects of 
 the Act, and does not abolish all liability and remedy for all 
 marine torts of vessels transporting merchandise to and from any 
 port in the United States." 
 
 Proceedings taken by the owner of the vessel, by libel or lim- 
 ited liability, are a bar to actions commenced to recover damages 
 for losses sustained by means of the stranding and sinking of the 
 vessel,' and the libelants and intervenors may be restrained from 
 collecting or attempting to collect or enforce their respective de- 
 crees in any other manner than by the ])ro rata distribution of 
 the fund standing by stipulation, in place of the ship and freight.^ 
 
 % 19. Law of Place of Contract of Affj^eightment. 
 
 Any contract of exemption of a common carrier must be proved 
 as a matter of evidence, according to the law of the forum.* 
 The general rule is that the law of a country where a contract 
 is made, governs, as to the nature, the obligation and the inter. 
 j)retation of it. The parties to the contract, are either the sub- 
 jects of the power there ruling, or as temporary residents, owe it 
 
 ' Cheboygan Lumber Co. v. Delta Transp. Co. (Mich.) April 10, 1894. 
 
 » The Berkshire. 59 Fed. Rep. 1007. 
 
 * Butler V. Boston & S. SS. Co. 130 U. S. 527, 32 L. ed. 1017. 
 
 ^Mw York & W. SS. Co. v. Mount (" Tlie Benefactor") 103 U. S. 239, 26 L. 
 
 ed. 351. 
 ^The Guildhall, 58 Fed. Rep. 796.
 
 64: LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 a temporary allegiance. In either case equally, they must be un- 
 derstood to submit to the law there prevailing and to agree to its 
 action upon their contracts. It is, of course, immaterial that such 
 agreement is not expressed in terms. It is equally an agreement 
 in fact, presumed de jure ; and a foreign court, interpreting or 
 enforcing it on any contrary rule, defeats the intention of the 
 parties as well as neglects to observe the comity of nations. It 
 was accordingly held in Peninsular & 0. Stearic Nav. Co. v. 
 Shand, 3 Moore, P. C. N. S. 272, 290, Lord Justice Turner de- 
 livering judgment in the privy council, reversing the decision of 
 the supreme court of Mauritius, that the law of England and not 
 the French law in force at Mauritius, governed the validity and 
 construction of a contract made in an English port between an 
 English company and an English subject, to carry him thence by 
 way of Alexander and Suez, to Mauritius ; and containing a stip- 
 ulation that the company should not be liable for loss of passen- 
 o;ers' bao-o-ao-e, which the court in Mauritius had held to be invalid 
 by the French law. Justice Turner observed that it was a satis- 
 faction to find that the court of cassation in France had pro- 
 nounced a judgment to the same effect, under precisely similar 
 circumstances in the case of a French officer taking passage at 
 Hong Kong, an English possession, for Marsailles, in France, un- 
 der a like contract, in a ship of the same company, which was 
 wrecked on the Red Sea, owing to the negligence of the master and 
 crew.' That decision was in accordance with an earlier one of Mr. 
 Justice Story, in Poj)e v. Nickerson, 3 Story, 465, as well as witli 
 later ones in the privy council, on appeal from the high court of 
 admiralty, in which the validity of a bottomry bond has been de- 
 termed by the law prevailing at the home port of the ship, and 
 
 not by the law of the port where the bond was given.* 
 
 * 
 
 ' Julien V. Peninsular & Oriental Go. , imperfectly cited by 3 Moore, P. C. N. 
 8. 283, note, and fully reported in 75 Journal du Palais, 225, 1864. See 
 the case of Lhyd v. Ouibert, 6 Best & S. 100, L. R. 1 Q. B. 115, decided iu 
 the Queen's Bench above, and in the Exchequer Chamber, after the de- 
 cision in the Privy Council just referred to. 
 
 » The Karnak, L. R. 2 P. C. 505, 512; The Gaetano, L. R. 7 Prob. Div. 137; 
 Liverpool & G. W. SS. Go. v. Phenix Ins. Go. (" The Montana") 129 U. S. 
 397. 32 L. ed. 788. See also The Woodland, 7 Ben. 110, 118, 14 Blatchf. 
 499-503. 104 U. S. 180, 26 L. ed. 705.
 
 LAW OF PLACE OF CONTRACT OF AFFREIGHTMENT. 65 
 
 In Chartered Mercantile Bank v. Netherlands I. S. JVav. Co. 
 L. K. 9 Q. B. Div. 118, L. R. 10 Q. B. Div. 521, 529, 536, a bill 
 of lading issued in England in the English language to an English 
 subject by a company described therein as an English company, 
 and registered, both in England and in Holland for goods shipped 
 at Singapore, an English port, to be carried to a port in Egypt, a 
 Dutch possession, in a vessel with a Dutch name, registered in 
 Holland, commanded by a Dutchman and carrying the Dutch flag 
 in order to obtain the privilege of trading with Egypt, was held 
 to be governed by the law of England and not by that of Hol- 
 land, in determining the validity and construction of a clause ex- 
 empting the company from liability for the negligence of the 
 master and crew ; and Lords Justices Brett and Lindley both con- 
 sidered it immaterial whether the ship was regarded as English oi 
 Dutch. The general rule is that where a contract is made in one 
 country between merchants carrying on business there, but to be 
 performed elsewhere, the construction of the contract and all its 
 incidents are to be governed by the law of the country where the 
 contract is made, unless it is plain to see that the intention of the 
 jDarties was that the law of the country where the contract is to 
 be performed, should prevail. A contract for the conveyance of 
 cattle from Boston to England, on a British ship, by a British 
 company, made in English forms containing exceptions as to perils 
 from " the Queen's enemies," must be considered to have been 
 made with reference to the laws of England ; and the clause 
 therein exempting the carrier for negligence, which are valid ac- 
 cording to the English law, will be held valid by English courts.' 
 The broad rule is that the law of a country where a contract is 
 made presumably governs the nature, the obligation and interpre- 
 tation of it, unless the contrary appears to be the express intention 
 of the parties. A contract by a carrier limiting its liability for 
 damages to freight shipped, from any cause whatever, to the val- 
 uation agreed upon, made in the District of Columbia in regard 
 to goods shipped from Washington to a point in another state, 
 and valid in that district, is valid everywhere.^ 
 
 1 Be Missouri SS. Go. (Eng. Ct. App.) 7 Ry. & Corp. L. J. 5. 
 ^Fairchild v. Philadelphia, W. & B. B. Co. 148 Pa. 527. 
 5
 
 QQ LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 "Where a bill of lading was made and dated in New York, ajid 
 signed by the ship's agent there, acknowledging that the goods 
 have been shipped " on the company's steamship called ' Montana ' 
 now lying in the port of New York, and bound for the port of 
 Liverpool," and are to be delivered at Liverpool ; containing no 
 indication that the owners of the steamship are English, or that 
 their principal place of business is in England, the only descrip 
 tion of the line of steamships or of the place of business of their 
 owners being in a memorandum in the margin as follows : 
 " Guyon Line of U. S. Mail Steamers, New York, 29 Broadway; 
 Liverpool, 11 Rumford St.," with a reservation of liberty in case 
 of interruption of the voyage " to tranship the goods by another 
 steamer," which would permit transhipment into a vessel of an- 
 other line, English or American, the general average to be computed 
 not by any local law or usage, but " according only to Antwerp 
 rules," which are the rules drawn up in 1864 at York in England, 
 and determined in 1877 at Antwerp in Belgium, at the interna- 
 tional conference of representatives of the more important mer- 
 cantile associations of the United States, as well as of the mari- 
 time countries of Europe (Lown. Av. 3d ed. App. 9) it was 
 held, that the contract, being made at New York, the shipowner 
 having a place of business there, and the shipper being an Amer- 
 ican, both parties must be presumed to have submitted themselves 
 to the law there prevailing, and to have agreed to its action upon 
 their contract. The contract was held a single one, and its prin- 
 cipal object, the transportation of goods, to be one continuous act, 
 to begin in the port of New York, to be chiefly performed on the 
 high seas, and to end at the port of Liverpool. The facts that 
 the o-oods are to be delivered at Liverpool, and the freight and 
 primage therefor payable there in sterling currency, did not make 
 the contract an English 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 case of a breach.* 
 
 > Peninmlar & 0. Steam Nav. Co. v. Shand, 3 Moore P. C. N. S. 273, 290; 
 Ll'iydv. Onibert, 6 Best & S. 100. L. R. 1 Q. B. 115; Chartered Mercantile 
 Bank of India v. Netherlands I. 8. Nav. Co. L. R. 9 Q. B. Div. 118, and 
 L. R. 10 Q B. Div. 521.
 
 LAW OF PLACE OF CONTKACT OF AFFREIGHTMENT. 67 
 
 It was held also that there was even less ground for holding 
 three bills of lading of cotton to be English contracts. Each of 
 them was made and dated at Nashville, an inland citj, and as a 
 through bill of lading over the Louisville & Nashville Railroad 
 and its connections, and by the Williams & Guyon Steamship 
 Co. from Nashville to Liverpool and the whole freight from 
 Nashville to Liverpool is to be " at the rate of 54 tenths ster- 
 ling per hundred pounds, gross weight," it is concluded that 
 the liability of the Louisville & Nashville Railroad and its con- 
 nections, as common carriers, " terminates on the delivery of the 
 property to the Steamship Company at New York, when the lia- 
 bility of the steamship commences, and not before ;" and that 
 " the property shall be transported from the port of New York 
 to the port of Liverpool by the said steamship company, with lib- 
 erty to ship by any other steamship or steamship line." On 
 the margin is this significant reference to the provision of the 
 statutes of the United States applicable to ocean transportation 
 only, " Attention of shippers is called to the Act of Congress of 
 1S51, that any person or persons shipping oil of vitriol, unslacked 
 lime, inflammable matches or gunpowder, on a ship or vessel tak- 
 ing a cargo for divers persons on board, without delivering at the 
 time of shipment a note in writing, expressing the nature and 
 character of such merchandise, to the master, mate, or officer, or 
 person in charge of the lading of the ship or vessel, shall forfeit 
 to the United States one thousand dollars."* 
 
 It was argued that as each bill of lading, drawn up and signed 
 by the carrier, and assented to by the shipper, contained a stipu- 
 lation that the carrier should not be liable for losses by perils of 
 the sea arising from the negligence of its servants, both parties 
 inust be presumed to have entered into and to be bound by that 
 stipulation, and must therefore (the stipulation being void by our 
 law and valid by the law of England) have intended that their 
 contract should be governed by the English law ; and one passage 
 in the judgment in Peninsular c& 0. Steam Nav. Co. v. Shand, 
 3 Moore, P. C. N. S. 272, 291, was said by the Supreme Court of 
 
 ' Act of March 3, 1851 (9 Stat, at L. C35, chap. 43, § 7) Rev. Stat. § 4288.
 
 68 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 the United States in deciding the case, to give some color to the 
 arg-nraent ; but it was added that the facts of the two cases are 
 quite different in tliis respect ; in the case cited, effect was given 
 to the law of England where the contract was made, and both 
 parties were English, and must be held to have known the law 
 of their own country, while in the case in judgment, the con- 
 tract was made in this country, between parties, the one residing 
 and the other doing business here ; and the law of England is 
 a foreign law which the American shipper is not presumed to 
 know. Both parties, or either of them, it was said, may have 
 supposed the stipulation to be valid, or either of them may have 
 known that, by our law, as declared by the Supreme Court of the 
 United States, it was void, but in either case it is not concluded 
 that there is any ground for inferring that the shipper at least, 
 had any intention, for the purpose of securing its validity, to be 
 governed by a foreign law, which he has not been shown and can- 
 not be presumed to have had any knowledge of. Accordingly, 
 it was held that each of the bills of lading is an American and not 
 an English contract, and so far as concerns the obligation to carry 
 the goods in safety, is to be governed by the American law, and 
 not by the law, municipal or maritime, of another country. That, 
 as by the law of this country, the stipulation by which the appel- 
 lant undertook to exempt itself from liability for the negligence 
 of its servants, is contrary to public policy, and therefore, void, 
 and the loss of the goods was a breach of the contract, for which 
 the shipper might maintain a suit against the carrier, that this 
 being so, the fact that the place where the vessel went asliore in 
 consequence of the negligence of the master and officers in the 
 prosecution of the voyage, was upon the coast of Great Britain, 
 is quite immaterial.* 
 
 In Jacobs v. Credit Lyonnais^ L. E.. 12 Q. B. Div. 589, a con- 
 tract made in London between two English mercantile houses by 
 which one agreed to sell to the other 20,000 tons of Algerine 
 esparto, to be shipped by a French company at an Algerian port, 
 in British vessels, furnished by the purchasers at London, and to 
 
 » Liverpool & O. W. Steam Co. v. Phoinix Inn. Co. ("The Montana") 139 U. S. 
 397, 32 L. ed. 788; The Brantford City, 29 Fed. Rep. 373.
 
 LAW OF PLACE OF COXTKACT OF AFFKEIGUTMENT. 69 
 
 be paid for by tliem in London on arrival, was held to be an 
 English contract, governed by Eiighsh law, notwithstanding that 
 the shipment of the goods in Algiers had been prevented by vis 
 major, which, by the law of France, in force there, excused the 
 seller from performance of the contract. In Hale v. N'ew Jersey 
 Steam Wav. Co. 15 Conn. 538, 546, 39 Am. Dec. 398, goods were 
 shipped at New York for Providence in Rliode Island, or Boston 
 in Massachusetts, on a steamboat employed in the business of trans- 
 portation between New York and Providence ; and an exemption 
 claimed by the carrier under a published notice, was disallowed 
 by the supreme court of Connecticut, because, by the then law of 
 New York, the liability of the carrier could not be limited by 
 such a notice. Williams, Ch. J., delivering judgment, said : "The 
 fpiestion is, by what law is this contract to be governed ? The rule 
 upon that subject is well settled, and has been often recognized by 
 this court, that contracts are to be considered 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." There is nothing in this case, either from the 
 location of the parties or the language 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 was to prevail. We have therefore, no doubt that tlie law 
 of New York as to the duties and obligations of common carriers, 
 is the law of the case." 
 
 In JDyle v. Erie R. Co. 45 N. Y. 113, 117, 6 Am. Eep. 
 43, a passenger, traveling upon a ticket, by which a railroad 
 corporation, established in New York, and whose road extended 
 from one place to another in that state, passing through the 
 states of Pennsylvania and New Jersey, by their permission, 
 agreed to carry him from one to another place in New York, was 
 injured in Pennsylvania, by the laws of which the damages in ac- 
 tions against railroads for personal injury, were limited to $3000, 
 the court of appeals in New York held that the law of Pennsyl- 
 vania had no application to the case. Mr. Justice Allen, deliver-
 
 70 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 inn; the opinion, referred to the case of Peninsula <& O. Steam 
 Nav. Co. V. Shand, 3 Moore, P. C. (N. S.) 272, as analogous in 
 principle, and said : " The contract was single, and the perform- 
 ance one continuous' act. The defendant did not undertake for 
 one specific act in part performance in one state, and another spe- 
 cific and distinct act in another of the states named, as to which 
 the parties could be presumed to have had in view the laws and 
 usages of 4is*i'ict places. Whatever was done in Pennsylvania 
 was par^jr?a single act of transportation from Utica or "Waverly 
 in thl*:[S^te of New York, to the city of ISTew York, and in per- 
 fori^-^nce of an obligation assumed and undertaken in this state, 
 and which was indivisible. The obligation was created here, and 
 by force of the laws of this state, and force and effect must be 
 given to it in conformity to the laws of New York. The per- 
 formance was to commence in New York, and to be fully com- 
 pleted in the same state, but liable to breach, partial or entire in 
 the states of Pennsylvania and New Jersey, through which the 
 road of the defendant passed ; but whether the contract was 
 broken, and if broken, the consequences of the breach should be 
 determined by the laws of this state. It cannot be assumed that 
 the parties intended to subject the contract to the laws of other 
 states, or that their rates and liabilities should be qualified or 
 varied by any of the different rates that might exist between the 
 laws of these states and the lex loci contractus^ 
 
 In Mg Daniel v. Chicago <& iV; W. B. Co. 24 Iowa, 412, 417, 
 cattle, transported by a railroad company from a place in Iowa to 
 a place in Illinois, under a special contract made in Iowa, con- 
 taining a stipulation that the company should be exempt from 
 liability for any damage, unless resulting from collision or derail- 
 ing of the trains, were injured in Illinois by the negligence of the 
 company's servants, and the supreme court of Iowa (Chief Jus- 
 tice Dillon presiding) held the case to be governed by the law of 
 Iowa, which permitted no common carrier to exempt himself 
 from the liability which would exist in the absence of a contract. 
 The court said, "The contract being entire and indivisible, made 
 in Iowa and to be partly performed here, it must, as to its valid- 
 ity, nature, obligation and interpretation, be governed by our law;
 
 LAW OF PLACE OF CONTRACT OF AFFREIGHTMENT. 71 
 
 and by our law, so far as it seeks to change the common law, it 
 is wlioll}^ nngatorj and inoperative. The rights of the parties 
 then, are to be determined under the common law, the same as 
 if no such contract had been made. In Pennsylvania Co. v. 
 Fairchild, 69 111. 260, where a railroad company received in In- 
 diana goods consigned to Leavenworth, in Kansas, and carried 
 them to Chicago, in Illinois, and there delivered them to another 
 railroad company in whose custody they were destroyed by fire, 
 the supreme court of Illinois held that the case must be governed 
 by the law of Indiana, by which the first company was not liable 
 for the loss of the goods after they had passed into the custody of 
 the next carrier in the line of transit. The reservation by the 
 supreme court of New Hampshire of any expression of opinion 
 in G7'ay v. Jackson., 51 N. H. 9, 39, 12 Am. Eep. 1, whether 
 the liability of a railroad corporation for goods transported 
 through parts of two states, was that of a common carrier or of a 
 forwarder only, should be governed by the law of the state in 
 which the loss happened, must be held to qualify the suggestion 
 to that effect in Barter v. Wheeler, 49 N. H. 9, 29, 6 Am. Eep. 
 434, that suggestion being unnecessary to the decision in that 
 case- 
 But courts often refuse to recognize contracts releasing liability 
 for negligence, valid where made on the ground that they violate 
 the state policy. That a carrier who stipulates not to be bound to 
 the exercise of care and diligence, seeks to put off the essential 
 duties of his employment. For those duties cannot be waived 
 in respect to his agents or servants, especially where the carrier is 
 an artificial being, incapable of acting except by agent and servants. 
 The law demands of the carrier carefulness and diligence in per- 
 forming the service; not merely an abstract carefulness and dili- 
 gence in proprietors and stockholders who take no active part in 
 the business. To admit such a distinction in the law of common 
 carriers, as the business is now carried on, would be subversive 
 of the very object of the law. The carrier and his customer do 
 not stand upon a footing of equality, and, since in mapy cases the 
 latter has no alternative as to the kind of bill he will receive, he 
 should not be estopped by its contents.' 
 ' Lallande v. His Creditoi-s, 42 La. Ann. 705.
 
 72 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 
 
 The individual customer has no real freedom of choice. He 
 cannot afford to hio-ojle or stand out and seek redress in the courts. 
 He prefers to accept any bill of lading or to sign any paper that 
 the carrier presents, and in most cases he has no alternative but 
 to do this, or to abandon his business. Special contracts between 
 the carrier and the customer, the terms of which are just and 
 reasonable, and not contrary to public policy, are upheld ; such as 
 those exempting the carrier from responsibility for losses happen- 
 ning from accident or beyond its own line,' or from dangers of 
 navigation that no human skill or diligence can guard against ; or 
 for money or other valuable articles liable to be stolen or dam- 
 aged unless informed of their character or value; or for perishable 
 articles or live animals when injured without default or negli- 
 gence of the carrier. But the law does not allow a public carrier 
 to abandon altogether his obligations to the public, and to stipu- 
 late for exemptions which are unreasonable and improper, 
 amounting to an abnegation of the essential duties of his employ- 
 ment. It being against the policy of the law to allow stipulations 
 which will relieve the railroad company from the exercise of care 
 or diligence, or which, in other words, will excuse it for negli- 
 gence in the performance of its duty, the company remains liable 
 for such negligence." 
 
 Where our law disallows a stipulation made in favor of carriers 
 doing business in this country, our national policy cannot permit 
 the adoption by a foreign carrier doing business and making con- 
 tracts here with our citizens, of a law of such carrier's flag which 
 permits such stipulations and enforces them." A limitation 
 of liability in a bill of lading absolving the owners of the ves- 
 
 > Wabash, St. L. & P. R. Co. v. Jaggerman, 115 111. 407. 
 
 * Liverpool & O. W. Steam Go. v. Phenix Ins. Co. ("The Montana") 129 U. S. 
 
 397, 32 L. ed. 788; New York Cent. It. Co. v. Lockwood, 84 U. S. 17 Wall. 
 
 359, 363, 384, 21 L. ed. 634, 635, 642; SoxitJiern Exp. Co. v. Caldwell, 88 U. 
 
 S. 21 Wall. 264, 22 L. ed. 556; Oqdensburg & L. C R. Co. v. Pratt, 89 U. 
 
 iS. 22 Wall. 123. 22 L. ed. 827; Bank of Kentvcki/ v. Adams Exp. Co. 93 U. 
 
 S. 174, 183, 23 L. ed. 872, 876; Canada O. T. R. Co. v. Stevens, 95 U. S. 
 
 655. 24 L. ed. 535; Hart v. Pennsylvania R. Co. 112 U. S. 331, 338, 28 L. 
 
 ed. 717, 720; Pfumix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 322, 
 
 29 L. ed. 873, 879; Inman v. South Carolina R. Co. 129 U. S. 128, 32 L. ed. 
 
 612. 
 8 2%* Brantford City, 29 Fed. Rep. 378.
 
 LAW OF PLACE OF CONTKACT OF AFFREIGHTMENT. id 
 
 sel from any neglect or default of the master, mariners, or oth- 
 ers in their service, though valid by the law of the country 
 of such vessel and that of the port of departure, will not be en- 
 forced in the United States where the obligation of the vessel as 
 a common carrier was to deliver her cargo safely at the port of 
 iS^ew York, since such a stipulation on the part of a common car- 
 rier in a bill of lading is void as against public policy.' 
 
 But a contract of carriage exempting the carrier from liability 
 for negligence, which is valid under the law of the state 
 where it is made, and is to be wholly performed, and in which 
 the alleged breach occurs, has been enforced in another state 
 although such a contract would be invalid under its law.° 
 A contract in a bill of lading for a shipment from Boston to 
 Atlanta, although it would not have been a good contract if made 
 in Georgia, can be enforced in that state if it is a good contract 
 in Massachusetts and was not intended to take effect wholly in 
 Georgia, but was to be partly performed in several different 
 states, including Massachusetts.' But no state will enforce a 
 contract injurious to good morals or public safety.* 
 
 ' TJie Guildhall, 58 Fed. Rep. 796. 
 
 2 Forepaugh v. Delaware, L. & W. R. Co. 5 L. R. A. 508, 128 Pa. 217. 
 
 3 Western & A. R. Co. v. Exposition Cotton Mills, 2 L. R. A. 102, 81 Ga. 522. 
 
 ^ Whart. Conf. L. p. 388, § 490; Story, Conf. L. p. 371, § 244; Bank of Au- 
 gusta V. Earle, 38 U. S. 13 Pet. 519. 589, 10 L. ed. 274, 308; Hope v. Hope, 
 8 DeG. M. & G. 731; Rousillon v. Roiisillon. L. R. 14 Ch. Div. 351; Oscan- 
 yan v. Winchester Repeating Arms Co. 1U3 U. S. 276, 26 L. ed, 545; Flagg 
 V. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep. 308.
 
 CHAPTER III. 
 
 ACCEPTANCE OF GOODS BY CARRIER. 
 
 § 20. Duty of Carrier to Accept Goods. 
 
 § 21. What Constitutes Delivery, Fixing Responsibility of Carrier. 
 § 22. Liability of Shippers for Goods of a Dangerous Character. 
 § 23. Liability of Shipper of Dangerous Goods to Empiloye of Car- 
 rier. 
 
 § 20. Duty of Carrier to Accept Goods. 
 
 The common carrier is liable to an action for a refusal to ac- 
 cept and transport goods without a sufficient reason therefor,' 
 But a common carrier is not necessarily a carrier of all descrip- 
 tion of goods, and he is only bound to accept the class of goods 
 which he proposes to transport, and a special contract under 
 which he accepts other goods in a special instance, will relieve 
 him from the obligation of the common carrier as to those goods ;' 
 and the obligation resting upon him only extends to the accept- 
 ance of goods which are to be carried along his usual route and 
 by the ordinary means of transportation adopted by him." 
 
 If a reasonable sum is tendered, the carrier cannot refuse the 
 carriage of the goods,* if within the class it usually carries, and if 
 the carrier has good grounds for not receiving baggage or prop- 
 erty he must insist on them ; if he receives them his liability is the 
 same as though no ground of refusal existed.' Goods which are 
 
 ^ Nvgent v. Smith, L. R. 1 C. P. Div. 423; Fish v. Chapman, 2 Ga. 349, 46 
 
 Am. Dec. 393; Piedmont Mfg. Co. v. Columbia <& G. B. Co. 19 S. C. 853. 
 ^Honeyman v. Oregon & C. R. Co. 13 Or. 352, 57 Am. Rep. 20; New York 
 
 Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; Central R. 
 
 <fc Bkg. Co. V. Lampley, 76 Ala. 357. 52 Am. Rep. 334; Kimball v. Rutland 
 
 <& B. R. Co. 26 Vt. 249. 
 
 * Pittsburg, C. & St. L. R. Co. v. 3forton, 61 Ind. 539, 28 Am. Rep. 682; 
 
 Coup V. Wabash, St. L. & P. R. Co. 56 Mich. Ill, 56 Am. Rep. 374; Pit- 
 lock V. Wells, Fargo & Co. 109 Mass. 452. 
 
 * Pickford V. Grand Junction R. Co. 8 Mees. & W. 372. 
 
 » Eannibal & Si. J. R. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 
 
 74
 
 DUTY OF CARRIER TO ACCEPT GOODS. 75 
 
 not in suitable condition for shipment, or are liable to injury from 
 want of careful packing may be declined.' If goods are brought 
 to the carrier at an unseasonable time or, by reason of his coach 
 being full, he has no convenience for carrying the goods with se- 
 curity, he will be excused from taking charge of them.' So, an 
 unusual flood of business may exhaust the carrier's means — tem- 
 porarily — for transportation, and if he has provided reasonably 
 for the expected demands of transportation, he will be excused,' 
 provided no unnecessary delay occurs/ If delay from any cause 
 occurs after the goods are accepted, notice must be given to the 
 shipper. Otherwise, the carrier will render itself responsible, al- 
 though the difficulty was unknown at the time of the acceptance 
 of the goods.' An unexpected rush of freight will not excuse a 
 carrier from an express contract to carry at a certain time.' If, 
 for any reason, the line of travel or the means of conveyance are 
 for the time being especially dangerous, the carrier may decline, 
 for that reason and while such conditions exist, to accept goods 
 under his common law liability.' 
 
 Where the charter party covenants for no specific amount to be 
 received, what is " a full cargo" is a question to be solved by an 
 experienced shipmaster.* 
 
 Where, under the Interstate Commerce Act and by express 
 statute, the duty to transport freight is directly imposed, the writ 
 
 ' Union Exp. Co. v. Graham, 26 Ohio St. 595. 
 
 ^ Baison v. Donovan, 4 Barn. & Aid. 32; Lovett v, Hobbs, 2 Show. 128: 
 
 Anonymous, 12 Mod. 3; Edwards v. Sherratt, 1 East, 604; Lane v. Cotton 
 
 1 Ld. Raym. 646. 
 
 ^Riley V. Borne, 5 Bing. 217; Peet v. Chicago & N. W. R. Co. 20 Wis. 594, 91 
 
 Am. Dec. 446. 
 « Toledo, W. & W. R. Co. v. Lockhart, 71 111. 627; Wibert v. New York & E 
 
 R. Co. 12 N. Y. 245; Ayres v. Chicago & iV. W. R. Co. 75 Wis. 215: Co}i- 
 
 dict V. Grand Trunk R. Co. 54 N. Y. 500; Great Western R. Co. v. Burns, 
 
 60 111. 284. 
 
 * Southern Exp. Co. v. Womack, 1 Heisk. 256; East Tennessee & G. R. Co. v. 
 
 Nelson, 1 Coldw. 272; Sager v. Portsmouth. 8. <& P. <& E. R. Co. 31 Me. 228, 
 50 Am. Dec. 659; Empire Transp. Co. v. Wams^itta Oil R. & M. Co. 63 Pa. 
 14, 3 Am. Rep. 515; Carter v. Peck, 4 Sneed, 203, 67 Am. Dec. 604; Place 
 V. Union Exp. Co. 2 Hilt. 19. 
 
 • Deming v. Gi'and Trunk R. Co. 48 N. H. 455, 2 Am. Rep. 267. 
 
 ''Phelps V. Rlinois Cent. R. Co. 94 111. 548; Illinois Cent. R. Co. v. Uornberger, 
 
 77 111. 457; Edwards v. Sherratt, 1 East, 604. 
 8 Ogden v. Parsons, 64 U. S. 23 How. 167-170, 16 L. ed. 410.
 
 76 ACCEPTANCE OF GOODS BY CARRIER. 
 
 of mandate has been granted to enforce the statutory duty and 
 prevent irreparable injury from the continued and inexcusable 
 refusal ;' but the court will ordinarily refuse to grant the writ to 
 enforce the acceptance in an isolated instance.^ Refusal by a 
 shipper to enter into a contract that the carrier shall not be liable 
 unless the owner shall insure for its benefit is no defense to an 
 action to compel transportation by the carrier.' 
 
 § 21. What Constitutes Delivery, Fixing Responsi- 
 bility of Carrier. 
 
 Delivery of goods to a common carrier for transportation in- 
 volves exclusive possession in the carrier, and this possession in- 
 cludes a surrender of custody and control for the time being by 
 the consignor," The delivery of goods to the carrier must be 
 complete. The control cannot be shared." When a delivery for 
 shipment is complete, it marks the beginning of the carrier's re- 
 spousibility.° but a carrier cannot open a package or parcel of 
 o-oods delivered to it for carriage to examine whether it contains 
 other parcels addressed to different persons.' 
 
 But, unless the carrier provide a place for the reception of 
 goods he is not bound to accept them till he is ready to set out on 
 his accustomed journey.' The delivery must be at the time and 
 place designated by the carrier.' It is not sufficient that goods 
 be placed upon a platform, or even within the vehicle in which 
 they are to be conveyed, unless notice be given to the carrier and 
 its servants.'" Goods stored along the line of a railway, awaiting 
 
 ' Chicago, B. & Q. R. Co. v. BurUngton, C. R. & N. R. Co. 34 Fed. Rep. 481. 
 
 •^ People V. Nexo York, L. E. & W. R. Co. 23 Hun, 533. 
 
 Unman v. South Carolina R. Co. 129 U. S. 128, 32 L. ed. 612. 
 
 * Wilson V. Atlanta & C. R. Co. 82 Ga. 386, 40 Am. & Eng. R. Cas. 25. 
 
 5 Brind v. Dale, 8 Car. & P. 207. 
 
 " Mason v. Missouri Pac. R. Co. 25 Mo. App. 473. 
 
 ' Crouch V. London <& N. W. R. Co. 2 Car. & K. 789. 
 
 ^ Lane v. Cotton, 1 Ld. Raym. 652; Peck v. Smith, 1 Conn. 105, 6 Am. Dec. 
 
 216. 
 9 Bitckman v. Levi, 3 Campb. 414 ; Sehcay v. Eolloicay, 1 Ld. Raym. 46. 
 '"LejV/A V. Smith, 1 Car. & P. 638; Orosvenor v. New York Cent. R. Co. :59 N. 
 
 Y.34.
 
 WHAT C02«'SHTL"rKS DELIVERY FIXING EESPONSIBILITY OF CAKRIEE, i i 
 
 shipment, until the necessary means for transportation are pro- 
 vided, are not delivered into possession of the carrier.' A 
 place where for a long time there has been no depot, no freight, 
 no agent, no employe stationed to attend to shipments, is not 
 a "regular depot or station" at which a railroad com pan v 
 must receive articles for shipment when tendered, although it has 
 occasionally and irregularly received the lumber from one per- 
 son, and mail trains regularly stop there to deliver the mail, and 
 the place is set down in circulars and orders of the company as a 
 station.' A mere switch at w^hich there is neither agent, station, 
 nor platform, and where shipments are made by loading upon 
 cars placed upon the switch by request, is not a depot so as to 
 render the deposit of freight at the place, a delivery to the com- 
 pany owning it, thereafter liable as a common carrier.^ 
 
 But where a railroad company erects a platform for the 
 purpose of shipping cotton, and its course of business is such that 
 it induces parties to store cotton on it, under a promise to ship by 
 the next freight train, and it passes and neglects to take on said 
 cotton, and it is afterwards destroyed by fire from a passing train, 
 the company is liable for the value of the cotton.'' But a court 
 will not require by mandate a railroad carrier to establish a freight 
 station for public convenience, even in a town upon its line, at 
 which it has not made a practice of receiving or delivering pas- 
 sengers and freight, when neither charter nor statute prescribe 
 rules controlling the carrier in the location of its stations.^ And 
 where cotton is in a compress warehouse, and until its actual de- 
 livery upon the loading platform for shipment, the carrier's re- 
 sponsibility is only that of a warehouseman.* 
 
 > Frazier v. Kaiisas City, St. J. & O. B. R. Co. 48 Iowa, 571 ; Wilson v. Atlanta 
 
 6 C. R. Co. m Ga. 386; Utile Rock & Ft. S. R. Co. v. Hunter, 43 Ark. 200; 
 St. Louis, I M. & S. R. Co. v. CominercialU. Ins. Co. 139 U. S. 223, 35 L. ed. 
 154. 
 
 ^Land V. Wilmington &W. R. Co. 104 N. C. 48, 40 Am. & Eng. R. Cas. 18. 
 
 3 Kansas City, M. & B. R. Co. v. Lilly (Miss.) 45 Am. & Eng. R. Cas. 379. 
 
 4 Meyer v. Vicksburg, 8. <& P. R. Co. 41 La. Ann. 639. 
 6 Peo2)le V. Chicago & A. R. Co. 130 111. 175. 
 
 6 Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 126; CNeill v. NewYork Cent. 
 i& n. R. R. Co. 60 N. Y. 138; Michigan, S. £ j^. L R. Co. v. Shurtz, 7 Mich. 
 515; St. Louis, A. & T. H. R. Co. v. Montgomery, 39 111. 335; Plattv. Hibhard, 
 
 7 Cow. 497; Roskell v. Waterhouse, 2 Stark. 461.
 
 76 ACCEPT AiSICE OF GOODS BY CARKIEK. 
 
 A delivery of goods for shipment at a carrier's warehouse, in 
 the presence of the carrier's agent, and receiving a bill of lading 
 signed by the agent, is a delivery to the carrier, so as to render 
 the latter liable for not shipping the goods within five days, as 
 required by N, C. Code, § 1967/ A railroad company is liable 
 for the nonperformance of a contract to carry goods for which it 
 has receipted by its own agent, although its road is in the posses- 
 sion of a lessee.^ Delivery of a horse at a pen and on a chute 
 provided by the company and designated by its agent for the use 
 in loading a car is sufiicient to charge the company if the chute 
 proves rotten, and damages result/ 
 
 The liability of a common carrier of goods and merchandise 
 attaches when the property passes, with his assent, into his posses- 
 sion, and is not affected by the question of ownership of the car- 
 riage in which it is transported, nor by the fact that the carriage 
 is loaded by the owner/ The duty of loading freight delivered 
 to and accepted by a railroad company for transportation rests 
 primarily upon the company ; and a rule by which the shippers 
 of heavy and bulky freight are required to load it upon cars at 
 most requires such shippers to furnish the necessary help to load 
 it, and does not change the company's relation, in regard to prop- 
 erty delivered to and accepted by it for the sole purpose of trans- 
 portation, from that of a carrier to a warehouseman/ But the 
 ways and means of loading, the car being in proper condition, 
 and the burden of loading being by agreement upon the shipper, 
 it is his duty to have the car loaded that the train may not be un- 
 reasonably delayed/ 
 
 The delivery must be made to some agent of the carrier, if not 
 to the carrier in person, who is authorized to receive the goods/ 
 
 • Harrell v. Wilmington <S:W. R. Co. 106 N. C. 258, 42 Am. & Eng. R. Cas. 417. 
 
 « National Bank of Chester v. Atlanta & C. A. L. B. Co. 25 S. C. 216. 
 
 » McCullough v. Wabash Western R. Co. 34 Mo. App. 23. 
 
 *Uannibal & St. J. B. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 
 
 » London & L. F. Ins. Co. v. Rome, W. & 0. B. Co. 68 Hun, 598. 
 
 ^ Lojiisville, N. A. & C B. Co. v. Goibnan, 104 lud. 490. See Frazier v. Kan- 
 sas City, St. J. & C. B. B. Co. 48 Iowa, 571. 
 
 ^ Ford V. Mitchell, 21 Ind. 54; Harrell v. Wilminrjton &W. B. Co. 106 N. C. 258; 
 Bogen v. Long Island B. Co. 2 Lans. 269; Trowbridge v. Chapin, 23 Conu. 
 595.
 
 WHAT CONSTITUTES DELIVERY FIXING RESPONSIBILITY OF CARRIER. 79 
 
 But, if the place be distinctly designated, or adopted by usage, at 
 which the deposit of goods may be made, the carrier, upon such 
 deposit, will become responsible/ And a railroad company is lia- 
 ble as a carrier, and not as a warehouseman, for hay delivered to 
 it upon which the freight is paid, though no receipt, shipping bill, 
 or bill of lading is delivered by it, and none of the bales are 
 marked with the names of the consignees, but the marks are put 
 upon the cars when shipped, where the hay is delivered for as 
 early transportation as can be made in the course of the company's 
 business, subject only to such delays as are necessary to enable it 
 to procure cars for the transportation, and there is no omission to 
 direct where it shall be shipped, or to load it, in accordance with 
 the agreement, as fast as the cars are furnished, and no further 
 orders are necessary to enable the company to forward the hay.^ 
 One who places his property ready for shipment near the track 
 of a railroad in an exposed and hazardous position, but where the 
 company has been in the habit of receiving such goods, although 
 assuming the risk of fire following the proper and lawful use of 
 locomotives, does not assume the risks of the railroad company's 
 negligence. It is not contributory negligence per se to place 
 combustible goods for shipment on a platform erected for the 
 purpose of receiving freight for shipment, near the track of a 
 railroad, where the company has been in the habit of receiving 
 such goods, and leave them without watch, although they will be 
 exposed to danger from fire.' If the goods are delivered at the 
 usual place of receiving goods for shipment, and the fact of their 
 delivery is brought home to the carrier or his duly authorized 
 agents, there can be no question as to the responsibility accruing 
 to the carrier as far as the end of his route, for he is bound to 
 keep the goods safely after delivery to him for transportation, as 
 well as to carry them safely.* 
 
 » Converse v. Norwich & N. Y. Transp. Cb.33 Conn. 166; Meyer v. Yicksburg, S. & 
 P. R. Co. 41 La. Ann. 689; MerrmniY. Hartford d- X. H. B. Co. 20 Conn. 354 
 52 Am. Dec. 344; Montgomery & E. R. Co. v. Kolb, 73 Ala. 396, 49 Am. Rep' 
 54; Qreen v. MUwaukee & Si. P. R. Co. 38 Iowa, 100. 
 
 2 London & L. F. Ins. Co. v. Rome, W. & 0. R. Co. 68 Hun. 598. 
 
 * St. Louis, A. <& T. R. Co. v. Philadelphia F. Asso. 55 Ark. 163. 
 
 *Dale V. Hall, 1 Wils. 281; Clark v. Needles, 25 Pa. 338; Southern Exp. Co v. 
 Nevcby, 36 Ga. 635, 91 Am. Dec. 783.
 
 So ACCEPTANCE OF GOODS BY CAKKIEB. 
 
 In many of the cases it has been held that even where the de- 
 livery was made in a customary place, yet it was requisite that 
 notice should be given to the carrier of the facts of such deposit, 
 and of the quantity and number of pieces of which it consisted. 
 And it is undoubtedly true that the rule as to constructive deliv- 
 ery, is one that should be applied with caution, and the question 
 is often one for the determination of the jury.' Of course, as the 
 delivery may be to an agent of the carrier, it is not necessary that 
 the shipper should himself make a personal delivery ; but this 
 may be done through his agent, who for all purposes is empowered 
 to direct the shipment and agree upon the terms,' 
 
 Railway companies are accustomed to receive their freight at 
 their freight depots, or at designated points where, daring busi- 
 ness hours, their agents are present to accept and receipt for 
 o-oods. Of course, under such circumstances, no qtiestiou of de- 
 livery can be raised. But, when the delivery is attempted at 
 unusual hours, notice should be given of the deposit of the goods. 
 If the deposit be made at a place not specially designated, nor 
 commonly used for that purpose, no delivery will be construed as 
 having taken place, unless the carrier or its proper agent actually 
 consents to receive them, or accepts them in fact.' 
 
 No well founded distinction can be made as to the liability of 
 
 ' Packard v. Getman, 6 Cow. 757, 16 Am. Dec. 475; Wright v. Caldwdl, 3 
 
 Mich. 51. 
 ' Nelson v. Hudson River R. Co. 48 N. Y. 498; York Mfg. Co. v. Illinois Cent. 
 
 R. Co. 70 U. S. 3 Wall. 113, 18 L. ed. 172; Rawson v. Holland, 59 N. Y. 
 
 611, 18 Am. Rep. 394; ChriMenson v. American Exp. Co. 15 Minn. 270. 2 
 
 Am. Rep. 122; New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 
 
 U. S. 6 How. 344, 12 L. ed. 465; 3fiUs v. Michigan Cent. R. Co. 45 N. Y. 
 
 622, 6 Am. Rep. 152; London & N. W. R. Co. v. Bartlett, 7 Hurlst. & N. 
 
 600; Barnett v. London & N. W. R. Co. 5 Hurlst. & N. 604; Robinson v. 
 
 Merchants Despatch Transp. Co. 45 Iowa, 470; Lewis v. Great Western R. 
 
 Co. 5 Hurlst. & N. 867; Moriarty v. Harnden's Express, 1 Daly, 227; 8qui7-e 
 
 V. New York Cent. R. Co. 98 Mass. 239, 93 Am. Dec. lQi2; Jennings v . Grand 
 
 Trunk R. Co. 52 Hun. 227. 
 *Dwig?a\. Brewster, 1 Pick. 50, 11 Am. Dec. 133; Cronkite v. Wells, 32 N. 
 
 Y. 247; Blanclmrd v. Isaacs, 3 Barb. 388; Louisville, N. A. & C. R. Co. v. 
 
 Flanagan, 113 Ind. 488; Fisher v. Geddes, 15 La. Ann. 14; State v. Suffolk 
 
 & C R. Co. 100 N. C. 158; Missouri Coal & Oil Co. v. Hannibal & St. J. R. 
 
 Co. 35 Mo. 84; Land v. Wilmington & W. R. Co. 104 N. C. 48; Wells v. Wil- 
 
 ming/on & W. R. Co. 51 N. C. 47, 72 Am. Dec. 556; East Line & R. R. R. Co. 
 
 V. ilall, 64 Tex. 615; Kansas City, M. & B. R. Co. v. Lilly (Miss.) 45 Am. 
 
 & Eng. R. Cas. 379; Illinois Cent. R. Co. v. Ashmead, 58 III. 487.
 
 WHAT CO^'STn■l;TES DELIVKKV FlXI^'Ci KESrOiS'SIl^ILITi' OF CAKKIEK. 61 
 
 the owner of a vessel, between the case of the delivery of goods 
 into the hands of the master at the wharf for transportation 
 on board of a particular ship in pursuance of a contract of 
 affreightment, and the case of loading the goods upon the deck 
 of the vessel. Where the master of a vessel agreed to carry TOO bales 
 o ''' cotton from Mobile to Boston for certain freight mentioned in the 
 bill of lading, the vessel was bound for the safe shipment of the 
 whole 700 bales from the time of their delivery by the shipper at 
 the city of Mobile and acceptance by the master, and the delivery 
 of 100 bales to a lighterman to deliver on board the vessel, was a 
 delivery to the master, and the transportation by the lighter to 
 the vessel was the commencement of the voyage, the same as if 
 the one hundred bales had been placed on board the vessel at the 
 city instead of the lighter. Where both parties understood that 
 the cotton was to be delivered to the carrier for shipment at the 
 wharf in the city, and to be transported thence to the port of dis- 
 charge, and after the delivery and acceptance at the place of ship- 
 ment, the shipper had no longer any control over the jjroperty, 
 the ship is liable for the loss on the lighter of the 100 bales, the 
 same as any other portion of the cargo.' Where the delivery of 
 a cargo to a lighter is equivalent to delivery to the owners of 
 the steamer on which it is to be shipped, the steamer is liable for 
 loss occasioned by negligence of those in charge of the lighter." 
 
 A delivery upon a ferryboat has been held complete, when 
 goods were deposited upon the slip of the boat and before placed 
 in actual possession of those in charge of the ferry.' But it 
 w^ould seem, upon principle, that there should be some notice to 
 the ferryman of the deposit, — even when it is made upon the 
 boat itself." The lial)ility as a common carrier only commences 
 when the delivery to him is completed. If, according to the 
 usage of business, the delivery is sufficient upon a dock or near 
 
 ^Bulkley v. Naumkeag Steam Cotton Co. 65 U. S. 24 How. 386-394, 16 L. ed. 
 
 599-G02. 
 s The City of Alexandria, 24 Blatchf . 50, 28 Fed. Rep. 202, 
 ^ Blakeley v. LeDuc, 19 Minn. 187; Miles v. James, 1 McCord, L. 157; Cohen 
 
 V. Hume, 1 McCord, L. 439; Cook v. Gourdin, 2 Nott. &McC. 19. 
 * White V. Winnisimmet Co. 7 Cush. 155; Wyckoff v. Queens County Ferry 
 
 Co. 53 N. Y. 32, 11 Am. Rep. 650. 
 
 6
 
 82 ACCEPTANCE OF GOODS BY CARKIEK. 
 
 the carrier's boat, express notice, nevertheless, it has been said 
 must be given the carrier.' But if a common carrier agrees that 
 property for transportation by him may be deposited at a par- 
 ticular place without express notice to him, such deposit is a suffi- 
 cient delivery. Such agreement may be shown by usage.'' 
 
 A shipper's knowledge of directions to the carrier's agent, not 
 to receive certain articles for transportation, will not relieve the 
 carrier from liability, if their transportation is actually undertaken. 
 If the shipper knew by report, when he delivered the property 
 to the defendant, that its agents had been directed not to receive 
 any game during a closed season, this was no limit of the com- 
 pany's responsibility by special contract; or such knowledge 
 should be brought home to the shipper and assented to by him, as 
 necessary to limit such responsibility.* " A carrier may limit his 
 responsibility for property intrusted to him," says Bigelow, CJi. 
 J.^ "by a notice containing reasonable and suitable restrictions, if 
 brought home to the owner of goods delivered for transporta- 
 tion, and assented to clearly and unequivocally by him. It is also 
 settled that assent is not necessarily to be inferred from the mere 
 fact that knowledge of such notice on the part of the owner or 
 consignee of goods is shown. The evidence must go further, and 
 be sufficient to show that the terms on which the carrier proposed 
 to carry the goods were adopted p the contract between the 
 parties, according to which the service of the carrier was to be 
 rendered." It is undoubtedly the right of the carrier to require 
 good faith on the part of those who deliver goods to be carried, or 
 enter into contracts with him. The degree of care to be exercised, 
 as well as the amount of compensation for the carriage of prop- 
 erty, depends largely on its nature and value; and no fraud or 
 deception should be used which would mislead the carrier as to 
 the extent of his duties or the risks which he assumes. 
 
 In a late case, where game prohibited by law to be in possession 
 
 ^ racknrdv. Qeiman, 6 Cow. 757, 16 Am. Dec. 475; Selway v. HoUoway, 1 
 
 Ld. Raym. 46; Cobban v. Downe, 5 Esp. 41. 
 « rratt V. Orand Trunk R. Co. 95 U. S. 43, 24 L. ed. 336. 
 ^FUlebrown v. Grand Trunk R Co. 55 Me. 463, 92 Am. Dec. 606. 
 *Buckland v. Adams Exp. Co. 97 Mass, 125, 93 Am. Dec. 68.
 
 WHAT CONSTITUTES DELIVEKY FIXING KESrONSIBILITY OF CAKKIEK. S'6 
 
 of any one in the state, was delivered to the carrier, it was said 
 that this property was lawfully the property of the shipper. It 
 was delivered to and accepted by the carrier company for trans- 
 portation to a point beyond the limits of the state when received. 
 Their liability as common carriers held them to a strict fulfill- 
 ment of their obligation in relation to the property in their charge. 
 That obligation was not merely to transport the property in the 
 state when accepted, but to a point outside of its limits in another 
 state. "When it had lawfully commenced to move as an article 
 of commerce from one state to another, from that moment it be- 
 came the subject of interstate commerce, and, as such, was sub- 
 ject only to national regulation, and not to the police power of 
 the state. The same is unquestionably true in relation to what- 
 ever agency or instrumentality may be used as the means of 
 transporting such commodities as may lawfully become the sub- 
 ject of purchase, sale or exchange, under the commerce clause of 
 the Constitution of the United States.' The transportation of 
 the subject of interstate commerce, where it is such as may law- 
 fully be purchased, sold, or exchanged, is without doubt a constit- 
 uent of commerce itself, and is protected by and subject only to 
 the regulation of Congress.'* 
 
 If the property is received upon the premises of the carrier, to 
 wait further instructions before transportation, his liability 
 is that of a warehouseman only, until the instructions are re- 
 ceived.' If the deposit of the goods on the premises of the car- 
 rier is a mere accessory to the carriage, that is, if they are depos- 
 ited solely for the purpose of being forwarded to their destination 
 without further orders, the responsibility of the carrier begins 
 from the time they are so received ; but when the property is 
 
 • Bennett v. American Exp. Co. 13 L. R. A. 33, 83 Me. 236. 
 
 "- The Daniel Ball v. United States, 77 U. S. 10 Wall. 557, 565, 19 L. ed. 999, 
 
 1002; Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 485, 31 L. ed. 700, 
 
 707, 1 Inters. Com. Rep. 823; MohiU County v. Kimball, 102 U. S. 691, 26 L. 
 
 ed. 238; Welton v. Mimotiri, 91 U. S. 275, 23 L. ed. 347; Coe v. Errol, 116 U. 
 
 S. 517, 29 L. ed. 715; Leisy v. Hardin, 135 U. 8. 100, 34 L. ed. 128, 3 Inters. 
 
 Com. Rep. 36. 
 3 O'Neill Y. New York Cent. & H. R. R. Co. 60 N. Y. 138; Barron v. Eldredge, 
 
 100 iMass. 455, 1 Am. Rep. 126; Rogers v. Wheeler, 52 N. Y. 262. And see 
 
 Gilbert v. New York Cent. & H. B. R. Co. 4 Hun, 378, 6 Thomp. & C. 662.
 
 84 ACCEPTANCE OF GOODS BY CAKKIEK. 
 
 deposited subject to the further orders of the consignor, the rule 
 is otherwise, as just stated.* 
 
 Where a carrier receives goods in his own warehouse for the 
 accommodation of his customers and himself so that the storage 
 is to facilitate the carriage, his liability as carrier commences upon 
 receipt of the goods." There is no necessity that the acceptance 
 of the carrier should be evidenced by any written memoi*andum 
 or receipt. It is sufficient that the goods are left with the car- 
 rier without objection, at their proper place.' When the carrier 
 attempts to load goods, all question of his responsibility is ended.* 
 
 § 22. Liability of Shippers for Goods of a Danger- 
 ous Character. 
 
 The general rule that one engaged in business may refuse to 
 have business relations with any person with whom he does not 
 choose to deal, has a few exceptions of which several are compar- 
 atively new, although somewhat analogous to the ancient instances 
 of innkeepers and common carriers. The rule has long been rec- 
 ognized as applying to carriers, and it is well settled that a common 
 carrier cannot refuse to carry a proper article tendered at a rea- 
 sonable time and place with an offer of usual and reasonable com- 
 j^ensation.^ This doctrine is assumed to be the law in a great 
 multitude of cases, and is indeed involved in the definition of 
 common carriers, but the obligation of a common carrier is only 
 to carry according to its public profession and not necessarily to 
 
 » Wnde V. Wheeler, 3 Lans. 201, affirmed in 47 N. Y. 658; Ladue v. Griffith, 25 
 N. Y. 3G4, 82 Am. Dec. 360; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 
 623; Marring v. Todd, 1 Slfirk. 72; Michigan, S. & N. I. It. Co. v. Shurtz, 7 
 Mich. 515; Blossom v. Griffin, 13 N. Y. 569, 67 Am. Dec. 75; Hickox v. Nau- 
 gatuek B. Co. 31 Conn. 281, 83 Am. Dec. 143; Watts v. Boston & L. B. Corp. 
 106 Mass. 466. See Illinois Cent. B. Co. v. McCiellan, 54 HI. 58, 5 Am. Rep. 
 83. 
 
 « Forward v. Pittard, 1 T. R. 27. 
 
 ^ Aiken v. Chicago, B. & Q. B. Co. 68 Iowa, 363; Illinois Cent. B. Co. v. Smy- 
 ser, 38 111. 354, 87 Am. Dec. 301; Woods v. Devin, 13 111. 747, 56 Am. Dec, 
 483; Camden & A. B. & Transp. Co. v. Belknap, 21 Wend. 354. 
 
 *Merritt v. Old Colony & N. B. Co. 11 Allen, 80; Thomas v. Day, 4 Esp. 262. 
 
 » Bennett v. Button, 10 N. H. 486.
 
 LIABILITY OF SHIPPERS FOR GOODS OF A. DAIs^GEROUS CHARACTER. 85 
 
 carry goods of eveiy description.' But a common carrier of 
 goods generally is liable in damages for an absolute refusal to re- 
 ceive and carry goods offered without good reason for the refusal," 
 and it will not be accepted as a sufficient legal reason for the re- 
 fusal, that a shipper declines to inform the carrier of the charac- 
 ter of the goods and the contents of the packages offered, unless 
 there be some reasonable grounds justifying such inquiry/ It is 
 not a duty incumbent on the carrier to ask the contents in cases 
 free from suspicion. It would be unreasonable in a master or 
 mate, having no reason to suspect that goods offered to him for 
 the general shipment can not safely be stowed away in the hold, 
 — to ask every shipper the contents of every package." 
 
 But a stij)ulation in a charter party to take and carry merchan- 
 dise, does not compel the master to take goods which, in liis hon- 
 est judgment, cannot be carried without injury to the rest of the 
 cargo.' Where goods are offered to the carrier, which he has 
 good reason to suppose are of a dangerous character and will in- 
 jure other freight, he may require information upon this point, 
 and upon refusal to give such information, he may refuse to take 
 the goods." By the 105tli section of 8 & 9 Yict. chap. 20, car- 
 riers may refuse to take any parcel they sus^Dect contains goods of 
 a dangerous nature, and require the same to be opened to ascer- 
 tain the fact. It has been held that the shipper would not be liable 
 for an accident resulting from the transportation of goods, unless 
 he knew the character of the article shipped or was put upon in- 
 quiry.' Maule, J., denied the accuracy of the remark made by Best, 
 Ch. J., that a carrier has the right to know the value and quahty 
 
 ' Johnson v. Midland B. Co. 4 Exch. 372. To similar effect Oxlade v. Mrth- 
 
 eastern R. Co. 9 Week. Rep. 272. 
 2 Boty V. Strong, 1 Pinney, 313, 40 Am. Dec. 773. 
 ^Parrott v. Wells, 82 U. S. 15 Wall. 524, 21 L, ed. 206; Crouch v. London & N. 
 
 W. R. Co. 14 C. B. 256, 7 Exch. 705. 
 * Brass v. Maitland, 6 El. & Bl. 412. 
 ^Boyd V. Moses, 74 U. S. 7 Wall. 316, 19 L. ed. 192. 
 
 « The mth, 36 Fed. Rep. 86; Parrott v. mils, 82 U. S. 15 Wall. 524 21 L ed 
 
 206. 
 ' Parrott v. Wells, 82 U. S. 15 Wall. 524, 21 L. ed. 206; Brass v. Maitland, 6 El. 
 
 & Bl. 482; Hutchinson v. Guion, 5 C. B. N. S. 162; Pierce v. Winsor, 2 
 
 Sprague, 35, on appeal, 2 Cliflf. 27.
 
 86 ACCEPTANCE OF GOODS BY CARKIEK. 
 
 of what he is required to carry.' But if the owner of the goods 
 will not tell him what the goods are, and what tliej are worth, the 
 carrier may refuse to take charge of them.' 
 
 As the carrier has the right to regulate his charges somewhat 
 by the value of the articles transported, and the liability he thus 
 incurs for their injury or loss — as will appear by the authorities 
 hereafter cited — it is proper that he should inquire of the shipper 
 as to the value of the articles consigned." 
 
 Still only when there is good ground for believing that mer- 
 chandise ofEered for shipment is of a dangerous character, from 
 the appearance of the package or other circumstances, that the 
 carrier is authorized — in the absence of any special legislation on 
 the subject— to require a knowledge in full detail of the pack- 
 ao-es offered, as a condition for receiving them for carriage.* A 
 freight train upon which passengers are conveyed for compensa- 
 tion, in any kind of car, by authority of the railroad company, is 
 a passenger train Avithin U. S. Kev. Stat. § 5353, forbidding all 
 transportation of nitro-glycerine from one state to another upon 
 public conveyances employed in transporting passengers." Where 
 goods were so carelessly packed as to injure other portions of the 
 caro-o, and the carrier was unaware of their real character, the 
 shipper will be liable.^ Where a general ship was put up for 
 freight, and among other freight offered and taken was mastic, 
 an article then new in commerce, and which was so affected by 
 the voyage that it injured other parts of the cargo in contact with 
 it and caused increased expenditure in discharge of the vessel, the 
 court held the shipper and the charterer liable, for it was said 
 that the storage of mastic was made in the usual way, and it was 
 not disputed that it would have been proper if the article should 
 
 > Crouch V. London & N. W. R. Co. 14 C. B. 256. 
 
 « Riley v . Home, 5 Bing. 217. 
 
 3 Merchants Despatch Transp. Co. v. Belles, 80 111. 473; Baldwin v. Liverpool 
 
 & O. W. SS. Co. 74 N. Y. 125, 30 Am. Rep. 277; Broicn v. Ca7)iden & A. 
 
 R. Co. 83 Pa. 316. 
 *Parrott v. Wells, 82 U. 8. 15 Wall. 524, 21 L. ed. 206; Pierce v. Winsor, 2 
 
 Cliff. 18. 
 5 United States v. Saul, 58 Fed. Rep. 763. 
 
 ^ Brass v. Maitland, 6 El. & Bl. 470; Hutchinson v. Ouion, 5 C. B. N. S. 149; 
 Hearne v. Carton, 2 El. & El. 66.
 
 LIABILITY OF SHIPPERS OF DANUEKOUS GOODS TO EMPLOYE. 87 
 
 have been what it was supposed to be when it was received and 
 placed on board. Want of greater care in that behalf was not a 
 fault, because the master had no means of knowledge that the 
 article required any extra care or attention beyond what is usual 
 in respect to other articles. It was true, in that case, that the 
 dangerous character of mastic thus transported was unknown to 
 the shipper, but he was, nevertheless, held liable to refund dam- 
 ages to the owner of the vessel, for losses sustained by other ship- 
 pers. It was said, that the law imputes to the shipper a knowl- 
 edge of the dangerous character of the shipments ;' and he is not 
 relieved from this resi^onsibility although the goods may have 
 passed through many hands,'' 
 
 A manufacturing firm which through its duly authorized agents 
 purchases the cargo of a canal boat, and charters another boat to 
 transport it as refuse salt, and upon arrival refuses to receive it 
 because it is salt cake, is hable to the owner of the boat chartered 
 for damage to the boat from acids in the salt cake, although it 
 was deceived in the purchase.'' 
 
 I 28. Liability of Shipper of Dangerous Goods to 
 Employe of Carrier. 
 
 Where the shipper of explosive or combustible substance fails 
 to notify the carrier or his agent of the danger attending its use, 
 when transporting it, and injury results to an employe of the car- 
 rier, the owner is liable for the injury sustained. But, when the 
 carrier is notified of the danger of the article or product, and 
 there is marked on the head of the barrel or package that which 
 must necessarily apprise the carrier of its dangerous nature, and 
 the carrier, in his ordinary line of business, undertakes to trans- 
 
 ' Jeffrey v. Bigelow, 13 Wend. 518, 38 Am. Dec. 476; Binford v. Johnston, 83 
 Ind. 436, 43 Am. Rep. 508; Dickson v. Bell, 5 Maule & S. 198; Poirers v. 
 Harlow, 53 Mich. 507, 51 Am. Rep. 154; Talli/ v. Ayres, 8 Sneed, 677; Bar- 
 ney V. Burnsteinbinder, 64 Barb. 313; Wright v. Clark, 50 Vt. 130, 38 Am. 
 Rep. 496 ; Crowhurst v. Amersham Burial Board, L. R. 4 Exch. Div. 5. 
 
 « Thomas v. Winchester, 6 N. Y. 897, 57 Am. Dec. 455; Lane v. Atlantic 
 Works, 111 Mass. 141; Farrant v. Barnes, 11 C. B. N. S. 553; lllidae v. 
 Ooodwin, 5 Car. & P. 193. 
 
 « Carroll v. Walton & W. Co. 48 Fed. Rep. 138.
 
 88 ACCEPTANCE OF GOODS BY CARRIER. 
 
 port it, and an injury occurs to one of its employes, the shipper 
 cannot reasonably be held liable because knowledge was not 
 brought home to the employe. 
 
 In the shipment of a dangerous article there is an implied, if 
 not a positive duty, on the part of both shipper and carrier, to 
 notify those who handle the dangerous substance of its character, 
 and no arrangement made between them, although entered into in 
 the best of faith, by which the dangerous substance may be 
 shipped under the designation of a relatively harmless article, 
 ■will protect either party from liability from the consequences 
 which result from this deception. Thus, dynamite cannot innocent- 
 ly be shipped as "Powder;" nor can naptha be transported as "Car- 
 bon Oil." To protect either the shipper or the carrier from liabil- 
 ity, the brand upon the jDackage must contain sufficient notice of 
 the dangerous substance within it. Thus, the dangerous character 
 of naptha requires more vigilance and care in shipping and hand- 
 ling it, than almost any other explosive substance; and as a means 
 of greater protection, it would be prudent to give other warning 
 than the mere name of the substance. As an explosive, it is said, 
 the danger is ten times greater than that of gun powder. It ig- 
 nites as soon as the blaze is applied to it, and becomes explosive 
 when the vapor from it mingles with the atmosphere in which 
 there happens to be a burning lamp or other light. 
 
 Where naptha is shipped, even so marked, the real danger may 
 not be known ; but still the shipper, having truthfully marked it, 
 might anticipate that it would put the carrier and its employes 
 upon inquiry, and remove all question of negligence on the j^art 
 of the shijDper. And, in a case where the article was shipped 
 marked " Carbon Oil, Unsafe, for illuminating purposes," it was 
 held that this description in the freight bill and on the barrels was 
 not sufficient notice to inform the employes of the carrier of the 
 danger in handling it, and of their peril in exj^osing a lighted 
 lamp near it. And, although this mark w^as in accordance with 
 an agreement between shipper and carj-ier neither was released 
 from their lial)ility to answer to the employe for the dangerous 
 injury to wliich they carelessly exposed him." 
 
 ' Standard Oil Co. v. Tierney, 14 L. R. A. 677, 92 Ky. 367.
 
 LIABILITY OF SHIPPEKS OF DANGEROUS GOODS TO EMPLOYE. 89 
 
 A ruling which holds the shipper liable for an injury to an em- 
 ploye of the carrier, where actual notice of the dangerous charac- 
 ter of the article shipped was given to the carrier, and by agree- 
 ment the designation not warning the employe of the peril in 
 handling the article, is grounded on a principal of law which 
 clearly imputes liability to the owners of their property received 
 by the carrier and thus injured ; and unquestionably requires the 
 shipper to answer in damages to the carrier, where he fails, even 
 without inquiry on the carrier's part, to notify it of the danger it 
 incurs, to both its employes and its cargo, from the shipment.' 
 
 > Boston & A. E. Co. v. Shanly, 107 Mass. 568; Farrant v. Barnes, 11 C.B. N. 
 S. 553; Brass v. Maitland, 6 El. & Bl. 470; WilUiams v. East India Co. 3 
 Easl, 193; Pierce v. Wins&r, 2 Cliflf. 18.
 
 CHAPTEE lY. 
 
 BILL OF LADING. 
 
 § 24. Definition of Bill of Lading. 
 
 § 25. Bill of Lading as a Contract and as a Receipt. 
 
 § 26. Fraud or Mistake in Bill of Lading. 
 
 § 27. Bill of Lading Should he Delivered. 
 
 §28. ^'Contents and Value Unknown^' — "Weight Unknown^' — 
 
 " More or Less." 
 § 29. Assignment of Bill of Lading. 
 § 30. " Order " or " Assign " in Bill of Lading. 
 § 31. Bill of Ladijig loith Draft Attached. 
 § 32. " Charges to be Collected"—'' C. 0. D." 
 § 33. Usage or Custom as Affecting Carrier^s Liahility. 
 
 § 24- Definition of Bill of Lading. 
 
 A bill of lading is the written contract of tlie parties, and by 
 its terras their rights and liabilities must be measured.' It is at 
 once . a receipt and a contract. It is an acknowledgment of the 
 receipt of the property and a contract to carry safely and deliver," 
 It is as a receipt, that the bill of lading is chiefly treated as a quasi 
 negotiable instrument; while the carrier remains bound by it and 
 must have his liabilities restricted by it, as a contract.^ No par- 
 ticular form or solemnity of execution of a bill of lading is re- 
 quired to impose a liability on a common carrier to transport 
 goods. It may be by parol or it may be in writing. In either 
 case it is equally binding." 
 
 ' Fry V. Louisville, N. A. & C. R. Co. 103 Ind. 265. 
 
 ■' St. Loiiis, I. M. & S. R. Co. v. Knight. 122 U. S. 79, 30 L. ed. 1077. See note 
 
 to Louisville, E. iSt St. L. R. Co. v. Wilson (Ind.) 4 L. R. A. 244. 
 ^ Blanclmrd v. Pncje, 8 Gray, 281 ; Lickbarrow v. Mason, 5 T. R. 683. See 
 
 Abbott, Shipping, 326; Smmanv. The Thames, 81 U. S. 14 Wall. 98, 20 L. 
 
 c(l. 804; Hazard v. Abel, 15 Abb. Pr. N. S. 413; Ontario Bank v. New Jersey 
 
 S. B. Co. 59 N. Y. 510; Bailey v. Hudson River R. Co. 49 N. Y. 70; Brandt 
 
 V. Boiclby, 2 Barn. & Ad. 932; Dan. Neg. Inst. § 1728. 
 * Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527. 
 
 90
 
 DEFINITION OF BILL OF LADING. 91 
 
 The great need for uniformity in such contracts has impressed 
 itself on the business community, and thirteen of the twenty-two 
 of the prominent boards of trade, chambers of commerce, and 
 freight associations, composing the National Transportation Asso- 
 ciation, were represented at the regular quarterly meeting in Chi- 
 cago on Thursday, May 21, 1S91, at the Board of Trade. The 
 Commercio,! Exchange of Philadelphia and the New Orleans 
 Board of Trade were admitted to membership. Steps were 
 taken to secure the adoption of an official uniform bill of lading 
 for interstate commerce to supersede those now used by common 
 carriers. The following form was adopted : 
 
 "Received for transportation from (shipper), in apparent good order, as 
 noted, the packages described below," value unknown. Marked and con- 
 signed as per margin and subject to carrier's liability as laid down by the 
 common law in force in the several states, territories, provinces or countries 
 through which the property must pass. "The rate of freight upon property 
 
 herein described shall not exceed per between (shipping point) and 
 
 (destination). 
 
 "Marks and consignments . 
 
 "Description of articles . 
 
 "Weights, subject to correction . 
 
 All attempts to secure more liberal bills of lading from railways 
 having failed, this is to be the initial movement toward securing 
 governmental aid. The Interstate Commerce Commission will be 
 asked to ratify this bill of lading and its adoption by all railroads, 
 as bills of lading over connecting lines to points beyond the state, 
 issued by a railroad whose line is entirely within one state, are 
 subjects of interstate commerce.' 
 
 The legislature of New York created a corporate body known 
 under the title of the New York Produce Exchange " 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.- In con- 
 cert with the Liverpool Shipowners Association this New Y'ork 
 Produce Exchange has presented the form of a bill of lading, 
 
 'i?e Annapolis, W. <& B. R. Co. 1 Inters. Com. Rep. 315. 
 
 *Laws 1863, chap. 359, § 3; Laws 1868, chap. 30, § 1; Laws 1882, chap. 36, 
 §2.
 
 92 BILL OF LADING. 
 
 which to a limited extent has been accepted by other exchanges 
 in this country. It is as follows : 
 
 New Tork Produce Exchange Steamship Bill of Lading. 
 
 Keceived in apparent good order and condition, by from , to be 
 
 transported by the good steamship now lying at the port of and 
 
 bound for , with liberty to call at being marked and numbered 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 accord- 
 ing 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 transmit the goods to their destina- 
 tion 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 accidents 
 of navigation (even when occasioned by the negligence, default, or error in 
 judgment of the pilot, master, mariners or other servants of the shipowner, 
 not resulting, however, in any case, from want of due diligence by the owner 
 of the ship or any of them, or by the ship's husband and manager); nor for 
 decay, putrefaction, rust, sweat, change of character, drainage, leakage, break, 
 age, or any loss or damage arising from the nature of the goods or the in- 
 sufficiency 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 voyage. 
 
 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 descrip- 
 tion which are above the value of $500 per package, unless 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 principal 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 incor- 
 rect or insufficient marking of packages or description of their contents.
 
 BILL OF LADING AS A CONTBACT AND AS A KECEIPT. ^3 
 
 4. Also, that in case the ship shall be prevented from reaching her desti- 
 nation by quarantine, the carrier may discharge the goods into any depot or 
 lazaretto, and such discharge shall be deemed a final delivery under this con- 
 tract, 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 
 ss 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 absorption of -whte: 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 con- 
 signee of the goods agree to be bound by all of its stipulations, exceptions 
 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 ship has affirmed 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 188... 
 
 § ^S. Bill of Lading as a Contract and as a 
 Receipt. 
 
 A bill of lading is two fold in its character. It is a receipt 
 specifying the quantity, character and condition of tlie goods re- 
 ceived, and it is also a contract by which the carrier agrees to 
 transport the goods therein described to the place named, and 
 there deliver them to the designated consignee upon the terms 
 and conditions specified in the instrument/ So far as a bill of 
 lading is in the nature of a receipt or an acknowledgment of the 
 quantity and condition of the goods delivered it may, like any 
 other receipt, be explained, varied, or even contradicted ; but as a 
 
 ' The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779; Pol- 
 lard V. Vinton. 105 U. S. 7, 2(i L. ed. 998; Ooodrich v. Norris, Abb. Adm. 
 196; Chandler v. Sprague, 5 Met. 306, 38 Am. Dec. 405, and note; O'Brien 
 V. Gilchrist, 34 Me. 554. 56 Am. Dec. 676; Desty, Ship. & Adm. § 220. 
 Compare Knox v. The Ninetta, Crabbe, 534.
 
 94 BILL OF LADING. 
 
 contract expressing the terms and conditions upon which the 
 property is to be transported it is to be regarded as a merging of 
 prior and contemporaneous agreements of the parties, and in the 
 absence of fraud, concealment or mistake, its terms or legal im- 
 port, when free from ambiguity, cannot be explained nor added 
 to by parol,' 
 
 In the absence of evidences of fraud or mistake, it must be con- 
 clusively presumed that the oral negotiations respecting the terms 
 and conditions upon which the goods were received, and the route 
 by which they are to be forwarded are merged in the bill of lad- 
 ing. This must be taken as a final repository, and the sole evi- 
 dence of the agreement between the parties as to these matters. '^ 
 As a contract it is conclusive between shipper and carrier ; but as 
 a receipt for the goods, its statements are prima facie evidence 
 only, and may be explained by parol evidence.' In so far as it is 
 a contract, it cannot be explained by parol. But so far as it is a 
 receipt, it may be explained by parol, in a suit between the origi- 
 nal parties to it." It is not conclusive evidence of the receipt of 
 the goods, or of their condition as between the owner and ship- 
 per ;* and it may be contradicted as to ownership of the goods f or 
 
 ' Snow V. Indiana, B. & W. R. Co. 109 Ind. 422. 
 
 ^Snow V. Indiana, B. & W. R. Co. 109 Ind. 422; Long v. Neio York Cent. R. 
 Co. 50 N. Y. 76; Hinckley v. New York Cent. & H. R. R. Co. 56 N. Y. 429; 
 Turner v. St. Louis & S. F. R. Co. 20 Mo. App. 632. 
 
 ^King v. The Lady Franklin, 75 U. S. 8 Wall. 325. 19 L. ed. 455; The Dela- 
 ware V. Oregon Iron Co. 81 U. S. 14 Wall. 601, 20 L. ed. 783; The J. W. 
 Brown, 1 Biss. 79; TJie Martha, Olcott, 140; The Wellington, 1 Biss. 280; 
 Baxter v. Leland, Abb. Adm. 348; The Reeside, 2 Sumn. 567; Manchester v. 
 Milne, Abb. Adm. 115; Zerega v. Popjje, Abb. Adm. 397; Wayland v. 
 Monely, 5 Ala. 430, 39 Am. Dec. 335; Barrett v. Rogers, 7 Mass. 297, 5 Am. 
 Dec. 45; Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149; Hastings v. Pepper, 
 11 Pick. 41; Portland Bank v. Stubbs, 6 Mass. 422, 4 Am. Dec. 151; Ellis v. 
 Willard, 9 N. Y. 529; Wolfe v. Myers, 3 Sandf. 7; Caflero v. Welsh, 8 Phila. 
 130; May v. Babcock, 4 Ohio, 334; Dean v. King, 22 Ohio St. 118; Warden 
 V. Oreer, 6 Watts, 424; Williams v. Branson, 5 N. C. 417, 4 Am. Dec. 562; 
 Edw. Bailm. 490. 
 
 *Eing V. Tlie Lady Franklin, 75 U. S. 8 Wall. 335, 19 L. ed. 455; The Dela- 
 ware V. Oregon Iron Co. 81 U. 8. 14 Wall. 579, 20 L. ed. 779. 
 
 * Gibbons v. Robinson, 63 Mich. 146; Merchants Nat. Bank of Cincinnati v. 
 
 Bangs, 102 Mass. 291 ; Bostwick v. Baltimore & 0. R. Co. 45 N. Y. 712. 
 
 • Chouteaux v. Leech, 18 Pa. 224, 57 Am. Dec. 602; Maryland Ins. Co. v. 
 
 Ruden. 10 U. 8. 6 Cranch, 338, 3 L. ed. 242.
 
 BILL OF LADING AS A CONTRACT AND AS A RECEIPT. 95 
 
 their quantity ;' or their condition when shipped.^ But in so far 
 as it is a contract, parol evidence is not admissible to vary its 
 terras/ The bill of lading delivered contains the contract be- 
 tween the ship and the shipper, and shows the duty assumed by 
 the vessel." Stipulations to vary the law merchant in respect to 
 obligations arising on a bill of lading must be in writing signed by 
 the parties.' 
 
 It is no longer open to question, that in the absence of fraud 
 or imposition, the rights of the carrier and shipper not involv. 
 ing negligence of the carrier, are controlled by a contract in 
 writing delivered to the shipper by the carrier at the time 
 of the receipt of the property for transportation.' When the 
 special contract is proved, the shipper cannot rely on the common 
 law liability of the carrier.' The owner of the goods may rely 
 upon the responsibility imposed by the common law ; but if he 
 voluntarily agrees to a stipulation for exemption from liability, 
 which does not cover losses from negligence or misconduct, it may 
 be recognized and enforced." The only remedy of the shipper in 
 
 ' Manning v. Hoover, Abb. Adm. 188; McCready v. Holmes (S. C.) 6 Am. L. 
 Reg. 239; The Columbo, 3 Blatchf. 521; Hunt v. Mississippi Cent. R. Co. 29 
 La. Ann. 446; Baltimore & 0. R. Co. v. Wilkens, 44 Md. 11, 22 Am. Rep. 
 
 26; Louisiana Nat. Bank v. Laveille, 52 Mo. 380. 
 
 2 Nelson v. Woodruff, 66 U. S. 1 Black, 156, 17 L. ed. 97; Turner v. The Black 
 Wari-ioi', 1 McAU. 181; Lamb v. Parkman, 1 Sprague. 343; The Tan Bark 
 Case, 1 Brown, Adm. 154; Tlie Orijlamme, 1 Sawy. 176; TJie Maggie Ham- 
 mond, 76 U. S. 9 Wall. 459, 19 L. ed. 780; The Olbers, 3 Ben. 150; Arend v. 
 Liverpool, N Y. & P. 88. Co. 64 Barb. 118; Clark v. Barnwell, 53 U. S. 12 
 How. 272, 13 L. ed. 985; Ellvi v. Willard. 9 N. Y. 529; Keith v. Amende, 1 
 Bush, 455; Richards v. Doe, 100 Mass. 524. 
 
 ^Butler V. The Arrow, Newb. 59; Bradley v. Dunipace, 1 Hurlst. & C. 521. 
 
 ■» The Thames v. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804; Vanderwater v. 
 Mills, 60 U. S. 19 How. 82, 15 L. ed. 554. 
 
 ^Briitan v. Barnabij, 62 U. S. 21 How. 527, 16 L. ed. 177; The Bird of Par- 
 adise, 72 U. S. 5 Wall. 562. 18 L. ed. 666; How v. Eirchner, 11 Moore, P. 
 C. 21; Kirchner v. Venus, 12 Moore, P. C. 384. 
 
 ^Squire v. New York Cent. R. Co. 98 Mass. 239, 93 Am. Dec. 162; Perry v. 
 Thompson, 98 Mass. 249; Grace v. Adams, 100 ^Mass. 505, 97 Am. Dec. 117, 
 1 Am. Rep. 131; Pendergast v. Adams Exp. Co. 101 Mass. 120; Lawrence v. 
 New York, P. <& B. R. Co. 36 Conn. 63; Kallman v. United States Exp. Co. 
 3 Kan. 205. 
 
 ' Michigan Cent. R. Co. v. Hale, 6 Mich. 243. 
 
 » York Mfg. Co. v. Illinois Cent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 
 170.
 
 96 BILL OF LADING. 
 
 case of loss is to sue for the breach of the special contract,' If 
 the shipper ignores the contract and sues upon the common law 
 liability, he will, on proof of the special contract, be nonsuited.'' 
 An express receipt delivered at the time of shipment, is a con- 
 tract.' So, a " domestic bill of lading " delivered to a shipper, is 
 a contract whose terms are binding on both parties.* It must be 
 construed according to its terms, like any other contract.^ Thus 
 " terra cotta busts " were held not to be " statuary " within the 
 meaning of a carrier's contract.* 
 
 A contract of shipment with exemptions, made after injury to 
 property, but containing no release from past liability, does not 
 relieve the carrier from such liability.'' 
 
 The rules which control the effect of written contracts, apply 
 of course, to bills of lading; and the effect given to such 
 contract in law is equally binding and conclusive, whether it be 
 the result of an express stipulation, or one implied from the char- 
 acter of the instrument. The obligation implied by law from the 
 language employed, is as much part of the contract, as though 
 what the law implies has been fully expressed in words.* 
 
 > Shaw V. York & N. M. R. Go. 13 Q. B. 347; Austin v. Manchester, 8. & L. 
 
 R. Co. 15 Jur. 670; Kimball v. Rutland & B. R. Go. 26 Vt. 247, 62 Am. 
 
 Dec. 567. 
 * Latham v. Rutley, 2 Barn. & C. 20; Austin v. MancJiester, S. <& L. R. Co. 15 
 
 Jur. 670; Davidson v. Graham, 2 Ohio St. 131; Ferguson v. Gappeau, 6 
 
 Harr. & J. 394; Stump v. Hutchinson, 11 Pa. 533. 
 3 CoUender v. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 224. 
 •> York Mfg. Go. v. Illinois Gent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170; 
 
 Kirklandv. Dinsmore, 62 N. Y. 171. 20 Am. Rep. 475; Westcott v. Fargo, 
 
 6 Lans. 319; DiUard v. Louisville & N. R. Co. 2 Lea, 288. See also Magnin 
 
 V. Dinsmore, 56 N. Y. 168; Steinweg v. Erie R. Co. 43 N. Y. 123, 3 Am. 
 
 Rep. 673; Dorr v. New Jersey Steam Nav. Co. 11 N. Y. 485, 62 Am. Dec. 
 
 125; Breese v. United States Teleg. Co. 48 N. Y. 132, 8 Am. Rep. 526; Young 
 
 V. Western U. Teleg. Go. 65 N. Y. 163, cited in Wheeler, Carr. 227. 
 '' Bradstreei v. Reran, Abb. Adm. 209; Portland Bank v. Stubbs, 6 Mass. 422, 
 
 4 Am. Dec. 151; Barrett v. Rogers, 7 Mass. 297, 5 Am. Dec. 45; Hastings v. 
 
 Pepper, 11 Pick. 42; Price v. Powell, 3 N. Y. 332; Ellis v. Willard, 9 N. Y. 
 
 529: T7ie Delaware v. Oregon Iron Go. 81 U. S. 14 Wall. 601, 20 L. ed. 783; 
 
 McMillan v. Michigan, S. & K 1. R. Co. 16 Mich. 79, 93 Am. Dec. 203; 
 
 Greery v. Holly, 14 Wend. 26; White v. Missouri Pac. R. Go. 19 Mo. App. 
 
 400; Snow v. Indiana, B. di W. R. Co, 109 Ind. 422; Turner v. St. Louis & 
 
 S. F. R. Co. 20 Mo. App. 632. 
 ' Sutton V. Ciceri, L. R. 15 App. Cas. 144. 
 "> McGulloughv. Wabash Western R. Co. 34 Mo. App. 23. 
 '- Long V. Straus, 107 Ind. 94, 57 Am. Rep. 87.
 
 BILL OF LADING AS A CONTKACT AND AS A RECEIPT. 97 
 
 All contracts have imported into them legal principles which 
 can no more be varied by parol evidence, than the strongest and 
 clearest expressed stipulation. Undoubtedly, necessary implica- 
 tion is as much part of an instrument, as if that which was im- 
 plied was plainly expressed.' Where the shipper of a carload of 
 horses who received the bill of lading, in which no route was 
 designated by which the cargo was to be forwarded after leaving 
 the initial carrier's line, offered to prove that a particular line had 
 been agreed upon, it was held that the silence of the bill of lading 
 in respect to the route was the same in legal effect as if a provis- 
 ion had been inserted therein authorizing the first carrier to select 
 at its discretion, any customary or usual route, which was regarded 
 as safe and responsible, by which to forward the car, and that the 
 provision thus imported into the bill of lading was no more sub- 
 ject to be assailed by parol than were any express terms of the 
 contract.* The cases which affirm this principle are very numer- 
 ous. They proceed upon the theory that, in the absence of 
 express stipulation, certain terms are annexed to every contract 
 by legal implication, and that stipulations thus imported into the 
 contract become as effectually a part of the written agreement as 
 though they were expressed therein in terms.^ Where a bill of 
 lading specifies the rate per 100 pounds to be paid for goods car- 
 ried but does not state their weight, which was readily ascertain- 
 able, the sum to be paid is sufficiently specified to accomplish the 
 object of an act whose purpose was to prevent a railroad from 
 charging a greater sum for the transportation of freight than is 
 specified in the bill of lading,' Where the bill of lading fails to 
 state the amount of freight, the law supplies, by impUcation, that 
 
 ^Delaware & H. Canal Co. v. Pennsylvania Coal Co. 75 U. S. 8 Wall. 276, 
 288. 19 L. ed. 349, 353; Tisloe v. Oraeter, 1 Blackf. 353; Hull v. Butler, 7 
 Ind. 267; Jones v. Clark, 9 Ind. 341; McEernan v. Mayliew, 21 Ind. 291; 
 Foulks V. Falls, 91 Ind. 315. 
 
 « S}iow V. Indiana, B. & W. R. Co. 100 Ind. 422. 
 
 » WhiU V. Ashton, 51 "N. Y. 280; Hinckley v. New York Cent. & H. R. R. Co. 
 56 N. T. 429; Simkins v. Noricich & JV. L. S. B. Co. 11 Gush. 102; Long v. 
 Straus, 107 Ind. 94, 57 Am. Rep. 87; Delaicare & H. Canal Co. v. Pennsyl- 
 vania Coal Co. 75 U. S. 8 Wall. 276, 285, 19 L. ed. 349-352; Hill v. Syra- 
 cuse, B. &N. T. R. Co. 73 N. T. 351, 29 Am. Rep. 163. 
 
 * Little Rock & Ft. S. R. Co. v. Hanniford, 49 Ark. 291. 
 7
 
 98 BILL OF LADING. 
 
 it must be the amount usually charged for such freight, and 
 completes the contract, and parol evidence is inadmissible to 
 vary, control, or contradict the terms therein expressed, or those 
 which the law certainly implies, in the absence of fraud or mis- 
 take/ 
 
 An apparent exception to the general rule occurs where 
 proof of an agreement collateral to that contained in the bill of 
 lading is oifered,'* And the bill of lading and shipping note when 
 executed at the same time, and simultaneously delivered, and 
 relating to the same matter, constitute one agreement.' Cross- 
 ties were shipped and all the bills of lading contained a stipu- 
 lation to the effect that cross-ties were to be transported over 
 the defendant's road and that they were to be delivered as therein 
 specified upon payment of freight and charges in par funds. In 
 some of them the amount to be paid is not fixed, while in others 
 the charges actually collected were inserted in the bills of lading 
 before they were delivered and before the ties were transported. 
 Plainly there can be no ground of recovery back of the sum paid, 
 where the amount actually collected was stipulated in the bills of 
 lading beforehand, and it is not competent to give evidence of an 
 oral agreement concerning the amount of freight to be paid, with 
 a view of establishing a right of recovery in respect to those bills 
 of lading in which the amount is not fixed in express terms. The 
 bills of lading must be regarded as either complete conti-acts into 
 which all the early negotiations of the parties are merged, or they 
 are entirely without force or effect as evidence of the terms and 
 conditions upon which goods were to be transported. While it 
 is true that the contract of a common carrier to transport goods 
 is equally binding whether it be by parol or in Avriting,'' there is 
 no reason to support a rule which should declare that part of the 
 contract might be in writing, and part covering the same subject- 
 
 • Pemberton Co. v. New York Cent. R. Co. 104 Mass. li^\ Indianapolis & C. R. 
 
 Co. V. Remmy, 13 Ind. 518; Jeffersonville, M. & 1. R. Co. v. Worlayid. 50 
 Ind. 339; Louisville, E. & St. L. R. Co. v. Wilson, 4 L. R. A. 244, 119 Ind. 
 353. 
 
 • Baltimore <& P. S. B. Co. v. Brown, 54 Pa. 77. 
 ^Jennings v. Grand Trunk R. Co. 52 Hun, 227. 
 
 • Mobile <&M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527.
 
 FRAUD OR MISTAKE IN BILL OF LADING. 9d 
 
 matter by parol. Either the bill of lading must be regarded as 
 the sole repository of the agreement of the parties in special 
 terms upon which the shipments were made, or it must be re- 
 garded as a receipt and nothing more. As a contract, the bill of 
 lading, like other written contracts, is presumed, in the absence 
 of imposition or mistake, to embody the entire agreement of the 
 parties.* 
 
 ^ ^6. Fraud or Mistake in Bill of Lading. 
 
 A statute declaring the liability of a carrier on bills of lading, 
 does not give validity to stipulations therein which are the result 
 of fraud or mistake. A statement made fraudulently or by mis- 
 take in a bill of lading, representing the weight of freight to be 
 less than it is in fact, will not prevent the carrier from recover- 
 ing for the whole amount carried, according to the rate per hun- 
 dred pounds stated in the bill." The shipper is not bound by a 
 clause on the back of the shipping bill, which, apparently by 
 inadvertence, was not struck out, or adapted to the terms of the 
 special contract.' One of several independent steamers, consti- 
 tuting a certain well known line belonging to different owners 
 who are not interested in the business of any vessels except their 
 own, which fails to take all the cotton specified in bills of lading 
 given by the agent of the line, where the bills for the whole 
 quantity were made out in the name of that vessel in exchange 
 for shipping receipts which, by mistake of the employes of such 
 agent, named that vessel instead of giving the agent an option 
 between that and the vessel next following, as agreed on in a 
 contract for shipment between the agent and the owner of the 
 cargo, — is not liable for loss on account of a fall in the market 
 price before the arrival of tlie next vessel, but is liable for the 
 premium paid for insurance on the cotton which was not actually 
 carried.* A receipt executed by a railway agent several months 
 
 ' Louisville, E. & St. L. R. Co. v. Wilson, 4 L. R. A. 244, 119 Ind. 352;Zo?i(7 
 
 V. New York Cent. R. Co. 50 N. Y. 76. 
 2 Baird v. St. Louis, I. M. & S. R. Co. 41 Fed. Rep. 593, 43 Am. & Ene. R 
 
 Cas. 281. 
 ' Jennings v. Grand Trunk R. Co. 52 Hun, 227. 
 * Crenshaw v. Pearce, 43 Fed. Rep. 803.
 
 100 BILL OF LADING. 
 
 after the goods for which it was given were delivered, — especially 
 if litigation is then contemplated or has become probable — is not 
 evidence to affect the company, unless special authority in the 
 agent is shown.' 
 
 To sustain a defense at law, that defendant was induced to sign 
 by fraudulent representations, the only fraud permissible to be 
 proved is fraud touching the execution of the instrument.'^ 
 Where the signature to a contract was obtained through fraudu- 
 lently false representations of its contents, tlie defense of fraud 
 may be set up in an action based upon the contract. Non est 
 factum could have been pleaded at common law,^ " Fraud " is 
 the term which the law applies to certain facts ; and where upon 
 the facts the law adjudges fraud, it is not essential that the com- 
 plaint should in terms allege it. It is sufficient if the facts stated 
 amount to a case of fraud.* Fraud or circumvention, which a 
 statute embodying a rule of common law allows as a defense to 
 written instruments against the guilty party or an assignee, is not 
 that which goes merely to the consideration, but to the execution 
 or making ; and there must be a trick or device by which one 
 kind of instrument is signed in belief that it is another kind, or 
 the amount or nature or terms of the instrument must be misrep- 
 resented.^ When one of two contracting parties is fraudulently 
 induced to execute a written instrument upon the false represen- 
 tation that it expresses the agreement which they have made, the 
 party defrauded may defend against the enforcement of the 
 fraudulent instrument by the other party, even though he may be 
 chargeable with want of prudence in relying upon the false rep- 
 resentations. This defense may also be made when a third party, 
 for whose benefit the contract was made, seeks to enforce it.* 
 
 ' Hematite Min. Co. v. East Tennessee, V. & O. B. Co. (Ga.) July 17, 1893. 
 
 « Georfje v. Tate, 1U2 U. S. 564, 26 L. ed. 232; Hartshorn v. Day, GO U. S. 19 
 How. 212, 15 L. ed. 605; Oslerhoitt v. Shoemaker, 3 Hill, 513; Belden v. Da- 
 vies, 2 Hall, 433; Franchot v. Leach, 5 Cow. 506. 
 
 ^VanValkenhurgh v. Bouk, 12 Johns. 337; Stacy v. Boss, 27 Tex. 3, 84 Am. Dec. 
 604; Foster v. Mackinnon, L. II. 4 C. P. 704; Vorley v. Cooke, 1 Gill. 230. 
 
 * Stimson v. Helps, 9 Colo. 33; Kerr, Fraud & Mistake, 366; 2 Estee, PI. 423. 
 
 6 Orer/onv. Jennings, 119 U. S. 74, 30 L. ed. 333; Shiptey v. Carroll. 45 111. 285; 
 
 EUioit V. Levings, 54 111. 213; Maxey v. Williamson County Ct. 72 111. 207. 
 ^Maxfield v. Schwartz, 10 L. R. A. 606, 43 Minn. 221.
 
 BILL OF LADING SHOULD BE DELIVERED. 101 
 
 Where the written instrument has not passed from the hands of 
 the original holder, it does not lie in his mouth to say that the 
 defendant was not in law defrauded, because he was careless in 
 trusting to the representations made which induced its execution.' 
 "Where the parties to a transaction do not stand on an equal foot- 
 ing, one induced to act to his prejudice by fraudulent representa- 
 tion of the other, is not precluded from recovering damages be- 
 cause he did not prosecute diligent inquiry as to the truth or 
 falsity of the representations.^ But a party on equal footing, who 
 refuses to make diligent inquiry and exercise his own judgment, 
 cannot complain that the other party practiced fraud upon him.' 
 It is inexpedient upon grounds of public policy that a solemnly 
 executed instrument should be set aside upon the ground of fraud, 
 unless equitable and proof of the fraud be clear and strong.* 
 
 § ^7. Bill of Lading Shoidcl he Delivered. 
 
 Shippers should in all cases require a bill of lading, which should 
 be signed by the carrier; or when the carriage is by water by the 
 master, whether the contract of affreightment is by charter-part}^ 
 or without any such customary written instrument. The terms 
 of a bill of lading not signed by or delivered at the time of ship- 
 ment to the shipper or his authorized agent, are binding upon him 
 when it is subsequently sent to a third person who indorses it 
 over to him, and he enters the goods at the custom house there- 
 on." Where the goods of a consignment are not all sent on board at 
 the same time, it is usual for the master, mate or other person in 
 charge of the deck, and acting for the carrier, to give a receipt 
 for the parcels as they are received, and when the whole consign- 
 
 > Mackey v. Peterson, 29 ]\Iinn. 298, 43 Am. Rep. 211; Cole v. Williams, 12 Neb. 
 440; Nebekery. Cutsinyer, 48 Ind. 436; SpurgiriY. Traub, 65 111. 170. 
 
 2 Cottrill V. Krum, 100 Mo, 398; Waimell v. Eem, 57 Mo. 478; Bigelow, Fr. 
 
 534. 
 
 3 First Nat. Bank of Cheyenne v. Swan ("Wye.) Feb. 5, 1890. 
 
 * Cannon v. Jackson, 40 Ark. 417; Parlin v. Small, 68 Mo. 290; Broiony. Blunt, 
 73 Me. 415; Martin v. Berens, QTPa. 459. False representation, see notes 
 to Nounnan v. Sutter County Land Co. (Cal.) 6 L. R. A. 219; Tappan v. Al- 
 bany Bretcing Co. (Cal.) 5 L. R. A. 4'J8; Dawe v. Morris (Mass.) 4 L. R. A. 
 158; Finlaysonv. Finlayson (Or.) 3 L. R. A. 801; Davis y. Nuzum (Wis.) 1 
 L. R. A. 774. 
 
 » Bubens v. Ludgate Hill S. S. Co. 48 N. Y. S. R. 732.
 
 102 BILL OF LADING. 
 
 ment is delivered, the master, upon those receipts being given up, 
 will sign two or three, or, if requested, even four bills of lading 
 in the usual form, one being for the ship and the others for the 
 shipper.* More than one is required bj the shipper, as he usually 
 sends one by mail to the consignee or vendee, and if four are 
 signed he sends one to his agent, or factor,. and he should always 
 retain one for his own use. Where bills of lading are executed 
 in triplicate in shipments by water, those retained by the shipper 
 and his consignee control the triplicate which remains in posses- 
 sion of the master.' The indorsee of first set obtains title as 
 against subsequent indorsee of the others.'' And the same rule 
 applies as to duplicates, the one delivered by the carrier being 
 accepted in preference to the one retained, which has only the 
 authority of a memorandum.' 
 
 Such an instrument acknowledges the bailment of the goods, 
 and is evidence of a contract for the safe custody, due trans- 
 port and right delivery of the same, upon the terms as to 
 freight, therein described, the extent of the obligation being 
 specified in the instrument. "Where no exceptions are made 
 in the bill of lading, and in the absence of any legislative 
 provisions prescribing a different rule, the carrier is bound to 
 keep and transport the goods safely, and to make right delivery 
 of the same at the port of destination, unless he can prove that 
 the loss happened from the act of God or the public enemy, or 
 by tlie act of the shipper or owner of the goods. Stipulations in 
 the nature of exceptions may be made limiting the extent of the 
 obligation of the carrier, and in that event the bill of lading is 
 evidence of the ordinary contract of affreightment, subject, of 
 course, to the exceptions specified in the instrument ; and in view 
 of that fact the better descrij^tion of the obligation of such a car- 
 rier is that, in the absence of any congressional legislation upon 
 the subject, he is in the nature of an insurer, and liable, in all 
 events and for every loss and damage, however occasioned, unless 
 
 > IJie Thames v. Seaman, 81 U. S. 14 Wall. 105, 20 L. ed. 805. 
 » The Tiqreiis, Brown & L. 38; Olyn v. Ea!<t dtWeat India Dock Co. L. R. 5 Q. B. 
 Dlv. V2^;Meyersteinv. Barber, L. K. 2 C. P. 38, L. R 4 Eng. & Ir. App. 317. 
 ^ Ontario Bank v. Hanlon, 23 Hun, 283.
 
 BILL OF LADING SHOULD BE DELIVERED. 103 
 
 it happened by the act of God or the public enemy, or by some 
 other cause or accident, without any tault or negligence on the 
 part of the carrier, and expressly excepted in the bill of lad- 
 ing.' 
 
 If the master has received a cargo on board he is bound to pre- 
 pare and sign a bill of lading, or to put it ashore again at the ship's 
 expense ; otherwise, for his neglect, he and the owners may be 
 liable for a conversion. Where no demurrage is due, a proper 
 bill of lading should be made out, and the refusal or neglect of 
 the master to give such an one, is a violation of shipper's legal 
 right for which they are entitled to at least nominal damages. If 
 demurrage is due, a proper bill of lading should be endorsed with 
 protest and claim for demurrage.^ Such a contract is to be con- 
 strued, like all other written contracts, according to the legal im- 
 port of its terms. It becomes the sole evidence of an undertak- 
 ing, and all antecedent agreements are extinguished by the writ- 
 ing.' 
 
 The obligation of the carrier extends only to acknowledge the 
 receipt of the goods and the engagement to carry and deliver 
 them.* The owners are bound by the bill of lading, although the 
 master does not add " master " to his signature." But state- 
 ments, although by an agent of a carrier, as to the contents 
 of a record kept by the company, is inadmissible in evidence 
 against it, where it relates to transactions long past, and the fur- 
 nishing thereof is not within the scope of the agent's employ- 
 ment." Shippers of goods by vessel, in the absence of notice of a 
 charter party, have a right to assume that her captain and acting 
 
 ' The Niagara v. Cordes, 63 U. S. 21 How. 23, 16 L. ed. 46; Clark v. Barnwell, 
 53 U. S. 12 How. 272, 13 L. ed. 985; Elliott y. Eossell, 10 Johns. 7; The Dela- 
 ware V. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 
 
 * Paterson v. Dakin, 31 Fed. Rep. 682. 
 
 8 Collender v. Binsmore, 55 N. Y. 200, 14 Ara. Rep. 224; Southern Exp. Co. v 
 Dickson, 94 U. S. 549, 24 L. ed. 285; Bank of Kentucky v. Adams Exp. Co. 93 
 U. S. 174, 23 L. ed. 872; Eirkland v. Dimmore, 62 N. Y. 171, 20 Am. Rep 
 475. 
 
 ^ The May Floxcer, 3 Ware, 300; Perkins v. Hill, 2 Woodb. & M. 158, 1 
 
 Sprague, 123. 
 5 Fox V. Holt, 36 Conn. 558. 
 
 * Hematite Min. Co. v. East Tennessee, V. & G. B. Co. (Ga.'> July 17, 1893.
 
 104 BILL OF LADING. 
 
 agents of the charterer at the port of shipment, have authority to 
 bind the owner by signing bills of lading.' A railroad company 
 is liable for the penalty prescribed by Tex. Rev. Stat. 1879, art. 
 280, for a failure and refusal to give upon demand a proper bill 
 of lading of lumber shipped, where the bill of lading delivered by 
 it for the lumber shipped described it merely as a carload, whereas 
 the shipi^er demanded the weight of the lumber.'^ A railway 
 company is liable for the value of cotton delivered to it and in its 
 custody by virtue of a contract of shipment, that is destroyed by 
 its negligence, even though it has given no bill of lading there- 
 fon^- 
 
 A railroad company which makes one of a firm, which is almost 
 the only consignee of goods delivered at a station, its agent at such 
 station, charged with the responsibility of the business as between 
 the company and the firm, and allows such business to be carried 
 on for years in the ofiice of the firm away from the station, with- 
 out precaution to see that bills of lading for goods are canceled, 
 — is liable to an innocent purchaser of a bill of lading for goods 
 consigned to such firm, which have been delivered to it without 
 surrender of the bill of lading, and upon bills of lading fraudu- 
 lently issued by such agent." Persons paying for goods on the 
 faith of bills of lading issued by a carrier to their agents, occupy 
 towards such carrier the position of bona fide purchasers.^ 
 
 A master of a vessel cannot be required to state in his bills of la- 
 ding the precise chemical character of the cargo, his authority being 
 to bind his owners with regard to the weight, condition, and value 
 of the goods, but not to estimate and state the particular mercan- 
 tile quality of the goods before they are put on board. Since " dry 
 phosphate rock " has two significations, one having reference to its 
 commercial qualities, ascertained only by chemical analysis, and 
 the second solely to its condition observable by the senses, a mas- 
 ter of a vessel has a right to refuse to sign a bill of lading for 
 
 ' Baumvoll Manufactur Von f^eheibler v. Gikhrest [1891] 2 Q. B. 310. 
 « Texas <fe P. R. Go. v. Guteman (Tex. App.) Oct. 16, 1889. 
 8 Mnrtin v. Ft. Worth & D. G. R. Go. 8 Tex. Civ. App. 556. 
 * Walters v. Western & A. R. Go. 56 Fed. Rep. 369. 
 ' The H. G. Johnson, 48 Fed. Rep. 696.
 
 "contents and value, and weight unknown." 105 
 
 "dry phosphate rock," without any qualification to indicate con- 
 dition, but not to refuse to sign for anything else but " phosphate 
 rock," without any statement of its condition/ 
 
 § 28. " Contents and Value Unknown "—' Weight 
 Unknown "—" More or Less," 
 
 It may be stated as the general rule that the common carrier is 
 not responsible for the difference in the quality of goods carried, 
 as compared with that delivered in the bill of lading, if he safely 
 delivers the very goods received by him for transportation. A 
 bill of lading is at once a receipt and a contract ; it is the ac- 
 knowledgment of the receipt of the property, and the contract to 
 carry safely and deliver. But, under the clause " "Weight Un- 
 known," a statement of the amount in the bill of lading, is not 
 even prima facie evidence against the carrier, when it appears 
 that all received was in fact delivered.^ Where a shipment of 
 cotton, in advance of its separation from the mass of bales, was 
 receipted for in advance, reciting the receipt of the bales as, 
 " Contents unknown, Marked and N^umbered as per Margin," and 
 the bill of lading with a draft attached, was paid to the consignee, 
 the fact that the cotton did not correspond in quality with the 
 marks on the bill of lading, does not justify the consignee in re- 
 fusing to accept and sell them, on account of the carrier.' The 
 insertion of the words " Contents Unknown," expressly exoner- 
 ates the carrier from all liability in regard to the quality of the 
 goods carried ; and it cannot be held liable for nondelivery of a 
 quality corresponding with that described in the bill of lading, 
 where the actual article is thus delivered.'* 
 
 Where a bill of lading acknowledges the receipt of " the f ollow- 
 
 ' The Kate V. Aitkin, 39 Fed. Rep. 328. 
 
 ^ Henderson y. Three Hitvdred Tons of Iron Ore, 88 Fed. Rep. 36; LeheauY. 
 
 General Steam Nav, Co. L. R. 8 C. P. 88; The Peter Der Grosse, L. R. 1 
 
 Prob. Div. 414. 
 3 St. Louis, I. M. & S. R. Co. v. Knight, 122 U. S. 79, 30 L. ed. 1077. 
 * St. Louis, 1. M. & S. R. Co. v. Knight, supra; Haddow v. Parry, 3 Taunt. 
 
 303; Jessel v. Bath, L. R. 2 Exch. 267; Clark v. Barnwell, 53 U. S. 12 How. 
 
 273, 13 L. ed. 985; The Columbo, 3 Blatchf. 521; Bisselv. Price, 16 111. 408; 
 
 Barrett v. Rogers, 7 Mass. 297, 5 Am. Dec. 45; Shepherd v. Naylor, 5 Gray, 
 
 591; MiUer v. Hannibal & St. J. R. Co. 90 N. Y. 430, 43 Am. Rep. 179.
 
 106 B[LL OF LADING. 
 
 ing described packages " in apparent good order (" Contents and 
 value unknown") it imports only that the defendant had received 
 the number of packages mentioned, which purports to contain the 
 property thereinafter mentioned in the receipt. And, where ad- 
 vances are made upon the shipment, the party making the ad- 
 vances is chargeable with knowledge of the contents of the bill of 
 ladino", and must be held to have relied, not upon the admission 
 in the bill of lading, but upon the assurances of the shipper, as to 
 the contents of the packages.' So where " weight unknown " 
 precedes the carrier's signature, it will control the statement pre- 
 ceding it of the weight." A bill of lading for 400 pine piles 
 •• more or less," expressly made subject to a charter-party which, 
 on its part, showed that no definite number was agreed to be car- 
 ried, will prevent a consignee who has accepted drafts drawn on 
 400 piles, from claiming damages for a deficiency where the vessel 
 carried all that the charter-party required.* 
 
 §^P. Assigmnent of Bill of Lading. 
 
 A bill of lading is an instrument well known in commercial 
 transactions, and its character and effect have been defined by ju- 
 dicial decision. In the hands of the holder it is evidence of 
 ownership, special or general, of the property mentioned in it, 
 and of the right to receive said property at the place of delivery. 
 Notwithstanding it is designed to pass from hand to hand, with 
 or without indorsement, and it is efficacious for its ordinary pur- 
 poses in the hands of the holder, it is not a negotiable instrument 
 or obligation in the sense that a bill of exchange or a promissory 
 note is. Its transfer does not preclude, as in those cases, all in- 
 quiry into the transaction in which it originated, because it has 
 come into the hands of persons who have innocently paid value 
 for it. The doctrine of bona fide purchasers only applies to it in 
 a limited sense. It is an instrument of a twofold character. It 
 is at once a receipt and a contract. In the former character it is 
 
 > Miller V. Unnnihal & St. J. R. Co. 90 N. Y. 430. 43 Am. Rep, 179, reversing 
 
 24 Hun, 607; Haddow v. Parry, 3 Taunt. 303. 
 5 Shci'herd v. Xaylor, 5 Gray, 591; Jessel v. Bath, L. R. 2 Exch. 8G7. 
 » The Dixie, 46 Fed. Rep. 403.
 
 ASSIGNMENT OF BILL OF LADING. l07 
 
 an acknowledgment of the receipt of property on board his vessel 
 by the owner of the vessel. In the latter it is a contract to carry 
 safely and deliver. The receipt of the goods lies at the founda- 
 tion of the contract to carry and deliver. If no goods are actually 
 received, there can be no valid contract to carry or to deliver.' 
 Bills of lading represent the goods they call for, and a delivery of 
 the bill of lading is equivalent to a constructive delivery of the 
 goods tliem selves; as they thus represent a delivery of the goods, 
 they differ from contracts which are merely assignable." When 
 the bill of lading is transferred and delivered as collateral secur- 
 ity, the rights of the pledgee under it are the same as those of an 
 actual purchaser, so far as the exercise of those rights is necessary 
 to protect the holder.^ A bank which makes advances on a bill 
 of lading, has a lien to the extent of the advances on the property 
 in the hands of the consignee, and can recover from him the pro- 
 ceeds of the property consigned, even though the consignor l)e 
 indebted to the consignee on general account ; and the consignee 
 cannot appropriate the property or its proceeds to his own use in 
 payment of a prior debt.^ 
 
 Verbal mortgage or pledge of goods accompanied by a delivery, 
 is good, at least as against the consignee to receive and sell the 
 goods and to whom they are shipped, but who did not advance 
 any money on account of the shipment. A consignee who had 
 notice that a draft had been drawn by the owner against the goods 
 
 ' Missouri Pac. E. Co. v. McFadden, 154 U. S. 155, 38 L. ed. 944; Pollard v. Vin- 
 ton, 105 U. S. 7, 26 L. ed. 998. See King v. The Lady Franklin, 75 U. S. 8 
 Wall. 325, 19 L. ed. 455. 
 
 « Meyersteiny. Barber, L. R. 2 C. P. 42; Hazard v. Fishe, 83 N. Y. 287; Tilden 
 V. Minor, 45 Vt. 196; DodgcY. Meyer, 61 Cal. 405; Robinson v. Stuart, 68 Me. 
 61; Michigan Cent. R. Co. v. Phillips, 60 111. 198; Means v. Bank of Randall, 
 146 U. S. 620, 36 L. ed. 1107. 
 
 * Means v. Bank of Randall, 146 U. 8. 620, 36 L. ed. 1107; Halsey v. Warden, 25 
 
 Cal. 128; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; 
 Boics'iV. National Exeh. Bank ofMihcaukee, 91 U. S. 618, 23 L. ed. 214; Daven- 
 port Nat. Bankv. Homeyer, 45 Mo. 145, 100 Am. Dec. 363; First Nat. Bank of 
 Qreen Bay v. Dearh.yrn, 115 Mass. 219, 15 Am. Rep. 92; Bank of Rochester 
 V. Jo7ies, 4 N. Y. 497, 55 Am. Dec. 290; Holmes v. German Security Bank, 87 
 Pa. 525. 
 
 * Means v. Barik of Randall, supra; Conard v. Atlantic Ins. Co. ofN. T. 26 U. S. 
 
 1 Pet. 386, 7 L. ed. 189; Gibsonv. Stevens, 49 U. S. 8 How. 384, 12 L. ed. 1123, 
 3 Parsons, Cont. 487.
 
 108 BILL OF LADING. 
 
 consigned, and had been indorsed to the plaintiff, and this 
 several hours before the goods were sold by the consignee, does 
 not occupy the position of an innocent purchaser of the goods/ 
 But bills of lading are not commercially negotiable instruments 
 like bills of exchange." As the bill of lading represents goods, 
 and as no title passes to the receiver or purchaser of goods lost or 
 stolen, even to a bona fide purchaser ; so the bill of lading, — a 
 symbol of the goods — can, when lost or stolen, have no effect in 
 transferring title to what it symbolizes ; although the true owner 
 may, by his negligence, put it into the power of another to so 
 represent himself as the owner and clothe himself with apparent 
 title, as to estop the true owner from denying the pretended title.' 
 An indorsement of a bill of lading without the authority, consent 
 or knowledge of the owner of the goods, transfers no title even 
 to an indorsee in good faith. An indorser having no title to the 
 goods cannot convey any.* 
 
 If possession of goods be given for a specific purpose, as to a 
 carrier or wharfinger, the property is not changed by the sale of 
 such a bailee, and the owner may recover them even from the 
 bona fide buyer.^ An agent constituted for a particular purpose, 
 and under a limited power, cannot bind his principal if he exceeds 
 that power.* But where the holder of a bill of lading transfers 
 it, intending to pass the title, such transfer will be effective al- 
 though procured by fraudulent misrepresentation,'' 
 
 An indorsement or written transfer of a bill of lading is not 
 necessary. Delivery, with intent to pass title to the goods, is suf- 
 ficient. The possession of a bill of lading, whether indorsed or 
 
 ' Means v. Bank of Randall, supra. 
 
 ' Siollenwerck v. Thaclier, 115 Mass. 224. 
 
 ^ Friedlander v. Texas & P. B. Go. 130 U. S. 416, 32 L. ed. 991; Shaw v. Merch- 
 ant's Nat. Bank of 8t. Louis, 101 U. S. 557, 25 L. ed. 892. 
 
 *Brotcer v. Peahody, 13 N. Y. 121; Dows v. Perrin, 16 N. Y. 325; First Nat. 
 Bank of Toledo v. Shaw, 61 N. Y. 283; Tison v. Howard, 57 Ga. 410; Decan 
 V. Shipper, 35 Pa. 239, 78 Am. Dec. 334. 
 
 * Wilkinson v. King, 2 Campb. 335. 
 
 ''Munnv. Commmton- C(?. 15 Johns. 44, 8 Am. Dec. 319; Beals v. Allen, 18 
 Johns. 363, 9 Am. Dec. 221: Thompmn v. Stewart, 3 Conn. 172, 8 Am. Dec. 
 168; Andrews v. Kneeland, 6 Cow. 354; Blane v, Proudfit, 3 Call, 207. 
 
 ''Dom V. Oreenc, 24 N. Y. 638.
 
 ASSIGNMENT OF BILL OF LADING. 109 
 
 not, is prima facie evidence of title as against any person not 
 showing a better title.' The bill of lading passes the property 
 when it is indorsed and intended so to operate, in the same man- 
 ner as a direct delivery of the goods would do if so intended ; 
 and it operates no further. '^ By the custom of merchants, bills of 
 lading are transferable by indorsement and delivery so as to pass 
 the title to the goods as effectually as if the goods were delivered, 
 so long as they are in transit.^ A mere indorsement of a bill of 
 lading, without a delivery thereof, does not transfer the property 
 in the goods.* The assignment of a bill of lading bona tide and 
 for value, will vest the legal interest of the consignee in the 
 assignee, although made after the arrival of goods.^ A bill of 
 lading is transferable by the custom of merchants so as to vest 
 the title of the assignor in the transferee. Consignee may trans- 
 fer a bill of lading by indorsement." Still a bill of lading is not at 
 common law technically negotiable, like a bill of exchange.'' 
 
 '^Michigan Cent. B. Co. v. Phillips, 60 111. 190; Tisson v. Hoioard, 57 Ga. 410; 
 Olidden v. Lucas, 7 Cal. 26; Pratt v. Parkman, 24 Pick. 42; Adams v. O'Con- 
 nor, 100 Mass. 515, 1 Am. Rep. 137; First Nat. Bank of Green Bap v. Dear- 
 born, 115 Mass. 219, 15 Am. Rep. 92; Fifth Nat. Bank of Chicago v. Bayley, 
 115 Mass. 228; Allen v. Williams, 12 Pick. 297; Low v. BeWolf, 8 Pick. 101; 
 City Bank v. Bome, W. & 0. R. Co. 44 N. Y. 136; Merchant's Bank of Can- 
 ada V. Union B. & Transp. Co. 69 N. Y. 373; Bates v. Stanton, 1 Duer, 85; 
 Indiana Nat. Bank v. Colgate, 4 Daly, 41; Jeffersonville, M. <& I. B. Co. v. 
 Irvin, 46 Ind. 180. 
 
 ^ Newson v. Thornton, 6 East, 41; Gardner v. Ebwland, 2 Pick. 599; Mears y, 
 Waples, 3 Houst. (Del.) 582; Empire Transp. Co. v. Steele, 70 Pa. 190; Grower 
 V. Peabody, 13 N. Y. 121; Indiana Nat. Bank v. Colgate, 4 Daly, 41. 
 
 3 Lickharrow v. Mason, 1 Smith, Lead. Cas. 848, and note,2 T. R. 63: Tlie Thames 
 V. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804; Shaw v. Merchants Nat. Bank 
 of St. Louis, 101 U. S. 557, 25 L. ed. 892; Pease v. Gloahec, L. R. 1 C. P. 219; 
 Meyerstein v. Barber, L. R. 2 C. P. 45, L. R. 4 Eng. & Ir. App. 317; mvion 
 B. & Transp, Co. v. Teager, 34 Ind. 1; Bobinson v. Stuart, 68 Me. 61; Halli- 
 day V. Hamilton, 78 U. S. 11 Wall. 510, 20 L. ed. 214; Crapo v. Kelly, 83 U. 
 S. 16 Wall. 610, 21 L. ed. 430; Gibson v. Stevens, 3 McLean, 562; Walter v. 
 Rm, 2 Wash. C. C. 287; United States v. Delaware Ins. Co. 4 Wash. C. C. 
 422; Holbrook v. Wight, 24 Wend. 169, 35 Am. Dec. 607; Atlantic Ins. Co. v. 
 Conard, 4 Wash. C. C. 676 ; Marsh v. Pedder, Holt, 74 ; Webb v. Anderson, 
 Tanev, 512; Sumner v. Hamlet, 12 Pick. 76; Pratt v. Parkman, 24 Pick. 42; 
 Caldwell V. Ball, 1 T. R. 205; Brand v. Lisley, Yelv. 164; Wright v. Campbell, 
 4 Burr. 2046; Wood v. Boach, 2 U. S. 2 Dall. 180, 1 L. ed. 340. 
 
 * Buffington v. Cttrtis, 15 Mass. 527, 8 Am. Dec. 115. 
 
 * Chandler v. Belden, 18 Johns. 157, 9 Am. Dec. 193; First Nat. Bank of Cairo 
 V. Crocker, 111 Mass. 163. 
 
 *Saltus V. Everett, 20 Wend. 267, 32 Am. Dec. 541; Newhall v. Central Pac. B. 
 
 Co. 51 Cal. 350, 21 Am. Rep. 713; Walter v. Boss, 2 Wash. (C. C.) 283. 
 ' Hale Y. Milwaukee Dock Co. 29 Wis. 482, 9 Am. Rep. 603; Pattison v. Culton,
 
 110 BILL OF LADING. 
 
 The statute of a state making bills of lading negotiable, means 
 that they may be transferred by indorsement and delivery, so as 
 to give to the indorsee the right to sue on them in his own name ; 
 but it does not charge the negotiator of them with all the conse- 
 quences which follow the negotiation of bills or notes. It is 
 only a legislative sanction given to the commercial law of univer- 
 sal application, that a bill of lading, legally transferred, gives title 
 to the property it represents.' No statute is to be construed as 
 altering the common law, further than its words plainly import. 
 The purchaser of a bill of lading, with reason to believe that his 
 vendor was not the owner of the bill, or that it was held to secure 
 the payment of an outstanding draft, is not a bona fide purchaser, 
 and is not entitled to hold the merchandise covered by the bill 
 ao-ainst its true owner.'' Where, however, such a construction had 
 been placed upon the state statute, and subsequent legislation 
 having, in view of such decision, declared that they should be ne- 
 gotiable, so as to vest title unaffected by any rights or equities 
 between prior holders, having no actual notice thereof, — such 
 statute will be effective, and the courts must recognize the legis- 
 lative intent and execute it.' 
 
 % SO. " Order " or ''Assign " in Bill of Lading. 
 
 It is settled by the decisions in ISTew York, that the words to 
 " order " or " assign " are not necessary for the passing of a title 
 of a bill of lading," although this is not uniformly admitted.' 
 
 "Where, as between buyer and seller, the title may be changed 
 by transfer of the bill of lading, it does not follow that the 
 
 33 Ind. 240, 5 Am. Rep. 199; Emcard v. ShepJierd, 9 C. B. 297; Thompsonv, 
 
 Dominy, 14 Mees. & W. 403; Tii^on v. Howard, 57 Ga. 410; Bows v. Greene, 
 
 24 N. Y. 638; Stollemcerck v. Timelier, 115 Mass. 224. 
 ' First Nat. Bank of Starksville v. Meyer, 43 La. Ann. 1. 
 ^Slinw V. Merchants' Nat. Bank of St. Louis, 101 U. S. 557. 25 L. ed. 892; 
 
 Gurney v. Behrend, 3 El. & Bl. 623. 
 3 Tiedeman v. Knox, 53 Md. 612. 
 * City Bank v. Rome, W. & 0. R. Co. 44 N. Y. 136. 
 <> See 3 Kenl, Com. *207; Dan. Neg. Inst. § 1730. This distinction as to the 
 
 effect of tlie words " order" and "assign" is noticed in Bank of Batntia v. 
 
 Neio York, L. E. & W. R. Co. 33 Hun, 589. See Rohinmn v. Memphis <& 
 
 C. R. Co. 9 Fed. Rep. 129; Blanchnrd v. Page, 8 Gray, 281.
 
 BILL OF LADING WITH DRAFT ATTACHED. Ill 
 
 contract or liability of the carrier is changed. The carrier 
 is entitled to treat the consignee, in the absence of any advice 
 to the contrar}', as the owner.' The words to "order" or "as- 
 sign " are not to be treated as insigniticant. They are words, the 
 presence or al^sence of which are often held to determine the ne- 
 gotiability of instrnments." And, wliere the goods are shipped to 
 the order of the shipper or the consignee, the one claiming the 
 goods, if not the consignee, must produce such order properly in- 
 dorsed upon the bill of lading. Where the shipper makes the 
 goods transferable to his order, he reserves the property in him- 
 self and it can only be divested in the manner indicated, to relieve 
 the carrier from responsibility.' 
 
 § 31, Bill of Lading with Draft Attached. 
 
 Bills of lading in this form are often used for the purpose of 
 raising money, and frequently the bill of lading has a draft at- 
 tached to it ; and such drafts are discounted and the bills of lading- 
 indorsed to secure the payment. The document the shipper re- 
 ceives, is a muniment of title quasi negotiable, and on the faith of 
 which he may borrow money ; it is a contract and not merely a 
 receipt.* The pledgee of a bill of lading as security for a bill of 
 exchange drawn on the consignee has a valid common law title to 
 the goods, independent of the English Bills of Lading Act, en- 
 titling him to sue the shipowner for damages for the nondeliverv 
 of the goods on presentation of the bill of lading, after the con- 
 signee's default ; and it is no defense that they are not in such 
 
 ' Bailey v. Hudson River R. Co. 49 N. Y. 70; Sweet v. Barney, 23 N. T. 335; 
 Hotchkias v. Artisan's Bank, 2 Abb. App. Dec. 403; 0' Dougherty v. Boston 
 & W. R. Co. 1 Thomp. & C. 477; Kruider v. Ellison, 47 N. Y. 37, 7 Am 
 Rep. 402; Fitzhugh v. Wiman, 9 N. Y. 559; Everett v. Saltus, 15 Wend. 475*. 
 
 *Dan. Neg. Inst. § 105; Mechanics Bank v. Straiton, 3 Keyes, 365; Forbes v 
 Boston & L. R. Co. 133 Mass. 154. 
 
 ^Pennsylvania R. Co. v. Stern, 119 Pa. 24; Lihhy v. Ingalls, 124 Mass. 503; 
 North Pennsylvania R. Co, v. Commercial Nat. Bank of Chicago, 123 U. S.' 
 727, 31 L. ed. 287; Watson v. Iloosac Tunnel Line Co. 13 Mo. App. 263^ 
 
 * Logan v. Mobile Trade Co. 46 Ala. 514; Snider v. Adams Exp. Co. 63 Mo. 
 376; Huntingdon v. Dinsmore, 4 Hun, 66; Long v. New York Cent. R. Co 
 50 N. Y. 76; McMahon v. Macy, 51 N. Y. 155; JParnham v. Camden & A. 
 R. Co. 55 Pa. 53; American Exp. Co. v. Second Nat. Bank of Titusville 69 
 Pa. 394, 8 Am. Rep. 268.
 
 112 BILL OF LADING. 
 
 owner's possession, where he wrongfully delivered them to the 
 consignee without requiring him to produce the bill of lading.' 
 The transferee of bills of lading as security for the payment of a 
 draft upon the consignee acquires a right of pledge, and there- 
 fore, in legal contemplation, has a valid constructive possession 
 superior to that of the consignee or any other actual possessor of 
 the goods, which continues until the goods pass into the hands of 
 innocent third parties. A bona fide creditor of a consignor, who 
 holds the latter's draft for value, to which bills of lading trans- 
 ferred in blank are attached to secure its payment, is to be deemed 
 the owner of the goods so far as to give validity to the pledge 
 created by the forwarder ; and on presentation of the draft with 
 the annexed bills to the consignee, before he has accepted the 
 consignment, the creditor becomes entitled to the delivery of the 
 property, on the payment of his draft by the consignee.'^ 
 
 Where the shipper attaches the bill of lading to a draft for 
 the price ; and indorses same to one who discounts the draft, 
 the goods are thereby pledged for the payment of the draft, 
 and a special property therein passes to the transferee." The 
 holder of abill of lading indorsed to hira as security for such 
 draft, may replevin the goods or sue for conversion, where goods 
 are delivered to consignee without payment of draft.* Possession 
 obtained by a consignee of consigned goods, against which a 
 draft has been drawn accompanied by a transfer of the bills of 
 lading as security, after presentation of such draft with the bills 
 attached by a bona fide creditor of the consignor, is unauthorized 
 and unjustifiable.^ 
 
 ^Briatol & West of England Bank v. 3Iidland B. Co. L. R. 2 Q. B. Div. 653. 
 
 ' First Nat. Bank of Starksville v. Meyer, 43 La. Ann. 1. 
 
 ^Holmes v. Oerman Security Bank, 87 Pa. 525; Holmes v. Bailey, 92 Pa. 57: 
 First Nat. Bank of Cairo v . Crocker, 111 Mass. 1(53; Hathaway y. Haynes, 
 124 Mass. 311; Joslyn v. Grand Trunk R. Go. 51 Vt. 92; Emery y. Irving 
 Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Indiana Nat. Bank v. Col- 
 gate, 4 Daly, 41; Commercial Bank of Keokuk v. Pfeiffer, 22 Hun, 327; 
 Marine Bank of Chicago v. Wright, 48 N. Y. 1; Heiskell v. Farmers & M. 
 Nat. Bank, 89 Pa. 155, 33 Am. Rep. 745; Farmers tfe M. Nat. Bank of Buf- 
 falo V. Hazeltine, 78 N. Y. 104, 34 Am. Rep. 518. 
 
 * Manne Bank of Chicago v. Wright, 48 N. Y. 1 ; Heinkell v. Farmers & M. 
 Nat. Bank, 89 Pa. 155, 33 Am. Rep. 745; Sfollentcerck v. Thacher, 115 
 Mass. 224; First Nat. Bank of Qreen Bay v. Dearborn, 115 Mass. 219, 15 
 Am. Rep. 92. 
 
 ' First Nat. Bank of Starksville v. Meyer, 43 La. Ann. 1,
 
 BILL OF LADING WITH DKAFT ATTACHED. 113 
 
 Where an invoice is sent to the purchaser, which states on its 
 face that the goods are shipped with draft, — which draft is at- 
 tached to the bill of lading — and sent with the collection, the 
 exhibition by the purchaser to the carrier of the invoice, will not 
 authorize the delivery of the goods without the presentation of 
 the bill of lading.' Presentment to a consignee of indorsed bills 
 of lading, with a draft upon the consignee, makes unnecessary 
 any further notice from the consignor to the consignee of the 
 drawing of the draft, or any instruction in regard thereto, as it 
 proves conclusively that the consignor had parted with his inter- 
 est by transferring the same to another.'' A shipper of ice taking 
 a bill of lading to his own order, under a contract with one who 
 furnishes the vessel for transporting it, to sell it on a joint ad- 
 venture and to pay a certain amount on a sight draft, cannot cut 
 off the latter's rights, notwithstanding the nonpayment of the sight 
 draft, by selling the ice to another and transferring the bill of 
 lading.^ A consignee of goods is not entitled to a preference for 
 a balance of advances made by him to the consignor, over the 
 claims of a holder of a draft to secure which bills of lading for 
 the goods have been transferred by the consignor, when the goods 
 were not shipped in payment of such advances." 
 
 In the case of The Thames v. Seaman^ 81 U. S. 14 Wall. 98, 
 20 L. ed. 804, it appeared that the purchaser of cotton at Savan- 
 nah delivered it there to a vessel to be carried to New York, 
 taking bills of lading in which it was stated that the cotton was 
 shipped by one Gilbert Yan Pelt, and was to be delivered " unto 
 order or to his or their assigns." Yan Pelt was a member of a 
 firm in New York for which he purchased the cotton. Against 
 the shipment he drew a draft on his firm, payable fifteen days 
 after sight, and delivered it, wnth the bills of lading, to parties 
 who obtained the discount of the draft from a bank in Atlanta. 
 The draft and bills were at once forwarded to New York, to an 
 
 ' Pennsylvania R. Co. v. Stern, 119 Pa. 24; Dowsw. National Exch. Bank of Mil- 
 waukee, 91 U. 8. 618, 23 L. ed. 214. 
 ^ First Nat. Bank of Siarksmlle y . Meyer, 43 La. Ann. 1. 
 
 * The Saugerties, 44 Fed. Rep. 625. 
 
 * First Nat. Bank of Starksville v. Meyer, supra. 
 
 8
 
 Ill BILL OF LADING. 
 
 agent of the bank, to procure their acceptance by the firm. Be- 
 fore the draft became dne, the vessel arrived at New York and 
 gave notice to the firm of the arrival of the cotton. That vessel 
 had previously brought cotton in the same way for the firm, and 
 the master of the vessel, knowing that the cotton was intended 
 for the firm, and having no information from the bank's agent, 
 or from any other source, or of any other consignee or claimant, 
 delivered to it the cotton, taking its receipt. "When the draft 
 became due, two weeks afterwards, and was not paid, the cotton 
 was demanded of the owner of the vessel by the bank's agent. In 
 the action wdiich followed, it was contended by the owner that 
 the delivery was justified, and that the vessel had discharged its 
 obligation ; but the court held that, though the delivery had been 
 made in ignorance of any outstanding claim to the cotton, it was 
 nevertheless, a breach of the contract of affreightment, and that 
 the agent of the bank could libel the vessel, which was bound for 
 the proper delivery of the property, for the loss sustained.' 
 
 § 82. "Charges to he Collected"-' C. 0. D." 
 
 "Where the carrier undertakes, not only to transport goods, but 
 to collect fi'om the consignee their value, — and it fails, upon ten- 
 der to the consignee, to receive the payment demanded, it is its 
 duty to notify the consignor of the goods, and when this is done, 
 the responsibility as common carrier ends and the goods are held 
 subject to the order of the consignor, but not before.^ If there 
 is an absolute refusal by the consignee to receive the goods, the 
 carrier would be justified, if he so elected, in returning 'hem at 
 once, with this information to the consignor.' He is not bound, 
 in any event, to repeat a tender.* But it will be the duty of the 
 carrier to give the consignee reasonable time — if demanded — to 
 prepare himself to accept and pay for the goods and freight.* 
 
 ' UalseyY. Warden, 25 Kan. 128; Boatmen's Sav. Bank v. Western &A. R. Co. 81 
 
 Ga. 22\; Furman v. Union Pac. B. Co. 106 N. Y. 579. 
 ^American Merchants U. Exp. Co. v. Wolf, 79 111. 430; Adams Exp. Co. v. Mc- 
 
 Connell, 27 Kan. 238. 
 ^ Adams Exp. Co. v. McConnell, supra. 
 *8toer V. Crowley, McClel. & Y. 129. 
 ^ Great Western R. Go. v. Crouch, 3 Hurlst. & N. 183.
 
 "CHAKGES TO BE COLLECTED, " " C. O. D." 115 
 
 And the same rule applies, where an opportunity to inspect the 
 goods is demanded. A carrier's contract to collect the money on 
 goods shipped, before delivering to the consignee, is not broken, 
 in the absence of express prohibition, by allowing the consignee 
 to inspect the goods before acceptance ; and the consignee's re- 
 fusal upon inspection to accept the goods will not render the car- 
 rier liable to the shipper.' The carrier is justified in returning 
 money paid by the consignee, where it has been used to perpe- 
 trate a fraud by sending a package " C. O. D." with charges pur- 
 porting to be the value of the article, where they are grossly in 
 excess of the actual value, or the package is utterly valueless.* 
 
 The liability of the carrier, in case of losses by fire, after the 
 goods arrive at their destination, is not in any way afliected by the 
 fact that it had undertaken the collection of their value for the 
 consignor.^ A bill of lading recited, that the goods " were to be 
 delivered without delay, etc., at the port of, etc., to, etc., or as- 
 signs, as, he or their j^aying freight for said goods at the rate of, 
 etc., charges payable when collected by boat ; " charges to be col- 
 lected" a certain sum, being the value of the goods, and it was 
 decided that if the carrier delivered the goods without collecting 
 such charges, he was liable therefor to the person who so con- 
 tracted with him and delivered the goods to him.^ Where a note 
 is taken for collection by the carrier and its failure to collect is 
 due to its negligence, it is liable for the damage resulting." But, 
 where it was guilty of no negligence, the failure of a bank upon 
 which it took a check for collection, imposed no liability.' It has 
 been said, that the letters " G. O. D." have acquired in the com- 
 merce of the country, when used upon goods in the possession of 
 the carrier for transportation, such a fixed and determinate mean- 
 ing, that courts and juries, from their general information, may 
 readily understand what they mean.'' But this has been denied 
 
 ^Aaron v. Ada7)is Exp. Co. 27 Ohio L. J. 183; Lyons v. HiU, 46 N. H. 49. 
 
 ^Herrick v. Gallaglier, 60 Barb. 566. 
 
 ^ Gibso7i V. American Merchants U. Exp. Co. 1 Hun, 387. 
 
 * Meyer v. Lemcke, 31 Ind. 208. 
 
 » Knapp V. United States <£ C. Exp. Co. 55 N. H. 348. 
 
 * Eisioatd v. Suuthern Exp. Co. 60 Ga. 496. 
 
 "" United States Exp. Co. v. Keefer, 59 Ind. 263.
 
 116 BILL OF LADING. 
 
 in another case.' Where goods are marked " C. O. D.," the con- 
 tract of the common carrier is " collect on delivery," and return 
 to the consignor the charges for the goods ; and, under such a con- 
 tract, the consignor may bring his action for failure to comply 
 with it, against the carrier ; although the ordinary rule is, that an 
 action for the loss of goods must be brought in the name of the 
 consignee.'' 
 
 The act of the carrier in accepting conditional payment, may 
 be ratified by the consignor and relieve it from responsibility.' 
 If the carrier accepts a check, which the consignor receives and 
 sends for collection, this act of the consignor will be a ratifica- 
 tion.* Where goods are sent " C. O. D." an action for replevin 
 may be maintained by the carrier against the consignee, who ob- 
 tained them by fraud, without payment.* If the goods have been 
 received from the carrier by the consignee, through the negli- 
 gence of the carrier, without payment, and have been transferred 
 to a bona fide purchaser, there can be no recovery from such pur- 
 chaser." This duty of collection, cannot be imposed upon a car- 
 rier if it has not been accustomed to thus receiving goods, nor, 
 under such circumstances will it be responsible, although the 
 goods are marked " C. O. D." for the value of the goods, where 
 it delivers them without collecting the value.'' 
 
 § 33. Usage or Custom as Affecting Carrier's Lia- 
 l)ility. See also § 74. 
 
 A usage, custom, and course of dealing should, to affect a con- 
 tract in the absence of actual knowledge thereof, be so long con- 
 tinued and so well known and established, and so uniformly acted 
 upon, as to raise a presumption that it was known to both con- 
 tracting parties, and that their contract was made in reference to 
 
 ' McNichol V. Padfio Exp. Co. 12 Mo. App. 401. 
 
 « United States Exp. Co. v. Keefer, 59 Ind. 263. 
 
 ^Brooks V. American Exp. Co. 14 Hun, 364. 
 
 •» Rathbun v. Citizens 8. B. Co. 76 N. Y. 376, 32 Am. Rep. 321. 
 
 * American Merchants U. Exp. Co. v. Willsie, 79 111. 92. 
 
 ^Nm-fold Southern R. Co. v. Barnes, 5 L. R. A. 611, 104 N. C. 25. 
 
 ' Chicago & N. W. R. Co. v. Merrill, 48 111. 425.
 
 USAGE OB CUSTOM AS AFFECTING CAEKIEr's LIABILITY. 117 
 
 it.* A certain river boom company receives and handles all logs 
 coming down the Mississippi river to Minneapolis, and its 
 methods of business and usage in receiving and surveying, turn- 
 ing out logs, and collecting cliarges, are well established and gen- 
 erally known ; and dealers of logs in that market are therefore 
 presumed to contract with reference to such usage, where there 
 is nothing in the agreement to exclude the inference." 
 
 Usages of trade, Mr. Greenleaf says, should be sparingly 
 adopted by the courts as rules of law. " Their true office is to in- 
 terpret the otherwise indeterminate intentions of parties, and to 
 ascertain the nature and extent of their contracts arising;', not from 
 express stipulation, but from mere implications and presumptions 
 and acts of a doubtful and equivocal character, and to fix and ex- 
 plain the meaning of words and expressions of doubtful or vari- 
 ous senses."' Usages of trade are admissible, however, to show 
 the relative duties and rights of parties as incidents of contracts 
 and transactions ; but the usage sought to be invoked must have 
 all the elements of a usage as to certainty, uniformity, notoriety 
 and reasonableness, and it must not be contrary to law. The ex- 
 istence or nonexistence of a custom is a question of fact for a 
 jury. Its validity or invalidity is a question of law for a court." 
 Usage must not be in restraint of trade nor conflict with public 
 policy or the law of the land. It must be reasonable and not pro- 
 ductive of any injustice in its practical operations.^ A usage can- 
 not override an express contract, nor can a usage be valid which 
 is in contravention of an established rule of law.' While it is 
 true that a usage of trade may sometimes be proved in order to 
 ascertain the manner of discharging some duty, or performing an 
 act stipulated to be performed in a contract, such proof is never 
 competent, however, when the effect of it would be to prove a 
 
 1 Wausau Boom Co. v. Dunbar, 75 Wis. 153. 
 
 " Clarke v. Hall & D. Lumber Co. 41 Minn. 105. 
 
 8 2 Grecnl. Ev. §351. 
 
 * Sullivan v. Jernigan, 21 Fla. 264 
 
 ^ Susquehanna Fertilizer Co. v. White, 66 Md. 444, 59 Am. Rep. 186; ^fitchell 
 
 V. Reynolds, 1 P. Wras. 181; Bowen v. Stoddard, 10 Met. 3ai; Metcalf v. 
 
 Weld, 14 Gray, 210. 
 « Pickering v. Weld, 159 Mass. 523.
 
 118 BILL OF LADING. 
 
 usage inconsistent with the express terms of the contract.' 
 Neither usage nor custom can be set up to absolve the carrier 
 from his ordinary duties, which the piibhc poHcy, his general un- 
 dertaking or his special promise may have bound him to do." 
 Custom cannot change a definite contract ; and no custom is bind- 
 ing which is not certain, definite, uniform and notorious.^ 
 
 Any practice at a particular place, however general it may have 
 become, has not the force of a custom to release its merchants from 
 the obligation of an ordinary bill of lading.* Where tlie language 
 of the bill of lading has a definite legal meaning, proof of a cus- 
 tom cannot change it.^ Evidence as to usage is inadmissible where 
 its plain effect would be to vary or contradict the written con- 
 tract.' Evidence of usage cannot be admitted to control or vary 
 the positive stipulations of a bill of lading, or to substitute for its 
 express terms, an implied agreement or usage that the carrier shall 
 not be bound to keep, transport, and deliver the goods in good 
 order and condition.'' When the meaning of words is not ambig- 
 uous, proof of usage will not be received in the interpretation of 
 contracts.^ A usage, or even an agreement between the parties, 
 that the defendant should deliver its consignments to plaintiff on 
 a side track near the station, will not discharge defendant from 
 liability upon a claim of actual delivery, where the car was placed 
 
 ^ Morningstar v. OunninoJiam, 110 Ind. 328, 59 Am. Rep. 211; Spears v. 
 
 Ward, 48 Ind. 541; Seavey v. Shurick, 110 Ind. 494; Smith v. Clews, 4 L. R. 
 
 A. 392, 114 N. Y. 190. 
 « Pittsburg, C. & St. L. R. Co. v. Barrett, 36 Ohio St. 453. 
 ^ Lamb v. Henderson, 63 Mich. 302, citing Harvey v. Gady, 3 Mich. 431; Wr- 
 
 win V. Clark, 13 Mich. 10; Hutchings v. Ladd, 16 Mich. 493; Advertiser & 
 
 T. Co. V. Detroit, 43 Mich. 116; Ledijard v. Hibbard, 48 Mich. 421, 42 Am. 
 
 Rep. 474; Oreenstine v. Borchard, 50 Mich. 434, 45 Am. Rep. 51. 
 
 * Brittan v. Barnaby, 62 U. S. 21 How. 527, 16 L. ed. 177. 
 
 » Garrison v. Memphis Ins. Co. 60 U. S. 19 How. 312, 15 L. ed. 656. 
 
 * Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374; Smith v. Mobile Nav. & 
 
 Mut. Ins. Co. 30 Ala. 167; Co.v. v. Peterson, 30 Ala. 608, 68 Am. Dec. 145; 
 Powell V. Thompson. 80 Ala. 51. 
 ' The Delatnare v. Oregon Iron Co. 81 U. S. 14 Wall. 606, 20 L. ed. 784; TJie 
 Beeside, 2 Sumn. 567; Garrison v. Memj)his Ins. Co. 60 U. S. 19 How. 816. 
 15 L. ed. 657. 
 
 * Snsqnehannn Fertilizer Co. v. White, 66 Md. 444, 59 Am. Rep. 186; Macom- 
 
 ber V. Parker, 13 Pick. 175; The Reeside, supra; McArthur v. Sears, 21 
 Wend. 190; Qage v. Meyers, 59 Mich. 300.
 
 USAGE OR CUSTOM AS AFFECTING CAKKIEk's LIABILITY. 119 
 
 on the side track without notice to plaintiff, and permitted to re- 
 main there two days and until it was destroyed by fire.' The lia- 
 bility of a common carrier cannot be limited by a custom not 
 brought to the knowledge of the party dealing with it,^ Evidence 
 of usage should be admitted with extreme caution, and not until 
 the party offering it has distinctly stated what usage he intends to 
 prove.' In an action to recover damages for injury to cattle, 
 caused by negligence, in defendant railroad company, if its 
 method of transportation was unsafe, the fact that it was usual 
 with the defendant cannot exonerate it from its contract to safely 
 transport. Its own usage would have no tendency to show that 
 it had adopted a safe method.* That a railway company for some 
 time paid cost of hauling coal from complainant's wharf to station 
 is not ground for compelling such payment by the company.' 
 
 A usage cannot be a good usage if it is contrary to law or public 
 policy. For example, the defendant offeres to show a custom of 
 railroads not to receive for transportation any live stock unless 
 under certain conditions, modifying their common law liability. 
 Such a custom would be bad, because railroads cannot legally re- 
 fuse to ship live stock. A common carrier has no right to de- 
 mand of a shipper a waiver of his rights as a condition precedent 
 to receiving freight. If such a custom should be ever so common 
 and uniform it could not be sustained because it, the custom, 
 would be against law. The custom required the owner to go 
 along on the same train with his stock, to feed and water them at 
 his own risk and expense. The law imposes this duty on the car- 
 rier, and the carrier cannot transfer it to the shipper by custom. 
 The shipper might agree to go with his stock, and to feed and 
 water them at his own expense, but he could not be compelled to 
 do so by custom, because the law requires this duty of the car- 
 rier. This custom also required that the owner of the stock 
 would hold the railroad harmless against ordinary delays in tak- 
 
 » Hndell v. St. Louis <& H. R. Go. 34 Mo. App. 675. 
 
 « Little V. Fargo, 43 Hun, 233; Noble v. Kennoway, 2 Dougl. 513. 
 
 ^ Susquehanna Fertilizer Co. v. White, supra. 
 
 * Leonard v. Fitchbury R. Go. 143 Mass. 307. 
 
 * Providence Coal Co. v. Providence & W. R. Co. 1 Inters. Com. Rep. 363.
 
 120 BILL OF LADING. 
 
 ing up freiglit. If the law held the railroad harmless for snch 
 delays, a custom would not be necessary. If the law held it liable 
 a custom could not repeal or suspend the law. 
 
 It was also required by the custom proposed, that the shipper 
 should expressly agree that, as a condition precedent to his right 
 to any damages for any loss or injury to his stock during trans- 
 portation, he should give notice of his claim therefor, verified by 
 his affidavit, to some general oflicer of the railroad, or the nearest 
 station agent, before the stock was removed from the point of 
 shipment or destination. If the shipper should make a contract 
 to give such notice, it might be binding, if it was shown that there 
 was such oificer or agent at the point of destination upon whom 
 the notice could be conveniently served. If the custom did not 
 propose to show that there was such oflicer or agent at the point 
 of shipment or destination, it would be an unreasonable custom. 
 It would be an unreasonable stipulation in a contract limiting the 
 carrier's liability, and as an express contract for that reason it 
 could not be enforced.' 
 
 A custom cannot require that a shipper shall expressly agree to 
 a limitation of his right to damages. The law of the land regu- 
 lates such matters, and fixes liability upon failure to perform du- 
 ties and obligations of carriers ; and when so fixed a custom can- 
 not extinguish it, or require the injured party to limit it by 
 agreement. The same may be said of the stipulation in a custom 
 requiring the shipper to agree, as a condition to ship his stock on 
 a railroad, that, in case of total loss of stock, the measure of dam- 
 ages should not be more than the cash value of the same at the 
 place of shipment. Such a custom would be illegal, and the car- 
 rier could not require that the shipper should make such a spe- 
 cial contract." In a case recently decided by the supreme court 
 of Massachusetts the appeal was by plaintiff from a judgment of 
 the superior court in favor of defendant in an action brought to 
 cover possession of two horses shipped by plaintiff over the Old 
 
 ' Mifsonri Pac. B. Co. v. Harris, 67 Tex. 166; Missouri Pac. R. Co. v. Fagan, 
 
 2 L. R. A. 75, 72 Tex. 127. See also § 70. 
 2 Gulf, C. & S. F. II. Co. V. Trawick, 68 Tex. 314; Missouri Pac. R. Co. v. Fa 
 
 gan, supra. See also § 71.
 
 rSAGE OR CUSTOM AS AFFECTING CAKKIEK's LIABILITY. 121 
 
 Colony Railroad from Boston to New Bedford. The transporta- 
 tion of the plaintiff's horses was under an express contract. This 
 contract was prepared by the railroad company, and called "Live 
 Stock Receipt." In it the company acknowledged the receipt of 
 the two horses marked for the plaintiff at I^ew Bedford, Mass., 
 " which the company promises to forward by its railroad, and de- 
 liver to or order at its depot in . He or they first 
 paying- freight for the same." "N. B. If merchandise be not 
 called for on its arrival, it will be stored at the risk and expense 
 of the owner." Then followed the rates for transporting dilfer- 
 ent kinds of animals ; after which were certain rules and regula- 
 tions in regard to freight. Among these rules were the follow- 
 ing : " Nor will they [the company] hold themselves liable as 
 common carriers for such articles after their arrival at their place 
 of destination and unlading in the company's warehouses or de- 
 pots." " Machinery . . . and live animals will only be taken 
 at the owner's risk of fracture or injury during the course of 
 transportation, loading and unloading, unless specially agreed to 
 the contrary." " All articles of freight arriving at their place of 
 destination must be taken away within twenty -four hours after 
 being unladen from the cars." The plaintiff paid for the trans- 
 portation of the horses on their arrival at Xew Bedford, and took 
 a receipt which contained the same rules and regulations co23ied 
 above, and applied for his horses; and the agent of the railroad 
 company refused to unload the horses, and required the plaintiff 
 to unload them. In the opinion of a majority of the court the 
 railroad company was held, under this contract, to have under- 
 taken to unload the horses, though at the owner's risk. This 
 contract, it is said, was made out with express reference to the 
 carriage of live animals. The railroad company promised to de- 
 liver them, and this implies unloading them. The company 
 would also store them, unless called for, and this also implies un- 
 loading them. There are three several stipulations as to unload- 
 ing goods, one of which in express terms includes live animals, 
 and each of which implies that the company will unload them. 
 It must therefore be held that the company undertook to unload 
 them.
 
 122 BILL OF LADING. 
 
 This being so the rule is recognized that a usage of the 
 company's agent at New Bedford to require the owner or con- 
 signee to unload live animals is of no consequence. The usage 
 cannot override the contract.' A rule and regulation of the 
 company can have no greater effect. The company's rule re- 
 quiring consignees to unload live stock was not otherwise 
 known to the plaintiff than this ; he knew that the company's 
 agent at New Bedford had been accustomed to require consignees 
 to unload their horses. But if well known, it must still give way 
 to the contract. It was a matter of contract between the plaintiff 
 and the railroad company that the company should unload the 
 plaintiff's horses. This being so, neither a usage nor a rule to 
 the contrary will avail to excuse the company from the perform- 
 ance of its undertaking. In this respect, the case differs from 
 Miller v. Mansfield, 112 Mass. 260, and other cases, where there 
 was no such contract.^ 
 
 Proof of usage on part of a carrier in giving bills of lading ex- 
 empting it from certain classes of losses, is not competent to limit 
 its liability.* But it is within the legitimate and proper scope of 
 a usage of trade, to regulate the time, place, and manner of the 
 delivery of a cargo when there is no express contract upon the 
 subject ; and under such circumstances the usage enters into and 
 forms part of the contract. A general custom of a port that 
 after a vessel arrives thereat and goes to a wharf designated by 
 the consignee, and the cargo is taken off and distributed upon the 
 wharf according to the numbers and marks, the care of the goods 
 devolves upon the consignee, is not contrary to any well estab- 
 lished and general rule of law ; and the parties to a contract of 
 shipment must be deemed to have contracted with reference to it.' 
 
 ' Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656; Seecomb v. Provincial Ins. 
 Co. 10 Allen, 305, 310; Dodcl v. Farlozn, 11 Allen, 426, 429, 87 Am. Dec. 726; 
 Boardnian v. Sjwone)', 18 Allen, 353, 359, 90 Am. Dec. 196; Odiorne v. New 
 Ehf/land Mut. M. Ins. Co. 101 Mass. 551, 3 Am. Rep. 401; Sndling v. Hall, 
 107 Mass. 134; Hnskins v. Warren, \\b Ma.ss. 514, 535, 536: Iledden v. Rob- 
 erts, 134 Mass. 38, 45 Am. Rep. 276; Emery v. Boston M. Ins. Co. 138 Mass. 
 398; Collcnder v. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 224. 
 
 ' Benson v. Gray, 13 L. R. A. 262, 154 Mass. 391. 
 
 ^Illinois Cent. R. Co. v. Smyser, 38 111. 354, 87 Am. Dec. 301. 
 
 * Pickering v. Weld, 159 Mass. 522.
 
 USAGE OR CUSTOM AS AFFECTING CARKIEr's LIABILITY. 123 
 
 A deposit of goods designed for immediate transportation, in a 
 con.ditiou to be carried in pursuance of the usage of the parties, 
 which the local agent had permitted, at the usual place of load- 
 ing, constitutes a delivery to the common carrier, making it liable 
 for the loss of the goods by fire at such place, although the super- 
 intendent of the railroad does not know of such usage and it is 
 contrary to the positive order of the management.' 
 
 1 Evansville <& T. H. B. Co. v. Keith (Ind. App.) Nov. 7, 1893.
 
 CHAPTER V. 
 
 VALIDITY OF BILL OF LADING— ITS LIMITATIONS OF LIABILITY. 
 
 § 34. Wliether Notice or Acceptance of Bill Constitutes Contract. 
 
 § 35. When Acceptance of Bill Concludes Contract. 
 
 § 36. Bill Delivered after Accepting Goods. 
 
 § 37. Limitation Consented to hy Agent. 
 
 § 38. Validity of Bill Depends on Reception of Goods hy Carrier. 
 
 § 39. Exceptions in Bill Waived hy Negligence. 
 
 § 40. Effect of Exception in Bill. 
 
 § 34' Whether Xotice or Acceptance of Bill Con- 
 stitutes Contract. 
 
 A contract with a carrier is not to be construed most strongly 
 against it merely because such contracts are generally drawn up 
 by the carrier or its agents.' A common carrier may limit his com- 
 mon law liability as insurer, but under the ruling in many of the 
 courts tliere must be an express agreement, not a mere notice {ante 
 § 11) and the limitation, it is generally declared, cannot extend to ex- 
 empt him from damages for actual negligence of himself or his 
 servants.'^ It has been held that a j)ublic notice, although brought 
 home to the shipper, will not discharge the common carrier from 
 its legal liability for accidental loss or destruction of goods.^ 
 There are other authorities, however, while admitting that the 
 general notice will not free the carrier from all liability for prop- 
 
 ' Louumlle & N. B. Co. v. Touart, 97 Ala. 514. 
 
 2 The Pacific, Deady, 17; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 
 486, 14 L. ed. 50^; York Mfg. Co. v. Illinois Cent. R. Co. 70 U. S. 3 Wall. 
 107, 18 L. ed. 170; Walker v. Western Transp. Co. 70 U. S. 3 Wall. 150, 18 L. 
 ed. 172; United States E.v.p. Co. v. Kountze, 75 U. S. 8 Wall. 342. 19 L. ed. 
 457; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318, 
 21 L. ed. 297; The JSezcWorld v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; 
 Mobile & 0. B. Co. v. Hopkins, 41 Ala. 496, 94 Am. Dec. 607, ante § 14. 
 
 ^ Moses V. Boston & M. R. Co. 24 N. H. 71, 55 Am. Dec. 222, 32 N. H. 523. 64 
 Am. Dec. 381 ; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 
 Wall. 318, 21 L. ed. 297; Michigan Cent. B. Co. v. Hale, 6 Mich. 243; Kim- 
 ball V. Bntland & B. B. Co. 26 Vt. 247, 62 Am. Dec. 567; Blumenthai v. 
 Brainerd, 38 Tt. 402, 91 Am. Dec. 350; Mann v. Birchard, 40 Vt. 326. 
 
 124
 
 WHETHER NOTICE OR ACCEPTANCE OF BILL CONSTITUTES CONTRA/ JT. 125 
 
 erty, yet hold that the notice brought to the knowledge of the 
 owner, may reasonably qualify its liability.' 
 
 The fact that the bill of lading contained words limiting the 
 liability is not enough, without inference that consignor assented.^ 
 An unsigned notice given on the back of a receipt, by a carrier 
 for goods to be transported by it, that all goods and merchandise 
 are at the risk of the owner's thereof while in the company's 
 warehouses, does not relieve such company from its obligations 
 as a common carrier/ A pamphlet hanging in a railroad com- 
 pany's office, containing freight rules and rates, although the law 
 requires them to be posted, is not of itself constructive notice of 
 its contents/ A carrier and his customer do not, with respect to 
 bills of lading, stand on the same plane or footing of equality, 
 since in many cases the latter has no alternative as to the kind of 
 bills he will receive, and cannot, in such a case, be estopped by 
 its contents/ Nothing short of an express stipulation by parol or 
 in writing will be permitted under the decision of the Supreme 
 Court of the United States, to discharge a carrier from duties 
 which the law has annexed to his employment/ A carrier can- 
 not limit liis liability by any act of his own,^ but if the act have 
 the consent of the shipper, the stipulation becomes a contract/ 
 It has been held that the assent of a shipper to the conditions in 
 a receipt or bill of lading, whereby the common law liability of 
 the carrier is restricted, will not be inferred by the mere fact of 
 acceptance of the bill or receipt without objection/ Perhaps the 
 
 > Smith V. Noi^tJh Carolina B. Co. 64 N. C. 335; Sager v. Portsmouth, S. & P. & 
 E. R. Co. 31 Me. 228, 50 Am. Dec. 659. 
 
 « The Pacific, Deady, 17; Bostwick v. Baltimore & 0. B. Co. 45 N. Y. 712; Hill 
 V. Syracuse, B. & N. T. B. Co. 8 Hun, 296. 
 
 ^Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318-330, 
 21 L. ed. 297, 303. 
 
 * Coupland v. Housatonic R. Co. 15 L. R. A. 534, 61 Conn. 531. 
 
 ' Lallande v. His Creditors, 42 La. Ann. 705, 45 Am. & Eng. R. Cas. 301. 
 
 ^Michigan Cent. B. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318-330, 
 21 L. ed. 297-303. 
 
 ''Wallace v. Sanders, 4.2 Ga. 486; New Jersey Steam Nav. Co. v. Merchants Bank 
 of Boston, 47 U. S. 6 How. 344. 12 L. ed. 465. 
 
 ^Sager v. Portsmouth, S. & P. & E. B. Co. 31 Me. 228, 50 Am. Dec. 659; Fille- 
 brown v. Gra?id Trunk B. Co. 55 Me. 462, 92 Am. Dec. 606; Jiidson v. West- 
 ern B. Corp. 6 Allen, 486, 83 Am. Dec. 646; Mann v. Birchard, 40 Vt. 326. 
 
 ^Erie &W. Transp. Co. v. Dater,Q\ 111. 195, 33 Am. Rep. 51.
 
 126 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 weight of authority in this country is, that public notice, although 
 brought home to the knowledge of the shipper, will not restrict 
 the liability of the common carrier.' A shipping receipt, it is 
 said, to lessen or abridge the common law liability, must be 
 signed by the shij)per as well as the carrier.'^ To be valid, a con- 
 tract restricting a carrier's liability must be fairly obtained, just, 
 and reasonable. Mere acquiescence by shippers in the use of 
 bills of lading containing a clause exempting from liability for 
 fires, will not show the reasonableness of the exemption, where 
 the shippers have not had an opportunity of selecting between 
 bills of lading with and those without this clause.' 
 
 A ticket issued by the Indianapolis & C. R. Co. secured a right 
 of passage from Indianapolis to Shelby ville, and the traveler's bag- 
 gage was taken charge of by the company for delivery at Shel- 
 byville, and a check given him for it, on one side of which was 
 stamped these words : " In consideration of free carriage, its 
 value is agreed to be limited to one hundred dollars and on the 
 others, "I. & C. R. E., 583, Indianapolis and Shelby ville." The 
 passenger could have read the words and figures on the check. 
 The value of the baggage exceeded one hundred dollars and was 
 lost by the company. It was held in this case, that the limitation 
 expressed in the words stamped on the check could not, in any 
 case, apply to a loss resulting from the company's want of care ; 
 and that if such a limitation of the liability imposed by law could 
 be secured by the carrier, it could only be by an express contract." 
 Courts which recognize the right of the carrier to limit its liabil- 
 ity by notice, agree, however, that the terms of the notice must 
 be clear and explicit, and the person with whom the carrier deals 
 must have knowledge of the terms of the notice ; and, where the 
 notice is in a diiferent language from that familiar to the party 
 
 ^Mobile cfe 0. R. Co. v. Weiner, 49 Miss. 725; Erie R. Co. v. Wilcox, 84 111, 239, 
 25 Am. Kep. 451 ; Broion v. Adams Exp. Co. 15 W. Va. 812. 
 
 ' Burroughs v. Grand Trunk R. Co. 
 
 8 Louisville & N. R. Co. v. Gilbert, 7 L. R. A. 162, 88 Tenn. 430; Bank of Ken- 
 tucky V. Adams Exp. Co. 98 U. S. 174, 23 L. ed. 872; Michirjan S. & N. 1. R. 
 Co. V. Heaton, 37 Ind. 448, 10 Am. Kep. 89; ErieR. Co. v. Lockicood. 28 Ohio 
 St, 358; Grey v. Mobile Trade Co. 55 Ala. 3a7, 
 
 * Indianapolis <& C. R. Co. v. Cox, 29 Ind. 360.
 
 WHETHER NOTICE OK ACCEPTANCE OF BILL CONSTITUTES CONTBACT. 127 
 
 who is to be bound by it, some proof of knowledge, on his part, 
 of its terms, must be shown.' Where exemption is claimed under 
 an exception, not signed by the shipper, the carrier must allege 
 and prove, at least inferentially, the assent of the latter.^ Certainly 
 a notice limiting the responsibility of the carrier must be une- 
 quivocal and published to the world.' Where a carrier, attempt- 
 ing to limit his liability by notice, gives two notices, he will be 
 bound by that which is least beneficial to himself/ And the 
 same rule obtains in bills of lading/ 
 
 By the statute of Illinois the mere acceptance of the receipt 
 for the freight does not import assent to its exceptions without 
 additional proof. The act in respect of common carriers, ap- 
 proved March 27, 1874, provides " that, whenever any property 
 is received by a common carrier to be transported from one place 
 to another within or without this state, it shall not be lawful for 
 such carrier to limit his common law liability safely to deliver 
 such property at the place to which the same is to be transported, 
 by any stipulation or limitation expressed in the receipt given for 
 such property." This is substantially re-enacted in § 82, chap. 
 114, relating to railroads." These statutes do not in terms pro- 
 hibit common carriers from limiting their common law liabilities 
 by contract with the owner of property delivered for transporta- 
 tion. Formerly the restriction of a carrier's lial)ility, when ex- 
 pressed in a mere receipt, often gave rise to the question as to 
 whether the shij^per had knowingly assented thereto, and this en- 
 actment was doubtlessly intended to obviate the difficulty grow- 
 ing out of that condition. In many respects a railway carrier 
 
 ' Camden & A. R. Go. v. Baldauf, 16 Pa. 67, 55 Am. Dec. 481; Edsall v. Cam- 
 den & A. R. & Transp. Co. 50 N. Y. 661. 
 
 2 Gaines v. Union Transp. & Ins. Go. 28 Ohio St. 418; MercJiants Despatch 
 Transp. Co. v. Theilbar, 86 111. 71. 
 
 ^ Butler V. Heane, 2 Campb. 415. 
 
 * Mann v. Baker, 2 Stark. 255; Gobden v. Bolton, 2 Campb. 108; Burton v. En- 
 glish. L. R. 2 Q. B. Div. 218; Nm-man v. Binnington, L. R. 25 Q. B. Div. 475; 
 Taylor v. Liverpool & G. W. Steam Co. L. R. 9 Q. B. 546. 
 
 ^ Kansas City, M. & B. R. Go. v. Holland, 68 Miss. 351; Little Rock, M. R. & T. 
 R. Co. V. Talbot, 39 Ark. 524; Black v. Goodrich Transp. Go. 55 Wis. 319, 43 
 Am. Rep. 713. 
 
 « Rev. Slat. 1889, chap. 114, § 83.
 
 128 VALIDITY Oh' BILL OF LADING ITS LIMITATIONS OF LIAJJlLiTY. 
 
 may, by exjDress contract, limit its strict common law liability. It 
 may by special contract limit the liability to such damage or loss 
 as may occur on its own line of carriage.' The carrier may limit 
 its liabilities against loss by lire without his fault,'' and the liabil- 
 ity may thus be limited as an insurer, and against other loss, not 
 attributable to its negligence or that of its servants, and may re- 
 quire the value of goods offered for transportation to be fixed by 
 the shipper, to protect itself against fraud in case of loss. A 
 shipper is not then bound by the conditions of a bill of lading 
 signed neither by himself nor his agent.^ 
 
 Under Dak. Civ. Code, § 1261, providing that the obligations 
 of a common carrier cannot be limited by general notice, and 
 § 1263, providing that, except as to the rate of hire, time, place, 
 and manner of delivery, the acceptance of a ticket, bill of lading, 
 or written contract shall not constitute an acceptance of provisions 
 modifying the carrier's obligations, unless the person accepting it 
 manifests his assent by his signature, a provision in an express 
 company's contract or receipt, exempting the company from lia- 
 bility unless a claim should be presented in writing within ninety 
 days from that date, is of no effect, where such contract or receipt 
 was signed only by the company's agent." An agreement restrict- 
 ing the carrier's liability except as " to the rate of hire, the time, 
 place, and manner of delivery," can only be manifested under S. 
 D. Comp. Laws, § 3888, by the signature of the passenger, con- 
 signee, or person employing such carrier.^ A railroad company 
 cannot avail itself of any limitation or restrictions of its general 
 liability expressed in bills of lading, not assented to by the ship. 
 per except by acceptance of such bills of lading, under Ga. Code, 
 § 2068, declaring that a common carrier cannot limit his liability 
 
 ' Illinois Cent. B. Co. v. Frankenherg, 54 111. 88, 5 Am. Rep. 92; Chicago & 
 ISr. W. R. Co. V. Montfort, 60 111. 175; Field v. Chieago & R. I. R. Co. 71 
 111. 458; F?-ie R. Co. v. Wilcox, 84 111. 239, 25 Am. Rep. 451; Wabash, St. L. 
 & P. R. Co. V. Jaggerman, 115 111. 407. 
 
 * Van Schaack v. NortJiern Transp. Co. 3 Biss. 394. 
 
 * Ohio & M. R. Co. V. Hamlin, 42 111. App. 441. 
 
 * Hartioell v. Northern Pac. E.vp. Co. 3 L. R. A. 342, 5 Dak. 463. 
 ^Eirby v. Western IT. Teleg. Co. (S. D.) 55 N. W. Rep. 759.
 
 WHEN AOOEPTANCB OF BILL CONCLUDES CONTRACT. 129 
 
 by any notice given either by publication or by entry on receipts 
 given or tickets sold, but may make an express contract.' 
 
 I 85. When Acceptance of Bill Concludes Con- 
 tract. 
 
 The owner's consent to conditions in a receipt is not always 
 -conclusively evidenced by his acceptance of the receipt. It is 
 •often only prima facie evidence that he assented to the condi- 
 tions. Thus, if a verbal agreement had been made as to the ship- 
 ment, it might be assumed that the shipper supposed no other 
 conditions were inserted in the receipt." But the acceptance of a 
 receipt from the carrier containing conditions limiting its liability, 
 which the law permits, with full knowledge on the part the ship- 
 per of such conditions, and by his acceptance intending to assent 
 to the restrictions, becomes his contract as fully as though exe- 
 cuted in form.^ 
 
 The rule often stated is that, in the absence of fraud or mistake, 
 the acceptance of the bill of lading precludes the shipper from 
 alleging that he was not advised of the contents of the bill ; * that 
 in order to establish the acceptance by the shipper of his assent to 
 the bill of lading, it is not necessary to show his signature to the 
 bill ; '' that all previous parol agreements are merged where a bill of 
 lading is made out by the carrier and accepted by the shipper;' 
 that a shipper's acceptance of a bill of lading without objection raises 
 •a prima facie presumption that he knew its contents and assented 
 to its stipulations in the carrier's favor.' IS'o special contract is 
 to be implied from the general course of dealing of a railroad 
 ■company in delivering to shippers receipts containing a provision 
 
 ' Central R. cfc Bkg. Co. v. Hasselkus (Ga.) April 24, 1893. 
 
 » Strohn v. Detroit & M. B. Co. 21 Wis. 554, 94 Am. Dec. 564 
 
 * Illinois Cent. R. Co. v. Frankenherg, 54 111. 88, 5 Am. Rep. 93. 
 
 * Wertlieimer v. Pennsylvania R. Co. 1 Fed. Rep. 233; Mulligan v. Illinois 
 
 Cent. R. Co. 36 Iowa, 181, 14 Am. Rep. 514; Oermania F. Ins. Co. v. Mem- 
 phis tfe C. R. Co. 7 Hun, 233. 
 
 » Piedmont Mfg. Co. v, Columbia & O. R. Co. 19 S. C. 353. 
 
 *Bostwick V. Baltimore dk 0. R. Go. 55 Barb. 137; Long v. New York Cent. R. 
 Co. 50 N. Y. 76. 
 
 ' Merchants Despatch Transp. Co. v. Bloch, 86 Tenn. 393. 
 
 19
 
 130 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 exempting it from liability for damages from certain causes, ex- 
 empting it from liability for loss, by fire, of hay delivered to and 
 accepted by it for transportation, without delivery of any shipping 
 bill, receipt, or shipping orders.' It has been held, that the ac- 
 ceptance of a bill of lading without reading it and without ob- 
 jection or protest against the limitations therein from liability, 
 creates a presumption of assent." This presumption, however, is not 
 always conclusive.^ It is a question of fact for the jury, whether 
 the shipper had knowledge of and assented to, the limitation.* 
 
 A shipper of goods who fills out one of the blank receipts con- 
 tained in a book previously furnished by an express company for 
 his use, and obtains the signature of the company's agent theretO' 
 upon delivering to him a package for transportation, will be pre- 
 sumed to know the contents of the receipt ; and if he receives 
 such receipt without objection his assent to its conditions will, in 
 the absence of fraud, be conclusively presumed.^ A special con- 
 tract limiting the liability of a carrier is binding upon the shipper 
 when freely and fairly executed by him, although it was not read 
 to him, and he was ignorant of its contents, — especially when he 
 receives a duplicate or copy." A shipper who signs a contract 
 limiting the carrier's liability cannot evade its efi;ect on the 
 ground that he did not know of its contents, and signed it under 
 a misapprehension thereof, where he had opportunity to read it 
 or hear it read.' 
 
 In New York where, upon delivery of goods and before ship- 
 ment, a carrier delivers a bill or receipt limiting his liability, and 
 the shipper receives the same without objection, he is chargeable 
 
 > London & L. F. Ins. Co. v. Rome, W. & 0. B. Co. 68 Hun, 598. 
 
 2 LouUmlle & N. R Co. v. Brownlee, 14 Bush, 590; Dillard vt Louisville & N. 
 
 B. Co. 2 Lea. 288. 
 8 Merchants Despatch Transp. Co. v. Leysor, 89 111. 43. 
 * Field V. Chicago & B. I. B. Co. 71 111. 458; Boscowitz v. Adams Exp. Co. 93 
 
 111. 523, 34 Am. Rep. 191. 
 ^Durgin v. American Exp. Co. (N. H.) 9 L. R. A. 453. 
 « Atchison, T. & 8. F. B. Co. v. Dill, 48 Kan. 210. 
 ' St. Louis, I. M. & S. B. Co. v. Weakly, 50 Ark. 397. See Guillmime v. 
 
 General Transp. Co. 100 N. Y. 491; Qermania F. Ins. Co. v. Memphis & C. 
 
 R. Co. 72 N. Y. 90, 28 Am. Rup. 113; Snow v. Indiana, B. & W. B. Co. 
 
 109 Ind. 422.
 
 WHEN ACCEPTANCE OF BILL CONCLUDES CONTKACT. 131 
 
 with notice of its contents and is bound by its terms; and prior parol 
 negotiations in regard to immediate shipment of goods, cannot be 
 resorted to, to vary its terms.' Tlie acceptance by the shipper, of 
 a bill of lading, limiting the responsibility of the carrier, signed 
 by its agent, and sent by the shipper to their agent as authority 
 to receive the goods, — shows the terms on which the goods were 
 received by the carrier/ 
 
 In a recent case in the United States Circuit Court for the 
 Southern District of 'New York, the questions in the case which 
 are of general importance arise upon alleged limitations of the 
 carrier's liability, which were expressed in the contract printed 
 on the ticket. The court finds that the tickets were purchased in 
 England; that they were maritime contracts; that the part of the 
 agreement which is important to the case is contained in that part 
 of the notice to cabin passengers printed on the tickets which re- 
 lates to the care of baggage and valuables. At the bottom of the 
 face of the ticket are the words in conspicious black-faced type. 
 "See back." At the top of the other side is the sentence, "This 
 contract is subject to the following conditions." Seven of these 
 follow. Nos. 3, 4 and 7 bear on the case. JS'o. 3 reads: "JS"either 
 the shipowner, the passage broker, nor agent is responsible for 
 the loss or injury to the passenger or his luggage or personal ef- 
 fects, or delay on the voyage arising from latent defects in the 
 steamer, her machinery, gear, or fittings; or from act of God or 
 the Queen's enemies; perils of the sea or rivers; restraint of 
 princes, rulers, and people; barratry, or negligence in navigation 
 of the steamer or of any other vessel." The fourth condition is: 
 "Neither the shipowner nor the passenger agent is in any case 
 liable for the loss of or injury to or delay in the delivery of lug- 
 
 ' Hill V. Syracuse, B. & N. Y. R. Co. 73 N. Y. 351, 29 Am. Rep. 163, revers- 
 ing 8 Hun, 29(5; to the same effect, Kirklandv. Dinsmore, 62 N. Y.' 171 20 
 Am. Rep. 475; Germania F. Ins. Co. v. Memphis ct- C. E. Co. 72 N. Y 'OO 
 28 Am. Rep. 113; Soumet v. National Exp. Co. 66 Barb. 284. 
 
 * Lamb v. Camden & A. R. & Transp. Co. 2 Daly, 454; Pennsylvania R Co 
 V. McCloskey, 23 Pa. 526; School Dist. in Medfield v. Boston, H. & E. R Co 
 102 Mass. 552, 3 Am. Rep. 502; Union Mut. Ins. Co. v. Indianapolis & C 
 R. Co. 1 Disney, 480; Toi-k Mfg. Co. v. Illinois Cent. R. Co. 1 Biss 377- 
 Woodward v. Illinois Cent. R. Co. 1 Biss. 447; Farnham v. Camden & A R 
 Co. 55 Pa. 53.
 
 132 VALIDITY OF BILL OF LADINCJ ITS LIMITATIONS OF LIABILITY. 
 
 gage or personal effects of the passenger beyond the amount of 
 £10, unless the value of the same in excess of that sum be de- 
 clared at or before the issue of this contract ticket, and freight at 
 current rates for every kind of property (except pictures, statu- 
 ary, and valuables of any description upon which a percentage 
 will be charged) is paid." The last condition is that all questions 
 arising on the ticket shall be decided according to the English 
 law with reference to which that contract is made. The court 
 finds that neither the father of the two young women passengers, 
 who purchased the tickets, nor either of the women, read this no- 
 tice on the back of the tickets, or knew its contents, and that no 
 declaration of the extraordinary value of their property had been 
 made, as was required under the fourth condition. Judge Ship- 
 man, who tried the case, discusses the matter at great length. He 
 objects to the contract and conditions because they were clumsily 
 drawn and because they were not on the face of the ticket, where 
 they would have been more conspicious, but he holds, neverthe- 
 less, that they were binding, provided they were brought to the 
 attention of the purchaser. In effect he says that if they were 
 not so brought to the knowledge and attention of the purchaser 
 they would not be binding and the company could not save itseK 
 by them. It was not asserted by the company that the conditions 
 of the contract were read to the father, when he purchased the 
 tickets, but the judge held that as he had had the tickets in his 
 possession some time before they were used he had sufficient op- 
 portunity to read them, and he should have done so. He also 
 had sufficient opportunity to look up the law and find just how 
 far the company could be held liable in case of damage. "There- 
 fore," the judge says, "the regulation was distinctly brought to 
 the knowledge of Mr. Potter, the father." The judgment of the 
 district court was reversed, with instruction that the damage 
 awarded to each of the passengers be reduced to $43.67 and in- 
 terest to date.' 
 
 It has been held (March, 1894) that a change made by the car- 
 rier in the name of the place of delivery, before the return of the 
 
 • Potter V. Tlie Majestic, 33 L. R. A. 746, 60 Fed. Rep. 625.
 
 BILL DELIVERED AFTEK ACCEPTING GOODS. 133 
 
 bill of lading to the shipper, is a rejection by the carrier of the 
 terms proposed in the bill of lading; and, unless the shipper gives 
 notice within reasonable time of his dissent from the alteration, 
 he will be held to have accepted the change, — although in fact, 
 it was unnoticed by him.' The consignee and endorsee of a bill 
 of lading who is owner of the goods and the bill of lading and 
 accepts the goods thereunder, is bound by its terms.' 
 
 A receipt by a carrier for goods delivered to it for shipment, 
 merely calling attention to unsigned conditions printed on its 
 back, and stating that a bill of lading is to be given thereafter, is 
 not a contract of shipment such as to merge an oral agreement 
 for shipment.* 
 
 § 36. Bill Delivered after Accepting Goods. 
 
 After the goods are shipped, it is too late to impose upon the 
 shipper a clause exempting the carrier from liability from loss b}^ 
 fire, after such fire has occurred." The acceptance by the shipper 
 of a receipt for goods, containing a clause limiting the carrier's 
 liability, is only " prima facie " evidence of the shipper's assent to 
 the condition. The shipper may show previous delivery of 
 goods." A carrier cannot contract for a limitation of liability for 
 loss of property through its negligence while in its possession for 
 transportation. ° "While a bill of lading is prima facie evidence of 
 the truth of its contents, the carrier may show any injury, loss, 
 fraud or deceit occasioned or practiced by the shipper, or any 
 previous carrier.' And where goods are delivered to carrier un- 
 der agreement not restricting its common law liability, it cannot 
 thereafter insert in bill of lading clauses restrictive of its usual 
 liability.* 
 
 » Mnller v. Cincinnati, H. & D. R. Go. 2 Cin. Super. Ct. 280. 
 
 s Keilsen v. Jesup, 30 Fed. Rep. 138. 
 
 2 Merchants' Dispatch Transp. Co. v. Furthmann, 149 111. 66, Aff'g 47 IH. App. 
 
 561. 
 « Lain^ V. Camden & A. R. Co. 4 Daly, 483. 
 » Strohn v. Detroit & M. R. Co. 21 "Wis. 554, 94 Am. Dec. 564. 
 ^International & O. N. R. Co. v. Folts, 3 Tex. Civ. App. 644. 
 •> GreatWestern R. Co. v. McDonald, 18 111. 172. 
 « Park V. Preston, 108 N. Y. 434.
 
 134 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 A bill of lading limiting liability signed only by carrier sent to 
 shipper after receipt of goods without any contract limitation, will 
 not bind shipper,* After the delivery of goods under a verbal agree- 
 ment, the delivery to the shipper of a bill of lading, partly writ- 
 ten and partly printed, will not have the efEect of merging the 
 verbal stipulations therein, so far as they limit the liability of the 
 carrier. The omission by the shipper, through inadvertence, to 
 examine the printed conditions, will not conclude him as having 
 accepted under the bill of lading, nor prevent his showing what 
 the actual agreement under which the goods were shipped, was.* 
 Presumption of assent by the shipper will not be indulged where 
 it is shown that before the delivery of the bill of lading, goods 
 have been sent forward, so that the shipper could not have re- 
 claimed them had he objected to the contents of the bill.^ 
 
 The rule may be thus stated : The carrier can not abrogate or 
 alter a contract, under which goods have been shipped, by merely 
 signing and mailing bills of lading which did not reach the plain- 
 tiffs until after the goods had left, and much, if not all, the loss 
 has accrued. "Where there was not conclusive evidence that the 
 plaintiffs consented to accept the bills of lading in place of the 
 prior contract, that contract must control.* 
 
 Where the evidence warrants a finding that the merchandise 
 transported was delivered to and accepted by the carriers under a 
 special contract, and there is no conclusive evidence that the con- 
 signor consented to accept the bills of lading in place of such 
 contract, the carrier's liability is fixed by such special contract 
 and can not be abrogated or altered by the subsequent signing 
 and mailing of bills of lading by the carriers which did not reach 
 the consignor (who was also the consignee) until after the loss oc- 
 curred.' Thus, a stove broken en route is at the carrier's risk, 
 
 ' Central R. Co. v. DwigJit Mfg. Co. 75 Ga. 609; Ouillaume v. General Trannp. 
 
 Co. 100 N. Y. 491; Snow v. Indiana, B. dW. R. Co. 109 Ind. 422. 
 ^ Boshoick V. Baltimore & 0. R. Co. 45 N. Y. 712; Baker v. Michigan S. & JV. 
 
 I. R. Co. 42 111. 73. 
 » Germania F. Ins. Co. v. Memphis & C. R. Co. 72 N. Y. 90, 28 Am. Rep. 113. 
 * Boiitwirk V. Baltimore & 0. R. Co. 45 N. Y. 712; Ouillaume v. General Transp. 
 
 Co. 100 N. Y. 491; Wheeler v. New Brunswick & C. R. Co. 115 U. S. 39, 29 
 
 L. ed. 341; Swift v. Pacific Mail SS. Co. 106 N. Y. 206. 
 » Sioift V. Pacific Mail SS. Co. 106 N. Y. 206.
 
 BILL DELIVERED AFTEK ACCEPTINa GOODS. 135 
 
 where the freight agent applied to for shipment of that and other 
 office furniture informed the shipper that it was customary for 
 shippers to release stoves, but advised him to pay extra and send 
 at the carrier's risk, to which the shipper assented, and after the 
 ^oods were shipped the agent handed him a bill of lading condi- 
 tioned that stoves should be at the owner's risk, telling him that 
 it was a receipt for the goods, the shipper putting it in his pocket 
 without examination.' So, a special contract limiting the liability 
 of a carrier, signed by a shipper of horses after they are aboard 
 the train, upon a demand of the agent of the carrier, combined 
 with a statement that otherwise the horses will not go on that 
 train, — is not binding upon him f although the refusal to receive 
 or forward goods for carriage, except upon the conditions limiting 
 the carrier's common law liability, is sufficient ground for an ac- 
 tion at law.^ Where the goods are delivered to the carrier and 
 accepted, under a verbal contract, the subsequent sending of a bill 
 of lading to the shipper — without special attention being called 
 to the conditions varying the verbal contract — will not bind the 
 shipper.* But a previous course of dealing being shown, under 
 which goods were received by the carrier, and it being in proof 
 that after such delivery a bill of lading was delivered to the ship- 
 per containing like stipulations, this evidence would create a pre- 
 .fiumption of consent by the shipper, to the limitations.* 
 
 The acceptance of a bill of lading without assenting to its con- 
 ditions does not conclude one who has shipped goods under a 
 verbal agreement before the bill of lading was tendered.* 
 
 ' Union Pae. E. Co. v. Marston, 30 Neb. 241. 
 
 » Atchison, T. & 8. F. R. Co. v. Dill, 48 Kan. 210. 
 
 ' Leonard v. American Exp. Co. 26 U. C. Q. B. 533. 
 
 * Boiittcick V. Baltimore & 0. B. Co. 45 N. Y. 712; Wheeler v. JVeto Brunswick 
 
 & C. E. Co. 115 U. S. 29, 29 L. ed. 341; McCuUongh v. Wabash Western E. Co. 
 34 Mo. App. 23; Swift v. Pacific Mail 8S. Co. 106 JST. Y. 206. 
 
 » Shelton v. Merchants Dispatch Transp. Co. 59 N. Y. 258. 
 
 * Merchants' Dispatch Transp. Co. v. Furthmann, 149 111. 66, Afl'g 47 111. App. 
 
 561.
 
 136 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 ^ S7. Liinitation Consented to hy Agent. 
 
 The power of the agent to agree with the carrier upon a limita- 
 tion of the latter's liability has been discussed in the courts.* 
 And it has been held that knowledge by the carrier that he was 
 contracting with an agent, put him upon inquiry as to the extent 
 of the agent's authority/ But the general rule is that where a 
 shipper entrusts an agent with the care of the goods for trans- 
 portation, he is presumed to have clothed him with all necessary 
 authority for contracting. A shipping contract limiting the lia- 
 bility of a carrier to a certain sum in consideration of a reduced 
 rate of transportation is binding upon a shipper whose agent to 
 make the shipment assented to the stipulation, although the limi- 
 tation is not brought to the knowledge of the shipper himself.* 
 The shipper has been bound, by his acceptence of the bill of lading, 
 with the condition stated thereon limiting the liability of the car- 
 rier." General authority to a consignor to deliver goods to a car- 
 rier for transportation includes power to agree on exemptions 
 from liability.^ An agent authorized to contract for the ship- 
 ment has presumptive authority to agree, without special consid- 
 eration, that the carrier shall have the benefit of any insurance 
 that may have been effected upon the goods to be transported." 
 The exceptions to the common law liability being made in the 
 bill of lading, and delivered to the agent of the plaintiff, must be 
 deemed to have been agreed upon by the parties.'' 
 
 But a bill of lading first issued by the shipper and delivered by 
 his agent to the owner of the boat after it had started on its voy- 
 age, and under which the voyage was thereafter performed, must 
 be deemed to be the contract binding upon the parties and the 
 cargo, as against a bill sent to the consignee and signed by one of 
 
 ' Southern Pac. R. Co. v. Maddox, 75 Tex. 300. 
 
 » Hayes v. Campbell, 63 Cal. 143. 
 
 8 Zimmer v. New York Cent. <& H. R. R. Co. 137 N. T. 460. 
 
 * Kelson v. Hudson River R. Co. 48 N. Y. 498. See ante % 29, note 3. 
 
 » Brown v. Louisville & JSf. R. Co. 36 111. App. 140. 
 
 ' Missouri Pac. R. Co. v. International M. Ins. Co. 84 Tex. 149. 
 
 "^Dorr V. New Jersey 8. Nav. Co. 11 N. Y. 485, 62 Am. Dec. 125; Griffiih v. 
 
 Ingledeio, 6 Serg. & R. 429, 437, 9 Am. Dec. 444; Nelson v. Hudson River 
 
 R. Co. 48 N. Y. 498.
 
 VALIDITY OF BILL DEPENDS ON EECEPTION OF GOODS BY CAKKIEK. 137 
 
 the firm of shippers as agent of the master, without authority, and 
 never exhibited to the master or owner before the completion of 
 the voyage;' and a shipper to whom through rates have been stated 
 by the station agent of a railroad, without mention of any condi- 
 tions, is not bound by conditions upon shipping bills executed 
 without his knowledge by the persons who delivered for him the 
 property to the railroad company f for an agent of the shipper 
 cannot, without consideration to his principal, release the carrier 
 from its common law liability after a contract is made for the car- 
 riage of goods.' A notice limiting the liability of the carrier 
 which is effective, known by the principal, binds him in respect 
 to all his agents sending goods by the same carrier, and a notice 
 to a known agent who ships the goods will bind the principal as 
 to such acts, although he be personally ignorant of the restric- 
 tion/ 
 
 § S8. Validity of Bill Depends on Reception of 
 Goods hy Carrier. 
 
 While a bill of lading covers goods subsequently delivered and 
 received to fill it, and will represent the ownership of the goods,' 
 yet a carrier, in issuing a bill of lading, for property delivered to 
 him for transportation, does not warrant the title of the shipper. 
 The receipt of the goods lies at the foundation of the contract to 
 carry and deliver. If no goods are actually received, there can 
 be no valid contract to carry or to deliver.* The obligation be- 
 tween the ship and the cargo is mutual and reciprocal, and does 
 not attach until the cargo is on board, or in the custody of the 
 master.'' Delivery of goods to a common carrier for transporta- 
 
 > Costello V. 734,700 Laths, 44 Fed. Rep.' 105. 
 
 « Jennings v. Grand Trunk R. Co. 127 N. Y. 438, 49 Am. & Eng. R. Cas. 98. 
 
 « Wiggins v. Erie R. Co. 5 Hun, 185. 
 
 *Mayhew v. Eames, 3 Barn. & C. 601; Clarke v. Hutcliins, 14 East, 475; Having 
 V. Todd, 1 Stark, 72. 
 
 *Heniz v. The Idafio, 93 U. S. 575, 23 L, ed. 978. 
 
 *PoUard v. Vinton. 105 U. 8. 7, 26 L. ed. 998. 
 
 ''King v. The Lady Franklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; TJie Free- 
 man V. Buckingham, 59 U. S. 18 How. 192, 15 L. ed. 345.
 
 138 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 tion involves exclusive possession in the carrier, and this posses- 
 sion involves a surrender of custody and control for the time be- 
 ing by the consignor.' 
 
 There is an unbroken line of authorities in England that even 
 as ao-ainst a bona fine consignee or indorsee for value, the carrier 
 
 i^ CD J 
 
 is not estopped by the statements of the bill of lading, issued by 
 his agent, from showing that no goods were in fact received for 
 transportation.* And this has not been at all changed by the 
 "Bills of Lading Act." 18 & 19 Vict. chap. Ill, § 3. It is also 
 the settled doctrine of the Federal courts.' A railroad company 
 which has issued bills of lading in advance of the receipt of the 
 goods is not liable thereon until the goods are actually received, 
 and is not bound to refuse the goods when tendered, if they do 
 not correspond in grade and quality with those described in the 
 bills of lading.* 
 
 One who accepts a bill of lading for a designated amount of 
 cotton issued by the agent of a railway company in favor of a 
 firm having no real existence, without any indorsement by such 
 firm, is necessarily put on inquiry as to who such firm is, and is 
 not protected by the provisions of Ala. Code 1886, § 1179, pro- 
 viding that any carrier which issues a bill of lading or receipt for 
 property which it has not received is liable to any person injured 
 thereby, for all damages resulting therefrom.^ 
 
 A carrier is not liable on a bill of lading for property which at 
 the time of the signing of the bill remained in the hands of the 
 
 • Wilson V. Atlanta & G. B. Co. 82 Ga. 386. 
 
 ^Zipsey v. Eill, 1 Fost. & F. 573; Grant v. Norway, 10 C. B. 665; Coleman v, 
 mche&, 16 C. B. 104; HuhberKty v. Ward, 8 Exch. 330; Brown v. Powell 
 Duffryn Steam Coal Go. L. R. 10 C. P. 563; 3IcLean v. Fleming, L. R. 2 
 H. L. 128; Cox v. Bruce, L. R. 18 Q. B. Div. 147; Meyer v. Dresser, 16 C. 
 B. N. S. 646; Jesiel v. Bath, L. R. 2 Exch. 267. 
 
 3 The Freeman v. Buckingham, 50 U. S. 18 How. 182, 15 L. ed. 341; King v. 
 The Lady Franklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; Pollard v. Vinton, 
 105 U. S. 7, 26 L. ed. 998. 
 
 *St. Louis, I. M. & a. R. Go. v. EnigJit, 122 U. S. 79, 30 L. ed. 1077; Fried- 
 lander V. Texas & P. R. Go. 130 U. S. 416. 32 L. ed. 991; TJie Joseph 
 Grant, 1 Biss. 193; Robinson v. Memphis & G. R. Go. 9 Fed. Rep. 129, 
 141, 16 Fed. Rep. 57; The Alice, 12 Fed. Rep. 496; Law v. Botsford, 26 
 Fed. Rep. 651. 
 
 ''Jasper Trust Co. v. Kansas City, M. & B. R. Go. (Ala.) 14 So. 546.
 
 VALIDITY OF BILL DEPENDS ON RECEPTION OF GOODS BY CAREIEK. 139 
 
 shipper for the purpose of being compressed for the shipper's 
 account, and was destroyed by fire before the delivery to the car- 
 rier had been consummated.' 
 
 WJiat was said on the subject in The Freeman v. Buckingham 
 was probably obiter^ for in that case it was sought to hold the in- 
 terests of the general owner in a ship liable on a bill of lading 
 issued by the special owner, who was not the agent of the former. 
 But what is there said is important both as being the utterance 
 of so eminent a jurist as Curtis, t/!, and also because so often 
 quoted with approval by the same court in subsequent cases. 
 The case of the Lady Franklin did not involve the question of 
 a bona fide purchaser, but is important as announcing that the 
 principle is the same, whether the false bill of lading is issued 
 fraudulently or by mistake. It is said where a bill of lading was 
 given by mistake for goods not actually shipped, there can be no 
 lien for nondelivery of the goods.'' An instrument stating that 
 cotton is received on dock to be transported by a certain steamer 
 of a line, or any other steamship of the line, is not a bill of lading 
 proper, binding upon such steamer, but only an executory con- 
 tract to ship. A steamship chartered to run as part of a line is 
 not liable in rem for missing bales of cotton never received on 
 board, under a bill of lading reciting only their receipt on dock 
 and not signed by the master but by the agent, — especially where 
 the latter was the agent of the charterer.' In view of the later 
 cases cited above, there is no room to doubt that the Supreme 
 Court of the United States is firmly committed to the doctrine in 
 its broadest scope. 
 
 A common carrier is not estopped from denying that it 
 has clothed its agent with apparent authority to do the act, 
 where he, having authority to sign bills of lading, has, acting 
 in collusion with another person solely for a purpose of their own, 
 issue a bill of lading for goods which never came into the pos- 
 session of the carrier.* Bills of lading signed by the master of a 
 
 ^Missouri P. B. Co. v. MFadden, 154 U. S. 155, 38 L. ed. 944. 
 ^Kiiig V. The Lady Fi'anklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455. 
 
 • The Caroline Miller, 53 Fed. Rep. 136. 
 
 * Friedlander v. Texas & P. B. Co. 130 U. S. 416, 32 L. ed. 991.
 
 140 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 vessel and issued to persons who have contracted to furnish the 
 charterers with a certain number of bales of hemp, but who have- 
 actually put on board a less number, while the bills of lading 
 were made out for the full contract number, are not subject to 
 the order of the shippers so as to put the charterers in the posi- 
 tion of bona fide indorsees, where the master and owners of the 
 ship are ignorant of the arrangement, and the mistake in the bill 
 of lading arises from a mistake in the tally of the bales taken 
 aboard as made by the mate.' A railway company does not, by 
 giving its bills of lading for cotton in the sheds of another com- 
 pany, take possession of the cotton, and does not make the other 
 company its agent to hold the cotton. It does not merely, by 
 giving bills of lading for cotton in sheds of a compress company 
 in exchange for the receipts of the compress company, become- 
 responsible for a nuisance resulting from the manner and the 
 place in which the cotton is kept by the express company.' The 
 inclusion in a bill of lading signed by the master of a vessel, of 
 more goods than were actually shipped, does not make the vessel 
 liable for any greater amount than the actual shipment, even to a 
 bona fide indorsee of the bill of lading.^ 
 
 Bills of lading, when signed by the master, duly executed in 
 the usual course of business, bind the owners of the vessel, if the 
 goods were laden on board or were actually delivered into the 
 custody of the master, but it is well settled law that the owners 
 are not liable, if the party to whom the bill of lading was given 
 had no goods or the goods described in the bill of lading were 
 never put on board or delivered into the custody of the carrier or 
 his agent.* The carrier's liability as such will not attach on issu- 
 ing the bill in a case where not only is there a failure to deliver 
 but there is also an understanding between the parties that deliv- 
 
 ' T?ie AspJiodel, 53 Fed. Rep. 835. 
 
 *St. Louis, I. M. &S. B. Co. v. Commercial U. Ins. Co. 139 U. S. 233, 35 L. ecL 
 154. 
 
 * The Asphodel, supra. 
 
 *The Fi-eeman v. Buckingham, 59 U. S. 18 How. 187, 15 L. ed. 843; Grant v. 
 Norway, 10 C. B. 665; Zipsey v. Hill, 1 Fost. & F. 573; Meyer v. Dresser, 16 
 C. B. N. S. 657; The Delaware v. Oveqon Iron Co. 81 U. S. 14 WaU. 579, 20 
 L. ed. 779; Maude & P. Shipping, 233.
 
 VALIDITY OF BILL DEPENDS ON RECEPTION OF GOODS BY CARRIER. 141 
 
 •ery shall not be made till a future day, and that the goods until 
 ihen shall remain in the custody of the shipper.' This doctrine is 
 sanctioned by a unanimous course of English and American de- 
 cisions.^ Indeed, the citations might be multiplied indefinitely. 
 "Whilst the authorities may differ upon the point of what consti- 
 tutes delivery to a carrier, the rule is nowhere questioned that 
 when delivery has not been made to the carrier, but, on the con- 
 trary, the evidence shows that the goods remained in the posses- 
 'sion of the shipper or his agent after the signing and passing of 
 the bill of lading, the carrier is not liable as carrier under the 
 bill.' The same rule obtains in Massachusetts, Maryland, Louisi- 
 ana, Mississippi, Missouri, North Carolina, and apparently Ohio.* 
 A bill of lading is not a representative of money, used for the 
 transmission of money or for the payment of debts, but is merely 
 -a contract for the performance of a certain duty, or a representa- 
 tive of goods and personal property to be delivered. Bills of 
 lading, although made negotiable in fact by statute, are not pos- 
 sessed of all the incidents of negotiability that are attributes of 
 -bills and notes. Non-negotiable bills of lading are merely assign- 
 able, the same as other choses in action.' But clear proof will be 
 required of the non-receipt of the goods, where a bill of lading is 
 ^hown." The text-writers all agree that the overwhelming weight 
 
 ^ Missouri Pae. R Co. v. McFadden, 154 U. S. 155. 38 L. ed. 944. 
 
 « The Freeman v. BuckingJiam, 59 U. S. 18 How. 183, 15;L. ed. 341 ; King v. The 
 Lady Franklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; The Delaioare v. Ore- 
 gon Iron Co. 84 U. S. 14 Wall. 579, 20 L. ed. 779; Pollard v. Vinton, 105 U. 
 S. 7, 26 L. ed. 998; St. Louis, L M. & 8. B. Co. v. Knight, 122 U. S. 79. 30 L. 
 ed. 1077; Friedlander v. Texas & P. B. Co. 130 U. S. 423. 32 L. ed. 994; St. 
 Louis, L M. & 8. B. Co. v. Commercial U. Ins. Co. 139 U. S. 239, 35 L. ed. 
 159; Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 126; Ifosesy. Boston & 
 M. B. Co. 24 N. H. 71; Brind v. Dale, 8 Car. & P. 207; Selway v. Eolloway, 
 1 Ld. Raym. 46; Buckman v. Levi, 3 Campb. 414; Leigh v. Smith, 1 Car. & 
 P. 638; Grant v. N&rway, 10 C. B. 665; Hubbersty v. Ward, 18 C. B. 551; 
 Coleman v. Biches, 16 C. B. 104. 
 '•Missoun Pae. B. Co. v. McFadden, 154 U. 8. 155, 38 L. ed. 944. 
 
 * Sears v. Wingate, 3 Allen, 103; Baltimore «& 0. B. Co. v. Wilkens, 44 Md. 11, 23 
 
 Am. Rep. 26; Fellows v. TheB. W. Powell, 16 La. Ann. 316, 79 Am. Dec. 581 ; 
 Hunt V. Mississippi Cent. B. Co. 29 La. Ann. 446. 
 
 * Lalande v. His Creditors , ^2 La. Ann. 705; Louisiana Nat. Bank v. Laveille, 
 
 52 Mo. 380; Williams v. Wilmington &W. B. Co. 93 N. C. 42; Dean v. King, 
 23 Ohio St. 118. 
 < Little Miami, C. & X. B. Co. v. Dodds, 1 Cin. Super. Ct. 47.
 
 142 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 of authority is on this side.* The reasoning by which this doctrine is 
 usually supported is tliat a bill of lading is not negotiable in the 
 sense in which a bill of exchange or promissory note is negotiable, 
 where the purchaser need not look beyond the instrument itself; 
 that so far as it is a receipt for the goods it is susceptible of ex- 
 planation or contradiction, the same as any other receipt; that the 
 whole question is one of the law of agency; that it is not within 
 the scope of the authority of the shipping agent of a carrier to 
 issue bills of lading where no property is in fact received for 
 transportation; that the extent of his authority, either real or ap- 
 parent, is to issue bills of lading for freight actually received; 
 that this real and apparent authority — i. e., the power with which 
 his principal has clothed him in the character in which he is held 
 out to the world — is the same, viz, to give bills of lading for goods 
 received for transportation and that this limitation upon his au- 
 thority is known to the commercial world, and therefore any per- 
 son purchasing a bill of lading issued by the agent of a carrier 
 acts at his own risk as respects the existence of the fact (the re- 
 ceipt of the goods) upon which alone the agent has authority to 
 issue the bill, the rule being that if the authority of an agent is 
 known to be open for exercise only in a certain event, or upon 
 the happening of a certain contingency, or the performance of a 
 certain condition, the occurrence of the event, or the happening 
 of the contingency, or the performance of the condition, must be 
 ascertained by hun who would avail himself of the results ensu- 
 ing from the exercise of the authority. An examination of the 
 authorities also shows that they apply the same principle whether 
 the bill of lading was issued fraudulently and collusively or 
 merely by mistake. A carrier is not precluded from denying 
 that goods represented by a bill of lading were never received by 
 it, where it accepted warehouse receipts as evidence of the ship- 
 per's goods, in the faith that they would be delivered." 
 
 A railroad company is not estopped to deny that it had possession 
 of cotton lying in the sheds or warehouse of a compress company, 
 
 ■ See 38 Am. Dec. 410, note to Chandler v. Sprague. 
 * Hazard v. lllinm Cent. B. Co. 67 Miss. 33.
 
 VALIDITY OF BILL DEPENDS ON BECEPTION OF GOODS BY CARBIEK. 148 
 
 for wliich it had issued bills of lading in exchange for receipts of 
 the compress company, by reason of a statute prohibiting carriers 
 from issuing bills of lading except for goods actually received 
 into their possession/ A bill of lading issued by a station or 
 shipping agent of a common carrier, without receiving goods for 
 transportation, imposes no liabiHty upon the carrier, even to an 
 innocent consignee or indorsee for value; and the carrier is not 
 estopped by the bill from showing that no goods were in fact 
 received." The states in which a contrary rule has been adopted are 
 New York, Kansas, Nebraska, apparently Illinois, and perhaps 
 Pennsylvania.' Thus where defendant's agent, upon a forged ware- 
 house receipt, issued bills of lading stating the receipt of certain 
 articles consigned to the plaintifE in New York, and the agent 
 was informed by the shipper that he intended to use them in 
 banks, and he drew sight drafts on the plaintiff, which he attached 
 to the bill of lading, which were paid on presentation, it was held 
 that carrier was estopped from denying the receipt of the prop- 
 erty.* And, where a carrier gives a bill of lading reciting that 
 the property is then lying at a depot in a certain place, and agrees 
 to forward the same to the consignee, and money is advanced on 
 the bill of lading, the carrier cannot defeat the action for failure 
 to deliver the goods by showing that, at the time of giving such 
 bill of lading and its indorsement, the goods were in the adverse 
 possession of another.* 
 
 The reasoning of these cases is in substance that the question 
 does not at all depend upon the negotiability of bills of lading, 
 but upon the principle of estoppel in pais', that where a prin- 
 cipal has clothed an agent with power to do an act in case of 
 the existence of some extrinsic fact, necessarily and peculiarly 
 
 • Martin v. St. Louis, 1. M. & 8. B. Co. 55 Ark. 510. 
 
 » National Bank of Commerce v. Chicago, B. & N. B. Co. 9 L. R. A. 263, 44 
 
 Minn. 224. 
 ^ Bank of Batavia v. New York, L. E. & W. B. Co. 106 N. Y. 195. 60 Am. 
 
 Rep. 440; Wichita Sav. Bank v. Atchison, T. & 8. F. B. Co. 20 Kan. 519; 
 
 Sioux City & P. B. Co. v. Fir^t Nat. Bank of Fremont, 10 Neb. 556, 35 Am. 
 
 Rep. 488; St. Lotus & I. M. B. Co. v. Lamed, 103 111. 293; Brooke v. New 
 
 York, L. E. & W. B. Co. 108 Pa. 529, 56 Am. Rep. 235. 
 
 * Armour v. Michigan Cent. B. Co. 65 N. Y. Ill, 22 Am. Rep. 603. 
 ' St. Louis & L M. B. Co. v. Lamed, 103 111. 293.
 
 144: VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 within the knowledge of the agent, and of the existence of 
 which the act of executing the power is itself a representation, 
 the principal is estopped from denying the existence of the fact, 
 to the prejudice of a third person, who has dealt with the agent or 
 acted on his representation in good faith in the ordinary course 
 of business. It is said that the carrier is estopped from denying 
 the acts of its local freight agent with power to issue bills of lading, 
 only upon actual receipt of the property for transportation, in 
 fraudulently issuing bills of lading whereby third persons suffer 
 4amage by advances thereon.* It is urged that force is added to 
 this reasoning in view of the fact that bills of lading are viewed 
 and dealt with by the commercial world as quasi negotiable, and 
 consequently it is desirable that they should be viewed with confi- 
 dence and not distrust; and that for these considerations it is bet- 
 ter to cast the risk of the goods not having been shipped upon 
 the carrier, who has placed it in the power of agents of his own 
 choosing to make these representations, rather than upon the in- 
 nocent consignee or indorsee, who, as a rule, has no means of as- 
 certaining the fact. 
 
 But, on the other hand, it may be said that carriers are not 
 in the business of issuing and dealing in bills of lading in 
 the same sense in which bankers issue and deal in bills of 
 -exchange; that their business is transporting property, and 
 that, if the statement in the receipt part of bills of lading issued 
 by any of their numerous station or local agents is to be held con- 
 clusive upon them, although false, it would open so wide a door 
 for fraud and collusion that the disastrous consequences to the 
 carrier would far outweigh the inconvenience resulting to the 
 commercial world from the opposite rule. It is also to be ad- 
 mitted that it requires some temerity to attack either the policy 
 or the soundness of a rule which seems to have stood the test of 
 experience, which has been approved by so many eminent courts, 
 and under which the most successful commercial nation in the 
 world has developed and conducted her vast commerce ever since 
 the inception of carriers' bills of lading. And on questions of 
 
 ^ Bank of Batavia V. New York, L. E. & W. B. Co. 106 N. Y. 195, 60 Am. 
 Rep. 440.
 
 VALIDITY OF BILL DEPENDS ON KECEPTION OF GOODS BY CARKIER. 145 
 
 •commercial law it is eminently desirable tliat there be uniformity. 
 It is even more important that the rule be uniform and certain 
 than that it be the best one that might be adopted. Moreover, 
 on questions of general commercial law the Federal courts refuse 
 to follow the decisions of the state courts, and determine the law 
 according to their own views of what it is. It is therefore very 
 desirable that on such questions the state courts should conform 
 to the doctrine of the Federal courts. The inconvenience and 
 confusion that would follow from having two conflicting rules on 
 the same question in the same state, one in the Federal courts and 
 another in the state courts, is of itself almost a sufficient reason 
 why the latter adopt the doctrine of the Federal courts on this 
 question. To do otherwise, so long as the jurisdiction of those 
 courts so largely depends on the citizenship of suitors, would 
 really result in discrimination against citizens of the state by its 
 own courts. 
 
 The overwhelming weight of authority, seems to sustain the rule 
 that a bill of lading issued by a station or sliipping agent of a 
 railroad company or other common carrier, without receiving the 
 goods named in it for transportation, imposes no liability upon 
 the carrier, even to an innocent consignee or indorsee for value, 
 and that the rule is the same whether the act of the agent was 
 fraudulent and collusive, or merely the result of mistake. Of 
 course this is predicated upon the assumption that the authority 
 of the agent is limited to issuing bills of lading for freight re- 
 ceived before, or concurrent with, the issuing of the bills, which 
 would be the presumption in the absence of evidence to the con- 
 trary. No doubt a carrier might adopt a different mode of doing 
 business by giving his agents authority to issue bills of lading for 
 goods not received, so as to render him liable in such cases to 
 third parties.* 
 
 * National Bank of Commerce v. Chicarjo, B. & N. R. Co. 9 L. R. A 263 44 
 MinD. 224. 
 
 10
 
 146 VALIDITY OF BILL OF LADING — ITS LIMITATIONS OF LIABILITY. 
 
 § S9. Exceptions in Bill Waived hy JYegligence. 
 
 While no exception of a private nature not contained in the 
 contract of affreightment itself, can be an excuse for its nonper- 
 formance, and the carrier must furnish evidence to discharge it- 
 self for a failure to perform its contract,' yet that a common car- 
 rier may exempt himself from liability for loss occasioned by 
 ordinary negligence has been held by many of the courts.* But 
 these exemptions from liability by contract must be such only, 
 under the strong current of authority as are just and reasonable 
 in the eye of the law/ 
 
 A signed contract purporting to relieve a railway company 
 from liability for every kind of negligence or default, however 
 caused and however completely the loss may be unconnected with 
 the fact of the goods being valuables, without any equivalent or 
 beneficial alternative, will not avail the company under the En- 
 glish Railway and Canal Traffic Act, § 7, providing that the com- 
 pany shall be liable for the loss of any goods by the neglect or 
 default of the company or its servants, in the absence of a signed 
 and reasonable contract for exemj^tion.* 
 
 In New York it has been held that a common carrier may stip- 
 ulate the exemption from losses through his own negligence or 
 that of his servants." But contracts should not be held to include 
 negligence from general words, nor will it be so construed unless 
 expressed in unequivocal terms." If the general words can be 
 
 ^Hoioland v. Greenway, 63 U. S. 23 How. 491, 16 L. ed. 391. 
 
 ^Ante, chap. II. See also, Baltimore & 0. R. Co. v. Brady, 32 Md. 333; 
 Ashmore v. Pennsylvania Steam Towing Transp. Go. 28 N. J. L. 180; Law- 
 rence V. New York, P. & B. R. Co. 36 Conn. 63; Peck v. Weeks, 34 Conn. 
 145; Hawkins v. Oreat Western R. Co. 17 Mich. 57, 97 Am. Dec. 179; Adams 
 Exp. Co. V. Haynes, 42 111. 89; American Exp. Co. v. Perkins, 42 111. 458; 
 Mann v. BircJiard, 40 Vt. 326; Kimball v. Rutland & B. R. Co. 26 Vt. 247, 
 62 Am. Dec 567. 
 
 3 Stat. 17 & 18 Vict. chap. 31, § 7; Peek v. North StaffordsMre R. Co. 10 H. 
 L. Cas. 473, 493; New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 
 357, 21 L. ed. 627, 10 Am. Rep. 366, note; Ante, chap. II. § 10 et al. 
 
 * Shaw V. Oreat Western R. Co. [1894] 1 Q. B. 373. 
 
 ^ Magnin v. Dinsmore, 56 N. Y. 168; Poucher v. New York Cent. R. Co. 49 N. 
 Y. 263, 10 Am. Rep. 364; Knell v. United States & B. S8. Co. 1 Jones & S. 
 423. 
 
 « Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180, 27 Am. Rep. 28, re- 
 versing 7 Hun, 399; Nicholas v. New York Cent. & H. R. R. Co. 89 N. 
 Y. 370.
 
 EXCEPTION IN BILL WAIVED BY NEGLIGENCE. Ii7 
 
 given effect without including negligence, the contract will not 
 release from it.' In those states where it is admitted that the 
 carrier may exempt itself from the negligence of its servants, the 
 contract securing such exemption must be in explicit terms.* The 
 carrier remains liable for loss through its negligence, under a con- 
 tract of shipment of fruit providing that the same shall be at the 
 owner's risk, where the contract does not in clear and unmistak- 
 able terms exempt it from such liability.' A special contract 
 stamped upon a bill of lading is not so certain and specific as is 
 required to free the carrier from liability.* The words in a bill 
 of lading " not accountable for contents," do not constitute an 
 agreement for exemption from liability.* Provisions in a contract 
 of aft'reightment, that the carrier will not be responsible for delay 
 in the transit of the property, do not relieve it from the conse- 
 quences of delay occasioned by its negligence, where exemption 
 from liability from that cause is not expressed in the contract." 
 Although excused by an exception for delay, yet he will be liable 
 for injury to the goods by negligent handling while so delayed." 
 If the delay is excused, the carrier is not liable for decline in price 
 of cargo,* nor for loss in quality.' 
 
 ' Holsapple v. Borne, W. & 0. R. Co. 86 N. Y. 275; Mynard v. Syracuse, B. & 
 N. T. B. Co. supra. 
 
 ' Magnin v. Dinsmore, 56 N. Y. 168; Edsall v. Camden & A. B. & Tramp. 
 Co. 50 N. Y. 661; Westcott v. Fargo, 6 Lans. 319; Mynard v. Syracuse, B. 
 & N. T. B. Co. 71 N. Y. 180, 27 Am. Rep. 28; Holsapple v. Boyne, W. & 0. 
 B. Co. 86 N. Y. 275; French v. Buffalo, iV". Y. & E. B. Co. 4 Keyes, 108; 
 Nicholas V. New York Cent. & H. B. B. Co. 89 N. Y. 370; Canfield v. Bal- 
 timore & 0. B. Co. 93 N. Y. 532, 45 Am. Rep. 268; Baltimore & 0. B. Co. 
 V. Bathbone, 1 W. Va. 87, 88 Am. Dec. 664; Nashville & C B. Co. v. Jack- 
 son, 6 Heisk. 271 ; Mobile & 0. B. Co. v. Jarboe, 41 Ala. 644 ; Bostwick v. 
 Baltimore & 0. B. Co. 45 N. Y. 712; Ouillaume v. Hamburg & A. Packet 
 Co. 42 N. Y. 212, 1 Am. Reo. 512; Lamb v. Camden & A. B. & Transp. 
 Co. 46 N. Y. 271, 7 Am. Rep. 327; Kamaa City, M. <& B. B. Co. v. Hol- 
 land, 68 Miss. 351. 
 
 » Giles V. Fargo, 43 N. Y. S. R. 65. 
 
 *Merriman v. The May Queen, Newb. Adm. 464; Michigan Cent. B. Co. v. 
 
 Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 330, 21 L. ed. 303; McMillan 
 
 V. Michigan S. & N. I. B. Co. 16 Mich. 88, 93 Am. Dec. 208. 
 » The Pacific, Deady, 17. 
 
 ^Jennings v. Grand Trunk R. Co. 127 N. Y. 438. 
 "> Galena & C. U. B. Co. v. Bae, 18 111. 488, 68 Am. Dec. 574; Lipford v. 
 
 Charlotte & S. C. B. Co. 7 Rich. L. 409. 
 ^ Black V. Baxtendale, 1 Exch. 410; Nettles v. South Carolina B. Co. 7 Rich. 
 
 L. 190, 62 Am. Dec. 409. 
 » Glasscock v. Chicago & A. B. Co. 69 Mo. 589.
 
 148 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 But, although a common carrier is not responsible for the de- 
 struction or less of goods by the act of a public enemy, he is, nev- 
 ertheless, bound to use due diligence to prevent such destruction 
 or loss. If his negligence or want of proper attention contributed 
 thereto, he would be liable therefor.' Ordinary diligence is all 
 that is required of the carrier to avoid or remedy the effects of 
 an overpowering cause." A stipulation releasing a carrier from 
 damages that " might happen " will not release it from the effect 
 of nesrlisrence or misconduct.' A carrier who receives a cask of 
 wine in good order to transjDort, and the cask reaches its destina- 
 tion empty, is liable for the loss unless he shows an exemption 
 under his bill of lading," A special contract providing that plain, 
 tiff " shall accept the cars provided by the company," does not 
 exempt from liability for injuries to the goods shipped resulting 
 from defective cars." Provisions in a contract of affreightment, 
 that the carrier will not be responsible for delay in the transit of 
 the property, do not relieve it from the consequences of delay oc- 
 casioned by its negligence, where exemption from liability from 
 that cause is not expressed in the contract,' 
 
 If a shipper of machinery agrees that it may be transported 
 upon open cars, the carrier may still be liable for damage by rust 
 or by the weather during a detention on the road, if ordinary dil- 
 igence required the carrier to cover the cars during such deten- 
 tion and it fails to do so.' Limitations in a contract of shipment 
 upon the liability of the carrier are rendered inoperative and the 
 carrier is subject to its full common law liability as an insurer, 
 where it deviates from the contract by carrying the property by 
 freight, instead of complying with the provision that it shall be 
 
 > Holladay v. Kennard, 79 U. S. 12 Wall. 254, 20 L. ed. 390, 
 
 « MempJiis & C. R. Co. v. Reeves, 11 U. S. 10 Wall. 176, 19 L. ed. 909; Beard 
 V. Illinois Cent. R. Co. 7 L. R. A. 280, 79 Iowa, 518. 
 
 * Soger v. Portsmouth, 8. <&. P. & E. R. Co. 31 Me. 228. 50 Am. Dec. 659. 
 *Arend v. Liverpool, N. T. & P. SB. Co. 6 Lans. 457, 64 Barb. 118, affirmed 
 
 in 53 N. Y. 606. 
 
 • WalUngford v. Columbia <& O. R. Co. 26 S. C. 258. 
 
 'Jennings v. Grand Trunk R. Co. 127 N. Y. 438, 49 Am. & Eng. R Cas. 98. 
 "> Western & A. R. Co. v. Exposition Cotton Mills, 2 L. R. A. 102, 81 Ga, 522.
 
 EXCEPTION IN BILL WAIVED BY NEGLIGENCE. 149 
 
 carried by passenger train service.' A contract releasing a carrier 
 from all damage to goods from any cause not the result of col- 
 lision or cars being thrown off the track, does not release from lia- 
 bility for negligence not resulting in collision or derailment,'* A 
 provision in a shipping contract, that the carrier in case of loss 
 shall have the benefit of any insurance effected by the shipper, 
 does not apply to a loss from the carrier's negligence, where the 
 policy expressly provides that it shall not cover the carrier's com- 
 mon law liability, although it provides for advancing to the ship- 
 per the insured value of the goods, to be repaid upon a recovery 
 against the carrier.^ In courts where contracts releasing liability 
 for negligence are not given effect, the exception is of no avail in 
 favor of a permitted exemption, where customary precautions are 
 not shown. Thus, a vessel which did not take the usual and neces- 
 sary precautions against damage by rats to a cargo known to be 
 liable thereto, during a voyage of ordinary duration in which only 
 the customary stops were made, is liable for extraordinary damage 
 thereto, notwithstanding exceptions in the bill of lading as to ver- 
 min and negligence." 
 
 When unable to carry the goods to their place of destination 
 from causes over which he has no control, as by the stranding 
 of the vessel, the master is still bound to take all possible care 
 of the goods, and is responsible for perils or injury which might 
 have been prevented by human skill and prudence.* But the 
 carrier is only answerable for the ordinary and proximate conse- 
 quences of neglect, and not for those that are remote and extra- 
 ordinary.' When owing to defective machinery, goods did not 
 arrive for six days after they were due, and then were destroyed 
 by a flood, the court said : " The negligence of the carrier was 
 remote ; it had ceased to operate as an active, efficient and pre- 
 vailing cause as soon as the wool had been carried beyond Syra- 
 
 * Pavitt V. Lehigh Valley R. Co. 153 Pa. 302. 
 
 « Phmnix aay Pot Works v. Pittsburg & L. E. R. Co. 139 Pa. 284 
 3 Gulf, C. & S. F. R. Co. V. Zimmerman, 81 Tex. 605. 
 ^ The Timor, 46 Fed. Rep. 859. 
 
 * The Niagara v. Cordez, 63 U. S. 21 How. 7, 16 L. ed. 41. 
 « Morrison v. Davis. 20 Pa. 171, 57 Am. Dec. 695.
 
 150 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 ciise, and therefore cannot subject the carrier to a responsibility 
 for an injury to the property resulting from a subsequent inevita- 
 ble accident, which was the proximate cause by which it was pro- 
 duced.' In a case decided by the supreme court of New York, 
 where the liability of the carrier was maintained, the damage 
 being occasioned by a flood, the decision was placed expressly upon 
 the gross neglect of the company." Though the proximate cause 
 may be occasioned by inevitable accident, the carrier is still bound 
 to use care and diligence. Yet no greater foresight of extraordinary 
 perils is expected of him than of other men, and no greater pen- 
 alty visited for his failure. "When he discovers himself in peril 
 the law requires of him ordinary care, skill and foresight. This 
 is defined to be the common judgment, which men of prudence 
 and heads of families, usually exhibit in matters that are interest- 
 ing to them. It means, as difficulties increase — in great danger — 
 great care is the ordinary care of a prudent man.' 
 
 § 40. Effect of Exception in Bill. 
 
 The printed part of a bill of lading is controlled by the written 
 part,* for the bill of lading is a contract which must be construed 
 by the court like any other written contract, — according to its 
 true meaning.' The ordinary rule is that the validity of a contract, 
 its interpretation, nature and obligation, is to be governed by the 
 law of the place of performance ; the contract being invalid there, 
 will be so treated in other jurisdictions. If a contract is entire, 
 and made to be particularly performed in one state, it must be in- 
 terpreted in accordance with the laws of that state." But a stipula- 
 tion of a bill of lading, substituting for the law of the United States 
 tliat of Great Britain in respect to the validity of a stipulation 
 relieving a carrier from liability for the negligence of its servants, 
 
 » Denny v. NewTork Cent. R. Go. 13 Gray, 487, 74 Am. Dec. 
 ^Michaels v. NewTork Cent. R. Co. 30 N. Y. 575, 86 Am. Dec. 4. 
 ' Morrison v. Davis, supra. 
 
 * Miller v. Hannibal & St. J. R. Co. 24 Hun, 607; Elkins v. Empire Transp. Co. 
 
 81* Pa. 315. 
 
 * Lucesco Oil Co. v. Pennsylvania R. Co. 2 Pittsb. 477. 
 *McDaniel v. Chicago <& N. W. R. Co. 24 Iowa, 413.
 
 EFFECT OF EXCEPTION IN BILL. 151 
 
 is, with the latter stipulation, invalid in the courts of the United 
 States.' 
 
 A common carrier cannot legally exact an agreement limiting 
 its liability as a condition precedent to receiving or carrying the 
 offered freight or message. It is under a legal duty to accept 
 and carry whatever is offered to it at a reasonable time and j^lace, 
 of a kind that it undertakes or is accustomed to carry, subject to the 
 full liability of a common carrier, unless such liability is restricted 
 by a valid agreement between such carrier and its employer.'' 
 1^0 greater operation will be given to a contract limiting the lia- 
 bility of a carrier, than the language used plainly indicates that 
 the parties intended it should have.' But where a loss occurs 
 from one of the perils clearly excepted in a bill of lading deliv- 
 ered to the shipper and accepted by him, and the carrier has acted 
 under the bill, as delivered, no recovery can be had for the loss.* 
 And exceptions permissible in the bill of lading, exempting the 
 ■carrier for loss from certain causes, are in New York conclusive 
 upon the shipper as a special contract between the parties, where 
 the bill was delivered to the carrier,* The enemies mentioned in 
 the bill of lading, are to be understood as public enemies, not 
 merely robbers, thieves or private depredators, but losses by 
 pirates on the high seas are deemed within it.' An exception 
 clause in a bill of lading, by which a ship is exempted from liabil- 
 ity in respect of losses caused by {inter alia) " pirates, robbers or 
 thieves of whatever kind, whether on board or not, or by land or 
 sea," does not apply to thefts committed by persons in the service 
 of the ship.^ But a railway company may protect itself by 
 special contract against liability for loss of goods by the theft of 
 
 » The Hugo, 57 Fed. Rep. 403. 
 
 « Kii'by V. Western U. Teleg. Co. (S. D.) 55 N. W. Rep. 759. 
 
 « Menzell v. Chicago & N. W. B. Co. 1 Dill. 531. 
 
 * Bostwick V. Baltimore & 0. R. Co. 55 Barb. 137. 
 
 ^Steiniceg v. Erie B. Co. 43 N. Y. 123, 3 Am. Rep. 673. 
 
 « Barclay v. Hygena, cited 1 T. R. 33, reported under the name of Barclay v. 
 
 Cuculla T Gana, 3 Dougl. 389; Morse v. Slue, 1 Vent. 190, 338; Trent & M. 
 
 Nav. Co. V. Wood, 3 E8p. 127, 4 Dougl. 287; Coggs v. Bernard, 2 Ld. Raym. 
 
 909-918; Woodlife's Case, Moore, 462, 1 Rolle, Abr. 2. 
 '' Steinman v. Angier Line [1891] 1 Q. B. 619.
 
 152 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 its servants without negligence on its part, although such contract 
 is not reasonable within the English Railway and Canal Traffic 
 Act, § 7, providing that a railway company shall be liable, in the 
 absence of a signed and reasonable contract for exemption, for 
 the loss of any goods, occasioned by the neglect or default of such 
 company or its servants, since such loss is not a loss occasioned 
 by the neglect or default of such company or its servants.' 
 
 In a recent case decided by the supreme court of Pennsylvania* 
 the defendant is sued as a common carrier for its failure to deliver 
 a quantity of whiskey shipped over its line of road. The bill of 
 lading stipulated that, " the carrier shall not be liable for loss 
 or damage by causes beyond its reasonable control, by lire, explo- 
 sion from any cause, and wheresoever occurring ; by riots, strikes, 
 or stoppage of labor, or for any of the causes incident to transpor- 
 tation, such as chafing, heating, freezing, leakage, rust, or any 
 other reason not directly traceable to the negligence of the 
 carrier's servants." The defense set up is that the whiskey was 
 lost in the Johnstown flood. The train was overtaken by the 
 flood, but it was not swept away. After the avalanche of water 
 caused by the breaking of the South Fork dam had passed, the 
 train was left upon the track, and the cars were uninjured. The 
 track above and below it were injured, so that the train could not 
 resume its journey at once, but remained in the same place until 
 the necessary repairs were made. The whiskey claimed for was 
 not destroyed by a flood. Part of it was stolen by thieves after 
 the flood subsided, and the rest of it was destroyed by a volunteer 
 guard of citizens, who had Avatched and protected the train dur- 
 ino- the night following the flood and part of the next day, as the 
 easiest way of keeping it from falling into the hands of the same 
 dangerous class of men who had gotten a taste of it on the previ- 
 ous afternoon. The flood was therefore not the cause of the loss, 
 but the occasion the opportunity for its plunder by bad men. 
 The thieves came in the wake of the flood to pick up and appro- 
 priate what the more merciful waters had spared. They came to 
 this train, and began to force open the doors of some of the cars. 
 
 ' Lang v. Pennsylvania R. Co. 20 L. R. A. 3G0, 154 Pa. 342. 
 » Snaw V. Gaeat Western R. Co. [1894] 1 Q. B. 373.
 
 EFFECT OF EXCEPTION IN BILL. 153 
 
 The conductor, and part, if not all, of his crew, came upon the 
 ground at about the same time. They saw an ax being used to 
 open one or more of the cars, but they made no effort to defend 
 the train or drive away the thieves. They did not so much as to 
 remonstrate with them, or order them away, but, turning their 
 backs, they surrendered the train and its freight to the tender 
 mercies of the vagabonds who had attacked it, and went away 
 from the neighborhood. Private citizens came soon after, drove 
 the thieves out of and away from the train, and stood guard over 
 it all night and until the middle of the next day ; but the train- 
 men seem to have had neither part nor lot in the effort to save 
 the property of their employer. The reason was given by one of 
 them while on the witness stand with a cool, deliberate heartless- 
 ness not often met with in the most hardened criminals. He said 
 he did not try to help the citizens save the cars and their con- 
 tents because he " had no orders to do so." He stood and looked 
 on. He saw the peril of his employer's property. He saw citi- 
 zens, with no personal interest involved, trying to save it, but he 
 did not help, because " he had no orders." Whether he and others 
 like him were cowards shivering with fear in the presence of a 
 few thieves, whom unarmed citizens drove away, or were thieves 
 at heart, and in full sympathy with those who were trying to loot 
 the cars that they should have defended, the court say, is a mat- 
 ter of no consequence. In either case they neglected their obvi- 
 ous duty. The railroad company was represented in the carriage 
 and safe keeping of the freight on the train by the men to whom 
 the train had been committed. If they deserted their posts, and 
 left the goods uncared for, and they were stolen or destroyed, 
 their employer must suffer for their inefficiency. Under the facts 
 the loss sued for did not arise from inevitable accident or the act 
 of God. It did not result from insurrection or the public enemy. 
 It was not the work of a mob. It was due in part to plain steal- 
 ing, done in daylight, in the presence of the trainmen, and with- 
 out the slightest resistance or remonstrance on their part. For 
 the rest, it was due to the action of citizens who, after having 
 guarded what remained for nearly twenty-four hours, destroyed 
 it, when they could no longer keep up their watch over it, rather
 
 154 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 
 
 than see it consumed by the human brutes to whom it had been 
 abandoned by the trainmen. 
 
 The words "taken at the owner's risk" only release the carrier 
 from its liability as an insurer/ A clause in the bill of lading, 
 exempting the carrier from loss on perishable property, cannot be 
 applied to mature merchantable corn.^ A stipulation requiring 
 notice of any claim for damages before removal of the property 
 from the place of destination, does not apply to a removal by the 
 carrier/ Although a bill of lading of olive oil from JEtna to 
 New York, exempted the carrier from responsibility from break- 
 age or leakage, where it was shown that the libelant had long 
 been accustomed to import such olive oil from the same place of 
 origin in Italy, and from the same consignors, put up in the same 
 manner, and no similar leakage had before occurred, and the cases 
 were shipped in good condition, and the loss which occurred was 
 evidently caused by some person tampering with the cases for the 
 purpose of extracting oil, while the cases were in the carrier's cus- 
 tody — the carrier is responsible." 
 
 A clause in a bill of lading that the vessel is not responsible 
 for the number of pieces or the weight, removes the ship's pre- 
 sumptive liability for the weight as stated in the bill of lading, 
 and she is liable only for the number of pounds proved to have 
 actually been put on board/ But a clause in a bill of lading, 
 whereby the carrier agrees that any deficiency in the cargo shall 
 be paid for by him and deducted from the freight, concludes liim 
 as to the amount therein stated to have been delivered to him for 
 shipment, and as to the right to deduct from freight charges for 
 deficiency in the quantity delivered at the destination, in the 
 absence of proof of fraud or mistake at the place of lading/ An 
 
 ' Mobile & 0. B. Co. v. Jarboe, 41 Ala. 644; Ooldey v. Pennsylvania B. Co. 30 
 Pa. 242, 72 Am. Dec. 703. 
 
 « Illinois Cent. B. Co. v. McClellan, 54 111. 58, 5 Am. Rep. 83. 
 
 * Baker v. Missouri Pac. B. Co. 34 Mo. App. 98. 
 
 * T?ie Qiglio v. The Britannia, 31 Fed. Rep. 432. 
 
 ^ Eaton w. Neumark, 32 Fed. Rep, 891; Abbott v. National SS. Co. 33 Fed. 
 Rep. 895. 
 
 'Bhodes v. Newhall, 35 N. Y. S. R. 415, affirmed in 126 N. Y. 574.
 
 EFFECT OF EXCEPTION IN BILL. 
 
 155 
 
 exception in the bill of lading, releasing the carrier from defi- 
 ciency ''in packages" — has no application to the shipment of corn 
 in bulk.' The term "31 bars on ship" in a bill of lading, means 
 so many less the number previously stated.' 
 
 "Where the master stamps the bill of lading "weight unknown," 
 the presumption arising from the weights stated on the margin 
 of the bill of lading is removed.' The words "contents unknown" 
 annexed to a bill of lading acknowledging the receipt of the 
 goods in good order, imply that the master intends to confine the 
 acknowledgment to the external condition of the goods.* A bill 
 of lading expressly stating that the contents of the packages are 
 unknown is no warranty of the quality of the goodo described 
 therein, and binds the carrier only for the safe delivery of the 
 goods which he actually receives for transportation.* A recital 
 in a bill of lading of casks enveloped in linen covers, that they 
 are "in apparent good order and condition," refers only to the 
 linen covers, and creates no presumption as to the degree of 
 strength of any particular cask.' The words, "all other condi- 
 tions as per charter," in a bill of lading for delivery of goods, 
 "the act of God, the Queen's enemies, tire and all and every other 
 dangers and accidents of the seas, rivers, and navigation, of what- 
 ever nature and kind soever excepted, unto order or to assigns, 
 they paying freight for the said goods, and all other conditions as 
 per charter, with average accustomed," — do not incorporate into 
 the bill of lading the exception of "strandings occasioned by the 
 negligence of the master," which exception is contained in the 
 charter-party; and therefore indorsees of the bill of lading, who 
 are strangers to the charter-party are not alfected by the latter 
 exception.'' 
 
 ' McCoy V. Erie & W. Transp. Co. 42 Md. 498. 
 
 « Abbott V. National SS. Co. 33 Fed. Rep. 895. 
 
 » Matthiessen & W. Sugar Ref. Co. v. Qusi, 29 Fed. Rep. 794. 
 
 » Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985. 
 
 ^St. Louis, I. M. & 8. R. Co. v. Knight, 123 U. S. 79, 30 L. ed. 1077; Louis- 
 ville, E. & St. L. R. Co. V. Wilson, 4 L. R. A. 244, 119 Ind. 352. 
 
 • Roth V. Hamburg- American Packet Co. 27 Jones & S. 49. 
 
 ' Serraino v. Campbell, L. R. 25 Q. B. Div. 501, affirmed in [1891] 1 Q. B. 283.
 
 156 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY- 
 
 The exception in a bill of lading, of "steam boilers, machinery, 
 or defects therein," inserted in the midst of a long enumeration 
 of various causes of damage, all the rest of which relate to mat- 
 ters happening after the beginning of a voyage, does not affect the 
 warranty of seaworthiness at the time of leaving port.' A clause 
 in a bill of lading excepting loss from "restraint of princes, rul- 
 ers, or people," and also from prolongation of the voyage "by 
 causes beyond the carrier's control," covers quarantine detention.* 
 An exemption from a shipowner's liability for injury to cargo by 
 negligence of persons in the service of the ship, whether "in 
 navigating the ship or otherwise," and loss or damage arising 
 from rain, storage, or contact with other goods, includes damage 
 to goods after being placed on board, by reason of negligently 
 exposing them to rain and contact with other wet goods. The 
 words "or otherwise" are not confined to damages in navigating 
 the ship, or something akin thereto.^ Bills of lading purporting 
 to exempt the owner from liability for "collision, . . . even 
 when occasioned by the negligence of the master or other serv- 
 ants of the shipowners," do not exempt from risks of damage 
 from all other vessels and other masters and servants of the same 
 owners, who had nothing to do with the contract of transporta- 
 tion.* 
 
 "Without such condition or where it is not recognized as valid,, 
 where a loss arises from collision, if his own vessel, or if both 
 vessels are at fault, the carrier is liable. If the other vessel is. 
 wholly or if their vessel is at all in fault, it is a "peril of the sea." 
 A carrier is liable unless exempted by contract.* "Blowing" as 
 an exception will protect the carrier from "blowing" of bilge 
 
 ' The Caledonia, 43 Fed. Rep. 681. 
 
 « The Bohemia, 38 Fed. Rep. 756. 
 
 ^ Norman v. Binnington, L. R. 25 Q. B. Div. 475. 
 
 4 The Brittannic, 39 Fed. Rep. 395. 
 
 * Converse v. Brainerd, 27 Conn. 607; Grill v. General Iron Screw Colliery Co. 
 L. R. 1 C. P. 600; Jones v. Pitcher, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 
 716; Whitesides v. Thurlkill, 12 Smedes & M. 599, 51 Am. Dec. 128; The 
 NeiD Jersey, Olcott, 444; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627; 
 Marsh v. BlytJie, 1 McCord, L. 360; Buller v. Fisher, 3 Esp. 67; Pcaisted 
 V. Boston & K. 8. Nav. Co. 27 Me. 132, 46 Am. Dec. 587.
 
 EFFECT OF EXCEPTION IN BILL. 157 
 
 water.' So, a loss from sweating or over-heating may be ex- 
 ■empted." "Leakage" which appUes to the cargo, is a proper 
 exemption, if there is no faihire on the part of the carrier in 
 properly stowing/ Leaking from other goods, however, and in- 
 juring a portion of the cargo, does not come within the exemp- 
 tion.* 
 
 ' East Tennessee, V. & O. R. Co. v. Wright, 76 Ga. 533. 
 
 » Wolff V. The Vaderland, 18 Fed. Rep. 733; The Portuense, 35 Fed. Rep. 670; 
 Matthiessen db W. Sugar Ref. Co. v. Gusi, 29 Fed. Rep. 794. 
 
 ^Hill V. Sturgeon, 28 Mo. 823; Marx v. The Britannia, 34 Fed. Rep. 906; 
 Evans v. tpreckels, 45 Fed. Rep. 265. 
 
 * Thrift V. Taule, L. R. 2 C. P. Div. 434.
 
 CHAPTER YL 
 
 "ACT OF GOD"— "PERILS OF THE SEA"— "FIRE CLAUSE "— 
 NEGLIGENCE— PRESUMPTIONS. 
 
 § 41. "Act of God," what Constitutes. 
 
 § 42. Inevitable Accident Not Resulting from Natural Causes. 
 
 § 43. "Perils of the Sea;" "Dangers of the River," "of Lalces,^' 
 
 "of Waters," or " of Navigation." 
 § 44. Wlien "Act of God" or other Inevitable Cause No Excuse. 
 § 45. "Fire Clause." 
 
 § 46. Statutory Provisions Regarding "Fire Clause." 
 § 47. Goods in Transit or Depot — "Fire Clause." 
 § 48. Negligence Defeats "Fire Clause." 
 § 49. Burden of Proof for Loss Under Exceptions. 
 
 § ^i. "Act of God," what Constitutes. 
 
 Such inevitable accidents as cannot be prevented by human 
 care, skill or foresight, but which result from natural causes, such 
 as lightning and tempest, floods and inundations, are termed the 
 acts of God." All causes of inevitable accident may be divided 
 into two classes, those which are occasioned by the elementary 
 forces of nature unconnected with the agency of man, whether in 
 acts of commission or omission, of nonfeasance or misfeasance, or 
 from any other cause independent of the agency of natural forces. 
 It is obvious that it would be altogether incongruous to apply the 
 term " Act of God " to the latter class of inevitable accidents. It 
 is equally clear that storm and tempest belong to the class to 
 wliich the term " Act of God " is properly applicable. An acci- 
 dent is an occurrence which happens unexpectedly from uncon- 
 trollable operations of nature alone, and without human agency, 
 
 ' Anderson, Law Diet. 23, citing McHenry v. Pliiladelphia, W. & B. R. Co. 4: 
 Harr. (Del.) 449; Chicago & N. W. R. Co. v. Sawyer, 69 111. 289, 18 Am. 
 Rep. 613; Fergusson v. Brent, 12 Md. 33, 71 Am. Dec. 582; T/ie Carlotta, 9 
 Ben. 6. 
 
 158
 
 "act of god," what constitutes. 159 
 
 or resulting undesignedly and unexpectedly from human agency 
 alone, or from the joint operation of both.' 
 
 While the act of God will excuse the nonperformance of a duty 
 created by law, it will not excuse a duty creaed by contract." 
 Where a duty is imposed upon a person by law, he will not be 
 absolved from liability for nonperformance occasioned by an act 
 of God, unless he has expressly stipulated for the exemption.' 
 There can be no question tliat a party may by an absolute con- 
 tract bind himself or itself to perform things which subsequently 
 become impossible, or pay damages for the nonperformance, and 
 such construction is to be put upon an unqualified undertaking, 
 where the event which causes the impossibility might have been 
 anticipated and guarded against in the contract, or where the im- 
 possibility arises from the act or default of the promisor. But 
 where the event is of such a character that it cannot be reasonably 
 supposed to have been in the contemplation of the contracting par- 
 ties when the contract was made, they will not be held bound by 
 general words, which, though large enough to include, were not 
 used with reference to the possibility of the particular contin- 
 gency which afterwards happens." 
 
 A common carrier is bound safely to carry the goods to their 
 destination, unless prevented by some cause arising from irresist- 
 ible force, over which he has no control and which cannot be 
 guarded against by the watchful exertion of human skill and pru- 
 dence.^ !N"o matter what degree of prudence may be exercised by 
 the carrier and his servants, although the delusion by which it is 
 battled, or the force by which it is overcome is inevitable, yet, if 
 it be the result of human means, the carrier is responsible.' 
 
 ' Morris v. Piatt, 33 Conn. 85. 
 
 2 Meriwether v. Lowndes County, 89 Ala. 362. 
 
 » Central Trust Co. v. Wabash, St. L. & P. R. Co. 31 Fed. Rep. 441. 
 
 * Chicago, M. & St. P. P. Co. v. Iloyt, 149 U. S. 1, 37 L. ed. 625. 
 
 " The Niagara v. Cordes, 62 U. S. 21 How. 24, 16 L. ed. 46; Gordon v. B^i- 
 
 chanan, 5 Yerg. 71; Oakley v. Port of Portsmouth & B. U. S. Packet Co 34 
 
 Eng. L. & Eq. 530. 
 
 *Mc Arthur v. Sears, 21 Wend. 196; Trent & M. Nav. Co. v. Wood 3 Esp 
 127; Camjibell v. Morse. 1 Harp. L. 468; Charleston cfc C. S. B. Co. v. Bason 
 1 Harp. L. 262; Tfie Niagara v. Cordes, 63 U. S. 21 How. 26, 16 L. ed 47* 
 See Read v. Spaulding, 30 N. 630, 86 Am. Dec. 426.
 
 160 "act of god" — "perils of the sea. 
 
 Denny v. N'ew YorTc Cent. B. Co. 13 Gray, 481, 74 Am. Dec. 
 645, is not against these cases, because the court there held that 
 when the damages by flood occurred, the defendants no longer 
 held the goods as common carriers. The expression " Act of 
 God " denotes natural accidents such as lightning, earthquake and 
 tempest, and not accidents resulting from the negligence of man. 
 There is a nicety of distinction between the act of God and in- 
 evitable necessity.' An earthquake is an act of God.' Carriers 
 by water are liable in all the strictness and extent of the rule un- 
 less the loss happens by one of the accepted perils, with no act of 
 negligence contributing thereto.' But where the injury can be 
 apportioned to each cause, this is done.'* Loss by flood or storm 
 is loss by the act of God, and a common carrier is ( xc ised when 
 damages result from this cause immediately.^ But delay by low 
 water will not excuse failure to deliver from loss by fire while the 
 goods are stored.* A snow storm of such violence as to prevent 
 the moving of trains is an act of God which will exempt a carrier 
 from liability for loss of or damage to property shipped, occa- 
 sioned thereby without the carrier's fault.'' A carrier is not re- 
 sponsible for delay on the voyage on account of disastrous weather 
 or adverse winds, low tides or the like, over which he has no con- 
 trol.' An unexpected freshet or inundation which causes delay 
 or loss is within the exception to the carrier's liability.' A storm, 
 
 ' Trent & M. Nav. Co. v. Wood, 3 Esp. 127; Coggs v. Bernard, 2 Ld. Raym. 
 
 909; Forward v. Piitard, 1 T. R. 27; Williams v. Grant, 1 Conn. 487, 7 
 
 Am. Dec. 235; Story, Bailm. §§ 511, 525. 
 "" Slater v. South Carolina R. Co. 29 S. C. 96. 
 3 The Costa Rica, 3 Sawy. 540; Gulf, C. & S. F. R. Co. v. McCorguodale, 71 
 
 Tex. 41; Spencer v. Daggett, 2 Vl. 92; Elliott v. Rossell, 10 Johns. 1, 6 Am. 
 
 Dec. 306; Kemp v. Coughtry, 11 Johns. 107; Mc Arthur v. Sears, 21 Wend. 
 
 193; Bills v. New York Cent. R. Co. 84 N. Y. 5; General Mut. Ins. Co. v. 
 
 Sherwood, 51 U. S. 14 How. 351, 14 L. ed. 452; Astrup v. Lewy, 19 Fed. 
 
 Rep. 536; Washington & G. R. Co. v. Varnell, 98 U. S. 479, 25 L. ed.233; 
 
 Story, Bailm. gg 497, 510, and notes. 
 *niinois Cent. R. Co. v. Owens, 53 111. 391. 
 
 » Memphis & C. R. Co. v. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909. 
 * Coxv. PeterKon, 30 Ala. 608, 68 Am. Dec. 145. 
 ''Black V. Chicago, B. & Q. R. Co. 30 Neb. 197; Memphis & C. R. Co. v. 
 
 Reeves, supra. 
 « Clark V. Barnwell, 53 U. S. 12 How. 272, 18 L. ed. 985. 
 ^Memphis & C. R. Co. v. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909; Wal-
 
 *' ACT OF GOD," WHAT CONSTITUTES. 161 
 
 flood or freshet, to constitute an act of Providence, need not be 
 unprecedented, if it is unusual, extraordinary and unexpected.' 
 A carrier which has provided a place for storage is not liable for 
 damage caused by a flood such as occurs but twice in a genera- 
 tion.^ The fact that such a flood had occurred once in each of 
 two preceding years, is not sufficient to make the carrier liable.^ 
 Losses occasioned by the freezing up of canals and rivers are to 
 be attributed to the act of God.* A collision, will not excuse the 
 loss of goods on the ground that it is an " Act of God."* Of 
 course, if the collision is caused by a tempest, it is the tempest to 
 which the loss must be attributed, and not the collision." But, a 
 rain of not unusual violence, and the result thereof, in the soften- 
 ing of the superficial earth, have not been so construed.' Sudden 
 ■deaths and illnesses have been held to be " acts of God." 
 
 lace V. Clayton, 42 Ga. 443; Denny v. Ne^o York Cent. R. Co. 13 Gray, 481, 
 74 Am. Dec. 645; Hoadley v. Northern Iransp. Co. 115 Mass. 304, 15 Am. 
 Rep. 1U6; Vickahurg & M. R. Co. v. Ragsdale, 46 Miss. 458; Read v. Spauld- 
 inq, 30 N. Y. 630, 86 Am. Dec. 426; American Exp. Co. v. Smith, 33 Ohio 
 St. 511, 31 Am. Rep. 561; Morrison v. Davis, 20 Pa. 171. 57 Am. Dec. 695; 
 Lipford V. Charlotte & S. C. R. Co. 7 Rich. L. 409; Nashville dk C. R. Co. v. 
 Damd, 6 Heisk. 261, 19 Am. Rep. 594; Nashville & C. R. Co. v. Jackson, 
 6 Heisk. 271. 
 > People V. Utiea Cement Co. 22 111. App. 159; Smyrl v. Niolon, 2 Bail. L. 421, 
 23 Am. Dec. 146; Faulkner v. Wright, 1 Rice, L. 107. 
 
 * Pearce v. The Thomas Neioton, 41 Fed. Rep. 106. 
 ^Norris v. Savannah, F. & W. R. Co. 23 Fla. 182. 
 
 * Bowman v. Teall, 23 Wend. 306; Parsons v. Hardy, 14 Wend. 215, 28 Am. 
 
 Dec. 521; Harris Y. Rand, 4 N. H. 259, 17 Am. Dec. 421; Crosby v. Fitch, 
 12 Coun. 410, 31 Am. Dec. 745. 
 
 ^ Ainiesv. Stevens, 1 Strange, 128; Plnisted v. Boston & K. 8. Nav. Co. 27 Me. 
 133, 46 Am. Dec. 587. 
 
 ^ Amies V. Stevens, supra. See Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 
 627. As to extraordinary floods, see Nashville & C. R. Co. v. King, 6 
 Heisk. 269; Memphis & C R. Co. v. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 
 909; Nashville & C. R. Co. v. David, 6 Heisk. 261, 19 Am. Rep. 594. Storms 
 of unusual violence, Blythe v. Denver & R. G. R. Co. 11 L. R. A. 615, 15 
 Colo. 333. For sudden tempests and snow storms, examine Black v. Chi- 
 cago, B. & Q. R. Co. 30 Neb. 197; Feinbcrg v. Delaivare, L. & W. R. Co. 52 
 N. J. L. 451 ; Chapin v. Chicago, M. St. P. R. Co. 79 Iowa, 582. For 
 severe frosts, consult Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; 
 Botrman v. Teall. 23 Wend. 306, 35 Am. Dec. 562; Harris v. Rand, 4 N. 
 H. 259, 17 Am. Dec. 421, and for ereat drouths, lightnings, earthquakes, 
 refer to Slater v. South Carolina R7 Co. 29 S. C. 96. 
 
 "> Oleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L. ed. 458; Smith v. 
 Shepherd, Abbott, Shipping, 383; Merritt v. Farle, 29 N. Y. 115, 86 Am. 
 Dec. 292. 
 
 11
 
 162 " ACT OF GOD " " PEKILS OF THE SEA." 
 
 § 4^. Inevitable Accident JYot Resulting from JVat- 
 ural Causes. 
 
 By unavoidable accident, in legal phraseology, is not meant an 
 accident which it was physically impossible in the nature of things 
 to prevent, but merely that it was not occasioned in any degree, 
 either remotely or directly, by want of care or skill, such as the 
 law holds every man bound to exercise.' It is an occurence 
 which was not anticipated by the parties when the contract was 
 entered into, and which gives an undue advantage to one of them 
 over the other in a court of law." 
 
 The definition limiting the term " accident " to the elementary 
 forces of nature, was objected to as too narrow by Judge Story, 
 who says that by the term " accident " is intended, not merely in- 
 evitable casualty or the act of Providence, or what is technically 
 vis major, or irresistible force, but such unforeseen events, mis- 
 fortunes, losses, acts or omissions as are not the result of any neg- 
 ligence or misconduct in the party affected thereby.' When a 
 casualty occurs which might have been prevented by the use of 
 known and proper means, it is not "inevitable" accident." An 
 " inevitable accident " is distinguishable from " an act of God," 
 as the colHsion of two vessels in the dark which is an " inevitable " 
 accident not resulting from natural causes but by the agency of 
 man/ " An opinion characterized by fine discrimination and by 
 accurate research."" Carriers are not liable for injuries arising 
 from inevitable accident.' An error of judgment in extremis is 
 not a fault.* A mere error of judgment in the excitement of a 
 
 ' Dygert v. Bradley, 8 Wend. 473, citing Wakeman v. Robinson, 1 Bing. 213. 
 
 ^ 3 Jeremy, Eq. Jur. pt. 2. 
 
 ^1 Story, Eq. § 78, criticised in 2 Pom. Eq. 823, wiiere it is defined as follows: 
 "It is an unforeseen and unexpected event, occurring externally to the 
 party affected by it, and of which his own agency is not the proximate 
 cause." 2 Pom. Eq. 285; Smith, Eq. Jur. 36; Kopper Y.Dyer, 59 Vt. 477, 
 59 Am. Rep. 742. 
 
 * Ladd V. Foster, 31 Fed. Rep. 827. 
 
 » Alliance Ins. Co. v. The Morning Light, 69 U. S. 2 Wall. 560, 17 L. ed. 864; 
 
 Fergunson v. Brent, 12 Md. 33, 71 Am. Dec. 582. 
 6 1 Smith, Lead. Cas. 413. 
 ' See note to Palmer v. Pennsylvania Co. (N. Y.) 2 L. R. A. 252. 
 
 • Tlie Osceola, 33 Fed. Rep. 719.
 
 "perils of the sea, "dangers of the river, etc. lU'd 
 
 peril in extremis, the peril being caused by the other vessel, is not 
 a fault." The defense of inevitable accident set up as the cause 
 of a collision implies that the accident was not avoidable by the 
 exercise of all reasonable precautions, adequate to the emergency." 
 Where a steam tug had caught upon a gas pipe negligently ex- 
 posed on the bottom of a river, the waters of which were rapidly 
 falling, endangering the safety of a vessel, and the opinion of ex- 
 perienced persons employed by the vessel, apprehended danger 
 in the attempt to ward the vessel off the obstacle, they were not 
 to be held responsible for a mere mistake of judgment.^ Collision 
 between two schooners sailing in thick foggy weather with a fresh 
 wind from the southwest, both maintaining a vigilant lookout and 
 frequent signals by horn, and both having the same general course, 
 and being closehauled, one being at the time on her starboard 
 tack headed southeast by south and the other on her port tack 
 headed southwest, neither being able to see or hear the other till 
 immediately before the collision, when they both acted promptly 
 and came to the starboard — is inevitable accident.* Where the 
 lookout of respondent who ran into a vessel having the right of 
 way divided his attention between looking out and reefing sail, 
 respondent's plea of inevitable accident should not be sustained.^ 
 
 § Jf3. ''Perils of the Sea;" ''Dangers of the Fdver," 
 " of Lakes," "of Waters," or " of JVavigation." 
 
 The common law liability is usually limited by the contract 
 contained in the bill of lading, and " perils of the sea," " dangers 
 of the sea," or " dangers of rivers or of the lakes or of water or 
 of navigation," which are held the same in their effect are usually 
 excepted." " Perils of the sea " includes such losses only as are 
 
 ' The City of Springfield, 29 Fed. Rep. 923. 
 
 5 The Kacoochee, 24 Blatclif. 99, 28 Fed. Rep. 463. 
 ' Omslaer v. PhiUidelphui Co. 31 Fed. Rep. 354. 
 
 * The Rebecca Shepherd, 32 Fed. Rep. 926. 
 
 6 The Tireniy-one Friends, 33 Fed. Rep. 190. 
 
 * Story, Bailm. §^ 512 et seq.; Bastings v. Pepper, 11 Pick. 41; ReU v. Feed, 4 
 
 Binn. 127; HoUingsworth v. Brodrick,! Ad. & El. 50; Jones v. Pitcher, 3 
 Stew. & P. (Ala.) 135, 24 Am. Dec. 716; Gordon v. Buchanan, 5 Yerg. 71; 
 Fairchild v, Slocum, 19 Wend. 329, 7 Hill, 292; Baxter v. Leland 1 Abb 
 Adm. 348.
 
 164 "act of god" — "perils of the sea." 
 
 of an extraordinary nature or arise from irresistible force or from, 
 some overwhelming power which cannot be guarded against bj 
 the ordinary exercise of skill and prudence." Of course the car- 
 rier may render himself liable for all such inevitable accidents by 
 contract.'' Bnt these words are evidently of broader compass 
 than the words, " Act of God," and although it was supposed, by 
 a very learned judge, that they were but commensurate;^ and, 
 therefore, whatever was a peril of the sea, would excuse the car- 
 riers acting under his general liability, yet, it is evident, under 
 the authorities, that they are not always so. The distinction was 
 adverted to, but not much examined by Story, J., in The Reeside, 
 2 Sumn. 571. But perils of the sea do not include tlie violence of 
 mobs and depredators, other than pirates, or loss from theft, em- 
 bezzlement or robbery, whether conjmitted by strangei's, or by 
 the crew or passengers,* and the collision of ships without the 
 fault of either party.^ 
 
 Where a collision occurs without the fault of the carrier, he is 
 entitled to avail himself of the loss resulting to his cargo, under 
 the term "dangers of navigation. "° The exceptions of the "dan- 
 gers of the river" include risks arising from natural accidents 
 peculiar to the river, which do not happen by the intervention of 
 man, nor are to be prevented by human prudence; and have been 
 extended to comprehend losses arising from some irresistible force 
 or overwhelming power, which no ordinary skill could anticipate 
 or evade. They exonerate the carrier from a liability for a loss 
 arising from an attack of pirates, or from a collision of ships 
 
 ' 3 Kent, Com. 299; Story, Bailm. § 512, a; The Beeside, 2 Sumn. 567; Potter 
 V. Suffolk Ins. Co. 2 Sumn. 197; Waters v. Merchants Louisville Ins. Co. 36 
 U. S. 11 Pet. 213, 9 L. ed. 691; Croxby v. Fitch, 12 Conn. 410, 31 Am. Dec. 
 745 ; Fairchild v. Slocum, 19 Wend. 329 ; Hazard v. Neic England M. Ins. Co. 1 
 Sumn. 218, 33 U. S. 8 Pet. 557, 8 L. ed. 1043; Colt v. McMechen. 6 Johns. 
 160, 5 Am. Dec. 200. For the distinction between "perils of the sea" and 
 "acts of God," see Me Arthur v. Sears, 21 Wend. 190, 198; Dibble v. Morgan, 
 1 Woods, 407. 
 
 « Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695. 
 
 ^Gould, J., in Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235. 
 
 * The Gold Ilnnter, 2 Blatchf. & H. 300; King v. She^yherd, 3 Story, 349; Pick 
 
 ering v. Barkley, Style, 132, 2 Ilolle, Abr. 248. 
 ' Hays V. Kennedy. 41 Pa. 378, 80 Am. Dec. 627. 
 
 * Bays V. Kennedy, supra; The Garston Co. v. Ilickie, L. R. 18 Q. B. Div. 17; 
 
 TheXantho, L. R. 12 App. Cas. 503; Duller v. Fisher, 3 Esp. 67.
 
 "perils of the sea," "dangers of the river," etc. 105 
 
 vrlien there is no negligence on the part of the master or crew. 
 Latterly, the courts have shown an indisposition to extend the 
 comprehension of these words. The destruction of a vessel by 
 worms at sea, is not accounted a loss by the "perils of the sea," 
 nor was a damage by bilging arising in consequence of the insuf- 
 ficiency of the tackle for getting her from the dock; — nor was 
 damage arising to the vessel by her props being carried away by 
 the tide, while she was undergoing repairs on the beach, excused, 
 as falling under that exception.' "Dangers of the river" only 
 excepted among natural accidents, extend to river navigation.* 
 "Perils of the sea" include such losses only to the goods on board 
 as are of an extraordinary nature or arise from some irresistible 
 force, or from some overwhelming power which could not be 
 guarded against by the ordinary exercise of human skill and pru- 
 dence.' By "dangers of navigation," or "unavoidable dangers of 
 navigation," in a bill of lading, are meant latent dangers, and not 
 such as are or ought to be patent dangers which could be avoided 
 by skill and foresight.' The exception, in a bill of lading, of 
 "dangers and accidents of the seas, rivers, and navigation, of 
 whatsoever nature and kind," covers only such losses as are of an 
 extraordinary nature, or arise from some irresistible force which 
 cannot be guarded against by the ordinary exertion of human 
 skill and prudence.^ An exception, in the bill of lading, of perils 
 of the sea or other specific perils, does not exempt the carrier 
 from liability for loss or damage from one of those perils, to 
 which the negligence of himself or his servants has contributed.' 
 After all proper eifort to save life has been made, the safety of 
 the cargo is the master's or carrier's duty.' The exception in- 
 
 ' GarHson v. MempJiis Im. Co. 60 U. S. 19 How. 312, 15 L. ed. 656. 
 
 2 Williams v. Branson, 5 N. C. 417, 4 Am. Dec. 562. 
 
 ^ The Reeside, 2 Sumn. 567; Potter v. Suffolk Ins. Co. 2 Sumn. 197; HoUings- 
 
 worth V. Brodrick, 7 Ad. & El. 40; Waters v. Merchants Louisville Ins. Co. 
 
 36 U. S. 11 Pet. 213, 9 L. ed. 691. 
 
 * Costigan v. Michael Transp. Co. 33 Mo. App. 269, 38 Mo. App. 219. 
 
 * Richelieu & 0. Nav. Co. v. Fortier, 5 Mont. L. Rep. (Q. B.) 224. 
 
 ^ Liverpool & G. W. Steam Co. y.PhenixIns. Co. {"The Montana") 129 U. S. 
 
 397, 32 L. ed. 788. 
 ' Tamer v. Protection Ins. Co. 25 Me. 515, 43 Am. Dec. 294; Sherman v. In- 
 
 rnan SS. Co. 26 Hun, 107; The Portsmouth v. Onondaga Salt Co. 76 U. S. 9 
 
 Wall. 682, 19 L. ed. 754.
 
 166 "act of god" — "perils of the sea." 
 
 eludes only the dangers or accidents of the sea or navigation prop- 
 erly so-called, — that is, one caused by the violence of the winds 
 and waves, a vis major, acting upon a seaworthy and substantial 
 ship, — and does not cover damages by rats, which is a kind of 
 destruction not peculiar to the sea or navigation, but one to which 
 such a commodity as cheese is equally liable in a warehouse on 
 land as in a ship at sea.' 
 
 It may be stated generally, that the "dangers of navigation" 
 include winds, lightning, shoals, rocks, collisions and waves — 
 whether the natural motion of the water under tide, or storm, or 
 caused by a passing vessel, — against which the skill of the navi- 
 gator caimot guard.'' Where a carrier, in order to land his cattle, 
 places them after the customary manner, secured on a lighter, 
 tieing them in the usual manner, — and the cattle become fright- 
 ened and break away, and some of them perish, such loss is cov- 
 ered by an exception in the bill of lading — "peril of the sea."^ 
 
 An important decision has been rendered in the United States 
 circuit court, March, 1894, by Judge Shipman touching the lia- 
 bilities of a steamship company and common carriers generally 
 for the baggage of passengers that may be damaged in transit 
 through no fault of the passenger. The baggage of plaintiffs was 
 stored in a forward compartment in the ship Majestic, and on the 
 way over the glass in the portholes of that compartment was 
 smashed and the salt water got in and damaged the baggage of 
 the plaintiffs who were passengers. They recovered a judgment 
 for $2824 in the United States district court, and the case came 
 before the circuit court on appeal by the "White Star Company. 
 The company claimed inmiunity, under the ordinary ticket con- 
 tract, from liability to a greater amount than £10. Everybody 
 who has ever ridden on railroad trains or steamships is more or 
 less familiar with the conditions printed on the ticket under 
 which the selling company disclaims liability, and it has been gen- 
 erally understood that these conditions were merely formal and 
 would not hold, especially in a case where neglect on the part of 
 
 ' Garrison v. Memphis Ins. Co. 60 U. S. 19 How. 313, 15 L. ed. 056. 
 » Oralutm v. Davis, 4 Ohio St. 363, 63 Am. Dec. 285. 
 * Anthony V. JEtnalns. Co. 1 Abb. (U. S.) 343.
 
 " PERILS OF THE SEA," " DANGERS OF THE RIVER," ETC. 167 
 
 the company was shown. The tickets on which the plaintiffs 
 traveled were purchased in England by the father who is himself 
 a frequent traveler. On the voyage to this country the Majestic 
 passed through wreckage, and the probability was that the glass 
 was smashed by some of this wreckage being dashed against it. 
 The district court, in awarding damages, held that the fact that 
 the steamship did not slow up while passing through this wreck- 
 age constituted an act of negligence. Judge Shipman reversed 
 that opinion, and held that the meeting of the wreckage came 
 under the "peril of the sea" clause of all carrying contracts. "It 
 was an unanticipated peril of the sea," he said. "If such an injury 
 could have been anticipated the speed of the ship should have 
 been slackened, but it is apparent that the injury was of such an 
 extraordinary character that the probability of taking such pre- 
 cautions to avoid it would not naturally have occurred to the 
 mind,"' 
 
 The carrier must furnish a seaworthy vessel, well equipped, 
 and suitable for the purpose for which it is employed, and he is 
 responsible for damages arising from failure to do so.^ But the 
 words " inevitable dangers of the sea," as affecting the liability of 
 the carrier, may be varied by proofs of usage, ^ and it has been held 
 that if there be no default in the cari'ier the loss occasioned by 
 rats at sea comes within the perils of the sea." But a vessel 
 which did not take the usual and necessary precautions against 
 damage by rats to a cargo known to be liable thereto, during a 
 voyage of ordinary duration in which only the customary stops 
 were made, is liable for extraordinary damage thereto, notwith- 
 standing exceptions in the bill of lading as to vermin and negli- 
 gence.* Indeed, damage to a cargo of cheese, occasioned by rats 
 is not within the exception of the dangers or accidents of the sea 
 
 ' Potter V. Tlie Majestic, 23 L. R. A. 746, 60 Fed. Rep. 625. 
 
 ^Bell V. Reed, 4Binn. 127, 5 Am. Dec. 398; Clark v. Richards, 1 Conn. 54; Day 
 
 V. Ridley, 16 Vt. 48, 42 Am. Dec. 489; Kellogg v. La Crosse & M. Packet Co. 
 
 3 Biss. 496; TJie NortJiern Belle v. Robson. 76 U. S. 9 Wall. 526, 19 L. ed. 
 
 748. 
 *Adam v. Hay, 7 N. C. 149. 
 
 * Garrigues v. Coxe, 1 Binn. 592, 2 Am. Dec. 493. 
 
 * The Timor, 46 Fed. Rep. 859,
 
 168 "act of god" — "perils of the ska." 
 
 or navigation, witliin the usual acceptation of the terms.* If goods 
 are gnawed bj rats or cockroaches, carrier is liable, or if rats 
 gnaw a hole in vessel causing it to leak/ A loss occasioned by 
 worms is not a peril of the sea.' A stipulation in a bill of lading, 
 exempting the shipowner from liability for damage or loss by 
 vermin, or from any act, neglect, etc., of the officers or crew, will 
 not relieve the shipowner from liability for injuries by rats, re- 
 sulting from neglect to fumigate the ship before loading the 
 cargo.* Cuts in drums of glycerine shipped, through which a 
 portion of the glycerine escapes, in consequence of long continued 
 heavy weather on the voyage, are sea perils for which the ship 
 is not liable where the bill of lading excepts such perils.^ Sweat- 
 ing of bags of sugar, is a peril of the sea.* Shipping water come& 
 within this exemption as a " peril of the sea.'" If goods are prop- 
 erly stowed, injury caused by the motion of the boat is also a 
 " peril of the sea."* Damages to cotton thread put up in boxes 
 caused by dampness without negligence or lack of proper precau- 
 tionary measures on the part of the carrier, must be attributed to 
 dangers of the sea." 
 
 "Where the contract of a bill of lading was that the goods should 
 be delivered in good order, dangers of the sea excepted, sweating 
 produced in consequence of negligence in stowage, is not one of 
 the dangers of the sea. Leakage and diminution owing to exist- 
 ing but not apparent causes, are not wdthin the risks guaranteed 
 against by the bill of lading.'" A fire, though accidental and with- 
 out fault of the owners, is not within the exception of the dan- 
 
 > Laveroni v. Drury, 8 Exch. 166. 
 
 ''Aymar v. Astor, 6 Cow. 266; Kay v. Wheeler, L. R. 2 C. P. 302; Laveroni v. 
 
 Drury, 8 Exch. 166, 16 Eng. L. & Eq. 510; Westray v. Miletus, 2 lut. Rev. 
 
 Rec. 61 ; Dale v. Ilall, 1 W ils. 281 ; Garrigues v. Coxe, 1 Binu. 592, 2 Am. 
 
 Dec. 493; Hunter v. Potts, 4 Campb. 203. 
 2 Martin v. Salem Ins. Co. 2 Mass. 421; DePeyster v. Columbian Ins. Co. 2 Cai. 
 
 85. 
 
 * Stevens v. Navigazione Generate Italiana, 39 Fed. Rep. 562. 
 
 * The Trinacria, 42 Fed. Rep. 863. 
 
 8 Matthiessen & W. Sugar Ref. Co. v. Gusi, 29 Fed. Rep. 794. 
 ■> The Chasca, 23 Fed. Rep. 156. 
 
 8 Christie v. The Craigton, 41 Fed. Rep. 62. 
 
 9 Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985. 
 ^'^ Nelson v. Woodruff, 66 U. S. 1 Black. 156, 17 L. ed. 97.
 
 "perils of the sea," "dangers of the kiver," etc. 169 
 
 gers of the river in a bill of ladinor.' The explosion of a steam 
 boiler is not a peril witliin the exception of dangers of navigation 
 in the bill of lading.^ Live stock injured solely through the effect 
 of a storm will not render tlie carrier liable.' The breaking of a 
 rope, either attaching the vessel to a dock, or a tiller rope, comes 
 within the exemption of a " peril of the sea," or " unavoidable 
 danger of navigation." * A collision caused by a tempest, is a 
 loss by the " perils of the sea." ' A carrier will not be answer- 
 able for goods thrown overboard to lighten the ship and boat, and 
 preserve life where the necessity arises." But if this is done as 
 the result of negligence, without necessity, or imprudently or 
 rashly, the master will be liable,' and he may so contract and not 
 subject the ship to general average.'* 
 
 A ship is not liable for damage at sea to a cargo of tea stored 
 in a watertight compartment, from water entering around a bolt 
 holding a stanchion, which is not due to any original fault of con- 
 struction, because of the bolt beconiing worn upon the breaking 
 of another bolt, and the bending of the stanchion in heavy 
 weather, where those in charge of the ship are not negligent in 
 not seasonably discovering the water and removing it from the 
 hold." The inflow of water through a leak occasioned by the 
 working loose of a rivet in the foot of a bulwark stanchion is a 
 peril of the sea and an accident of navigation, within the mean- 
 ing of a charter party and bill of lading excepting those perils 
 and accidents " even when occasioned by the negligence " of the 
 master ; and therefore the shipowner, under the English or JS^ew 
 
 ' Garrison v. Memphis Ins. Co. 60 U. S. 19 How. 312, 15 L. ed. 656. 
 2 Barren v. The Mohawk, 75 U. S. 8 Wall. 153, 19 L. ed. 406; Caldwell v. Kew 
 Jersey S. B. Co. 56 Barb. 425. 
 
 * Gabay v. Lloyd, 3 Barn. & C. 793; Lawrence v. Aberdein, 5 Barn. & Aid. 107. 
 
 * Laurie v. Douglas, 15 Mees. & W. 746; The Morning Mail, 17 Fed. Rep. 545. 
 
 * The Bergenseren, 36 Fed. Rep. 700; Lawrence v. Minturn, 58 U. S. 17 How. 
 
 100, 15 L. ed. 58; Giliett v. Ellis, 11 111. 579. 
 
 * Mouse's Case, 12 Coke, 63; BarcrofVs Case, cited xnEenrig v. Eggleston, Aleyn, 
 
 93; Smith v. Wright, 1 Cai. 43, 2 Am. Dec. 162. 
 ' The Bergen Seven, 36 Fed. Rep. 700; Bird v. Asitcock, 2 Bnlst. 280; BarcrofVs 
 Case, supra; Giliett v. Ellis, 11 111. 579, 2 Hurlst. Abr. 517, 520, 531. 
 
 * The Enrique, 5 Hughes, 275. 
 9 The Exe, 57 Fed. Rep. 399.
 
 170 "act of god" — "perils of the sea." 
 
 York and perhaps West Yirginia rule, is not liable for damage 
 caused by the leakage or the master's negligent failure to stop it.' A 
 loss occasioned by the sudden change of wind, there being no lack 
 of prudent care, will excuse the carrier as a loss by the act of God." 
 The result of storms and tempests in causing a ship to spring a 
 leak or to ship a sea resulting in damage to the cargo, comes 
 within the phrase " perils of the sea."^ A stipulation in a bill of 
 lading given by a steamship company, for its exemption from lia- 
 bility for damage occasioned by " blowing," as well as by other 
 " perils of the seas," is binding upon a consignee receiving it." If 
 a vessel is obliged to use extraordinary^ press of sail in a gale of 
 wind in following her tow, the injury to her cargo may be said to 
 be caused by one of the perils of the sea.* So the stranding of a 
 vessel comes within this exception.* "Where a vessel was negli- 
 gently run ashore, and, a storm coming on, was voluntarily 
 scuttled to save her from total loss, and other general average ex- 
 penses were subsequently incurred, the stranding, and not the 
 storm, was the proximate cause of the loss ; and the loss was 
 within an exception in an insurance policy against want of ordi- 
 narv care." The clause in a bill of lading, that the carrier shall 
 not be responsible for loss or damage by the perils of the sea, 
 arising from the negligence of the master and crew of the ship, 
 do not relieve him from such responsibility, except in New York 
 or in English courts.* If the master be not guilty of want of 
 prudence or skill he will not be answerable for the loss of his ship 
 from striking on a hidden rock, the existence of which was not 
 generally known.' An obstruction which has suddenly appeared 
 in navigable waters comes within the exception of the " dangers of 
 
 ' The Cressington [1891] Prob. 152. 
 
 « Colt V. McMechen, 6 Johns. 160, 5 Am. Dec. 200. 
 
 3 1 Bell. Com. 560. §501. 
 
 * East Tennessee, V. & G. R. Go. v. Wright, 76 Ga. 533. ifp 
 
 ^ Ilaf/edorn v. Whitmore, 1 Stark. 157. • 
 
 « Liverpool & Q. W. Steam Co. v. Phenix Ins. Co. (" T/ie Montana") 129 U. 
 
 S. 397, 32 L. ed. 788. 
 1 The Ontario, 37 Fed. Rep. 220. 
 
 ^Liverpool & Q. W. Steam Co. v. Phenix Ins. Co. (" The Montana") supra. 
 » Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235.
 
 '' PERILS OF THE SEA, " DANGERS OF THE RIVER, ETC. 171 
 
 navigation.'" And if, without fault, a ship should be run aground 
 and wrecked, this provision in the bill of lading, will protect the 
 carrier." "When the contract in a bill of lading, that the goods 
 are to be delivered at New Orleans without delay, contains an ex- 
 ception of the dangers of navigation and unavoidable accidents, 
 and the goods are lost by the vessel striking an unseen obstruc- 
 tion and sinking, the loss occurs through a danger of navigation, 
 if the navigation is in its course according to the usage of the 
 trade." 
 
 The term " dangers of lake navigation," in a bill of lading, in- 
 clude perils from shallowness of water at the entrance to a harbor; 
 but where the danger might have been avoided by proper care 
 and skill, the loss should be attributed to the negligence of the 
 carrier, notwithstanding the exception in the bill of lading.* A 
 loss from a mistake of port and attempting to enter at night in- 
 stead of remaining on the lake till morning, is the result of the 
 fault of the carrier and not a danger of lake navigation.^ If a 
 ship properly moored in a harbor strikes hard on the bottom from 
 the swell or reflux of the tide, and her knees are injured, and the 
 cargo damaged, the loss comes within the expected " perils of the 
 sea." * The sinking of a steamer at the entrance of a canal, on a 
 calm, clear night, is not included in an exception of dangers and 
 accidents of the seas, etc.^ A loss occasioned by pirates, falls 
 within " perils of the sea.* All vessels employed in transporting 
 goods from port to port, are carriers and, as such, liable for the 
 safe custody, due transport and right delivery of the goods. 
 Nothing can discharge them from the undertaking specified in 
 the bill of lading but the unanticipated perils of the sea or the act 
 
 ^ BediMthv. Vauglian, 52 Barb. 489; Gordon v. Buchanan, 5 Yerg. 71; Chou- 
 tenux V. Leech, 18 Pa. 224, 57 Am. Dec. 602. 
 
 ' The Juniata Paton, 1 Biss. 15. 
 
 ^Eost€tter\. Park, 137 U. S. 30, 34 L. ed. 568. 
 
 * Western Transp. Go. v. Doicner, 78 U. 8. 11 Wall. 129, 24 L. ed. 160. 
 
 » The Portsmouth v. Onondaga Salt Co. 76 U. S. 9 Wall. 682, 19 L. ed. 754. 
 
 'Fletcher v. Inglis, 2 Barn. »& Aid. 315; Kingsfordv. Marshall, 8 Bing. 458; 
 Potter V. Suffolk Ins. Co. 2 Sumn. 197. 
 
 ''Richelieu & 0. Nav. Co. v. Fortier, 5 Mont. L. Rep. (Q. B.) 224. 
 
 «3 Kent, Com. 216; Oage v. Tirrell, 9 Allen, 299, 310; Pickering v. Bark- 
 ley, 2 Rolle, Abr. 248, Style, 132; Barton v. Walliford, Comb. 56.
 
 172 "act of god" — "perils of the sea." 
 
 of God or the public enemy/ Under a contract to deliver a cargo 
 safely, the perils of the sea only excepted, nothing will excuse the 
 carrier for a non-performance except he has been prevented by 
 some one of those perils, the act of libelants or the law of the 
 countr3\ They are responsible for the miscarriage of their mas- 
 ter or agent/ 
 
 § Jf4- ^^f^^T^ ''Act of God" or other Inevitcible 
 Cause no Excuse. See also § 73. 
 
 The fact that the loss was caused by some " vis major,'''' as by 
 a flood, is sufficient, without affirmative proof that the carrier was 
 not guilty of negligence, and this may be shown under a general 
 denial.^ It is not essential to the exemption of a carrier from 
 liability for the loss of or injury to goods during their transporta- 
 tion, that the damages result solely from any one of the excep- 
 tional causes, such as the act of God or a public enemy, or the 
 sole fault of the owner, it not being liable if two or all of such 
 causes combine to produce the injury, if the carrier itself is with- 
 out fault.'' On the other hand, it must be admitted that it is not be- 
 cause an accident is occasioned by the agency of nature, and there- 
 fore by what may be termed " act of God," that it necessarily 
 follows that the carrier is entitled to immunity \" the rain which 
 fertilizes the earth and the wind which enal)les the ship to navi- 
 gate the ocean, are as much within the term " act of God " as the 
 rainfall which causes the river to burst its banks and carry de- 
 struction over the whole district, or the cyclone, which drives a 
 ship against a rock and sends it to the bottom. Yet the carrier,, 
 who, by the rule, is entitled to protection in the latter case, would 
 clearly not be able to claim it in case of damage occurring in the 
 former. The exception of perils of the sea does not exonerate 
 
 ^La Tourette v. Burton, 68 U. S. 1 Wall. 43, 17 L. ed. 609; Oermania Ins. 
 
 Co. V. The Lady Pike, 88 U. S. 21 Wall. 1, 23 L. ed. 409. 
 ^Howland v. Greenwuy, 63 U. S. 22 How. 491, 16 L. ed. 391. 
 ^ Davis Y. Wabash, St. L. & P. R. Co. 89 Mo. 849; Memphis & G. R. Co. v. 
 
 Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909. 
 * McCarthy v. Louisville & N. R. Co. (Ala.) 14 So. 370. 
 ^Sirouss V. Wabash, St. L. & P. R. Co. 17 Fed. Rep. 209.
 
 WHEN "act of god" NO EXCUSE. 173 
 
 the shipowner from liability for loss or damage from one of those 
 perils, to which his negligence or that of his servants contributed.' 
 For another principle may be involved. The carrier is bound to 
 do his utmost to protect the goods committed to his charge, from 
 loss or damage, and if he fails herein, he becomes liable, from the 
 nature of his contract. In the one case, he can protect the goods 
 by proper care, in the other, it is beyond his power to do so. If, 
 by his default in omitting to take the necessary care, loss or dam- 
 age ensues, he remains responsible, though the so-called " act of 
 God" may have been the immediate cause of the mischief.^ 
 
 The fact that a carrier is not liable for damage to goods caused 
 by a flood, will not exempt it from liability for negligence in fail- 
 ing to dry them, especially where it had refused to surrender 
 them to the owner on his demand.^ And a common carrier is 
 entitled to reimbursement in case that flood, storms, or the like, 
 require immediate expense for the preservation of his cargo/ 
 Failure to examine the cargo under the after hatches of a vessel, 
 after notice of the damage to the cargo under the forward hatches 
 by collision, is negligence attributable to the carriers, which will 
 render them liable for such subsequent damages, as proceed from 
 the lack of examination and reconditioning of the cargo under 
 the after hatches, which had in fact been damaged by such col- 
 lision." A railway company is liable for the destruction of so 
 much of a carload of wheat as it could have saved by ordinary 
 care and diligence, where, although the car was partly submerged 
 in water by a flood or freshet, a part of the wheat was above 
 water and could have been saved if removed before it became 
 damp.* Under the Georgia statute, a carrier is bound to exercise 
 extraordinary diligence in protecting from damage by flood, while 
 they are in his cars or warehouse, goods which arrive too late to 
 
 1 Bradley Fertilizer Co. v. TJie Edwin I. Morrison, 153 U. S. 199, 08 L. cd. 
 
 688. 
 » Gleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L, ed. 458. 
 
 ^Pearcev. The Thomas Newton, 41 Fed. Rep. 106. 
 
 * The Oratitudine, 3 C. Rob. Adm. 255, 258. 
 
 « TJie Guildhall, 58 Fed. Rep. 796. 
 
 <> Baltimore <& 0. B. Co. v. Eeedy, 75 Md. 320, 49 Am. & Eng. R. Cas. 124.
 
 174 "act of god" — "perils of the sea." 
 
 give the usual notice to the consignee before the flood occurs, but 
 ife excused if they were damaged in spite of such diligence.' 
 
 A carrier is negligent if he fails to take precaution against such 
 rise of high water, as is usual and ordinary, and reasonably to be 
 expected at certain seasons of the year,* or if he attempt to cross 
 a stream or river when a rise is to be expected immediately.' So, 
 while the sudden failure of the wind is an "act of God," there is 
 a degree of negligence imputable to the master in sailing so near 
 the shore, under a light variable wind, that a failure in coming 
 about would cast him aground. And, in the same way, the mas- 
 ter may incur liability by bringing his ship under the influ- 
 ence of the tide." Or in putting to sea in the face of a plainly 
 impending storm, or any act which plainly incurs a needless peril 
 from the elements.* Common carriers are only to be excused 
 from losses happening in spite of all human effort and sagacity.* 
 Xo one is responsible for the act of God, or "inevitable accident,'* 
 except where human agency is combined with it, and neglect oc- 
 curs in tlie employment of such agency.' Where the master of a 
 wrecked vessel abandons her to the underwriters without the ex- 
 ercise of due diligence to save the cargo, the fact that the under- 
 writers take possession, and sell a part of the cargo which is not 
 insured, does not exempt the carrier from liability to the shi23per 
 for his loss.* The liability of a vessel for the sale by the master 
 of cargo at a port of refuge, is to be determined by the law of the 
 flag carried by the vessel. Under German law, a vessel is not lia- 
 ble for cargo sold at a port of refuge by»the master in the honest 
 belief that it is in the best interests of the owners, after taking 
 
 ' Richmond & D. B. Co. v. White, 88 Ga. 805. 
 
 ' Ewart V. Street, 2 Bail. L. 157. 23 Am. Dec. 131; Moffat v. Strong. 10 Johns. 
 12; New Brunswick, S. B. & 0. Transp. Co. v. Tiers, 24 N. J. L. 697, 64 
 Am. Dec. 394; OreatWesterA R. Co. v. Braid, Moore, P. C. N. S. 101. 
 
 2 Campbell v. Morse, 1 Harp. L. 468. 
 
 * Charleston & C. 8. B. Co. v. Bason, 1 Harp. L. 262. 
 
 ^Wolf^. American Exp. Co. 43 Mo. 423, 97 Am. Dec. 406. 
 
 « Kent, Ch. J., in Colt v. McMechen, 6 Johns. 160, 5 Am. Dec. 200; Amies v. 
 
 Stevens, 1 Strange, 128. 
 1 Chidester v. Consolidated Ditch Co. 59 Cal. 202. 
 *Bixby V. Dumar, 54 Fed. Rep. 718.
 
 WHEN "act of god" NO EXCUSE. 175 
 
 the best advice he can get on the spot.* Where a casualty occurs 
 which might have been prevented by the use of known and proper 
 precautions against the danger, it is not inevitable accident.'' A 
 carrier of goods is bound to use extraordinary diligence, both to 
 avoid needlessly exposing the goods to injury or destruction by 
 an unforeseen act of God, and to use measures for their protec- 
 tion and preservation after the peril has become apparent, under 
 Ga. Code, § 2066.^ An exception, in the bill of lading, of perils 
 of the sea or other specified perils, does not excuse him from that 
 obligation, or exempt him from liability for loss or damage from 
 one of those perils, to which the negligence of himself, or his 
 servants, has contributed." 
 
 If the ship is unseaworthy, and hence perishes from the storm, 
 which it otherwise would have weathered, — if the carrier, by un- 
 due deviation or delay exposes himself to the danger which he 
 otherwise would have avoided or if, by his rashness, he unneces- 
 sarily encounters it — as by putting to sea in a raging storm, — the 
 loss cannot be said to be due to the act of God alone, and the 
 carrier cannot have the benefit of the exception. Tliis being 
 granted, the question arises as to the degree of care which is re- 
 quired of him, to protect him from liability in respect of loss aris- 
 ing from the "act of God;" and if he uses all the known means 
 which prudent and experienced carriers ordinarily have recourse 
 to, he does all that can be reasonably required of him, and if, 
 under such circumstances, he is overpowered by a storm or other 
 natural agencies, he is within the rule that gives immunity from 
 such vis majo/', as the "act of God."" If, while the carrier is in 
 
 > The August [1891] Prob. 328. 
 
 » Ladd V. Foster, 31 Fed. Rep. 827. 
 
 '^Richmond & D. R. Co. v. White, 88 Ga. 805. 
 
 * New Jersey Steam Nav. Co. v. Merchant's Bank of Boston, 47 U. S. 6 IIow. 844, 
 12 L. ed. 465; United States Exp. Co. v. Kountze, 75 U. S. 8 Wall. 343, 19 
 L. ed. 457; Western Transp. Co. v. Downer, 78 U. S. 11 Wall. 129, 20 L. ed. 
 160; Orill. v. General Iron Screw Colliery Co. L. R. 1 C. P. 600, L. R. 3 C. P. 
 476; TheXantho. L. R. 12 App. Cas. 503, 510,515. 
 
 ^Nugent v. Smith, L. R. 1 C. P. Div. 423; Black v. Chicago, B. & Q. R. Co. 30 
 Neb. 197; Gillespie v. St. Louis, K. C. & N. R. Co. 6 Mo. App. 554; Morri- 
 son V. Davis, 20 Pa. 171, 57 Am. Dec. 695; Memphis & C. R. Co. v. Reeves, 
 77 U. S. 10 Wall. 176, 19 L. ed. 909; Nashville <& C. R. Co. v. David, 6
 
 176 " ACT OF GOD " " PERILS OF THE SEA." 
 
 fault in departing from its contract and line of duty, goods are 
 injured in consequence of that fault by an "act of God," — which 
 would not otherwise have produced the injury — the carrier is 
 answerable.' When failure of the carrier without excuse to start 
 the goods at a time when they would have escaped peril from in- 
 evitable accident, will prevent his availing himself of the plea 
 that the injury or loss was caused by the "act of God," is a ques- 
 tion upon which the decisions have not been uniform. In many 
 cases this delay is considered so remote as to preclude the car- 
 rier from availing himself of the exception,' If the "act of God" 
 be the proximate cause, the carrier will not be liable for the loss, 
 although its own negligence may have contributed — as a remote 
 cause. ^ Where the negligence of the defendant concurs in and con- 
 tributes to the injury, he is not exempt from liability because the 
 immediate damage seems to result from the act of God, or inevi- 
 table accident.* But, this concurring negligence of the carrier 
 must be such as is in itself a real producing cause of the injury, 
 and not a mere fanciful or speculative negligence, which may not, 
 in fact, in the least degree, have caused the injury.^ Though un- 
 doubtedly the act of God which will excuse the carrier must be 
 the proximate, and not the remote, cause of the loss.'' 
 
 But other courts have held an inexcusable delay sufficient to pre- 
 
 Heisk. 261, 19 Am. Rep. 594; Denny v. Neic York Cent. E. Co. 13 Gray, 
 481, 74 Am. Dec. 64o; Swetland Y.Boston & A. B. Corp. 103 Mass. 276; 
 Pruitt V. Hannibal & St. J. R. Go. 63 Mo. 537. 
 
 1 Michaels Y. New York Cent. R. Co. 30 N. Y. 564, 86 Am. Dec. 415. 
 
 ' Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Hoadley v. Northern Transp. 
 Co. 115 Mass. 304, 15 Am. Rep. 106; Oleeson v. Virginia Midland R. C). 140 
 U. S. 435, 35 L. ed. 458; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. 
 Rep. 264; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Denny v. New 
 York Cent. R. Co. 13 Gray, 481, 74 Am. Dec. 645. 
 
 ^Memphis & C. R. Co. v. Reeves, 77 U. S. 10 "Wall. 176, 19 L. ed. 909. 
 
 * Pruitt V. Hannibal & St. J. R. Co. 62 Mo. 527. 
 
 ''Baltimore & 0. R. Co. v. Sulphur Springs Independent School Dist. 96 Pa. 65, 
 43 Am. Rep. 539. 
 
 * Kinq V. ShepJterd, 3 Story, 356; ScJdeffelin v. Harvey, 6 Johns. 169, 5 Am. Dec. 
 
 206; Elliott V. Rossell, 10 Johns. 1, 6 Am. Dec. 306; Merritt v. Earle, 29 N. 
 Y. 117, 86 Am. Dec. 292; Michaels v. Neto York Cent. R. Co. 30 N. Y. 571, 
 86 Am. Dec. 415; Hart v. Allen, 2 Watts, 114; Eicart v. Street, 2 Bail. L. 157, 
 23 Am. Dec. 131; Campbell v. Morse, 1 Harp. L. 468; Siordet v. Hall, 4 Bing. 
 607; Desty, Commerce & Navigation, § 250.
 
 WHEN "act of god" NO EXCUSE. 177 
 
 •elude the carrier from availing himself from what would otherwise 
 be a sufficient defense.' Thus it is said the act of God must not 
 only be the proximate, but the sole, cause of the loss, for, if mingled 
 with a negligent delay of the carrier, he is still responsible.^ 
 
 "Where human agency intervenes, the act of God cannot be ef- 
 fective as a defense ; as, where a steamer was sunk by running 
 upon the mast of a sloop capsised a day or two previously, the 
 ;8quall which sunk the sloop was too remote.' So, where a vessel 
 was stranded by being driven against a concealed bar, the 
 light of a stranded vessel misleading the pilot.'' Any act or 
 omission on the part of the carrier contributing to the loss, 
 takes away the protection of tlie defense that the loss was occa- 
 sioned by the act of God.^ Under same authorities, a snag swept 
 into the usual channel of the river, is an obstruction placed there 
 by the act of God." So is an obstruction unknown to navigators 
 in open waters — as a sunken rock.' 
 
 Recent authorities are not inclined to excuse the carrier, where 
 human skill could avoid the result which may arise from a sud- 
 den storm. Thus, a railroad company is bound to prevent a land 
 slide in a cut made by it, which ordinary skill would enable en- 
 gineers to foresee, and is liable for accidents occurring therefrom. 
 
 1 Condict V. Orand Trunk R. Co. 54 N. Y. 500; Pruitt v. Hannibal &St. J. B. 
 Co. 63 Mo. 527; SoutJiern Exp. Co. v. Womack, 1 Heisk. 256; Michigan Cent. 
 R. Co. V. Curtis, 80 l\\. 324. 
 
 ^Wolfv. American E.vp. Co. 43 Mo. 421, 97 Am. Dec. 406; Read v. St. Louis 
 K. C. c6 N. R. Co. 60 Mo. 199; Prmtt v. Hannibal & St. J. R. Co. 62 Mo. 527; 
 Davis V. Wabash, St. L. & P. R. Co. 89 Mo. 340; Dunsbach v. HoUisfer. 49 
 Hun, 352; Daniels v. Ballantine, 28 Ohio St. 532, 13 Am. Rep. 264; Miclii- 
 gan Cent. R. Co. v. Burrows, 33 Mich. 6. See notes to Hull v. Chicago, St. 
 P. 3f. & 0. R. Co. (Minn.) 5 L. R. A. 587; Insurance Co. of North America 
 V. Easton (Tex.) 3 L. R. A. 424; Hartwell v. Northern Pac. Exp. Co. (Dak ) 
 3 L. R. A. 342; Fox v. Boston <& M. R. Co. (Mass.) 1 L. R. A. 703. 
 
 "Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. 292, 31 Barb. 38. 
 
 4 Trent & M. Nav. Co. v. Wood, 3 Esp. 127; Mershon v. Hobensack. 23 N. J. L. 
 372; Backhouse v. Sneed, 5 N. C. 173; McArthur v. Sears, 21 Wend. 190. 
 
 ^Dibble V. Morgan, 1 Woods, 412; The Zenobia, 1 Abb. Adm. 80, 95. As to 
 careless stowage, see §§ 73 to 77. 
 
 < Oraham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; Smyre v. Niolon, 2 Bail. 
 L. 421, 23 Am. Dec. 146; Faulkner v. Wright, Rice, L. 107. 
 
 ''WiUiams v. Grant, 1 Conn. 487, 7 Am. Dec. 235; Hostetter v. Park, 137 U. S. 
 30. 34 L. ed. 568. But, see, Friend v. Woods, 6 Gralt. 189, 53 Ani. Dec. 119; 
 Virginia Cent. R. Co. v. Sanger, 15 Gratt. 237; Trent cfe M. Nav. Co. v. 
 Wood. 3 Esp. 127. 
 
 12
 
 178 " ACT OF GOD " — " PERILS OF THE SEA." 
 
 The fact that the shcle was produced by the loosening of the earth 
 by the rain, where there is no proof that the rain was of an extraor- 
 dinary character, or that extraordinary results followed it, but 
 that it was a common natural event, snch as not only might have 
 been foreseen as probable, but also must have been foreknown as 
 certain to come, is not embraced by the technical phrase, " act of 
 God." ' If injury is occasioned by inevitable accident, no action 
 will lie for it, but if any blame is imputable to the defendant, 
 though he had no intention to injure the plaintiff or any other 
 person, he is liable for the injury suffered." But in an action for the 
 loss of goods shipped, where the defense is " an act of God," the 
 burden of showing that the negligence of the carrier co-operated, 
 is on the shipper, and this may be shown under a general denial.* 
 
 § 45. "Fire Clause:' 
 
 Fire, unless produced by lightning, does not come within the 
 common law exception to a carrier's liability.'' But it may come 
 within the terms of a statute exempting the carrier from loss 
 caused by " accidents."^ But, unless there be an exception of 
 " lire," the explosion of a boiler, nor collision, not caused by peril 
 excepted, nor the wreck of the vessel by unknown obstruction, or 
 shifting of a buoy, nor the explosion of part of the cargo, causing 
 the fire, will not relieve the carrier though he be not guilty of 
 
 ' Qleeson v. Virginia Midland B. Co. 140 U. S. 435, 35 L. ed. 458. 
 
 « Williams v. Orant, 1 Conn. 487, 7 Am. Dec. 235: Perciral v. Hickey, 18 Johns. 
 289, 9 Am. Dec. 210; Bullock v. Babcock, 3 AVend. 391; The Mollie MoJiler, 
 2 Biss. 508; The New Jersey, Olcolt, 448; The Lady Pike, 2 Biss. 145; Amies 
 V. Sterem, 1 Strange, 128; Weaver v. Ward, Hob. 134; Leame v. Bray, 3 
 East, 593. 
 
 ^ Davis V. Wabash, St. L. & P. B. Co. 89 Mo. 349. 
 
 * Forward v. Piltard, 1 T. R. 33; American Transp. Co. v. Moore, 5 Mich. 368; 
 Condict V. Grand Trunk R. Co. 54 N. Y. 500; Mershon v. Ilobensack, 22 N. 
 J. L. 373; Hibler v. McCartney, 31 Ala. 502; York Mfg. Co. v. Illinois Cent. 
 B. Co. 70 U. S. 3 Wall. 107. 18 L. ed. 170; ChevaUier v. Strnham, 2 Tex. 
 115, 47 Am. Dec. 639; Hyde v. Trent & M. JSfav. Co. 5 T. R. 389; Providence 
 & N. Y. S8. Co. V. Hill Mfg. Co. 109 U. S. 578, 27 L. ed. 1038; Hall v. Cheney, 
 36 N. H. 26; Slayter v. Hay ward Rubber Co. 26 Conn. 128; Cox v. Peterson, 
 30 Ala. 608, 68 Am. Dec. 145; Parker v. Flagg, 26 Me. 181, 45 Am. Dec. 
 101; Moore v. Michigan Cent. B. Co.d Mich. 23; Miller v. Steam Nav. Co. 10 
 N. Y.431. 
 
 *Eunt V. Morris, 6 Mart. (La.) 676, 12 Am. Dec. 489.
 
 " FIRE CLAUSE." 179 
 
 negli2;ence.' A contract exempting; the carrier from liability for 
 a loss by lire not due to negligence, and based upon a sufficient 
 consideration, the shipper having the right to elect between a lia- 
 bility with or without the fire clause, is valid.'' The authorities 
 are practically unanimous concerning a loss by fire under a bill of 
 lading containing a fire clause, and they establish the relation of 
 bailor and bailee. An action cannot be brought on the implied 
 agreement of the common law for the loss by fire, without the 
 carrier's negligence, of goods shipped under a bill of lading by 
 which the carrier is freed from liability for loss by fire.' Con- 
 tracts when based upon a sufficient consideration, have been held 
 to be valid, and to protect the company from liability for loss by 
 fire, caused otherwise than by the negligence of the company or 
 its agents.^ In the case last cited the court said : " A lower rate 
 of freight, or something equivalent, will be a sufficient considera- 
 tion for the stipulation." ^ Fire, unless caused by the negligence 
 of the carrier, is one of the things against which the carrier may 
 by contract exonerate himself from responsibility.' 
 
 "Where, however, an excepted occurrence causes the fire, this 
 will be taken to be the proximate cause, and the fire but an inci- 
 dent, — and the carrier will be excused.' A furious wind which 
 blows a car from the track is the proximate cause of the loss of 
 
 > Bulkley v. Naumkeag Steam Cotton Co. 65 U. S. 24 How. 386, 16 L. ed. 599; 
 
 Plaisted v. Boston & K. 8. Nav. Co. 27 Me. 132; Houston & O. Nav. Co. v. 
 
 Dwyer, 29 Tex. 376; Brousseau v. I'he Hudson, 11 La. Ann. 427; Reaves v. 
 
 Waterman, 2 Spears, L. 197; Agneic v. I'he Contra Costa, 27 Cal. 425, 87 
 
 Am. Dec. 87; Friend v. Woods, 6 Gratt. 189, 52 Am. Dec. 119; Merritt v. 
 
 Earle, 29 N. Y. 115, 86 Am. Dec. 292; Neio Brunsiciek 8. B. & C. Transp. 
 
 Co. V. Tiers, 24 N. J. L. 697, 64 Am. Dec. 394. 
 '' Dillard v. Louisville & N. R. Co. 2 Lea, 288; Louisville i&N. R. Co. v. Oilbert, 
 
 7 L. R. A. 162, 88 Tenn. 430. 
 ^Indianapolis, D. &W. R. Co. v. Forsythe, 4 Ind. App. 326; Memphis & C. R. 
 
 Co. V. Reeves. 17 U. S. 10 Wall. 176, 49 L. ed. 909; Clark v. Barnwell, 53 U. 
 
 S. 12 How. 274, 13 L. ed. 985; Western Transp. Co. v. Downer, 78 U. S. 11 
 
 Wall. 129, 20 L. ed. 160; Wheeler, Carr. 254, 255. 
 ^York Mfg. Co. v. Illinois Cent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170; Dil- 
 lard V. Louisville & N. R. Co. 2 Lea, 288. 
 5 Dillard v. Louisville & N. R. Co. supra. 
 ^Indianapolis, D. & W. R. Co. v. Forsythe, 4.lnd. App. 326; Yoi-k Mfg. Co. v. 
 
 Illinois Cent. R. Co. 70 U. S. 3 Wall. 104, 18 L. ed. 170; Ntio York Cent. R. 
 
 Co. V. Lockwood, 84 U. S. 17 Wall. 376, 377, 21 L. ed. 639. 
 ' Pennsylvania R. Co. v. Fries, 87 Pa. 234.
 
 180 " ACT OF GOD " " PERILS OF THE SEA." 
 
 goods contained therein which are destroyed by fire which im- 
 mediately follows, without negligence on the part of the carrier, 
 as the result of the overturning of the car, in which were burning 
 a lamp and a coal fire.' Principle establishes a liability against 
 the carrier for a loss by fire, arising from other than a natural 
 cause, whether occurring on the steamboat accidently, or com- 
 municated from another vessel or from the shore; — and the fact 
 that fire produces the motive power of a ship, does not affect the 
 case.''' "The dangers incident to railroad transportation, fire and 
 all other unavoidable accidents excepted," are effective as a limi- 
 tation on the common law liability of the carrier for loss by fire.^ 
 A notice by carrier by rail — unprovided with means for arresting 
 sparks — that it would transport cotton at half rate, if relieved 
 from risk as to fire, is sufficient to relieve it from liability on 
 bringing proof of destruction by fire while being transported." 
 But where in a bill of lading given by a carrier by water, he con- 
 tracts to deliver the goods over a land route, "the damages of 
 navigation, fire or collision on the lakes, rivers and canals ex- 
 cepted," such carrier will not be discharged for a loss occurring 
 through fire on a railroad.^ A bill of lading providing that the 
 carrier shall not be liable for any loss or damage from fire, wetting, 
 combustion, or heating, unless atiirmatively caused by its negli- 
 gence, does not exempt the carrier from liability to general aver- 
 age upon destruction of the cargo by wetting to extinguish a fire 
 therein, — especially where the stipulations are printed in very 
 small type.° 
 
 It is now well settled that the common law liability of carriers 
 
 » Blythe v. Benwr & R. O. B. Co. 11 L. R. A. 615, 15 Colo. 333. 
 
 ^ New Jersey Steam Nav. Go. v. Merchants Bank of BoMon, 47 U. S. 6 
 How. 844, 381, 12 L. ed. 465, 481; Hale v. New Jersey Steam Nav. Co. 15 
 Conn. 539, 39 Ana. Dec. 398; Singleton v. Hilliard, 1 Strobh. L. 203; Oil- 
 more V. Carman, 1 Smedes & M. 279, 40 Am. Dec. 96; Garrison v. Mem- 
 phis Ins. Co. 60 U. S. 19 How. 312, 15 L. ed. 656. 
 
 » Colton V. Cleveland & P. B. Co. 67 Pa. 211, 5 Am. Rep. 424. 
 
 * Smith V. North Carolina R. Co. 64 N. C. 235. See also, Neio Orleans Mut. 
 
 Ins. Co. V, Neil) Orleans, J. & 0. N. B. Co. 20 La. Ann. 302; Levy v. Pont- 
 chartrain B. Co. 23 La. Ann. 477. 
 
 * Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434. 
 « The Roanoke, 53 Fed. Rep. 270.
 
 "fire clause." 181 
 
 inaj be limited by special contract, even to the extent of denud- 
 ing them of the character of insurers, except as against their own 
 negligence, and the limitation may be embraced in the bill of 
 lading. To be valid, it must be fairly obtained, and jnst and rea- 
 sonable. Under the English Railway and Canal Traffic Act of 
 1854, such stipulations are called "conditions" and are upheld 
 only when they are . . . just and reasonable. The same cri- 
 terion is uniformly applied in this country, and no limitations of 
 the carriei-'s common law liability will afford protection, unless 
 "just and reasonable" in the eyes of the law.' The burden of 
 proving the reasonableness of a condition lies upon the company. 
 The most cogent evidence in favor of reasonableness is to show 
 that the condition was not forced upon the customer, but that he 
 had a fair alternative of getting rid of the condition, and yet 
 agreed to it." It has been held that a "fire clause" in a bill of 
 lading exempting the carrier from liability from loss by fire, is 
 not valid where transportation under the rules of the common 
 law is not offered as an alternative, and no reduction of rates is 
 made as a consideration for the exemption.^ A carrier cannot 
 by special contract limit its common law liability for losses not 
 occasioned by negligence, where it does not afford the shipper an 
 opportunity to contract for the service required without such re- 
 striction, even, it is said, if he makes the special contract without 
 objection or demand for a different one.'' After the delivery of 
 goods to the carrier, the sending of the receipt to the shipper — 
 containing a clause exempting the carrier from liability from loss 
 by fire — where such exemption is not brought to the notice of the 
 shipper until after the property is destroyed, will not discharge 
 the carrier from liability.^ 
 
 ^New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; 
 Hart Y. Pennsylvania R. Co. 112 U. S. 338, 28 L. ed. 720; Murr ^.Weat^rn 
 U. Teleg. Co. 85 Tenn. 542. 
 
 ' Redman, Carr. (2d ed.) 66. citing Lcicisv. GreatWestern R. Co. 47 L. J. Q. 
 B. N. S. 131. 
 
 ^LouismlU&N. R. Co. v. Gilbert, 7 L. R. A. 162, 88 Tenn. 430. 
 
 * Little Rock cfi Ft. S. R. Co. v. Cravens, 18 L. R. A, 527, 57 Ark. 113. 
 
 * Lamb v. Camden & A. R. Co. 4 Daly, 483.
 
 182 "act of god" — "perils of the sea." 
 
 § 4^. statutory Provisions Regarding ''Fire 
 Clause." 
 
 Unless the carrier complies with the requirements of the Act 
 of Congress, and provides, not only a seaworthy vessel but j^roper 
 appliances for the extinguishment of fire, he cannot claim the 
 benefit of the exceptions in his bill of lading.* The Act of Con- 
 gress of March 3, 1851, relieves the ship owner from liabiUty for 
 loss to goods on board by fire, to which he has not contributed, 
 either by his own design or negligence.' An accidental fire on 
 a vessel, not owned or chartered by the carrier who uses it as 
 part of its line, which injures the goods shipped, will not relieve 
 the carrier from lial)ility by the New York Statute of 1851, chap- 
 ter 43.^ A provision in a bill of lading of goods to be shipped 
 from Texas to Massachusetts, that the carrier shall not be liable 
 for loss by fire, is valid notwithstanding a Texas statute making 
 a stipulation of that character void, as that statute does not apply 
 to interstate or foreign shipments.* 
 
 § ^7. Goods in Transit or Depot— ' Fire Clause." 
 
 Where the exemption was from loss by fire, and the goods 
 were unloaded in transit, awaiting reshipment, and were lost by 
 fire, the carrier is held liable," though he be guilty of no neglect, 
 but not when it is caused by lightning.* The ordinary car- 
 rier bill of lading exempting the carrier for loss by fire on cotton, 
 does not exempt the carrier from loss by fire while the cotton is 
 in the possession of a compress company to which it has been de- 
 livered as the agent of the carrier, instead of at the carrier's own 
 
 ' New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 U. S. 6 How. 344, 
 
 12 L. ed. 465. 
 ^Walker V. Western Transp. Co. 70 U. S. 3 Wall. 150, 18 L. ed. 172. 
 » mil Mfg. Go. V. Boston (fc L. B. Corp. 104 INIass. 123, 6 Am. Rep. 302. 
 * Otis Co. V. Missouri Pac. B. Co. 112 Mo. 623. 
 ^ Robinson v. Merchants Despatch Transp. Co. 45 Iowa, 470. 
 ^ New Jersey Steam Nav. Co. v. Merchants Bank of Boston. 47 U. S. 6 How. 425, 
 
 12 L. ed. 500; King v. Shepherd, 3 Slory, 349; Elliott v.Bossell, 10 Johns. 
 
 1, 6 Am. Dec. 306; Patapsco Ins. Co. v. Coulter, 33 U. S. 3 Pet. 222, 7 L. 
 
 ed. 659; Toulmin v. Anderson, 1 Taunt. 237, 385; Mc Arthur v. Sears, 21 
 
 Wend. 190; Uyde v. Trent &M. Nav. Co. 5 T. R. 389.
 
 GOODS IN TRANSIT OR DEPOT. 183 
 
 depot* A provision in the bill of lading exempting the railroad 
 company from loss or damage "by fire or other casualty, while in 
 transit, or in depots or places of transhipment," to goods shipped, 
 will be sustained." A contract that the carrier "shall not be 
 liable for loss or damage ... by fire, or other 
 casualty while in transit, or while in depots or landings at point 
 of delivery," will relieve the carrier from responsibility for goods 
 destroyed by the burning of the depot at which they werj re- 
 ceived for shipment, where ordinary care has been used.' Goods 
 awaiting transhipment in a railroad depot are within the clause 
 of a bill of lading exempting the carrier from liability for loss by 
 fire from any cause, on land or water, or while awaitinoi; tranship- 
 ment at any port,* 
 
 A railroad company is not liable for the loss by fire, not 
 due to its negligence, of cotton transported by it and de- 
 livered on a switch, under an arrangement by which the con- 
 signee has the right to open the cars, and it is no longer to 
 guard the property, where the waybill has been delivered up 
 to it, although the property still remains in its car.^ A bill 
 of lading issued for cotton shipped, reserving to the carrier 
 the privilege, at its own expense, of compressing the cotton for 
 convenience of carrriage, and exempting the carrier from liability 
 for loss or damage by fire while at the depots, stations, ware- 
 houses, or in transit, exempts the company from loss by fire with- 
 out negligence while the cotton is warehoused for compression, 
 a,lthough the warehouseman is agent of the company." The burn, 
 ing of cotton while awaiting compression as provided by a bill of 
 lading, in a compress not owned or operated by the carrier, is 
 within a clause in the bill exempting the carrier from loss by fire 
 while the property is on deposit in place of transliipment or 
 depots or landings or at points of delivery.' 
 
 ^Demingy. MercJiants Cotton Press <& 8. Co. 13 L. R. A. 518, 90 Tenn. 306. 
 
 ^Louisville & N. E. Co. v. Oden, SO Ala. 38. 
 
 'Louisville & N. R. Co. v. Brownlee, 14 Bush, 590. 
 
 * Brown v. Louuville & N. R. Co. 36 111. App. 140. 
 
 » Whitney Mfg. Co. v. Richmond & D. R. Co. 38 S. C. 365. 
 
 'Lancaster Mills v. Merchants Cotton Press & S. Co. 89 Tenn. 1, 45 Am. & 
 
 Eng. K. Cas. 423. 
 ''Missouri Pac. R. Co. v. SJierwood, 17 L. R. A. 643, 84 Tex. 125.
 
 184 " ACT OF GOD " " PERILS OF THE SEA." 
 
 A railway company will not be liable for _2;oods destroyed on a. 
 steamboat connected, with the railway at a wharf, where the goods 
 are transferred from the boat to the cars, and the employes of the 
 steamboat and the railway company are both engaged in the trans- 
 fer, the boat itself, with the cars and goods and wharf, being des- 
 troyed during the process of transporting the goods in different 
 loads.' After the goods are put into the sheds of the carrier, on its 
 wharf, guarded by a watchman, a fire occurring from an unknown 
 cause on the steamboat, while fully manned, lying at the wharf, 
 which consumed the goods, will not render the carrier liable, unless 
 there be proof of its negligence.' A receipt from the Pennsylvania 
 Railroad Company for oil to be delivered " Leech, at the com- 
 pany's freight station at Philadelphia," with a memorandum ap- 
 pended to the receipt " Rate to Red Hook, 65 cts.," also " this oil 
 is carried only on open cars, and entirely at the owner's risk from 
 fire and leakage, whilst in the possession of the railroad company,, 
 or carriers, while standing or in transit," the freight to be paid at 
 Red Hook, contained only an engagement to forward to Red 
 Hook as the ultimate destination, and the limitation, as to the lia- 
 bility, applied only to the carrier giving the receipt ; and another 
 railroad company having accepted the oil and given a receipt to 
 "Leech, Agent of the Pennsylvania R. Co.," for the oil to be 
 transported to New York, and it having been destroyed by fire 
 between Philadelphia and Red Hook, it became liable as a com- 
 mon carrier, there being no other contract with it than its receipt, 
 which did not limit its liability.^ A railroad company to which a 
 quantity of apples is delivered as warehouseman was held as a 
 common carrier, when a sufiicient quantity to make a carload has 
 been delivered, and a car has been asked for and promised by the 
 company, so as to be responsible for their loss by fire after the car 
 should have been furnished, although the shipping contract which 
 the shipper would have been required to sign, provides that the 
 company shall not be liable for damages occasioned by fire. This 
 decision was affirmed on appeal, the court being equally divided.' 
 
 1 Oass V. New Yo7-k, P. <& B. E. Co. 99 Mass. 220, 96 Am. Dec. 742. 
 
 » Farnltam v. Camden & A. B. Co. 55 Pa. 53. 
 
 8 Camden & A. R. Co. v. Forsyth, 61 Pa. 81. 
 
 *MUloy V. Grand Trunk It. Co. 23 Ont. Rep. 454, 55 Am. & Eng. R. Cas. 579.
 
 NEGLIGENCE DEFEATS " FIRi; CLAUSE." 185 
 
 § 4S. JVegligejice Defeats " Fire Clause," 
 
 A bill of lading stipulating that release " from damage or loss 
 of any article from or by fire or explosion of any kind," simply 
 releases the carrier's common law liability as an insurer, but does 
 not release from a loss occurring through a fire or explosion caused 
 by the carrier's negligence.' When a carrier contracts for ex- 
 emption from liability for injury from fire he is bound to exercise 
 ordinary diligence to prevent such injury.'' The moment a faulty 
 negligence begins, the carrier becomes an insurer against the con- 
 sequences therefrom, both ordinary and extraordinary.' The pre- 
 sumption attends every fault connected with the management of 
 a vessel, and every omission to comply with a statutoiy require- 
 ment, or with any regulation deemed essential to good seaman- 
 ship, that such fault or omission contributed to the collision.'' A 
 stipulation in a contract of shipment, exempting the carrier from 
 liability from loss by fire or other casualty while the goods are in 
 transit or in depots or places for reception, does not exempt it 
 from liability for such loss resulting from its own negligence or 
 want of due care.* A railroad company which undertakes to 
 
 > Steinweg v. Erie R. Co. 43 N. T. 123, 3 Am. Rep. 673; Lamb v. Camden & 
 A. R. & Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327; Colton v. Cleveland & 
 P. R. Co. 67 Pa. 211, 5 Am. Rep. 424; Baltimore & 0. R. Co. v. Skeels, 3 
 W. Va. 556; Haimibal & St. J. R. Co. v. Stcift, 79 U. S. 12 Wall. 262, 20 
 L. ed. 423; Missouri Valley R. Go. v. Caldwell, 8 Kan. 244; Baltimore & 0. 
 R. Co. V. Rathbone, 1 W. Va. 87, 88 Am. Dec. 664; Wallace v. Matthews, 39 
 Ga. 617, 99 Am. Dec. 473; Thayer v. St. Louis, A. & T. II. R. Co. 22 Ind. 
 26, 85 Am. Dec. 409; Illinois Cent. R. Co. v. Frankenberg, 54 111. 88, 5 
 Am. Rep. 92; Montgomery & W. P. R. Co. v. Edmonds, 41 Ala. 667; In- 
 dianapolis, P. & C. R. Co. V. Allen, 31 Ind. 394; Michigan S. & N. I. R. 
 Co. V. Beaton, 37 Ind. 448, 10 Am. Rep. 89; Lamb v. Camden tfc A. R. & 
 Transp. Co. 2 Daly, 454; Penmylmnia R. Co. v. McGloskcy, 23 Pa. 526; 
 School District in Medfleld v. Boston, H. & E. R. Go. 102 Mass. 552, 3 
 Am. Rep. 502; Union Mut. Ins. Co. v. Indianapolis & G. R. Co. 1 Disney, 
 480; York Mfg. Co. v. Illinois R. Gent. Co. 1 Biss. 377. 70 U. S. 3 Wall. 107. 
 IS L. ed. 170; FarnJiam v. Camden & A. R. Co. 55 Pa. 53; Sager v. Ports- 
 mouth, S. & P. & E. R. Go. 31 Me. 228, 50 Am. Dec. 659; Blumenthal v. 
 Brainerd, 38 Vt. 402, 91 Am. Dec. 350; Mann v. Birchard, 40 Vt. 326; 
 Levering v. Union Transp. & Ins. Go. 42 Mo. 88. 
 
 « Little Rock, M. R. <& T. R. Co. v. Talbot, 47 Ark. 97. 
 
 ^ Davis V. Oarrett, 6 Ring. 710; Bell v. Reed, 4 Binn. 127, 5 Am. Dec. 398; 
 Ilartv. Allen, 2 Watts. 114; Williams v. Grant, 1 Conn. 492, 7 Am. Dec. 
 23; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 145. 
 
 * The Martello v. Willey, 153 U. S. 64, 38 L. ed. 637. 
 
 ^Louisville & N, R. Co. v. Touart, 97 Ala. 514; Lamb v. Camden & A. E- 
 & Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327.
 
 186 "act of god" — "perils of the sea" 
 
 transport a quantity of cotton, but reserves to itself the privilege 
 of compressing it, bv placing the cotton in the hands of a com- 
 press company constitutes such company its agent, and is liable 
 for the destruction of the cotton by fire through its negligence.' 
 A delay of six days in shipment, by reason of a disagreement be- 
 tween the carrier and a connecting line, is unreasonable ; and the 
 carrier will be liable for losses occurring by fire during such delay, 
 notwithstanding an exception in its bill of lading/ 
 
 Where cotton is shipped in open flat cars, it is the duty of the 
 carrier to take additional precaution for the protection and safety 
 of the cotton, although its shipment in this manner may not be 
 in itself such negligence as would make the carrier lial)le under 
 all contingencies/ Still the carriage of cotton upon open cars 
 has been held to be such a negligent act, as prevents the carrier 
 from availing itself of a contract releasing its liability for a loss 
 by fire.* But a steamer is not negligent so as to render it liable 
 for the destruction of cotton by fire, in having it piled upon a 
 landing a mile away from the nearest town, which is of but 250 
 population, and on a point with water on both sides within 1 or 
 2 feet, although it is stored in the open air and there is no watch- 
 man employed, in the absence of any reason to anticipate its de- 
 struction by fire/ The jury may properly find, as a question of 
 fact, that the failure of a carrier to rescue goods from a car which 
 had been overturned by the force of the wind, before they were 
 consumed by fire, started by the stove fire and lights within the 
 car, was not negligence, where the evidence shows that the wind 
 was so strong as to render it almost impossible for men to stand 
 or walk, while the air was so full of dust and flying material that 
 scarcely anything could be seen, and the fire succeeded the over- 
 turning almost instantaneously, so that even the messengers within 
 the car escaped with great difiiculty/ Where goods were plainly 
 
 » Otis Co. V. Mmouri Pac. B. Co. 112 Mo. 623. 
 » Condict V. Grand Trunk R. Co. 54 N. Y. 500. 
 ^Insurance Co. of North America v. St. Louis, 1. M. & S. R. Co. 3 SIcCrary, 
 
 233. 
 *New Orleans, St. L. & C. R. Co. v. Faler, 58 Miss. 911. 
 » The Guiding Star, 53 Fed. Rep. 936. 
 « Btytlie V. Denver & R. G. R. Co. 11 L. R. A. 615, 15 Colo. 333.
 
 BURDEN OF PROOF FOE LOSS UNDER EXCEPTIONS. 187 
 
 marked " J. "Weil & Bro.," but were entered by the station agent 
 on the waybill, as "T. Weil & Co.," and on the consignee calling 
 for the goods, he was informed that they had not arrived, and the 
 mistake was not discovered until the goods were destroyed, with 
 the depot, by fire, the carrier was liable for the loss.' 
 
 Where a defect in the coupling prevented a car, containing 
 merchandise shipped under an exception exempting the carrier 
 from loss by fire, from being uncoupled, and the car and its con- 
 tents was therefore consumed, the carrier was refused the benefit 
 of the exemption on the ground of negligence in the defective 
 coupling." A railroad company is liable for cotton burned in its 
 car while entrusted to it for shipment, where the cotton would 
 not have been destroyed but for the breaking of a drawbar in 
 attempting to draw the train out of danger, although its bill of 
 lading contains a valid clause exempting it from liability for loss 
 by tire.^ 
 
 § 49 • Burden of Fj' oof for Loss under Exceptions. 
 
 The Inn-den of proof is on the carrier to show that losses were 
 occasioned by the " act of God " or the public enemy,* A carrier 
 must bring the cause of the loss, by proof, within one of his ex- 
 ceptions, in order to secure immunity.^ It is for the carrier to 
 show any modification of the responsibility.' 
 
 Where the loss or injury to goods occurs, admittedly, through 
 wliat is called an " act of God," and it is sought to hold the car- 
 rier liable for negligently bringing the goods within the peril of 
 this casualty, afiirmative proof must be introduced to sustain the 
 
 ' Meyer v. Chicago & N. W. R. Co. 24 Wis. 566. 1 Am. Rep. 207. See also, Ste- 
 vens V. Bodon & M. R. Co, 1 Gray, 277. 
 
 « Empire Transp. Co. v. W<imsutta Oil R. & M. Co. 63 Pa. 14, 3 Am. Rep. 515 
 
 ^Deming v. Merchants Cotton Press & S. Co. 13 L. R. A. 518. 90 Tenn. 306. 
 
 ^Winne v. Illinois Cent. R. Co. 31 Iowa, 583; Bansemer v. Toledo <£• W. R. Co. 
 25 lud. 434, 87 Am. Dec. 367. 
 
 « Tygert Co. v. Tlie Charles P. Sinnickson, 24 Fed. Rep. 304; The Charles J. 
 Willard, 38 Fed. Rep. 759. 
 
 •See also Charnbcvlain v. Western Transp. Co. 45 Barb. 218; The Niagara v. 
 Cordes, 62 U. S. 21 How. 26, 16 L. ed. 47; Elliott v. Rossell, 10 JoIids 7 6 
 Am. Dec. 306; Richards v. London & S. C. R. Co. 7 C. B. 839.
 
 188 "act of god" — "perils of the sea." 
 
 averment." The preponderance of authority is in support of the 
 rule that where it clearly appears that the loss is occasioned by an 
 accepted peril, the one alleging negligence, either in negligently 
 bringing the goods within the peril, or negligently omitting a 
 care which would have preserved them, notwithstanding the 
 casualty, must produce proof in support of his averment.' Wliere, 
 by special contract, a carrier has limited its liability in certain 
 cases, the burden of proof of negligence, where a loss occurs, is 
 on the sliipper.^ Where a loss occurs which is within an excep- 
 tion of the bill of lading, it is the duty of the shipper, if he seeks 
 a recovery, to show that the loss was the result of the carrier's 
 negligence." 
 
 Negligence is a positive wrong and will not be presumed, though 
 it may be inferred from circumstances. When the carrier brings 
 himself within the exception, there no longer exists any liability. 
 Such liability can only be imposed by affirmative proof estaljlish- 
 ing negligence, which excludes the carrier from the benefit of 
 the exception which has, prima facie, released him.* In the ab- 
 sence of proof of negligence, a carrier will not be responsible un- 
 der a contract excusing it from loss by fire, excepting in case of 
 
 1 Louisville & N. R. Co. v. Oden, 80 Ala. 38; Western R. Co. v. HartreU, 91 Ala. 
 
 340: Brown v. Adams Exp. Co. 15 W. Va. 812; Missouri Pac. R. Co. v. China 
 ■ Mfg. Co. 79 Tex. 26; Gaines v. Union Transp. & Ins. Co. 28 Ohio St. 418; 
 
 Sinter v. South Carolina R. Co. 29 S. C. 96; Berry v. Cooper, 28 Ga. 543; 
 
 Shrh-er v. Sioux City & P. R. Co. 24 Minn. 506, 31 Am. Rep. 353; Chicago, 
 
 St. L. & N. 0. R. Co. V. Moss, 60 Miss. 1003, 45 Am. Rep. 428; Jiicago, B. S 
 
 Q. R. Co. V. Manning, 23 Neb. 552; Boies v. Hartford & N. H. U. Co. 37 
 
 Conn. 272; Dunseth v. Wade, 3 111. 285, 2 Greenl. Ev. § 219. Examine, 
 
 The Martello v. Willey, 153 U. S. 64, 38 L. ed. 637. 
 « Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985; Memphis & G. R. Co. 
 
 V. Reeves. 77 U. S. 10 Wall. 176, 19 L. ed. 909; Western Transp. Co. v. 
 
 DoiDner,!^ U. S. 11 Wall. 129, 20 L.ed. 160; Christie v. The Craigton, 41 
 
 Fed. Rep. 62; Ohrloff v. Briscall, L. R. 1 P. C. 231. 
 ^ Kamas Pac. R. Co. v. Reynolds, 8 Kan. 629; Sager v. Portsmouth, S. & P. S 
 
 E. R. Co. 31 Me. 228, 50 Am. Dec. 659; Westcutt v. Fargo, 61 N. Y. 542, 19 
 
 Am. Rep. 300; Patterson v. Clyde. 67 Pa. 500; Hubbard v. Harnden Exp. Co. 
 
 10 R. I. 244; Sinith v. North Carolina R. Co. 64 N. C. 235; Louisville & N. 
 
 R. Co. V. Manchester Mills, 88 Tenn. 653. 
 * Cotton V. Cleveland & P. R. Co. 67 Pa. 211, 5 Am. Rep. 424; Mitchell v. United 
 
 States Exp. Co. 46 Iowa, 214; Little Rock. M. R. & T. R. Co. v. Harper, 44 
 
 Ark. 208; Kelham v. The Kensington, 24 La. Ann. 100; Kansas Pac. R. Co. 
 
 V. Reynolds, 8 Kan. 623; Wittinrj v. St. Louis & S. F. R. Co. 28 Mo. App. 
 
 103. 10 L. R. A. 602, 101 Mo. 631. 
 
 103. 10 L. R. A. 602, 101 Mo. 631. 
 * Witting V. St, Louis & S. F. R. Co. supra.
 
 BDJRDEN OF PROOF FOR LOSS UNDER EXCEPTIONS. 189 
 
 negligence, where the property is destroyed by fire through the 
 act of a mob.' Where goods shipped under a bill of lading ex- 
 empting the carrier from liability from loss by fire are burned in 
 the car after delivery to the consignee, there can be no recovery 
 from the carrier except upon proof of its negligence causing the 
 fire.' But, where the carrter refuses to advise the shipper of the 
 circumstances under which the loss occurs, it has been held that 
 this refusal creates a presumption of negligence and wrong, and 
 the fact that the loss occurred from an excepted cause, being 
 shown on the trial, is not sufficient in itself to relieve the carrier 
 from this presumption which his own conduct has created, of 
 some act of negligence or omission on his part.' Still, it may 
 be said generally, that where the evidence placed before the 
 jury leaves in doubt whether the negligence of the carrier 
 contributed to the injury, which, to some exteiit at least, re- 
 sulted from the " act of God," the carrier will not be held liable.* 
 But under the exception, "unavoidable casualty," the carrier 
 is bound to show the origin and cause of the lire which destroved 
 the goods, in order to bring himself within the exception. In it- 
 self, fire is not considered an unavoidal)le danger, and the de- 
 fendant is bound to show the origin or cause of the iire, to bring 
 itself within the exception.^ The fact that goods shipped were 
 burned while in transit on the cars of the carrier raises the pre- 
 sumption that the fire and consequent loss were caused by the 
 carrier's negligence." 
 
 In excusing itself from liability, where such proof is required, 
 the carrier must show that it has done what is necessary to be 
 done, under all the circumstances; and it is not sufficient that it 
 has done what is usual. Thus, where a quantity of potatoes were 
 shipped in barrels to New York, and in the process of transiior- 
 tation were delivered by the first carrier to another, — and while 
 
 ^ Wertheimer v. Pennnylvania R. Co. 17 Blatchf. 421. 
 « St. Louis, I. M. & 8. B. Co. v. Bone, 52 Ark. 26. 
 ' Pennsylvania B. Co. v. Miller, 87 Pa. 395. 
 
 * Muddle V. Stride, 9 Car. & P. 380. 
 
 * Union Mut. Ins. Co. v. Indianapolis <& C. B. Co. 1 Disney, 480. 
 ■« Gulf, C. & S. F. B. Co. V. Zimmerman, 81 Tex. G05.
 
 190 "act of god" — "perils of the sea." 
 
 in the custody of the latter and while on the deck of a barge in 
 the Korth river, they were frozen, — the last carrier was held re- 
 sponsible.' In the recent case of Bradley Fertilizer Co. v. The 
 Edwin 1. Morrison.^ decided by the Supreme Court of the United 
 States, April 30, 1894 (153 U. S. 199, 38 L. ed. 688) Mr. Chief 
 Justice Fuller, uses this language: "Assuming, as we must, that 
 the damages awarded by the district court resulted from the loss 
 of the cap and plate covering the bilge pump hole, the question 
 to be determined is whether that loss was occasioned by a peril 
 of the sea, or by the condition of that covering as it was when 
 tlie vessel entered upon her voyage. If, through some defect or 
 weakness, the plate and cap and the screws which secured it came 
 o£E or if the cap and plate were so made or so fastened as to be 
 liable to be knocked off by any ordinary blows from objects 
 washed by the sea across the decks, then the vessel was not sea- 
 worthy in that respect, and the loss could not be held to come 
 within the exception of perils by the sea, although the vessel en- 
 countered adverse winds and heavy weather ... as said on 
 circuit by Mr. Justice Gray in The Caledonia., 43 Fed. Rep. 681, 
 685, 'In every contract for the carriage of goods by sea, unless 
 otherwise expressly stipulated, there is a warranty on the part of 
 the ship-owner that tlie ship is seaworthy at the time of beginning 
 her voyage, and not merely that he does not know her to be un- 
 seaworthy, or that he has used his best efforts to make her sea- 
 worthy. The warranty is absolute that the ship is, or shall be, in 
 fact seaworthy at that time, and does not depend on his knowl- 
 edge or ignorance, his care or negligence.' 
 
 In The Glenf'ruin, 10 Prob. Div. 103, the same rule is thus ex- 
 pressed by Butt, J.: 'I have always understood the result of the 
 cases from Lyon v. Mells, 5 East, 428, to Kojpitoff v. Wilson, L. R. 
 1 Q. B. Div. 377, to be that under his implied warranty of sea- 
 worthiness, the shipowner contracts, not merely that he will do his 
 best to make the ship reasonably lit, but that she shall really be 
 reasonably fit for the voyage. Had these cases left any doul:)t in my 
 mind, it would have been set at rest by the observations of some of 
 
 ' Wing V. New York & E. R. Co. 1 Hilt. 231.
 
 BURDEN OF PROOF FOR LOSS UNDER EXCEPTIONS. 191 
 
 the peers in the opinion they delivered in the ease of Steel v. State 
 Line SS. Co. L. R. 3 App. Cas. T2,' Perils of the sea were excepted 
 . . , but the burden of proof was on the respondents to show that 
 the vessel was in good condition and suitable for the voyage at its 
 inception, and the exception did not exonerate them from liability 
 for loss or damage from one of those perils to which their negli- 
 gence, or that of their servants contributed,' It was for them to 
 show affirmativei}^ the safety of the cap and plate; and that they 
 were carried away by extraordinary contingencies, not reasonably 
 to have been anticipated, We do not understand from the find- 
 ings that the severity of the weather encountered by the Morrison 
 was anything more than was to be expected upon a voyage, such 
 as this, down that coast and in the winter season, or that she was 
 subjected to any greater danger than a vessel so heavily loaded, 
 and with a hard cargo, might have anticipated under the circum- 
 stances. The especial peril which seemed at one time to have 
 threatened her safety, was directly attributable to the water taken 
 aboard through the uncovered bilge pump hole, which rose from 
 eighteen inches about 5 a. m, to seven feet at about 9 a. m,, so 
 that she was necessarily sinking deeper and deeper, while the ab- 
 sorption by the guano added to the dead weight, and increased 
 the danger of her going down. 
 
 If, however, the vessel had been so inspected as to establish 
 her seaworthiness when she entered upon her voyage, then upon 
 the presumption that that seaworthiness continued the conclusion 
 reached might follow, but we are of opinion that precisely here 
 respondents failed in their case. From the 6tli and Tth findings 
 it appears that the vessel was built in 1873; that the bilge pump 
 hole had not been used for four or five years, if at all; and that 
 the cap and plate were painted over whenever the waterway Avas 
 painted; and, from the findings above quoted, that these holes 
 were dangerous unless the caps and plates were kept tight and 
 secure; that the hold of the wood might become weakened by the 
 formation of verdigris about the brass screws; that tapping with 
 a hammer or unscrewing the cap might have developed any inse- 
 
 ^ Liverpool & O. W. Steam Go. v. Phenix Ins. Co. ("T/ie Montana") 129 U. S. 
 397, 438 [32: 788, 791].
 
 192 "act of god" — "perils of the sea." 
 
 curity, if there were any; that no such tests were applied; but 
 that the caps and plates appeared all right to- visual observation. 
 But this was not enough to establish the fact of securit}"; and the 
 12th finding, that examination by the eye is such that a reason- 
 ably prudent master or owner might be expected to give such 
 coverings in order to determine their seaworthiness, does not give 
 it that effect. The obligation rested on the owners to make such 
 inspection as would ascertain that the caps and plates were se- 
 cure. Their warranty that the vessel was seaworthy in fact "did 
 not depend on their knowledge or ignorance, their care or negli- 
 gence." The burden was upon them to show seaworthiness, and 
 if they did not do so, they failed to sustain that burden, even 
 though owners are in the habit of not using the precautions which 
 would demonstrate the fact. In relying upon external appear- 
 ances in place of known tests, respondents took the risk of their 
 inability to satisfactorily prove the safety of the cap and plate if 
 loss occurred through their displacement. The court are unwill- 
 ing by approving resort to mere conjecture as to the cause of the 
 disappearance of this cap and plate to relax the important and 
 •salutary rule in respect of seaworthiness.' 
 
 ' The Reeside, 2 Suma. 567, 574; Douglas v. Scougall, 4 Dow. P. C. 269.
 
 CHAPTER YII. 
 
 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 § 50. Charges and LiahiUty Proportioned to Value. 
 
 § 51. Tariff Value and Liahility Must he in Eeaso7iaile Proportion. 
 
 § 52. Tariff Based on Value Without Stating Limit of Liahility. 
 
 § 53. Fraud or Imposition Respecting Value and Estop)pel. 
 
 § 54. Carrier May Recover Where Value of Goods Concealed. 
 
 § 55. When Limit Applies to each Article. 
 
 § 56. Statutory Provisions Respecting Statement of Value. 
 
 § 57. Limiting Time for Commencing Action. 
 
 a. Stipulation Regarding Notice to Consignee. 
 
 § 60. Charges and Liahility Proportioned to 
 
 Value. 
 
 To what extent is a common carrier entitled to contract in lim- 
 itation of his common law liability ? This is a question, in so far 
 as it applies to carriers by land, upon which there has been ^reat 
 contrariety of opinion in different courts, the earlier cases holding 
 that it was against public policy, and hence impossible, for com- 
 mon carriers to guard themselves by any stij^ulations whatever 
 against liability from loss arising from any other cause than the 
 act of God or the public enemy. TTliile the later cases have ma- 
 terially modified this rule in the carrier's favor, and while he 
 could not become either an ordinary bailee or a private carrier, 
 permitted him not only to contract so as to change the extent of 
 his liability as fixed by the common law, but such contracts — 
 within the reasonable limit recognized by modern decisions — when 
 made with his employer, became almost entirely the measure of 
 his responsibility, in case of loss, although they do not change his 
 status as a common carrier nor his duty as such in any other re- 
 gard, for nothiiig the carrier can do will change his actual position 
 as a common carrier, in his relation to his employer. But all 
 13 193
 
 194 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 stipnlations in contracts by carriers amounting to a denial or re- 
 pudiation of the duties which are of the very essence of their em- 
 ployment will be regarded as unreasonable, contrary to public 
 policy, and void.' 
 
 The decided weight of the authorities, as well as the better rea- 
 son, favors the rule that a common carrier may, to a great extent 
 at least, contract in limitation of his common law liability, " pro- 
 vided," as stated in Southern Exp. Co. v. Caldwell, 88 U. S. 21 
 "Wall. 264, 22 L. ed, 556, " the limitation be such as the law can 
 recognize as reasonable and not inconsistent with sound pul)lic 
 policy." The shipper and the common carrier are thus authorized 
 to enter into an express agreement, within certain limits, as to 
 the terms upon which the latter will transport and convey for the 
 former a certain article of personal property of an agreed value 
 to a designated place for an agreed price. The recognition of the 
 validity of such an agreement is not violative of any sound rule 
 of public policy. Indeed, public policy requires the upholding of 
 such an agreement as tending to the honest disclosure of value on 
 the part of the shipper, and the exercise of that degree of dili- 
 gence on the part of the carrier which is commensurate with the 
 value of the particular article conveyed, and the price paid for 
 such conveyance. To illustrate : A has a box of tinware of the 
 value of live dollars, which he wishes to send to Boston by B, a 
 common carrier. The box is delivered to B, under an agreement 
 that no sum beyond $50 shall be collected in case of loss, at which 
 
 ^Louimlle, iV. A. & C. R. Co. v. Faylor, 126 lad. 126; The Hugo, 57 Fed. 
 Rep. 403; Oalveston, H. & S. A. R. Go. v. Ball, 80 Tex. 602; Boehl v. Chi- 
 cago, M. & St. P. R. Co. 44 Minn. 191; Davidson v. Oraham, 2 Ohio St. 
 IBl; Neio York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 857, 21 L. ed. 
 627; Hooper v. Wdls, Fargo tfe Co. 27 Cal. U. 85 Am. Dec. 211; Missouri, 
 K. & T. R. Co. V. Graves (Tex. App.) May 3, 1890; Fort Worth & D. G. 
 R. Co. V. Oreaihouse, 82 Tex. 104; GhriUenson v. American Exp. Go. 15 
 Minn. 270, 2 Am. Rep. 122; Atchison, T. & S. F. R Co. v. Temple, 13 L. R. 
 A. 362, 47. Kan. 7; Durgin v. American Exp. Co. (N. H.) 9 L. R. A. 453; 
 Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 180, 23 L. ed. 872, 875; 
 Kirhy v. Adams Exp. Co. 2 ]\Io. App. 369; Missouri Pac. R. Co. v. Smith, 
 84 Tex. 348. But see Elliott v. JVew York Cent. & H. R. R. Co. 33 N. 
 Y. S. R. 801; Kenny v. Ne^D York Cent. & U. R. R. Co. 125 N". Y. 422; 
 American Exp. Co. v. Sands, 55 Pa. 140; Orogan v. Adams Exp. Co. 114 
 Pa. 523, 60 Am. Rep. 300; Johnson v. Alabama & V. R. Co. 69 Miss. 191; 
 Louisville tfi N. R. Co. v. Owen, 14 Ky. L. Rep. 118; Alabama O. S. B. Co. 
 V. Thomas, 83 Ala. 343.
 
 CiiAKGES AND LIABILITY PKOPOKTIONED TO VALUE. l'J5 
 
 sum the article is valued, unless another value is expressly fixed in 
 tlie agreement, no information being given as to the contents of 
 said box. What is the degree of care which B is expected to ex- 
 ercise in the transportation of this box ? Manifestly that degree 
 of care which is commensurate with a box wliose value does not 
 exceed that stipulated in the contract, to wit, ^50. B's maximum 
 lialjility in case of loss being known to him beforehand, he will 
 naturally exercise such a degree of care as would ordinarily insure 
 the safe delivery at its destination of an article of this value. 
 Moreover, he is only paid for assuming a risk to tlie extent of $50, 
 and he has graduated his charge for carriage accoi'dingly. Such 
 an agreement certainly strikes one as eminently fair and reason- 
 able. IS^ either party is deceived or misled thereby. The shipper 
 on the one hand is insured of the safe delivery of his goods at 
 their destination, or their value in money, in case of loss, and the 
 carrier, on the other hand, proportions his care to the liability 
 which he has assumed. Both parties thus act understandingly 
 and intelligently. There is little opportunity for fraud on the 
 part of the shipper, and none for overcharge on the part of the 
 carrier. To illustrate again : A wishes to send a box of diamonds, 
 valued at $500, to Boston, Mass., and employs B, a common car- 
 rier, to transport the same thence under an express agreement 
 which stipulates, among other things, that the value thereof is 
 S50, the charge for expressage being based upon that valuation. 
 As in the former case, B assumes, and has the right to assume, 
 that the value of this package does not exceed the sum of $50, 
 and he therefore proportions his care accordingly. The package 
 is lost by B, whereupon A seeks to hold him liable for the actual 
 value of said package, which was many times larger than that 
 agreed upon. B was only paid for the care and transportation of 
 a package of the value of $50, and the degree of care which he 
 used was sufficient for a transaction of that sort, while it was quite 
 insufficient for a transaction of the sort which he was induced by 
 misrepresentation on the part of A to undertake. Had he been 
 apprised of the actual value of this package, he would have ex- 
 ercised that degree of care which was commensurate therewith, 
 and would also have graduated his charge accordingly. To allow
 
 lyt> rHEIUHT CHAKGES REGULATED BY VALUE OF ARTICLE. 
 
 A to repudiate his contract with B in case of loss, and hold tlie 
 latter to his strict common law liability, under the circumstances, 
 is little less than to permit him to perpetrate a fraud under the 
 guise of enforcing a legal right. This illustration fairly shows 
 the unreasonableness and injustice of any other rule of liability. 
 But the main contention adverse to this position is that a common 
 carrier cannot limit its liability for loss of goods occasioned by its 
 own negligence, and, in support thereof, several cases may be 
 cited. Thus, it is said that a shipper may agree, in consideration 
 of special rates or privileges, on values in case of loss or injury, 
 if the agreed values are not unreasonable or arbitrary and no 
 agreement is made exemj^ting the carrier from the consequences 
 of negligence or bad faith.' And that a stipulation in a freight 
 receipt limiting the amount for which the carrier will be liable, 
 can exempt the carrier from a greater responsibility only when a 
 loss occurs without the carrier's negligence or fault." A con- 
 tract between a carrier and an importer, providing that the 
 liability of the carrier for damage to valuable livestock shall 
 not exceed $100 for each animal except by special agreement, is 
 void as regards damages to the animals shipped, by the carrier's 
 negligence, and cannot be sustained as a valuation placed upon 
 the property,^ and a decision in a court of common pleas in Ohio 
 seems to deny that any incidental qualification of the carrier's 
 negligence is permissible, declaring that an agreed valuation of 
 property to be transported by a ])ublic carrier, forming the basis 
 for freight charges under a stipulation that no more than such 
 valuation shall be recovered by the shipper in case of loss or in- 
 jury to the property, even if caused by the negligence of the car- 
 rier, is not binding upon the shipper, and cannot defeat his right 
 to recover the market value of the property at the time and place 
 of shipment upon its loss by the carrier's negligence.^ There are 
 
 ' Georgia Pac. R. Co. v. Eugliart, 90 Ala. 36. 
 
 » Soulhern Exp. Co. v. Seide, 67 Miss. 609. See also Southern Piic. R. Co. v. 
 Maddox, 75 Tex. 300; St. Louis, A. & T. R. Co. v. RMins (Tex. x\pp.) 
 Dec. 14, 1889; Doan v. Si. Louis, K. & N. R. Co. 38 Mo. App. 408; The 
 City of Norwich, 4 Ben. 271. 
 
 3 Eelln V. St. Louis, K. & N. W. R. Co. 53 Fed. Rep. 903. 
 
 * Ambach'v. Baltimore & 0. R. Co. 30 Ohio L. J. 111.
 
 CHARGES AND LIABILITV PROPORTIONED TO VALUE. l!)7 
 
 many authorities that state the general rule that a carrier's liabil- 
 ity for negligence cannot be limited by a contract made directly 
 for that purpose.* 
 
 Unquestional^ly the better rule and the one sustained by the 
 best reason and authority, is that it is not competent for a common 
 carrier to stipulate for exemption from loss occasioned by his own 
 negligence or that of his servants. Such an exception is not just 
 and reasonable in the eye of the law. Nor is it necessary to ad- 
 mit such an exception, for a stipulation, fixing the value of live- 
 stock in a carrier's contract, if fairly made as the basis of the rate 
 of compensation for the carrier's services and risks, w411 constitute 
 the limit of recovery for loss of the stock, although it is caused 
 by the carrier's negligence ; but such limitation is invalid in case 
 of negligence, if its j^urpose was merely to limit the amount of 
 the carrier's liability ;' a carrier cannot fraudulently exempt 
 itself by contract from paying the full value of goods destroyed 
 or lost by its negligence, — as, by stipulating in a contract of ship- 
 ment that the amount of recovery for a stallion worth several 
 thousand dollars shall not exceed $200.' For, as stated by Blatcli- 
 ford, J., in Hart v. Pennsylvania R. Co. 112 U. S. 331, 340, 2S 
 L. ed. 717, 721, " The limitation as to value has no tendency to 
 exempt from liability for negligence. It does not induce want of 
 care. It exacts from the carriers the measure of care due to 
 the value agreed on. The carrier is bound to respond in that 
 value for any negligence. The compensation for carriage is 
 leased on that value. The shipper is estopped from saying that 
 the value is greater. The articles have no greater vahie for the 
 purposes of the contract of transportation between the j^arties 
 to that contract. The carrier must respond for negligence up to 
 that value. It is just and reasonable that such a contract fairly 
 
 ' Grogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360; Newborn v. Just, 3 
 Car. & P. 76; New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 
 U. S. 6 How. 344, 12 L. ed. 465; Snider v. Adams Exp. Co. 63 Mo. 376, 383; 
 Union Exp. Co. v. Oraham, 26 Ohio St. 595, 598; Michigan Cent. R. Co. v. 
 Hate, 6 Mich. 243; Western Transp. Co. v. Newhall, 24 111. 466, 76 Am. Dec. 
 760; Oraham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; Muser v. Ameri- 
 can Exp. Co. 1 Fed. Rep. 382; Southern Exp. Co. v. Seide, 67 Miss. 609. 
 
 ^Alair v. NortJiern Pac. B. Co. 19 L. R. A. 764, 53 Minn. 160. 
 
 * Baughman v, Louismlle, E. <& St. L. B. Co. 14 Ky. L. Rep. 268.
 
 198 FKEIGHT CHAKGES KEGULATED BY VALUE OF ARTICLE. 
 
 entered into, and where there is no deceit practiced on the ship- 
 per, should be upheld. There is no violation of public policy. 
 On the contrary it would be unjust and unreasonable, and would 
 be repuo;nant to the soundest principles of fair dealing, and of 
 the freedom of contracting, and thus in conflict with public pol- 
 icy, if a shipper sliould be allowed to reap the benefit of the con- 
 tract if there is no loss, and to repudiate it in case of loss." The 
 case from which we have thus quoted was one in which the loss 
 happened from the negligence of the defendant. The court 
 had previously declared in the same case (page 338) that "it 
 is the law of tliis court that a common carrier may by special 
 contract limit his common law liability ; but he cannot stipulate 
 for exemption from the consequences of his own negligence, or 
 that of his servants," thus expressly affirming the doctrine previ- 
 ously laid down by that learned court in New Jersey Steam Nav. 
 Go. V. Merchants Bank of Boston, 47 TJ. S. 6 How. 344, 12 L. 
 ed. 465; York Mfg. Co. v. Illinois Cent. R. Co. 70 U. S. 3 Wall. 
 107, 18 L. ed. 170; New York Cent. E. Co. v. Lookwood, 84 U. 
 S. 17 Wall. 357, 21 L. ed. 627; Southern Exp. Co. v. Caldwell, 
 88 TJ. S. 21 Wall. 264, 22 L. ed. 556; Ogdenslurg (& L. C. R. 
 Co. V. Pratt, 89 TJ. S. 22 Wall. 123, 22 L. ed. 827; Bank of Ken- 
 tucky V. Adams JExp. Co. 93 TJ. S. 174, 23 L. ed. 872; Grand 
 Trunk R. Co. v.. Stevens, 95 TJ. S. 655, 24 L. ed. 535; The Lyd- 
 ian Monarch, 23 Fed. Kep. 2. But although the loss did occur 
 from the negligence of the defendant, the court upheld the 
 agreement as to the value of the property on the ground, as 
 forcibly stated in the opinion, that there is no justice in allow- 
 ing the shipper to be paid a large value for an article which 
 he has induced the carrier to take at a low rate of freight on 
 the assertion and agreement that its value is a less sum than tha: 
 claimed after a loss. It is just to hold the shipper to his agree- 
 ment, fairly made, as to value, even where the loss or injury has 
 occurred through the negligence of the carrier. 
 
 A stipulation of value, if fairly made as the basis of the rate of 
 carringe for the risk involved and the care exacted, will limit the 
 recovery, although it is caused by the carriers negligence ; but if 
 its purpose was merely to limit the amount of the carrier's liabil-
 
 CHARGES AND LIABILITY PROPORTIONED TO VALUE. 199 
 
 itj for his negligence, it is invalid.' The effect of the agreement 
 is to cheapen the freight and secure the carriage, if there is no 
 loss ; and the effect of disregarding the agreement, after a loss, is 
 to expose the carrier to a greater risk than the parties intended 
 he should assume. 
 
 The agreement as to value, in such case, stands as if the carrier 
 had asked the value of the property, and had been told by the 
 plaintiff the sum inserted in the contract. The rule laid down in 
 Grogan v. Adam.s Exp. Co. 114 Pa. 523, 60 Am. Eep. 360, that 
 " an express company cannot by special contract or special accept- 
 ance limit its liability for loss of goods, resulting from the negli- 
 gence of the company or its servants," is not in conflict with the 
 case just quoted from upon this point, and it seems that the 
 learned court which rendered this decision, misapprehended the 
 ruling in Hart v. Pennsylvania R. Co. 112 U. S. 331, 2S L. ed. 
 717, in declaring that that case had decided that a common car- 
 rier could limit its liability even as against its own negligence. 
 The real distinction between these two cases is not in the rule 
 adojited by each, but in the application thereof. In the Grogan 
 ■case the court holds that an agreement as to value in case of loss 
 by negligence is not binding on the parties, on the ground that 
 to hold the contrary would be to uphold the carrier in stipulating 
 against his own negligence, although it holds at the same time 
 that an agreement as to value '' would be a protection against lia- 
 bility beyond that amount except for negligence.'' In this re- 
 spect the court folloAved the case of American Exjy. Co.\. Sands, 
 55 Pa. 140, and Farnham v. Camden & A. H. Co. 55 Pa. 53, 
 that is to say, these cases hold that an agreement as to value in 
 case of loss is valid and binding, excepting only where the loss is 
 occasioned by the negligence of the common carrier or his servant ; 
 while in the Hart case, before referred to, the court holds that 
 the agreement as to value is also valid and binding where the loss 
 is occasioned by the negligence of the common carrier, and that 
 so to hold " has no tendency to exempt from liability for negli- 
 gence." The reasoning in the last named case is cogent and con- 
 
 1 Alnir v. Northern Pac. R. Co. 19 L. R. A. 764, 53 Minn. 160.
 
 200 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 vincing, and will be generally accepted in preference to the au- 
 thorities which hold to the contrary.' 
 
 In a court which had followed the Grogan case to some extent, 
 a recent decision is to the effect that while a carrier cannot wholly 
 exempt himself from liability for negligence, he may, by special 
 contract fairly made with the shipper and signed by him in con- 
 sideration of a reduced freight cliHrge, restrict his lial)ility for 
 loss, even through his prima facie negligence, to a valuation fixed 
 by the agreement." Where a shipping receipt, signed by the car- 
 rier's agent only, limited the amount for wliich damages would 
 be paid, while a special agreement under seal signed by the ship- 
 per was void as against public policy because attempting to re- 
 lease the carrier from all liability, if both papers constitute but. 
 one contract both are tainted by the illegality, and are therefore 
 void.^ And to shield the carrier in case of his neglect, that cause 
 must be expressly stated or .distinctly expressed. A clause in a 
 bill of lading which contains a stipulation as to the value of the 
 property and a contract to carry it at reduced rates, that such 
 valuation shall cover loss or damage from "any cause whatever," 
 does not limit the amount of recovery to such valuation, where 
 the loss is due to the carrier's negligence." But the rate of 
 charges as shown by the waybill for an article requiring special 
 care, if it does not expressly contract to excuse the carrier from 
 the exercise of the care required by law, although it is the rate 
 for transportation by ordinary cars, will not limit the care to be 
 exercised by the carrier or restrict its liability." General words 
 limiting the amount of liability will not extend to losses occa- 
 
 ' See also Oppenheimer v. United States Exp. Co. 69 111. 63, 18 Am. Rep. 596; 
 Kallman v. United States Exp. Co. 3 Kan. 205; Brehme v. Adams Exp . Co. 25 
 Md. 328; Snider v. Adams Exp. Co. 63 Mo. 376; Levy v. Southern Exp. Co. 
 4 S. C. 234; Boorman v. American Exp. Co. 21 Wis. 154; Ballou v. Earle, 
 14 L. R. A. 438, 17 R. I. 441. 
 
 ^Zouch V. Chesapeake & 0. B. Co. 17 L. R. A. 116, 36 W. Va. 524. 
 
 ^Woodburn v. Cincinnati, N. 0. & T. P. R. Co. 40 Fed. Rep. 731. 
 
 < Weiller v. Pennsylvania R. Co. 134 Pa. 310; Westcott v. Fargo, 61 N. T. 542, 
 19 Am. Rep. 300; BUick v. Goodrich, 55 Wis. 319, 42 Am. Rep. 713; In- 
 dianapolis & C. R. Co. V. Cox. 29 Ind. 360, 95 Am. Dec. 640; Vroman v. 
 A)nei'ican Merchants U. Exp. Co. 5 Thomp. & C. 22. 
 
 » Beard v. Illinois Ce7it. R. Co. 7 L. R. A. 280, 79 Iowa, 518.
 
 TARIFF VALUE AND LIABILITY MUST BE IN PROPORTION. 201 
 
 sioned by negligence. Such a limitation as to negligence must 
 be clear and explicit.' 
 
 § 51. Tariff Yalue and Liahility must he in Rea- 
 sonable Fropoi'tion. 
 
 There must not be an nnveasonable difference between the 
 charges made with and without the limitation of liability.'' A 
 consideration such as a reduction of rates or some other advantage 
 or benefit is necessary to support a special agreement limiting the 
 amount of liability in case of negligence.' A stipulation placing 
 an agreed valuation upon goods delivered to an express company 
 for transportation, which is inserted in the shipping receipt and 
 is designed to fix the extent of the company's liability in case the 
 goods are lost, is binding on the shipper if he understands its 
 purpose and knows that the freight cliarges are proportioned to 
 the nature and extent of the risk; and the fact that neither the 
 value of the goods nor the rate of charges is asked in a particular 
 case is immaterial.'' Where the receipt or contract of a common 
 carrier contains a stipulation that the company is not to be held 
 liable for any loss or damage, except as forw^arders only, nor for 
 any loss or damage of any box, package or thing for over ,$50, 
 unless the just and true value thereof is stated in such receipt, 
 and where the receipt fails to show any value of the box or goods 
 shipped, the receipt or contract, if fr.irly and voluntarily entered 
 into, will be upheld as a proper and lawful mode of securing a 
 due proportion between the amount for which the carrier may 
 be responsible and the freight he receives, when the loss or injury 
 to the box or goods carried results only from slight, common, or 
 ordinary negligence on the part of tlie carrier, its agents or serv- 
 ants.* A limitation of amount of liability is valid also in respect 
 to baggage where extra compensation is required for greater 
 
 ' PJack V. Goodrich Transp. Co. and Westcott v. Fargo, supra. See, ante, § 16. 
 
 * Harrison v. London, B. & S. C. R. Co. 2 Best & S. 123. 
 
 'Bonn V. 8t. Louis, K. & N. W. R. Co. 38 Mo. App. 408; Adams Exp. Co. v. 
 
 Ilarris. 120 Ind. 73; McFaddenv. Missoicri Pac. R. Co. 92 Mo, 313. 
 *Durgin v. American Exp. Co. (N. H.) 9 L. R. A. 453. 
 » Pacific Exp. Co. v. Foley, 12 L. R. A. 799, 4G Kau. 157.
 
 202 FKEmHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 value.' But a passenger who pays extra freight for a package 
 after disclosing the contents to the agent is not limited in recov- 
 ering for the loss of the same, bj the provisions in her ticket that 
 no more than £5 can be recovered for the loss of baggage.* A 
 carrier may contract for exemption from liability for freight be- 
 yond a stipulated sum unless its just and true value is stated.' 
 According to the decided weight of modern authority, a valid 
 contract limiting the liability of a carrier to a certain agreed 
 valuation of the property carried, may be made where it is just and 
 reasonable in its terms and a reduced rate of freight is made the 
 consideration for it.* A shipper of goods who by special contract 
 agrees upon a value to be placed upon them in case of loss, and in 
 consideration thereof obtains a reduced rate of transportation, is 
 bound by his agreement, and is estopped from showing that the 
 real value of the goods was greater than that specified in the con- 
 tract.* A limitation of the liability of a carrier, to a specified 
 amount, for property carried at a reduced rate, is valid.' A stip- 
 ulation in the contract of shipment by the railroad company, that 
 in the event of the loss or damage to goods the company will only 
 be responsible for their value at the place and time of shipment, 
 is just and reasonable.' A limitation of liability as to amount in 
 
 ^New York Cent. & E. R. R. Co. v. Fmloff, 100 U. S. 24, 25 L. ed. 531; Hop- 
 kins v. Westcott, 6 Blalchf. 64. 
 
 * Wanserberg v. Cunard Steamship Co. (N. Y. City Ct.) 8 Misc. 78, 58 N. Y. 
 S. R. 838. 
 
 'Boorman v. American Exp. Co. 21 Wis. 154. 
 
 ^Bichmond & D. R. Co. v. Payne, 6 L. R. A. 849, 86 Va. 481 : Louisville & N. 
 R. Co. V. Manchester 3Mls, 88 Tenn. 653; Louisville (& ]V. R. Co. v. Sherrod, 
 84 Ala. 178; Hart v. Pennsylmnia R. Co. 112 U. S. 331, 28 L. ed. 717; 
 Bradford v. Cunard SS. Co. 147 Mass. 58; Berger v. Dinsmore, 51 N. Y. 
 166, 10 Am. Rep. 575; Brown v.WabasIi, St. L. <& P. R. Co. 18 Mo. App. 
 568; Si. Louis, L M. & S. R. Co. v. Weakly, 50 Ark. 397; St. Louis, L M. & 
 S. R Co. V. Lesser, 46 Ark. 236; Squire v. New York Cent. R. Co. 98 Mass. 
 239, 93 Am. Dec. 162; Earnest v. Southern Exp. Co. 1 Woods, 573; Muser 
 V. Holland, 17 Blatchf . 412; Muser y. American Exp. Co. 1 Fed. Rep. 382; 
 Zimmer v. Neto York Cent. <& H. R. R. Co. 42 N. Y. S. R. 63; Steers v. Liv- 
 erpool, N. Y. & P.SS. Go. 57 N. Y. 1, 15 Am. Rep. 453; Nicholson v. Wil 
 Ian, 5 East. 507; Izett v. Mountain, 4 East, 371; Clay v. Wtllan, 1 H. Bl. 
 298; M'Cance v. London & N. W. R. Co. 7 Hurlst. & N. 477; Kallman v. 
 United States Exp. Co. 3 Kan. 205. 
 
 « Johnstone v. Richmond & D. R. Co. 39 S. C. 55. 
 
 * Zimmer v. New York Cent. & H. R. R. Co. 42 N. Y. S. R. 63. 
 
 ^Louisville & N. R Co. v. Oden, 80 Ala. 38; Phn-nix Lis. Co. v. Ei-ie & W. 
 Transp. Co. 117 U. S. 314, 322, 29 L. ed. 873, 878.
 
 TARIFF VALUE AND LIABILITY MUST BE IN PROPORTION. 2U3 
 
 case of loss of the goods shipped is vaHd if agreed to by the ship- 
 per." 
 
 A common carrier may by special contract limit his liahility for 
 loss of goods to an amount agreed on as the value, in consideration 
 of a reduced rate of freight, provided no extortion or coercion is 
 practiced or threatened, and no undue advantage taken of the 
 sliipper; but such special contract does not protect the carrier 
 against Hal)ility for fraud, nor for intentional, wanton, or reckless 
 neglio-ence.^ That a fair bona tide valuation of ffoods as a basis 
 for the charges of a carrier is binding on the shipper, is decided 
 in many cases, and no well considered case is to the contrary.' A 
 limitation of the recovery to the amount of the invoice or de- 
 clared value of the goods, is reasonable, and may be enforced al- 
 though the loss was occasioned by negligence." Where the car- 
 rier, by contract, limits his liability to a certain amount, unless 
 the value of goods is stated at time of shipment, silence as to 
 value on part of shipper, although no inquiry is made by carrier, 
 and no artifice used to deceive him or conceal the value, will 
 operate to relieve him from liability for ordinary negligence be- 
 yond the amount limited.^ 
 
 It is proper for the carrier to make inquiry as to the value of 
 the o-oods delivered to him, and the consig-nor must answer at his 
 peril ; and if such inquiry is not made, and the goods are received 
 at such valuation as is asked with reference to its bulk, weight 
 
 ^Fay V. The New World. 1 Cal. 348; Lawrence v. New York, P. & B. R. Co. 36 
 
 Conn. 63; Chicago. R. I. & P. R. Co. v. Harmon, 17 111. App. G40; Broicn v. 
 
 WubaKh. St. L. & P. R. Co. 18 Mo. App. 568; Newstadt v. Arhnm, 5 Diier, 
 
 43; Moriarty v Harnden's Express, 1 Daly, 227; Belger v. Dinsntore, 51 N. 
 
 Y. 160, 10 Am. Rep. 575; Elkins v. Empire Tramp. Co. 81* Pa. 315. 
 » Louisville d N. R. Co. v. Sherrod, 84 Ala. 178. 
 * Newburger v. Howard & Co's Express, 6 Phila. 174; South & North Ala. R. 
 
 Co. V. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Durgin v. American Express 
 
 Co. (N. H.) 9 L. R. A. 453; Louisville <& N. R. Co. v. Oden, 80 Ala. 38;' Hill 
 
 V. Boston, H. T. cfc W. R. Co. 144 Mas.s. 284; Harvey v. Terre Haute & L R. 
 
 Co. 74 Mo. 538; Graves v. Lake Shore & M. S. R. Co. 137 ]Mass. 33, 50 Am. 
 
 Rep. 283. 
 *TheLydian Monarch, 23 Fed. Rep. 298; The Hadji. 18 Fed. Rep. 459; Alair 
 
 V. Northern Pac. R. Co. 19 L. R. A. 764, 53 Minn. 160. 
 *Magnin v. Dinsmore, 70 N. Y. 410, 26 Am. Rep. 608, affirming 60 N. Y. 35, 
 
 20 Am. Rep. 442, 50 How. Pr. 457. See, also. B>''grr v. JJin-ymore, 51 N. 
 
 Y. 166, 10 Am. Rep. 575; Steers v. Liverpool, N. Y. & P. SS. Co. 57 N. Y. 
 
 1; Landsberg v. Dinsmore, 4 Daly, 4U0.
 
 204 FKEIGHT CHAEGES KEGULATED BY VALUE OF ARTICLE. 
 
 or external ap23earance, the carrier has been held liable for 
 the loss, irrespective of its value.' IS'oncompliance with condi- 
 tions in a shipping receipt, that the carrier will not be liable for 
 loss of statuary unless a memorandum in writing stating the char- 
 acter and value of the articles is delivered by the shipper and an 
 extra compensation paid, and that marble, unless otherwise ex- 
 pressly agreed, is taken at owner's risk, will not relieve the car- 
 rier from liability for negligence, if he is informed before ship- 
 ment of the special and unusual value of the goods shipped.^ If^ 
 after the refusal to state the value, the carrier does not insist on 
 a higher rate, his liability may, if the circumstances justify it, be 
 treated as a waiver, and his liabilit}^ treated as at connnon law.' 
 Thus, a stipulation limiting the amount of liability did not pre- 
 vent recovery for the full value in case of loss by negligence, 
 where the shipper refused to state the value, although a larger 
 charge would have been made if he had stated it." An agree- 
 ment in a bill of lading that, in case of loss of the goods shipped, 
 damages shall be recovered at the rate of $5 per 100 jjounds,. 
 without reference to the actual value of the goods, is both unrea- 
 sonable and arbitrary and is not binding on the shipper.* In 
 other cases which also deny the validity of such contracts, the lim- 
 itation did not purport to be based on the value of the property.^ 
 Aii arbitrary valuation put upon goods by the carrier, without any 
 request or any valuable consideration will not be binding on the 
 shipper.'' So an amount inserted in a bill of lading by the car- 
 rier's agent without any questions as to the value of the property^ 
 
 1 Gorhnm Mfg. Co. v. Fargo, 45 How. Pr. 90, 3 Jones & S. 434. 
 "^ Rathhone v. New York Cent. & H. R. R. Co. 140 N. Y. 48. 
 
 2 Behreno v. Oreat Northern R. Co. 31 L. J. Exch. 299. 
 
 ^ Conover v. Pacific Exp. Go. 40 Mo. App. 31. 
 
 * Georqia Pac. R. Co. v. Eughari, 90 Ala. 36; Lang v. Pennsylvania R. Co. 154 
 Pa. 342. 
 
 « Moulton V. St. Paul, M. <& M. R. Co. 81 Minn. 85, 47 Am. Rep. 781; Southern 
 Exp. Co. V. Moon, 39 Miss. 822; Chicago, St. L. & N. 0. R. Co. v. Abels, 60 
 Miss. 1017; Dmi^viUe & N. R. Co. v. Wynn, 88 Tenn. 320; Georgia Pac. R. 
 Co. V. Eughart, 90 Ala. 36 ; Levy v. Southern Exp. Co. 4 S. C. 234. 
 
 'tRoaenfeld v. Peoria. D & E. R. Cfl. 103 Ind. 121. 53 Am. Rep. 500; Baugh- 
 man v. Louisville, E. & St. L. R. Co. 14 Ky. L. Rep. 268.
 
 TARIFF VALUE AND LIABILITY MUST BE IN PROPORTION. 2U5 
 
 and without notice to the shipper of any difference in rates in 
 case of such limitation, was held not to hinit the carrier's liability.' 
 The rule and the reason thereof is well stated in Durghi v. 
 American Exp. Co. (N. H.) 9 L. R. A. 453. Defendant's agent 
 received from the plaintiff a box weighing thirty-seven pounds, 
 and containing silverware of the value of $G80.20, to be carried 
 by the defendants to the city of New York, and there delivered 
 to Theodore ]^. Starr. There was in the plaintiff's possession a 
 book of blank receijjts furnished him by the defendants, to be 
 tilled up and signed by the defendants on the delivery of the 
 goods to them for carriage. At the time of the reception of the 
 box in question, one of these receipts was signed and delivered to 
 the plaintiff' by the defendant's agent. The printed portion of 
 the receipt contains the following, among other stipulations : " It 
 is further agreed that this company is not to be held liable or re- 
 sponsible for any loss of or damage to said property, or any part 
 thereof, from any cause whatever, unless, in every case, the said 
 loss or damage be j)roved to have occurred from the fraud or 
 gross negligence of said company, or their servants ; nor in any 
 event shall this company be held liable or responsible, nor shall 
 any demand be made upon them, beyond the sum of $50, at which 
 sum said property is hereby valued, unless the just and true value 
 thereof is stated herein." The value of the box and contents was 
 not stated, nor was any inquiry concerning its value made by the 
 defendants or their agent, and neither the defendants nor their 
 agent liad knowledge of the value thereof. The sum to be charged 
 for carrying the box was not mentioned, and no charge therefor 
 was paid by the plaintiff, it being understood that the express 
 charges were to be paid by the consignee upon delivery. The 
 goods were never delivered, but were lost or stolen. The price 
 fixed by the defendants for the carriage of this l)ox was 75 cents, 
 but the plaintiff was not informed what the charge in this partic- 
 ular instance would be. If the actual value of the goods had been 
 stated, the regular express charge would have been $3.75. The 
 plaintiff" is, and for many years has been, a manufacturer of and 
 
 ' Chicago & N. W. Co. v. Chapman, 8 L. R. A. 508, 133 111. 96.
 
 206 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 dealer in silverware, at Concord, and during that time the defenc'- 
 ant company has received from him, to be carried by express, 
 thousands of packages and boxes, the value of which in many in- 
 stances was more than $50, giving receipts like that given on this 
 occasion, in which the value of the box or package was not in- 
 serted, and concerning which no information was given or inquiry 
 made. The receipt signed by the defendant's agent and servant 
 at the time of the delivery of the package was taken by the plain- 
 tiff as evidence of the fact and purpose of its delivery, and of the 
 terms and conditions on which the defendants received it. The 
 receipt was contained in a book of blank receipts previously fur- 
 nished by the defendants for the use of the plaintiff, and the writ- 
 ten portions were in his handwriting, and the court declared that 
 the law presumes that the contents were known to him. The 
 plaintiff understood it to be the shipping contract, and, in the ab- 
 sence of fraud, by receiving it without objection,he was conclusively 
 presumed to assent to its conditions.* It is recognized that it is 
 now generally held that the responsibility imposed on the carrier 
 of goods by the common law may be restricted and qualified by 
 express stipulation, where such stipulation is just and reasonable ; 
 and a stipulation that the carrier shall be informed as to the value 
 of tlie goods delivered to him for carriage, as affecting the risk, 
 and the degree of care required, is clearly reasonable. 
 
 In 3Ioses v. Boston <& M. R. Co. 34 N. H. 90, while adhering 
 to the rule that the legal responsibility of a common carrier can- 
 not be discharged by a public notice, the court says: "We do 
 not mean to hold that there are no cases in which the carrier may, 
 by notice, define and qualify his responsibility. It may be quite 
 reasonable that he should insist on proper information as to the 
 value of the article which he carries. This would not seem to be 
 any infringement upon the principle of the ancient rule. He 
 must have a right to know what it is that he undertakes to carry, 
 and the amount and extent of his risk. We can see nothing that 
 ought to prevent him from requiring notice of the value of the 
 commodity delivered to him, when, from its nature, or the shape 
 
 ^ Merrill Y. American Exp. Co. 63 N. H. 514; Grace v. Adams, 100 Mass. 505, 
 97 Am. Dec. 117, 1 Am. Kep. 131.
 
 TAKIFF VALUE AND LIABILITY MUST BE IN PKOPOKTION. 2U7 
 
 and condition in which he receives it, he may need the informa- 
 tion ; nor why he should not insist on being paid in proportion to 
 the vahie of the goods, and the consequent amount of his risk." 
 In conformity with these views, conditions and sti})u]atiuns de- 
 signed to secure to carriers information as to the character and 
 value of the articles delivered to them, and to limit their respon- 
 sibility to the amount and extent of the risk apparently assumed 
 by the carrier and paid for by the customer, are upheld as just 
 and reasonable.' In Durgin v. American Exj). Co. (N. II.) 9 L. 
 K. A. 453, the stipulation as to an agreed valuation inserted in 
 the shipping receipt taken by the plaintiff was designed to deter- 
 mine the extent of the defendants' liability in case of loss of the 
 goods, and the plaintiff so understood it. The plaintiff also knew 
 that the freight charges were proportioned to the nature and ex- 
 tent of the risk, and, although in this instance the express charges 
 were not mentioned, the presumption is conclusive that the plain- 
 tiff knew that the rate would be largely increased if it was fixed 
 by the actual value of the package. The case states that the 
 plaintiff had previously sent thousands of packages and boxes by 
 the defendants, the value of which in many instances exceeded 
 $50, and that the price fixed by the defendants for tlie carriage 
 of the box in controversy was 75 cents, when, if the actual value 
 of the goods had been stated, the regular express charge would 
 have been $3.75. In the opinion of the court it does not change 
 the case that the price of carriage was not mentioned, or that no 
 inquiries were made as to the value of the contents of the box. 
 Plaintiff understood that the rate would be according to the reg- 
 ular express rates for the carriage of a box agreed to be of the 
 value of $50. The plaintiff' understood that he was securing 
 transportation of the box to IS'ew York at a reduced rate (in fact, 
 at one fifth of the regular rate) by calling the value $50 and as- 
 suming a portion of the risks of carriage himself; and, having 
 agreed upon a valuation for the purpose of fixing the express 
 
 ^Duntley v. Boston & M. R. Co. (N. H.) 9 L. R. A. 440: Ilart v, Pennsyl- 
 mnia R. Co. 113 U. S. 331, 28 L. ei. 717; Graces v. Lake Shore & M. S. 
 R. Co. 137 :Mass. 33; Little v. Boston. & M. R. Co. 66 Me. 239; Mif/n//i v. 
 Dimmore, 62 N. Y. 35, 20 Am. Rep. 442; St. Louis, L M. & S. R. Go. v. 
 Weakly, 50 Ark. 397.
 
 208 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 char2;es, he cannot insist that the goods are of greater value, for 
 the purpose of increasing his claim for damages for the loss. Nor 
 is it material whether the loss arose from the negligence of the 
 defendants, or some other cause. The defendants agreed to re- 
 respond in a sum not exceeding $50 in case of loss, and for the 
 purpose of the contract of transportation between the parties to 
 the contract the goods have no greater value.* But the rule has 
 this qualification, that an arbitrary limitation of the amount of 
 liability which is not made with reference to the actual value of 
 the property is not valid in case of the loss by the carrier's negli- 
 o-ence.^ And a general provision limiting the amount of liability 
 will not apply in case of the negligence of the carrier where the 
 amount is not fixed with reference to the value of the property.' 
 And a shipper who enters into an agreement with a carrier to ship 
 goods at reduced rates, in consideration of placing a valuation on 
 his property, is estopped in case of loss from clahning a higher 
 valuation, unless the loss results from the intentional, wanton, or 
 reckless negligence of the carrier.* A verbal statement of value 
 has been held suflicient.* 
 
 § S^. Tariff Based on Value, without Stating 
 Limit of Liability. 
 
 It is a rule established by some of the best authorities, and one 
 which may be recognized as expressing the law, that when a con- 
 tract is fairly made between shipper and carrier agreeing on the 
 valuation of the property carried, with the rate of freight based 
 on the condition that the carrier assumes liability only to the ex- 
 tent of the agreed valuation, even in case of loss or damage by the 
 
 1 nnrt V. Pennsylvania R. Co. 112 U. S. 331, 341, 28 L. e<1. 717, 721; Graves 
 
 V. Lake Shore & M. S. R. Go. supra; Bill v. Boston, H. T. <& W. R Co. 
 
 144 Mass. 284. 
 * MonUonv. St. Paul, M. & M. R. Co. 31 Minn. 85. 47 Am. Rep. 781; Georgia 
 
 Pac. E. Co. V. Hughart, 90 Ala. 36; Levy v. Southern Exp. Co. 4 S. C. 234. 
 ^ Adams Exp. Co. v. Sfettaners, 61 111. 184, 14 Am. Rep. 57; Alabama, G S. 
 
 R. Co. V. Little, 71 Ala. 611; Mobile & 0. R. Co. v. Hopkinx, 41 Ala. 486; 
 
 Orndorffy. Adams Exp. Co. 3 Bush, 194, 96 Am. Dec. 207; Kirby v. Adaim 
 
 Exp. Co. 2 Mo. App. 369. 
 ^ Zouch V. Chesapeake & 0. R. Co. 17 L. R. A. 116, 36 W. Va. 524. 
 ' Wilson V. Freeman, 3 Campb. 527.
 
 TARIFF BASED ON VALUE, WITHOUT STATING LIMIT. 209 
 
 negligence of the carrier, the contract will be upheld as a proper 
 and lawful mode of securing a due proportion between the amount 
 for which the carrier may be responsible and the freight he re- 
 ceives, and of protecting himself against extravagant and fanciful 
 valuations of the property after a loss has occurred.' But there 
 is a further question. In case of loss thr-ough negligence of the 
 carrier, is the shipper bound by the valuation which he, in answer 
 to the carrier's inquiry, gave to the property when shipped, and 
 which value was thereux^on inserted in the bill of lading, although 
 the bill of lading is silent as to the effect of such valuation upon 
 the shipper's liability, and he had no actual information, and did 
 not suppose, that his statement of value would aft'ect the liability 
 of the company in respect to the damage they would be liable to 
 pay in case of loss ? If the shipper, through his agent, signed a 
 bill of lading in which the value of the property was stated, in ac- 
 cordance with his own valuation, at $100, which in fact, was worth 
 $2000, does the fact tliat his first valuation was an honest mistake 
 affect the question of the carrier's liability? If he knew the 
 property to be worth a much larger sum when he gave the value 
 at $100, there was, at least, concealment, even though he did not 
 know or believe that such incorrect valuation would affect the 
 carrier's liability for damage in case of loss, and perhaps thought 
 it would only enable him to get a lower rate of freight. That the 
 valuation made by the shipper affects the care required to be taken 
 of it in transportation by the carrier, without an express, distinct 
 agreement to that effect, will not be questioned. No one but un- 
 derstands that his property, valued at $50, will get, and the law 
 will require, less care and protection in transporting it than prop- 
 erty valued at $1000, and that he will pay less for such trans- 
 portation, though it is of equal bulk. Upon the question whether 
 the carrier was negligent in transporting the property, its value, 
 as stated by the shipper, and relied on by the carrier, in the ab- 
 sence of anything which should cause him to discredit such valu- 
 
 ^Eart V. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717; Squire v. New 
 York Cent. & H. R. R. Co. 98 Mass. 239, 93 Am. Dec. 1()2; Graven v. 
 Lake Shore & M. S. R. Co. 137 Mass. 33, 50 Am. Rep. 282; Schouler, 
 Bailm. § 457. 
 
 14
 
 210 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 ation, would be conclusive, so far as value is an element of the 
 inquiry. It has been held that, if the owner conceal the value or 
 nature of the article, the carrier will not be liable for its loss. 
 Thus, Judge Kent (vol. 2, pt. 5, § 40) after stating the general 
 rule that a common carrier is answerable for the loss of a box of 
 goods though ignorant of its contents, and though those contents 
 be ever so valuable, unless he has made a special acceptance, says: 
 " But the rule is subject to a reasonable qualification, and, if the 
 owner be guilty of any fraud or imposition in respect to the car- 
 rier, — as by concealing the value or nature of the article, — he can- 
 not hold him liable for the loss of the goods. Such an imposition 
 destroys all just claims to indemnity, for it goes to deprive the 
 carrier of the compensation which he is entitled to in proportion 
 to the value of the article intrusted to his care, and the conse- 
 quent risk which he incurs ; and it tends to lessen the vigilance 
 that the carrier would otherwise bestow. Says Schouler, in his 
 work on Bailments & Carrier (§ 423) : " A carrier is to be charged 
 with no responsibility beyond what the thing appears on its face 
 and the proof at command to deserve ; and the sender whose con- 
 duct induces him to relax his guard, or goes to deprive him of his 
 just compensation, puts himself without the pale of justice." 
 That the value of the article, as stated by the owner, is a proper 
 element to be considered in measuring the care to be bestowed 
 upon it by the carrier, is beyond question. The reasoning of the 
 court in Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 
 717, tends very strongly to uphold the position that, in the case 
 of loss through its negligence, the shipper is bound by his own 
 valuation of the property when delivered for transportation, 
 though there was no express agreement to that effect. There was 
 an express agreement in that case, but the court seems to discuss 
 the question upon general principles. After quoting the above 
 passage from Kent respecting it, it says : " This qualification of 
 the liability of the carrier is reasonable, and is as important as the 
 rule which it qualifies. There is no justice in allowing the ship- 
 per to be paid a large value for an article, which he has induced 
 the carrier to take at a low rate of freiglit, on the assertion and 
 agreement, tliat its value is a less sum than that claimed after a
 
 TARIFF BASED ON VALUE, WITHOUT STATING LIMIT. 211 
 
 loss. It is just to hold the shipper to his agreement, fairly made, 
 as to value, even when the loss or injury has occurred tlirough the 
 neo:lio;ence of the carrier. The effect of the agreement is to 
 cheapen the freight, and secure the carriage, if there is no loss ; 
 and the effect of disregarding the agreement after a loss is to ex- 
 pose the carrier to a geater risk than the parties intended he 
 should assume." The limitation as to value has no tendency to 
 exempt from liability for negligence. It does not induce want of 
 care. It exacts»from the carrier the measure of care due to the 
 value agreed on. The carrier is bound to respond in that value 
 for negligence. The compensation for carriage is based on that 
 value. The shipper is estopped from saying that the value is 
 greater. The articles have no greater value, for the purposes of 
 the contract of transportation, between the parties to that con- 
 tract. The carrier must respond for negligence up to that value. 
 It is just and reasonable that such a contract, fairly entered into, 
 and where there is no deceit practiced on the shi^jper, should be 
 upheld. There is no violation of public policy. On the con- 
 trary, it would be unjust and unreasonable, and would be repug- 
 nant to the soundest principles of fair dealing and of the freedom 
 of contracting, and thus in conflict with public policy, if a shipper 
 should be allowed to reap the benefit of the contract if there is 
 no loss, and to repudiate it in case of loss. 
 
 It would seem as if good morals required that the same rule 
 should hold good in respect to a statement of value made by a 
 shipper, even though there is no express contract that any loss 
 that might occur should be measured by such statement, as would 
 apply in case of an agreement that a statement of value should 
 govern in case of loss. A shipper should not be allowed to reap 
 the benefit of his statement of value, the natural consequence of 
 which causes the carrier to treat freight in a certain way, resulting 
 in its loss. Actual notice, given by a common cari-ier to his cus- 
 tomer, specifying the terms on which he receives and carries 
 goods, becomes parcel of the contract when it is proved that the 
 property was delivered on the terms thus oft'ered. xVnd, though 
 it be not made the basis of a contract, it often becomes effective 
 to shield the carrier from liability for things of special and pecu-
 
 212 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 liar value, not disclosed at the time of delivery ; for it appears to 
 be agreed that the carrier may in this manner require the shipper 
 to state the nature or value of the property, at the risk of having 
 it received and carried as an article of ordinary value. The car- 
 rier does not impose an illegal condition. He asks for reasonable 
 information bearing on the transaction ; and the shipper is left free 
 to act on his own discretion, accepting the legitimate consequences 
 of his conduct.' Why is it not a legitimate consequence of his 
 conduct to hold him to his own valuation when he» sues for loss of 
 the property so valued ? And wliy may not the carrier require 
 the shipper to state the nature or value of the property at the risk 
 of being obliged to stand by the value so stated, in reliance upon 
 which it has been accepted and carried, even though it is not made 
 the basis of a contract, as well as at the risk of having the prop- 
 erty carried as an article of ordinary value ? There is no reason 
 why the carrier should not make the demand and the shipper be 
 bound by his answer, and such is the rule of law.* 
 
 § 53. Fraud or Imposition Respecting Value and 
 
 Estoppel. 
 
 The principle which governs the compensation of carriers is 
 that they are to be paid in proportion to the risk they assume. 
 It is the duty of every person sending goods by a carrier to make 
 use of no fraud or artifice to deceive him, whereby his risk is in- 
 creased, or his care and diligence may be lessened.* Fraud, im- 
 position or unfair concealment as to the contents or value of the 
 goods, will relieve the carrier of responsibility.* The owner of 
 gold dust represented to be of a certain value less than its real 
 value, who pays the carrier for its transportation according to the 
 smaller value, and after it is lost by highway robbery accepts the 
 amount which he had represented it to be worth, and gives a re- 
 
 ' Edw. Bailm. § 569. 
 
 * Coupland v. Housatonic R. Go. 15 L. R. A. 534, 61 Conn. 531. 
 
 ^ Humphreys V. Perry, 148 U. S. 627, 87 L. ed. 587. 
 
 * Phillips V. Earle, 8 Pick. 182; Orange County Bank v. Brown, 9 Wend 116 
 
 24 Am. Dec. 129; Warner y. Western Transp. Co. 5 Robt. 490; Relfv.Bam 
 3 Watts & S. 21, 37 Am. Dec. 528.
 
 FRAUD OR IMPOSITION RESPECTING VALUE AND ESTOPPEL. 213 
 
 ceipt therefor, cannot recover the difference between that sum 
 and its real value, after the carrier has at large expense succeeded 
 in recovering the property.' The acceptance, without suit, of 
 an amount offered in payment of goods lost in transportation, 
 passes the title to the carrier. 
 
 A value voluntarily fixed by the shipper with a view to obtain 
 a low rate of freight without the carrier's knowledge that the 
 property was of greater value, will be binding where the contract 
 limits the recoV'ery to the sum agreed upon.' So a general limi- 
 tation of the amount of liability, unless the value of the goods is 
 stated, is valid where the shipper undertakes to send articles of 
 much greater value without notice to the carrier.' If the shipper 
 be guilty of any fraud or imposition in respect to the carrier as 
 by concealing the value or nature of the article, or delude him by 
 his own carelessness in treating the parcel as a thing of no value, 
 he cannot hold the carrier liable for the loss of the goods.^ Where 
 a trunk shipped on a steamship, contained jewelry, which fact 
 the shipper did not disclose, and the bill of lading contained a 
 provision that the carrier would not be responsible for the loss of 
 valuable articles unless their value was expressed in the bill of 
 lading and the shipper paid extra freight therefor, the carrier was 
 not liable for the loss of the jewelry caused by the trunk being 
 broken open and the jewelry stolen.^ The like rule applies to 
 the carrier, where the articles are plainly of much greater value 
 than the limit named in the receipt. In such case, no voluntary 
 statement of their actual value is required to enable the shipper 
 to recover that amount.^ 
 
 ' Scnmmon v. Wells, Fargo & Co. 84 Cal. 311, 42 Am. & Eng. R. Cas. 400. 
 ^Harvey v. Terre Haute & I. B. Go. 74 Mo. 538; Bosenfeld v. Peoria, D. <& E. 
 
 B. Co. 103 Ind. 121, 53 Am. Rep. 500. 
 3 Oppenkei7ner v. United States Exp. Co. 69 111. 62, 18 Am. Rep. 596; Brehme 
 
 V. Adams Exp. Co. 25 Md. 328; Magniii v. Binsmore, 62 N. Y. 35, 20 Am. 
 
 Pep. 442. 
 * Tichburne v. White, 1 Strange, 145; Phillips v. Earle, 8 Pick. 182; Malpica 
 
 V. McKoion, 1 La. 248, 20 Am. Dec. 279. 
 s The Bermuda, 29 Fed, Rep. 399. 
 ^ Down V. Fromont. 4 Campb. 40; Boseowitz v. Adams Exp. Co. 93 111. 523, 34 
 
 Am. Rep. 191; VanWinkle Y.Adams Exp. Co. 3 Robl. 59; Moses v. Boston 
 
 & M. B. Co. 24 N. H. 71, 55 Am. Dec. 222; Kansas City, St. J. & C. B. B. 
 
 Co. V. Simpson, 30 Kan. 645, 46 Am. Rep. 104; United States Exp. Co. v. 
 
 Backman, 28 Ohio St. 144; Beck v. Evans, 16 East, 243.
 
 214: FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 In a recent case' the action was in assumpsit to recover the sum 
 of $579, being the value of a box of diamonds which the plain- 
 tiff delivered to the servant and agent of the defendants to be bj 
 them transported by express to New Bedford, in the state of 
 Massachusetts. A jury trial was waived, and the case was tried 
 by the court on the law and the facts. The defendants, who are 
 common carriers of merchandise for hire, received from the plain- 
 tiff at Providence, on the 26th day of July, 1890, a package con- 
 taining diamonds of the value aforesaid, to be by them delivered 
 to the consignee, at New Bedford, Mass. The plaintiff had, and 
 for a considerable time previous to the above-named date had 
 had, in his possession and constant use a book of the defendants' 
 contract receipt blanks, at the top of each page of which was 
 printed what purports to be a mutual agreement betweeu the 
 shipper and the common carrier, which agreement, in so far as it 
 is material, provides that the defendants "are not to be held lia- 
 ble or responsible for any loss or damage to said property . . . 
 unless in every case the same be proved to have occurred from 
 the fraud or gross negligence of said express company, or their 
 servants; nor in any event shall the holder hereof demand beyond 
 the sum of $50, at which the article forwarded is hereby valued, 
 unless otherwise herein expressed, or unless especially insured by 
 them, and so specified in this receipt, which insurance shall con- 
 stitute the hmit of the liability of Earle & Brew's Express." One 
 of these blanks the plaintiff filled out for the addressed package 
 in question, but gave no value thereof, although there was a 
 blank column in said receipt marked "value." This receipt was 
 signed by the defendants' agent when the plaintiff gave the pack- 
 age to the agent. The defendants had no knowledge of the con- 
 tents or value of said package except as stated in said receipt at 
 the time of its delivery to them, nor did they make any inquiry 
 of the plaintiff concerning the same. This package was lost by 
 the negligence of the defendants' servant before it reached their 
 office, and said defendants admit their liability therefor under said 
 agreement, and offer to pay the said sum of $50, which, they con- 
 
 ^Ballou V. Earle, 14 L. R. A. 433, 17 R. I. 441. See post, chapter. VIII. § 72, 
 on "Contributory Negligence of Sliipper."
 
 FKATID OE IMPOSITION RESPECTING VALUE AND ESTOPPEL. 215 
 
 tend, is the limit of their liability. The plaintiff testifies that his 
 reason for not giving any value to the package was because the 
 expressage was to be paid by the consignee. The defendants, on 
 the other hand, testify that the reasons given them by the plain- 
 tiff for not giving any value to the package in said receipt were 
 that it cost more money, and that the consignee had previ- 
 ously com23lained of the charges of expressage in cases where the 
 values had been given, and that he adopted this mode to lessen 
 said charges. The court concludes that the purpose of the plain- 
 tiff in not giving any value to the package was to save, either to 
 himself or to the consignee, and it matters not which, the addi- 
 tional expressage which would have been charged by the defend- 
 ants if the real value had been given; for it must be presumed 
 from the terms of the receipt that, as the defendants assume a 
 liability only to the extent of the valuation therein named, the 
 rate of expressage is graduated by said valuation. Under this 
 state of facts the plaintiff's contention is that the express assent 
 of the owner of the goods to the restriction of the carrier's liabil- 
 ity must be found to give effect to it in any case. But the opin- 
 ion of the court is that the decided preponderance of the authori- 
 ties is to the contrary; and that the well settled rule now is, that 
 in the absence of fraud, concealment, or improper practice, the 
 legal presumption is that stipulations limiting the common law 
 liability of common carriers contained in a receipt given by them 
 for freight were known and assented to by the party receiving it.^ 
 In the case at bar a printed y<«c simile of the receipt in question 
 is produced, which shows in the opinion of the court that the 
 terms and conditions upon which the defendant received the goods 
 in question must have been well known to the plaintiff. And more 
 
 ^ Belgery. Dinmwre, 51 N. T. 166, 10 Am. Rep. 575; Steers v. Liverpool, N. 
 T.&P. SS. Co. 57 N. Y. 1, 15 Am. Rep. 453; Harris v. Great Western R. 
 Co. L. R. 1 Q. B. Div. 515; OermaniaF. Ins. Co. v. Memphis & C. R. Co. 72 
 N. Y. 90, 28 Am. Rep. 113; Quimby v. Boston <& M. R. Co. 5 L. R. A. 846, 
 150 Mass. 365; Burke y. South Eastern R. Co. L. R. 5C. P. Div. 1; Maghee 
 V. Camden & A. R. Transp. Go. 45 N. Y. 514. 6 Am. Rep. 124; Grace v. 
 Adams, 100 Mass. 505, 1 Am. Rep. 131, 97 Am. Dec. 117; Monitor Mut. F. 
 Ins. Co. y.Buffum, 115 Mass. 343; Hill y Syracuse, B. & N. Y.R. Co. 73 
 N. Y. 351, 29 Am. Rep. 163. For a full discussion of the contrary doctrine, 
 see Hollister v. Nowlen, 19 Wend. 234, 33 Am. Dec. 455, and cases cited.
 
 216 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 especially is this to be taken for granted from the fact that a book 
 of the defendants, filled with receipt blanks identical with this^ 
 was in the plaintiffs possession, and in almost daily use by hira. 
 From an examination of said fac simile it is evident that there 
 was not only no attempt to conceal the terms and conditions of 
 the bailment on the part of the defendants, but, on the other 
 hand, that it had been their purpose to make the same specially 
 prominent and noticeable. It is all printed on one side of the 
 paper, and at the top thereof. It is headed by the caution, 
 printed in bold type, " Read the Conditions of this Keceipt," and 
 all the printed matter precedes the signature of the agent of the 
 defendants. The conclusion is reached, therefore, that the re- 
 ceipt in question ought to be regarded as having received the as- 
 sent of the plaintiff, and as being, as its language purports, the 
 mutual agreement of the parties touching the package in ques- 
 tion. 
 
 § 54' Carrier May Recover Where Value of Goods 
 
 Concealed. 
 
 The right of the carrier to be compensated according to a stip- 
 ulation for payment of freight, based on the actual value of the 
 goods transported, was ruled in the United States District Court 
 for the Southern District of New York in a recent case. The 
 libel was filed to recover an alleged balance of freight due on an 
 importation of diamonds received by the respondent, and entered 
 by him at the customhouse under the bill of lading. The bill of 
 lading stated the value as 7000 francs, and upon receij^t of the 
 goods by the respondent the freight on that valuation was paid. 
 The bill of lading stated that an additional freight of 5 per cent 
 should be paid on the total value should the real value be discov- 
 ered to be greater than was declared in the bill of lading. When 
 the freight upon the valuation of 7000 francs, as stated in the 
 bill of lading, was paid to the libelants, and the goods delivered 
 by them to the respondent, they had no knowledge that the real 
 value of the diamonds in the package was any greater. The re- 
 spondent, however, had knowledge of their greater value, and
 
 CAKRIEE MAY KECOVER WHERE VALUE OF GOODS CONCEALED. 217 
 
 entered them at the customhouse upon the same bill of lading 
 and upon an invoice that stated the value of the diamonds to be 
 27,616 francs. The libelants claim to recover the additional 
 freight of 5 per cent on the actual value, in accordance with the 
 stipulation of the bill of lading. The lawfulness of stipulations 
 of this character in favor of common carriers, to protect them 
 against unknown responsibilities, and to adjust the freight accord- 
 ing to the value and the responsibilities assumed, has been re- 
 peatedly upheld.' But for the respondent it is urged, in that 
 case, that he is not liable beyond the amount of freight paid, be- 
 cause he was only an agent to sell the goods on commission. The 
 vessel, however, it was answered by the court, had no knowledge 
 of this fact. The circumstances sufficiently show that it was the 
 intention of all parties that the respondent, as consignee, receiv- 
 ing the goods under the bill of lading, should pay whatever 
 freight w^as paj-able, according to the terms of the bill of lading. 
 It is not a case of any claim outside of the bill of lading, but of a 
 claim strictly pursuant to its express stipulation. The respondent 
 had full knowledge of its terras, and of the real value of the 
 goods, which determined the amount of freight actually payable. 
 There was a manifest attempt by the shipper to defraud the ship 
 of a part of its rightful freight. The consignee had notice of 
 this, and was bound to protect himself before turning over the 
 proceeds of sale. Under such circumstances it was of course un- 
 necessary to discuss theoretical questions as to the liability of a 
 mere agent as consignee to pay freight, where the circumstances 
 are different and of doubtful import.' But it was decided that 
 in cases where a consignee, though a factor only, has full notice 
 of all the facts, and obtain the goods under the bill of lading, 
 and on the obvious undertaking to pay the freight, and does pay 
 on the carriers' requirement at the time of delivery all the freight 
 that the carriers suppose to be due, the consignee is properly held 
 for any balance of freight, as well as demurrage, that may be 
 
 » See Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717; Liverpool c6 G. 
 
 W. Steam Co. v. Pheniv Ins. Co. ("The Montana") 129 U. S. 397, 442, 32 L. 
 
 ed. 788, 793; The Denmark, 27 Fed. Rep. 141; The Bermuda, 29 Fed. Rep. 
 
 399, and cases there cited. 
 » See Elwell v. Skiddy, 77 N. Y. 282; Sanders v. Van Zeller, 4 Q. B. 260, 294.
 
 218 FKEIGfiT CHAKGES KEGULATED BY VALUE OF ARTICLE. 
 
 actually owing according to the terms of the bill of lading upon 
 the actual value of which he had knowledge.* 
 
 § 55. Wl%e7i Limit Applies to Each Article. 
 
 "Whether the stipulation is to be limited to each article making 
 up the shipment must, in many cases, be determined by the par- 
 ticular facts and circumstances. Thus a limitation " for any loss 
 or damage of any box, package or thing for over $50 " in the 
 case of a shipment of three bales of cotton was held to apply to 
 each bale, making $150 for the shipment. So, a limit of damages 
 to the invoice price of goods is to be held as the invoice price of 
 each piece damaged." But where three articles were enclosed in 
 one, the limit included all the packages as one.' The limit in the 
 absence of any special circumstances to control the matter, must 
 be applied to the package and not to each article therein.* 
 
 § 56. Statutory Provisions Respecting Statement 
 
 of Value. 
 
 A stipulation is effective under U. S. Rev. Stat. § 4281, that 
 the carrier will not be liable for specified valuable articles on the 
 back, unless their value be expressed.* Limiting the amount of 
 recovery for wearing apparel to $100 in case of the loss of bag- 
 gage is invalid under Iowa Code, §§ 1308, 2184.' A contract 
 limiting the liability of a carrier to an amount less than the actual 
 value of the property carried is invalid where a statute prohibits 
 contracts exempting a carrier from the liability which would ex- 
 
 ' The Bermuda and TTie Denmark, supra; PMladelpMa & R. R. Go. v. Bar- 
 nard, 3 Ben. 39; Neilsen v. Jemp, 30 Fed. Rep. 138; Oates v. Ryan, 37 Fed. 
 Rep. 154, and cases there cited; Allen v. Coltart, L. R. 11 Q. B. Div. 782, 
 785; North German Lloyd v. Henk, 10 L. R. A. 814, 44 Fed. Rep. 100. 
 
 « Brown v. Gunard SS. Go. 147 Mass. 58; Pearae v. Quebec SS. Co. 24 Fed. 
 Rep. 285. 
 
 ^Wetzel V. Dimmore, 54 N. Y. 496. 
 
 '» Baxendale v. Great Eastern R. Co. L. R. 4 Q. B. 244; Bernstein v. Baxendale, 
 6 C. B. N. S. 251; Henderson v. London & N. W. R. Co. L. R. 5 Exch. 90. 
 
 » The Bermuda, 29 Fed. Rep. 399. 
 
 « Davis V. Chicago, R. I. & P. R. Co. 83 Iowa, 744.
 
 LIMITING TIME FOR COMMENCIN& ACTION. 219 
 
 ist without a contract.' Limitation of a carrier's liability for 
 goods lost in transportation to the value at the place of shipment 
 is invalid under the Texas statute.' A stipulation in a contract 
 of shipment, limiting the liability of the carrier to a certain 
 amount in case of damage to the property shipped, is not vaUd 
 and binding on the shipper; and he may recover the damages to 
 which he shows himself entitled under the measure of damages 
 fixed by law.' 
 
 § 57 . Limiting Time for Commencing Action. See 
 also jpost^ § 70 a, h. 
 
 The carrier is bound to perform the service upon being paid 
 therefor, and it is a policy, the propriety of which has been ques- 
 tioned in the highest courts, whether it should be allowed to exon- 
 erate itself, even from its full liability at common law, by an arti- 
 fice at the risk of injury of those who are, in the ordinary course 
 of business, compelled to employ its services." In a case where 
 one of the conditions of a telegraph company, printed in their 
 blank forms, was that the company would not be liable for dam- 
 ages in any case where the claim was not presented in writing 
 within sixty days after sending the message, it was ruled that the 
 condition was binding on an employer of the company who sent 
 his message on the printed form.^ The condition printed in the 
 form was considered a reasonable one, and it was held that the 
 employer must make claim according to the condition Ijefore he 
 could maintain an action.* A condition in a receipt that an ex- 
 press company should not be liable for damage, unless a claim 
 should be asserted within ninety days, will not limit a company's 
 
 ' Hart V. Chicago & N. TF. R. Co. 69 Iowa, 485. 
 
 « Qidf, C. & S. F. R. Co. V. Booton (Tex. App.) March 18, 1891; Taylor, B. & 
 
 H. R. Co. V. Montgomery (Tex. App.) April 29, 1891; Taylor, B. <& JI. R. 
 
 Co. V. tiubleit (Tex. App.) April 29, 1891. 
 ^8t. Louis, A. & T. B. Co. v. Robbins (Tex. App.) Dec. 14, 1889. 
 *Fillehrown v. Grand Trunk R. Co. 55 Me. 462, 92 Am. Dec. 606, and cases 
 
 cited; Blossom v. Dodd, 43 N. Y. 264, 3 Am. Rep. 701; Southern E.rp. Co. v. 
 
 Moon, 39 Miss. 822; Orndorffv. Adams Exp. Co. 3 Bush, 194, 96 Am. Dec. 
 
 207: Jones v. Voorhees, 10 Ohio, 145. 
 « Wolfv. Western U. Teleg. Co. 62 Pa, 83, 1 Am. Rep. 387. 
 « Young v. Western U. Teleg. Co. 2 Jones & S. 390.
 
 220 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 liability for refusal to pay money received on a draft taken for 
 collection/ And a similar doctrine has been applied to the con- 
 ditions printed at the head of a telegraphic blank/ Early adju- 
 dications, notably that of Gould v. Hill, 2 Hill, 623, and Jones 
 V. Voorhees, 10 Ohio, 145, were in contravention of the estab- 
 lished English rule, and held that a common carrier could not 
 limit his liability by recitals in the contract of carriage which 
 would absolve him from the results of negligence, however gross. 
 This doctrine, however, must be regarded as having been, in New 
 York, expressly repudiated.^ 
 
 It is no longer an open question whether the conventional lim- 
 itation stipulated for and agreed upon in a contract in bills of lad- 
 ing is reasonable and binding. Contracts limiting the time within 
 which suit shall be brought for any cause of action by the shipper 
 have been sustained where the time limited has been five days, 
 thirty days, and sixty days.* It is usual in policies of insurance 
 to contract, that after the right of action has accrued action must 
 be brought within some shorter period than that fixed by the 
 statute of limitations, and that the lapse of this period before ac- 
 tion is brought shall be conclusive evidence against any claim un- 
 der the policy. Such a condition is valid and binding.* A carrier 
 
 ' Bardicell v. American Exp. Co. 35 Minn. 344. 
 
 ^Breese v. United States Teleg. Co. 48 N. Y. 183, 8 Am. Rep. 526; Young v. 
 Wentern U. Teleg. Co. 2 Jones & S. 390; Wolf v. Western U. Teleg. Co. 63 Pa. 
 83, 1 Am. Rep. 387; MacAndrew v. Electric Teleg. Co. 17 C. B. 3, cited in 
 2 Am. L. Rev. 615, where the authorities are collected. 
 
 ^Dorr V. New Jersey S. Nav. Co. 4 Sandf. 136, 11 N. Y. 485, 62 Am. Dec. 
 125; Parsons v. Monteath,lZ Barb. 353; Mercantile Mut. Ins. Co. v. Cliase, 1 
 E. D. Smith, 115. 
 
 ■» Tliompson v. Chicago & A. R. Co. 23 Mo. App. 321. 
 
 ^Ripley v. JStna Ins. Co. 30 N. Y. 136, 86 Am. Dec. 362; Ames v. New York 
 U. ins. Co. 14 N. Y. 253; New York v. Hamilton F. Ins. Co. 39 N. Y. 46. 
 100 Am. Dec. 400; Williams v. Vermont Mut. Ins. Co. 20 Vt. 223; Wilson v. 
 yEt)m Ins. Co. 27 Vt. 99; Amesbury v. Bowditch Mut. F. Ins. Co. 6 Gray, 
 596; Fullam v. New York U. Ins. Co. 7 Gray, 61, 66 Am. Dec. 463; Peoria 
 M. & F. Ins. Co. V. Whitehill, 25 111. 466; Brown v. Roger Williams Ins. 
 Co. 7 R. I. 301; Patrick v. Farmers Ins. Co. 43 N. H. 621, 80 Am. Dec. 
 197; Portage County Mut. F. Ins. Co. v. West, 6 Ohio St. 599; Portage 
 County Mut. F. Ins. Co. v. Stukey, 18 Ohio, 455; Merchants Mut. Ins. Co. 
 V. Lacroix, 35 Tex. 249, 14 Am. Rep. 370; Carter v. Humboldt F. Ins. Co. 
 12 Iowa, 287; Riddlesbarger v. Hartford F. Ins. Co. 74 U. S. 7 Wall. 386, 
 19 L. ed. 257; Brown v. Savannah Mut. Ins. Co. 24 Ga. 97; Northwestern 
 Ins. Co. V. PJimnix Oil & Candle Co. 31 Pa. 448; Edwards v. Lycoming 
 County Mut. Ins. Co. 75 Pa. 378; Leadbetter v. ^tna Ins. Co. 13 Me. 267j
 
 LIMITING TIME FOE COMMENCING ACTION. 221 
 
 •may lawfully rcqnii-e that it shall not be held liable for damages 
 to goods carried by it, miless the shipper or consignee gives notice 
 of his claim for damages within a reasonable time.' A notice 
 within snch reasonable time after removal of freight as secures 
 the carrier from fraud is sufficient under a stipulation that the 
 -shipper must give written notice before removing the freight from 
 the place of delivery, if he could not discover the injury before 
 removal.'' A provision in a Ijill of lading, that the shipowner is 
 not liable for any claim of which notice is not given before the 
 removal of the goods, is reasonable and valid, especially where the 
 goods at the time of landing show indications of having been 
 damaged.^ 
 
 So a stipulation in a bill of lading which requires that damages 
 for the loss of goods while in transitu or before delivery, shall be 
 adjusted before their removal from the station, and the claim 
 therefor made within thirty days to the " trace agent " of the car- 
 rier, is a reasonable provision to protect the carrier against ficti- 
 tious and fraudulent claims. A clause contained in the bill of 
 lading, which provided that no claim for deficiency, damage or 
 detention will be allowed unless made within three days after the 
 delivery of the goods, nor for loss, unless made within seven days 
 from the time they should have been delivered — has been held 
 valid.* A provision of a contract of shipment, for notice by the 
 shipper to the carrier of any claim for damages thereunder within 
 five days from the time the property is unloaded, is a reasonable 
 one and is not rendered inoperative by a deviation from the pro- 
 visions of the contract as to the mode of transportation." A clause 
 ■virtually prescribing a statute of limitations of thirty days was 
 
 29 Am. Dec. 505; Cray v. Hartford F. Ins. Co. 1 Blatchf. 280; Southern 
 Exp. Co. V. Caldwell, 88 U. S. 21 Wall. 264. 22 L. ed. 556; contra, Eagle 
 l7is. Co. V. Lafayette Ins. Co. 9 Ind. 443; French v. Lafayette Ins. Co. 5 
 McLean, 461. 
 
 ' Coles V. Louisville, E. & St. L. B. Co. 41 111. App. 607. 
 
 « Western R. Co. v. Harwell, 91 Ala. 340. 45 Am. & Eug. R. Cas. 358. 
 
 » Angel v. Cunard SS. Co. 55 Fed. Rep. 1005. 
 
 * Lewis V. Great Western R. Co. 5 Hurlst. & N. 887. 
 
 ^Pavitt V. Lehigh Valley R. Co. 153 Pa. 302.
 
 222 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 sustained by the court.* And in other cases, if the claim was not 
 presented within sixty days.'' The question has been much 
 mooted, and it has been vigorous!}^ contended that the law alone 
 should establish limitations of actions. This view wasui\^ed upon 
 the attention of the court in Fullam v. New Yorh U. Ins. Co. 7 
 Gray 61, QQ Am. Dec. 462, but the court then denied the doctrine^ 
 and asserted that the opposite view had so long obtained there as 
 to become the settled law of the state.^ 
 
 It is claimed that the earlier decisions of JS^ew York took the 
 other view, which was adopted by the commissioners; but the 
 later view in New York and other states seems to be adopted by 
 the Supreme Court of the United States." There are, however, 
 very respectable authorities which announce the rule laid down 
 by the earlier decisions of New York.* In Southern Exj). Co. 
 V.Caldwell, in which a company provided in its receipt that 
 it would not be liable for loss on any package, etc., delivered to 
 it, unless claim should be made within ninety days, the Supreme 
 Court held that such contract was valid; and in an elaborate opin- 
 ion Justice Strong, referring to "the conflict existing in modern 
 decisions," as to how far the carrier may by contract limit his 
 common law liability, says: "All the modern authorities concur 
 in holding that, to a certain extent, the extreme liability exacted 
 by the common law originally may be limited by express con- 
 tract. The difficulty is in determining to what extent, and here 
 the authorities differ. Certainly it ought not to be admitted that 
 a common carrier can be relieved from the full measure of that 
 responsibility which ordinarily attends his occupation without a 
 
 ' Weir V. Adams Exp. Co. 5 Phila. 355; Boorman v. A^nerican Exp. Co. 21 
 
 AVis. 153; Oppenheimer v. United States Exp. Co. 69 111. 62, 18 Am. Rep. 
 
 596; Lewis v. Great Western B. Go. 5 Hurlst. & N. 867; Van Toll v. 
 
 Southeastern B. Co. 12 C. B. N. S. 75. 
 « Wvlfy. Western U. Teleg. Co. 62 Pa. 83, 1 Am. Rep. 887; Foung y. Western 
 
 U. Teleg. Co. 2 Jones & S. 390. 
 "And the same view is held in Brown v. Boger Williams Ins. Co. 5 R. I. 394; 
 
 Northwestern Ins. Co. v. Phoinix Oil <& Candle Co. 31 Pa. 448; Wihon v. 
 
 JEtna Ins. Co. 27 Vt. 99; Ames v. Mw York U. Ins. Co. 14 N. Y. 253. 
 * Southern Exp. Co. v. Caldicell, 88 U. S. 21 Wall. 264, 23 L. ed. 556. 
 « Eagle Ins. Co. v. Lafayette Ins. Co. 9 Ind. 443; French v. Lafayette Ins. Co. 
 
 5 McLean, 461.
 
 LIMITING TIME FOK COMMENCING ACTION. 223 
 
 clear and express stipulation to that effect obtained by him from 
 his employer. And even when such a stipulation has been ob- 
 tained, the court must be able to see that it is not unreasonable. 
 . . . Hence, as we have said, it is now the settled law that the 
 responsibility of the common carrier may be limited by an ex- 
 press agreement made with his employer at the time of his ac- 
 cepting goods for transportation, provided the limitation be such 
 as the law can recognize as reasonable, and not inconsistent with 
 sound public policy." The reasonableness of such a limitation was 
 settled in the affirmative by the decision in the case of Gulf, C. 
 cfc S. F. R. Co. V. Trawich, 68 Tex. 314, in which it was held 
 that such limitation was valid, though the contract was to be per- 
 formed wholly within the state. If the suit is not brought with- 
 in the forty days after the injury occurred, it is barred, and can- 
 not be maintained unless the plaintiff could show some reasonable 
 excuse for the delay. If the defendant, by negotiations for set- 
 tlement or otherwise, so acted as to justify reasonable belief on 
 the part of the plaintiff that his claim would be settled without 
 suit, and the plaintiff, acting on such belief, did not institute 
 suit until after the expiration of the forty days, the defendant 
 would be estopped from invoking the limitation. 
 
 A limitation by contract must, upon principles governing con- 
 tracts, be liable to be rejected or extended by any act of the 
 defendant which has prevented the plaintiff from bringing his 
 action within the prescribed period.' A promise by a carrier to 
 look up and adjust a claim made by letter is a waiver of a require- 
 ment that notice should be sworn to.* A provision in a shipjjing 
 contract, limiting the time for action thereon, is waived by in- 
 ducing the shipper by promise to pay to delay suit until after the 
 time expired.' A statement by a carrier upon the delivery of 
 part of a shipment of merchandise, that the remainder was miss- 
 ing and would be delivered in a few days, is a waiver of a clause 
 in the bill of lading providing that claims for loss or damage 
 
 > Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 210-213. 
 » Hess V. Missouri Pac. R. Go. 40 Mo. App. 202. 
 » Oulf, C. & 8. F. B. Co. V. Trawick. 80 Tex. 270.
 
 224 FREIGHT CHARGES KEGULATED BY VALUE OF ARTICLE. 
 
 shall be made in thirtj-six hours after delivery.' The clause in a 
 bill of lading requiring suit to be brought in forty days after the 
 damage shall occur, may be, under the facts, unreasonable, against 
 public policy, and null and void.' A clause in a bill of lading, 
 providing that any claim for loss or damages shall be made within 
 thirty-six hours after delivery, does not apply to a claim for the 
 value of a portion of a shipment of goods not delivered.^ If the 
 plaintiff in any case shows that without fault or blame on his 
 part he was not able to discover the amount of his damages or 
 the nature and character of suit to bring, the law will excuse such 
 delay in bringing suit, and will not harshly hold that plaintiff has 
 forfeited his damages, suffered and caused by the negligence of 
 the defendant, and more especially will this be the case, when 
 the facts show that the delay was caused by, or resulted from, the 
 fault or neglect of the defendant.* The time of the limitation is 
 to be reckoned, not from the day when the loss occurs, but from 
 the day when the plaintiff learned the nature, character and 
 amount of his loss.' If it be construed that the contract requires 
 suit to be brought from the time when the loss occurred, and the 
 plaintiff was not informed of the character and amount of loss at 
 that time, and it was not the plaintiff"'s fault that he was not so 
 informed, then such a clause would be but an instrument of fraud 
 and would be unreasonable and void.° 
 
 But where it clearly appears from the evidence that the plain- 
 tiff presented his claim for damages in March, that he received 
 the account of the sale of his cattle on the 12th day of April, by 
 which he was as fully informed as to the extent of his damage as 
 
 * Galveston, H. & 8. A. B. Co. v. Ball, 80 Tex. 602. 
 
 "^ Missouri Pac. B. Co. v. Harris, 67 Tex. 168; Owen v. Louisville & N. B. Co. 
 87 Ky. 626; Baltimore & 0. Exp. Co. v. Cooper, 66 Miss. 558; Bennett v. 
 Northern Pac. Exp. Co. 12 Or. 49; Price v. Kansas Pac. B. Co. 68 Mo. 314. 
 See Pacific Exp. Co. v. Darnell, 62 Tex. 639; Qlenn v. Southern Exp. Co. 86 
 Tenn. 594; Capehari v. Seaboard & B. B. Co. 81 N. C. 438; Adams Kvp. 
 Co.y. Beagan, 29 Ind. 21, 92 Am. Dec. 332; Place v. Union Exp. Co. 2 
 Hilt. 19; Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118. 
 
 3 Galveston, H. & S. A. B. Co. v. Ball, 80 Tex. 602. 
 
 * Glenn v. Southern Exp. Co. 86 Tenn. 594. 
 
 * Ohormley v. Dinsmore, 19 Jones & S. 196. 
 ^ Longhurst v. Star Ins. Co. 19 Iowa, 364.
 
 LIMITING TIME FOR COMMENCING ACTION. 225 
 
 he ever was afterwards, and his suit was not brought until the 
 21st day of June, and there is no pretense that any act of the 
 defendant induced the delay, nor could there be such pretense in 
 the face of the uncontroverted fact, that the plaintilf was in- 
 formed by the defendant as early as the 1st day of May that his 
 claim for damages would not be paid, and tlie contract recpiired 
 the suit to be brouglit within forty days, the evidence conclu- 
 sively shows that plaintiff's cause of action was barred by the 
 limitation agreed upon in tlie contract at the time the suit was 
 brouglit.' 
 
 A condition in a contract of affreightment, that no claim for 
 damages to, loss of, or detention of goods, shall be allowed unless 
 notice in writing and particulars of the claim are given to the 
 station freight agent at or nearest to the place of delivery, within 
 thirty-six hours after the goods are delivered, applies to the place 
 of delivery beyond the carrier's own line, but when applied to a 
 carload of potatoes containing 400 bushels, is unreasonable and 
 void as giving insufficient time for examination.'' A promise by 
 a station agent to waive a provision in a contract of shipment, 
 requiring suit to be brought within forty days after the loss or 
 damage occurs, will not excuse the shipper from bringing suit 
 within that time, where he knows that the station agent has no 
 authority from the company to adjust the claim without first ob- 
 taining consent.^ A stipulation in a shipping contract, requiring 
 the shipper to give written notice of his claim for dam- 
 ages does not apply to damages which accrued prior to the 
 making of the contract.' Where a package was shipped 
 from Clayton, Ind., to Savannah, Ga., during the war, when 
 transportation was much interrupted, it was held that a con- 
 dition that the carrier should not be liable for any loss, un- 
 less a claim therefor was presented within thirty days after the 
 shipment at Clayton, was void." A contract of shipment requir- 
 
 » Gulf, C. & S. F. R. Co. V. Gatewood, 10 L. R. A. 419, 79 Tex. 89. 
 
 ^ Jennings V. Grand Trunk R. Co. 127 N. Y. 438. 
 
 ^Gulf, C. & S. F. R. Co. V. Brown (Tex. Civ. App.) 24 S. W. Rep. 918. 
 
 *Musouri, K. & T. R. Co. v. Graves (Tex. App.) May 3, 1890; McCarty v. 
 
 Gulf, a & S. F. R. Co. 79 Tex. 33. 
 * Adams Exp. Co. v. Reagan, 29 Ind. 21, 92 Am. Dec. 333. 
 15
 
 226 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
 
 ing not only that suits shall be commenced, but also that citations 
 shall be served within forty days next after damage or loss occurs, 
 is unreasonable and invalid.' A stipulation in a bill of lading 
 which exempts the carrier from liability unless notice is given 
 of the damage within a specified time, is within Ga. Code, § 2068, 
 declaring that a common carrier cannot limit his legal liability by 
 any notice given either by publication or by entiy on receipts, 
 given or tickets sold, and is void unless expressly assented to by 
 the shipper.'* Section 958 of the Civil Code of Dakota reads as 
 follows: "Every stipulation or condition in a contract, by which 
 any party thereto is restricted from enforcing his rights under 
 the contract by the usual legal proceedings in the ordinary tribu- 
 nals, or which limits the time within which he may thus enforce 
 his rights, is void." The first part of the section contains nothing 
 new, and is substantially the common law doctrine, as pretty uni- 
 formly announced by the decisions of all the courts; but the lat- 
 ter clause, which declares unlawful every stipulation or condition 
 in a contract, "which limits the time within which the party may 
 enforce his rights," is perhaps against the great weight of modern 
 authority. Under the statute, a provision in an express com- 
 pany's contract or receipt, exempting the company from liability 
 unless a claim should be presented in writing within ninety days 
 from that date is of no efi!ect, where such contract or receipt was 
 signed only by the company's agent.* 
 
 a. Stijpidation Regarding Notice to Consignee. 
 
 Where by custom a delivery on the dock is held to be a deliv- 
 ery to the carrier, it should always be accompanied with notice.* 
 The purchaser of a bill of lading is chargeable with facts to put 
 him on inquiry, and hence with notice of the rights of one who, 
 a memorandum on the face of the bill states, is to be notified of 
 the arrival of the goods.' But it is not unlawful to stipulate, in 
 
 ' Gulf, C. & 8. F. R. Co. V. Hume. 6 Tex. Civ. App. 653. 
 
 ^ Central B. & Bkg. Co. v. Ilcmelkm (Ga.) April 24, 1898. 
 
 ^Harhoellv. Northern Pac. Exp. Co. 3 L. R. A. 343, 5 Dak. 463. See "Notice 
 
 of Claim for Damages." 
 ^ Packard V. Getman, 6 Cow. 757, 16 Am. Dec. 475. 
 5 Jacob Bold Packing Co. v. Ober & Sons Co. 71 Md. 155.
 
 LIMITING TIME FOR COMMENCING ACTION. 227 
 
 a bill of lading "u-hicli rcfjuires a ship to use reasonable care in 
 discharging goods at a proper time and place, that no notice of 
 discharge need be giv^en to the consignee. A condition in a bill 
 of lading by which the consignee agrees to be read}" to receive 
 his goods when the ship is ready to unload, that in default there- 
 of the ship may land, warehouse, or place them in a lighter with- 
 out notice, immediately, at his risk and expense, after the goods 
 leave the deck of the ship, exempts the ship from the duty of 
 giving him any notice, but not from the duty of exercising rea- 
 sonable care to discharge them at a suitable place.* A stipulation 
 in a bill of lading, that the carrier's responsibility as a common 
 carrier shall terminate when the goods are transported and safely 
 stored in the depot of the carrier, is not opposed to public policy, 
 and operates to limit the liability thereafter to that of a ware- 
 houseman." A direction in a bill of lading to notify certain per- 
 sons, is notice that they are not consignees, and does not qualify 
 the carrier's duty to deliver to the consignee.^ A carrier, having 
 notified the owner of goods that they have arrived and that he must 
 pay the freight and receive them, must know whether they have 
 in fact arrived or not, and is guilty of conversion if, upon demand 
 after the goods have arrived, he tells the owner that they have 
 not come, and fails to deliver them, although he does not in ex- 
 press words refuse to deliver them.* "Where consignees of fruit, 
 by a bill of lading which bound them to receive it from the ship's 
 side, are aware that a discharge is to be made on a certain day, 
 but make no attempt to remove the fruit from the wharf or pro- 
 vide for its care, but allow it to remain on the wharf over night, 
 under a shed, they take all the risk of so leaving it.* Under Tex. 
 Rev. Stat. arts. 281, 282, the liability of the carrier of freight, as 
 such, continues until the thing carried is actually delivered to the 
 owner or consignee, unless due diligence has been used to give 
 notice to such persons of the arrival at destination." 
 
 1 Rolfe V. The Boskenna Bay, 6 L. R. A. 172, 40 Fed. Rep. 91. 
 
 '^Y.'edernR. Co. v. Little, 86 Ala. 159. 
 
 ^Furman v. Union Pac. R. Co. 106 N. Y. 579; Noi-th Pennftylmnia R. Co. v. 
 
 Commercial Xat. Bank of Chicago, 123 U. S. 727, 31 L. ed. 287. 
 * Louisville & N. R. Co. v. Lawson, 11 Ky. L. Rep. 38. 
 ^ Bonanno v. The Boskenna Bay , 36 Fed. Rep. 697. 
 ^ Missouri Pac. H. Co. v. Hay nes, 12 Tex. 175.
 
 CHAPTEE VIII. 
 TRANSPORTATION OF CATTLE. 
 
 § 58. Duty to Furnish Suitable Cars. 
 
 § 59. Accejjtatice of Car by Shipjjer. 
 
 § 60. Duty to Provide Place to Receive and Deliver Stoch, 
 
 a. Texas Fever. 
 § 61. Carrier Must not Discriminate between Sliipinrs. 
 § 62. Duty to Feed, Water and Care for Stock. 
 § 63. Extraordinary TJnloadiyig of Livestock in Transitu. 
 § 64. Carrier''s Responsibility for Livestock. 
 § 65. Foriuarding by Connecting Line. 
 § 66. Damages for Refusal or for Failure to Transport. 
 § 67. Delay in Shipment and Delivery of Livestock. 
 
 a. Breach of Contract for Cars. 
 
 b. Damages to Livestock by Delay iti Transportation. 
 
 c. Ojmiion of Expert Witnesses as to Damages. 
 § 68. Damages for Negligent Loss of or Lnjury to Cattle. 
 
 § 69. Liability for Miscarriage and Wrongful Delivery of Livestock. 
 § 70. Stip)ulation for Notice of Injury to Livestock. 
 
 a. Limit of Time for Notice. 
 
 b. Forbidding Removal before Notice. 
 § 71. Restricting Liability for Livestock. 
 
 § 72. Contributory Negligence of Shipper. 
 
 § 58. Duty to Furnish Suitable Cars. See also, § 4. 
 
 A railroad company engaged in the business of transporting 
 livestock is bound to furnish suitable cars therefor upon reason- 
 able notice, whenever it is within its power to do so without 
 jeopardizing its other business.' It is its duty to exercise care, 
 skill, and diligence to furnish safe cars and appliances to those for 
 
 ^Scofield V. Lake Shore & M. 8. R. Co. 2 Inters. Com. Rep. 67; Ayres v. Chi- 
 cago & N. W. B. Co. 71 Wis. 373. 
 
 228
 
 DUTY TO FURNISH SUITABLE CARS. 229 
 
 •u'liom it undertakes to transport property.' But, it is said, it is 
 not bound to provide cars strong enough to withstand vicious ani- 
 mals.^ A raih'oad company in the carriage of livestock is not 
 required to use the safest and best motive power, witli the best 
 appliances in use, but is only required to use such cars and motive 
 power and appliances as are suitable, safe and sufficient.^ 
 
 A shipper is not entitled to have his cattle carried in cars of a 
 special construction of his selection, belonging to a third party 
 and superior to oi'dinary cattle cars, by reason of the fact that the 
 carrier transports some cattle in other cars, available to all ship- 
 pers equally, which have some of the improvements of the former, 
 but are furnished by another party under a special contract, and 
 which, unlike the cars desired by the shipper by reason of their 
 peculiar construction, can be used in the chief business of the 
 road, — that of carrying coal, — when not in use for cattle. The 
 refusal to use the cars desired by the shipper does not constitute 
 unjust discrimination.'' A statute requiring railroad companies 
 to furnish double decked cars for carrying sheep, when requested, 
 and providing a penalty for refusal, although held by the state 
 court constitutional as a proper regulation of common car- 
 riers,^ is declared to be void as an attempt to regulate commerce.* 
 The presumption in favor of the ability of a carrier to furnish 
 cars for the shipment of stock as promised, can only be overcome 
 by the evidence of some person having knowledge of the general 
 resources of the company at the time in question ; and testimony 
 of persons not shown to have any special knowledge on that point 
 is inadmissible.' A carrier sued for damages caused by furnish- 
 ing for the shipment of cattle a car infected with the germs of 
 Texas fever cannot escape liability on the ground that the bill of 
 lading was not signed by its agent, where the contract of ship- 
 
 ^Eooder Stone Co. v. Louisville, N. A. & G. R. Co. 131 Ind. 575; Coupland v. 
 
 Uoamtonic R. Co. 15 L. R. A. 534, 61 Conn. 531. 
 •^Selby V. Wilmington &W. R. Co. 113 N. C. 588. 
 3 Illinois Cent. R. Co. v. Haynes, 63 Miss. 485. 
 *Re Morris, 2 Inters. Com. Rep. 617. 
 ' Emerson v. St. Louis & II. R. Co. Ill Mo. 161. 
 « Stanley v. Wahash, St. L. & P. R. Co. 3 Inters. Com. Rep. 176. 
 ' Ayres v. Chicago & N. W. R. Co. 71 Wis. 372.
 
 230 TRANSPORTATION OF CATTLE. 
 
 ment contemplated that it was to carry the cattle a greater part 
 of the distance, and it not only furnished the car, but fixed the 
 rate of compensation for the entire route.' The rule requiring a 
 shipper to clean and repair cars furnished on a side track is un- 
 reasonable," 
 
 The utmost that can be required of a vessel contracting to carry 
 livestock, with regard to ventilation, is that it shall be such as is 
 usual and as experience has demonstrated to be sufficient, A ship 
 cannot be held at fault for not providing unusually wide spaces 
 for cattle contracted to be carried, where she is obliged to have 
 the fittings ready in anticipation of the arrival of the cattle, and 
 no notice is given her agent that such spaces will be required, 
 and the shipper, on examining the ship and fittings before the 
 cattle go aboard, expresses no dissatisfaction.^ A steamship is li- 
 able for cattle carried upon its deck, which are forced overboard 
 without reasonable or apparent necessity, and solely from mere 
 apprehension of danger," 
 
 The penalty of $25 per day imposed by Sayles's Tex, Civ. Stat. 
 art. 4227a, § 3, is the only penalty prescribed for refusal by a 
 railroad company to furnish a car on demand.' But damages 
 may be recovered for the breach of a verbal contract to furnish 
 cars for the transportation of cattle at a specified time, as it is not 
 an . action for the penalty prescribed by Sayles's Tex. Civ. Stat. 
 art. 4c'227a, for a failure to supply cars on written application.* 
 
 ISTotwithstanding a special contract limiting its liability, a car- 
 rier may be held liable under the finding of a jury, where a wheel 
 in the car in which the cattle were being transported, took fire, 
 and the shipper requested that the car should be changed ; but 
 this being refused, upon the fire being extinguished, the trans- 
 portation was continued and the fire breaking out again, the 
 
 ' 8t. Louis, I. M. & 8. E. Co. v. Henderson, 57 Ark. 402. 
 
 = Hazel Mill. Co. v. St. Louis, A. & T. H. Rt Co. 6 Inters. Com. Rep. 701. 
 
 3 The Mondego, 56 Fed. Rep. 268. 
 
 * The Hir/o, 57 Fed. Rep. 403. 
 
 ^San Antonio & N. P. R. Co. v. Bailey (Tex. App.) March 19, 1890. 
 
 « Missouri, R. & T. R. Co. v. Graves (Tex, App.) May 3, 1890.
 
 ACCEPTAilCE OF CAR BY SHirPEK. 231 
 
 wheel broke and tlie animals were injured.' Where a wheel of a 
 car, broken on a track, was in good repair, and no flaw could be 
 detected, and there was no evidence of negligence — except the 
 breaking of the wheel — a direction by the court to return a ver- 
 dict for the defendant was sustained on appeal.* 
 
 § 59. Acceptance of Car by Shipper. 
 
 The carrier is bound to furnish suitable, safe, and properly 
 constructed cars in which to transport livestock, — suitable in ref- 
 erence to the kind and value of stock can-ied. It is said that the 
 carrier cannot escape this obligation by calling attention to the 
 defective condition of the car at the time the stock is received on 
 board. The rule that a common carrier may not by contract ex- 
 empt himself from the consequences of his negligence applies to 
 un attempt by a common carrier to shoulder off upon a shipper, 
 by a contract, the results of the carelessness of the carrier in fur- 
 nishing unsuitable cars.^ If the shipper has not by contract as- 
 sumed the risk of the car, he is entitled to recover, if the jury 
 should find that the carrier's negligence in failing to furnish a 
 suitable car was the primary cause of the injury, although but for 
 the nature and propensities of the animal carried, no loss would 
 have resulted.* 
 
 It has been held in a later case than the one last cited from 
 Massachusetts, by the court of that state, that a trial court erred 
 in telling the jury that if they did not find any " distinct agree- 
 ment," the plaintiff was entitled to a verdict, if negligence in fur- 
 
 ' Austin V. Manchester, 8. & L. R. Co. 16 Q. B. 600. 
 
 « Morrison v. Phillips & C. Const. Co. 44 Wis. 405, 28 Am. Rep. 599. 
 
 3 Ogdemburg & L. C R. Co. v. Pratt, 89 U. S. 23 Wall. 123, 22 L. ed. 837; 
 Welsh V. Pittsburg, Ft. W. <& C. R. Co. 10 Ohio St. 65. 75 Am. Dec. 490. 
 
 * Evans v. Fitchburg R. Co. Ill Mass. 142, 15 Am. Rep. 19; Indianapolis dk 
 St. L. R. Co. V. Jurey, 8 111. App. 160; Illinois Cent. R. Co. v. Brel-ford, 13 
 111. App. 251 ; Maslin v. Baltimore & 0. R. Co. 14 W. Va. 180, 35 Am. Rep. 
 748; Powell v. Pennsylvania R. Co. 32 Pa. 414, 75 Am. Dec. 564; St. Louis 
 & 8. E. R. Co. V. Dormnn, 72 111. 504; Indianapolis, B. &W. R. Go. v. Strain, 
 81 111. 504; Welsh v. Pittsburg, Ft. W. & C. R. Co. 10 Ohio St. 65, 75 Am. 
 Dec. 490; Great Western R. Co. v. Hawkins, 18 Mich. 427; Hawkins v. Great 
 Western R. Co. 17 Mich. 57. 97 Am. Dec. 179; Clarke v. RocheMer & S. R. 
 Co. 14 N. Y. 570, 67 Am. Dec. 205; Smith v. New Haven <fc N. R. Co. 12 
 Allen, 531, 90 Am. Dec. 166; Rhodes v. Louisville & N. R. Co. 9 Bush, 688; 
 Pratt V. Ogdensburg & L. C. R. Co. 102 Mass. 557.
 
 232 TRANSPORTATION OF CATTLii. 
 
 nishing an unsuitable car " was the primary cause of the injury^ 
 although but for the nature and propensities of the animal car. 
 ried, no loss would have resulted,"' A stii^ulation in a printed 
 livestock transportation contract, that the shipper has examined 
 the cars provided for the transportation and found them in good 
 order, and accepts them and agrees that they are suitable and suf- 
 iicient, will not estop him from setting up that they were not safe 
 or in repair.'' A railroad company which has accepted animals 
 for transj^ortation, selecting cars for such purpose, cannot escape 
 responsibility for its negligence in furnishing a car with the slats 
 at the side too far apart, upon the ground that the consignor 
 should have noticed the defect and rejected the car.' 
 
 An agreement by a shipper of livestock whereby he assumed 
 all risk of injury to the animals " in consequence of heat or suffo- 
 cation, or other ill effects of being ci'owded in the cars," does not 
 relieve a railroad company from liability for injury in consequence 
 of insufficient ventilation in the car furnished and used." The 
 fact that the shipper of livestock procured the agent of the rail- 
 way company with which the transportation contract was made 
 to get for his use a " palace horse car " owned by an independent 
 company, which was paid for by the shipper, and which, after be- 
 ing loaded with his stock, was put in the train of the contracting 
 company, will not relieve the latter from liability for injuries to 
 the stock caused by a defect in the car, since a carrier cannot es- 
 cape liability by carrying its freight in cars furnished or owned 
 by another carrier.^ It is the duty of the carrier to furnish suit- 
 able vehicles for transportation, and if he furnishes unfit or unsafe 
 vehicles, he is not exempt from liability from the fact that the 
 shipper knew them to be defective and used them.' 
 
 Where through a defect in a truck, cattle becoming alarmed, 
 broke out and were injured, it was held that there was no implied 
 
 ^ Evans Y. Fitchburg B. Co. Ill Mass. 142, 15 Am. Rep. 19. 
 
 « Louisville & N. R. Co. v. Dies, 91 Tenn. 177. 
 
 ' Union Pac. R. Co. v. Rainey 19 Colo. 225. 
 
 * Kansas City, M. & B. R. Co. v. Holland, 68 Miss. 351. 
 
 ' Louisville & N. R. Co. v. Dies, 91 Tenn. 177. 
 
 « Ogdensburg & L. C. R. Co. v. Pratt, 89 U. S. 22 Wall. 123, 22 L. ed. 827.
 
 ACCEPTANCE OF CAR BY SHIPPER. 233 
 
 stipulation that the truck sliould be fit for the convejance of 
 cattle, where the agreement which the shipper signed, stipulated 
 that the owner undertook all risks of conveyance, and the com- 
 pany was not liable for any injury or damage, however caused, 
 and occurring to livestock of any description. In this case the 
 shipper saw the truck when the cattle were put into it.' But it 
 has been ruled that a clause in a bill of lading of cattle shipped 
 upon a vessel by which the shipper assumes all risk of the fittings, 
 is void as against public policy, in so far as it relates to a defective 
 condition of the fittings through insufficient fastening due to the 
 negligence of the employes of the vessel, and unknown to the 
 sliipper at the time of saiUng.* And a stipulation in a printed 
 live stock transportation contract, that the shipper has examined 
 the cars provided for the transportation and found them in good 
 order, and accepts them and agrees that they are suitable and suf- 
 ficient, will not estop him from setting up that they were not safe 
 or in repair.* If, however, the defect relates to the commodious- 
 ness of the car, and the possible effect of larger accommodations 
 upon the particular animal to be carried, and the question is dis- 
 cussed between the sliipper and the carrier, who informs him that 
 a more commodious car wiU be furnished if the shipper is willing 
 to pay a larger rate of freight (such larger rate not being unrea- 
 sonable) and the shipper decides to take the cheaper car, himself 
 attempting to guard against the want of room, it is a matter for 
 careful consideration and examination. Under such a state of 
 facts a charge unduly limited the field of inquiry, which instructed 
 the jury, that mere susj)icion, without notice to the shipper's 
 agent, " that the car offered for the transportation of the animals 
 was not suitable for the purpose, and the mere use of the car after 
 efforts on his part to guard against the defects in the car by pad- 
 ing the head of one of the horses and the cross pieces, did not ex- 
 empt the defendant from liability for loss caused while the animals 
 were in the course of transportation by the defendant's negligence 
 in furnishing such defective car, without proof of a distinct agree- 
 
 > Chippendale v. Lancaster & T. R. Co. 21 L. J. Q. B. N. S. 23. 
 
 » The lawa, 60 Fed. Rep. 561. 
 
 'Louisville & N. R. Co. v. Dies, 91 Tenn. 177.
 
 234 TBANSPOKTATION OF CATTLE. 
 
 ment on the part of the agent of the plaintiff, to assume the risk 
 arising from the defects of the car." In the case where this charge 
 was given, the preamble that mere suspicion, without notice to 
 the plaintiff's agent, that the car was not suitable, etc., it was 
 thought by the ajjpellate court, was not adapted to the facts of 
 the case, and might easily mislead the jury. It was not, as de- 
 veloped by the trial, a case of mere suspicion without notice. 
 The plaintiff's agent knew that the car in which it was proposed 
 to ship the animals was an ordinary box freight car. The iinding 
 states that it appeared in evidence that the agent, before shipping 
 the animals, saw the car which was used, and knew of the alleged 
 defects in its construction, namely, of the alleged fact that the 
 roof and rafters of the car were so low that a horse on lifting its 
 head was liable to strike the same, and that the car was without 
 stalls or partitions in the inside, and the agent caused precautions 
 to be taken for their protection by padding the rafters of the car, 
 and placing a stuffed hood upon the mare, and by constructing a 
 pen for the colt. Instead of a case of mere suspicion, therefore, 
 it was a matter of actual knowledge of the existence of the very 
 defects which were claimed to constitute the defendant's negli- 
 gence, and an attempt by the plaintiff's agent to guard against 
 them. Then, again, it appeared in evidence that the agent was 
 informed that the defendant had two special horse cars, which 
 were provided with passenger car springs and buffers, and which 
 had padded stalls and arched rafters, and that the animals could 
 be shipped in one of those cars at the same rate and upon the 
 same terms as by the box freight car, upon payment of the ad- 
 ditional sum of 10 cents per mile for the use of such special car. 
 In other words, according to the defendant's claim, the plaintiff 
 tendered a mare and colt, which he stated were worth $100, for 
 transportation, and before the animals were shipped, he 
 saw the box car in which they were subsequently shipped ; knew 
 of its alleged defects ; was informed tliat the defendant had spe- 
 cial horse cars, free from the alleged defects, in which the animals 
 could be shipped for an additional charge ; did not avail himself 
 of the special car, but attempted to remedy the defects of the box 
 car, and the animals were sent in it without his objection. JS^ow,
 
 ACCEPTANCE OF CAR BY SHIPPER, 235 
 
 had not tlie jury a right to find, from these facts alone, that the 
 agent of the j)laintiff, assumed the risk arising from those defects 
 of the car ? It was not necessary to prove that he expressly said : 
 *' I see that the car is low from floor to roof, and I hear your offer 
 of better accommodations for a higher price, but decline it, and 
 will myself assume the risk arising from such defects of the box 
 car ;" nor words of like import. His acts, viewed in the light of 
 the surrounding circumstances, might evidence his assumption of 
 the risk as clearly as his distinct agreement so to do. The de- 
 fendant was bound to furnish a suitable car for the transportation 
 of horses. It was still the duty of the jury to inquire whether it 
 did so. If the box car was unsuitable for the transportation of 
 ordinary horses of the value placed by the plaintiff's agent on 
 these, then the defendant might be liable though it informed the 
 plaintiff of its better accommodations for a higher price. But if 
 the jury found that the box car was suitable for the ordinary busi- 
 ness of transporting horses, though lower between joists than the 
 special cars furnished at a higher price ; that the plaintiff was 
 aware of such defects, and was informed about such special cars, 
 and the additional price charged for them was not unreasonable ; 
 and that, thereupon, he attempted to guard against the possible 
 effect of the lower space, and acquiesced in tlie use of the car 
 whicli was used, — then it was competent for them to further find, 
 from such facts alone, that the plaintiff assumed the risks inci- 
 dent to the defect in question. Under these existing facts the 
 defendant was entitled to a charge to that effect, and the instruc- 
 tions giver, were too restrictive in this particular.' 
 
 A railroad company is not liable for injuries caused by negli- 
 gence in loading livestock drawn over its road in a car owned 
 and loaded by the owner of the stock, though it is the general 
 duty of its conductors to see that trains under their control are 
 properly loaded.'' Where there is a provision that the shij^per 
 load and unload, carrier's servants to be subject to the order of 
 the shipper, it is the duty of the shi^^per to secure the doors, and 
 of carrier to allow time therefor,' 
 
 * Coupland v. Housatonic R. Co. 15 L. R. A. 534, 61 Conn. 531. 
 
 » Fordyce v. McFlynn, 56 Ark. 424. 
 
 ^Newhy v. Chicago, R. I. & P. R. Co. 19 Mo. App. 391.
 
 236 TKANSPOKTATION OF CATTLE. 
 
 § 60. Duty to Fj'ovide Place to Receive and De- 
 liver Stock. 
 
 A railroad company as a carrier of livestock is obliged to pro- 
 vide necessary means and facilities for receiving livestock of- 
 fered it for shipment, and for its delivery to the consignee, and 
 cannot without special contract require compensation from the 
 shipper or consignee for providing such means and facilities, in 
 addition to the charges for transportation. When a railroad 
 company does not provide suitable facilities for the delivery of 
 livestock contracted to be carried by it, it may be compelled ta 
 deliver through facilities furnished by the consignee.' A 
 railroad company contracting to deliver to a particular stock 
 yard, all the livestock coming over its line to a certain point, 
 enters into an illegal contract. It is its duty to transport over 
 its road and deliver to all stock yards reached by its tracks or 
 connections, all livestock consigned upon the same terms, and in 
 the same manner as under like conditions, it transports and de-^ 
 livers to their competitors. This duty may be enforced by in- 
 junctions.° The legal duty of carriers is not fully discharged by 
 receiving on, and discharging from their cars livestock at a. 
 depot, access to which must be purchased.^ Kailroad companies 
 cannot absolve themselves from liability under their statutory 
 duty to keep suitable pens for the shipment of cattle, by show-r 
 ing that they were so badly kept or constructed as to make it con- 
 tributory negligence upon the part of the shipper to use them. 
 
 Cattle are to be considered as having been received by the car- 
 rier for shipment and held by it as a common carrier, where 
 they have been placed in a pen by direction of the carrier's, 
 agent, and the work of putting them on the cars has begun,* 
 and a carrier cannot avoid liability for failure to provide suitable 
 pens for stock, simply because the shipper was looking after his 
 stock and saw the pens.^ A railroad company, by consent to the 
 
 1 Covington Stock Yards Co. v. Keith, 139 U. S. 128, 35 L. ed. 73. 
 
 2 McCoy V. Cincinnati, I. St. L. & C. B. Co. 13 Fed. Rep. 3. 
 'Keith V. Kentucky Cent. B. Co. (Ky.) 1 Inters. Com, Rep. 601. 
 
 * Gulf, C. & S. F. B. Co. V. Trawick, 80 Tex, 270. 
 
 * Mason v, Missouri Pac. B. Co. 25 Mo, App. 473.
 
 DUTY TO PKOVIDE PLACE TO RECEIVE AND DELIVER STOCK. 237 
 
 use of ground in loading cars by several persons, impliedly in- 
 vites others having occasion to load cars at that place, to use the 
 ground for that purpose. It is liable for injury to a horse from 
 stepping into a hole left by it at a place which it has expressly 
 or impliedly invited persons to use in loading cars, although the 
 loading might have been done more speedily by other means than 
 the use of horses, where their use is reasonably well adapted to 
 the work.' If, under any circumstances, a carrier can be excused 
 from liability for injuries to a horse by reason of a defect in a 
 platform from which it is loading the horse upon a car, it cannot 
 be excused in the absence of full diligence to discover the de- 
 fect before exposing the horse to the risk of injury." 
 
 A railroad company is guilty of negligence rendering it liable 
 to a shipper of cattle accompanying them in their transportation, 
 in failing to plank and provide proper guard rails upon a bridge 
 constituting part of its station grounds, upon which such shippers 
 will have occasion to go in looking after their stock, in conse- 
 quence of which omission such shipper falls off the bridge and is 
 injured.^ It is the duty of a carrier of stock by railroad to pro- 
 vide a safe mode of delivery, by having a platform suitable for 
 the purpose of unloading stock.* 
 
 a. ^^ Texas Fever P 
 
 In several of the states, statutes are in force, prohibiting any 
 person from bringing into such states, cattle in such a condition 
 as to communicate Texas fever to other cattle, under severe pen- 
 alties, both civil and criminal. These statutes relieve the com- 
 mon carrier from the duty, as to animals thus conditioned, other- 
 wise imposed upon it as to cattle in general, of accepting them 
 for transportation. In several instances attempts have been made 
 to hold the carrier liable for damages resulting from the trans- 
 portation by it of such cattle. But the courts have uniformly 
 permitted the carrier to defend, on the ground that it acted in 
 
 > Chicago & I. Coal E. Co. v. Be Baum, 2 Ind. App. 281. 
 2 East Tennessee, V. & O. R. Co. v. Ilerrman, 92 Ga. 384. 
 ^Illinois Cent. R. Co. v. Foley, 53 Fed. Kep. 459. 
 * Oicen V. Louisville & N. B. Co. 87 Ky. 626.
 
 238 TEANSPOKTATION OF CATTLE. 
 
 ignorance of the condition of the animal carried, and that such 
 condition could not have been discovered by the exercise of 
 proper care and caution/ 
 
 § 61. Carj'ier Must not Discriminate between 
 
 Shippers. 
 
 Carriers cannot make the yards of a certain company their ex- 
 clusive stock depot at a certain place, there being other stock 
 yards near by charging lower rates.^ A firm of cattle dealers in 
 the city of New Tork, who procure their cattle on a large scale 
 from Chicago and other western points for domestic consumption, 
 as well as for export, made an arrangement with two interstate 
 rail carriers, constituting a through line from Chicago to New 
 York, that the said firm will, under the name of an express com- 
 pany of their own creation, furnish not less than 200 or more 
 than 400 improved livestock cars for the transportation of these 
 cattle. For the rental of these improved, stock cars the carriers 
 pay this express company three fourths of a cent per mile, whether 
 loaded or empty. Extraordinary facilities and rights of way are 
 given these cars to enable them to make a large mileage, and 
 they make more than twice the mileage of ordinary stock cars. 
 Besides this, the carriers pay 50 cents for the loading of each of 
 said cars M-ith cattle at the Union Stock Yards, in Chicago, for 
 which no charge is made against the express company or the firm 
 represented by it. In addition to this the carriers pay this firm 
 yardage at the rate of S-g- cents per hundred pounds on all their 
 cattle, and upon all other cattle hauled for other firms in the care 
 of this firm, owning the express company, to its yard at pier 45, 
 East River. This yardage charge is thus paid to the said firm by 
 the said carriers for keeping their cattle in the firm's own yards 
 after delivery of them to the firm, and then this yardage charge 
 is deducted from the tariff rate charged by the carrier. The 
 amount of these rebates to this firm in rates on these cattle by 
 
 ' F^lrley v. Chicago, M. & St. P. R. Co. (Iowa) 23 L. R. A. 73; Patee v. Adams, 
 37 Kan. 133; Missmcri Pac. R. Co. v. Firdey, 38 Kan. 550. 
 
 "^ Keith V. Kentucky Cent. B. Co. 1 Inters. Com. Rep. 601; McCoys. Cincinnati, 
 L, St. L. <fc G. R. Co. 13 Fed. Rep. 31.
 
 DUTY TO FEED, WATEB AND CARE FOK STOCK. 239 
 
 these carriers more than pays the entire cost of the improved 
 stock cars within two years after operations are commenced with 
 them, including the expenses of operation, leaving said firm own- 
 ing the cars and still operating them with all these advantages in 
 rates and facilities. It was ruled by the Interstate Commerce 
 Commission that this is an unlawful preference to the firm owning 
 these improved stock cars and a violation of the Act to Regulate 
 Commerce,and that it was an unlawful and unjust prejudice to other 
 cattle firms and dealers in ]^ew York who are competitors in the 
 business of said firm owning said improved stock cars.' 
 
 § 62. Duty to Feed, W^ater and Care for Stoclc. 
 
 The carrier, among his other duties, is primarily bound to pro- 
 vide food and watei', a place for sleeping, and, if necessary, a 
 place for exercise." But he may transfer such duty to the owner 
 by express contract.^ He may even then become liable for fail- 
 ure to furnish proper facilities to the consignor for such purposes.'' 
 Proper attention must be given to the food, water and ventilation 
 of livestock, unless that duty has been assumed by the owner 
 under contract with the carrier.' If the carrier intrusted with a 
 living animal of any desci'iption for transportation should suffer 
 it to die from starvation or thirst, or for the want of ordinary 
 care and attention in any respect which it required, he would be 
 
 ' Shnmberg v. Delaware, L. & W. R. Co. 3 Inters. Com. Rep. 503. 
 
 ^Illinois Cent. E. Co. v. Adams, 43 III. 474, 92 Am. Dec. 85; Toledo, W. & W. 
 R. Co. V. Thompson. 71 1)1. 434; Dunn v. Hannibal & St. J. R. Co. 68 Mo. 
 268; Harris v. Northern Indiana R. Co. 20 N. Y. 232; Cragin v. New York 
 Cent. R. Co. 51 N. T. 61, 10 Am. Rep. 559; TaffVale R. Co. v. Giles, 23 L. 
 J. Q. B. 43; Great Northern R. Co. v. Swaffield, L. R. 9 Exch. 132. 
 
 » South & North Ala. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Heine- 
 man V. Grand Trunk R. Co, 31 How. Pr. 430; Cragin v. New York Cent. 
 R. Co. supra. 
 
 ^Wabash, St. L. & P. R. Co. v. Pratt, 15 111. App. 177. 
 
 ^ Toledo, W. &W. R. Co. v. Hamilton, 76 111. 393; Kinnickv. Chicago, R. 1. & 
 P. R. Co. 69 Iowa, 665; Gulf. C. & 8. F. R. Co. v. Wilhelm (Tex. App.) 
 April 29, 1891; Cragin v. New York Cent. R. Co. supra; Toledo. W. & W. R. 
 Co. V. Thompson, 71 111. 434; Hlinois Cent. R. Co. v. Adams, 42 111. 474, 93 
 Am. Dec. 85; Dunn v. Hannibal & St. J. R. Co. 68 Mo. 268; Harris v. 
 Northern Indiana R. Co. 20 N. Y. 232; Bryant v. Southwestern R. Co. 68 Ga. 
 805; Dawson v. St. Louis, K. C. & N. R. Co. 76 Mo. 514; Wood v. Chicago, 
 2L & St. P. R. Co. 68 Iowa, 491, 56 Am. Rep. 861.
 
 ^40 TKANSrOKTATION OF CATTLE. 
 
 liable, unless he should be relieved from the duty by contract 
 with his employer.' A steamship is not justified in sailing with- 
 out taking on board fodder provided for cattle carried by her 
 under an agreement that she will supply conveyance for the nec- 
 essary fodder, by a conversation with the drover in charge of the 
 cattle, in which he states that there is fodder enough, and that 
 the steamer should go on without waiting to take aboard the 
 remainder, — especially where, after she hauls into the stream, she 
 waits there a time long enough to bring the lighter having the 
 fodder aboard alongside and unload, and the owners of the cattle 
 demand that the remaining fodder be taken aboard and agree to 
 pay the towage of the lighter,^ 
 
 If a railroad company accepts hogs for transportation, which, 
 from the crowded manner in which they are necessarily carried 
 upon its cars, are liable to die from overheating, it is the duty of 
 the agents of the road to apply water to them externally when 
 it is found necessary to prevent such overheating, and if they fail 
 to do so the company will be liable/ It is not relieved from the 
 duty of exercising proper care and diligence in seeing to the needs 
 of animals on its train, by reason of the rush of business/ A 
 contract for the transportation of cattle upon a vessel implies 
 that the space to be allotted them for the voyage shall be suffi- 
 ciently ventilated, and a contract for the shipment of cattle upon 
 a vessel, requiring the ship to insure, means that the number of 
 cattle specified, if carried in the space allotted by the ship for 
 their transportation, can be insured ; and if insurance cannot be 
 effected upon cattle placed in the space allotted, without addi- 
 tional ventilation, which the master refuses to provide, the ship- 
 per is justified in refusing to ship more than the number of cattle 
 which can be insured, and may recover from the ship the dam- 
 .ages sustained by reason of the nonshipment of the number of cat- 
 
 > South & North Ala. B. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578. 
 
 ^The Connemarn (D. C. S. D) 51 Fed. Rep. 304. 
 
 ^Illinois Cent. R. Co. v. Adams, 42 111. 474, 92 Am. Dec. 85; Toledo,W. &W. 
 
 R. Co. V. Thomj)son, 71 111. 434; Toledo, W. & W. R. Co. v. Hamilton, 76 111. 
 
 393. 
 
 * International & G. N. B. Co. v. Lewis (Tex. Civ. App.) Oct. 4, 1893.
 
 DUTY TO FEED, WATER AND CAKE FOK STOCK. 241 
 
 tie shut out by the master's refusal to supply sufficient ventilators.' 
 Contract that it shall not be lialjle for anything beyond its own line 
 will not relieve it from liability for injuries resulting from a re- 
 fusal to feed and water the stock at its terminus, although the in- 
 jury does not appear until after delivery to a connecting line.' 
 
 A carrier has the duty to feed and water stock during trans- 
 portation, and cannot transfer it to the shipper by a custom re- 
 quiring him to go along on the same train with the stock to feed 
 and water them at his own risk and expense.' In case of sjiecial 
 contract whereby the owner agrees to and does take charge of 
 the stock, the burden of proving negligence is on him.'' The du- 
 ties of carriers of live stock, and their responsibilities has been 
 repeatedly stated by the courts.^ A shipper of live stock may 
 avail himself of a contract with a carrier to look after the stock, 
 using due care and caution, without losing his status as a passen- 
 ger, notwithstanding such contract does not relieve the carrier 
 from its duty to look after the stock." Consent by a shipper of 
 cattle that they need not be fed and watered at a certain station 
 does not estop him from setting up damages to them by an un- 
 usual delay of the carrier caused by its negligence in not making 
 the customary time to the next feeding station.' Although the 
 shipper undertakes the feeding and watering of stock, yet if the 
 animals are carried beyond their destination .. .d there detained 
 for some time before they are returned, the carrier will be re- 
 sponsible for its failure to properly care for the stock, after the 
 destination is passed.* 
 
 A carrier is liable for injuries to stock delivered it for trans- 
 portation, arising from failure to furnish the proper facilities for 
 
 TAe Alvah, (D. C. E. D. K Y) 59 Fed. Rep. 630. 
 
 « Galveston, H. & S. A. R. Co. v. Ivey (Tex. Civ. App.) Oct. 4, 1893. 
 
 2 Missouri Pac. R. Co. v. Fagan, 2 L. R. A. 75, 73 Tex. 127. 
 
 *McBeath v. Wabash, bt. L. <& P. R. Co. 20 Mo. App. 445; Clark v. St. I.ovis, 
 
 K. C. & A^. R. Co. 64 Mo. 440; Buddy v. Wabash, St. L. & P. R. Co. 20 Mo. 
 
 App. 30(). 
 'See notes to International & O. N. R. Co. v. Tisdale (Tex.) 4 L. R. A. 545; 
 
 Missouri Pac. R. Co. v. Fagan (Tex.) 2 L. R, A. 75. 
 
 * International <fe Q. N. R. Co. v. Armstrong (Tex. Civ. App.) Sept. 20, 1893. 
 ' St. Louis, A. <fe T. R. Co. v. Turner, 1 Tex. Civ. App. 625. 
 
 * Bryant v. Southwestern R. Co. 68 Ga. 805. 
 
 16
 
 242 TKANSPOETATION OF CATTLE. 
 
 feeding and watering, though the shipper has agreed to accom- 
 pany his stock and feed and water them at his own risk.' But a 
 shipper of livestock by railway, under an agreement that he shall 
 feed, water, and take care of the stock at his own expense in case 
 of accidents or delays of time from any cause whatever, cannot 
 recover damages resulting from his failure so to do, although un- 
 necessary time is consumed in the transportation, and increased 
 expense is made necessary thereby.' The fact that one of two 
 trains carrying cattle was more than twenty-eight hours on the 
 road without feeding or watering them, in violation of U. S. Kev. 
 Stat. § 4380, will not make the company liable for damages to 
 the cattle during shipment, where the shipper had a special con- 
 tract binding him to take care of, feed and water them on the 
 road, and there is nothing to show what part of the damage to 
 them was caused by failure to feed and water thei"!T.^ Under the 
 statute prescribing a penalty to be recovered by the owner against 
 a carrier who shall fail to sufficiently feed and water livestock 
 during transportation and until delivery, in order to authorize a 
 recovery of such penalty the statutory grounds must be particu- 
 larly set forth and clearly established by proof.* 
 
 Tex. Rev. Stat. art. 284, imposing a penalty upon any carrier 
 who shall fail to sufficiently feed and water livestock conveyed 
 byit, unless otherwise provided by special contract, is a legitimate 
 exercise of the state's police power, and not an illegal interference 
 with the Interstate Commerce Act, even when applied to an in- 
 terstate shipment. Neither is it invalid on the ground that it is 
 vague, indefinite, and uncertain. And the statutory penalty for 
 faihire to sufficiently feed and water livestock conveyed by a 
 common carrier, authorized by this statute, is not included in a 
 contract for the shipment of cattle providing that suit for dam- 
 ages must be brought within forty days next after the damages 
 shall occur.* A carrier of stock who is guilty of a breach of duty 
 
 ' Taylor, B. <& H. R. Co. v. Monigomery (Tex. App.) April 29, 1891; Taylor, 
 
 B. & E. R. Co. V. Suhlett (Tex. App.) April 29, 1891. 
 s Boaz V. Central R. & Bkg. Co. 87 Ga. 463. 
 'Missouri Pac.R. Co. v. Texas & P. R. Co. 41 Fed. Kep. 319. 
 '^Good V. Galveston, H. & 8. A. R. Co. (Tex.) 4 L. R. A. 801. 
 * Gulf, C. <& 8. F. R. Co. V. Gray (Tex. Civ. App.) Jan. 24, 1894.
 
 EXTEAORDINAKY UNLOADING OF LIVESTOCK IN TRANSITU. 243 
 
 in failing to feed and water the same at its terminus is liable for 
 an injury to the stock caused thereby, although the damage does 
 not appear until the stock are upon a connecting line, and the 
 contract of shipment limits its liability to injury occurring on its 
 own line.' Under a declaration in an action against a railroad 
 company, which charges delay in a train in which horses are 
 shipped, and also failure to furnisli opportunity for feeding and 
 watering them, the plaintiff is entitled to recover upon showing 
 that defendant omitted to perform its duty in the latter respect, 
 although it was not liable for the delay of the train/ 
 
 § 63. Extraordinary Unloading of Livestoch in 
 
 Transitu. 
 
 A provision, in a contract for the transportation of cattle, that 
 the shipper should load and unload them at his own risk, does not 
 deprive the carrier of its just, rational and necessary discretion of 
 determining when the exigencies of transportation require them 
 to be unloaded.' Where the contract for the transportation of 
 cattle placed the entire risk of the journey and the duty of load- 
 ing and unloading upon the shipper, requiring the carrier only to 
 furnish assistance, the train having been delayed by a snowstorm, 
 the carrier is under no obligation to unload the cattle when the 
 shipper had charge of them and might himself have unloaded 
 them.* But a railroad company cannot make a valid contract 
 exempting itself from liability by reason of its own negligence or 
 the negligence of its employes in failing to furnish a shipper of 
 stock opportunities for loading and unloading it for the purpose 
 of feeding, watering, and taking care of it.° Where the transit 
 of a consignment of livestock is delayed without justifiable ex- 
 cuse, the carrier is liable for damages resulting from a refusal to 
 allow the shipper to unload and water the stock.^ 
 
 > Galveston, H. & S. A. B. Co. v. Herring (Tex. Civ. App.) Jan. 10, 1894. 
 
 * Smith V. Michigan Cent. JR. Co. (Mich.) April 17, 1894. 
 ^McAlister v. Chicago, B. I. <& P. B. Co. 74 Mo. 851. 
 
 *Penn v. Buffalo & E. B. Co. 49 N. Y. 204, 10 Am. Rep. 355. 
 ^Abrams v. Milwaukee, L. S. & W. B. Co. 87 Wis. 485. 
 
 • Harris v. Northern Indiana B. Co. 20 N. Y. 233.
 
 244 TRANSPORTATION OF CATTLE. 
 
 Notwithstanding a contract for transportation of livestock ex- 
 empted the carrier from any liabihty for damages resulting from 
 delay, it is the duty of the carrier, upon reasonable request of the 
 shipper, after the train is stopped by a flood, to so place the cars 
 as to be convenient to the usual and accessible means of unload- 
 ing, if that is practicable, and failure to do so carries with it the 
 liability for resultant damages. In such a case, if the conductor 
 has no reason to believe that he can run the train through the 
 high water, of which he has been warned, his refusal of the re- 
 quest of the shipper to have the cars placed so that the stock 
 can be unloaded at a station, before the high water was reached, 
 is negligence which renders the carrier liable for damages caused 
 by the train being delayed at a point wliere the stock could not 
 be unloaded.' The carrier's refusal to lay out at a w^ay station 
 a car loaded with cattle and hogs, upon the request of the ship- 
 per who discovers some of the cattle in a bad condition, on the 
 ground that the stock pen at that station will not hold the hogs 
 safely, is not justified where the cattle might have been unloaded 
 into the pen and the hogs retained in the car, — especially if it 
 was the carrier's duty to have a safe pen for hogs as well as for 
 cattle at that station.'' 
 
 Section 4386 of the United States Revised Statutes, prohibit- 
 ing a carrier from transporting livestock in the same cars for 
 more than twenty-eight consecutive hours without unloading, does 
 not give the carrier the right to confine stock in cars for such 
 time, whether it would be negligent or not so to do.^ A carrier 
 who violates such statute is liable, not only for the penalty pre- 
 scribed thereby, but is negligent j-^er se and liable for the damages 
 resulting therefrom. The fact that the stock yards of the carrier 
 at the regular station for unloading and feeding were on fire when 
 the train passed is no excuse for not unloading the stock at some 
 adjacent point.* Although by the contract for the transportation 
 of livestock the shipper is to feed, water, and care for them while 
 
 I Bills V. New York Gent. B. Co. 84 N. Y. 5. 
 « Johnson v. Alabama & V. R. Co. 69 Miss. 191. 
 
 * Missouri Pac. R. Co. v. Ivy, 79 Tex. 444. 
 
 * Nashville, C. & St. L. R. Co. v. Ileggie, 86 Ga. 210.
 
 EXTRAORDINARY UNLOADING OF LIVESTOCK IN TRANSITU. 245 
 
 in transit, if thej are detained to snch an extent that it is neces- 
 sary, in order to avoid injury, to unload, water and feed tliein, tlie 
 carrier is liable for damages arising from its failure to provide the 
 shijiper with suitable facilities for so doing.' A railroad company 
 which fails to comply with U. S. Eev. Stat. § 438G, imposing a 
 penalty for keeping live stock in the cars more than twenty-eight 
 consecutive hours, exce^^t in certain cases, is liable to the owner 
 of the stock in damages, as well as to the penalty, where such 
 keeping does not result from any of the exceptions mentioned.^ 
 A carrier undertaking to transport stock in cars which are not 
 properly constructed for feeding and watering, is bound to furnish 
 places where the stock may be unloaded, watered, and fed, with- 
 out injury, in all kinds of weather, under Tex. Rev. Stat. art. 284, 
 requiring carriers to feed and water livestock during transporta- 
 tion unless otherwise provided by special contract.' 
 
 The relative duty of carrier and shipper is discussed in an in- 
 teresting case on appeal. Under a special contract under which 
 the appellee seeks a recovery, the defendant corporation let to 
 appellee an entire car, to be used by him in the transportation of 
 what is denominated " emigrant movables," consisting, in this in- 
 stance, of six horses and a lot of miscellaneous property, — corn, 
 feed stuif, furniture, etc. The car was under the charge and in 
 the care of appellee, was loaded by him at his own discretion, and 
 was held in the defendant's yards at Chicago, to meet appellee's 
 wishes, for about three days, in order to permit him to complete 
 his load ; and this while the horses were all on the car, tliey hav- 
 ing been loaded at a point thirty miles north of Chicago. The 
 contract stipulated, for the railroad company, against liability on 
 its part, except for injuries resulting from collisions or derailment 
 in transportation. The railroad did not Umit its liability for will- 
 ful injuries or gross negligence. By this special contract the ap- 
 pellee agreed to feed, water and take care of his stock, and to 
 load and unload the animals, and to exempt the railroad company 
 
 » Dunn V. Hannibal & St. J. R. Co. 68 Mo. 268 ; Taylor, B. & U. R. Co. v. 
 
 Montgomery (Tex. App.) April 29, 1891. 
 » Hale V. Missouri Pac. R. Co. 36 Xeb. 266. 
 3 International & G. N. R. Co. v. McRae, 82 Tex. 614.
 
 2i6 TEANSPORTATION OF CATTLE. 
 
 from loss occurring by jumping from the cars, delay of trains, or 
 any damage the stock might sustain, except such as should result 
 from collisions or derailment of cars in course of transportation. 
 Suitable provision was made for feeding and watering the stock 
 on the car, and they were properly fed and watered by appellee, 
 who accompanied the stock, without further charge than the price 
 paid for tlie use of the car. After tlie stock had been loaded and 
 kept confined in the car for nearly three days, the appellee com- 
 pleted his additional loading, and the car was taken in charge by 
 appellant, to be transported on its route to Jackson, Miss. The 
 next day after leaving Chicago appellee discovered that one of the 
 young stallions was down in the car. He got it up, but before 
 reaching Centralia and about a day after the journey had been 
 begun, the same young animal was found down again and, as was 
 thought by appellee, to be down finally, as he expresses it. On 
 reaching Centralia appellee made application to the railroad com- 
 pany's agent to be laid out for twenty-four hours, to the end that 
 he might rearrange his load (then plainly seen to have been im- 
 properly loaded) and to rest his stock, which application was not 
 accepted and complied with, though the car of appellee was actu- 
 ally taken out of the train in which it was being carried, and was 
 permitted to lie at Centralia for a few hours, — a time too short, 
 however, as appellee thought, to afford him opportunity to un- 
 load, rest his stock and rearrange the load. 
 
 The question, then, considered by the court is. Had the appel- 
 lee the right to demand that he be laid out at Centralia ''i If 
 he had this right, how was it acquired ? Was it an implied ob- 
 ligation resting upon the railroad ? If it finds rest under the 
 contract, it will be found by implication. There is no express 
 obligation of this character appearing on the face of the instru- 
 ment. If it was an implied obligation on the railroad, how is 
 the implication raised ? If it was the custom of the railroad com- 
 pany to lay out cars in which a few horses were carried, then 
 there was an implied obligation assumed to comply with such 
 custom on the part of the railroad. But the undisputed evidence 
 perfectly shows that, while it was the custom to lay out carload 
 lots of animals every twenty-four or twenty-eight hours, in order
 
 EXTKAORDINARY UNLOADING OF LIVESTOCK IN TKANSITU. 24:7 
 
 that they might be fed, watered, and cared for, no such custom 
 prevailed or existed in cases where a few animals only were loaded 
 in a ear, and where provision was made thereon for watering and 
 feeding the animals. The custom was unknown in cases of the 
 latter character. Nor does the absence of the custom seem un- 
 natural, there being no necessity, apparently, in ordinary cases, 
 for any unloading. The cases of Illinois Cent. JR. Co. v. Adams, 
 42 III 474, 92 Am. Dec. 85, and Toledo, W. <& W. R. Co. v. 
 Thompson, 71 111. 434, — raised an implied obligation on the car- 
 rier to throw water on hogs crowded in a car, because of the 
 known custom of railroads to so apply water to that particular 
 animal. In the case oiKinnick v. Chicago, JR. I. & P. JR. Co. 
 69 Iowa, 665, the railroad company received a carload of hogs 
 from plaintiff, and, after loading and starting them on their jour- 
 ney, there was such delay, by reason of the wrecking of another 
 train, that a number of the hogs died; and the court held, as it 
 was a natural propensity of hogs to struggle to get near to or 
 away from the doors of a car, when it is left standing, and to 
 "•pile up"" on each other in such struggles, and thereby produce 
 injury or death, and as it apj^eared that the injuries comjDlained 
 of were attributable to the failure of the railroad company to 
 give the animals any attention during the twelve hours during 
 which the train was standing still because of the obstructing 
 wreck, that the company was liable because of its negligence, in 
 this extraordinary danger to the animals, in failing to do what 
 the delay and consequent peril to the animals required should l^e 
 done. In Squire v. J^ew York Cent. (Ss H. R. R. Co. 98 Mass. 
 243, 93 Am. Dec. 162, it was held that the court erred in charg- 
 ing as matter of law, that if the plaintiff's agent informed the 
 conductor that the mare was acting badly and in danger of being 
 killed if carried further, and asked him to switch off the car, the 
 conductor was bound to switch off, if it could reasonably have 
 been done; and in Bills v. New York Cent. R. Co. 84 N. Y. 5, it 
 was said that if the plaintiff by his agent observed that the ani- 
 mals were not being safely transported, and requested that the 
 car which had no freight, and the use of which had been pre- 
 paid, be set out on the side track, so that he could resume pos-
 
 24:8 TRANSPOKTATION OF CATTLE. 
 
 session of tlie animals, and if it could reasonably have been done, 
 and this request was refused, such conduct of the carrier was 
 grossly negligent. But there is no support in any of these cases 
 for the proposition that there was an implied obligation in this- 
 case upon the railroad company to lay out the car, which appellee 
 had hired, for twenty-four hours at Centralia. The contrary is 
 involved in these decisions. 
 
 In the absence of any custom imposing obligation to lay out 
 on the request of the appellee, what is there in the conduct of 
 the parties to the contract which will authorize the conclusion 
 that any purpose to lay out the car, after it had been started on 
 its way to its destination, was in the minds of the company and 
 the appellee ? What is the foundation for implying that the 
 minds of the parties ever dwelt upon or met in any unexpressed 
 agreement that appellee should have such- right? There appears 
 no circumstance, even, which tends to support that proposition. 
 On the other hand, there is much in the evidence of the appellee 
 which strongly shows that he regarded the use of the car as con- 
 fined to one continuous trip. He placed three horses in each end 
 of the car, and then partitioned both ends in front of the horses, 
 their heads being towards the middle doors of the car. He like- 
 wise made stalls for the horses, respectively, within the parti- 
 tioned spaces, and then he proceeded to fill up the vacant space 
 in the middle of the car with a large quantity of corn and other 
 feed stuff, household goods, etc. The whole arrangement of the 
 carload, as made by the appellee, precluded the unloading of the 
 car, unless with much labor and considerable time. It is per- 
 fectly apparent that neither when the contract was executed nor 
 when the car was loaded was there any thought of having a lay- 
 out accorded him while on the way, in the mind of appellee him- 
 self even. There is no ground for maintaining that there was 
 any implied obligation, under the contract, to give appellee the 
 desired layout. 
 
 It is said that by section 43S6, TJ. S. Rev. Stat,, a definite rule 
 for the transportation of animals is created, and penalties pre- 
 cribed for disregard of the rule, "With this rule and its enforce- 
 ment the courts of the state are no way concerned. But the Act
 
 cakkiek's kesponsibility for livestock. 249 
 
 itself, in a subsequent section, provides for the recovery of the 
 penalty in a civil action in the proper Federal conrt. Is there 
 an oblig-ation, founded in common humanity, which required the 
 railroad company to lay out appellee's car, in order that dumb 
 brutes may have relief from suffering and rescue from death ? 
 The evidence proves that the appellee did not himself think the 
 stock in the condition indicated in the foregoing question when 
 he made his request at Centralia to be laid out. Surely it cannot 
 be believed that, if he then knew, or had reason to know, that 
 very valuable stallions (one of which he had })aid $800 for) and 
 valuable mares were in peril of impending death or serious in- 
 jury, self-interest as well as humanity, would not have constrained 
 him to make a new contract for longer use of his car, or, if neces- 
 sary, to abandon altogether his then contract with the railroad 
 company, and take the chances of the trifling loss of $60, which 
 he had bound himself to pay the railroad, by then and there un- 
 loading his car and leaving the train. It is manifest that by keep- 
 ing his stock on the car for three days bef oi'e starting them south- 
 ward from Chicago, and by so loading the car as to render it 
 impossible to take the stock out without great trouble and delay, 
 the appellee had placed himself in the unfortunate situation 
 which confronted him at Centralia, and from wl'.ich he could only 
 extricate himself by making a new contract for the use of the car 
 for a longer time than originally thought needful, or by abandon- 
 ing his contract altogether, and removing his stock from the train.' 
 
 § 64" Carrier's Responsibility for Livestock. 
 
 The joint committee on railroad transportation, appointed by 
 the railroads of the United States, have adopted, taking effect 
 January 1, 1895, the following : 
 
 Property shipped not subject to Uniform Bill of Lading Conditions, will be 
 charged twenty (20) per cent higher than as herein provided (subject to a 
 minimum increase of one (1) cent per 100 lbs.) and cost of Marine Insur- 
 ance. (See Rule 1, Appendix Uniform Bill of Lading.) 
 
 Station 189 
 
 This Agreement, made this day of , 189 , by and be- 
 
 2 lllimis Cent. R. Co. v. Petersen, 14 L. R. A. 550, 68 Miss. 454.
 
 250 TRANSPORTATION OF CATTLE. 
 
 tween the Company, hereinafter called the carrier, and 
 
 {Shipper's name) hereinafter called the shipper: 
 
 WITNESSETH, That the said shipper has delivered to the said carrier Live 
 Stock of the kind and number, and consigned and destined by said shipper as 
 follows: 
 
 Consignee, Desti- 
 nation, ETC. 
 
 Number and Description of 
 Stock. (Shipper's Load and Count.) 
 
 Weight. Subject 
 TO Correction. 
 
 Advance Charges, $.. 
 Car Nos. and Initials. 
 
 for transportation from to destination, if on the said carrier's line 
 
 of railroad, otherwise to the place where said Live Stock is to be received by 
 the connecting carriers for transportation to or toward destination, and that 
 the same has been received by said carrier for itself and on behalf of con- 
 necting carriers, for transportation, subject to the ofBcial tariffs, classifications 
 and rules of the said company, and upon the Following Terms and Con- 
 ditions, WHICH ARE Admitted and Accepted by the said Shipper as 
 Just and Reasonable, viz: 
 
 That said shipper, or the consignee, is to pay freight thereon to the said 
 
 carrier at the rate of per which is the lower published 
 
 tariff rate based upon the express condition that the carrier assumes liability 
 on the said live stock to the extent only of the following Agreed Valua- 
 tion, UPON which Valuation is Based the Rate Charged for the Trans- 
 portation OP the said Animals, and beyond which valuation neither the 
 said carrier nor any connecting carrier shall be liable in any event, whether 
 the loss or damage occur through the negligence of the said carrier or con- 
 necting carriers or their employees or otherwise: 
 
 If Horses or Mules — not exceeding one hundred dollars each. 
 
 If Cattle or Cows — not exceeding seventy five dollars each. 
 
 If Fat Hogs or Fat Calves — not exceeding fifteen dollars each. 
 
 If Sheep, Lambs, Stock Hogs, Stock Calves, or other small animals — not ex- 
 ceeding five dollars each. 
 
 And in no event shall the carrier's liability exceed twelve hundred dollars 
 upon any carload. 
 
 That said shipper is to pay all back charges and freight paid by said carrier 
 or connecting carrier upon or for the transportation of said live stock. 
 
 That the said shipper is at his own sole risk and expense to load and take 
 care of, and to feed and water said stock whilst being transported, whether de- 
 layed in transit or otherwise, and to unload the same; and neither said carrier, 
 nor any connecting carrier, is to be under any liability or duty with reference 
 thereto, except in the actual transportation of the same.
 
 carrier's responsibility for livestock. 251 
 
 That the said shipper is to inspect the body of the car or cars in which 
 said stock is to be transported, and satisfy himself that they are sufficient 
 and safe, and in proper order and condition, and said carrier or any connect- 
 ing carrier shall not be liable, on account of any loss of or injury to said 
 stock happening by reason of any alleged insufficiency in or defective condi- 
 tion of the body of said car or cars. 
 
 That said shipper shall see that all doors and openings in said car or cars are 
 at all times so closed and fastened as to prevent the escape therefrom of any of 
 the said stock, and said carrier or any connecting carrier shall not be liable on 
 account of the escape of any of the said stock from the said car or cars. 
 
 The said carrier or any connecting carrier shall not be liable for or on ac- 
 count of any injury sustained by said live stock, occasioned by any or either 
 of the following causes, to wit: Overloading, crowding one upon another, 
 kicking or goring, suffocating, fright, burning of hay or straw or other ma- 
 terial used for feeding or bedding, or by fire from any cause whatever, or by 
 heat, cold, or by changes in weather, or for delay caused by stress of weather, 
 by obstruction of track, by riots, strikes or stoppage of labor, or from causes 
 beyond their control. 
 
 That in the event of any unusual delay or detention of said livestock, 
 caused by the negligence of the said carrier, or its employees, or its connect- 
 ing carriers, or their employees, or otherwise, the said shipper agrees to accept 
 as full compensation for all loss or damage sustained thereby the amount 
 actually expended by said shipper in the purchase of food and water for the 
 said stock, while so detained. That no claim for damages which may accrue 
 to the said shipper under this contract shall be allowed or paid by the said 
 carrier, or sued for in any court by the said shipper, unless a claim for such 
 loss or damage shall be made in writing, verified by the affidavit of the said 
 
 shipper or his agent, and delivered to the (^Railroad Agent's title) 
 
 Agent of the said carrier, at his office in (Agent's ad- 
 dress) within five days from the time said stock is removed from 
 
 said car or cars; and that if any loss or damage occurs upon the line of a con- 
 necting carrier, then such carrier shall not be liable unless a claim shall be 
 made in like manner, and delivered in like time, to seme proper officer or 
 agent of the carrier on whose line the loss or injury occurs. 
 
 That whenever the person or persons accompanying said stock under this 
 contract, to take care of the same, shall leave the caboose and pass over or 
 along the cars or track of said carrier, or of connecting carriers, they shall 
 do so at their own sole risk of personal injury, from whatever cause, and 
 neither the said carrier, nor its connecting carriers, shall be required to stop 
 or start their trains or caboose cars at or from the depots or platform, cr to 
 furnish lights for the accommodation or safety of the persons accompanying 
 said stock to take care of the same under this contract. 
 
 And it is further agreed by said shipper, that in consideration of the prem- 
 ises and of the carriage of a person or persons in charge of said stock upon 
 a freight train of said carrier or its connecting carriers without charge, other 
 than the sum paid or to be paid for the transportation of the livestock in
 
 252 TEANSPOETATION OF CATTLE. 
 
 charge of which he is, that the said shipper shall and will indemnify and 
 save harmless said carrier and every connecting carrier, from all claims, liabil- 
 ities and demands of every kind, nature and description, by reason of personal 
 injury sustained by said person or persons so in charge of said stock, whether 
 the same be caused by the negligence of said carrier or any connecting car- 
 rier, or any of its or their employees, or otherwise. 
 
 And (Shipper's name) do (does or do) hereby 
 
 acknowledge that (7ie or they) had the option of ship- 
 ping the above-described live stock at a higher rate of freight according to 
 the official tariffs, classifications and rules of the said carrier and connecting 
 carriers and thereby receiving the security of the liability of the said carrier 
 and connecting railroad and transportation companies as common carriers of 
 the said live stock upon their respective roads and lines, but ha., (has or 
 haxe) .. voluntarily decided to ship same under this contract at the reduced 
 rate of freight above first mentioned. 
 
 The Company, 
 
 By 
 
 [Station Agent.] 
 Witness my hand 
 
 [Shipper.] 
 By 
 
 [Shipper's Agent.] 
 
 [Witness.] 
 
 Contract with Man or Men in Charge. 
 
 In consideration of the carriage of the undersigned upon a freight train 
 of the carrier or carriers named in the within contract without charge, other 
 than the sum paid or to be paid for the carriage upon said freight train of 
 the live stock mentioned in said contract, of which live stock, .(/aw or we are) 
 ..in charge, the undersigned do.. (does or do).. hereby voluntarily assume all 
 risk of accidents or damage to.. (his or ih£ir).. -person and property and do.. 
 (does or do). -herehy release and discharge the said carrier or carriers from 
 every and all claims, liabilities and demands of every kind, nature and descrip- 
 tion for or on account of any personal injury or damage of any kind sustained 
 by the undersigned so in charge of said stock, whether the same be caused by 
 the negligence of the said carrier or carriers or any of its or their employees 
 or otherwise. 
 
 ) [Signature 
 y of Man 
 ) in Charge.] 
 
 [Witness.]
 
 carrier's responsibility for livestock. 253 
 
 The duties and responsibilities of railway companies as shippers 
 of live animals are precisely those of a common carrier with re- 
 spect to other property committed to its care for transportation, 
 except that they are not insurers against losses and injuries re- 
 sulting from the inherent nature, propensities, or habits of the 
 animals themselves/ A carrier of livestock is not an insurer 
 •against injuries unavoidably resulting from the inherent nature 
 or propensities of the animals, or against loss caused by the act of 
 God.° It is not an insurer of livestock, but must provide suit- 
 able means for its conveyance, and use all reasonable diligence 
 and forethought in the varying circumstances arising in the busi- 
 ness,' They incur the responsibilities of common carriers as to 
 such freight ; but, at the same time, where an injury has hap- 
 pened to them it is competent for the carrier to show that it oc- 
 curred through the " proper vice " of the animal, and not from 
 any negligence on his part/ As insurers they are not liable for 
 accidents happening tlirough the inherent vice of the thing in- 
 sured, but only for such as happen through adventitious causes/ 
 While common carriers are insurers of inanimate goods against 
 all loss and damage except such as is inevitable or caused by pub- 
 lic enemies, they are not insurers of animals against injuries aris- 
 ing from their nature and propensities, and which could not be 
 prevented by foresight, vigilance and care/ In the transporta- 
 tion of livestock, in the absence of negligence, the carrier is re- 
 lieved from responsibility for such injuries as occur from or in 
 ■consequence of the vitality of the freight. In all such cases, the 
 
 ' Louimlle & N. R. Co. v, Wynn, 88 Tenn. 320; Atlantic & P. R. Co. v. Laird, 
 58 Fed. Rep. 760. 
 
 ^ Black V. Chicago, B. & Q. R. Co. 30 Neb. 197; Boehl v. Chicago, M. & St. P. 
 R. Co. 44 Minn. 191, 45 Am. & Eng. R. Cas. 851; St. Louis & S. F. R. Co. 
 V. Clark, 48 Kan. 321. 
 
 * Cot/pland v. Housatonic R. Co. 15 L. R. A. 534, 61 Conn. 531. 
 
 ^Michigan S. <& JSf. L R. Co. v. McDonough, 21 Mich. 165. 
 
 ^Rohl V. Parr, 1 Esp. 445; Hunter v. Potts, 4 Campb. 203; Boyd v. Dubois, 3 
 Campb. 133; Kendall v. London & S. W. R. Co. L. R. 7 Exch. 373. 
 
 *Penn v. Buffalo & E. R. Co. 49 N. Y. 204, 10 Am. Rep. 355; Clarke v. Roch- 
 ester & S. R. Co. 14 N. Y. 570, 67 Am. Dec. 205; Michigan S. & N. I. R. Co. 
 V. McDonough, supra; Bissell v. New York Cent. R. Co. 25 N. Y. 442, 32 
 Am. Dec. 369; Smith v. New Haven & N. R. Co. 12 Allen, 531, 90 Am. Dec. 
 166.
 
 254 TKANSPOKTATION OF CATTLE. 
 
 carrier is reliev^ed from responsibility if he can show that he Jias 
 provided all suitable means of transportation, and exercised that 
 degree of care which the nature of the property requires.' 
 
 A carrier is not liable for an injury inflicted by a live animal 
 upon hmiself during transportation, or by other animals properly 
 shipped in the same car, without fault on the part of the carrier.'^ 
 Where the carrier has provided proper cars, food, water, and the 
 care which the particular class of animals he is transporting re- 
 quire', he is relieved from the responsibility for injury which may 
 occur through other causes than his own negligence ; — as from the 
 disposition of the animals, which may result in tlieir own injury, 
 notwithstanding all proper precautions, or from the effects of the 
 climate.^ 
 
 Where the owner has a man in charge of the stock, this essen- 
 tially qualifies the obligation of the carrier.* But in many of the 
 courts it is held that a railroad company drawing livestock in a 
 car belonging to the stockowner is liable as a common carrier, 
 
 J Cragin v. New York Cent. R. Co. 51 N. Y. 61, 10 Am. Rep. 559; Lindsley v. 
 Chicago, M. & St. P. R. Co. 36 Minn, 539; Missouri Pac. R. Co. v. Fagam, 
 2 L. R. A. 75, 72 Tex. 127. 
 
 2 Louisville, iV. 0. cfe T. R. Co. v. Bigger, 66 Miss. 319. 
 
 3 Bloicer V. Great Western R. Co. L. R. 7 C. P. 655; Evans v. Fitchburg R. Co. 
 
 Ill Mass. 142, 15 Am. Rep. 19; Moulton v. St. Paul, M. & M. R. Co. 31 
 Minn. 85, 47 Am. Rep. 781; Pardington v. South Wales R. Co. 1 Hurlst. & 
 N. 896; Boehl v. Chicago, M. & St. P. R. Co. 44 Minn. 191; Penn v. Buffalo 
 S E. B. Co. 49 N. Y. 204, 10 Am. Rep. 355; Louisville, N. 0. & T. R. Co. v. 
 Bigger, 66 Miss. 319; Illinois Cent. R. Co. v. Brelsford, 13 111. App. 251; Cra- 
 gin V. NewTork Cent. R. Co. 51 N. Y. 61, 10 Am. Rep. 559; Kendall v. Lon- 
 don & S. W. R. Co. L. R. 7 Exch. 373; Michigan S. & N. L R. Co. v. Mc- 
 Donough, 21 Mich. 265; McManus v. Lancaster &Y. R. Co. 2 Hurlst. & N. 
 702, 4 H. «& N. 346; Louisville & N. R. Co. v. Wynn, 88 Tenn. 320; Squire 
 V. NetoTork Cent. & H. R. R. Co. 98 Mass. 239, 93 Am. Dec. 162; Louisville, 
 C <& L. R. Co. V. Hedger, 9 Bush, 645; McCoy v. Keokuk & D. M. R. Co. 
 44 Iowa, 424; Lee v. Raliegh & O. R. Co. 72 N. C. 286; South & North Ala. 
 R. Co. V. Henlien, 52 Ala. 606, 23 Am. Rep. 578; Evansville & C. R. Co. v. 
 Young, 28 Ind, 516; McFadden v. Missouri Pac. R. Co. 92 Mo. 343; East 
 Tennessee, V. & O. R. Co. v. Hale, 85 Tenn. 69; Hart v. Pennsylvania R. 
 Co. 112 U. S. 331, 28 L. ed. 717; Kansas City, St. J. & C. B. R. Co. v. Simp- 
 son, 30 Kan. 645, 46 Am. Rep. 104; Smitha v. Louisville & N. R. Co. 86 
 Tenn. 198: Snger v. Portsmouth, S. & P. & E. R. Co. 31 Me. 228, 50 Am. 
 Dec. 659; Missouri Pac. R. Co. v. Harris, 67 Tex. 166; Chicago, St. L. & N. 
 O. R. Co. V. Abels, 60 Miss. 1017; Ayres v. Chicago & N. W. R. Co. 71 Wis. 
 372; Indianapolis & St. L. R. Co. v. Jurey, 8 III. App. 160; Toledo, W. &W. 
 R. Co. V. Hamilton, 76 111. 393; Rlvford \. Smith, 52 N. H. 355, 13 Am. Rep. 
 42 ; Wilson v. Hamilton, 4 Ohio St. 722. 
 * Smith V. New Haven & N. R. Co. 12 Allen, 531, 534, 90 Am. Dec. 166.
 
 CARRIER S RESPONSIBILITY FOE LIVESTOCK. 255 
 
 and cannot by contract exempt itself from liability for negli- 
 gence.' Every limitation of the responsibility of a common car- 
 rier should be expressed in each case in clear and unequivocal 
 terms, and a limit of value may be applied to one animal only of 
 a shipment." The mere fact of giving a pass, so that a servant 
 of the owner may go with cattle which are shipped, does not re- 
 lieve the carrier from responsibility for them.' 
 
 Stipulations in a stock transportation contract entered into be- 
 tween a shipper and an initial carrier are not available to a con- 
 necting carrier unless ratified by some act or course of conduct 
 on its part between its receipt and delivery of the stock, where it 
 is left to the option of connecting carriers either to accept or re- 
 ject such stipulations. It is not the duty of a connecting carri- 
 er's car inspector, to remove animals from a car received by it from 
 the initial carrier in order to examine the car from the inside for 
 dangerous projections, such as nails or spikes, where the shipper, 
 who is traveling with the stock, stipulated in the transportation 
 contract that he had examined the car, and that it was suitable 
 and sutHcient." A railroad company receiving cattle for transjjor- 
 tation, is liable for their loss by becoming mingled with other cat- 
 tle, and being loaded in the wrong car at a station where all the 
 cattle are unloaded to be fed under the exclusive charge of its 
 agents.^ The liability of a railway company as a common carrier 
 of stock attaches from the time of an actual delivery to and ac- 
 ceptance by the company, although the bill of lading is not signed 
 until the following day, as Tex. Rev. Stat. art. 283, providing 
 that the liability of common carriers shall attach, as at common 
 law, after such signing, does not change the common law rule 
 under which the liability began upon delivery.^ 
 
 Where a railroad company receives for shipment a car of hogs 
 which is overloaded, it assumes all the responsibilities of a com- 
 
 > Fordyee v. MeFlynn, 56 Ark. 424. 
 « Hopkins V. Westcott, 6 Blatchf. 67. 
 8 Feinberg v. Delaware, L. & W. R. Go. 52 N. J. L. 451. 
 ^Western B. Co. v. Harwell, 97 Ala. 341. 
 t Norfolk dW.R. Co. v. Suffolk. 89 Va. 703. 
 
 ^ Internationai & G. If. M. Co. v. Dimmit County Pasture Co. 5 Tex. Civ. App. 
 186.
 
 256 TRANSPOKTATION OF CATTLE. 
 
 mon carrier witli reference to it, and cannot escape liability for 
 damage to the propeity, on the ground that the car was over- 
 loaded.* When a carrier fails, without good excuse, to deliver 
 the goods on demand after they have reached their destination, 
 he continues to hold them as carrier at his own risk and peril. In 
 the absence of statutory regulations, the liability of a common 
 carrier continues after the goods have reached their destination, 
 until the consignee has had a reasonable time to remove them; 
 and after that time he is lial^le only as a warehouseman, or bailee 
 for hire.'' Where the carrier does not hold itself out as a com- 
 mon carrier of dogs, nor assume their transportation in that 
 character, but, as a matter of accommodation to a passenger 
 who was notified of its rules, permits its servant to receive them 
 in its car, and accept pay for their transportation, such arrange- 
 ment at most can only charge the carrier as a bailee, or private 
 carrier.^ Under a complaint charging the defendant as a com- 
 mon carrier, no recovery can be had upon proof of a liability as 
 a, private carrier only.* 
 
 The loss of animals through disease caused by negligence of the 
 carrier, in fumigating or cleansing his means of transportation, 
 after carrying diseased animals liable to spread the contagion, 
 will render the carrier liable." While the shipper is not bound 
 to communicate to the carrier particulars in regard to the ani- 
 mals transported, which are evident to the most casual obser- 
 vation,' yet, peculiarities or defects in the animal not thus appa- 
 rent, which would increase the risk and against which the carrier 
 might adopt precautions, must be disclosed. A shipper of cattle 
 is not bound to comply with all the requirements of the Texas 
 Revised Statutes as to procuring and recording a certificate of 
 
 ' Einnick v. Chicago, R. I. & P. R. Co. 69 Iowa, 666. 
 
 ^Louisville & N. R. Co. v. MMuire, 79 Ala. 395. 
 
 3 Honeyman v. Oregon & G. R. Co. 13 Or. 352, 57 Am. Rep. 20. 
 
 * Honeyman v. Oregon & C. R. Co. supra. See note to International db G. JV. 
 
 R. Go. V. Tisdale (Tex.) 4 L. R. A. 545. 
 
 « Tattersall v. National SB. Co. L. R. 12 Q. B. Div. 297. 
 
 * Estill V. New York. L. E. & W. R. Co. 41 Fed. Rep. 849; McCune v. Bur- 
 
 lington, G. R. (fe N. R. Co. 52 Iowa, 600.
 
 FORWARDING BY CONNECTING LINE. 257 
 
 inspection before delivering them to a carrier for shipment, but 
 it is sufficient if the cattle have in fact been inspected.* 
 
 § 65. Forwarding hy Connecting Line. 
 
 A carrier that receives cattle consigned to a point beyond its 
 own road, with an agreement to deliver to a connecting line, has 
 the duty to deliver them to the connecting carrier safely, whether 
 in the original cars or in cars furnished by the connecting road; 
 and this duty includes providing suitable bedding for the cars, 
 partitions to keep the cattle apart and proper care in not unduly 
 crowding them. The authority of the agent of a railroad com- 
 pany to keep cattle in the original cars, or transfer them to others 
 furnished by a connecting road, involves the duty of putting cars 
 furnished by the latter in suitable condition, or else allowing the 
 shipper to do so, under his contract to care for them during trans- 
 portation.^ A clause in a contract for the shipment of stock, 
 limiting the liability of the carrier to its own line, enures to the 
 benelit of each carrier over whose line the stock is shipped, and 
 exempts it from liability for a connecting carrier's refusal to de- 
 liver the stock.' A carrier which receives horses for transporta- 
 tion under a contract that it shall not be liable for injuries sus- 
 tained after delivery to a connecting line is not liable for injuries 
 received by them on such line.^ But if animals escape because 
 of defective cars furnished by the initial carrier, beyond the 
 limits of its own road, it will be liable, notwithstanding a con- 
 tract limiting its liability to the end of its own line.° 
 
 A provision in a contract for the transportation of cattle, ex- 
 empting the carrier from liability for the cattle after they pass 
 into the hands of another carrier, except to protect the through 
 rate of freight, is valid and available to a lessor railway company 
 sued for injuries to cattle during transportation on a contract 
 
 ^International & O. N. B. Go. v. Wrirjlit, 2 Tex. Civ. App. J 08. 
 
 * Alabama G. S. R. Co. v. Thomas, 89 Ala. 294. 
 
 ^International & O. N. R. Co. v. Mahula, 1 Tex. Civ. App. 182. 
 
 '^Oulf, C. &8. F. R. Co. V. Allcorn (Tex. Civ. App.) Sept. 13, 1893; Beait. 
 
 mont V. Canadian Pac. R. Co. 5 Mont. L. Rep. (Sup. Ct.) 255. 
 8 Indianapolis, B. & W. R. Co. v. Strain, 81 111. 504. 
 
 17
 
 258 TRANSPORTATION OF CATTLE. 
 
 made by its lessee.* The failure of a railroad company to trans- 
 fer stock immediately to a connecting line, or to notify the con- 
 sif^nees or the agents of the connecting line for three honrs after 
 the arrival thereof, notwithstanding repeated inquiries therefor, 
 constitutes gross negligence.' Loss of cattle delivered to a rail- 
 road company by its own negligence, committed before the cattle 
 are delivered to a connecting carrier, is not within Ya. Code, 
 § 1295, providing that the liability of a carrier accepting anything 
 for transportation beyond its own line shall extend to the point 
 of ultimate destination, unless there is a contract in writing to the 
 contrary signed by the shipper or his agent, and that even in such 
 case the carrier shall be liable for the whole route unless within 
 a reasonable time satisfactory proof shall be given to the consig- 
 nor that the loss or injury did not occur while the thing was in 
 its charge, although written contracts are signed by the shipper.' 
 Under a contract for the shipment of horses, stipulating that 
 the carrier shall not be liable at all after the horses are delivered 
 to its connecting line, except to protect the through rate of 
 freight, the carrier is not liable for injuries received after it has 
 delivered them in good condition at tlie stockyards of a connect- 
 ing road.* A common carrier which has entered into a contract 
 for the shipment of stock stipulating that its liability as a carrier 
 shall cease upon delivery of the stock to a connecting line is not 
 relieved from responsibility by delivering the animals to a stock- 
 yards company for delivery to the connecting carrier.* A car- 
 rier seeking to enforce a provision of a contract of shipment of 
 livestock, that notice of damage to them shall be given, before 
 their removal, to the station master at the station where they are 
 delivered to a connecting road, must have afforded reasonable 
 time, opportunity, and facilities for complying therewith." 
 
 • International & G. -ZV. E. Co. v. Thornton, 3 Tex. Civ. App. 197. 
 ^Bock Island & P. R. Co. v. Potter, 36 111. App. 590. 
 
 8 Norfolk & W. R. Co. v. Sutlierland, 89 Va. 703. 
 
 ■^ Qulf, G. & S. F. R. Co. V. Tennant (Tex. Civ. App.) June 8, 1893; Alabama 
 G. R. Co. V. Thomas, 83 Ala. 343. 
 
 * Oulf, C. & 8. F. R. Co. V. Eddins (Tex. Civ. App.) April 25, 1894. 
 « Gulf, C. & S. F. R. Co. V. Wright, 1 Tex. Civ. App. 403.
 
 FORWARDING BY CONNECTING LINE. 259 
 
 Wliere a contract is made for the transportation of cattle to a 
 point beyond the line of the road of the company with which the 
 contract is made, the liability of the contracting road to cease at 
 its terminus, a connecting company to which the cattle, after 
 being transported over several roads, are finally delivered and by 
 which they are delivered at their destination and all charges col- 
 lected for carriage, is not liable as a partner or joint contractor 
 for injuries received by the cattle on roads other than its own." 
 
 A railroad company is liable for damages to stock caused by 
 negligence, although the damage occurs on another line and the 
 contract of shipment states that it will be liable only for injuries 
 received on its own line, where the relationship of partners exists 
 between the two companies/ A railroad company receiving 
 horses from a connecting line, with notice that the shipper has 
 attempted to prepay the freight for the whole transportation, but 
 has not paid it in full at the regular rates, and also that he con- 
 templates a continuous and speedy passage, has the right to carry 
 the horses through to their destination, and claim a lien on them 
 for the balance of the freight/ An initial railroad carrier con- 
 tracting to "forward" cattle over its own and other lines, stipu- 
 lating that the consignor should take care of the cattle while on 
 the trip, and that it and connecting lines over which such freight 
 should pass, should not be responsible for any loss, damage or 
 injury which might happen in loading, forwarding or unloading, 
 by suifocation or by any other cause, except gross negligence, — 
 such carriers being deemed merely forwarders and only liable for 
 gross negligence — are not released by such contract from their 
 liability as a carrier for the entire distance, from any loss result- 
 ing from ordinary negligence from itself or a connectins: carrier/ 
 
 A contract by a railroad carrier exempting itself from liability 
 for the negligence of a packet company, with which it makes 
 connection to complete a through route over which it has con- 
 tracted to carry the cattle, is reasonable, and is not affected by the 
 
 » Ft. Worth & D. a R. Co. v. Williams, 77 Tex. 121. 
 « Qulf, C. & 8. F. R. Co. V. Wilson (Tex. Civ. App.) April 25, 1894. 
 « Crossan v. Mw York & N. R. Co. 3 L. R. A. 766, 149 Mass. 196. 
 * St. Louis, K. C. & N. R. Co. v. Piper, 13 Kan. 505.
 
 260 TRANSPORTATION OF CATTLE. 
 
 " Eailway and Canal Traffic Act," of 1854.' Under a contract 
 with the initial carrier which, by its running arrangements, was act- 
 ing in fact as the agent for a connecting carrier, but under which 
 no responsibility was assumed for any loss or injury to cattle in the 
 delivering, — if such injury should be occasioned by kicking, 
 plunging or restiveness, — the contracting carrier was held liable 
 where, in the act of delivery against the protest of the consignee, 
 the cattle were unnecessarily released and were killed by the cars 
 of the connecting carrier.* 
 
 § 66. Damages for Refusal or for Failure to 
 Transvort. 
 
 For refusal of railroad company to transport stock, the measure 
 of damages is the difference between the market value at the 
 place of shipment and the place of delivery.' But it is said that 
 it is error to consider their value at the market or place of desti- 
 nation, in the absence of evidence or averment in the complaint 
 that defendant's agent, at the time of contracting to furnish cars, 
 was informed that the cattle were intended for sale at such place." 
 If there has been a conversion of the property, the recovery is for 
 the value at the time it should have been delivered.* In an ac- 
 tion for damages for the breach of an agreement by a railroad 
 company to bring all live stock transported over its road to plain- 
 tiff's stock yard, evidence of the number of cars loaded with stock 
 and transported by the company is admissible in determining the 
 question of damages." Accidents and other causes which excuse 
 delay, do not relieve from the duty to transport, which must be 
 done as soon as the obstruction can reasonably be removed.^ A 
 
 ' Doolan v. Midland R. Co. 10 Ir. C. L. Rep. 47; overruling Moore v. Midland 
 
 R. Go. 9 Ir. C. L. Rep. 20. 
 2 Oill V. Manchester, S. & L. R. Co. L. R. 8 Q. B. 186. 
 ^Birney v. Wahnah, St. L. & P. R. Co. 20 Mo. App. 470; Qelvin v, Kansas 
 
 City, St. J. & G. B. R. Co. 21 Mo. App. 273. 
 * Qelvin v. Kansas City, St. J. c6 C. B. R. Co. sujyra. 
 ^Baltimore & 0. R. C. v. O'Donnell, 49 Ohio St. 489; St. Louis, I. M. & S. 
 
 R. Co. V. Mudford, 44 Ark. 439; Card v. Hine, 39 Fed. Rep. 818. 
 6 Terre Haute & I. R. Co. v. Struble, 109 U. S. 381, 27 L. ed. 970. 
 ''Baltimore & 0. R. Co. v. O'Dnnnell, 49 Ohio St. 489; Elliott v. Rossell, 10 
 
 Johns. 7, 6 Am. Dec. 306; King v. Shepherd, 3 Story, 349; The Niagara 
 
 V. Cordes, 62 U. S. 21 How. 7, 16 L. ed. 41.
 
 DELAY IN SHIPMENT AND DELIVERY OF LIVESTOCK. 201 
 
 common carrier which wrongfully refuses to receive stock prop- 
 erly tendered to it from a connecting line, thereby contributing 
 to an injury to it, will be liable to the owner for the entire dam- 
 age, even thongh the other line may have been guilty of negli- 
 gence rendering it also liable.' Failure to forward freight by 
 another line as contracted, will render the carrier liable.' 
 
 A boat employed by the purchaser of coal to carry it from the 
 place where it was purchased, and which has an order for the 
 coal, which is accepted by the seller, with a provision that no lia- 
 bility is to be incurred for delay or failure in f urnisliing a load, is 
 nevertheless entitled to be loaded in its turn ; and the exception 
 from liabilit}' for delay does not include a willful or negligent 
 disregard of the contract.' A shipper is not in fault for failure 
 to furnish cars under a contract of shipment providing that he 
 shall furnish the cars and load them at a certain station, where he 
 notifies the railroad company that cars to be used in the business 
 are at certain other stations, that he desires the company to take 
 them from another company in whose possession they are and 
 which had been directed to turn them over, and the railroad com- 
 pany does not decline to get the cars, or claim that the shipper is 
 bound to make any other delivery of them, or that there is any 
 difficulty in getting them, but merely fails to accept them and 
 commence the shipment within the time specified in the contract." 
 Proof that the next carrier would not receive the goods from 
 it at the termination of its line will not excuse the carrier for 
 failure to deliver to a particular place.* 
 
 ^67. Delay in Shipment and Delivery of Live- 
 stock. 
 
 Where a carrier is delayed in delivering livestock to market, it 
 may excuse the delay by proof of misfortune or accident, although 
 not inevitable or produced by the act of God. But evidence of 
 
 ' Gulf, C. & S. F. R Co. V. Godair, 3 Tex. Civ. App. 514. 
 
 * Michigan 8. & N. I. R. Co. v. Bay, 20 111. 375, 71 Am. Dec. 278. 
 « Meiloy V. Lehiff7i tfc W. Coal Co. 37 Fed. Rep. 377. 
 
 * Lawrence v. Miliruxkee. L. 3. & W. R. Co. 84 Wis. 437. 
 5 East Tennessee & G. R. Co. v. Nelson, 1 Coldw. 272.
 
 262 TKANSPORTATION OF CATTLE. 
 
 such accident and delay is not admissible to excuse the delivery 
 of the stock in bad order, unless there is offered with it evidence 
 to prove that it used the highest degree of care during the delay 
 for the preservation and safety of the animals.' A railroad com- 
 mon carrier stands upon the same footing as other common car- 
 riers, and may excuse delay in the delivery of cattle by accident 
 or misfortune not inevitable or produced by acts of God, and all 
 that can be required of it in any emergency is that it shall exer- 
 cise due care and diligence to guard against delay." 
 
 The failure of an engineer in charge of a train containing a car- 
 load of stock, to receive orders for the movement of the train, 
 caused by atmospheric or other influences beyond the carrier's 
 control rendering unavailable the telegraph wires, is excusable so 
 as to prevent a recovery for damages to the stock by delay in its 
 shipment, where it was in fact transported and delivered, whether 
 the failure of the wires to transmit the message was attributable 
 to the act of God or not.' A railroad company receiving live 
 stock for shipment is not necessarily obliged to send it on the first 
 train thereafter leaving, but merely to send it within a reasonable 
 time.^ But a carrier of livestock is bound to forward the animals 
 with reasonable despatch, and is not relieved from liability merely 
 by the fact that the car containing the animals was forwarded by 
 the next regular train, regardless of the time when the train left 
 and of the facilities possessed by it for avoiding delay,* and a carrier 
 of livestock is liable for damages caused by delay in shipment 
 resulting from a washout on the main line, if it makes no effort 
 to carry them by a way which it has around the washout, over 
 which it has carried other cattle pending the washout.* A carrier 
 
 ' Kinnick v. Chicago, R. I. & P. R. Co. 69 Iowa, 666. 
 
 « Greismer v. Lake Shore & M. S. R. Co. 103 N. Y. 563, 26 Am. & Eag. R. 
 Cas. 290; Wibert v. Mw York & E. R. Co. 12 N. Y. 245; Blackstock v. New 
 York & E. R. Co. 20 N. Y. 48, 75 Am. Dec. 372; Lake Shore & M. S. R. 
 Co. V. Bennett, 89 Ind. 457, 6 Am. & Eng. R. Cas. 391; Bartlett v. Pitts- 
 burg, C. & St. L. R. Co. 94 Ind. 281. 
 
 ^International & O. N. R. Co. v. Hynes, 3 Tex. Civ. App. 20. 
 
 •• Pennsylvania Co. v. Clark, 2 Ind. App. 153, affirming on rehearing, 2 Ind. 
 App. 146. 
 
 • Oalveston, H. & S. A. R. Co. v. luckett, (Tex. Civ. App.) Feb. 7, 1894. 
 
 ^Missouri, K. & T. R. Co. v. Olive (Tex. Civ. App.) Oct. 4, 1893.
 
 DELAY IN SHIPMENT AND DELIVERY OF LIVESTOCK. 263 
 
 is not bound to furnish cars to carry livestock on Sunday ; yet 
 having received stock into pens for transportation it becomes its 
 duty to ship without unreasonable delay.' Cattle loaded on the 
 cars at 6 o'clock p. m. on Friday, which are not moved by the 
 railroad company until 4 o'clock on Saturday, when it is too late 
 for them to reach their destination in time for the Saturday mar- 
 ket, are not shipped within a reasonable time, and tlie company is 
 liable for the delay.* 
 
 A carrier which accepts livestock for shipment, cannot excuse 
 itself from liability for injuries resulting from delay in transpor- 
 tation, on the ground that there was an unusual rush of business 
 on its road.^ But a carrier is relieved from liability for failure to 
 furnish cars for the transportation of stock, where it has sufficient 
 cars to meet all ordinary demands, and an unusual demand has 
 put all its cars in use, rendering it unable to furnish those de- 
 manded, and it furnishes them as soon as it can with due regard 
 to the rights of other shippers who had previously or at the same 
 time demanded transportation." 
 
 That the carrier is liable for damages arising from the failui-e 
 to transport stock within a reasonable time is well settled, but 
 what is a reasonable time, under the particular facts of the case, 
 or what circumstances will excuse the failure to deliver, within a 
 reasonable time, the carrier would have the right to shoM', in or- 
 der to relieve itself of liability for this element of damage. Evi- 
 dence offered to relieve a carrier of liability caused by the deten- 
 tion of a horse was that "a strike existed, during the existence of 
 which no freight or livestock trains could be or were run over 
 the lines, by reason of the interference of strikers and those act- 
 ing in concert with them." This was held admissible, for the 
 purpose of showing a sufficient excuse for the failure of the carrier 
 to deliver the horse during the period of his detention. If it 
 could be shown that " no freight or live stock trains were or could 
 be run over the road, because of the interference of the strikers," 
 
 ' Ouinn v. Wabasli, St. L. & P. R. Co. 20 Mo. App. 453. 
 
 « Cincinnati, I. St. L. <& C. B. Co. v. Case, 123 Ind. 310. 
 
 ^ Internntional <& O. N. R. Co. v. Ander-wn, 3 Tex. Civ. App. 8. 
 
 * Pittsburg, C. C. & St. L. R. Co. v. Racer, 5 Ind. App. 309.
 
 264 TRANSPORTATION OF CATTLE. 
 
 it might have shown that the horse was, under the circumstances, 
 delivered within a reasonable time, or a sufficient excuse £or the 
 failure to deliver within such time ; and in either event, would 
 have relieved the carrier of liability.' Where livestock — cows 
 and calves — were accepted, freight paid, and receipt given, for 
 transportation, without express contract or limitation, and, being 
 delayed by a snowstorm, were put in a stockyard, where they 
 died, and others were injured by cold and exposure, the railroad 
 company was liable for damages as a common carrier.' Failure 
 of a railroad company to unload horses transported by it, at the 
 time agreed upon by the company's agent, renders it liable for 
 damages resulting to the horses from such failure, although the 
 conductor of the train on which they were shipped stated to the 
 owner a few minutes before the train started that he did not 
 think they could be unloaded at the time agreed upon." Where 
 plaintiff was induced to ship a consignment of horses so that they 
 would arrive at their destination in the night time, by the assur- 
 ance of the carrier's agent that there would be no delay in un- 
 loading them, the carrier is liable for damages suffered by reason 
 of the horses taking cold on account of such delay, they having 
 become heated by fright and excitement during transportation.^ 
 A carrier who, contrary to his uniform usage, fails to give no- 
 tice of the arrival of goods, or wrongfully detains them after they 
 have been applied for by the consignee, is guilty of such negli- 
 gence in exposing them to loss or damage by a subsequent freshet, 
 occurring while they are in his possession, and before giving no- 
 lice of their arrival, as to deprive him of excuse by the act of 
 God.* A contract by a railroad company for the transportation 
 of horses and their delivery at its depot, providing for their stor- 
 age unless called for, and containing stipulations in relation to 
 unloading which imply that the company will unload them, re- 
 quires the company to unload the horses at the place of destina- 
 
 ' Louisville, N. A. & C. R. Co. v. Hart, 4 L. R. A. 549, 119 Ind. 273. 
 2 Feinberrj v. Delaware, L. & W. R. Co. 52 N. J. L. 451. 
 » Corbett v. Chicago, St. P. M. & 0. R. Co. 86 Wis. 82. 
 *Lake Erie &W. R. Co. v. Rosenberg, 31 111. App. 47. 
 ^Richmond & D. R. Co. v. White, 88 Ga. 805.
 
 DELAY IN SHIPMENT AND DELIVERY OF LIVESTOCK. 265 
 
 tion, notwithstanding a usage of its agent there, known to the 
 shipper, of requiring owners of animals to unload them.' 
 
 a. Breach of Contract for Cars. 
 
 A carrier is liable to a shipper of livestock in damages for 
 breach of its agreement to furnish cars for shipment thereof at a 
 certain time and place, and is not excused bj reason of an accumu- 
 lation of livestock received from connecting carriers and local 
 shippers.* It cannot plead ignorance of the existence of a con- 
 tract of shipment made by letters and recognized as such by it, 
 on the ground that it was misled by the promise of the shipper 
 to make out a contract at a sjDecified time, where, after notice by 
 the latter to obtain the cars w4iich he was to furnish, it fails un- 
 reasonably so to do, so as to relieve it from liability in damages 
 for the consequences of its delay.^ A shipper's order to a com- 
 mon carrier of livestock for a certain number of cars, to be fur- 
 nished at a specified time and place, when accepted by the carrier, 
 constitutes a contract binding the carrier to furnish the cars and 
 the shipper to furnish the stock to load them ; and the fact that 
 the shipper did not own or have the stock when the contract was 
 made does not affect the liability of the carrier for failure to pro- 
 vide the cars, on the ground that its promise so to do was without 
 consideration.* The station agent of a railroad company has pre- 
 sumptively authority to receive and forward freight, and may bind 
 the company by a contract to furnish, on a certain day named, 
 cars for the transportation of livestock, although in making such 
 contract he may have, unknown to the shipper, exceeded his au- 
 thority.^ 
 
 A carrier is liable to a shipper of cattle for delay in compliance 
 with a contract to ship them, where such delay is caused by the 
 presentation for shipment of cattle by a third person, and the use 
 
 ' Bemon v. Oray, 13 L. R. A. 262, 154 Mass. 391. See post, chap. XI., on 
 "Delay in Caniage and Transportation of Goods." 
 
 2 Cross V. McFaden, 1 Tex. Civ. App. 461. 
 
 3 Lawrence v. Milwaukee, L. 8. & W. R. Co. 84 Wis. 427. 
 
 * Pittsburg, C. C. & St. L. R. Co. v. Racer, 5 Ind. App. 209. 
 
 * Qelmn v. Kansas City, St. J. & C. B. R. Co. 31 Mo. App. 273.
 
 266 TEANSPOKTATION OF CATTLE. 
 
 of the cars contracted for to ship the latter's cattle, although such 
 shipment was necessary.* No excuse for the breach by a carrier 
 of its contract to furnish a car and transport cattle to a certain 
 place by a certain day is furnished by the fact that the shipper's 
 object in naming that day was to enable him to offer the cattle 
 for sale on Sunday contrary to law, unless that object entered 
 into the contract as part of the inducement or consideration.' 
 Delivery of cars by a railroad company at any hour during the 
 day for which they are ordered, though too late to be used that 
 day, is sufficient where no hour has been specified in the order.^ 
 
 b. Damages to Livestock hy Delay in Tra/asportation. 
 
 Notice of damage to stock, required by a shipping contract to 
 be given before the removal of the stock from the possession of 
 the carrier, is not required in the case of a claim for damages for 
 delay in transportation." The measure of damages for loss, by 
 reason of the delay and by fall in the price of the cattle, is the 
 difference between the market value at the place of delivery at 
 the time the cattle would have arrived there if defendant had 
 kept its contract, and their value at the same time at the place of 
 shipment. But it is error to consider their value at the market 
 or place of destination in the absence of evidence or averment in 
 the complaint that defendant's agent, at the time of contracting 
 to furnish cars, was informed that the cattle were intended for 
 sale at such place.^ In an action against a carrier by a shipper of 
 cattle for delay in carrying them to a certain market, proof that 
 the carrier's agent knew at the time of shipment that the cattle 
 were being shipped to such market for immediate sale shows 
 knowledge of the carrier. A provision in a contract for the ship- 
 ment of cattle, limiting the shipper's damages, in case of loss or 
 partial loss, to the value of the cattle at the j^lace of shipment, 
 
 ' International & G. N. R. Co. v. Wright, 1 Tex. Civ. App. 402. 
 ^Waters v. Richmond & D. R. Co. 16 L. R. A. 834, 110 X. C. 338. 
 ^ McGreio v. Missouri Pac. R. Co. 109 Mo. 582. 
 
 * Louisville <& JSf. R. Co. v. Bell, 13 Ky. L. Rep. 393. 
 
 * Gelvin v. Kansas City, St. J. & C. B. R. Co. 21 Mo. App. 273.
 
 DELAY IN SHIPMENT AND DELIVEKY OF LIVESTOCK. 207 
 
 cannot affect the shipper's right to recover the true vahie, if loss 
 is caused by the carrier's negligence, and where cattle, with the 
 carrier's knowledge, are shipped to a certain market to be inune- 
 diately sold there, in determining their value, in an action against 
 the carrier for loss, where, by the negligence of the carrier such 
 cattle are delayed by a wreck, the shipper is entitled to recover 
 the difference in the state of the market at the time the cattle 
 are. and at the time they should have been, delivered, and the 
 shrinkage in weights caused by the wreck and delay, to be ascer- 
 tained by reference to the destined market when the cattle should 
 have reached there. Interest may be allowed on the amount of 
 damages sustained, though it is not asked for in the pleading. 
 An instruction that defendant is not liable for injuries done to 
 the cattle by each other by reason of their inherent viciousness is 
 properly refused, if defendant has not raised such issue by plead- 
 ing and proof, and no evidence of such injuries is brought out 
 by plaintiff.' Where, on account of a carrier's negligence, live- 
 stock arrives at its destination too late for the market that week 
 and there is no market until the first of the followino- week when 
 a portion of the stock is sold, and the rest, which might also have 
 been sold at the same time, is kept by the owner till later in the 
 week, when it is sold at a less price than it would have brouo-ht 
 on the day when the former portion was sold, the owner is not 
 entitled to recover for the dej)reciation in value up to the day of 
 the final sale, but only to the day of the sale of the former por- 
 tion.^ 
 
 A common carrier is liable for all damage to live-stock from 
 negligent delay in its transportation and delivery whereby they 
 are reduced in weight more than they would have been had 
 prompt carriage and delivery been made, and whereby they in- 
 jure each other in consequence of viciousness aroused by the ex- 
 cess of their confinement beyond the time necessary for their 
 transportation and delivery.' A railroad company which as a 
 bailee for hire receives horses for transportation under a contract 
 
 ' Ft. Worth & D. R. Co. v. Greatliouse, 83 Tex. 104. 
 
 « Ayres v. Chicago & iV. W. E. Co. 71 Wis. 372. 
 
 8 Richmond cfc D. R. Co. v. Trousdale, 99 Ala. 389.
 
 268 TRANSPORTATION OF CATTLE. 
 
 providing that it shall not be liable for any loss to the shipper by 
 reason of delay of the trains, and that the stock is to be fed, wa- 
 tered, and cared for while on the cars by the shipper at his own 
 expense and risk, is bound to furnish the shipper an opportunity 
 to feed and water the horses, where the train is delayed.' A 
 vessel is liable for the keej) and loss of weight on cattle and 
 sheep during the delay in sailing after notice to the shipper that 
 she would sail on a certain day. But a shipper of cattle cannot 
 recover damages for delay in the sailing of a vessel on which 
 they are carried, if, after knowing of the delay, they could have 
 been sold without loss.' Where, during a wrongful detention 
 of cattle by ship owners, to compel the payment of an un- 
 founded claim for one day's demurrage, the market price de- 
 clined, the ship owners were liable for the loss in the price of the 
 cattle.' 
 
 c. Opinion of Expert Witnesses as to Damages. 
 
 Beef cattle were shipped over a railroad to Chicago, to be there 
 sold immediately on arrival. In an action against the carrier for 
 negligence in carrying the cattle, by which they lost in weight, 
 it was shown that by reason of a wreck they were shaken up and 
 bruised, and were confined in the cars several hours longer than 
 they would otherwise have been. Their weight when they ar- 
 rived in Chicago was proven, but their weight at the point of 
 shipment was not known. It was held, that a witness familiar with 
 the shipment of cattle from such point to Chicago, who was with 
 the cattle in transit, and was present and saw the effect of the 
 wreck, was properly allowed to give his opinion as to the loss of 
 the cattle in weight by reason of the wreck and of the consequent 
 delay. In such a case a witness who has had large experience in 
 the shipment of cattle, though he may have no personal knowl- 
 edge of the cattle in controversy, may give his opinion as to their 
 loss in weight, after the fact of the wreck and its results as to the 
 
 1 Smith V. Michigan C. B. Co. (Mich.) April 17, 1894. 
 '' Goldsmith v. Totver Hill SS. Co. 37 Fed. Rep. 806. 
 ^The Suffolk, 31 Fed. Rep. 835.
 
 DAMAGES FOR NEGLIGENT LOSS OF OR INJURY TO CATTLE. 269 
 
 injury and delay of the cattle are stated to him as a hypothetical 
 case; and it is immaterial that the case as stated does not cover 
 the full range of the facts, provided enough is given to enable 
 the witness to formulate an intelligent opinion.* 
 
 § 68. Damages for J^egUgent Loss of or Injury to 
 
 Cattle. 
 
 A shipper of cattle is entitled to recover from the carrier for a 
 loss in value of the stock caused by the gross negligence and care- 
 lessness of the agent of the shipper in handling and transporting 
 the cattle, consisting of unnecessary delay in transportation, need- 
 less confinement in the cars at the dilfferent stations on the road, 
 and bruising and bumping caused by improper transportation.' 
 In an action to recover damages for injury to cattle caused by 
 negligence in the defendant railroad company, if its method of 
 transportation was unsafe, as omitting means of ventilation and 
 cleats on the floors to furnish footing, the fact that it was usual 
 with the defendant cannot exonerate it from its contract to safely 
 transport. Its own usage would have no tendency to show that 
 it had adopted a safe method.' 
 
 ' Notice to a carrier that cows shijiped are pregnant is not neces- 
 sary in order to recover damages for miscarriages caused by in. 
 juries (not chargeable to the inherent nature or disposition of the 
 animals) in transportation.^ Where mares being with foal are 
 shipped, they constitute freight having what is called an inherent 
 defect; and if they lose their foal on the way from causes for 
 which the carrier is responsible, the measure of damages is not 
 the difference in their market value as they are and what it would 
 have been had they arrived in good condition; but if the loss is 
 total, it is the price, less freight charges, they would have brought 
 if delivered in reasonable time, having had due and necessary 
 care wdiile in the carrier's possession; and if the loss is partial, it 
 
 » Ft. Worth & D. C. R. Co. v. Oreathome, 82 Tex. 104. 
 
 « Good V. Galveston, H. & 8. A. E. Co. (Tex.) 4 L. R. A. 801. 
 
 2 Leonard v. Fitchburg R. Co. 143 Mass. 307. 
 
 * Estill V. New Tork, L. E. & W. E. Co. 41 Fed. Rep. 849.
 
 270 TRANSPOKTATION OF CATTLE. 
 
 is the difference between such price, less freight, and the actual 
 value of the animals as delivered.' Suit was brought to recover 
 damages for injury to horses shipped by rail. The owner, for 
 two days, refused to receive the horses at the place of destina- 
 tion, owing to some extra charges. It was held that no expense 
 thereafter incurred could be properly charged to defendants.* 
 
 It is not sufficient to hold the carrier responsible to introduce 
 proof of the death of live stock ; but there must be shown some 
 injury to the animal, not presumably the result of its inherent 
 disposition and nature ; or that the injury shown has aggravated 
 w^liat may have resulted from such inherent causes.' A carrier 
 is not liable for the death, a few days after its delivery, of a calf 
 alleged to have been injured during transportation, where it was 
 sick when it was delivered to the company, and there is no evi- 
 dence that it sustained any injury while in the company's posses- 
 sion or that it was not properly fed and watered, or to show that 
 its sickness, if its death was caused thereby, was not occasioned 
 by natural causes, or to show whether it died from such sickness 
 or from injuries which occasioned bruises found on its after its 
 death, but not on it when delivered by the company to the owner.* 
 On an issue in an action against a carrier for the killing and in- 
 juring of cattle during transportation, as to whether or not the 
 manner in which the shipper loaded the cars with the cattle was 
 the cause of at least some of the injuries sustained, and, if so, to 
 what extent, it is error to refuse an instruction that no recovery 
 can be had for injuries resulting from the promiscuous interming- 
 ling of the cattle.^ 
 
 A carrier transporting a mule in a suitable car with adequate 
 equipments and appliances, without culpable delay or negligence 
 or want of care on the part of its employes in handling the stock, 
 over a track in good condition, is not liable for an accident to 
 the mule by which his hoof is torn oli, in the absence of evidence 
 
 ' Missouri Pac. JR. Co. v. Fagan, 2 L. R. A. 75, 73 Tex. 137. 
 '^Louisville & N. R. Co. v. Trent, 16 Lea, 419. 
 ^Pennsylvania B. Co. v. Raiordon, 119 Pa. 577. 
 
 * Missouri Pac. R. Co. v. Heath (Tex.) Dec. 1, 1891. 
 
 * Missouri Pac. R. Co. v. Edwards, 78 Tex. 307.
 
 DAMAGES FOR NEGLIGENT LOSS OF OR INJURY TO CAilLE. 271 
 
 Bhowing how it occurred. A carrier is not liaMe for an injury 
 inflicted by a live animal upon himself diirinf^ transportation, or 
 by other animals properly shipped in the same car, without fault 
 on the part of the carrier/ A special charge requested in an ac- 
 tion against a carrier for cattle alleged to have been killed and in- 
 jured during transportation, that there must be evidence of the 
 exact number of the dead and injured cattle to entitle plaintiff to 
 recover, is properly denied as too restrictive where there is evi- 
 dence showing the average value of the killed and injured cattle, 
 and also evidence from which the number of each could be ascer- 
 tained b}'^ the jury. The mere fact that cattle shipped died after 
 their delivery at the point of destination is not sufhcient to relieve 
 the carrier of liability on the ground that the damage is too re- 
 mote, if the death of the cattle resulted solely from injuries re- 
 ceived by reason of the carrier's negligence while transporting 
 them.' 
 
 The mere fact of gi\"ing a pass so that a servant of the owner 
 may go with cattle which are shipped, does not relieve the carrier 
 from responsibility for them,' But where by special contract the 
 owner agrees to and does take charge of the stock, the burden of 
 proving negligence is on him." Where the shipper by the bill of 
 lading, assumes the risk of transportation, except for the carrier's 
 negligence, and accompanies the train, and one of the horses is 
 found dead upon arrival at the destination, but the cause of death 
 is not shown, the carrier is not responsible.* 
 
 A complaint against a railway companj' to recover a stated sum 
 as damages for its alleged negligent injury of plaintiff's horse, not 
 alleging that the company is a common carrier or that the horse 
 was delivered to it to be transported, or setting up any contract 
 of affreightment, or that anything was paid or promised to be paid 
 for ti-ansportation, — is insufficient to warrant a recovery against 
 the company as a common carrier. No recovery can be had 
 
 ' Louisville, N. 0. & T. R. Co. v. Bigger, 66 Miss. 319. 
 - Missouri Pac. R. Co. v. Edtcards, 78 Tex. 307. 
 2 Feinberg v. Delaware, L. & W. R. Co. 52 N. J. L. 451. 
 " McBeath v. Wabash, St. L. & P. R. Co. 30 jMo. App. 445. 
 ^ Pennsylvania R. Co. v. Raiordon, 119 Pa. 577.
 
 27ii TBANSrOKTATION OF CATTLE. 
 
 against a railway company sued on an implied contract to trans- 
 port a horse, constituted by its acceptance and transportation ac- 
 cording to the sliipper's directions, without proof of any reward 
 paid or promised, except for damages to the horse occasioned by 
 its gross negligence ; and such negligence is not shown where the 
 evidence is unconti'adicted that it exercised reasonable and proper 
 care to avoid injuring the animal.' But the generally accepted 
 rule that some injury to the animal, not presumably the result of 
 its inherent nature or disposition ; or that if any injury resulted 
 from such inherent causes, it has been aggravated by other in- 
 juries, is not universally accepted." In an action for damages for 
 injury and loss of cattle by negligence of the carrier, brought 
 against the lessee of the road with which the contract of ship- 
 ment was made, notice of loss given to the general freight agent 
 of the lessor road, in pursuance of the terms of the contract, and 
 service of summons upon the proper station agent of defendant 
 company, is sufficient.^ 
 
 § 69. Liahility for Miscarriage and Wrongful 
 Delivery of Livestock. 
 
 A carrier must deliver cattle to the party designated by the 
 terms of shipment, or to his order, at the place of destination : 
 and where it delivers them to one not entitled to receive them, it 
 is accountable. Direction on waybills to notify a third party 
 named does not qualify the duty of the carrier to deliver cattle to 
 the order of the consignee. The last carrier in connecting lines 
 must deliver cattle at the place of destination, and to the con- 
 signee there, if he was made known to it on receiving the freight 
 from the preceding connecting company. The custom of a com- 
 pany of delivering cattle without requiring the production of the 
 bill of lading or authority of the shipper, does not relieve it from 
 liability for cattle wrongfully delivered. Indorsement, by the 
 shipper to plaintiff, of receipts taken on the shipment of cattle, 
 
 » Louisville & N. R. Co. v. Gerson (Ala.) Feb. 13, 1894. 
 
 ^Louisville & N. B. Go. v. Wynn, 88 Tenn. 320; Lindsley v. Chicago, M. & St. 
 P. R. Co. 36 Minn. 539. But see Ilvsscy v. The Taragossa, 3 Woods, 380. 
 « Reynolds v. St. Louis, L M. & S. R. Co. 22 Mo. App. 609.
 
 STIPULATION FOR NOTICE OF INJURY TO LIVESTOCK. 273 
 
 transfers their title and gives plaintiff the right to their posses- 
 sion, and, if necessary, to sell them for payment of drafts taken 
 by him against the shipper.' Where the agent pointed out the 
 <;ar upon \diich hogs were to be loaded, and plaintiff loaded them 
 on the car pointed out, but by mistake of the agents and em- 
 ployes of the company the consignment miscarried, the company 
 is liable.^ The carrier becomes liable as for a conversion the 
 moment it makes an unauthorized delivery to another than the 
 person designated.* 
 
 § 70. Stipulation for JYotice of Injury to Live- 
 stock, 
 
 A stipulation in a contract for the shipment of stock from one 
 state to another, requiring notice of damage to be given to an 
 agent at the point of shipment as a condition precedent to a re- 
 covery, without specifying or naming any particular agent either 
 at the point of shipment or of destination, to whom such notice 
 may be given, — is unreasonable." Texas Act of March 4, 1891, 
 providing that no provision in a contract limiting the time within 
 which to sue to less than two years shall be valid, and that no 
 stipulation in any contract requiring notice to be given of anv 
 claim for damages as a condition precedent to the right to sue 
 thereon shall be valid unless the stipulation is reasonable, is not 
 invalid as attempting to interfere with or regulate interstate com- 
 merce.* 
 
 a. Limit of Time for Notice. 
 
 When, on shipping cattle by a railroad, a written contract is 
 entered into between the carrier and the shipper, that in case of 
 loss no damages shall be j)aid unless a claim in writing for such 
 
 ' North Pennsylvania B. Co. v. Commercial Nat. Bank of Chicago, 123 U. S. 
 
 727, 31 L. ed. 287. 
 « Wilson V. Wabash, St. L. & P. R. Co. 23 Mo. App. 50. 
 ^Fulton V. Lydecker, 41 N. T. S. R. 457: Wilson v. Adams Exp. Co. 48 Mo. 
 
 App. 659; Baltimore & 0. R. Co. v. O'Donnell, 49 Ohio St. 489; Claflin v. 
 
 Boston <& L. R. Co. 7 Allen, 341; Viner v. NewYoi'k, A. G. &W. 8S. Co. 50 
 
 N. Y. 23. 
 * Galveston, S. & S. A. R. Co. v. Short (Tex. Civ. App.) Feb. 7, 1894. 
 ^Gulf, C. & S. F. R. Co. V. Eddins (Tex. Civ. App.) April 25, 1894. 
 18
 
 274: TEANSPOETATION OF CATTLE. 
 
 damage shall be delivered to the carrier in five days after the re- 
 moval of the cattle from the cars, no recovery can be had for a 
 loss unless such written claim shall be so delivered.' 
 
 A conti-act by a common carrier requiring suit for damages to 
 livestock to be instituted within forty days after the injury occurs 
 is supported by a sufficient consideration if the stock is transported 
 under such contract at less than the regular rates according to 
 actual weight.* A stipulation in a common carrier's contract of 
 interstate shipment, requiring notice of a claim for damages to be 
 given within a specified time, is valid, in the absence of any stat- 
 ute to which the contract is subject, where such time is reason- 
 able and adapted to the circumstances of the particular case.^ A 
 condition of a contract for the ' shipment of horses, that no claim 
 for loss or damage shall be valid unless made in writing within 
 thirty days after the same occurs, is reasonable and binding upon 
 the owner when made or authorized by him." And a stipulation 
 in a contract of shipment, that a carrier shall not be liable for 
 damages unless action is commenced within forty days after the 
 damages occur, is binding upon the parties unless subsequently 
 waived.' 
 
 Noncompliance with a stipulation in a contract for carrying live- 
 stock, that notice of claims for injuries must be made within 
 twenty-four hours after arrival at destination, will not prevent a 
 recovery if at tliat time the injuries appear to be slight, but the 
 animal, after receiving proper care, proves to be seriously and 
 permanently injured, shortly after which the agent of the com- 
 pany is notified and answers that the claim is being investigated 
 and will be settled on its merits." A stipulation in a shipping 
 contract requiring the shipper to give written notice of his claim 
 for damages does not apply to damages which accrued prior to 
 
 ' McBeatn v. Wabash, St. L. & P. B. Co. 20 Mo. App. 445. 
 
 2 Texas & P. B. Co. v. Klepper (Tex. Civ. App.) Dec. 20, 1893. 
 
 3 Galveston, H. & S. A. R. Co. v. Williams (Tex. Civ. App.) Feb. 7, 1894. 
 * Armstrong v. Chicago, M. & St. P. B. Co. 53 Minn. 183. 
 
 5 Galveston, H. & 8. A. B. Co. v. Silegman (Tex. Civ. App.) Oct. 4, 1893. 
 « Earned v. Missouri Pac. B. Co. 51 Mo. App. 483.
 
 STIPULATION FOR NOTICE OF INJURY TO LIVESTOCK. 2(0 
 
 the making of the contract.' Nor will a limitation in a shipping 
 contract as to the time within which actions must be brought for 
 damage to the property api)ly to an action for damages for the 
 escape of stock before loading, due to the failure of the company 
 to provide a suflficient pen, although the liability of the railroad 
 company is that of a carrier." The oral notice is not a sufficient 
 compliance with the condition.' Where a shipper fails to comply 
 with a condition in the contract of carriage requiring such a 
 written notice, he is not entitled to recover.'' 
 
 A contract requiring the shipper of livestock to give notice of 
 injury thereto, to the station agent or some general officer of the 
 carrier at the deliveiing station, is unreasonable and cannot be 
 enforced, unless it is made to appear that the person to be noti- 
 ced is so conveniently accessible to the person who is to give the 
 notice, that the latter can reasonably discharge the duty within the 
 time limited by the contract.' Such a contract is unreasonable 
 and void where the stock is to be delivered at a place where the 
 carrier has a large number of agents and officers, when it leaves 
 upon the shipper the responsibility of deciding which is the au- 
 thorized officer, but not when the delivery is to be made at a place 
 where the carrier has but one agent, easily to be distinguished and 
 easy of access/ It is unreasonable where the carrier's line is not 
 a through one, and it has no agents at such destination, and no 
 reasonable facilities for giving such notice, and the shipper would 
 be obliged to go to another state in search of someone on whom 
 to serve the notice/ 
 
 ^Missouri, K. & T. R. Co. v. Ch-ates (Tex. App.) May 3, 1890. 
 ' Gulf, C. & S. F. B. Co. V. Trawick, 80 Tex. 275. 
 ' Goggin v. Kansas Pac. R. Co. 13 Kan. 416. 
 
 * Sprague v. Missouri Pac. R. Co. 34 Kan. 347. See also Massengale v. West 
 
 em U. Teleg. Co. 17 Mo. App. 257; Weir v. Adams Exp. Co. 5 Phlla. 355; 
 Cole V. Western U. Teleg. Co. 33 Minn. 227; Hirshberg v. Binsmore, 12 Daly 
 429; Young v. Western U. Teleg. Co. 2 .Jones & S. 390; United States Exp. 
 Co. V. Harris, 51 Ind. 127; Southern Exp. Co. v. Hunnicutt, 54 Miss. 566 
 28 Am. Rep. 385. 
 
 * Missouri Pac. R. Co. v. Paine, 1 Tex. Civ. App. 621. 
 
 « Missouri Pac. R. Co. v. Childers, 1 Tex. Civ. App. 302. 
 ' St. Lotas, A. & T. R. Co. v. Turner, 1 Tex. Civ. App, 625.
 
 276 TEANSPOKTATION OF CATTLE. 
 
 b. ForVidding Removal before Notice. 
 
 A stipulation in a contract of shipment requiring notice of a 
 written demand for damages claimed, to be presented before the 
 property is removed from the point of destination and mingled 
 with other property, is not as a matter of law an unreasonable 
 one.* But whether or not it may be doubted if a contract is valid, 
 containing a precedent condition to a shipper's right of action to 
 recover for injury to his cattle, caused by the carrier's negligence, 
 requiring a written notice to some officer or nearest station agent, 
 before the injured cattle are removed or mingled with other 
 stock, certainly if a carrier sets up a claim to notice of a given 
 fact as a condition upon which its liability to a shipper is to de- 
 pend, then it is incumbent on it, when the notice was to be given 
 to one of its officers or agents, to show that it had an officer or 
 agent at or near the place where the notice is to be given, in any 
 case where the shipper, by the terms of the contract, is to hold the 
 property shipped at the place of delivery, to be inspected by some 
 agent of the carrier, at his own expense and risk." A custom can- 
 not require that a shipper should expressly agree as a condition 
 precedent to his right to damages for injury to stock during trans- 
 portation^ that he would give notice before removing the stock.^ 
 
 A contract between a railroad company and a shipper of stock 
 stipulated that, as a condition precedent to his right to recover 
 damages for any loss or injury to such stock, he should give no- 
 tice in writing to some officer of the railroad company, or its 
 nearest station agent, before the removal of such stock from the 
 place of delivery. In an action to recover damages for injuries to 
 such stock while en route, where the condition of the stock was 
 made known to the station agent of the railroad com]3any at the 
 jDlace of destinatioD, and such agent consented to the removal of 
 the stock from the car, and had an op]3ortunity to examine and 
 inspect the animals after such removal, and before they had 
 mingled with other stock, or been removed from the place of des. 
 
 ' Galveston, H. & S. A. R. Co. v. Williams (Tex. Civ. App.) Feb. 7, 1894 
 ^ Missouri Pac. B. Go. v. Harris, 67 Tex. 166; Goody. Galveston, H. <& 8 
 
 R. Go. (Tex.) 4 L. R. A. 801. 
 » Missouri Pac. R. Co. v. Fagan, 2 L. R. A. 75, 72 Tex. 127.
 
 STIPULATION FOR NOTICE OF INJUKY TO LIVESTOCK. 27Y 
 
 tination, and a written notice for damages was transmitted to the 
 claim agent of the railroad company within four days after the 
 removal of the stock from the car, and ten days tliereafter, upon 
 the death of one of the animals, a subsequent notice for damages 
 was given to the railroad company, it was decided that there had 
 been a sufficient compliance with the contract upon the part of 
 the shipper.' 
 
 A railroad company is not absolved from liability for injuries 
 to stock transported by it, occasioned by the negligence of its em- 
 ployes, by a clause in the shipping contract providing that it shall 
 not be liable unless written notice is given before removal of the 
 property from the car, where it had a good, fair, and reasonable 
 opportunity to inspect the stock before removal.^ Such a con- 
 tract was sufficiently complied with by notice in writing two weeks 
 after delivery, where the loss was one of weight by delay in de- 
 livery, was not apparent at or before the time of delivery, and its 
 extent could only be determined by the shipper after his return 
 home by a comparison of the actual weight of the animals when 
 sold with that when bought as it appeared upon his books, and 
 such letter was sent within a reasonable time after his return.^ 
 So notice of such injury given to the agent of the connecting car- 
 rier at the point of destination is a sufficient compliance and per- 
 formance.* 
 
 Where a railroad company accepts cost of transportation for an 
 injured horse, with the full knowledge of his condition, and fur- 
 nishes cars and the same agents to bring back the horse to the 
 place of shipment who had charge of him when shipped to the 
 place where he was injured, a stipulation in the contract by which 
 the shipper agrees not to remove the horse if injured before no- 
 tice of a claim for damages, is waived." In such an action a pro- 
 vision in the contract of shipment requiring the shipper, in case 
 
 » Atchison, T. & 8. F. R. Co. v. Temple, 13 L. R. A. 262, 47 Kan. 7. 
 
 » Atchison, T. & S. F. R. Co. v. Temple, supra; Atchison, T. & S. F. R. Co. v. 
 
 Collins, 47 Kan. 11. 
 3 Louismlle, N. A. & G. R. Co. v. Steele, 6 Ind. App. 183. 
 " Wichita & W. R. Co. v. Koch, 47 Kan. 753. 
 ^ Oicen V. Louisville & N. R. Co. 8 Ky. 626.
 
 278 TRANSPORTATION OF CATTLE. 
 
 of loss or injury, to give the carrier notice of his claim therefor 
 before removing the cattle from the place of delivery, so that the 
 claim may be investigated, will not be enforced against plaintiff, 
 in the absence of pleading and proof, on the part of defendant, of 
 facts showing that the provision is reasonable.' The contract it- 
 self, where it is based upon a special rate, has been generally sus- 
 tained.^ A carrier of livestock under a contract providing that 
 notice of claim of loss or injury be given its nearest station agent 
 before removal of the stock from the place of delivery is relieved 
 from liability by failure of the shipper to give such notice until 
 twelve days after removal, when there was an agent at the place 
 of delivery to whom notice could have been given.' 
 
 § 71. Restricting Lialtilitij for Livestoch. 
 
 In the United States, at least since the case of New Jersey 
 Steam Nav. Co. v. MerchanU^ Banh of Boston, 47 U. S. 6 How, 
 344, 12 L. ed. 465, it has been the universal law of this country 
 that, in the absence of a statute prohibiting it, any common car- 
 rier may by special contract limit the common law liability, pro- 
 vided the contract is " just and reasonable in the eye of the law," 
 for in all the cases the ultimate test applied by the courts in de- 
 termining whether a condition limiting the common law liability 
 was or was not against public policy has been whether, under all 
 circumstances, it was or was not just and reasonable in the eye of 
 the law. In a leading case^ the court placed its decision that a 
 carrier could not stipulate for exemption from responsibility for 
 the negligence of himself or his servants upon that express 
 ground. 
 
 By section eight of the English Railway & Canal Traffic Act, 
 companies coming under the act are declared liable for the loss 
 or injury to any horse, cattle, or other animals or goods, occa- 
 
 » Ft. Worth & D. G. B. Co. v. Qreathouse, 82 Tex. 104. 
 
 ^Selby V. Wilmington &W. B. Co. 113 N. C. 588; Owen v. Louisville & N. B. 
 
 Co. 87 Ky. 636. la direct conflict with this is the case of Sinitha v. Louis^ 
 
 ville & N. B. Co. 86 Tenn. 198. 
 ^Wichita &W. B. Co. v. Koch, 47 Kan. 753. 
 *Mw York Cent. B. Co. v. Lockwood. 84 U. S. 17 Wall. 357, 21 L. ed. 627.
 
 KESTRICTING LIABILITY FOR LIVESTOCK. 279 
 
 sioned by the default or neglect of the company and its servants, 
 notwithstanding any notice limiting the liability ; but the compa- 
 nies were authorized to make reasonable conditions, adjudged to 
 be such, and a special limitation as to recovery was lixed, unless a 
 higher value is declared upon it, and a percentage might be re- 
 covered by the carrier, proof of the value to be made by the 
 shipper. The measure of damages was the value of the goods at 
 the place and at the time of the delivery.' The carrier was thus 
 rendered liable for the falling of prices.^ Where a carrier had 
 been informed of special circumstances that would have increased 
 the value requiring corresponding care, he was liable for a negli- 
 gent loss.^ This could not be extended however, to the general 
 laws of business, or profit or wages.* The English statute, in 
 using the expression "just and reasonable," adopted the exist- 
 ing rule of law. The right of the common carrier to limit his 
 common law liability by special contract was fully recognized.^ 
 But, in accord with the great weight of authority in this country, 
 it is held that he cannot contract for exemption, either in whole 
 or in part, from liability for the negligence of himself or his ser- 
 vants ; that such an exemption is against public policy, because it 
 would enable him to put off the essential duties of his public em- 
 ployment." The case, therefore, when the limit is as to value, 
 comes down to a question of the construction to be placed on the 
 stipulation. If the purpose of it was merely to place a limit on the 
 amount for which the carrier should be liable, then clearly, as to 
 losses resulting from negligence, it is not just or reasonable, and 
 is not binding on the shipper. 
 
 * O'Eanlan v. OreatWestern R Co. 34 L. J. Q. B. 154, 13 Week. Rep. 741; Rice 
 
 V. Baxendale, 30 L. J. Exch. 371. 
 
 * Collard v. SoutJieastern R. Co. 30 L. J. Exch. 393; Borries v, nutchinson, 34 
 
 L. J. C. P. 169. 
 ^ Hadley v. Baxendale, 9 Exch. 341; Cory v. Thames Iron Works & S. B. Co. 37 
 L. J. Q. B. 68. 
 
 * Crouch V. Great Northern R. Co. 11 Exch. 742; Home v. Midland R. Co. 
 
 L. R. 8 C. P. 131, 42 L. J. C. P. 59. 
 
 * Christenson v. American Ekrp. Co. 15 Minn. 270, 2 Am. Rep. 122. 
 
 * Christenson v. American Exp. Co. supra; Shriver v. Sioux City & St. P. R. 
 
 Co. 24 Minn. 506, 31 Am. Rep. 353; Ortt v. Miniunpolis & St. L. R Co. 36 
 Minn. 396; Moulton v. St. Faul, M. & M. R. Co. 31 Minn. 85, 47 Am. Rep. 
 781; Boehl v. Chicago, M. & St. P. B. Co. 44 Minn. 191.
 
 280 TKANSPOKTATION OF CATTLE. 
 
 Thus, a stipulation that a stahion worth $5000 is only valued 
 at $200, is void.' But, on the other hand, a fair agreement, in 
 consideration of a reduced freight rate, limiting the carrier's lia- 
 bility to $50 for injury or death to any animal shipped under the 
 contract, will be enforced, although the value of the animal 
 killed may be $800.^* A livestock shipping contract containing a 
 clause that in case of damage the carrier is to pay a certain named 
 amount which, it is agreed, is what the stock is reasonably worth, 
 is not void as against public policy as an attempt by the carrier 
 by contract to exempt itself from liability for its own negligence.' 
 One who ships a horse as an ordinary horse, understanding that 
 the carrier has a regulation limiting its liability in case of injury 
 to a certain sum for an ordinary horse, and if a higher value is 
 given a higher rate will be charged, cannot insist upon a higher 
 valuation in case of loss or injury." If it was a stipulation as to the 
 value of the property, fairly and honestly made as the basis of 
 the carrier's charges and responsibility, then it ought to be upheld 
 as a just and reasonable mode of securing a due proportion be- 
 tween the amount for which the carrier may be responsible and 
 the freight he receives, and of protecting himself against extrava- 
 gant and fanciful valuations. There is no difference between a 
 case where the stipulation is that tlie value of the property does 
 not exceed a specified sum, and one where the value is stipulated 
 to be a specified sum. It makes no difference whether the valua- 
 tion expressed in the contract is one previously named by the 
 shipper on requirement of the carrier, or one inserted in the con- 
 tract by the carrier without being named by the shij^per, but ac- 
 quiesced in by him. In either case it becomes a part of the con- 
 tract on which the minds of the parties meet, and on which they 
 act. Such a stipulation inserted in the shipping receipt is bind- 
 ing on the shipper if he understands its purpose and knows that 
 the freight charges are proportioned to the nature and extent of 
 
 ' Baughman v. Louisville, E. <& St. L. R. Co. 14 Ky. L. Rep. 775. 
 ^8t. Louis, L M. & 8. B. Co. v. Weakly, 50 Ark. 397. 
 ''Louisville & N. B. Co. v. Sowell,. 90 Tenn. 17. 
 *Duntley v. Boston & M. B. Co. (N. H.) 9 L. R. A. 449.
 
 KESTBICTING LIABILITY FOR LIVESTOCK. 281 
 
 the risk ; and the fact that neither the value of the goods nor the 
 rate of charges is asked in a particular case is immaterial,' 
 
 A shipper of horses is not relieved from the binding effect of 
 a special contract signed by him fixing their value in case of loss, 
 in consideration of which he obtained reduced rates, by the fact 
 that the contract was not ready for the shipper's signature until 
 he went to get his ticket to enable him to leave on a passenger 
 train, and that he signed the contract hurriedly and without read- 
 ing it.* A statement of the value of a horse shipped, made by 
 the shipper in answer to the carrier's inquiry, which value is in- 
 serted in the bill of lading, is conclusive on him as to the value of 
 the horse in an action against the carrier for its loss, although the 
 bill of lading is silent as to the effect of such valuation upon the 
 shipper's liability, and he has no actual information, and did not 
 suppose that his statement would affect the amount of the com- 
 pany's liability.' Where a shipper, after putting his horse in a 
 car, asks for a receipt, and, when one containing a contract re- 
 stricting the liability of the company is shown to him, he signs it 
 without reading it, although there was no reason for his not read- 
 ing it, he is bound by the provisions of the contract contained 
 there.' If the purpose of the stipulation is a lawful and proper 
 one, the mere fact that it may incidentally have the effect of 
 limiting the amount of the carrier's liability in case of loss caused 
 by negligence will not render it invalid. Contracts of this kind 
 relating to the transportation of livestock are very common, and 
 their reasonableness, at least as applied to that class of property, 
 seems quite apparent. Every one may be presumed to know ap- 
 proximately the average value of ordinary domestic animals, and 
 a regulation of a carrier with respect to the transportation of live 
 animals, fixing the ordinary value of horses at §200, and requir- 
 ing an extra charge for transporting animals of a greater value, 
 is reasonable and not in conflict with the general rule that a car- 
 rier cannot discharge himself of legal responsibility by general 
 
 1 Burgin v. American Exp. Co. (N. H.) 9 L. R. A. 453. 
 » Johnstone v. Pdehmond & D. R. Co. 39 S. C. 55. 
 
 * Coupland v. Housatonic R. Co. 15 L. R. A. 534, 61 Conn. 531. 
 
 * Hutchinson v. Chicago, St. P. M. & 0. R. Co. 37 IVIinn. 524.
 
 282 TKANSPORTATION OF CATTLE. 
 
 notice,' but it is well known that many animals have a special 
 value because of some peculiar qualities — such as speed or pedi- 
 gree — which are not apparent from mere inspection. For ex- 
 ample, a horse which, to one not acquainted with it might not 
 appear to be worth more than any ordinary horse, might, because 
 of speed, be worth $10,000. The agents of common carriers are 
 not expected to be, and usually are not, experts as to the special 
 or jDeculiar value of particular animals. Ordinarily they would 
 know nothing about the matter except what they learned from 
 the shipper's statement. Presumably, the charges for transporta- 
 tion are to a considerable extent based on the value of the prop- 
 ert}'. Moreover, the measure of care on part of the carrier will 
 naturally be commensurate with the value of the property in- 
 trusted to him. Consequently the law always required entire 
 good faith on part of the shipper in stating the nature and value 
 of property delivered to a carrier for transportation. 
 
 A common carrier is entitled to be fairly informed as to the 
 value of the property conhded to his care; and where a shi])per 
 enters into an agreement with a carrier as to the value of tlie 
 property shipped, and receives the benefit of low rates by reason 
 of placing a low valuation upon the property, he is estopped from 
 claiming or recovering another and higher valuation after the loss 
 occurs, although said loss may be the result of negligence on the 
 part of the carrier, provided the same is not gross, wanton, or 
 willful.' Even when the common law liability of carriers was 
 enforced most rigorously, the courts always upheld limitations of 
 it, imposed for the purpose of procuring a full disclosure of the 
 value of the property, especially of articles of unusual value, or 
 subject to extra hazard. This is illustrated in that numerous class 
 of cases where packages whose contents were not open to inspec- 
 tion were delivered to an express company or other carrier by the 
 owner, who accepted a receipt therefor containing a condition 
 that in case of loss the holder should not demand beyond a spe- 
 
 ' DuntUy v. Boston & M. R. Co. (N. H.) 9 L. R. A. 449. 
 
 ^Zouch V. Chesapeake & 0. B. Co. 17 L. R. A. 116, 36 W. Va. 524; Hill v 
 
 Boston, H. T. & W. R. Co. 144 ]\Iass. 284; Graves v. Lake Shore cfc M. S. R. 
 
 Ce. 137 Mass. 33, 50 Am. Rep. 282.
 
 RESTRICTING LIABILITY FOR LIVESTOCK. 283 
 
 cified sum, at whicli tlie article was thereby valued, unless a 
 greater value was expressed or declared. Ante §^ 50-54. But 
 there is no difference in principle l)etween a case where the value 
 of the property is unknown to the carrier because inclosed in a 
 box, and one where it is unknown because dependent on latent 
 qualities not ordinarily ascertainable by inspection. Conrts are 
 justified in taking judicial notice of the fact that the maximum 
 values placed by a contract on different kinds of domestic ani- 
 mals are approximately those of average ordinary animals in the 
 countiy through which the carrier does business, A stipulation 
 in a contract for the shipment of mules in consideration of a re- 
 duced rate of freight, that in case of damage to the mules the 
 amount claimed for each mule shall not exceed $100, is lawful, 
 the amount lixed not being disproportioned to the reduced rate.' 
 By executing the contract the shipper stipulates and in effect 
 represents to the carrier that his horses are not worth to exceed 
 an ordinary value each, and that the charges for transj^ortation 
 should be based on that valuation. Assuming that the contract 
 was fairly made for the purposes expressed in it, it ought to be 
 upheld as just and reasonable. It is not in any proper sense a 
 contract for exemption from the consequences of negligence. 
 This view is sustained by the great weight of authority." 
 
 In Hart v. Fenmylvania R. Co. 112 U. S. 331, 2S L. ed. TIT, 
 which was an action to recover damages from a railroad for in- 
 juries received by the plaintiff's horses during transportation by 
 the defendant as a common carrier, the bill of lading issued by 
 the defendant, and signed by the plaintiff, contained a stipulation 
 that the carrier assumed a liability to the extent of an agreed val- 
 uation not exceeding $200 for each horse, and the rate of freight 
 was based upon that condition, and it was held that even in case 
 
 ' Western B. Co. v. Harwell, 91 Ala. 340, 45 Am. & Eng. R. Cas. 358. 
 
 ^Alair v. Northern Pac. R. Oo. 19 L. R. A. 764, 53 Mian. 160; Hart v. 
 Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717; Squire v. New York 
 Cent. & H. R. R. Co. 98 Mass. 239, 93 Am. Dec. 162; Graves v. Lake 
 Shore & M. S. R. Co. 137 Mass. 33, 50 Am. Rep. 282; Hill v. Boston H. 
 T. & W. R. Co. 144 Mass. 284; South & North Ala. R. Co. v. Henlein, 52 
 Ala. 606, 23 Am. Rep. 578; Louisville & N. R. Co. v. Sherrod, 84 Ala. 178; 
 Harvey v. Terre Haute & I. R. Co. 74 Mo. 538; Louisdlle c6 N. R. Co. v. 
 Sowell, 90 Tenn. 17; Duntley v. Boston & M. R. Co. (N. H.) 9 L. R. A. 449.
 
 284 TEANSPOKTATION OF CATTLE. 
 
 of loss or damage by the negligence of the carrier, the contract 
 should be upheld as a proper and lawful mode of securing a due 
 proportion between the amount for which the carrier may be re- 
 sponsible and the freight received. In that case, the plaintiff 
 claimed and oifered to prove that his horses were worth much 
 more than |200, but it was held tliat his recovery must be limited 
 to the amount stated in the bill of lading. The basis of the de- 
 cision was that a common carrier may prescribe just and reason- 
 able regulations to protect himself against fraud, and fix a rate of 
 charges proportionate to the magnitude of the risk he assumes. 
 A shipper cannot claim full value of stock injured during trans- 
 portation under a contract limiting damages to an agreed valua- 
 tion, unless upon tender of such contract he demanded one with- 
 out the limited liability clause.' In a late case before the supreme 
 court of ]!^ew Hampshire, referees found that the plaintiff shipped 
 his horse as an ordinary horse, understanding that the railroad had 
 a regulation limiting its liability in case of injury to $200 for an 
 ordinary horse, and, if a higher valuation was given, a higher rate 
 would be charged. Knowing that the freight charges were meas- 
 ured by the valuation put upon the property, and that the rate 
 was fixed upon the basis that the liability assumed by the defend- 
 ant would not exceed §200 in case of loss or injury, the plaintiff, 
 by shipping his horse as an ordinary horse, it was said, fixed his 
 value for transportation purposes, at $200, and, having elected to 
 treat his value as $200 for the purpose of securing a low rate of 
 freight, he cannot insist upon a higher valuation in case of loss or 
 injury. In fixing the freight charges on the assumed valuation 
 of $200, both ]3arties understood that the liability assumed by the 
 defendant was limited to $200. The plaintiff's conduct was, in 
 effect, a declaration as to the value of his horse, and an admission 
 that the defendant's liability as carrier would not exceed $200. 
 The case is as if, upon inquiry by the defendant, the plaintiff had 
 stated the value of his horse to be $200, the sum named in the 
 defendant's regulation as determining the freight charges, and the 
 liability assumed in the transportation of a horse of ordinary value. 
 The rule or regulation of the defendant, of which the plaintiff 
 
 ' Louiaville & N. R. Co. v. Sowell, 91 Tcnn. 17.
 
 KESTKICTING LIABILITY FOK LIVESTOCK. 285 
 
 had notice, was not designed and did not purport to relieve the 
 -defendant from its common law responsibility as a carrier. The 
 purpose was to secure information as to the value of the animals 
 received for transportation, and compensation proportionate to 
 the risk incurred. As such the regulation M^as a reasonable one, 
 and not in conflict with the general principle that a common carrier 
 cannot discharge himself of legal responsibility by a general notice.* 
 Such a stipulation is not prohibited on grounds of public policy. 
 
 In Hart v. Pennsylvania R. Co. 112 U. S. 331, 340, 311, 28 
 L. ed. 717, 721, the court says : " The limitation as to value has 
 no tendency to exempt from liability for negligence. It does not 
 induce want of care. It exacts from the carrier the measure of 
 care due to the value agreed on. The carrier is bound to respond 
 in that value for negligence. The compensation for carriage is 
 based on that value. The shipper is estopped from saying that 
 the value is greater. The articles have no greater value for the 
 purposes of the contract of transportation between the parties to 
 that contract. The carrier must respond for negligence up to 
 that value. It is just and reasonable that such a contract, fairly 
 entered into, and where there is no deceit practiced on the ship- 
 per, should be upheld. There is no violation of public policy. 
 On the contrary, it would be repugnant to the soundest principles 
 of fair dealing, and of the freedom of contracting, and thus in 
 conflict with public policy, if a shipper should be allowed to 
 reap the benefit of the contract if there is no loss and to repudiate 
 it in case of loss." 
 
 There is no injustice in restricting the shipper's claim for dam- 
 ages to the value he places upon his property for transportation. 
 If the plaintiif obtained the lowest rate of freight by shipping his 
 horse as of ordinary value, it is not unreasonable that his recovery 
 should be restricted to $200, which was the amount of the risk 
 the parties understood the plaintiff paid for and the defendant 
 assumed as carrier.'' Indeed, it has been ruled that a common 
 
 V. Boiton & M. R. Go. 24 N. H. 71, 90, 91, 55 Am. Dec. 222, 
 
 *Duntlei/v. Boston <& M. R. Co. (N. H.) 9 L. R. A. 449; Magninv. Dinsmore, 
 
 62 N. Y. 35, 20 Am, Rep. 442; Squire v. New York Cent. & H. R. R. Co. 98 
 
 Mass. 239, 245, 93 Am. Dec. 162; Graves v. Lake Shore <& M. S. R. Co. 137 
 
 Mass, 33, 50 Am. Rep. 282; Hill v, Boston, H. T. & W. R. Co. 144 Mass. 284,
 
 286 TRANSPOKTATION OF CATTLE. 
 
 carrier is liable for the actual damages to horses injured in trans- 
 portation, not exceeding the sum named in a stipulation in a con- 
 tract of shipment limiting its liability and fixing such sum as their 
 value, — though the horses in their damaged condition sold for 
 more than such sum.' The ruling is exceptional that a contract 
 by which the liability of a common carrier in the transfer of 
 stock is limited to a designated amount per head is not eiiective, 
 where damage is caused by the negligence of the carrier.^ 
 
 Where the owner of some horses delivered them to a common 
 carrier for transportation under a contract, signed by him, stating 
 the terms and conditions upon which the property was to be 
 transported, by which it was agreed "that the value of the live- 
 stock to be transported under this contract does not exceed the 
 following mentioned sums, to wit: Each horse, $100; each ox, 
 |50; each bull, $50; each cow, $30; . . . such valuation being 
 that whereon the rate of compensation to the company for its 
 services and risk connected with said property is based," it was 
 said that assuming that the contract was fairly made for the pur- 
 poses therein expressed, the sums named being approximately the 
 average values of ordinary domestic animals, this was a just and 
 reasonable mode of securing a due proportion between the amount 
 for which the carrier becomes responsible and the freight which 
 he receives, and of protecting himself against extravagant valua- 
 tion in case of loss, and that the recovery of the owner will be 
 limited to the sums named, even though the loss occurred through 
 the neo-liffence of the carrier or his servants." And the rule is 
 generally recognized that a common carrier may, by special agree- 
 ment, just and reasonable in itself, and fairly made between itself 
 and the consignor of a horse at the time of the shipment, fix the 
 value of such horse, upon consideration that the rate of charges 
 for transportation shall be commensurate with the value of the 
 horse thus ascertained, and may also limit its liability in case of 
 loss to the amount thus agreed upon, even though the loss may be 
 the result of negligence on the part of the carrier, provided said 
 
 ' Siarnes v. Louisville cfe iV. B. Co. 91 Tenn. 516. 
 
 2 Abrams v. Milwaukee, L. S. & W. R. Co. 87 Wis. 389. 
 
 ^Alair v. Northern Fac. R. Co. 19 L. R. A. 764, 53 Minn. 160.
 
 KESTKICTING LIABILITY FOR LIVESTOCK. 287 
 
 negligence be not gross, wanton, or willful, but cannot wholly ex- 
 empt itself from liability for loss resulting from negligence.* 
 
 Questions of fact as to the execution of the contract are for 
 the jury and the question of what was the contract of the parties 
 is properly submitted, and the common law liability of carriers 
 detined, to the jury, in an action against a carrier for the death 
 of stock delivered to it for transportation, where there is evi- 
 dence on the part of the shipper that the contract was oral, with- 
 out limitations, and that he subsequently signed what he supposed 
 to be a receipt, of the contents of which he was ignorant, and on 
 the part of the carrier that the paper was the contract/ and as a 
 question of law it may be said that a provision of a bill of lading 
 limiting damages for injury to a horse during transportation is 
 waived by a settlement of the damages, in which the horse is 
 taken and a larger sum agreed to be paid therefor.' A special 
 contract limiting the liability of a carrier, signed by a shipper of 
 horses after they are aboard the train, upon a demand of the 
 agent of the carrier, combined with a statement that otherwise 
 the horses will not go on that train, — is not binding upon him/ 
 
 But while exemptions from other causes of accident than neg- 
 ligence may lawfully be stipulated for, in consideration of taking 
 the animals on reduced terms,^ and a carrier of horses may law- 
 fully stipulate against liability for injuries arising in consequence 
 of their being wild, unruly, or weak, or of different ages or classes, 
 or maiming each other or themselves,^ yet in case of loss from any 
 cause for which the carrier would be liable at common law, if 
 exemj^tion under contract is claimed, the proof must bring the 
 loss within the exception.^ 
 
 ' Zouch V. Chesapeake & G. R. Go. 17 L. R. A. 116. 36 W. Va. 524. 
 
 2 St. Louis <& S. F. M. Go. v. Clark, 48 Kan. 321. 
 
 3 GMcago & E. 1. R. Go. v. Katzenbach, 118 Ind. 174. 
 
 *AtcldHon, T. & S. F. B. Go. v. Dill, 48 Kan. 210. 
 
 ^Hill V. Boston, H. T. & W. B. Go. 144 Mass. 284; Morrison v. Phillips & G. 
 Gonst. Co. 44 Wis. 405, 28 Am. Rep. 599; Squire v. New York Gent. & H. 
 B. B. Go. 98 Mass. 243, 98 Am. Dec. 162; Griswold v. New York d N. E. 
 B. Go. 53 Conn. 371, 55 Am. Rep. 115. 
 
 • Illinois Gent. B. Go. v. Scruggs, 69 Miss. 418. 
 
 ' See ante, 8 49.
 
 288 TRANSPOKTATION OF CATTLE. 
 
 In an action to recover damages for injuries to a horse which 
 had been delivered to the defendant carrier for transportation, 
 where the injuries were alleged to have been caused by the car- 
 rier's negligence, the carrier on the trial introduced the bill of 
 lading in this form: "Housatonic Railroad. Great Barrington 
 Station. April 25, 1891. In consideration of the Housatonic 
 Railroad Co., and also in consideration of any corporation whose 
 roads connecting therewith, receiving and carrying, viz, one horse, 
 value $100; one colt, consigned to Rundle & White, Danbury, 
 Conn,, freight prepaid, the owner and shipper hereby agree that 
 none of said corporations shall be liable for damage or loss of or 
 to all or any part of said freight by reasons of breaking, chaling, 
 weather, fire, or water, except where collision or running from 
 the track, resulting from negligence of the corporation's agents, 
 shall cause the same; and the shipper and owner hereby promise 
 to pay the freight, and to claim no deduction therefrom by rea- 
 son of any damage or loss. L. F. Jones, Station Agent. Signed 
 in duplicates : Parley A. Russell, Agent for shipper and 
 owner." 
 
 The defendant requested the court to charge the jury that, in- 
 asmuch as the declaration charges the defendant merely as a com- 
 mon carrier, but the proof is that the mare and colt were shipped 
 under a special contract, the proof does not support the declara- 
 tion, and the verdict must ,be for the defendant. This the court 
 declined to do, but charged that, in view of the complaint, and 
 of all the pleadings, and of the evidence offered by the plaintiff, 
 the suit was to be regarded as an action to recover of the defend- 
 ant upon the ground of its negligence. The refusal of the court 
 to charge as requested by the defendant was held on appeal fully 
 justified. If the animals had been shipped under a special con- 
 tract, which undertook to completely exonerate the defendant 
 from the consequences of its own negligence, the request would 
 have been proper. But in this case it is said there is no attempt 
 on the part of the defendant to limit its common law liability 
 except by reason of breaking, chafing, weather, fire, or water, 
 where collision or running from the track, resulting from negli- 
 gence of the corporation's agents, does not cause the same.
 
 KESTKICTING LIABILITY FOR LIVESTOCK. 2S9 
 
 It is argued by tlie defendant that the injuries which the mare 
 sustained and which occasioned her death, namely, the breaking 
 of a leg, and other severe injuries occasioned by her being thrown 
 down by a sudden side movement of the car, are properly de- 
 scribed by the words "breaking" and "chafing" in the bill of 
 lading, and are therefore injuries against which the defendant 
 undertook to exempt itself from responsibility, even for its own 
 negligence, unless such negligence caused collision or running 
 from the track, which, in this case, it did. Such an argument, in 
 the judgment of the court, is unsound. None of the words, 
 " breaking, chafing, weather, fire, or water," used in the bill of 
 lading to describe the occasion of the damage against which the 
 defendant limits its liability, are apt or appropriate to describe 
 the injuries complained of, nor injuries to live freight at all. It 
 is evident the bill of lading used on this occasion was one ordi- 
 narily used for goods, wares, and merchandise, other than living 
 animals, or, at any rate, was only appropriate for such property. 
 In Camp v. Hartford & iT. Y. S. B. Co. 43 Conn. 333, twelve 
 barrels of sugar and one tierce of rice were shipped under a bill 
 of lading, which contracted to transport and deliver them in the 
 order and condition in which received, the acts of God, public 
 enemies, perils of sea and river navigation, collision, fire, and 
 all other perils, dangers, and accidents not resulting from the 
 negligence of the company or its agents, excepted." On 
 the passage through Hell Gate the steamboat struck on a rock 
 and sprung a leak, whereby the goods were damaged. The 
 plaintiff sued the steamboat company as common carriers, 
 and himself introduced the bill of lading in evidence. The de- 
 fendants claimed and requested the court to instruct the jury that 
 the contract between the parties, upon which they were alone lia- 
 ble, if at all, was expressed in the bill of lading, and that it was 
 the duty of the plaintifi: to set out in his declaration the conti'act 
 and the exceptions as to liability as contained therein ; that there 
 was a variance between the declaration and the proof, and that 
 the plaintifi:', therefore, could not recover; and that the goo Is 
 were received by the defendants not as common carriers, but un- 
 der the contract contained in the bill of lading. The court de- 
 19
 
 290 TKANSPOKTATION OF CATTLE. 
 
 clined so to instruct the jury, but instructed them that the plain- 
 tiff might recover, unless the defendants showed that the acci- 
 dent occurred through no want of reasonable care or prudence on 
 their part. Upon a motion for a new trial for error in refusing 
 to charge as requested, this court held that there was a fatal vari- 
 ance between the allegations of the declaration and the proof. 
 It held it to be well settled that common carriers may stipulate 
 for a less degree of responsibility than the common law imposes, 
 and that, while the English courts hold that they may stipulate 
 for entire exemption, even for their own negligence, the courts 
 in this country differ only as to the extent to which public policy 
 will allow the stringency of the ancient rule to be relaxed, and 
 generally hold that they will reserve the right to pass upon the 
 reasonableness of the particular contract made, and will not allow 
 the carrier to exempt himself by special contract from the conse- 
 quences of his own negligence or that of his agent. That case, 
 however, it is said, differs from the case at bar. To be sure, the 
 bill of lading in the latter undertakes to exempt the defendant 
 from responsibility for all damage to freight by i-eason of break- 
 ing, chafing, weather, fire or water, even though occasioned by its 
 negligence, other than negligent collision or running off the track ; 
 and in respect to freight to which that contract applied we should 
 hold that the contract for exemption from consequences of its own 
 negligence could not be sustained. But the court say there is no 
 contract that the defendant shall be exempted from damages oc- 
 casioned by its own negligence in failing to provide a suitable 
 car, or for so transporting a mare that she is thrown down so as 
 to break her leg, and receive other severe injuries, of which she 
 dies. In respect to every injury except those caused by breaking, 
 chafing, weather, fire, or water, or by collision or running off the 
 track through the negligence of its agents, the defendant is sub- 
 ject to all the responsibilities of a common carrier. 'No attempt 
 is made to limit such responsibilities. The bill of lading contains 
 no contract respecting them. 
 
 The common law rule which made carriers practically insurers 
 of property while being carried by them has, however, it is ad- 
 mitted from the very necessity of the case, been in a measure
 
 RESTRICTING LIABILITY FOR LIVESTOCK. 291 
 
 relaxed in the carriage of livestock. As suggested in Edwards 
 on Eailments, § 680, the carrier can store away goods, so as to 
 secure their safety ; but a carrier of animals by a mode of convey- 
 ance opposed to their habits and instincts has no such means of 
 securing absolute safety. They may die of fright ; they may, not- 
 withstanding every precaution, destroy themselves in attempting 
 to break away from the fastenings by which they are secured ; or 
 they may kill each other by crowding, plunging, or goring ; the 
 motion of the cars, their frequent concussions, the scream of the 
 engines may often create a kind of frenzy in the swaying mass of 
 cattle ; and the carrier is not held liable for injuries or losses aris- 
 ing from the irrepressible instincts of this living freight which he 
 could not prevent by the exercise of reasonable care. While he 
 is not an insurer against injuries arising from the nature and pro- 
 pensities of the livestock carried by him, yet his liability is not 
 limited to a careful conveyance of the cars containing them. He 
 must provide, in advance, suitable means to secure their convey- 
 ance ; and he must use those means with all reasonable diligence 
 and forethought in the varying circumstances arising in the busi- 
 ness. In applying these principles to the case pending, it is said 
 that the plaintiff sued the defendant as a common carrier of live- 
 stock. The defendant, as one defense, set up the bill of lading, 
 and claimed that the mare and colt were shipped under its spe- 
 cial provisions, which varied its ordinary liability, and therefore 
 the proof did not support the declaration. The plaintiff claimed 
 in reply that the injuries named in the bill of lading for which 
 the defendant undertook to limit its liability did not refer to in. 
 juries to livestock at all, and, if they did, no exemption was pro- 
 vided for the injuries complained of, and therefore, in respect to 
 the care required in transporting and to injuries of the nature x)f 
 and occasioned as those in question, the defendant took the mare 
 and colt as common carriers simply and not under a special con- 
 tract. If this was true, there is no variance. The facts do not 
 present a question of technical variance. The plaintiff does not 
 set out one contract in his complaint and prove another. He 
 claims to recover against the defendant as a common carrier, and 
 introduces no proof inconsistent with such claim, and insists that
 
 292 TKANSPOKTATION OF CATTLE. 
 
 the proof introduced by the defendant is not inconsistent with 
 that claim. It is a question of construction of the contract con- 
 tained in the bill of lading, and it is held that the court was right 
 in instructing the jury that there was no such variance between 
 the allegations and the proof as required a verdict for the de- 
 fendant. The question was whether the bill of lading, properly 
 construed, prevented the plaintifi from recovering from the de- 
 fendant under its common law liability as a carrier of live stock. 
 The court thought it did not, and this ruling was approved on 
 appeal.* 
 
 A general allegation that an act was done negligently is suffi- 
 cient without stating in detail the specific acts constituting the 
 negligence." An action of tort against a carrier for injury to live 
 stock sliipped,tlirough breach of the carrier's legal duty and through 
 negligence, may be maintained, notwithstanding the existence of 
 a special contract of shipment of such stock limiting the liability 
 of the carrier, but not against liability for negligence.^ A carrier 
 making a through contract for the shipment of stock over its own 
 and a connecting line may limit his liability to its own line,* but 
 a stipulation in a contract for the shipment of livestock, exempt- 
 ing the carrier from liability for any injuries or damage to the 
 stock occurring on other lines, does not exempt it from liability 
 for damages occurring on one of a system of roads operated by 
 it.° A contract with a carrier to which horses are first delivered 
 for shipment to a point on the line of another carrier, limiting 
 liability for injury to them, does not enure to the benefit of the 
 latter carrier, where it repudiates the contract, requires the exe- 
 cution of a new contract, and collects additional freight.^ A bill 
 of lading containing fifteen sections limiting the carrier's common 
 law liability, required to be accepted by a shipper as a condition 
 of receiving and carrying his stock, is invalid as unfair and unrea- 
 
 ' Coupland v. Housatonic E. Co. 15 L. R. A. 584, 61 Conn. 531. 
 
 * Hindman v. Timme (Ind. App.) Dec. 20, 1898. 
 
 3 NicoU V. East Tennessee, V. & G. R. Co. 89 Ga. 260. 
 
 ^ Gulf, C. & 8. P. R. Co. V. Thompson (Tex. Civ. App.) Feb. 8, 1893. 
 
 * International & G. N. R. Co. v. Anderson 8 Tex. Civ. App. 8. 
 « Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210.
 
 RESTRICTING LIABILITY FOR LIVLSTOCK. 293 
 
 sonable ; and an intermediate carrier can claim no more rights 
 thereunder than could have been claimed by the initial carrier.' 
 There are conflicting decisions usually resulting from statutes in 
 the states as to the right to limit the value to that existing at the 
 place of shipment. It has been decided that a contract for the 
 shipment of livestock, which attempts to fix the measure of dam- 
 ages by the value of the animals at the point of shipment, instead 
 of the place of destination, is unreasonable, and will not be en- 
 forced." And that a carrier cannot restrict its liability for dam- 
 ages for its own negligence to less than the true value of the 
 property by a provision that in case of loss the value at the place 
 of shipment shall be the measure of damages.^ 
 
 But it has been also held that a stipulation that the value of 
 the goods shall be estimated at the place of shipment, is valid.' 
 Of course a mere custom requiring a shipper to agree, as a condi- 
 tion of shipment, that his measure of damages should not be more 
 than the cash value of the stock shipped at the place of shipment, 
 is illegal." 
 
 A contract for the shipment of livestock by a railroad com- 
 pany provided that, in consideration of a certain reduced rate of 
 transportation, the owner of said stock should assume all risks of 
 injuries which the animals or either of them might receive in con- 
 sequence of any of them being wild, unruly, vicious, weak, escap- 
 ing, maiming and killing themselves or each other, or from delays, 
 or in consequence of heat or suffocation, or the ill effects of being 
 crowded upon the cars of said company, or on account of being 
 injured by the burning of hay, straw, or any other material used 
 by the owner in feeding the stock, or otherwise, and any damage 
 occasioned thereby, and also all risk of any loss or damage which 
 might be sustained by reason of any delay, or from any other 
 cause or thing in or incident to, or from, or in, the loading or un- 
 loading of said stock ; that said owner should load and unload said 
 
 ' St. Louis, I. M. & 8. R. Co. v. Spann, 57 Ark. 127. 
 
 "International & O. N. R. Co. v. Anderson, 3 Tex. Civ. App. 8. 
 
 3 Ft. Worth & D. C. R. Co. v. Qreathouse, 82 Tex. 104, 49 Am. & Eng. R. 
 
 Cas. 157. 
 *P7mmx Ins. Co. v. Erie d W. Transp. Co. 117 U. S. 314, 29 L. ed. 873. 
 5 Missouri Pac. R. Co. v. Fagan, 2 L. R. A. 75, 72 Tex. 127.
 
 294 TKANSPOKTATION OF CATTLE. 
 
 stock at his own risk, the raih'oad company furnishing the neces- 
 sary laborers to assist, under the direction and control of said 
 owner, who should examine for himself all the means used in 
 loading and unloading, to see if they were of sufficient strength, 
 of the right kind and in good repair and order ; that each person 
 riding free to take care and charge of said stock should do so at 
 his own risk of personal injuries from whatever cause ; and that 
 the owner should release and hold harmless, and keep indemnified, 
 the railroad company from all damages, actions, claims, and suits, 
 on account of any and every injury, loss and damage heretofore 
 referred to, if any should occur or liappen. In a subsequent suit 
 against the railroad company, a recovery was sustained on appeal, 
 for certain animals shipped by the plaintiff, under this contract, 
 and lost, while in course of transportation, by escaping through a 
 window open in the end of the car in which they had been loaded 
 by the plaintiff's agent, who accompanied them on the route, and 
 who, after the escape of one of the animals, told the conductor to 
 fix said window, and the conductor not doing so, fixed it himself.' 
 The owner of a horse shipped in a box car, the doors of which 
 can be fastened only from the outside, and who is inside the car 
 with the horse, has a right to expect that the conductor will see 
 that the door is properly closed and fastened before starting the 
 train, although the horse is shi^Dped under conditions by which 
 the owner assumes all risk of loading, transportation, and unload- 
 ing, except from negligence of the railroad employes.* There are 
 many cases which are cited in a preceding section (50) which re- 
 fer as well to the questions herein discused, and to them reference 
 is made. 
 
 In some of the states express provisions are contained in their 
 constitution or laws forbidding limitations of liability. Thus, the 
 effect of section 4 of article 11 of the Constitution of Nebraska 
 which provides that "the liability of railroad corporations as com- 
 mon carriers shall never be limited," was to put it out of • the 
 power of railroads as common carriers to limit their liability, as 
 such, by special agreements with shipjjers; and thus remove from 
 
 ^Indianapolis, P. tfc C. R. Co. v. Allen, 31 lad. 394. 
 * Lavoie v. Reg. 3 Can. Exch. 96.
 
 CONTRIBUTORY NEGLIGENCE OF SHIPPER. 295 
 
 their officers and agents all temptation to effect said exemption 
 frmn liability, and the loss and damage to property which might, 
 of necessity, follow the release of their responsibility and that of 
 their agents therefor." And hence a livestock contract entered 
 into for this purpose is void," and a carrier of livestock cannot 
 by contract with a shipper relieve itself, either in whole or in 
 part, from liability for injury or loss arising from its own negli- 
 gence." And the regulations that the Crown should be relieved 
 from liability for livestock shipped over government railways, 
 made a part of Can. Rev. Stat, chapter 38, of which § 50 provides 
 that the Crown shall not be reheved of liability where damage is 
 occasioned by negligence of its employes, do not operate to relieve 
 the Crown of liability where the loss arises from such negligence.' 
 
 § 72. Contributory J\^egligence of Shipper. 
 
 In the case of the common carrier of freight, as in that of tlie 
 carrier of passengers, negligence contributing to the injury of the 
 party suffering loss, will relieve the carrier, although he has also 
 been guilty of negligence, except in one or two states where the 
 doctrine of comparative negligence is recognized. Thus any neg- 
 lect to inform the carrier of the value or peculiar temperament of 
 an animal, or of the worth or character of a package, which should 
 have more than ordinary care will relieve the carrier from neg- 
 lect to give such special care, unless the nature or value appear 
 otherwise.' A carrier is not liable for the death of a bull calf from 
 overaction and overheating at the time of unloading him from a car 
 because it was done at the depot platform at which single head of cat- 
 tle were usually unloaded instead of at the stock yard, where the 
 unruly disposition of the calf, which caused the trouble, was not 
 
 ' Atchison & N. R. Co. v. Washburn, 5 Neb. 117. 
 
 ^iMissouri Pac. R. Co. v. Vandeventer, 3 L. R. A. 129, 26 Neb. 222. 
 
 3 Chicago, R. I. & P. R. Co. v. Witty, 32 Neb. 275. 
 
 *Lavoie v. Reg. 3 Can. Exch. 96. 
 
 ^ Hayes v. Wells, 23 Cal. 185, 83 Am. Dec. 89; Fargo & Co. Magnin v. Dins- 
 more, 62 N. Y. 35, 20 Am. Rep. 442, 70 N. Y. 410. 26 Am. Rep. 608; Me- 
 chanics d T. Bank v. Cordon, 5 La. Ann. 604; Southern E.tp. Co. v. Everett, 
 37 Ga. 688.
 
 296 TKANSPOKTATION OF CATTLE. 
 
 known until he was taken from the car.' Of course active de- 
 ceit, as concealing the contents or character of the article sent, 
 will require actual negligence on the part of the carrier to sustain 
 a recovery — as, concealing money therein,* or falsely marking to 
 indicate a different kind of care from that actually required, — as 
 marking "glass" on a case of jewelry.* So error of the ship^^er 
 as to direction for delivery of the shipment or failure to notify 
 consignee will relieve the carrier of liability, unless he be guilty 
 of actual negligence which causes the failure to deliver.* The 
 allegation in a complaint for negligence, that the plaintiff was 
 free from fault, renders the complaint good against an inference 
 of contributory negligence, unless the inference arises as a neces- 
 sary legal conclusion from the facts particularly stated.' 
 
 If the owner assume to direct the shipment he will relieve the 
 carrier from responsibility for loss he may thus cause,° but not 
 where the carrier controls his efforts.' Under a contract for 
 transportation of a horse, restricting the liability of the company 
 for any loss "by jumping from the cars," the owner cannot re- 
 cover on the ground of the negligence of the company, where he 
 himself put the horse in the car, tied him near a window, opened 
 the window, and left it open, just before the car was to start.* 
 If the failure of a shipper of a carload of mules to accompany 
 and attend them, under the contract of shipment, in which he 
 agreed, in consideration of a free passage, to attend, feed, and 
 water them at his own risk and expense, proximately contributed 
 to an injury to the mules, the company is not liable therefor.' 
 
 ' Chicago, B. & Q. B. Go. v. Owen, 21 111. App. 339. 
 
 2 Gibbon v. Paijnton, 4 Burr. 2298. 
 
 ^Belfy. Rapp, 3 Watts & S. 21, 87 Am. Dec. 528. See also Houston & T. 
 C. R. Co. V. Burke, 55 Tex. 323, 40 Am. Rep. 808; Crouch v. London & N. 
 W. R. Co. 14 C. B. 255. See ante, % 53. 
 
 * Southern Exp. Co. y. Kaufman, 12 Heisk. 161; Mahon v. Blalce, 125 Mass. 
 477; RoKs v. Missouri , K. & T. R. Co. 4 Mo. App. 582; Mse v. Great West- 
 tern R. Co. 1 Hurlst. & N. 63; Fursyth v. Walker, 9 Pa. 148. 
 
 ^Pittsburgh, C. C. & St. L. R. Co. v. Bennett (Ind. App.) Nov. 28, 1893. 
 
 ^Rogers V.Wheeler, 52 K Y. 262; Rixford v. Smith, 52 N. H. 355, 13 Am. 
 Rep. 42. 
 
 ' Powell V. Pennsylvania R. Co. 32 Pa. 414, 75 Am. Dec. 564; Philleo v. San- 
 ford, 17 Tex. 227, 67 Am. Dec. 654. 
 
 « Hutchinson v. Chicago, St. P. M. & 0. R. Co. 37 Minn. 524. 
 
 ^Western R. Co. v. Harmll, 91 Ala. 340, 45 Am. & Eng. R. Cas. 358.
 
 CONTBIBUTOKY NEGLIGENCE OF SHIi'PER, 297 
 
 A railroad company is under no obligation to a shipper of live- 
 stock, under a contract providing that he may accompany and 
 care for it in transitu, to stop the train at the station platform to 
 permit him to board it, where its usual custom is for shippers to 
 board tlie train in the yard, and he, without inquiry as to when 
 or from what place the train will start, goes to a restaurant to get 
 a lunch, and proceeds to the platform.' A railroad company is 
 not liable for injuries caused by negligence in loading livestock 
 drawn over its road in a car owned and loaded by the owner of 
 the stock, though it is the general duty of its conductors to see 
 that trains under their control are properly loaded/ But knowl- 
 edge of the unsafe condition of a platform provided by a carrier 
 for loading stock will not prevent recovery for injuries to a per- 
 son on attempting to use it for that purpose in the exercise of 
 due care.' 
 
 1 Ohio (& M. B. Co. V. Brown, 46 111. App. 137. 
 
 "> Fordycev. McFlynn, 5fi Ark. 424. 
 
 ^ White V. Cincinnati, N. 0. & T. B. B. Co. 7 L. H. A. 44, 89 Ky. 478.
 
 CHAPTER IX. 
 
 PACKING AND STOWING GOODS. 
 
 § 73. Duty of Carrier and Shipper — Clean Bill of Lading. 
 
 § 74. Custom Controlling Stowage. See ante, § 33. 
 
 § 75. Stoioage of Goods on Deck. 
 
 § 76. Owner'' s Knowledge of Imjiroper Stowage — Ownefs Risk. 
 
 § 77. Negligence in Stoiuage and Handling. 
 
 § 78. Jettison. 
 
 § 7S. Duty of Carrier and Shipper— Clean Bill of 
 
 Lading. 
 
 The common carrier is an insurer of the property carried, and 
 the duty rests upon it to see that the packing and conveyance are 
 such as to secure its safety.' The owner of a vessel is Hable for 
 tlie faihire to use due care in stowing the cargo, and in navigat- 
 ing the vessel. This obligation to use due diligence and skill in 
 stowing and staying the cargo, does not amount to a warranty 
 that it has been done through their sanction. The want of addi- 
 tional supports of a deck, if they would not have enabled the ship 
 to carry the load through a storm, is not a ground of recovery. 
 In stowing goods, the possibility of heavy weather must be con- 
 sidered and duly provided against, and part of the cargo which 
 may be affected thereby and lost, must be stowed with special 
 care.'' 
 
 The carrier is not responsible, however, where goods are de- 
 stroyed or injured from some inherent quality in the goods them- 
 selves,^ nor is it liable for injury or damage to goods from insecure 
 or imperfect packing or boxing, for the shipper of goods perish- 
 able in their nature or susceptible of easy breakage, must take 
 
 ' Hannibal & St. J. R. Co. v. Swift, 79 U. S. 13 Wall. 362, 20 L. ed. 423. 
 ' The Maggie M. 30 Fed. Rep. 693. 
 3 AUton V. Herring, 11 Exch. 822. 
 
 298
 
 DUTY OF CARRIER AND SHIPPER — CLEAN BILL OF LADING. 299 
 
 extra care in packing and boxing.' A carrier will be presumed 
 to have received goods in good order, in the absence of evidence 
 to the contrary.' An answer by a carrier sued by a consignee 
 for a failure to deliver goods which it agreed to transport to him 
 at a certain destination, setting up negligence on the part of the 
 owner and consignor in the mode of loading the goods on the 
 car, is bad where it does not allege that such fault of the owner 
 was the sole cause of the loss of the goods, contributory negligence 
 on the owner's part not being a valid defense.' 
 
 Text-writers mention the bill of lading as an example of an in- 
 strument which partakes of a twofold character, and such com- 
 mentators agree that the instrument may, as between a carrier and 
 the shijDper, be contradicted and explained in its recital that the 
 goods were in good order and well conditioned, by showing that 
 their internal state and condition was bad or not such as is repre- 
 sented in the instrument, and in like manner, in respect to any 
 other fact which it erroneously recites, but in all other respects it 
 is to be treated like other written contracts." The recital in a 
 bill of lading that the goods were received " in apparent good 
 condition" refers only to the external condition, and as between 
 the parties is only prima facie proof of the true condition when 
 received.^ 
 
 While the general rule requires that goods, unless they are such 
 as may safely be carried on deck, should be stowed below, this 
 rule is usually held to apply to sea going vessels not propelled by 
 steam,' and is not generally accepted, either by law or custom, as 
 controlling the stowage of goods upon inland navigation. It has 
 
 ' Goodman v. Oregon R. & Nav. Co. 23 Or. 14, 49 Am. & Eng. R. Cas. 87. 
 
 '^ Henry v. Central R. & Bkg. Co. 89 Ga. 815. 
 
 ^ McCarthy \. Louismlle & N. R. Co. (Ala.) Dec. 23, 1893. 
 
 * Hastings y. Pepper, 11 Pirk 43; Clark v. Barnicell, 53 U. S. 12 How. 273, 
 
 13 L. ed. 985; Ellis v. M^iUard, 9 N. Y. 529; May v. Babcock, 4 Ohio, 346; 
 
 Adams v. Royal Mail S. Packet Co. 5 C. B. N. S. 492; Sack v. Ford. 13 C. 
 
 B. N. S. 100; The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 
 L. ed. 779. 
 
 » St. Louis, A. & T. R. Co. v. Neel, 56 Ark. 279. 
 
 « Toledo F. & M. Ins. Co. v. Speares, 16 Ind. 52; Merchants & M. Ins. Co. v. 
 Shillito, 15 Ohio St. 559, 86 Am. Dec. 491 ; Hurley v. Milward, 1 Jones & 
 
 C. 324.
 
 300 PACKING AND STOWING GOODS. 
 
 been Jield not to apply to a steamer upon Long Island Sound/ nor 
 upon the Great Lakes to a sailing vessel.* The rule, however, 
 has Ijeen recognized as controlling stowage on sailing vessels upon 
 the lakes.' 
 
 The bill of lading, in the usual form, is a receipt for the quan- 
 tity of goods shipped and a promise to transport and deliver the 
 same as therein stipulated. In so far as it is a receipt, it may be 
 contradicted by oral testimony; so far as it is a contract between 
 the parties, it stands on a footing with all other contracts in writ- 
 ing, and cannot be contradicted nor varied by parol evidence.* 
 Unless the bill of lading contains a special stipulation to that 
 effect, the master is not authorized to stow the goods sent on 
 board as cargo on deck, as when he signs the bill of lading, if in 
 common form, he contracts to convey the merchandise safely, in 
 the usual mode of conveyance, which, in the absence of proof of 
 a contrary usage in the particular trade, requires that the goods 
 shall be safely stowed under deck ; and when the master departs 
 from that rule and stows them on deck, he cannot exempt either 
 himself or the vessel from liability in case of loss, by virtue of the 
 exception of dangers of the seas, unless the dangers are such as- 
 would have occasioned the loss even if the goods had been stowed 
 as required by the contract of affreightment." If the bill of lad- 
 ing is silent as to the mode of stowing the goods, it imports that 
 the goods are to be carried under deck, and parol evidence that 
 the shipper agreed that the goods should be stowed on deck, can- 
 not be received." 
 
 Though by its terms the common or "clean" bill of lading is 
 silent as to the stowage, yet it imports that the goods are to be 
 safely stowed under deck ; and this is a condition tacitly annexed 
 
 1 Harris v. Moody, 30 N. Y. 266, 86 Am. Dec. 375. 
 
 2 Oillett V. Ellu, 11 111. 579. 
 
 3 The Milwaukee Belle, 2 Biss. 197. 
 
 ^ Tlie Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. eel. 779. 
 ^The Rebecca, 1 Ware, 210; Bodge v. Bartol, 5 Me. 286, 17 Am. Dec. 233; 
 
 Wolcott V. Eagle Im. Go. 4 Pick. 429; Taunton Copper Co. v. Merchants Ins. 
 
 Co. 22 Pick. 108; Adams v. Warren Ins. Co. 22 Pick. 163; The Delaware v. 
 
 0. egon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 
 * The Delaware v. Oregon Iron Co. supra; The Star of Hope v. Church, 84 U.. 
 
 S. 17 Wall. 651, 21 L. ed. 719.
 
 CUSTOM CONTROLLING STOWAGE. 301 
 
 to the contract by law. And this implied contract is so conclu- 
 sive that the law will not permit parol evidence to show that the 
 parties contracted for a stowage on deck.' This is settled law, 
 that a clean bill of lading in courts, imports that goods are to be 
 safely and properly stowed under deck, and that it is a duty of the 
 master to see that the cargo is so stowed and arranged, that the 
 different goods may not be injured by each other, or by the mo- 
 tion or leakage of the vessel, unless by agreement, that service is 
 to be performed by the shipper.^ Express contracts may be made 
 in writing which will define the obligations and duties of the par- 
 ties, but where those obligations and duties are evidenced by a 
 " clean " bill of lading, that is, if the bill of lading is silent as to 
 the mode of stowing the goods, and it contains no exceptions as 
 to the liability of the master, except the usu^al one of the dangers 
 of the sea, the law provides that the goods are to be carried un- 
 der deck, unless it be shown that the usage of the particular trade 
 takes the case out of the general rule applied in such controver- 
 sies/ 
 
 § 7Jf. Custom, Controlling Stowage. See ante, § 33. 
 
 Evidence of usage is admissible in mercantile contracts to prove 
 that the words in which the contract is expressed, in the particu- 
 lar trade to which the contract refers, are used in a particular 
 sense and different from the sense which they ordinarily impoi't ; 
 and it is also admissible in certain cases, for the purpose of annex- 
 ing incidents to the contracts in matters upon which the contract 
 is silent, but it is never admitted to make a contract or to add a 
 
 ' Oreery v. Holli), 14 Wend. 26; The Waldo, 2 Ware, 167; The Delaicare v. 
 Oregon Iron Co. mpra. 
 
 2 Tlie Delmoare v. Oregon Iron Co. supra; The Niagara v. Cordes, 62 U. S. 21 
 How. 23, 16 L. ed. 46; Saademan v. Scurr, L. R. 2 Q. B. 98; Swainnion v. 
 Garrick, 2 L. J. Exch. N. S. 355; Anglo- African Co. v. Lamzed, L. R. 1 
 C. P. 229; Alston v. Herring, 11 Exch. 822. 
 
 'Abbott, Shipping (7th Am. ed.) 345; Smilh v. Wright. 1 Cui. 43, 2 Anj. Dec. 
 162; Gotdd v. Oliver, 2 Maule & G. 208; Waring v. Morse, 7 Ala. 343; Falk- 
 ner v. Earle, 3 Best. & S. 363.
 
 302 PACKING AND STOWING GOODS. 
 
 new element to the contract previously made by the parties. 
 Such evidence may be introduced to explain what is ambiguous, 
 but it is never admissible to vary or contradict what is plain. 
 Evidence of the kind may be admitted for the purpose of defin- 
 ing what is uncertain, but it is never properly admitted to alter 
 a general rule of law, nor to make the legal rights or liabilities of 
 the parties other or different from what they are by the common 
 law.* In a case where evidence was excluded of the owner's 
 knowledge of stowage of goods on deck, the court admitted that 
 where there is a well known usage, in reference to a j^articular 
 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 should be carried in the usual manner.^ It is said that 
 remarks are found in the opinion of the court in tlie case of Yer- 
 nard v. Hudson., 3 Sumn. 406, and in Sayward v. Stevens, 3 
 Gray, 101, which permitted the introduction of parol evidence ; 
 but the weight of authority and all the analogies of the rules of 
 evidence is against giving effect to the language there implied.' 
 The question of negligence in stowage should be governed by 
 the custom of trade, and if the case were stowed according to the 
 customary way in that particular trade — there being no special 
 directions otherwise — the vessel would not be liable.* A vessel 
 under special charter, and not engaged as a common carrier, is 
 not liable for damages to grain stored against an iron bulkhead 
 abaft the engine room, caused by heat, where the storage was in 
 accordance with the usual custom of the country in which it was 
 done, and was approved by persons whose business it is to super- 
 vise and determine what is proper stowage.* 
 
 ' Oelrieks v. Ford, 64 U. S. 23 How. 63, 16 L. ed. 538; Barnard v. Kellogg, 77 
 U. S. 10 Wall. 383, 19 L. ed. 987; Simmons v. Laic, 3 Keyes, 219; Spartali 
 V. Benecke, 10 C. B. 222; The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 
 579, 20 L. ed. 779. 
 
 ^ Sproat V. Donnell, 26 Me. 187, 45 Am. Dec. 103; Hope v. State Bank, 4 La. 
 212; Lapham v. Atlas Ins. Co. 24 Pick. 1; Barber v. Brace, 3 Conn. 13, 8 
 Am. Dec. 149, 2 Taylor, Ev. §§ 1062, 1067. 
 
 3 The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 
 
 4 Blaikie v. Stemhridge, 5 Jur. N. S. 1128. 
 s The Dan, 40 Fed. Rep. 691.
 
 STOWAGE OF GOOLS ON DECK, 303 
 
 § 75. Stowage of Goods on Deck. 
 
 The rule is equally imperative, however, that goods which are 
 liable to suffer injury from being stowed in the hold, must be 
 stowed upon deck ; and the carrier must take notice of this nec- 
 essity.' Thus, in view of the practice as to the stowage of nuts 
 shipped from IS^ew York to San Francisco, from the well known 
 fact that, if stowed in the hold, they are liable to be injured by 
 sweat, it is culpable negligence on part of the carrier to stow them 
 in the hold.'' Goods, though lost by perils of the sea, if they 
 were stowed on deck without the consent of the shipper, are not 
 regarded as goods lost by the act of God within the meaning of 
 the maritime law, nor are such losses regarded as losses by perils 
 of the sea which will excuse the carrier from delivering the goods 
 shipped to the consignee, unless it appears that the manner in 
 which the goods were stowed is sanctioned by commercial usage, 
 or unless it affirmatively appears that the manner of stowing did 
 not, in any degree, contribute to the disaster ; that the loss hap- 
 pened without any fault or negligence on the part of the carrier, 
 and that it could not have been prevented by human skill and 
 prudence, even if the goods had been stowed under deck, as re- 
 quired by the general rules of the maritime law.' Where goods 
 are stowed under deck the carrier is bound to prove the casualty 
 or vis major which occasioned the loss or deterioration of the 
 property which he undertook to transport and deliver in good 
 condition to the consignee, and if he failed to do so, the shipper 
 or consignee, as a general rule, is entitled to his remedy for the 
 non-delivery of the goods. No such consequences, however, fol- 
 low, if the goods were stowed on deck by the consent of the ship- 
 per, as in that event neither the master nor the owner is liable for 
 any damage done to the goods by the perils of the sea, or from 
 the necessary exposure of the property, but the burden to prove 
 
 " The New Orleans, 26 Fed. Rep. 44. 
 
 « The Star of Hope v. Church, 84 U. S. 17 Wall. 651, 21 L. ed. 719. 
 
 ^Lawrence v. Minturn, 58 U. S. 17 How. 114, 15 L. ed. 64; The Peytona, 2 
 Curt. 23; The Delaware v. Oregon Iron Go. 81 U. 8. 14 Wall. 579. 20 L. ed. 
 779.
 
 S04r PACKING AND STOWING GOODS. 
 
 such consent is upon the carrier, and he must take care that he 
 has competent evidence to prove the fact.' 
 
 § 76. Owner's Knowledge of Improper Stowage- 
 Owner's Risk. 
 
 A bill of lading which contains no stipulation as to the stow- 
 age of the merchandise carries with it the implied obligation of 
 the carrier if the goods are shipped by water, to stow them se- 
 curely under deck, — unless there be a general custom authorizing 
 the carriage of that particular class of goods on deck. And the 
 owner's knowledge that the goods are not stowed below deck, 
 will not avail to protect the carrier otherwise." Contracts of the 
 master, within the scope of his authority as such, bind the vessel 
 and give the creditor a lien upon it for his security except for 
 repairs and supplies purchased in the home port and the master 
 is responsible for the safe stowage of the cargo under deck, and 
 if he fails to fulfill that duty, he is responsible for the safety of 
 the goods, and if they are sacriliced for the common safety, the 
 goods stowed under deck do not contribute to the loss.' Ship 
 owners, in a contract by a bill of lading for the transportation of 
 merchandise, take upon themselves the responsibility of common 
 carriers, and the master, as the agent of such owners, is bound 
 to have the cargo safely secured under deck, unless he is author- 
 thorized to carry the goods on deck, by the usage of the parti- 
 cular trade or by the consent of the shipper, and if he would rely 
 upon the latter, he must take care to require that the consent 
 shall be expressed in a form to be available as evidence under the 
 general rules of law.'' Although the consent of a shipper is pre- 
 sumed to the taking of such cargoes if proved to be customary, 
 
 ' ShacMeford v. Wilcox, 9 La. 38 ; Th£ Delaware v. Oregon Iron Co. supra. 
 
 5 The Delaware^. Oregon Iron Go. 81 U. S. 14 Wall. 579. 20 L. ed. 779; The 
 New Orleans, 26 Fed. Rep. 44; Creery v. Holly, 14 Wend. 26; The Waldo, 
 2 Ware, 161. 
 
 '^The Paragon, 1 Ware, 829, 331. 2 Phil. Ins. § 704; Brooks v. Oriental Ins. 
 Co. 7 Pick. 259. 
 
 * The Waldo, 2 Ware, 162: Blackett v. Royal Exch. Asmr. Co. 2 Crnmp. & .T. 
 250; 1 Arn. Ins. 69; Lenox v. United Ins. Co. 2 Johns. Cas. 178; The De- 
 laware V. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779.
 
 NEGLIGENCE IN STOWAGE AND HANDLING. 305 
 
 to the point of destination, this presumed assent would not jus- 
 tify the master in taking on board hoops apparently unfit from 
 >veight or want of seasoning, but the master is responsible for 
 the cargo's apparent condition only, and not for its secret vices 
 •or defects. Where the master supposed that the goods were the 
 property of the charterer who employed the stevedore, although 
 the presentment of bills of lading by other persons as owners of 
 the flour and provisions may have been a surprise, where there 
 was still opportunity before he sailed for the discharge of his 
 duty to the shippers and to the ship as respects the stowage of 
 the flour in the place most suitable for it, he was not liable to the 
 shippers for improper stowage, no matter by whom the stevedore 
 was emplo3'ed, or whoever may have been the liable person, if 
 the master's mate retained the same control over the disposition 
 of the cargo.* Where a charter party provides that the vessel is 
 to be loaded by a stevedore selected by the charterer, but paid by 
 the ship and under the exclusive direction of the master, the 
 charterer not to be responsible for stowage, the latter cannot be 
 held liable for her carrying an insufficient cargo in consequence of 
 bad stowage.^ Where the charterer induced the master, against 
 his objection, to receive a car of lard in leaking casks, the ship is 
 exempt from liabilities between its charterers and owners for dam- 
 ages therefrom, and the transportation of the cargo/ 
 
 ^77. J\^egligenc6 in Stowage and Handling. 
 
 If costly mirrors are stowed among loose articles of hardware, 
 or, if a case enclosing valuable statuary and marked "this side up 
 with care," is placed up side down among a lot of pig-iron, the 
 carrier could hardly contend that he is protected from liability 
 by the clause exempting dangers of the sea. In the matter of 
 stowage — as in all others — due care, and its opposite, negligence, 
 are relative terms, having respect to the nature of the duty to be 
 performed, the knowledge communicated to the party to be 
 
 > The Keystone, 31 Fed. Rep. 412. 
 *Manchisa v. Card, 39 Fed. Rep. 492. 
 ^Boydv. Moses, 74 U. S. 7 Wall. 316, 19 L. ed. 192. 
 20
 
 306 PACKING AND STOWING GOODS. 
 
 charged, and the prevailing usage of the business.' The stowage 
 of cases of household goods at the side of tlie lower hold of a. 
 vessel liable to incur unusual leakage and of great breadth for 
 her size, with knowledge of their contents, is negligence on the 
 part of the master which will make the ship liable for damage to 
 the goods by water, notwithstanding a provision of the bill of 
 lading that she shall not be accountable for breakage or damage.* 
 
 Even where it appeared that the shipper or his agent, delivered 
 the goods to the carrier, and repeatedly saw them as they were 
 stowed on the deck, and made no objection to their being so 
 stowed, it was held that the evidence of this fact was not admis- 
 sible to vary the legal import of the contract of shipment. That 
 the bill of lading being what is called a "clean" bill of lading, it 
 bound the owners of the vessel to carry the goods under deck.* 
 
 Although goods are shipped at the owner's risk, the carrier 
 may be liable for damages caused by the weather or rust, if oc- 
 casioned by the carrier's negligence, or by unreasonable delay on 
 the road. If a shipper of machinery agrees that it may be trans- 
 ported on open cars, the carrier may still be liable for damage by 
 rust or weather, during a detention on the road, if ordinary dili- 
 gence require the carrier to cover the cars during such detention, 
 and it fails to do so.* Where goods, if stowed in the hold, were 
 liable to be injured by sweat and marked "In Cabin State Room," 
 it was culpable negligence to stow them in the hold. Where the 
 bill of lading does not specify any particular place for the stow- 
 age of the goods, they are properly stowed between decks in the 
 hold.^ 
 
 The obligation of the shippers of the cargo of a vessel is to be 
 determined by the law of the place where the contract of af- 
 freightment is made, although the vessel is owned by a subject 
 
 ^Lamh v. Parlcman, 1 Sprague, 343; TJie Star of Hope v. Church, 84 U. S. 17 
 Wall. 651, 21 L. ed. 719; Eastings v. Pepper, 11 Pick. 41. 
 
 « Tlie Jolianne, 48 Fed. Rep. 733. 
 
 ^ Sproat V. Donnell, 26 Me. 187, 45 Am. Dec. 103; Hope v. State Bank, 4 La. 
 212; Lapham v. Atlas Ins. Co. 24 Pick. 1; Barber v. Brace, 3 Conn. 13, 8 
 Am. Dec. 149; 2 Taylor, Ev. §i^ 1062, 1007. 
 
 * Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522. 
 
 » The Star of Hope v. Church, 84 U. S. 17 Wall. 651, 21 L. ed. 719.
 
 NEGLIGENCE IN STOWAGE AND HANDLING. 307 
 
 of another country.' A stipulation in a contract relieving a car- 
 rier from liability for the neg-ligence of its servants, if valid by 
 the lex loci, will be enforced by the lex fori.'^ A provision in a 
 charter that no claim is to be made against owners for loss of 
 cargo, adjusting the liability between the owners and the charter- 
 ers does not relieve the ship from liability to a shipper of cargo 
 from loss by reason of bad storage/ A provision of a bill of 
 lading exempting the carrier from damage from any act, neg- 
 lect, or default of the pilot, master, or mariners, in the navigation 
 or management of the ship, does not protect the owners from lia- 
 Ijility for injury to the cargo from negligence of the stevedore/ 
 To relieve a vessel acting as a common carrier from liability to 
 bona fide purchasers and consignees for injury to goods from 
 leakage of other goods through imperfect packages or stowing, 
 such liability must be expressly excepted in the bill of lading, 
 even though the goods are shipped by the charterers/ An ex- 
 emption in a bill of lading, not accountable for rust, does not 
 exempt from responsibility for damage caused by improper stow- 
 age.' A vessel is liable for damage to a cargo of ice, caused by 
 the escape of steam from a defective drip valve.'' A ship is 
 bound to provide whatever means are necessary to keep the hold 
 free from water, no matter how the lack happens. Unless it is 
 shown that the lack was caused by a peril of the sea, its existence 
 proves negligence.' It is the duty of a vessel taking abroad a 
 cargo of molasses in casks, to stow it properly and securely 
 in the place selected; and if supporting stanchions to divide 
 the weight of the casks are needed for security in ordinarily 
 rough weather, it is bound to provide proper stanchions.' 
 Where piles of corkwood were bound on board a ship for con- 
 
 ' China Mut. Ins. Co. v. Force, 142 N. Y. 90. 
 « O'Regan v. Cunard SS. Co. 160 Mass. 356. 
 
 * T7ie Centurion, 57 Fed. Rep. 412. 
 
 * The Ferro [1893J Prob. 38. 
 
 ' Tlie H. O. Johnson, 48 Fed. Rep. 696. 
 
 ^ Dedekam v. Vose, 3 Blatchf. 44; The Invincible, 3 Sawy. 176. 
 
 ' The Saugerties, 44 Fed. Rep. 625. 
 
 8 The Samuel E. Spring, 29 Fed. Rep. 397. 
 
 « The Centurion, 57 Fed. Rep. 412.
 
 308 PACKING AND STOWING GOODS. 
 
 signment, and piled for the purpose of proper stowage, and the 
 different kinds of wood were thereby mixed, causing a loss in the 
 market value of the whole, and on arrival in port the shipper sold 
 the goods on the consignee's refusal to give a receipt for the same 
 in good order, the consignee was entitled to recover the value of 
 the shipment, less the freightage.* 
 
 Whatever the practice may have been when the carriage of 
 green fruit was new, its liability to cause damage from rotting, 
 heating, sweating or decay, through the contingencies of the vo}'- 
 age, were so well known in 1885 that the stowage of macaroni in 
 the same compartment with green fruit was not an exercise of 
 such reasonable care as would relieve the vessel from liability un- 
 der the bill of lading which excepted " damages from other goods 
 by sweating or otherwise." ^ The sweating of a cargo and the 
 heat generated from the presence of cooperage, apparently suffi- 
 ciently seasoned when coming from a cold to a warm climate, is a 
 peril of the sea falling within the exception of a bill of lading, 
 unless it appears to have been caused by the negligence of the 
 shipper.' 
 
 It is not the duty of a common carrier to know the contents of 
 any package offered to him for carriage, when there are no at- 
 tendant circumstances to awaken his suspicions as to their charac- 
 ter, and there can be no presumption of law that he had such 
 knowledge in any particular case of that kind ; and he cannot be 
 charged, as a matter of law, with notice of the proj^erties and 
 character of packages thus received. It is only when sufficient 
 grounds exist arising from the appearance of the package, or other 
 circumstances, to excite the carrier's suspicion, that he is author- 
 ized, in the absence of any special legislation on the subject, to re- 
 quire a knowledge of the contents of the packages offered, as a 
 condition of receiving them for cariiage. An express company 
 which received, in the regular course of business, for transporta- 
 tion, a package of nitro-glycerine, ignorant of the material, and 
 transported the same, was not liable for damages resulting from 
 
 » The Augusta, 29 Fed. Rep. 334. 
 
 ^Paturzo V. Compagnie Francaise, 31 Fed. Rep. 619. 
 
 3 Tlie Keystone, 31 Fed. Rep. 412.
 
 NEGLIGENCE IN STOWAGE AND HANDLING. 309 
 
 what would have been an improper handling of the same had 
 they known its contents.' In Pierce v, Winsor^ 2 Cliff. 18, 
 a general ship was put up for freight. Among other freight 
 offered and taken was mastic, an article new in commerce, 
 and which was so affected by the voyage that it injured other 
 parts of the cargo in contact with it, and caused increased 
 expenditure in discharging the vessel. The court held the 
 shipper and not the charterer liable, and observed that " the 
 stowage of the mastic was made in the usual way, and it 
 is not disputed it would have been proper if the article had 
 been what it was suj)posed to be when it was received and laden 
 on board. "Want of great care in that behalf is not a fault, be- 
 cause the master had no means of knowledge that the article re- 
 quired any extra care or attention beyond what is usual in respect 
 to other goods. In the absence of any showing of negligence, a 
 ship will not be held liable for the loss of chlorides which were 
 shipped in barrels, instead of the usual carboys.^ The formation 
 of a cement by sweepings of soda and bleaching powder left in a 
 ship from a previous voyage, in combination with molasses leak- 
 ing from a new cargo, is so remote and indirect a consequence of 
 the failure to clean the ship as not to involve the ship in respon- 
 sibility for loss of cargo arising from such cement choking the 
 jjumps and making it impossible to remove the leaking molasses 
 from sugar upon which it has drained.^ 
 
 Where cold weather would not have caused the loss had not the 
 negligence of the carrier, or the inattention of it co-operated with 
 the cold, it will be held answerable.* As between the ship and 
 charterers, the latter are liable for the loss of cargo through bad 
 storage, where the supercargo is their special representative, and 
 the cargo is stored by his orders and under his direction.^ The 
 master knowing what quality of flour in bags was to be taken on 
 
 1 Parrot v. Wells, 82 U. S. 15 Wall. 524, 21 L. ed. 206, afBrming same case 
 sub nom. Parrot v. Barney, 2 Abb. (U. S.) 197, 1 Sawy. 423. 1 Deady, 405. 
 See ante, § 22. 
 
 s The Barracouta, 39 Fed. Rep. 238. 
 
 3 The Centurion, 57 Fed. Eep. 412. 
 
 4 Wolfv. American Exp. Co. 43 Mo. 421, 97 Am. Dec. 406. 
 ^ The Centurion, supra.
 
 310 PACKING AND STOWING GOODS. 
 
 board, and that if there was much heat and storm upon the voy- 
 age arising from changing climate, the bags would probably be 
 injured by sweating in the hatch, takes the risk of his servants and 
 other persons providing sufficient room below as the proper place 
 for flour in bags as well as for other provisions.' Where goods 
 have been properly packed, a carrier is responsible for injury to 
 them through careless handling.^ Injury resulting from disregard 
 of instructions assented to by the carrier, respecting the mode of 
 conveyance, will render the latter liable.' A carrier receiving 
 fruit for handling is held to the degree of diligence and care re- 
 quired in the transportation of that class of goods." The sealing 
 of a car containing butter when received from a connecting car- 
 rier is no excuse for failure to put ice in the car if necessary to 
 protect the butter from the heat.* 
 
 § 78. Jettison. 
 
 If goods are stored in the carrier's vessel properly on deck the 
 carrier will not be answerable if they are necessarily thrown over- 
 board to secure the safety of the vessel and other freight." 
 
 It is the duty of the master of a ship to determine the necessity 
 of jettison. His decision as to this necessity, formed with delib- 
 eration, skill, courage and honest intention, is conclusive,^ and his 
 vessel is not liable for a jettison of cargo when aground and in 
 apparent imminent peril, for the purpose of getting afloat.' Jet- 
 tison of heavy goods on deck is always justiliable as a protection 
 
 1 The Keystone, 31 Fed. Rep. 412 
 
 s Culhreth v. PUlade^'pliia , If. & B. B. Co. 3 Houst. (Del.) 393. 
 
 ^Sager v. Portsmouth, S. & P. & E. B. Co. 31 Me. 228, 50 Am. Dec. 659. 
 
 ^Beedv. Philadelpliia, W. & B. B. Go. 3 Houst. (Del.) 176; Truax v. Phila- 
 delphia, W. & B. B. Co. 3 Houst. (Del.) 233. 
 
 6 Beard v. Illinois Cent. B. Co. 7 L. R. A. 280. 79 Iowa. 518. 
 
 « Gould V. Oliver, 4 Ring. N. C. 134; Crosby v. Fitch, 12 Conn. 410, 31 Am. 
 Dec. 745; Lenox v. United Ins. Co. 3 Johns. Cas. 178; Smith v. Wright, 1 
 Cai. 43, 2 Am. Dec. 162; Price v. Hartsliom, 44 N. Y. 94, 4 Am. Rep. 645; 
 Hm/man v. Molton, 5 Esp. 65; New England Ins. Co. v. The Sarah Ann, 38 
 U. S. 13 Pet. 387, 10 L. ed. 213; Post v. Jones, 60 U. S. 19 How. 150, 15 
 L. ed. 618; Fitz v. The Amelie, 73 U. S. 6 Wall. 18, 18 L. ed. 806. 
 
 "> Laiorence v. Minturn, 58 U. S. 17 How. 100, 15 L. ed. 58. 
 
 8 The Marlborough, 47 Fed. Rep. 667.
 
 JETTISON. 311 
 
 against further danger, when the ship's safety has been imperilled 
 by such goods.' But a propeller which takes on so heavy a deck- 
 load of lumber as to be topheavy, and endangers loss of it or puts 
 it in peril in an ordinary wind not exceeding 12 to 15 miles per 
 hour, or anything less than a gale of wind or such a stress of 
 weather as is clearly unusual, must be held liable for the loss of 
 part of the deckload by sliding off while the vessel is rolling 
 heavily," and the fact that nearly one quarter of the lighter's 
 cargo slips off into the sea when the lighter tips a little on en- 
 countering a slight puff of wind is of itself, enough to indicate 
 gross negligence on the part of those in charge.' 
 
 A jettison, the necessity of which is occasioned by peril of the 
 sea, is a loss by peril of the sea and within the exception of a bill 
 of lading ; but if it was the unseaworthiness of the vessel which 
 caused or contributed to the necessity of the jettison, the loss is 
 not within the exception of perils of the sea." Or if the goods 
 were wrongfully placed on deck, the carrier will be liable for the 
 loss." If jettison of the cargo is necessary by the negligence or 
 breach of contract of the master or owner, it must be attributed 
 to that fault, not to the sea peril.* A carrier is not excused from 
 delivering goods stowed on deck without the consent of the ship- 
 per, although they were lost by perils of the sea, unless such man- 
 ner of stowing the particular goods is sanctioned by commercial 
 usage, or did not in any degree, contribute to the disaster.' In 
 the case of jettison of the deckload, the carrier of the ship is not 
 responsible to the owner of the goods where they were on deck 
 with the owner's consent, and there is no general custom to carry 
 them there.* 
 
 1 Laicrence v. Minturn, 58 U. 8. 17 How, 100, 15 L. ed. 58. 
 
 ^Barker v. TJie Swallov7, 44 Fed. Rep. 771. 
 
 3 The City of Alexandria, 24 Blatchf. 50, 28 Fed. Rep. 202. 
 
 *Dupont V. Vance, 60 U. S. 19 How. 162, 15 L. ed. 534. 
 
 5 Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149. 
 
 ^ Dnpont V. Vance, mpra; Tlie Portsmouth v. Onondaga Salt Co. 76 U. S. 9 
 
 Wall. 682, 19 L. ed. 754; Lawrence v. Minium, 58 U. S. 17 How. 100, 15 
 
 L. ed. 58. 
 1 The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 
 * Lawrence v. Minturn, supra.
 
 CHAPTER X. 
 
 DEVIATION FROxM ROUTE. 
 
 § 79. WJiat Constitutes a Deviation. 
 
 § 80. Wliat not a Deviation from Route. 
 
 § 81. Justifiable Deviation from Route. 
 
 § 82. Responsibility of Connecting Carrier for Deviation. 
 
 § 79. What Constitutes a Deviation. 
 
 A deviation by the carrier from its voyage will render it re- 
 sponsible even for losses resulting from inevitable casualties.' If 
 the carrier has departed from its line of duty, and has violated its 
 contract, and while thus in fault, and in consequence of that 
 fault, goods being carried are injured by the Act of God, which 
 would not otherwise have produced an injury, then the carrier 
 will be liable." And the same rule is applied as to a stipulation 
 to exempt it from negligence where it has violated its contract as 
 to the method of transportation.' 
 
 A carrier cannot avail itself of any exception in its contract, 
 where it has disobeyed the directions of the shipper as to their 
 carriage in a particular way, or by a particular route." Thus an 
 express exemption, in a bill of lading, of liability for damages to 
 skins from sweating, will not relieve the carrier from liability for 
 
 1 Davis V. Garrett, 6 Bing. 716; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 
 745; Goddard v. Mullory, 52 Burb. 87; Lamb v. Camden & A. R. Traiup. 
 Co. 2 Daly, 454; Maqhee v. Camden & A. R. Transp. Go. 45 N. Y. 574, 6 
 Am. Rep. 124; Keeiiey v. Grand Trunk R. Co. 59 Barb. 104, 47 N. Y. 525. 
 
 •^ Michaeh v. New York Cent. R. Co. 30 N. Y. 564, 86 Am. Dec. 415. 
 
 ^Robinson v. Merchants Despatch Transp. Co. 45 Iowa, 470; Galveston, H. & H. 
 R. Co. V. Allison, 59 Tex. 193; Goodrich v. Thompso7i, ii N. Y. 324; Gra- 
 ham V. Davis. 4 Ohio St. 362, 62 Am. Dec. 285; Hand v. Baynes, 4 Whart. 
 204, 33 .\m. Dec. 54; Maghee v. Camden & A. R. Co. 45 N. Y. 514, 31 Am. 
 Dec. 745; Hunnewell v. Taber, 2 Sprague, 1; Keeney v. Grand Trunk R. Co. 
 47 N. Y. 525. 
 
 * Maghee v. Camden & A. R. Transp. Co. 45 N. Y. 514, 31 Am. Dec. 745; Good- 
 rich V. Thompson, Galveston, H. & H. R. Co. v. Allison, Robinson v. Merch- 
 ants Despatclb Transp. Co. and Graham v. Davis, supra; Collins v. Bristoi 
 & E. R. Co. 11 Exch. 790. 
 
 312
 
 WHAT CONSTITUTES A DEVIATION. 313 
 
 such damages in case of a deviation from the route prescribed in 
 the bill of lading. A carrier of goods who deviates from the 
 route prescribed by the bill of lading is liable for injuries thereto, 
 which might not have arisen but for such deviation.' Such failure to 
 ship over the line of transportation directed, will render the orig- 
 inal carrier the insurer for the line he selects." 
 
 Any departure from the known rules of navigation will render 
 the carrier liable.' A carrier by whose fault in carrying goods by 
 an indirect, instead of a direct, route, the delivery of the goods at 
 their destination is delayed, and by whose fault or negligence 
 they are not delivered, after their arrival, to the consignee on 
 demand and presentation of the bill of lading, — is liable where 
 the goods are afterwards destroyed or injured by the act of God.^ 
 An express company under a contract of shipment, silent as to 
 the route to be taken, which chooses a long or inexpeditious rail- 
 road route when there is a direct and speedy line which it may 
 use, is liable for any damage resulting from the additional time 
 consumed in the journey." Where the first carrier delivers the 
 goods to a railroad other than that named in the agreement, and 
 they are burned while in possession of such second carrier, the 
 first carrier is liable for the loss." 
 
 Where a shipper of freight gives directions to the freight agent 
 of the initial carrier at the point of shipment as to the particular 
 route by which the freight shall be shipped to destination, it is 
 the duty of the freight agent to make such notations on the way- 
 bill as will reasonably and properly carry the freight by such par- 
 ticular route to destination. A shipper at Troupe, Texas, directs 
 the freight agent of a carrier to bill his freight from that point to 
 Fort Lawn, South Carolina, via Vicksburg, Jackson, Meridian, 
 Birmingham, Atlanta, Augusta and Columbia. The freight agent 
 
 ' Bobertson v. National Steamship Co. 14 N. Y. Supp. 313. 
 
 ^Isaacson v. New York Cent. & H. R. B. Co. 94 N. Y. 278, 46 Am. Rep. 142. 
 
 » Aiwood V. Reliance Transp. Co. 9 Watts, 87, 34 Am. Dec. 503. 
 
 * Richmond & D. R. Co. v. Benson, 86 Ga. 203. 
 
 ^WelL% Fargo & Co. v. Fuller, 4 Tex. Civ. App. 213. 
 
 ^Independent Mills Co. v. Burliyigton C. B. & N. B. Co. 72 Iowa, 535. See 
 
 also Palmer v. Chicago, B. & Q. B. Co. 56 Conn. 137; Patten v. Union Pac. 
 
 B. Co. 29 Fed. Rep. 590.
 
 314 DEVIATION FROM ROUTE. 
 
 simply inserts in the waybill that the destination of the freight is 
 Fort Lawn, South Carolina, " via Yicksburg," in consequence of 
 which the freight at Vicksburg is billed to Atlanta and consigned 
 to the Richmond &, Danville Railroad Company, by which it is 
 carried to JFort Lawn without being carried by way of Augusta 
 and Columbia, and as a result of this the shipper is compelled to 
 pay eighty-six cents more for the carriage than if it had been 
 billed via Augusta, as directed by the shipper, the rates by all- 
 i-ail lines from Yicksburg to Augusta being the same, and not the 
 same from Yicksburg to Fort Lawn via Atlanta. Evidently in 
 this the freight agent failed to do his duty ; he should have made 
 a notation on the waybill via Yicksburg and Augusta ; and upon 
 request the initial carrier should refund to the shipper the amount 
 of this overcharge occasioned by the oversight of its freight agent. 
 If, on the other hand, the shipper at Troupe, Texas, had given 
 the freight agent no directions whatever as to the particular route 
 by which the freight was to be sent forward to its destination at 
 Fort Lawn, South Carolina, but had simply left it to the freight 
 agent to select the route for him, as is frequently done by ship- 
 pers in such cases, then, in that event, in selecting such route for 
 the shipj)er, it would have been the duty of the freight agent to 
 have forwarded the freight by the best and cheapest route for the 
 shipper, so_^ far as the freight agent knew, or was informed, and 
 to have made such notations on the waybill as would reasonably 
 have carried it by that route, for in doing that service he would 
 have been acting as the agent of the shipper as well as of the 
 company/ A carrier who forwards, partly by vessel and partly 
 by rail, goods which he has contracted to carry directly by a spe- 
 cified steamer over another route, becomes an insurer, and cannot 
 invoke the benefit of any exception in the contract." 
 
 If the goods are sent by a different conveyance or in a different 
 manner from that implied by the undertaking, and they are lost, 
 the carrier will be liable.' A provision in a bill of lading of 
 
 ' Sankey v. Richmond & D. R. Co. 3 Inters. Com. Rep. 33. 
 
 s Robertson v. National SS. Co. 43 N. Y. S. R. 694. 
 
 * Sleat V. Fagg, 5 Barn. & Aid. 342; NicJioUon v. Willan, 5 East, 507; Dvff y. 
 
 Budd, 3 Brod. & B. 177; Garnett v. Willan, 5 Barn. & Aid. 53; Barnwell^. 
 
 Hussy, 1 Mill, Const. 114.
 
 WHAT NOT A DEVIATION FKOM KOUTE. 315 
 
 oranges, that the ship " now lying in the port of Malaga, bound 
 for Liverpool," shall have liberty " to proceed to and stay at any 
 port or ports in any rotation, in the Mediterranean, Levant, Black 
 Sea, or Adriatic, or on the coasts of Africa, Spain, Portugal, 
 France, Great Britain, and Ireland," for any purpose, — does not 
 autliorize a deviation to ia port not in the direction of Liverpool. 
 A printed provision of the charter-party of a steamship stated to 
 be lying in Malaga and bound for Liverpool, that she shall have 
 liberty to proceed to and stay in any port or ports in the Medi- 
 terranean, Levant, Black Sea, or Adriatic, or on the coasts of 
 Africa, Spain, Portugal, France, Great Britain, and Ireland, for 
 any purpose, will not be construed to defeat the main object and 
 intent of the contract, — the carriage of oranges from Malaga to 
 Liverpool, — and such liberty must be restricted to ports in the 
 course of the voyage.' 
 
 If goods are shipped "through without change of cars," storage 
 on the route where they are burned will render the carrier liable.' 
 So if tlie shipment is to be by a vessel named, the carrier deviat- 
 ing without just cause, of which the court must, as a matter of 
 law, judge, will be liable.' Having named the vessel, the carrier 
 departs from the direction of the shipper at his peril.* A carrier 
 receiving a package at Akron, Pa., for St. Augustine, Florida, 
 marked '■'■via Philadelphia care Atlantic Coast Line, fast freight," 
 and who forwarded the goods from Philadelphia by steamer is 
 liable for a loss by fire on the steamer.^ 
 
 § 80. What not a Deviation from Route. 
 Where, in the bill of lading, the railroads are specified over 
 
 ^Margetson v. Glynn [1893] 1 Q. B. 337 [1893] App. Cas. 351. 
 
 *Steicart v. Mercliants Despatch Transp. Go. 47 Iowa, 229, 29 Am. Rep. 476. 
 
 *Bead v. Spaulding, 5 Bosw. 395, 30 N. Y. 630, 86 Am. Dec. 436. 
 
 *Dunse(hY.Wade, 3 111. 285; Merchants Despatch Transp. Co. v. Eahn, 76 
 111. 520; Marckwald v. Oceanic Steam JS'av. Co. 11 Hun, 462. 
 
 '^Phila. & B. B. Co. V. Beck, 125 Pa. 630; Galveston, H. & H. B. Co. v. Alli- 
 son, 59 Tex. 193; Magnin v. Dinsmore, 70 N. Y. 410, 26 Am. Rep. 608; 
 Gahamv. Davis, 4 Ohio St. 363, 62 Am. Dec. 2S5; BAinson v. Merchants 
 Despatch Transp. Co. 45 Iowa, 470; Collins v. Br idol & E. B. Co. 11 Exch. 
 790; Hunneioell v. Taber, 25 Payne, 1: Keeney v. Grand Trunk B. Co. 47 
 N. Y. 535; United States Exp. Co. v. Kountze, 75 U. S. 8 Wall. 343, 19 L. 
 €d. 457; aark v. St. Louis, K. G. & N. B. Co. 64 Mo. 440.
 
 316 DEVIATION FKOM ROUTE. 
 
 which the goods are to be shipped to a point named, and "there 
 delivered to the agent of the next connecting steamboat, raih'oad 
 company or forwarding hne," etc., the bill of lading was conclu- 
 sive evidence of the contract under which the goods were ac- 
 cepted, and the carrier was not bound to carry entirely by rail- 
 road.' 
 
 Where there is nothing in the bill of lading restricting the car- 
 rier as to the particular route over which goods are to be for- 
 warded, oral testimony cannot be introduced that the carrier, at 
 the time the bill of lading was received by the shipper, guaranteed 
 to forward by a particular route.^ AVhere goods marked to a 
 consignee at a point beyond the terminus of the receiving rail- 
 road, the usual route to which was by water from such terminus,, 
 were delivered by the shippers to the company, accompanied by 
 "a trade ticket" providing that the goods should be forwarded 
 "subject to tlie company's regular bill of lading" which gave the 
 company the option of choosing the route from its terminus if 
 the company delivered the goods at its terminus to a steamer for 
 the designated destination, its liability ended.' Where a charter 
 party to ship fruit from Sicily to Boston, provides that the vessel 
 shall take the "nearest passage," the ship is bound to keep the 
 coolest passage those in the trade are accustomed to keep, in the 
 absence of any known passage as to which a discretion had been 
 given.^ 
 
 A deviation by a carrier from the route and manner of trans- 
 portation stipulated for in a bill of lading, in accordance with a 
 uniform and notorious usage with reference to which the contract 
 was made, does not render the carrier liable as an insurer against 
 unavoidable casualty.* 
 
 ' Bostwick V. Baltimore & 0. R. Co. 55 Barb. 137. 
 
 ^ White V. Ashton, 51 N. Y. 284; Indianapolis & G. R. Co. v. Remmy, 13 Ind. 
 519; Snow v. Indiana, B. cfc W. R. Co. 109 lad. 422; Hincklei/ v. New York 
 Cent. & H. R. R. Co. 56 N. Y. 483. See Camden & A. R. Co. v. Forsyth, 
 61 Pa. 81; Simkins v. Norwich & K L. S. B. Co. 11 Cusb. 102; Delaware 
 & H. Canal Co. v. Pennsylvania Goal Co. 75 U. S. 8 Wall. 376, 288, 19 L. 
 ed. 347, 353. 
 
 3 Hostetter v. Baltimore <& 0. R. Co. (Pa.) 10 Ceat. Rep. 353. 
 
 * The John H. Pearson, 33 Fed. Rep. 845. 
 
 s Robertson v. National SS. Go. 139 N. Y. 416.
 
 JUSTIFIABLE DEVIATION FKOM KOUTE. 317 
 
 § 81. Justifiable Deviation from Route. 
 
 There is a class of cases in which an agent is justified, bj an 
 unexpected emergency, in deviating from his instructions where 
 the safety of the projDerty requires it. But, where the circum- 
 stances prevent the compliance with the directions of the shipper, 
 the carrier will not be justified in adopting some other method 
 of transportation or some other route, where the only damage 
 that would result to the shipper would be the delay in communi- 
 cating with him and awaiting his instructions, while the goods 
 were properly stored.' If the ship designated in the bill of lad- 
 ing does not sail, the carrier must notify the shipper and usually 
 delay shipments.'' But while a deviation cannot be made for the 
 mere convenience of the carrier, without rendering it liable for 
 the injury which may result; yet, such a deviation from the in. 
 structions of the shipper may be made in the case of an unfore- 
 seen necessity' and a necessary change of route or means of trans- 
 portation is justifiable," as forwarding perishable freight by rail, 
 where a storm prevents a boat from proceeding on its voyage.^ 
 
 In case of an interruption on the stipulated line of transporta- 
 tion, a carrier is bound to use all reasonable means sucli as a pru- 
 dent owner, being present, would take to protect the property 
 from unnecessary loss or damage," and the necessity arising for 
 deviation from the route prescribed, the carrier must use due 
 caution in the new route selected, thus, where a carrier was stalled 
 in a ford, the bridge being impassable, he was held liable. Mc- 
 Culloch, J., stating that he ought to have ascertained the state of 
 the ford before he entered.' While the carrier should notify the 
 consignee with reasonable dispatch of the necessity for the de- 
 viation, and the new route adopted, yet neglect to notify the con- 
 
 ^ Alabama & 0. S. R. Co. v. Thomas, 89 Ala. 294; Phillips v. Bingham, 26 
 
 Ga. 617. 
 » Ooodrich v. Thompson, 44 N. Y. 324. 
 
 ^Johnson v. New York Cent. R. Co. 33 N. Y. 610, 88 Am. Dec. 416. 
 * Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745. 
 ^ Regan v. Grand Trunk R. Co. 61 N. H. 579: Johnson v. Neic York Cent. R. 
 
 Co. 31 Barb. 196. But see Hand v. Baynes, 4 Wliart. 204, 33 Am. Dec. 54. 
 ^ Regan v. Grand Trunk R. Co. supra. 
 ^ Campbell v. Morse, 1 Harp. L. 468.
 
 318 DEVIATION FROM KOUTE. 
 
 signee of a change of route does not render the carrier liable for 
 loss or damage hap^^ening from delay in the delivery of the goods, 
 which such notice would not have aifected.' 
 
 § 82. Pvesponsihility of Connecting Carrier for De- 
 viation. 
 
 It has been held that a carrier receiving goods to be tranported 
 beyond its line, in delivering them to a subsequent carrier, acted 
 as a special agent of the consignor with limited powers, and that 
 if it disregarded its instructions and exceeded its authority, the 
 subsequent carrier could not maintain a lien upon the goods for 
 its transportation charges." Indeed, in an action against railroad 
 companies for the value of wheat carried by them and destroyed 
 by lire after reaching its destination, where the averment is that 
 the first carrier delivered the wheat to a railroad, other than that 
 named in the agreement, and that it was burned while in the pos- 
 session of such second carrier, this averment was held sufficient to 
 support a recovery against both railroads/ 
 
 In later decisions in other states the doctrine of the Michigan 
 court, however, has not been followed, the courts now generally 
 holding that a carrier, receiving goods to be transported over its 
 own line to a point beyond, has the apparent authority to select 
 any of the ordinary routes leading thereto ; that a common carrier 
 not being bound at common law to carry except on its own line, 
 if it contracts to go beyond, it may confine itself in carrying to a 
 particular route it chooses to use and may select its own agencies." 
 And that the second carrier, receiving the goods in good faith 
 in the ordinary and usual course of business between connecting 
 lines, without notice of any special directions on the part of the 
 consignor, will have a lien for his reasonable charges for trans- 
 porting such goods over its own line, and also for such reasonable 
 charges as it may have advanced to the first carrier.* 
 
 » Regan v. Orand Trunk R. Co. 61 N. H. 579. 
 
 * Fitch V. Newberry, 1 Dougl. (Mich.) 1, 40 Am. Dec. 33. 
 
 3 Independent Mills Co. v. Burlington, C. R. <& iV. R. Go. 73 Iowa, 535. 
 
 * Atchison, T. <& 8. F. R. Co. v. Denver & N. 0. R. Co. 110 U. S. 667, 28 L. 
 
 ed. 291. 
 " Price V. Denver <& R. G. R. Co. 12 Colo. 403.
 
 KESPONSIBILITY OF CONNECTING CAKRIER FOR DEVIATION. 319 
 
 An examination of the opinion of Commissioner Stallcup in the 
 case just cited will show that while the right of the consignors to 
 select the routes over which the goods should be transported is 
 fully recognized, it is held that in case his instructions in refer- 
 ence thereto are not obeyed by the first carrier, the owner's action 
 was not against the innocent second carrier, but against his own 
 wrongdoing agent.' In the first two cases cited the ignorance of 
 the second carrier of the terms of the contract is made an express 
 condition of its exemption from liability in case of loss to the 
 owner. And a reading of the opinion in the case of Briggs v. 
 Boston & L. R. Co. supra, will also show that in that case no 
 wrong or negligence was attributable to the defendant company. 
 The rights of a connecting carrier receiving goods from another 
 carrier cannot be affected by any limitations put upon the latter's 
 authority by the shipper, of which the connecting carrier has no 
 notice." The fact that goods as delivered by the first carrier to 
 the second are loaded in a car belonging to a certain road which 
 I'uns to the place of destination other than the road of the second 
 carrier, does not imply a notice to such second carrier that the 
 goods are to be shipped over the road of the carrier on which 
 they were loaded.' 
 
 But where the possession of the property is not obtained in 
 good faith by the defendant in the ordinary or usual course of 
 business between connecting carriers, but such possession is wrong- 
 ful and illegal, the defendant is consequently not entitled to a 
 carrier's lien upon the same either for its own charges or those 
 advanced to the former carrier." 
 
 ' In support of this position, the following cases were relied upon: Patten v. 
 Union Pac. R. Co. 27 Fed. Rep. 590; Schneider v. Evan-% 25 "Wis. 241, 3 
 Am. Rep. 56; Briggs v. Boston & L. R. Co. 6 Allen, 246, 83 Am. Dec. 
 626. 
 
 "^ Price V. Denver & R. O. R. Co. 12 Colo. 402. 
 
 3 Pattsn T. Union Pac. R. Co. 29 Fed. Rep. 590. 
 
 * Fitch V. Neirberry, 1 Dougl. (Mich.) 1, 40 Am. Dec. 33; Robinson v. Baker, 
 5 Cush. 137, 51 Am. Dec. 54; Andrews v. Dieterich, 14 Wend. 31; Briggs 
 V. Boston & L. R. Co. 6 Allen, 246, 83 Am. Dec. 626; Uill v. Denver & R. 
 &. R. Co. 4 L. R. A. 376. 13 Colo. 35.
 
 CHAPTER XL 
 
 DELAY IN TRANSPORTATION OF GOODS, 
 
 § 83. Wind will he Considered Delay. 
 
 § 84. Insufficient Meaois of Transportation. See ante, § 5. 
 
 § 85. Delay from Storm or Collision. 
 
 § 86. Delay in Delivering to Connecting Carrier. 
 
 § 87. D^dy to Forivard Goods in Case of Wreck or Delay. 
 
 § 88. Care of Goods During Delay. 
 
 § 89. Contract to Deliver at Specified Date. 
 
 § 90. Consequences of Delay. 
 
 a. Wlien Caused hy Strikers, etc. 
 
 § 83. What will he Considered Delay. 
 
 What will be considered delay in the carriage of goods must, 
 of course, depend upon the method of transportation and the ef- 
 fect of weather upon this method. So of the pressure of busi- 
 ness, or of any other circumstance that may reasonably be held to 
 excuse the carrier for not having delivered the goods within a 
 reasonable time.' A common cai'rier who receives goods for 
 
 1 Michigan S. & N. I. li. Co. v. Day, 20 111. 375, 71 Am. Dec. 278; Cindmiati, 
 1. St. L. & C. R. Co. V. Case, 122 Ind. 310; McQra.io v. Baltimore & 0. R. 
 Co. 18 W. Va. 361, 41 Am. Rep. 696; Denny v. JSfew York Cent. R. Co. 13 
 Gray, 481, 74 Am. Dec. 645; Philadelphia, W. & B. R. Co. v. Lehman, 56 
 Md. 209, 40 Am. Rep. 415; Hewiit v. Chicago, B. & Q. R. Co. 63 Iowa, 611; 
 Vicksburg <& M. R. Co. v. Ragsdale, 46 Miss. 458; Parsons v. Hardy, 14 
 Wend. 215, 28 Am. Dec. 521; Taylm- v. Great Northern R. Co. L. R. 1 C. P. 
 385; Ballentine v. North Missouri R. Co. 40 Mo. 491, 93 Am. Dec. 315; Had- 
 ley V. Clarke, 8 T. R. 259 ; Empire Transp. Co. v. Wallace, 68 Pa. 302. 8 Am. 
 Rep. 178; Wibert v. New York & E. R. Co. 12 N. Y. 245; Crosby v. FitcJi, 12 
 Conn. 410, 31 Am. Dec. 745; Gerhard v. Neese, 36 Tex. 635; Palmer v. Lor- 
 illard, 16 Johns. 348; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Bow- 
 man V. Teall, 23 Wend. 306, 35 Am. Dec. 562; Bennett v. Bryam, 38 Miss. 
 17, 75 Am. Dec. 90; Boner v. Merchants SS. Co. 1 Jones L. 211; East Ten- 
 nessee & G. R. Go. V. Nelson, 1 Coldw. 272; Raphael v. Pickford, 5 Mann. & 
 G. 551; Hughes v. Great Western R. Co. 14 C. B. 637; Livingston v. NeicYork 
 Cent. & H. R. R. Co. 5 Hun, 562; Silver v. Hale, 2 Mo. App. 557; Briddon 
 V. Great Northern R. Co. 28 L. J. Exch. 51; Broadwell v. Butler, 6 McLean, 
 296. 
 
 320
 
 WHAT WILL BE CONSIDEUED DELAY. 321 
 
 transportation is bound to use only ordinary and reasonable dili- 
 gence in regard to the time of transportation.' 
 
 In respect to the time of delivery, the carrier is responsible 
 only for the exertion of due diligence and the exercise of at least 
 ordinary forecast in anticipating obstructions, and exerting the 
 proper means of overcoming them ; and to use due diligence in 
 accomplishing the transportation as soon as the obstruction is re- 
 moved, in the meantime being responsible for the safe-keeping of 
 the articles detained." What will be due diligence, will depend 
 much on the character of the goods ; the question whether want 
 of expedition will peril their preservation and their liability, from 
 exposure during delay, to be injuriously affected by the elements. 
 In this respect, common carriers stand upon the same ground 
 with other bailees. They may excuse delay in the delivery of 
 goods by accident or misfortune which was inevitable or produced 
 by tlie Act of God. It is sufficient if they exert due care and 
 diligence to guard against delay if the goods are finally delivered 
 in safety. Indeed, the carrier may excuse delay in delivering the 
 goods by proof of misfortune or accident, though not inevitable 
 or produced by the act of God.' 
 
 The principle upon which the extraordinary responsil)ility of 
 common carriers is founded, does not require that the responsi- 
 bility should be extended to the time occupied in the transporta- 
 tion ; the danger of robber}^ or embezzlement by collusion or 
 fraud, on the part of the carrier, has no application to the ques- 
 tion of delay." If a shipper promises the carrier to do something 
 which will enable the latter to make the time of transportation 
 
 ' Johmon v. East Tennessee, V. & O. R. Co. 90 Ga. 810. 
 
 « Botcman v. Teall, 23 Wend. 306, 35 Am. Dec. 562. 
 
 ^Kinnick v. Chicago, R. I. & P. R. Co. 69 Iowa, 665. 
 
 * Parsons v. Hardy, Wibert v. New York & E. R. Co., JfcCfraw v. Baltimore & 
 0. R. Co. , East Tennessee & G. R. Co. v. Nelson, Bennett v. Bryam, Vicksbnrg 
 & M. R. Co. V. Ragsdale, Boner v. Merchants SS. Co., Qerhard v. Ne^se, and 
 PJiiladelphia, W. & B. R. Co. v. Lehman, supra; Nudd v. Wells, 11 Wis. 408; 
 Michigan 8. & N. I. R. Co. v. Day, Taylor v. Great Nortlism R. Co. , Brid- 
 don V. Great Northern R. Co. and Flvghes v. Great Western R. Co. supra; 
 Hales V. London & N. W. R. Co. 4 Best & S. 66, 32 L. J. Q. B. 292; Ra.phad 
 V. Pickford. 5 Mann. & G. 551; Geismer v. Lake Shore cfc M. S. R. Co. 102 
 N. Y. 563, 55 Am. Rep. 837, 26 Am. & Eng. R. Cas. 287; Wren v. Eastern 
 Counties R. Co. 1 L. T. N. S. 5. 
 
 21
 
 322 DELAY IN TRANSPORTATION OF GOODS. 
 
 shorter than it otherwise would be and fails to perform, such fact 
 may be shown in excuse for the delay without changing the con- 
 tract of affreightment.' The principle imposing the liability of 
 an insurer on the carrier does not extend beyond the delivery of 
 the goods. It does not reach the condition in which they are de- 
 livered. The freezing of canals excuses delay ; but during the 
 delay, the carrier must not be guilty of negligence in taking care 
 of the articles detained.^ Accident or misfortune will excuse the 
 carrier, unless he has expressly contracted to deliver the goods 
 within a hmited time.^ 
 
 In some courts, an attempt has been made to include delay 
 within the terms of the imposed duty, but to relax the strictness 
 of the rule in determining what, in any special case, will consti- 
 tute delay. Thus it is said that nothing will relieve the carrier 
 from its obligation to deliver goods at their destination within a 
 reasonable time, but the act of God, the public enemy, the act or 
 conduct of the owner, or a special contract ; but what will consti- 
 tute a reasonable time, must be determined by the circumstances 
 surrounding each case, and an extraordinary press of business — 
 where the carrier has provided for all ordinary business — will be 
 a sufficient excuse to extend ordinary time.' 
 
 The result, under either rule, relieves the carrier from the com- 
 mon law liability as an insurer. To show when they ought to 
 have arrived, the contract being silent, it should appear what 
 length of time was usually required or was reasonably necessary 
 to effect the transit.' An action for delay in transporting freight 
 is not maintainable where the goods reached their destination in 
 the time usually occupied in the journey, and there was no special 
 undertaking for delivery in a fixed time.° A shipper of a lot of 
 
 > Illinois Cent. B. Co. v. Miller, 32 111. App. 259. 
 
 ^Bowman v. Teall, 23 Wend. 306, 35 Am. Dec. 562; Wibert v. New York & E. 
 R. Co. 12 N. Y. 245. 
 
 ^Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Wibert v. New York & 
 E. R. Co. supra; Parsons v. Hardy, 14 Wend. 215, 28 Am. Dec. 521; Bow- 
 man V. Teall, supra; Forward v. Pitard, 1 T. R. 27; McIIenry v, Philudei- 
 phia, W. & B. R. Co. 4 Harr. (Del.) 448. 
 
 * Vickshury & M. R. Co. v. Ragsdale, 46 Miss. 458. 
 
 ^Atlanta & W. P. R. Co. v. Texas Orate Co. 81 Ga. 602. 
 
 « Lowe V. East Tennessee, V. cfc Q. R. Co. 90 Ga. 85.
 
 WHAT WILL BE CONSIDERED DELAY. 323 
 
 venison by express, w^ho was induced to deliver it to the company 
 for shipment by the promise of its agent that he would forward 
 it on the same night, may recover for its loss by failure to ship it 
 until the next day.' Where the usual time within which produce 
 was transported from one point to another was two and one half 
 to three days, and a part of the shipment did not reach its desti- 
 nation until 11 days, and the remainder some 45 days after it was 
 shipped, it was held to be such a delay as would render the com- 
 pany liable for the resnlting damages." While unusual and unex- 
 plained delay is prima facie evidence of want of ordinary care, yet 
 for slight delay, the burden is upon the plaintifE to show negli- 
 gence.' And direct evidence is not necessary ; but the duty to 
 forward goods forthwith may be inferred from an established 
 course of dealing between the owner and the carrier.* A delay 
 of a carrier in transporting perishable goods is not excused by a 
 failure of the consignee to unload the goods on Sunday, by which 
 means they might have been saved.* 
 
 A delivery to the carrier, with the name and address of the 
 consignee marked upon the goods, is, in the absence of some direc- 
 tion or agreement otherwise, equivalent to an express direction to 
 transport them to such consignee at once.' It is within the au- 
 thority of a railroad company's freight agent to assure a shipper 
 that there will be no delay in unloading his consignment, thereby 
 inducing him to make a shipment at a certain time.^ Knowledge 
 on the part of the carrier that there is a snow blockade on the 
 road, will not excuse delay in shipment, unless it advises the ship- 
 per of such fact on receiving the goods.* Failure to insert in a bill 
 of lading stipulating for conveyance by steamer, the name of the 
 particular steamer by which the shipment is to be made, will not 
 
 ' Cantwell v. Pacific Exp. Co. 58 Ark. 487. 
 
 ■^Illinois Cent. R. Co. v. McClellan, 54 111. 58, 5 Am. Rep. 83. 
 
 s Maun V. Birchard, 40 Vt. 326. 
 
 * Moses V. Boston & M. R. Co. 24 N. H. 71, 55 Am. Dec. 222. 
 
 ^St. Clair v. Chicago, B. & Q. R. Co. 80 Iowa, 304, 42 Am. & Eng. R. Cas. 
 
 414. 
 « Gregory v. Wabash R. Co. 46 Mo. App. 574. 
 ' Lake Erie & W. R. Co. v. Rosenberg, 31 111. App. 47. 
 
 * Great Western R. Co. v. Burns. 60 111. 284.
 
 324 
 
 DELAY IN TRANSPORTATION OF GOODS. 
 
 prevent recoverj from a steamer forming part of an association of 
 several vessels under an understanding that the first boat passing 
 the place of shipment shall take the cargo, and which was the 
 first boat to pass, — especially where it is customary to leave the 
 name blank, or, if inserted, for the master of the steamer to 
 change it,' 
 
 An exception from the lay days in a charter party, of delay 
 caused by restraints of princes and rulers, political disturbances or 
 impediments, includes delay at the port of loading by reason of 
 the existence of a state of war in the town rendering it impossible 
 to load therefrom ; delay after it becomes possible to load from 
 such port by reason of the railway from the mines to the port, 
 over which the cargo is to be transported in the ordinary custom 
 of loading, being in the hands of the troops ; and delay while de- 
 tained at another port into which the vessel puts for coal, because 
 of a demand by a rival government for export duties already paid 
 to the government in charge at the port of loading.^ A railway 
 may be excused for a delay in transportation where, in time of 
 war, it is under military control occasioning the delay/ A state 
 statute compelling the shipment of freight within a certain time 
 after receiving it, under a penalty for default, is not an unconsti- 
 tutional regulation of interstate commerce as to freight for ship- 
 ment out of the state, as it tends not to trammel or obstruct, but 
 to expedite such commerce/ 
 
 § 84- Insufficient Means of Transj)ortation. See 
 
 mite, § 5. 
 
 Delay in carriage may sometimes be excused by the fact, that 
 the carrier's means of transportation — without his own fault — 
 have proved insufficient to forward all the goods in good faith 
 received, and under such circumstances, it is his duty, if there be 
 
 • The Guiding Star, 53 Fed. Rep. 936. 
 
 « Smith V. Rosario Nitrate Go. [1893] 2 Q. B. 323. 
 
 * Illinois Gent. R. Go. v. Ashmead, 58 111. 487. 
 
 *Bar/gv. Wilmington, G. & A.R. Co. 3 Inters. Com. Rep. 803, 14 L. R. A. 
 59(j.
 
 INSUFFICIENT MEANS OF TKANSPORTATION. 325 
 
 among the goods perishable articles, demanding for their preser- 
 vation immediate transportation, to give such goods the prefer- 
 ence ; and he will be excused for the necessary delay which other 
 unperishable goods may sustain.' 
 
 Where the railroad which acts as carrier, is in good order and 
 well equipped, and as many trains are run upon it as can be done 
 with safety, a delay caused by an extraordinary pressure of freight 
 being thrown upon it, which is forwarded without preference iu 
 the order of its receipt, will be excused,'* An unusual quantity of 
 freight being delivered to a road properly equipped, will excuse 
 resulting delay in transportation, if there be no special contract 
 between the carrier and shipper/ A carrier is not liable for a 
 delay of thirty-six hours in delivering a carload of meat, whereby 
 a loss occurred owing to a fall in the price, where such delay could 
 not have been prevented, being due to the crowded condition of 
 the yard, and it was delivered with as much despatch as possible 
 under the circumstances/ 
 
 While the carrier may decline to accept freight on account of 
 unusual press of business or inadequacy of rolling stock, — yet, if 
 it receives the freight, knowing that it will be delayed, the car- 
 rier will not be excused for not delivering promptly." But it has 
 been held, that where the jury were informed that "press of 
 freight will not excuse failure to carry goods in ordinary time, 
 where such press had existed for a long time, and was known to 
 the company when they received the goods, unless they notify 
 the shipper," this was not a fair statement of the law; that there is 
 no rule not subject to exceptions, which requires freight to be 
 carried in the order in which it is recived, without regard to its 
 
 1 Tiernev v. New York Cent. & E. R. R. Co. 76 N. Y. 305, 10 Hun, 569; Peei 
 
 V. Chicago & N. W. R. Co. 30 Wis. 594, 91 Am. Dec. 446; McAndreios v. 
 
 Whitlock, 52 N. Y. 40, 11 Am. Rep. 657; Great Western R. Co. v. Burns, 
 
 60 111. 284; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6. 
 '^Wibert v. JVew York & E. R. Co. and Michigan Cent. R. Co. v. Burrows, 
 
 supra; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426. 
 » Wibert v. New York & E. R. Co. 13 N. Y. 245, 19 Barb. 36; Jones v. New 
 
 York & E. R. Co. 29 Barb. 633, disapproving Kent v. Hudson River R. 
 
 Co. 22 Barb. 278; Pittsburg, G. C. & St. L. R. Co. v. Morton, 61 Ind. 539, 
 
 ante, § 5. 
 * Smith V. Cleveland, G. C. & St. L. R. Co. (Ga.) July 24, 1893. 
 ^Faulkner v. Southern Pac. R. Co. 51 Mo. 311.
 
 326 DELAY IN TKANSPOKTATION OF GOODS. 
 
 character, condition, or its liability to perish.' Where a railroad 
 company is properly equijjped, it cannot be held liable for loss of 
 anticipated profits where, without special contract as to time of 
 transportation, a delay occurs caused by an extraordinary press 
 of business, — if the goods are forwarded with such expedition as 
 is practicable. It may be liable, however, for injury to the goods 
 during the delay.* A vessel is not liable for breach of a charter 
 or contract to carry freight, made by one who, having a contract 
 for her purchase, obtained possession of her without the consent 
 or authority of the owner, and made in his own name the con- 
 tract sought to be enforced.' 
 
 § 85. Delay from Storm or Collision. 
 
 The carrier is not responsible for delay on the voyage on ac- 
 count of boisterous weather or adverse winds, low tides, or the 
 like, over which it has no control." Delay in the shipment will 
 be excused, where a freshet destroyed a railroad bridge, though 
 the carrier will be liable for injury caused by bad handling.^ De- 
 lay will be excused resulting from a collision, either of railroad 
 trains or steamers, but the collision — either on land or water — 
 must not be due to the carrier's own negligence.* 
 
 A carrier which has provided a place of storage for goods safe 
 against all but extraordinary events, is not liable for damage 
 caused by a flood such as occurs but twice in a generation, and 
 the fact that a similar flood, otherwise unprecedented, had oc- 
 curred once in each of the two preceding years, is not enough to 
 make a carrier liable for damages to freight on account of a 
 flood.'' A freshet, or a snowstorm or fog, or the destruction of 
 a bridge, or the low state of water, or the obstruction of a con- 
 
 ' Peet V. CJdcago & N. W. R. Co. 20 Wis. 594, 91 Am. Dec. 448. 
 
 5 East Tennessee & O. R. Co. v. Nelson, 1 Coldw. 272. 
 
 3 The C. E. Conrad, 57 Fed. Rep. 256. 
 
 ■• Clark V. Barmcell, 53 U. 8. 12 How. 272, 13 L. ed. 985. 
 
 ^Lipford V. Charlotte & S. C. R. Go. 7 Rich. L. 409. 
 
 ^ Conger v. Hudson River R. Co. 6 Duer, 375. 
 
 ■" Norris v. Sa,vannah, F. & W. R. Go. 23 Fla. 182.
 
 DELAY FROM STOKM OB COLLISION. 327 
 
 nectini^ road, will excuse delay caused thereby.' The master of 
 a waterlos^ged vessel at port cannot contract for towage to the 
 point of destination, where the price is exorbitant, and the owner 
 is within easy reach of a telegram.* 
 
 Among the recent cases of particular importance in respect to 
 the liability of railroad companies is a Pennsylvania decision 
 holding that the grossly criminal act of a stranger in letting oft" 
 the brakes on loaded cars standing on an open switch and then 
 closing the switch so that the cars ran out on the main track, 
 causing a collision with another train, will not render the com- 
 pany liable in the absence of negligence in failing to discover the 
 mischief or preventing its effect.' It appeared that throw-off 
 switches to prevent such casualties had been constructed, but one 
 of them was not opened, and the other, though open, was un- 
 locked; but it was left to the jury to say whether or not the com- 
 pany had exercised sufficient prudence when it left the cars with 
 the brakes on and the switch open so as to disrail the cars if they 
 got loose, and the jury found the care sufficient. 
 
 A somewhat similar case from Georgia,* held that the mere fact 
 that a railroad company fails to recover from a discharged 
 employe a key to a switch is not sufficient to make the com- 
 pany liable for his criminal act in maliciously misplacing the 
 switch and wrecking the train. It is said that the company is 
 not bound to anticipate that so heinous a crime would be com- 
 
 ^Pearce v. The Thomas Newton, 41 Fed. Rep. 106; Philadelphia, TF. & B. R. 
 Co. V. Lehman, 56 Md. 209, 40 Am. Rep. 415; Peck v. Weeks, 34 Conn. 145; 
 Ballentine v. North Missouri R. Co. 40 Mo. 491, 93 Am. Dec. 315; Norris 
 V. Savannah, F. & W. R. Go. 23 Fla. 182; Livingston v. New York Cent. & 
 H. R. R. Co. 5 Hun, 563; Beckwith v. Frisbie, 32 Vt. 559; Silver v. Hale, 2 
 Mo App. 557; Kinnick v. Chicago, R. I. & P. R. Go. 69 Iowa, 665, 27 Am. 
 & Eug. R Cas. 55; Bviddon v. Great Northern R. Co. 32 L. T. 94; Bow- 
 man V. Trail, 23 Wend. 306, 35 Am. Dec. 562; Vickshurg & M. R. Co. v. 
 Ragsdale, 46 Miss. 458; Sweetland v. Boston & A. R. Co. 102 Mass. 276; 
 Ciirtis V. Chicago & N. W. R. Co. 18 Wis. 313; Nashville & G. R. Co. v. 
 David, 6 Heisk. 261, 19 Am. Rep. 594; Memphis & G. R. Go. v. Reeves, 77 
 U. S. 10 Wall. 176, 19 L. ed. 909; Denny v. Neto Yoi'k Gent. R. Co. 13 
 Gray, 481, 74 Am. Dec. U5;Wallace v. Clayton, 42 Ga. 443. 
 
 * Bot.tford V. Plummer, 67 Mich. 264. 
 
 »This is the case of Fredericks v. Northern Gent. R. Co. 22 L. R. A, 306, 157 
 Pa. 103. 
 
 *East Temiessee, V. <& O. R. Co. v. Kane (Ga.) 22 L. R. A. 315.
 
 328 DELAY IN TK AN SPORT ATION OF GOODS. 
 
 mitted in revenge for the discharge of the employe. These cases 
 touch on a question of very great importance which has not been 
 largely developed up to the present time, but which is considered 
 in a note to the former case, in 22 L. R. A. 306. The obligation 
 of the carrier of goods, while demanding reasonable expedition, 
 does not require it to use extraordinary exertions or expenses to 
 surmount obstacles occasioned by the weather.' But a clause of 
 a charter giving liberty to tow and assist vessels in all situations 
 does not justify delay incident to a steamship service in towing a 
 disabled vessel, where the master knows that the cargo must 
 necessarily suffer certain decay or deterioration from the delay 
 caused by the salvage operations, but the vessel must make com- 
 pensation for the loss occasioned the cargo by such delay. The 
 liability of a cargo of chilled beef to deterioration by remaining 
 at sea more than nineteen days is not a matter of common knowl- 
 edge with notice of which the master of a steamship is charge- 
 able, but is a matter of expert knowledge which must be proved 
 to render the vessel liable for injuries caused by delay beyond 
 such time in rendering a salvage service, where the charter pro- 
 vides that the vessel may render towage services.'' 
 
 Where the court on the trial excluded evidence that the delay 
 was occasioned by the carrier's boat having been run against and 
 injured by a scow, which rendered it necessary for it to stop and 
 repair the injury, the appellate court reversed the ruling; and recog- 
 nized that the freezing of the canal immediately afterwards, which 
 was an "act of God," excused a continued delay in that case. The 
 shipper in that case, having accepted the goods at the place of 
 collision, was held to have released the carrier from all further 
 responsibility, and incurred the liability to pay him i^ro ixita 
 compensation for their transportation to that point,^ 
 
 § 86. Delay in Delivering to Connecting Carriers. 
 
 A common carrier of perishable goods must use reasonable 
 diligence to deliver the property to the connecting carrier for 
 
 > Empire Tramp. Co. v. Wallace, 68 Pa. 303, 8 Am. Rep. 178. 
 
 2 The Wells Glty, 57 Fed. Rep. 317. 
 
 ^Parsons v. JIardy, 14 Weud. 21G, 28 Am. Dec. 521.
 
 1)CTY TO FORWAKD GOODS IN CASE OF WRECK OR DELAY. 329 
 
 transportation to the place of consignment/ A carrier is liable 
 for detention of goods, addressed to a specified place " via " an- 
 other, at the latter, without using reasonably available means to 
 forward them to their destination or notif3'ing the consignee, not- 
 withstanding any custom of its own not communicated to the 
 shipper or consignee.^ Where goods marked beyond its own line 
 are accepted by the carrier, it will be answerable for any negli- 
 gence or delay which prevents the arrival of the goods at their 
 destination in a reasonable time, just as though such delay had 
 occurred on its own line of road/ 
 
 Where the carrier declined to permit the owner of cotton, 
 which was in its depot for transportation, to deliver it to another 
 carrier, or to make such delivery itself, but undertook to trans- 
 port it in three days, it was guilty of gross negligence in permit- 
 ting the cotton to remain exposed until it became greatly deteri- 
 orated in value, during several succeeding months/ Where the 
 agent of a railroad, duly authorized, agrees to forward freight by 
 another line, the railroad will be liable for a failure/ A delay on 
 the carrier's own route will not be excused, because it knows that 
 there is a block on the connecting line over which the goods must 
 be transported/ 
 
 %87. Duty to Forward Goods in Case of Wreck or 
 
 Delay. 
 
 As agent of the owner, the master is bound to carry the goods 
 to their place of destination in his own ship, unless he is pre- 
 vented from so doing by some cause arising from irresistible force, 
 over which he has no control and which cannot be guarded 
 against by the watchful exertion of human skill and prudence/ 
 It is the duty of common carriers to provide sufficient and suit- 
 
 ' McKay v. New York Cent. & H B. R. Go. 50 Hun, 563. 
 
 ■'Denver & B. Q-. B. Co. v. DsWitt, 1 Colo. App. 419. 
 
 3 Smon V. Cleveland & T. B. Co. 14 Mich. 489, 90 Am. Dec. 252. 
 
 * Glenn v. Charlotte & S. G. B. Co. 63 N. C. 510. 
 
 •-Michigan S. <& N. I. B. C>. v. Diy, 20 111. 375. 71 Am. Dec. 273. 
 
 « McLaren v. Detroit <& M. B. Go. 23 Wis. 138. 
 
 ' The Niagara v. Conies, 62 U. S. 21 How. 7, 16 L. ed. 41.
 
 330 DELAY IN TRANSPORTATION OK GOODS. 
 
 able means for the carriage of the goods they receive, and to 
 make delivery of them with all convenient dispatch ; and, while 
 accidents and obstructions will excuse delay, they do not put an 
 end to the contract, which must be completed as soon as the im- 
 pediment to the transjDortation of the property is removed or can 
 reasonably be overcome. A carrier is not relieved from liability 
 for failure to deliver goods by the impassibility of a tunnel on its 
 road, where it has other means of making delivery or has repaired 
 the tunnel.' 
 
 When a vessel contracts to carry a cargo, and actually receives 
 it, and meets with an excepted accident in the inception of or 
 during her voyage, no time being limited, she must repair and 
 continue and complete the voyage, if the repairs can be made 
 within a reasonable time." It is the duty of the master of a 
 wrecked vessel, whether insured or not, to use reasonable dili- 
 gence to save and if he cannot repair in time, to reship the 
 cargo ; and where it appears that a part of the cargo was so stored 
 that it might have easily been saved, and that several opportuni- 
 ties to reship what was saved were neglected, the carrier is re- 
 sponsible to the shipper for his loss, although the shipment was 
 at the owner's risk, and " dangers of the river" were excepted. ' 
 When the vessel is wrecked or otherwise disabled in the course 
 of the voyage and cannot be repaired without too great delay 
 and expense, the master is at liberty to tranship the goods and 
 send them forward so as to earn the whole freight ; and if another 
 vessel can be had in the same or a continuous port, or at one 
 within a reasonable distance, it becomes his duty, under such cir- 
 cumstances, to jDrocure it and transport the goods to their place 
 of destination ; and in that event, he is entitled to charge the 
 goods with the increased freight arising from the hire for the ves- 
 sel so procured." 
 
 Upon bills of lading wherein transhipment is provided for, or 
 the vessel is under the necessity of transhipping the goods at an 
 
 > Baltimore & 0. R. Co. v. O'DonneU, 49 Ohio St. 489. 
 
 2 Card V. Hine, 39 Fed. Rep. 818. 
 
 ^Bixby V. Deemar, 54 Fed. Rep. 718. 
 
 " The Niagara v. Cordes, 63 U. S. 21 How. 7, 16 L. ed. 41.
 
 DUTY TO FOKWARD GOODS IN CASE OF WRECK OR DELAY, 331 
 
 intermediate port through disasters at sea, the owner of the cargo 
 is liable for any increase of freight arising from the hire of an- 
 other vessel.' But, while the carrier cannot excuse delay be- 
 cause of some unexpected, but not disproportionate expense aris- 
 ing in transportation,'' he has been permitted to excuse delay 
 where the condition of the elements required an extra expense 
 to avoid its effects.^ Kor must the carrier, in order to expedite 
 the delivery, imperil the safety of the goods.* And wliere the 
 route of a carrier is to a point by rail and thence by water, it has 
 been ruled that it is not bound to send the goods through by rail, 
 where the water navigation is obstructed.' Where goods are to 
 be transported, by canal, for instance, and the goods are detained 
 by the weather, by the locks breaking or the like, unless there 
 has been a want of due diligence on the part of the carrier, he 
 will not be liable to damages on account of the delay, nor can he 
 be com])elled to forward the goods by land to the place of desti- 
 nation at his own expense and if the goods finally arrive in safety 
 he is not answerable in damages.' 
 
 While the carrier may be excused for delay caused by inter- 
 ruption of travel, eml^argo, or other causes beyond his control, 
 yet, when the obstacle is removed, it is his duty at once to pro- 
 ceed, with all reasonable diligence, to complete the carriage.' 
 Where goods are perishable and the carriage is interrupted, if 
 unable to communicate with the shipper, without imperiling the 
 goods by the delay, it is the duty of the carrier to use prompt 
 measures to forward the goods, and reasonable expenditures in- 
 curred in accomplishing this will be allowed him. That rule, 
 however, is not obligatory in cases where the goods are not per- 
 ishable, provided the ship can be repaired in a reasonable time. 
 
 ' Sumner v. Walker, 30 Fed. Rep. 261; Tlie Maggie Hammond v. Morland, 76 
 
 U. S. 9 Wall. 435, 19 L. ed. 772. 
 ^JDeming v. Grand Trunk R. Co. 48 N. H. 455, 2 Am. Rep. 2G7; Condict v. 
 
 Grand Trunk R. Co. 54 N. Y. 500. 
 'Briddon v. Great Northern R. Go. 28 L. J. Exch. 51. 
 * Great Northern R. Co. v. Taylor, 35 L. J. C. P. 210. 
 6 Empire Transp. Co. v. Wallace, 68 Pa. 302, 8 Am. Rep. 178. 
 ^Parsons v. Hardy, 14 Wend. 215, 28 Am. Dec. 521; Hand v. Baynes, 4 
 
 AVharl. 204, 210, 33 Am. Dec. 54. 
 ' Eadley v. Clarke, 8 T. R. 259.
 
 332 DELAY IN TRANSPORTATION OF GOODS. 
 
 In that state of the case, he may, if he deem it best, retain the 
 ^oods until the repairs are made, and forward them in his own 
 vessel ; and upon the same principle, and for the same end, if he 
 have no means to tranship the goods, it is his duty to repair his 
 own vessel, when capable of being repaired ; provided it can be 
 done within a reasonable time, and he has the means at his com- 
 mand ; and if not, and the means cannot be obtained from the 
 owner, or upon the security of the ship, he may sell a part, or 
 hypothecate the whole, and apply the proceeds to execute the 
 repairs, in order that he may be enabled to resume the voyage 
 and carry the goods, or the residue, as the case may be, to the 
 place of destination ; and he is not entitled to recover for freight 
 if he refuses to tranship the goods, unless he repairs his own ves- 
 sel within a reasonable time, and carries them on to the place of 
 delivery.' A shipowner who has agreed by charter-party that his 
 ship shall proceed to a port of discharge and there deliver the 
 cargo, unless prevented by excepted perils, is liable in damages 
 for abandoning the voyage, without consent of the charterers, at 
 a port of refuge into which the ship is obliged to put for repairs, 
 unless the excepted perils produce such effect as to make it phy- 
 sically impossible, or so clearly unreasonable as to be impossible 
 in a business point of view, to complete the voyage.* 
 
 A master is guilty of gross negligence, for not having made any 
 effort himself, or requested the aid of others, either to get the 
 steamer off when stranded, or to remove and restore the goods.' 
 A steamboat line is liable for damage to bees delivered it for 
 transportation upon the vessel striking a hidden obstruction and 
 filling with water, where the cabin containing the hives of bees 
 floated to the shore, and no effort was made on the part of tlie 
 master to use care in saving them, although the vessel was insured 
 and was abandoned to the underwriters as a total loss, and the 
 great injury to the bees w^as the neglect to care for them immedi- 
 ately after the loss.* The master cannot abandon his ship and 
 
 » The Niagara v. Cordes, 67 U. S. 21 How. 7, 16 L. ed. 41. 
 
 ^ Assicurmioni Generaliv. The Bessie Morris Co. [1893] 3 Q. B. 652. 
 
 * The Niagara v. Cordes, supra. 
 
 *Bixby V. Deemar, 54 Fed. Rep. 718.
 
 DUTY TO FORWARD GOODS IN CASE OF WKECK OK DELAY. 333 
 
 cargo upon any grounds when it is practicable for human exer- 
 tions, skill and prudence, to save them from impending peril.' 
 
 In eases of careless and cowardly abandonment, the law will 
 presume that well directed efforts would have been successful." 
 If the master is guilty of want of ordinary care of the interest of 
 the shij)pers, in deserting the vessel after she was stranded, in 
 making no effort to remove the goods from the place of stowage, 
 either ashore or to some part of the vessel where they would have 
 escaped damage by water, he cannot escape liability on account 
 of the peril of the sea.' Where proper precautions are neglected,* 
 or a vessel is grounded, because a dangerous passage was volun- 
 tarily taken/ or where, from failure to fumigate the ship, vermin 
 attack the cargo,^ or any other negligent act causes a loss within 
 the excej)tion,' the carrier will be held liable. A tug was held 
 liable for failure to leave a canal boat which she had in tow in a 
 safe place, after finding it necessary to turn back on account of 
 the weatlier, where the master of the boat objected to the place, 
 and requested to be removed, and the boat actually broke in two, 
 although the testimony is conflicting as to the depth of the water 
 and the soundness of the boat.* 
 
 Masters have a right, and oftentimes it is their duty, to seek 
 shelter from a storm ; and the fact that it would have been better 
 to have kept on the course may be more apparent afterwards than 
 it could have been to any one at the time.^ Something must be 
 
 • Tlie Niagara v. Cordes, 67 U. S. 21 How. 7, 16 L. ed. 41. 
 
 ^ Davis V. Oarrett, 6 Bing. 716; Williams v. Orant, 1 Conn. 4S7, 7 Am. Dec. 
 235. 
 
 ^Chouteaux v. Leech, 18 Pa. 233, 57 Am. Dec. 602; Hohart v. Drogan, 35 U. 
 S. 10 Pet. 108, 9 L. ed. 363; Bryant v. Commaincealth Ins. Co. 6 Pick. 131; 
 The Gentleman, Olcott, 118; Cheviot v. Brooks, 1 Johns. 367; Bird v. Crom- 
 well, 1 Mo. 81. 13 Am. Dec. 470; Harrington v. Lyles, 2 Nolt & McC. 88; 
 Shipton V. Thornton, 9 Ad. & El. 314; Harris v. Rand, 4 N. H. 259, 17 
 Am. Dec. 421; Tronson v. Dent, 36 Eng. L. & Eq. 41. 
 
 4 The Montana, 17 Fed. Rep. 377. 
 
 » The Fred H. Bice, 40 Fed. Rep. 690. 
 
 * Stevens v. Navigazione Generale Italiana, 39 Fed. Rep. 563. 
 
 ■■ Norman v. Bimnngton, L. R. 25 Q. B. Div. 475; The Bergenseren, 36 Fed. 
 
 Rep. 700: The (jigliov. The Britannia, 31 Fed. Rep. 432; The Key atone, 
 
 31 Fed. Rep. 412. 
 8 The Charles Bunyon, 46 Fed. Rep. 813. 
 ^American Exp. Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561.
 
 334 DELAY IN TKAN SPORT ATION OF GOODS. 
 
 deferred to the judgment and discretion of the master on such oc- 
 casions, so that although the circumstances may tend strongly to 
 pi'ove that he misjudged, or was wanting in that fearless, prudent 
 energy which he ought to have displayed, still they must be of 
 decisive character to incline the court to make the decision turn 
 upon that ground.' In cases of necessity or calamity during the 
 voyage, the master is by law created an agent, from the necessity 
 of the case, for the benefit of all concerned ; and what he fairly 
 and reasonable does under such circumstances, in the exercise of 
 his sound discretion binds all parties in interest,* 
 
 When such efforts fail to save the goods from the excepted 
 peril, the ultimate loss and damage in judgment of law results 
 from the first cause. Most of the rules of law prescribing the 
 duties of a carrier for hire, and regulating the manner of their ex- 
 ercise, have existed for centuries, and they cannot be modified or 
 relaxed except by the interposition of the legislative power Con- 
 stitutionally exercised. Time and experience have shown their 
 value and demonstrated their utility and justice, and they ought 
 not and cannot be changed by the judiciary/ 
 
 § 88. Care of Goods During Delay. 
 
 Duties remain to be performed by the owner, or the master as 
 the agent of the owner, after the vessel is wrecked or disabled, 
 and after he has ascertained that he can neither procure another 
 vessel nor repair his own, and those, too, of a very important 
 character, arising immediately out of his original undertaking to 
 carry the goods safely, to their place of destination. His obliga- 
 tion as declared by the Supreme Court of the United States, to 
 take all possible care of the goods, still continues, and is by no 
 means discharged or lessened, where it appears that the goods 
 have not perished with the wreck, and certainly not where the 
 
 ' The Niagara v, Cordes, 63 U. S. 21 How. 7, 16 L. ed. 41. 
 
 ^ Everett v. Saltus, 15 Wend. 474; Muton v. Lord, 1 Blalchf. 354; Douglas v. 
 Moody. 9 Mass. 550; Searle v. Scovell, 4 Johns. Ch. 218; Mamford v. Com- 
 mercml Lis. Co. 5 Johns. 262; Justin v. Ballam, 1 Salk. 34; The Gratitu- 
 dine, 3 C. Rob, Adm. 240. 
 
 3 T/ie Niagara v, Cordes, 62 U, S. 21 How. 7, 16 L. ed. 41.
 
 CARE OF GOODS DLKl^V DELAY. 335 
 
 vessel is only strauded on the beach. Such disasters are of fre- 
 quent occurrence along the sea coast in certain seasons of the year, 
 as well as on the lakes, and it cannot, for a moment, be admitted 
 that the duties and liabilities of a carrier or master are varied or 
 in any manner lessened, by the happening of such an event. Safe 
 custody is as much the duty of a carrier, as conveyance and de- 
 livery ; and when he is unable to carry the goods forward to their 
 place of destination, from causes which he did not produce, and 
 over which he has no control, — as by the stranding of the vessel 
 — he is still bound by the original obligation to take all possible 
 care of the goods, and is responsible for every loss or injury which 
 might have been prevented by human foresight, skill and pru- 
 dence. 
 
 An effort was made by able counsel, in King v. Shepherd^ 3 
 Story, 358, to maintain the proposition that the duties of a car- 
 rier after the ship was M'recked or stranded were varied, and 
 therefore that he was exempted from all liability, except for rea 
 sonable diligence and care in his endeavors to save the property. 
 Judge Story refused to sanction the doctrine, and held that his 
 obligations, liabilities and duties, as a common carrier, still con- 
 tinued, and that he was bound to show that no human diligence, 
 skill, or care, could save the property from being lost by the dis- 
 aster. Anything short of that requirement is inconsistent 
 with the nature of the original undertaking, and the meaning of 
 . the contract, which is universally interpreted by courts of justice. 
 Admit the proposition, and it is no longer true that where there 
 is no provision in the contract of affreightment varying the lia- 
 bility of the carrier, he cannot relieve himself from liability for 
 injuries to goods intrusted to his care, except by proving that it 
 was the result of some natural and inevitable necessity superior to 
 all human agency, or of a force exerted by a public enemy. 
 
 Kent, Chief Justice, said in Elliott v. Rossell, 10 Johns. 7, 6 
 Am. Dec. 306, decided in 1813, that it has long been settled that 
 a common carrier warrants the delivery of the goods in all but 
 the excepted cases of the act of God and public enemies, and 
 there is no distinction between a carrier by land and a carrier by 
 water; and the same learned Judge also held that the character,
 
 'SSf> DELAY IN TEANSPOKTATION OF GOODS. 
 
 duty, and responsilnlity of a carrier continnes to attach to a mas- 
 ter as long as he has charge of the goods. A master, says a 
 learned commentator, should always bear in mind that it is his 
 duty to convey the cargo to its place of destination. This is the 
 purpose for which he has been intrusted with it, and this pur- 
 pose he is bound to accomplish by every reasonable and practic- 
 able method. Every act that is not properly and strictly in 
 furtherance of this duty, is an act for which he and his owners 
 may be made responsible. His duty as carrier is not ended un- 
 til the goods are delivered at the place of destination, or are re- 
 turned to the possession of the shipper, or kept safely until the 
 shipper can resume their possession, or they are otherwise disposed 
 of according to law.' Where a loss or damage is shown, it is in- 
 cumbent upon the carrier to bring it within the excepted peril, 
 in order to discharge himself from responsil)ility. It is not suffi- 
 cient without more, to show that the vessel was stranded, to bring 
 the goods within the exception. Had the goods perished with 
 the wreck, it would be clear that the loss was the immediate con- 
 sequence of the stranding of the vessel; and assuming that the 
 disaster to the vessel was the result of the excepted peril, or of 
 some natural and inevitable accident, then the carrier wonld be 
 discharged." The rule has been otherwise stated in other courts, 
 and it has been held that where a vessel is stranded and disabled 
 from continuing her voyage, or waterlogged, — the carrier is only 
 responsible for the ultimate delivery of the goods, and for rea-- 
 sonable care in preserving the goods from the effects of storm, 
 bad air, of leakage and of embezzlement.^ The care demanded 
 under such circumstances of stranding or when, from any other 
 cause, the goods cannot be carried forward, is, it is said, such as a 
 prudent man of intelligence would have observed in taking care 
 of his own property under the same circumstances.* 
 
 Where delay is caused in the carriage of goods, it is a duty of 
 
 1 King v. ShepTierd, 3 Story, 349; Abbott, Shipping (8th ed.) 478. 
 
 « TJie Niagara v. Cordes, 63 U. S. 21 How. 7, 16 L. ed. 41. 
 
 3 Norway Plains Co. v. Bosto7i & M. R. Co. 1 Griiy, 263, 270, 61 Am. Dec 
 
 423, and cases cited. 
 <lSmyrl v. Niolon, 2 Bail. L. 421, 23 Am. Dec. 146.
 
 CAKE OF GOODS DUKING DELAY. 337 
 
 the carrier to take due care of them and, if necessary to prevent 
 damage — as where the goods have been wet — to remove them 
 from their packages and dry them, or any other necessary atten- 
 tion indicated by the character of the goods.' Tlie fact that a 
 carrier is not liable for damage to goods caused by a flood will 
 not exempt it from liability for negligence in failing to dry them, 
 especially where it had refused to surrender them to the owner 
 on his demand.* 
 
 AVhere a train of cars becomes obstructed by a snowstorm, so 
 that a part of them must be left behind without protection; and 
 the conductor is able to select the cars which shall be left and he 
 is advised, that one car contains goods which will be injured by 
 freezing, he is not — as a matter of law — bound to take that car 
 in preference to other cars — of the contents of which he knows 
 nothing;' but if a carrier cannot transport all the property re- 
 ceived, he may give preference to perishable property over that 
 known not to be perishable, — and this would be his duty.* Where 
 lemons and oranges were shipped on board a brig for Xew York, 
 and the master put into Lisbon for repairs which had become 
 necessary from encountering heavy gales, and the fruit was re- 
 packed the same day, but became worthless, the loss was thrown 
 on the owners of the fruit, as the course pursued by the master 
 was prudent and judicious.^ 
 
 But where, from any cause, the goods become damaged while 
 being carried with other miscellaneous cargo belonging to various 
 shippers, and largely exceeding the amount belonging to the one 
 shipper damaged, — as is the case in river navigation, — the carrier 
 cannot be required to suspend his voyage in order to care for 
 this particular shipment." 
 
 ' Chouteaux v. Leech, 18 Pa. 234. 57 Am. Dec. 602; Bird v. Cromwell, 1 Mo. 
 
 81, 13 Am. Dec. 470; Peck v. Weeks, 34 Coan. 145; Notaraw. Henderson, L. 
 
 R. 17 Q. B. 225. 
 ^Pearce v. The Thomas Newton, 41 Fed. Rep. 106. 
 ^Swetland v. Boston & A. R. Ccrrp. 102 Mass. 276. 
 
 * Marshall v. New York Cent. R. Co. 45 Barb. 502. 
 
 ^Lawrence v. Denbreens {"The Collenburg") 66 U. S. 1 Black, 170, 17 L. ed. 89. 
 
 • The Lynx v. King, 12 Mo. 272, 49 Am. Dec. 135; Notara v. Henderson, L. 
 
 R. 5 Q. B. 346, L. R. 7 Q. B. 225. 
 
 22
 
 338 DELAY IN TRANSPORTATION OF GOODS. 
 
 § 89. Contract to Deliver at Specified Date. 
 
 Tlie distinction between a contract and a duty created by law, 
 made in Paradine v. Jane, Aleyn, 26, in which the expulsion of 
 a tenant by alien enemies was held not to relieve from his agree- 
 ment, has been followed in a multitude of subsequent cases es- 
 tablishing the general doctrine that impossibility of performing 
 an absolute promise will not relieve from the obligation. Where 
 no express or implied provision as to the event of impossibility 
 can be found in the terms or circumstances of an agreement, a 
 supervening impossibility will not relieve the promisor from lia- 
 bility for failure to perform.' An express contract to carry 
 goods and deliver them within the prescribed time is not dis- 
 solved by the impossibility of performing it.* An inevitable 
 accident will not relieve a carrier from liability on an express 
 contract to deliver goods within a specified time.^ A railroad 
 company which contracts that a shipment delivered to it for 
 transportation abroad by its own line and a certain vessel shall 
 leave a certain port on a designated day is liable in damages for 
 the failure of the vessel to leave until a later day." 
 
 An embargo for an indefinite time will not dissolve, but only 
 suspend, the contract of a ship to carry goods." A hostile em- 
 bargo will not relieve from liability for breach of an express con- 
 tract to load a vessel." An embargo will not relieve from an 
 express warranty that a ship will sail on a certain day.'' Seizure 
 and confiscation of goods in transit on board a ship in a foreign 
 port on the ground that they are contraband goods will not re- 
 lieve a carrier from an express contract to carry and deliver them." 
 Refusal of the authorities to permit a vessel to receive a cargo on 
 
 ^ Sicitzer v. Pineonning Mfg. Co. 59 Mich. 488. 
 
 « Hand v. Baynes, 4 Whart. 204, 33 Am. Dec. 54; Place v. Union Exp. Co. 2 
 
 Hilt. 19. 
 3 Harmony v. Bingham, 12 N. Y. 99, 63 Am. Dec. 142. 
 ^Richmond & D. B. Co. v. Bedell, 88 Ga. 591. See Shulbnck v. Salmond, 3 
 
 Burr. 1637. 
 ' Hadley v. Clarke, 8 T. R. 259; Baylies v. Fettyplace, 7 Mass. 334. 
 "> Atkinson v. RitcJde, 10 East, 530. 
 '' Hore V. Whitmore, 2 Cowp. 784. 
 t' Spence v. Chodwick, 10 Q. B. 517.
 
 CONTRACT TO DELIVER AT SPECIFIED DATE. 339 
 
 board will not excuse an absolute enojagement to take it.' A ca^ 
 rier is not relieved from its obligation on a special contract of 
 shipment because the existence of a mob prevents its perform- 
 ance.* A strike of laborers does not relieve consignees from 
 liability for failure to unload a ship within the number of 
 days expressly fixed by the bill of lading. A strike of the 
 laborers of both the consignees and shipowners, who were 
 jointly charged with the duty of unloading, does not relieve 
 the consignees from liability for demurrage under a bill of lading 
 indorsed to them which fixes the number of lay days for unload- 
 ing and allows other days for demurrage, witliout making any 
 exception of strikes,^ and one who contracts to furnish a full" 
 cargo for a ship is not excused from performance because it is 
 difficult or even impossible.^ But the rule is otherwise where 
 there is no time fixed for completing the transportation, ° and the- 
 prior destruction of a vessel relieves from liability on a contract 
 to carry.* 
 
 The rule is that a carrier undertaking to deliver the goods at a 
 fixed time will not be excused, althougli the delay has been occa- 
 sioned by uncontrollable circumstances ;' yet, in order to enforce 
 the obligation, the shipper must not be chargeable with any de- 
 lay in furnishing the goods at the time agreed upon.* 
 
 The agent of a railroad company stipulating for the carriage of 
 goods within a limited time, if it be a reasonable one, may bind 
 the comjjany. But the mere statement by the agent of the usual 
 time within which goods reach the destination, will not amount 
 to a contract to deliver the goods within that time." In a con- 
 tract of a common carrier for the transportation of perishable 
 
 ' Holyoke v. Depew, 2 Ben. 334. 
 
 ^ White V. Missouri Pac. B. Co. 19 Mo. App. 400. 
 
 ^Budgett v. Bintiington [1891J 1 Q. B. 35. 
 
 * Nelson v. Odiorne, 45 N. Y. 489. 
 
 * See as illustrating that class of cases, International & G. N. JR. Co. v. Tis- 
 
 dale, 4 L. R. A. 545, 74 Tex. 8. 
 « Bonsteel v. Vanderbilt, 21 Barb. 26. 
 ' Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142. 
 8 Fowler v. Liverpool & G. W. Steam Co. 87 N. Y. 190. 
 ^Strohn v. Detroit & M. B. Co. 28 Wis. 126, 99 Am. Dec. 114.
 
 340 DELAY IN TKANSPOKTATION OF GOODS. 
 
 goods, a stipulation by the consignee to pay a sum in addition to 
 the regular freight if the property should be delivered by a cer- 
 tain date does not constitute an agreement to deliver the goods 
 by that date,' But it has been ruled that a statement of the 
 agent of the carrier in making a contract for shipment of perish- 
 able property liable to be injured by freezing as to the time re- 
 quired for transportation, has the force of a contract.* 
 
 § 90. Consequences of Delay. 
 
 If the carrier is guilty of negligence or unnecessary delay, un- 
 der some of the authorities, or of discrimination in forwarding 
 the goods, he cannot avail himself of the reservation in his favor, 
 if there is loss, through any excepted clause.' But it has been 
 ruled that the fact that through the delay of the carrier, goods 
 reached its depot at a time which exposed them to injury from a 
 flood, to which they would not have been exposed but for the de- 
 lay, will not render the carrier liable." A carrier's delay in not 
 forwarding a carload of goods which was burned on a side track 
 is not the proximate cause of the loss, and the carrier is not liable 
 therefor on account of such delay in shipment, where the fire 
 itself did not occur from any intervening cause that might have 
 been reasonably anticipated and apprehended, and was not due to 
 the carrier's negligence.' 
 
 Although the bill of lading should provide that the company shall 
 not be held liable " for damage to pei'ishable property of any kind 
 occasioned by delays from any cause," yet there may be liability in 
 respect of delay coming from actual negligence.' The carrier may 
 be liable for damage caused by the weather or rust, if occasioned 
 by its negligence, or by unreasonable delay upon the road — al- 
 though the goods were shipped at the owner's risk.^ Where a 
 
 ' Carr v. Schafer, 15 Colo. 48. 
 
 « Blodgett v. Abbott, 72 Wis. 516. 
 
 3 Hunneicell v. Taber, 2 Spraaue, 1; Keeney v. Grand Trunk R. Co. 47 N. Y. 
 
 525. 
 ^ Denny v. New York Cent. R. Co. 13 Gray, 481. 74 Am. Dec. 645. 
 "Reid V. Evansville & T. H. R. Co. (Ind. App.) Dec. 15, 1893. 
 ^Wabash, St. L. & P. R. Co. v. Jaggerman, 115 111. 407. 
 ' Western <& A. R. Co. v. E.vposition Cotton Mills, 2 L. R. A. 102, 81 Ga. 523.
 
 COJSSEQUENCES OF DELAY. 341 
 
 voyage is broken up by reason of the inexcusable delay of the 
 ship, resulting in damage to the shipper, he need not pay the 
 freight.' 
 
 Mere failure to give notice of detention by a flood will not ren- 
 der the carrier liable, where delivery was made as soon as possi- 
 ble, and notice would not have benefited the consignee.* If a 
 carrier claims that its liability to a shipper depends upon notice 
 of a given fact, it is incumbent upon it, when the notice was to 
 be given to one of its ofiicers or agents, to show that it had an 
 officer or agent at or near the place where the notice was to' be 
 given.^ The conrt was equally divided as to whether, under a 
 contract of carriage requiring written notice of loss or damage to 
 be given to the station agent at or nearest to the place of delivery 
 within a certain time after delivery of the goods, notice of loss 
 of part of the consignment should be given within the time lira, 
 ited, after the delivery of tlie goods which arrived safely.* A 
 carrier is not liable for damages arising from delay in shipment, 
 which result by reason of special circumstances known to it, un- 
 less such circumstances were known to it at the time the contract 
 of shipment was entered into.^ 
 
 Where delay is caused by the reckless act of a third party, the 
 carrier will not be liable unless it has made itself responsible by 
 express contract as an insurer to deliver within a limited time." 
 Mere delay of a common carrier in delivering goods delivered 
 to it for transportation does not amount to a conversion entit- 
 ling the consignee to refuse to receive them.' A carrier is liable 
 for loss upon nursery stock by its freezing, while it is withheld 
 from the consignee under an unjustifiable claim for freight in ex- 
 cess of that specified in the bill of lading issued by a connecting 
 carrier having a right to make a through rate, and which is ex- 
 
 ^Hoadley v. Ihe Lizzie, 39 Fed. Rep. 44. 
 
 « Norris v. Savannah, F. & W. R. Co. 23 Fla. 182. 
 
 3 Good V. Galveston, H. <& S. A. R. Co. (Tex.) 4 L. R. A. 801. 
 
 * Grand Trunk R. Co. v. McMillan, 16 Can. Sup. Ct. 543, 42 Am. & Eag. R. 
 
 Cas. 468. 
 5 Gulf, C. & 8. F. R. Co. V. Gilbert, 4 Tex. Civ. App. 3G9. 
 ^ Conger v. Hudson River R. Co. 6 Duer, 375. 
 ' Baumbach v. Gulf, C. c&S. F. R. Co. 4 Tex. Civ. App. 650.
 
 342 DELAY IN TRANSPORTATION OF GOODS. 
 
 liibited to its agent, although no tender or demand is made by the 
 consignee.' An intermediate carrier, holding goods awaiting the 
 arrival of a back bill of charges, will be hable for damages occa- 
 sioned by delay." The condition on the back of a through bill of 
 lading, relieving a railway company from responsibility as soon as 
 the goods have been delivered to the next succeeding carrier, is 
 legal and reasonable, and is binding on the shipper, who either 
 has, or from the circumstances is presumed to have, knowledge 
 thereof, and to have accepted the contract subject to such condi- 
 tion.' 
 
 The failure of the carrier to notify the consignee or the reve- 
 nue officer — where goods are subject to duty, and could only be 
 delivered into a bonded warehouse under the superintendence of 
 some revenne officer, upon written notice — and the goods are de- 
 stroyed by fire, the carrier will be held not to have been dis- 
 charged by the arrival of the goods at their destination.* But, 
 where the carrier is not in fault and the goods are damaged by 
 fire while awaiting the custom house officers, the railroad com- 
 jDany is not liable for their injury, as a common carrier.^ The 
 mere omission of a common carrier, to transport and deliver prop- 
 erty to the consignee within a reasonable time, does not neces- 
 sarily render it liable for its value. The consignee cannot refuse 
 and abandon the property when tendered, because of the delay, 
 and recover its full value, where there is no evidence of the re- 
 fusal to deliver, — or demand by the consignee. But, the carrier 
 is liable for the damages caused by unnecessary delay, where 
 there has been a deterioration and loss.° 
 
 The owner is entitled to a full indemnity, but not necessarily 
 to the full value of the goods, where they have been offered to 
 him and refused.' One claiming to be consignee, producing no 
 
 ' Milton V. Denver & R. G. R. Co. 1 Colo. App. 307. 
 « Michaels v. NewYork Cent. R. Co. 80 N. Y. 564, 86 Am. Dec. 415. 
 3 Beaumont v. Canadian Pac. R. Co. 5 Mont. L. Rep. (Sup. Ct.) 255. 
 . * Chicago & N. W. R. Co. v. Sawyer. 69 111. 285, 18 Am. Rep. 613. 
 » Milligan v. Grand Trunk R. Co. 17 U. C. C. P. 115. 
 ^Scovill V. Griffith, 12 N. Y. 509; Davis v. Garrett, 6 Ring. 716; Euis v. 
 
 Tur7ier, 8 T. R. 531. 
 ' Scovill V. Griffith, supra.
 
 CONSEQUENCES OF DELAY. 343 
 
 aiitliority from the consignor for the delivery of the goods to 
 him, — although they are marked with his initials — the goods not 
 being accompanied by a bill of lading or instructions, cannot 
 maintain an action against the carrier for failure to forward/ 
 
 Unless a carrier uses reasonable diligence in shipping goods, it 
 will be liable for damages resulting/ For delay in forwarding 
 goods, where no particular place of destination was named, the 
 end of the route of the carrier will be the place where the dam- 
 ages for delay are to be appraised/ The general rule is that 
 where goods are delivered in the usual way to a carrier for trans- 
 portation, and there is a negligent delay in delivering them, the 
 measure of damages is the diminution in the market value of the 
 goods between the time when they ought to have been delivered 
 and the time when they were in fact delivered/ To recover of 
 a common carrier damages for mere delay in performing the con- 
 tract of carnage, the value of such goods at the place of destina- 
 tion when they ought to have arrived should appear, and also 
 their value when they did arrive; the difference between these 
 values being generally the measure of damages/ 
 
 Where there has been delay, merely in the delivery of the 
 goods to the consignee by a common carrier, and not a conver- 
 sion of them, the measure of damages is ordinarily the difference 
 between the value of the goods when they were delivered and 
 when they should have been delivered, to which may be added 
 reasonable expenses caused by the delay/ These cases are put 
 upon the ground that the duty of the carrier is the measure of 
 his liability; that his duty is to carry the goods to the end of his 
 line, and that any future risks to which the goods may be ex- 
 posed are not within the contemplation of the parties or the 
 
 1 Fin7i V. Western B. Corp. 102 Mass. 283. 
 
 "^ Rome B. Co. v. Sullimn, 32 Ga. 400; Kent v. Hudson Biver B. Co. 22 Barb. 
 278. 
 
 3 Marshall v. Mw York Cent. B. Co. 45 Barb. 502. 
 
 '^ hujledew V . Northern B. Co. 7 Gray, 86; Oatting v. Orand Trunk B. Co. l;j 
 Alien, 381; Scott v. Boston & N. 0. SS. Co. 106 Mass. 408; Earoey v. Con- 
 necticut it P. B. Co. 124 Mass. 421. 26 Am. Rep. 673. 
 
 5 Atlanta & W. P. B. Co. v. Texas Orate Co. 81 Ga. 603. 
 
 ^Baltimore & 0. B. Co. v. Donnell, 49 Ohio St. 489; St. Louis, I. M. & S. B. 
 Co. V. Mudford, 44 Arli. 489.
 
 344 DELAY IN TKAN SPORT ATION OF GOODS. 
 
 scope of tlieir contract. But a different rule prevails where the 
 parties make a special contract which provides for certain risks 
 to which the goods are exposed on the connecting line. Thus 
 where the parties made a special contract by which the Boston & 
 Maine Railroad Company agreed to deliver apples to the Maine 
 Central Railroad by a fixed time, so that they would arrive in 
 Bangor in the afternoon of the 23d day of February, both par- 
 ties knew that the apples were not to be sold in Portland, but 
 were to be forwarded to Bangor; and the special contract was 
 made for the purpose of avoiding the danger of the apples freez- 
 ing on the connecting line. This risk was anticipated, and con- 
 templated by the parties; and if the danger which it was intended 
 to provide against was incurred by reason of the negligent failure 
 of the defendant to perform its contract, it ought to be respon- 
 sible in damages. The damages are not too remote. If the freez- 
 ing had occurred on the defendant's line, it cannot be doubted 
 that the law would regard the delay as the proximate cause of 
 the damage. It is none the less so because it happened on a 
 connecting line. The damage was not caused by any extraordi- 
 nary event, subsequently occurring, but was caused by an event 
 which was, according to the common experience, naturally and 
 reasonably to be expected — a change of temperature.' A car- 
 rier is liable to the sliipper for a fall in the market value of his 
 goods occasioned by delay which is due to the fault of the 
 carrier, where it was contemplated that the goods would be sold 
 at the first possible market day after an-ival.' 
 
 It is not necessary for the owner of freight to give the carrier 
 notice, at the time of shipment, that loss of wages paid the own- 
 er's employes will result from delay in delivering the same, in 
 order to recover the amounts so paid, in an action to recover the 
 statutory penalty for withholding the delivery of such freight on 
 payment of the freight charges shown by the bill of lading.' 
 
 A carrier who has been guilty of negligence and unreasonable 
 delay in forwarding a cargo, cannot escape liability for deteriora- 
 
 ' Fox V. Boston & M. R. Go. 1 L. R. A. 703, 148 Mass. 220. 
 
 2 The Caledonia, 43 Fed. Rep. 681. 
 
 3 Gulf, C. & S. F. B. Co. V. Loonie, 84 Tex. 259.
 
 CO^■SEQL"E^'CES OF DELAY. 345 
 
 tion thereof because of any advance in price during the delay. 
 The measure of damages is the difference at the time of delivery 
 between the value of the goods in sound condition and the actual 
 value in their damaged condition. A carrier cannot complain 
 that a cargo of prunes damaged by reason of his neglect in for- 
 warding them was not sold immediately on delivery where they 
 were sold within a month thereafter in an honest attempt to se- 
 cure the highest possible price; especially where it is not shown 
 that they would have brought more if they had been sold 
 earlier.' 
 
 A vessel is liable for the keep and loss of weight on cattle and 
 sheep during the delay in sailing after notice to the shipper that 
 she would sail on a certain day.' Fixed damages for every 24 
 hours delay on such a shipment, is only a limit upon the damages 
 for the delay and not for the injury to the shipment' So the risk 
 of injuries which animals may receive, and risk of loss by delay, 
 does not cover the loss in the market by a decline in their value." 
 J3ut a shipper of cattle cannot recover damages for delay in the 
 sailing of a vessel on which they are carried, if, after know- 
 ing of the delay, they could have been sold without loss.^ A 
 decree in admiralty, awarding damages to a shipper, will be 
 affirmed on appeal when it does not clearly appear on what 
 grounds the district court based its award, and the proof does not 
 clearly fail to show that the loss was caused by the master's neg- 
 lect to use proper means for saving the cargo.' "Where the car- 
 rier has violated his contract to furnish transportation at a fixed 
 time, the receipt by the shipper of a bill of lading for the for- 
 warding of the goods at a later day, does not waive his right of 
 action for such violation.'' 
 
 ' See Morrison v. /. & V. Florio SS. Co. 36 Fed. TJcp. 569, 
 
 « GoldsmUJi V. Tower Uill SS. Co. 37 Fed. Rep. 806. 
 
 ^ Place V. Union Exp. Co. 2 Hilt. 19. 
 
 '^Sisson V. Cleveland & T. R. Co. 14 Mich. 489, 90 Am. Dec. 253. 
 
 * Goldsmith v. Tower Hill SS. Co. 37 Fed. Rep. 806. 
 
 ' Bixby V. Deeman, 54 Fed. Rep. 718. 
 
 "•McAbsher v. Bichmoud & D. R. Co. 108 N. C. 344.
 
 346 DELAY IN TKANSPORTATION OF GOODS. 
 
 a. When Caused hy Strikers, etc. 
 
 A common carrier may lawfully sti}>ulate by special contract 
 for exemption from liability for loss occurring by reason of delay 
 in the transportation and delivery of goods, occasioned by a mob 
 or strike or threatened violence to person or property.* Delay in 
 the transportation of goods, which is caused solely by a mob, will 
 not render the carrier liable at common law to make good losses 
 arising from a decline in the market price, or from the deteriora- 
 tion in their quality on account of their perislial)le nature, during 
 time of transit.' A railroad company is not liable for a delay in 
 the delivery of goods shipped, due to the interference by strikers 
 and their confederates with the operation of its road.' 
 
 Where the evidence shows conclusively that the delay was oc. 
 casioned by no other cause than a vis major^ a strike and mob 
 violence of such magnitude as required the military forces of the 
 government to overcome, and which was not suppressed without 
 bloodshed, and the evidence not only fails to show any negligence 
 on the part of the carrier, but, on the contrary, does show that it 
 diligently endeavored to forward the shipment over the line of 
 road that was contemplated by both parties at the time of ship- 
 ment, and that, failing in that, because of the strike, it availed 
 itself of the first opportunity to forward them by the next most 
 practicable and expeditious route to their destination, there is no 
 resulting liability by reason of the delay." 
 
 AVhen misconduct of men acting unlawfully, such as incen- 
 daries, mobs, etc., delays the running of trains, the only duty 
 resting upon the carrier, if not otherwise in fault, is to use rea- 
 sonable diligence to overcome the obstacles interposed, and for- 
 ward the goods." A railroad company is not liable for a delay in 
 
 ' Gulf, C. & S. F. B. Co. V. Oatewood, 10 L. R. A. 419, 79 Tex. 89. 
 
 » Gulf, C. c6 S. F. R. Co. V. Levi, 8 L. R. A. 323. 76 Tex. 337. 
 
 ^ Missouri Pac. B. Co. y. Levi, (Tex. App.) Oct. 26, 1889. 
 
 " Gulf. C. & 8. F. B. Co'.y. Onteicood, 10 L. R. A. 419. 79 Tex. 89; Geifimer v. 
 
 Lake Sho^-e & M. S. B. Co. 102 N. Y. 563, 55 Am. Rep. 837; Hick v. 
 
 Bodocanachi [1891] 2 Q. B. 626; Haas v. Kaihsas Citij, Ft. S. & G. B. Co. 81 
 
 Ga. 792; Lake Shore & M. S B. Co. v. Bennett, 89 Ind. 457; Bartlett v. Fitls- 
 
 burg, C. dh St. L. B. Co. 94 Ind. 281. 
 « Geismer v. Lake Shore & M. S. B. Co. 102 N. Y. 563, 55 Am. Rep. 837; 
 
 Little V. Fargo, 43 Hun, 233; Hamilton v. Western, N. C. B. Co. 96 N. C. 398
 
 CONSEQUENCES OF DELAY. 347 
 
 transporting and delivering freight, caused by interference with 
 the operation of the road by strikers and their confederates.' A 
 carrier is not liable for delays in transportation occasioned by a 
 strike of its employes, accompanied by violence or intimidation 
 which it and the civil authorities are unable to prevent.^ 
 
 But neglect to use all reasonable means to secure the services 
 of new men, where it is possible to do this without peril, will ren- 
 der any exception in favor of the carrier in case of strikes or vio- 
 lent obstruction of traffic unavailable.' On this ground it was 
 ruled that a carrier is liable for injury to fruit from a delay in de- 
 livery, caused partly by a strike of some of its employes in which 
 there is neither violence nor lawlessness, and partly by the will- 
 ful disobedience of other employes retained by the company in 
 the performance of their duties." 
 
 ' Southern Pac. R. Co. v. Johnson (Tex. App.) 45 Am. & Eng. R. Cas. 
 
 338; Soutliern Pac. R. Co. v. Stell (Tex. App.) Jan. 18, 1990; Missouri Pac. 
 
 R. Co. V. Led (Tex. App.) Oct. 26, 1889. 
 2 LmmvlUe, & N. R. Co. v. Bell, 13 Ky. L. Rep. 393. 
 ^Blackstock v. Kew York & E. R. Co. 20 N. Y. 48; Pittsburg, Ft. W. & G R 
 
 Co. V. Hazen., 84 HI. 36, 25 Am. Rep. 422. 
 -» Central R. & Bkg. Co. v. Georgia Fruit & V. Exch. (Ga.) 55 Am. & Eng 
 
 R. Cas. 606.
 
 CHAPTER XII. 
 
 NEGLIGENT LOSS OR ILLEGAL CAPTURE OF CARGO. 
 
 § 91. Negligent Navigation — Collision. 
 
 § 92. Recovery for hijiiry to or Loss of Cargo. 
 
 § 93. Damages for Illegal Capture of Cargo. 
 
 § 94. Carrier may Recover for Loss of Cargo. 
 
 § P7. J\''egligent JVavigati on— Collision, 
 
 As the handling of vessels is undoubtedly attended with risk, 
 what would be ordinary care under less perilous circumstances 
 might be gross negligence in the management, particularly of 
 steam vessels.' A schooner which selected the hazardous passage 
 of the Kills, instead of the Narrows, without any necessity there- 
 for, and on being overtaken by a tug and tow, of which it had 
 full notice, was obliged, after passing in front on several tacks, 
 to luff and lose headway, and drop anchor in order to prevent 
 running into the tow, and was carried by the eddy tide on rocks, 
 — is liable for injury to the cargo caused by the stranding.^ To 
 navigate a steamboat by the use of an uninspected boiler, is to 
 maintain a nuisance, and in an action for damages caused by an 
 explosion of the boiler, proof that it was done in violation of an 
 express statute dispenses with the necessity of proving any other 
 negligence.' Innocent parties in case of a collision are entitled 
 to full compensation for the injuries received by their vessel un- 
 less it occurred by inevitable accident, provided the amount does 
 not exceed the amount or value of the interest of the other party 
 in the colliding ship, and her freight." 
 
 When a third party has sustained injury to his property from 
 the co-operating consequences of ordinary causes, though the per- 
 
 1 The-Syracme v. LangUy, 79 U. S. 12 Wall. 167, 20 L. ed. 383; Bill v. Smith,. 
 
 39 Conn. 206. 
 
 2 The Fred H. Rice, 40 Fed. Rep. 690. 
 ^VanNorden v. Robinson, 45 Hud, 567. 
 
 * The Virginia Ehrman v. Curtis, 97 U. S. 309, 24 L. ed. 890. 
 
 348
 
 NEGLIGENT NAVIGATION — COLLISION. 349 
 
 sons producing them maj not, by any intentionally concerted ac- 
 tion, cause such a result, the injured person is entitled to compen- 
 sation for his loss from either one or both of them according to 
 the circumstances ; and particularly so from the one of the two 
 who had undertaken to convey the property with care and skill 
 to the place of destination, if there shall have been, in doing so, 
 a deficiency in either.' In cases of collision, the immediate cause 
 of the injury will not limit the evidence to the causa causans.^ 
 Where, however, the misconduct has been on the part of both 
 vessels, by the admiralty law, the owners of the ship and cargo 
 can only recover a moiety of the damages which they have re- 
 spectively sustained.' It would follow, therefore, that, as the 
 owner of the cargo is not identified with the negligence of the 
 ship in fault in a collision/ he may recover a moiety of the dam- 
 ages against the owner of the ship who has negligently come in 
 collision with the ship containing his goods, notwithstanding his 
 ship was equally negligent, and also recover his costs.* 
 
 Inevitable accident, as in cases upon land, is a good defense to 
 an action for negligence in the management of a ship,' Yet, if 
 the defendant's negligence partly contributed to the ultimate acci- 
 dent, the accident itself will not constitute a defense.' Extraor- 
 dinary jirecautions are not demanded by extraordinary circum- 
 stances whether of weather or of any other character.* But 
 where the one injured has done all this and exercised such skill 
 as would be exercised by a reasonable man and after looking at 
 
 1 Camden & A. R. & Transp. Co. v. Brmty, 66 U. S. 1 Black, 62, 17 L. ed. 84. 
 '^ Chartered Mercantile Bank of India v. JVeiherlands India S. Ifav. Co. L. R. 
 
 10 Q. B. Div. 521; Lloyd v. General Iron Screw Collier Co. 3 Hurlst. & C. 
 
 284, 33 L. J. Exch. 269. 
 3 The Milan, Lush, Adm. 388, 31 L. J. Adm. 105. 
 
 •* The Milan, supra; Chartered Mercantile Bank of India v. Netherlaiids India 
 
 S. j\av. Co. sup)ra. 
 6 The City of Manchester, 5 Prob. Div. 221. 
 « TheVirgil, 2 W. Rob. Adm. 205; The Marpesia, L. R. 4 C. P. 212; TIte Thorn 
 
 ley, 7 Jur. 659; The Shannon, 2 W. Rob. Adm. 463. 
 ■• Austin V. JVeie Jersey S. B. Co. 43 N. Y. 75, 3 Am. Rep. 663; Bomney Marsh 
 
 V. Trinity House, L. R. 5 Exch. 208. 
 « The Ligo, 2 Hagg. Adm. 356; The Qirolamo, 3 Hagg. Adm. 169; The Perth, 
 
 3 Hagg. Adm. 414; The Itinerant. 2 W. Rob. Adm. 236; The Northampton, 
 
 1 Spinks, 152; The Virgil, 2 W. Rob. Adm. 205.
 
 350 NEGLIGENT LOSS OR ILLEGAL CAPTURE OF CARGO. 
 
 the result itself, it is seen that a different line of conduct might 
 have prevented the collision, this will not render his vessel liable.' 
 The maritime law regards a ship as responsible to third persons 
 for her proper navigation, by whomsoever conducted. And when 
 they are injured by faulty navigation of a vessel, it is immaterial 
 what arrangements the owners of the offending vessel may have 
 made in respect to her navigation, — whether by a master and crew 
 engaged by themselves, or by a master and crew engaged by a 
 charterer, to whom the vessel may have been let by a contract 
 of charter, or by a tugl)oat with which the owners may have con- 
 tracted for the navigation of the vessel from one place to another.' 
 A vessel approaching another must allow a slight margin for the 
 contingencies of navigation,* and should keep her course till the 
 other acts intelligibly so as to give some notice of her intentions.* 
 A schooner having but two men on deck in a dense fog is 
 guilty of negligent navigation.* Six knots is an immoderate 
 speed for a schooner in a dense fog. Nearly 7 knots is too great 
 a speed in a dense fog for a steamer.^ A steamer which goes at 
 the rate of 7 knots, while entering the port of New York near 
 the Homer shoals proceeds at her own risk in a fog so dense that 
 a pilot boat cannot be seen more than 100 yards away, and which 
 has no other lookout than the mate, who is occupied with other 
 duties and it is at fault for a collision with a pilot boat which is 
 able to see the steamer from 1000 to 1300 feet away.' A schooner 
 being towed through a narrow position having the wheelman's 
 view obstructed, should keep a lookout." The right of way is 
 not the right to run into unnecessary collision." When there is 
 risk of collision, the boat having right of way must stop and back." 
 
 ' Doxcard v. Lindsay, L. R. 5 C. P. 338. 
 
 2 The Doris Eckhoff, 32 Fed. Rep. 555. 
 
 ^ Wells V. Armstrong, 29 Fed. Rep. 216. 
 
 * The B. C. Terry, 80 Fed. Rep. 711. _ - 
 
 6 The Nacoochee, 24 Blatchf. 99, 28 Fed. Rep. 462. 
 
 « The Wyanoke, 40 Fed. Rep. 702. 
 
 ' The Orizaba, 57 Fed. Rep. 247. 
 
 >> The Raritan, 32 Fed. Rep. 847. 
 
 9 The Baltimore, 34 Fed. Rep. 660. 
 
 '» The C. H. Seuff, 32 Fed. Rep. 237.
 
 NEGLIGENT NAVIGATION COLLISION. 351 
 
 One vessel brouglit into immediate jeopardy by another's fault is 
 not liable, even if she has not been mancBuvered with proof of 
 skill and presence of mind.' By a dangerous exposure is meant 
 not the mere possibility of injury through some mischance, not 
 reasonably likely to occur, but an exposure that is clearly liable 
 to receive or inflict injury in the ordinary chances, mistakes, and 
 hazards of navigatioii, such as are to be reasonably apprehended 
 as liable to arise/ Where it is shown that some controlling rule 
 of navigation has been disregarded, if such neglect could possibly 
 have contributed to the injury, it will fix the liability/ 
 
 Infringement of the regulations for preventing collision which 
 will make a vessel liable for a collision under the English Mer- 
 chant Shipping Act of 1S73 (36 & 37 Yict. chap. 85) § 17, must 
 have some possible connection with the collisiou.* Stopping a 
 vessel in accordance witli a rule of navigation is not a fault in the 
 master, althougli it directly contributes to produce a collision. 
 A steamer is at fault for a collision with another in a dense fog, 
 where, after becoming aware of the latter's near proximity and 
 exchanging signals, she continues at her ordinary speed without 
 being under command, so as to be able to stop, after sighting the 
 latter, until too late to avert the disaster.' It is in fault for a 
 collision in going ahead, instead of reversing and backing, 
 when the collision is apparently imminent and slie is under com- 
 mand, although by doing so, with the wheel hard-a-port, the other 
 vessel strikes the timbers of the paddle box so as to make them 
 a fender and prevent the former from sinking, since by placing 
 the helm in a proper position and going astern her timbers would 
 have served as a guard and the same result have been attained, if 
 the collision was inevitable.^ 
 
 A steamer which, contrary to the usual course of vessels in 
 descending a certain stream, attempts to go through a strong 
 and well known eddy in approaching her landing, instead of 
 
 • The Maggie J. Smith v. Walker, 123 U. S. 349, 31 L. ed. 175. 
 
 2 The Mary Powell, 31 Fed. Rep. 623. 
 
 ^ The Arklow, L. R. 9 App. Cas. 136. 
 
 ^ Eastern 88. Co. v. Smith [1891] App. Cas. 310. 
 
 ' The George E. Starr, 47 Fed. Rep. 749.
 
 352 NEGLIGENT LOSS OK ILLEGAL CAl'TUKE OF CARGO. 
 
 going around it and approaching the landing with lier head a 
 little up stream, is liable for injuries resulting from running into 
 a vessel moored at her wharf, although just before the collision 
 her helm becomes unmanageable without her fault.' A vessel is 
 not at fault for not changing the course required by the rules on 
 meeting another, where the other changes her course when the 
 rules require her to hold it and a collision appears imminent, 
 since it cannot be known but that the other will realize her mis- 
 take and alter her helm accordingly; but stopping and reversing 
 is the proper action in such case. A steamship seeing the lights 
 of another steamer in a position indicating that the vessels are 
 meeting end on is not at fault in porting her helm, although the 
 vessels were in fact on crossing courses, she having the other on 
 her starboard bow, since in the latter case she is required to keep 
 out of the way of the other, and may do so by altering her course 
 to starboard." 
 
 Error in a vessel which has just escaped a dangerous collision 
 with another which sheered across her course and went aground, 
 in taking too little space astern of the other, so that in coming ofi 
 a second collision ensues, will not render her responsible for such 
 collision. A fault oh the part of a colliding vessel which does 
 not cause or contribute to the collision does not render her re- 
 sponsible therefor. A steamship under steam and also in tow ol 
 a tug, which suddenly sheers across the course of a swifter vessel 
 coming up astern is responsible for the collision ensuing. A 
 slow vessel cannot compel a swifter vessel to keep astern, where 
 it appears to the master of the latter that the former, if properly 
 navigated, cannot get in his way.' 
 
 A steamship whose sjjeed is reduced by accident to her ma- 
 chinery from 11 to 3 or 4 knots, but whose steering power is not 
 otherwise affected, is not "not under command" so as to make 
 proper the carrying of three red lights, under the English Reg- 
 ulations for Preventing Collisions at Sea, art, 5, subs, {a) and is 
 responsible for a collision occurring when carrying such lights; 
 
 ' The J. E. Trvdeau, 48 Fed. Rep. 847. 
 
 2 The Thingmlla, 48 Fed. Rep. 764. 
 
 3 The City of Macon, 47 Fed. Rep. 919.
 
 NEGLIGENT NAVIGATION COLLISION. 353 
 
 especially when she does not exhibit the side lights required by 
 subs, (c) to be exhibited when making way.' The claim of the 
 master of a steamer in collision with another, that the collision 
 was due to the putting of the wheel of the latter hard aport, 
 with her engine driving her ahead, so as to force her laterally 
 against the former s stem, is sufficiently shown to be fallacious 
 by the failure of his own vessel to act in that manner under the 
 same conditions.' A steamer will be held liable for a collision 
 nearly head on with a schooner, where the evidence shows that 
 no vigilant attention was paid to the latter by the former, while 
 those on board the latter were vigilant, attentive, and careful, 
 and the steamer was so navigated that each colored light was 
 alternately brought into view, although the angle of collision was 
 such that there may have been some change of course by the 
 schooner in extremis.^ The sudden luffing of a sloop at a time 
 when nothing could prevent a collision will not relieve a steamer 
 which, with abundant room on either side, has come so close as 
 to cause the collision, from liability for the whole damage occa- 
 sioned.* 
 
 Of two sailing vessels meeting nearly head on, one sailing close 
 hauled is at fault for a collision in gradually changing her course 
 until she heads so as to thwart the effect of the change made by 
 the other to avoid her, and continuing on such course until with- 
 in a few lengths of the other vessel, when slie makes a hnal luff; 
 but the other is also at fault, where after her change of course 
 she sees that the light of the former does not change its bearing 
 materially, since such fact should make it evident that she is not 
 keeping out of the track of the former so as to avoid collision." 
 The custom of vessels of the same size and character to navi- 
 gate the waters of a harbor in a certain manner and at a certain 
 speed, and the fact that the wave produced does not exceed that 
 produced by a high wind, will not relieve an ocean steamship 
 
 1 The P. Caland [1892] Prob. 191. 
 
 s The George E. Starr, 47 Fed. Rep. 749. 
 
 2 The Minnie Smith, 57 Fed. Rep. 251. 
 4 The Santee, 48 Fed. Rep. 126. 
 
 ^ Ihe Gypsum Prince, 57 Fed. Rep. 859. 
 23
 
 354 NEGLIGENT LOSS OB ILLEGAL CAPTURE OF CARGO. 
 
 from liability for damages occasioned to smaller vessels navigat- 
 insr the harbor under circumstances otherwise rendering it safe 
 for them so to do, by the wave produced by her motion.' 
 
 By a contract for towage services a tug does not become charge- 
 able with the liability of a common carrier, but only with the duty 
 of exercising ordinary care and skill in performing the services.' 
 The master of a tug cannot be held negligent, as matter of law, 
 in not anchoring his tow, where the evidence is conflicting as to 
 whether a haze existed, and whether under the conditions of the 
 weather it would have been safe to j)roceed upon the course, but 
 the question should be submitted to the jury.' A tug towing in 
 a harbor is not bound to turn the stern of its tow to the swells 
 cast by an overtaking steamer.* A tug with a tow is responsible 
 for a collision resulting from her failure to port her helm after 
 the exchange of one whistle, importing that the boats would pass 
 port to port, with a steam yacht which she meets in the eastward 
 channel of Hell Gate at a point where there is room to do so with 
 safety.* 
 
 Any fault for a collision in a channel 800 feet wide across 
 which the tide sweeps is that of a tug which, having insufficient 
 power, undertakes to haul two rafts of logs extending 900 feet 
 astern, with knowledge of the course, direction, and force of the 
 tide and the danger of its navigation, rather than that of a foreign 
 sailing vessel in charge of a local pilot, which enters the channel 
 when the tug and tow are on the opposite side from that taken by 
 her and there is no visible obstruction.' A vessel in tow of a tug 
 by a hawser is liable, to the exclusion of the tug, for damages 
 from a collision produced by her not following the course of the 
 tug closely, where the latter kept in the proper channel.' A 
 steamer with vessels in tow is not guilty of negligence in continu- 
 
 1 The Majestic, 48 Fed. Rep. 730. 
 
 2 The A. B. Robinson, 57 Fed. Rep. 667. 
 » Tebo V. Jordan, 67 Hun, 392. 
 
 ■» The Majestic, supra. 
 
 5 The Peerless, 48 Fed. Rep. 844. 
 
 « Tlie Carl Oustaf, 53 Fed. Rep. 846. 
 
 "" The Ciampa Amelia, 46 Fed. Rep. 866.
 
 NEGLIGENT NAVIGATION — COLLISION. 355 
 
 ing her voyage after rounding to in a storm of uncertain duration 
 for the purpose of righting herself and readjusting lier deckload.* 
 A tug proceeding down stream in a swift current, towine: a loaded 
 barge at the rate of 6 miles an hour, and obliged to go 4 miles an 
 hour to retain steerage way, is at fault for a collision with a steam 
 barge which she perceives coming around the lower end of an 
 island, a half mile away, and which signals that she will pass to 
 port between the tug and the island, in failing to starboard her 
 helm and give the barge more room, when it becomes evident 
 that she is having difficulty in making the turn and is making a 
 wide detour. A steam barge which, upon rounding the lower 
 end of an island, with the intention of proceeding up etream in 
 the other channel, undertakes to change the rule of the road and 
 pass to the left of a tug with tow coming down stream, is respon- 
 sible for a collision resulting from her inability to make the turn, 
 — especially where, after finding out her inability, she does not 
 signal to pass on the starboard side, or stop, or reverse.* 
 
 Lights on the outside of a tow alongside of a tug are not re- 
 quired where the tug exhibits the usual colored lights and vertical 
 masthead lights.' A tug which, having another steamer upon its 
 starboard bow, persists in attempting to cross the latter's bow, in- 
 stead of keeping out of the way as required by Rule 19 (U. S. 
 Rev. Stat. § 4233), and thereby brings about a collision, while the 
 other steamer keep on its course as required by Rule 23, after 
 having signaled its intention, is liable for the damages caused by 
 the collision.* A canal boat fastened outside other boats, in a 
 manner sufficient for all ordinary contingencies, under such cir- 
 cumstances that lines could not be carried to the piers, is not 
 liable for injuries occasioned by her being forced into collision 
 with another boat by a tier of boats breaking loose and driving 
 against her with sufficient force to break her fastenings, — especi- 
 ally when, had she had a line to the pier, it would probably have 
 
 ' The Wilhelm, 52 Fed. Rep. 602. 
 
 2 The Canisteo, 47 Fed. Eep. 908. 
 
 3 The Senator D. C. Chase, 46 Fed. Rep. 874. 
 * TJie Emma Kate Boss, 46 Fed. Rep. 872.
 
 356 NEGLIGENT LOSS OR ILLEGAL CAPTDKE OF CARGO. 
 
 been broken.* A large steamer in tow of two tugs, having her 
 master and crew on board and at their stations and participating 
 in the navigation, is jointly liable with the tugs for collision pro- 
 duced by unskillful or negligent navigation ; especially where the 
 order immediately occasioning the collision was given by her 
 master, although the pilot of one of the tugs was on board.'' 
 
 A vessel injured by a collision has no lien on the cargo of the 
 other vessel. In case of collision the cargo cannot be appropri- 
 ated to equalize the loss between the two vessels, although it may 
 belong to the owner of one of them. If the owner is his own 
 freighter, he must abandon the amount of the freight, which he 
 would have paid upon another vessel, according to the price cur- 
 rent, but he is not lial)le if the abandoned cargo belong to him- 
 self.' Neither a wreck nor its owners are liable for a collision 
 with her while she lies in a harbor in a position dangerous to nav- 
 igation, without sufficient lights, where the port authority has un- 
 dertaken the duty of indicating her position so as to secure ships 
 entering the harbor from danger of collision. A ship entering a 
 harbor in which a sunken wreck lies without sufficient lights is 
 not answerable for a collision with such wreck, where she acts 
 with reasona1)le care and skill upon discovering her peril.* 
 Neither Federal nor state statutes, require the owner of a canal 
 boat sunken in the New York channel, to remove it.* 
 
 § 92. Recovery for Injury to or Loss of Cargo. 
 
 Where two vessels, both being in fault, injure a third, a decree 
 should be for one half the damages against each, so far as its 
 separate value extends, and if one half cannot be collected from 
 one, then that the other vessel pay it, to the extent of her sepa- 
 
 » The Nora Costello, 46 Fed. Rep. 869. 
 
 « The Express, 46 Fed. Rep. 860, 
 
 3 The Bristol, 29 Fed. Rep. 867. 
 
 * The Utopia v. The Primula [1893] App. Cas. 493. 
 
 ^Ball V. Berwind, 29 Fed. Rep. 541.
 
 RECOVERY FOR INJURY TO OR LOSS OF CARGO. 357 
 
 rate value, beyond the half due from her.' The libellant is not 
 bound to join both vessels at fault, nor is his recovery limited to 
 one half the damages against each.'^ Damages are not apportioned 
 in cases of mutual fault as against a third j^erson who suffers loss 
 by collision. Owners of the innocent tow or its cargo may pro- 
 ceed against the two vessels jointly or either of them severally for 
 his entire loss. In such case it is no defense that the other vessel 
 was more grossly at fault.' 
 
 The rule of damages in case of goods lost or destroyed on the iiigh 
 seas by the fault of those in charge, is the price or value of the 
 goods at the time and place of shipment, and all charges of lad- 
 ing, insurance and transportation, and interest at six per cent per 
 annum ; but without any allowance for the anticipated profits.'' 
 Interest is allowed in admiralty for damages in collision, and 
 other courts have adopted the admiralty doctrine.^ The same 
 principle has been applied in other cases in the negligent destruc- 
 tion of property.* 
 
 Where the goods have no market value at the place of ship- 
 ment, the rule of damages is their actual value, such as the price 
 they usually bring at the port of destination, with a fair deduc- 
 tion for profits and charges.' The market price at the port of 
 
 ' TTie Alabama v. De La Cam,<>, 92 TJ. S 695, 23 L. ed. 763, reversing 11 
 
 Blatchf. 482; The City of Hartford v. Rkkout, 97 U. S. 323, 24 L. ed. 930; 
 
 The D. S. Gregory,, 2 Ben. 220; The Monitor, 3 Biss. 25; The Sterling v. 
 
 Petersen, 106 U. S. 647, 27 L. ed. 98; The George Washington v. Cavan, 
 
 76 U. S. 9 Wall. 513, 19 L. ed. 787. 
 2 Phanix Ins. Co. v. The Atlas, 93 U. S. 302, 23 L. ed. 863, reversing 10 
 
 Blalchf. 459, reaffirmed in 4 Ben. 27. 
 2 The Franconia, 16 Fed. Rep. 149. 
 * National Steam Nav. Co. v. Dyer {"The Scotland") 105U. S. 24, 26 L. ed. 100- 
 
 The Telegraph v. Gordon, 81 U. S. 14 Wall. 258, 20 L. ed. 807; Smith v. 
 
 Condry, 42 U. S. 1 How. 28, 11 L. ed. 35; The Mary J. Vaughan, 2 Ben. 
 
 47; The Joshua Barker, Abb. Adm. 215; The Ocean Queen, 5 Blatchf. 495; 
 
 Dyer v. National Steam Nav. Co. 14 Blatchf. 483, 24 Int. Rev. Rec. 198. 
 ^Frazer v.Bigelow Carpet Co. 141 Mass. 126; Straker v. Hartland, 2 Hem. & 
 
 ]\I. 570; The Arnalia, 34 L. J. Adm. 21; The Dundee, 2 Hagg, Adm. 137; 
 
 The Mary J. Vatighan, 2 Ben. 47; Parrott v. Knickerbocker Ice Co. 46 N. Y. 
 
 361 ; MaiUer v. Express Propeller Line, 61 N. Y. 312. 
 6 Chapman v. Chicago & N. W. R. Co. 26 Wis. 295, 304, 7 Am. Rep. 81; San- 
 born V. Webster, 2 Minn. 323; Lawrence R. Co. v. Cobb, 35 Ohio St. 94. 
 ''National Steam Nav. Co. v. Dyer {"The Scotland") 105 U. S. 24, 26 L. ed. 
 
 101.
 
 358 NEGLIGENT LOSS OK ILLEGAL CAPTUKE OF CAKGO. 
 
 delivery, is tlie measure of damages, where it appears tliat the 
 collision prevented the delivery.' Expected protits, except where 
 the accident was intentional or malicious, are not allowed,' but in 
 cases of willful and malicious collision, expected profits may be 
 allowed, as exemplary damages." Where a vessel is destroyed by 
 a collision, the measure of damages is the value of the vessel and 
 freight.* But the full value of a vessel and cargo cannot be re- 
 covered where the vessel may be raised and the cargo saved.' 
 
 § 93. Damages foi^ Illegal Capture of Cargo. 
 
 In cases of illegal capture the probable profits of an unfiuished 
 voyage broken up are not an item of damages." The measure of 
 damages is the value of the property injured or destroyed, and 
 interest from the time of the trespass, with ten per cent added 
 where sale was under disadvantageous circumstances or not at port 
 of destination.' It is the same principle as in cases of collision.* 
 At port of destination, ten per cent is not added.' Insurance is 
 sometimes a proper item." In willful collision there may be puni- 
 tive damages." In cases of capture made without probable cause 
 the court may decree damages and costs against the captors on 
 
 ' The Joshua Barker, Abb. Adm. 215. 
 * The Harriet Newhall, 3 Ware, 105. 
 
 3 Tlie Newliall, mpra; Bahton v. The State Rights, Crabbe, 22. 
 
 4 Th£ Ann Caroline v. Wells, 69 U. S. 2 "Wall. 538. 17 L. ed. 833; The Rebecca, 
 
 Blatchf. & H. 347. 
 
 6 TJie Baltimore v. Rowland, 75 U. S. 8 Wall. 377, 19 L. ed. 463. 
 
 « The Lively, 1 Gall. 325; The Anna Maria, 15 U. S. 2 Wheat. 327, 4 L. ed. 
 252; The Amiable Nancy, 16 U. S. 3 Wheat. 546, 4 L. ed. 456. 
 
 i Del Col. V. Arnold, 3 U. S. 3 Dall. 333, 1 L. ed. 624; La Amistad de Rues, 18 
 U. S. 5 Wheal. 385, 5 L. ed. 115; Tlie Amiable Nancy, supra. 
 
 ^Williamson v. Barrett, 54 U. S. 13 How. 101, 14 L. ed. 68; Smith v. Condry, 
 42 U. S. 1 How. 28, 11 L. ed. 35; The New Jersey, Olcott, 444; The Narra 
 gansett, Olcott, 246. 
 
 9 Arthur v. The Cassius, 2 Story, 81. 
 
 JO The Anna Maria, 15 U. S. 2 Wheat. 327, 4 L. ed. 253. 
 
 " Ralston v. The State Rights, Crabbe, 22.
 
 DAMAGES FOR ILLEGAL CAPTUEE OF CARGO. 359 
 
 restitution.* In cases of recapture, the owners may recover dam- 
 ages for seizure without grounds.' 
 
 Where the captors consented to restitution, demurrage for the 
 ■detention was allowed.' Demurrage and interest are both allowed 
 in the courts, with no allowance for loss of profits." Demurrage 
 is given for unjustifiable delay by the captors in proceeding to 
 adjudication, but no allowance is made for loss of profits.^ De- 
 murrage includes reasonable expenses of agent of owners to care 
 for property." 
 
 Where the property has been sold and no account of sales ren- 
 dered, the damages are the prime cost, and ten per cent profit. 
 Where there is an account of sales this is generally the basis of 
 the decree.^ But where a cargo of coal lying at the bottom of 
 Lake Michigan was raised by the owners of the vessel acting un- 
 der the advice of counsel, after notice by the owner of the coal 
 of his claim of title, and was disposed of in Chicago at private 
 sale, the owner of the cargo was entitled to recover its value, less 
 the necessary expense of raising it and carrying it ashore by the 
 most improved appliances for that purpose." 
 
 The captors are substituted for the owners, and are liable for 
 the freight and caj*go, and in case of restitution, the neutral car- 
 rier is entitled to freight, where the capture prevented the vessel 
 from earning the same ;' but not if the property was ultimately 
 
 > Glass V. The Betsey, 3 U. S. 3 Ball. 16, 1 L. ed. 489; The Isabella Thompson 
 
 V. United States, 70 U. S. 3 Wall. 155, 18 L. ed. 55. 
 ^Miller v. The Resolution, 2 U. S. 2 Dall. 19, 1: 263; The British Consul ^r. 
 
 Tliompson, Bee, 144; The Nemesis, Edw. Adm. 50; The Hoppet, Edw. Adm. 
 
 369; The Mercurius, 1 C. Rob. Adm. 80. 
 3 The Gorier Maritimo, 1 C. Rob. Adm. 241; The Zee Star, 4 C. Rob. Adm. 71; 
 
 The St. Juan Baptisia, 5 C. Rob. Adm. 36. 
 * Talbot V. Jansan, 3 U. S. 3 Dall. 133, 1 L. ed. 540; The Lively, 1 Gall. 322. 
 
 ^Maley v. Shattuck, 7 U. S. 3 Cranch, 458, 2 L. ed. 498; The Gorier Maritimo, 
 
 supra; The Zach^man, 5 C. Rob. Adm. 152. 
 « United States v. The Nuestra Senora de Begla, 108 U. S. 92, 27 L. ed. 662. 
 ' The Lucy, 3 C. Rob. Adm. 208; The Narcissus, 4 C. Rob. Adm. 17; The Lively, 
 
 mpra: Tlie GathaHne v. Dickinson, 58 U. S. 17 How. 170, 15 L. ed. 233; The 
 
 Empire State, 2 Ben. 179. 
 ^Murphy v. Dunham, 38 Fed. Rep. 503. 
 « The Frances, 12 U. S. 8 Cranch, 418, 3 L. ed. 609; The Societe, 13 U. S. 9 
 
 Cranch, 209. 3 L. ed. 707: The Antonia Johanna, 14 U. S. 1 Wheat. 159, 4 
 
 L. ed. 60; The Gommercen, 14 U S. 1 Wheat. 382, 4 L. ed. 118, 2 Gall. 264; 
 
 The Ann Green, 1 Gall. 294.
 
 360 NEGLIGENT LOSS OK ILLEGAL CAPTURE OF CARGO. 
 
 bound to the same market where the captors carried the ship,' 
 nor where the ship is carrying contraband ; ^ nor where the car- 
 rier is guilty of fraudulent suppression or spoliation of ]mpers ; * 
 nor where he has engaged in the coasting or colonial trade of the 
 enemy/ 
 
 Full freight will be decreed although only part of the goods 
 was received, if the loss is owing to the negligence of the prize 
 master/ The captor takes the prize cum onere and in ordinary 
 cases, freight is a privileged lien.* On an illegal seizure, the orig- 
 inal wrongdoers may be made responsible, beyond the loss actu- 
 ally sustained, in case of gross and wanton outrage ; but the own- 
 ers of the privateer, who are only constructively liable, are not 
 bound to the extent of vindictive damages.' 
 
 § 94- Carrier May Recover for Loss of Cargo. 
 
 The owner and master is the bailee of the cargo, and so respon- 
 sible to the shippers or insurers for the safe transportation and 
 delivery thereof ; and to fulfill his obligations and secure his re- 
 ward, he is entitled to possession and may maintain an action for 
 its destruction.* The owners of a vessel wrongfully injured by a 
 collision may recover for injury done to the cargo,° to its full value 
 if totally lost."" 
 
 The delivery of goods to a carrier for transportation vests in 
 him a special property which authorizes him to maintain an action 
 
 ' TheVrmo Eenrica, 4 C. Rob. Adm. 343; The Ann Green, supra. 
 
 2 The Commercen, 14 U. S. 1 Wheat. 382, 4 L. ed. 118, 2 Gall. 264; The Mer- 
 
 curius, 1 C. Rob. Adm. 80; The Sarah Christina, 1 C. Rob. Adm. 237. 
 ^ The Commercen, supra. 
 ^ The Immanuel 2 C. Rob. Adm. 186; The Minerva, 3 C. Rob. Adm. 34; Tlie 
 
 Anna Catharina, 4 C. Rob. Adm. 107. 
 
 * The Der Mohr, 3 C. Rob. Adm. 129. 
 
 * The Bremen Flugge, 4 C. Rob. Adm. 90; The Vrow Henrica, 4 C. Rob. 
 
 Adm. 347. 
 
 ' The Amiable Nancy, 16 U. S. 3 Wheat. 546, 4 L. ed. 456. 
 
 ^ Commercial Transp. Co. v. Fitzhuqh, 66 U. 8. 1 Black, 583, 17 L. ed. 110; 
 Newell V. Norton, 70 U. S. 3 Wall. 267, 18 L. ed. 273. 
 
 ' Commercial Transp. Co. v. Fitzhugh, snpra; La Tourette v. Burton (" The 
 Commander-in-Chief") 68 U. S. 1 Wall. 43, 17 L. ed. 609. 
 
 '" The Narrangansett, Olcott, 255; The Russia, 3 Ben. 479; La Tourette ^.Bur- 
 ton, supra.
 
 CARKIEE MAY RECOVER FOR LOSS OF CARGO. 361 
 
 against any person who disturbs his possession or does any injury 
 to the goods. Every bailee has a temporary qualified property in 
 the thing of which possession is delivered to him by the bailor 
 which entitles him to maintain an action against any stranger who 
 injures it ; and the reason is because he is answerable over to the 
 bailor, and ought not to be responsible for the loss without being 
 able to resort to the person who was the original cause of the in- 
 jury.* A carrier by vessel for hire, whether strictly a common 
 carrier or not, assumes the ordinary obligations of a common car- 
 rier, and is bound to carry the goods shipped to their destination 
 unless prevented by the act of God, or the public enemy, or the 
 act of the shipper, or one of the excepted pei'ils expressed in the 
 contract of shipment.^ It is just, therefore, that he should be 
 permitted to indemnify himself from a wrongdoer against his lia- 
 bility to the shipper or owner. 
 
 In prosecuting the suit against the wrongdoer the carrier does 
 not assume to act as an agent for the owners of the cargo, but he 
 claims to recover the value of the goods lost by virtue of his spe- 
 cial property in them as a carrier. It is familiar law that the 
 special right of property conferred by a bailment is sufficient to 
 enable the bailee to recover the full value of the property of a 
 wrongdoer who destroys it — and this whether the bailment is for 
 a consideration, or is merely a naked bailment. Thus a traveler 
 was allowed to recover in trover against a steamboat company the 
 full value of a satchel intrusted to his care by a friend,^ and the 
 finder of a jewel was permitted to recover its whole value for a 
 conversion by a stranger, in the leading case of Armory v. Del- 
 amirie, 1 Strange, 505. Inasmuch as the law does not allow 
 a defendant to be vexed twice for the same wrong, a recovery by 
 the person having a special property, and satisfaction by the 
 wrongdoer, discharges the latter from all liability to the owner.* 
 
 'Story, Bailm. § 93. 
 
 2 The Maggie Hammond v. Morland, 76 U. S. 9 Wall. 435, 19 L. ed. 772; La 
 
 Tourette v. Burton, supra; The Niagara v. C'ordes, 62 U. S. 21 How. 7, 16 
 
 L. ed. 41. 
 
 * Moran v. Portland Steam Packet Co. 35 Me. 55. 
 
 ■* White V. Wehh, 15 Conn. 305; Smith v. Jones, 7 Cow. 328; HarTcer v. Dement, 
 
 9 Gill. 7, 52 Am. Dec. 670; Eardman v. Brett, 2 L. R. A. 173, 37 Fed. 
 
 Rep. 803.
 
 362 NEGLIGENT LOSS U14 ILLEGAL CAl'TLKE OF CARGO. 
 
 When he has once made it to the injured parties, he cannot be 
 made liable to another suit, at the instance of any merely equi- 
 table claimant.' 
 
 When the carrier has received the money in question from the 
 party in fault he therel)y aljsolves them from any further liability 
 to the owner. As is said in the opinion of the court in La 
 Tourette v. Burton, 68 U. S. 1 Wall. 43, 51, 17 L. ed. 609, 611, 
 doubtless the owner may intervene and petition the court for the 
 transfer of the money to him at any time l)efore the distribution 
 of the fund in the registry of the court. But he is under no ob- 
 ligation to do this, and is at liberty at any time after his right 
 accrues to bring an action against the carrier and recover the 
 value of the cargo which has not been delivered pursuant to the 
 duty of the carrier. In such an action it cannot be maintained 
 by the carrier with any color of plausibility that he should be per- 
 mitted to retain or recoup against the demand of the cargo owner, 
 any sum which he might have expended in prosecuting a suit 
 brought for his own protection and indemnity against a wrong- 
 doer by whose act the cargo was lost. Such a defense would be 
 preposterous in a case where the loss of the cargo was caused by 
 the misconduct of the carrier.^ 
 
 Recovery cannot be had from a steamship for the loss occa- 
 sioned by the dumping of the deck load of a lighter upon encoun- 
 tering her waves, where the lighter was too sharp for the pur- 
 pose and unsafe for such a cargo because of her form, and the 
 waves were not of a dangerous character or such as to cause a 
 properly constructed lighter properly loaded to dump her 
 cargo. ^ 
 
 The value of the cargo is to be estimated from the value at the 
 port of shipment, including expenses of transportation to the 
 place of collision, the lading of the cargo, etc., and interest at six 
 
 ^The Moniicello v. MolUson, 58 U. S. 17 How, 153, 15 L. ed. 68; JVeweU v. 
 Worton, 70 U. S. 3 Wall. 267. 18 L. ed. 273. 
 
 « Eardman v. Brett, 3 L. R. A. 173, 37 Fed. Kep. 803. 
 
 « The Pilgrim, 57 Fed. Rep. 670.
 
 CARRIER MAY RECOVER FOR LOSS OF CARGO. 363 
 
 per cent per annum ;* interest on the value of tlie cargo ;'' the 
 value of the cargo at the market price at the home port of the in- 
 jured vessel at the time it would ordinarily have arrived there ;^ 
 its value at the time and place of shipment, without including loss 
 of profits which would have been realized by completing the voy- 
 age/ Future profits may be allowed as damages, but speculative 
 and merely possible profits cannot be allowed/ The respondent 
 in the action is not presumed to know, or bound to inquire, as to 
 the relative equities of parties claiming the damages. He is 
 bound to make satisfaction for the injury he has done. 
 
 ' The Monticello v. Mollison, 58 XJ. 8. 17 How. 152, 15 L. ed. 68; The Glaucus, 
 1 Low. Dec. 371; The Aleppo, 7 Ben. 125; The Anna Maria, 15 U. S. 2 
 Wheat. 327, 4 L ed. 252; The Ocean Queen, 5 Blatchf. 494; Smith v. Con- 
 dry, 42 U. S. 1 How. 28, 11 L. ed. 35; Tlie Lively, 1 Gall. 315; Seaman v. 
 The Crescent City, 1 Bond, 123; The Mary J. Vaughan, 2 Ben. 50, 81 U. S. 
 •14 Wall. 258, 20 L. ed. 807. 
 
 « The Apollon, 22 U. S. 9 Wheat. 362, 6 L. ed. Ill; The Anna CatJiarina, 6 
 C. Rob. Adm. 10. 
 
 2 Sicift V. Brownell, 1 Holmes, 467; TJie Joshua Barker, Abb. Adm. 215. 
 
 < Tlie Mary J. Vauglian, 2 Ben. 47; Smith v. Condry, 43 U. S. 1 Hun, 28, 11 
 L. ed. 35. 
 
 « The Mayfloicer. 1 Brown, Adm. 387; Lacour v. Neio York, 3 Duer, 406; St. 
 John V. New York, 6 Duer, 315; Walter v. Post, 6 Duer, 363; Allison v. 
 Chandler, 11 Mich. 542; Seicall's Falls Bridge v. Fisk, 23 N. H. 171; Orijin 
 V. Coker, 16 N. Y. 489, 69 Am. Dec. 718; Desty, Ship. & Adm. § 401.
 
 CHAPTER XIII. 
 
 TRANSPORTATION BY CARRIER OVER CONNECTING LINES. 
 
 § 95. Liability for Goods to le Transported beyond Termination oj 
 
 Line. 
 § 96. Carrier may Restrict Liability to its oion Line. 
 § 97. May Contract for Freight and Transportation bexjond its own 
 
 Line. 
 § 98. Must Deliver Goods to Connecting Carrier. 
 § 99. Contract for Tlirongli Carriage. 
 § 100. Contract by Agent for Through Carriage. 
 
 § 95. Liahility for Goods to he Transpoj'ted heijoitd 
 Termination of Line. 
 
 The English rule is that the receipt of goods by a carrier di- 
 rected to a point beyond his line, creates a contract to transport 
 them safely to their destination.' If a part of the carriage ex- 
 tends beyond the carrier's own line he will be liable unless he 
 limits the liability beyond his own line; but he may agree to as- 
 sist in forwarding beyond that point.'' 
 
 There is no privity of contract between connecting carriers and 
 a shipper of goods, where the initial carrier undertook to trans- 
 port the goods to their destination. A contract by an initial 
 carrier to carry goods over its own and connecting lines to their 
 destination, providing that it shall not be liable for loss or dam- 
 age occurring after the goods shall have arrived at the stations 
 on the initial carrier's line nearest to the points to which they 
 
 1 Mutton V. Midland R. Co. 4 Hurlst. & N. 615; Scothorn v. SovtJi Strafforshire 
 
 R Co. 8 Exch. 341; Watson v. Ambergate, N. & B. R. Co. 3 Eng. L. & Eq. 
 
 497- Crouch v. GreatWestern R. Co. 2 Hurlst. & N. 491, 3 Hurlst. *& N. 
 
 188; Bristol & E. R. Co. v. Collins, 5 Hurlst. & N. 969, 7 H. L. Cas. 194; 
 
 Coxonv GreatWestern R. Co. 5 Hurlst. & N. 274; Muschamp v. Lancaster 
 
 d: P J R. Co. 8 Mees. & W. 421; Collins v. Bristol & E. B. Co. 11 Exch. 
 
 790; Wilbyy.West Cornwall R. Co. 2 Hurlst. & N. 703; Webber v. Great 
 
 Western R. Co. S Hurlst. & C. 771. 
 ^FowlesY. GreatWestern R. Co. 7 Exch. 699; Bristol cfc E. R. Co. v. Collins, 
 
 supra. 
 
 364
 
 LIABILITY FOR GOODS TKANSPOKTED BEiOND TERMINATION. 365 
 
 are consigned, or beyond its limits, will not relieve it from lia- 
 bility for loss or damage occurring during transportation beyond 
 the limits of its own and on a connecting line. But the court 
 having reached the above conclusions was equally divided as to 
 whether, under a contract to carry goods to their final destina- 
 tion, the initial carrier not to be responsible for any loss or dam- 
 age occurring after the arrival of the goods at the stations on the 
 initial carrier's line nearest the points to which they are con- 
 signed or beyond its limits, the initial carrier was liable for a loss 
 of the goods after their arrival at their destination and before 
 delivery to the consignee.' In England carriers are liable for 
 loss or damage to goods until they are delivered at their place of 
 destination, unless restricted by contract; and this although they 
 are destined to a point beyond the realm. But in this country 
 carriers' liability is held to be restricted to their own route un- 
 less otherwise provided by contract.' The Carney act of Parlia- 
 ment of 1830, protects the carrier, although the goods are to be 
 carried beyond their termination.' A carrier is not responsible 
 for damage to goods on a connecting line, where the bill of lad- 
 ing specially limits the carrier's liability to its own line." 
 
 The American rule, except in a few states, is that the receipt 
 •of goods by the carrier directed to a point beyond the terminus 
 implies merely an undertaking by the common carrier to deliver 
 them to the next succeeding carrier, and that, after the safe de- 
 livery to the next carrier in the regular course of transportation, 
 he is not liable for damage.* 
 
 » Orand Trunk R. Co. v. McMillan, 16 Can. Sup. Ct. Rep. 543, 43 Am. & 
 
 Eng. R. Cas. 468. 
 « Hadd V. United States & G. Exp. Co. 53 Vt. 343, 36 Am. Rep. 757. 
 ^Morritty. North Eastern R. Co. L. R. 1 Q. B. Div. 303, 45 L. J. Q. B. 389. 
 * Orand Trunk R. Co. v. McMillan, supra. 
 ^Louismlle, N. A. & C. R. Co. v. Hart, 4 L. R. A. 549, 119 Ind. 373; Savan- 
 
 TuiJi, F. & W. R. Co. V. Harris, 36 Fla. 148; Hunter v. Southern Pac. R. 
 
 Co. 76 Tex. 195; McConnell v. Norfolk & W. R. Co. 86 Va. 348: Burroughs 
 
 y. Norwich & W. R. Co. 100 Mass. 36, 1 Am. Rep. 78; Reed v. United States 
 
 Exp. Co. 48 N. Y. 463, 7 Am. Rep. 561; Gray v. Jackson, 51 N. H, 9, 13 Am. 
 
 Rep. 1; Lawrence v. Winona & St. P. R. Co. 15 Minn. 390, 3 Am. Rep. 130; 
 
 Rawson y. Holland, 5 Daly, 155, affirmed in 59 N. Y. 611, 18 Am. Rep. 
 
 394; American Exp. Co. v. Second Nat. Bank, 69 Pa. 394, 8 Am. Rep. 368; 
 
 Skinner y. Hall, 60 Me. 477; Perkins y . Pm-tland, S. & P. R. Co. 47 Me. 
 
 573, 74 Am. Dec. 507; Grindle v. Eastern Exp. Co. 67 Me. 317, 34 Am.
 
 366 TRANSPOliTATION BY CAKKIEK OVEK CONNECTING LINES. 
 
 The liability resting upon a carrier is discharged when he has, 
 in the regular course of business, transferred the possession of 
 the goods to the connecting carrier to complete their transporta- 
 tion. Of course, outside of the law of carriers, the duty may 
 have been assumed and the responsibility incurred by contract, 
 which will not be discharged by such delivery. If the carrier has 
 assumed to transport goods to their destination, or to be re- 
 sponsible for the negligence of the connecting carrier, — he must 
 answer under his contract. But, such a contract must be dis- 
 tinctly shown.' Unless there be either an express contract or 
 one fairly implied from the circumstances under which the trans- 
 portation is undertaken, to transport beyond the carrier's own 
 line, it will be discharged when the goods are delivered to a con- 
 necting carrier.' The receipt by a carrier of goods marked for 
 transportation over another line, with which the carrier connects 
 — but with which it has no business relations, — and the accept- 
 ance of transportation only over its own line without any special 
 contract, has been held not to render the carrier liable after de- 
 livery to the connecting carrier.' 
 
 Charging a through rate of freight on stock to be transported 
 
 Rep. 31; Mullarkyv. Philadelphia, W. & B. B. Co. 9 Phila. 114; Hood v. 
 New York & N. H. R. Co. 22 Conn. 1 ; Baltimore & 0. R. Co. v. Schu- 
 macher, 29 Md. 168, 96 Am. Dec. 510; Converse v. Norwich & N. Y. Transp. 
 Co. 33 Conn. 177; McMillan v. Michigan, S. & N. I. R. Co. 16 Mich. 79, 93 
 Am. Dec. 208; Craioford v. Sotitfiern R. Asso. 51 Miss. 222, 24 Am. Rep. 
 626; Carter V. Peck, 4^ ^need, 203, 67 Am. Dec. 604; Brintnall y . Saratoga 
 dc W. R. Co. 32 Vt. 665; Jennenon v. Camden & A. R. & Transp. Co. (Pa.) 
 4 Am. L. Reg. 234; Grover & B. Sewing Mach. Co. v. Missouri Pac. R. Co. 
 70 Mo. 672, 35 Am. Rep. 444; Eadd v. United States & C. Exp. Co. 52 Vt. 
 342, 36 Am. Rep. 757. 
 
 >T7"i Buskirk v. Roberts, 31 N. Y. 661; Pennsylvania R. Co, v. Berry, 68 Pa. 
 272; Root V. Great Western R. Co. 45 N. Y. 524; Baltimore <& P. S. B. Co. 
 V. Brown, 54 Pa. 77; Newell v. Smith, 49 Vt. 255; East Tennessee & G. R. 
 Co. V. Nelson, 1 Coldw. 276; Illinois Cent. R. Co. v. Johnson, 34 111. 389; 
 Noyes V. Rutland & B. R. Co. 27 Vt. 110; St. Louis, K. C & N R. Co. v. 
 Piper, 13 Kan. 505; Peet v. Chicago & N. W. R. Co. 19 Wis. 119; Bryan 
 V. Memphis & P. R. Co. 11 Bush, 5d7;Wahl v. Holt, 26 Wis. 703; Soutliern 
 Exp. Go. V. Shea, 38 Ga. 519; Williams v. Vanderbilt, 28 N. Y. 217, 84 Am. 
 Dec. 333. 
 
 ' United States Exp. Co. v. Rush, 24Ind. 403; Pendergrast y . Adams Exp. Co. 
 101 Mass. 120; Rickerson Roller Mill Co. v. Ginnd Rapids & I. R. Co. 67 
 Mich. 110; American Exp. Co. y. Second Nat. Bank of Titusville, 69 Pa. 
 394, 8 Am. Rep. 268. 
 
 * Nutting v. Connecticut River R. Co. 1 Gray, 502.
 
 LIABILITY FOK GOODS TKANSPOKTED BEYOND TERMINATION. 367 
 
 over two or more roads will not render the initial carrier liable 
 for the acts and negligences of other carriers, where its contract 
 expressly exempts it from such liability.^ The implied obliga- 
 tion of the carrier to the public is limited by the termini of its 
 own route.° In the absence of a special contract to deliver 
 goods at a point beyond its line, the receiving carrier is not lia- 
 ble for loss or damage occurring to the goods after their delivery 
 to the connecting carrier.' Each of several carriers over whose 
 lines property delivered to one of them for transportation must 
 pass to its destination, is liable only for loss or injury thereto oc- 
 curring on its own line, and is not liable for loss of the property 
 before delivery to it, in the absence of any agreement or arrange- 
 ment constituting all the carriers partners or joint undertakers.* 
 A carrier is not liable for the nondelivery of goods received by 
 it for shipment to a point on the line of a connecting road over 
 which it has no control, if the goods are delivered to such con- 
 necting road in good condition, unless it expressly contracts to 
 transport the goods to the point of destination.' It is not liable 
 for a delay in the transportation of freight caused by its connect- 
 ing lines, in the absence of negligence on its own part, where no 
 partnership between it and such other lines and no other facts 
 exist, rendering it responsible for delay on the part of other car- 
 riers." Except in a few states, it is conclusively established, as a prin- 
 ciple of law in this country that a carrier, in the absence of a spe- 
 cial contract, express or implied, for the safe carriage of goods 
 to their destination, is only bound to carry safely to the end oi 
 his line, and there duly deliver to the next carrier in his route.^ 
 
 > Gulf,W. T. & P. R. Co. V. Griffith (Tex. Civ. App.) Dec. 21, 1893. 
 ^Pittsburg, C. & St. L. B. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682. 
 *McConnell v. Norfolk & W. B. Co. 86 Va. 248. 
 
 * Church V. Atchison, T. & S. F. B. Co. 1 Okla. 44. 
 
 ^Illinois C. B. Co. v. Kerr, 68 Miss, 14; Crouch v. Louisville & N. B. Co. 48 
 Mo. App. 248. 
 
 • Missouri Pac. B. Co. v. Weisman, 2 Tex Civ. App. 86. 
 
 ••Michigan Cent. B. Co. v. Myrick, 107 U. S. 102, 27 L. ed. 325; Knight y. 
 Providence <&W. B. Co. 13 R. I. 572, 43 Am. Rep. 46; Piedmont 3Ifg. Co. 
 V. Columbia & G. B. Co. 19 S. C. 358; Detroit & B. C. B. Co. v. McKenzie, 
 43 Mich. 609; St. Louis Ins. Co. v. St. Louis, V. T. H. <& L B. Co. 104 U. 
 S. 146, 26 L. ed. 679; Harris v. Grand Trunk B. Co. 15 R. I. 371; Clyde v. 
 Hubbard, 88 Pa. 358; Goldsmith v. Chicago & A. B. Co. 12 Mo. App. 479; 
 Crawford v. Southern B. Asso. 51 Miss. 222, 24 Am. Rep. 626.
 
 368 TKANSPOKTATION BY CARKIER OVER CONNECTING LINES. 
 
 In the absence of a special contract a common carrier's 
 liability for goods ends with delivery to a connecting line.* 
 If the consignor insists upon the carrier delivering goods at a 
 point beyond its own line of road, it is not the duty of the carrier 
 to receive the goods at stations along its line for transportation.' 
 The rule of law is well settled in most of the state courts, that 
 although a railroad corporation may contract to carry beyond its 
 own line, yet it requires an express contract so to bind it. Such 
 contract is not to be inferred from its sharing in a through 
 freight/ nor from its receiving and transporting the goods over 
 its line in the course of a continuous passage under an agreement 
 for a through freight.* 
 
 Generally a common carrier is not liable for losses sustained be- 
 yond the terminus of its own line, unless it has assumed such lia- 
 bility by express contract or some arrangement in the nature of a 
 partnership exists between it and the connecting carriers.* Any 
 implied obligation of the carrier to the public is limited by the 
 termini of his own route.° There is no common law responsibil- 
 ity devolving upon any carrier to transport goods over other than 
 its own lines.' The liability of a railroad company for the safe 
 carriage of goods beyond the terminus of its own line depends upon 
 its special contracts, express or implied; in the absence of special 
 contract the railroad company receiving goods for transportation 
 beyond its own line is liable only to the extent of its own road, 
 and for the safe storage and delivery to the next carriers.* 
 
 ' Wichita Valley B. Co. v. Swenson (Tex. Civ. App.) Jan. 23, 1894. 
 
 2 People V. Chicago & A. B. Co. 55 111. 95, 8 Am. Rep. 631. 
 
 33 Woods, Railway Law, 1573. 
 
 * Hunter v. Southern Pac. B. Co. 76 Tex. 195; Ortt v. Minneapolis & St. L. B. 
 
 Co. 36 Minn. 396; North y. Merchants & M. Transp. Co. 146 Mass. 315; Boot 
 
 V. Oreat Western B. Co. 45 N. Y. 530; Faulkner v. Hart, 82 N. Y. 422, 37 
 
 Am. Rep. 574; Condict v. Grand Trunk B. Co. 54 N. Y. 500. 
 5 Central Trust Co. v. Wabash, St. L. & P. B. Co. 31 Fed. Rep. 247; Ortt v. 
 
 Miniieapolis & St. L. B. Co. 36 Minn. 396; Sumner y. Walker, 30 Fed. Rep. 
 
 261; Bay Passenger Carriers, § 148, 150, 151, 152, 158. 
 « Pittsburg, C. & St. L. B. Co. v. Moulton, 61 Ind. 539, 28 Am. Rep. 682. 
 •< Michigan Cent. B. Co. v. Myrick, 107 U. S. 102, 27 L. ed. 325. 
 ^Michigan Cent. B. Co. v. Mineral Springs Mfg. Co. 88 U. S. 16 Wall. 318, 21 
 
 L. ed. 297; St. Louis Ins. Co. v. St. Louis, V. T. H. & I. B. Co. 104 U. S. 
 
 146, 26 L. ed. 679.
 
 LIABILITY FOR GOODS TRANSPORTED BEYOND TERMINATION. 3G9 
 
 If a contract bj a carrier for transportation is invalid, the lia- 
 bility of a connecting carrier bj whose negligence the goods are 
 lost or damaged must be determined under the principles of tht 
 public law.' The requirements by a carrier in receiving goods 
 for transportation to a point beyond its own lines, that the ship- 
 per guarantee payment of the freight through to the point of 
 destination, is not conclusive that it agrees to deliver the goods 
 at the j)oint of destination.' A bill of lading for the transporta- 
 tion of goods from H. to G. in Texas, and for the delivery at the 
 latter place to the consignee or a connecting carrier, is not a con- 
 tract for carriage beyond that place, notwithstanding that it guar- 
 antees a through rate of fi'eight to a town in Connecticut, which 
 is named in it as the ultimate point of destination.' Each of sev- 
 eral carriers over whose lines property delivered to one of them 
 for transportation must pass to its destination is liable only for 
 loss or injury thereto occurring on its own line, and is not liable 
 for loss of the property before delivery to it, in the absence of 
 any agreement or arrangement constituting all the carriers part- 
 ners or joint undertakers.'' A carrier is not liable for injury to 
 goods received by it from a connecting carrier in bad condition, 
 and delivered in the same condition.* 
 
 A receipt which shows that freight is consigned to the order of 
 M, and that B at a place beyond the carrier's own line is to be 
 notified, does not of itself, make a contract to carry to such pl.-^ee." 
 Where plaintiff knew tliat the railroad to which he delivez-ed 
 liis goods did not reach the destination indicated, the omission in 
 the receipt of the name of the point where the road formed its 
 connection with another road, is unimportant.' 
 
 It has been held in Connecticut — ignoring the late English cases 
 — that neither the receiving goods for transportation marked to a 
 
 ^Woodburn v. Cindnnati, N. 0. & T. P. B. Co. 40 Fed. Rep. 731, 43 Am. & 
 
 Eng. R. Cas. 514. 
 "^Illinois Cent. R. Co. v. Kerr, 68 Miss. 14. 
 ^Bennitt v. Missouri Pac. R. Co. 46 Mo. App. 656. 
 4 Church V. Atchison, 1. d 8. F. R. Co. 1 Okla. 44. 
 
 ' Goodman v. Oregon R. <& Nav. Co. 23 Or. 14, 49 Am. & Eng. R. Cas. 87. 
 ^Michigan Cent. R. Co. v. Myrick, 107 U. S. 102, 27 L. ed. 325. 
 "^ RickerHon Bailer Mill Co. v. Grand Rapids & I. R. Co. 67 Micb. 110. 
 24
 
 370 I'KANSPOKTATION BY CAERIER OVER CONNECTING LINES. 
 
 place beyond the line of the carrier, nor a receipt stating that the 
 goods were so received, nor an advertisement setting forth the 
 facilities possessed by the carrier for transportation, will consti- 
 tute evidence of a special contract to do more than deliver the 
 goods to the next succeeding carrier.' A notice on the margin of 
 a receipt that goods consigned to any place beyond the company's 
 line, will be sent forward by the carrier in the usual manner, the 
 company acting for that purpose as the agent of the consignor or 
 consignee, and not as carrier, tends to rebut any assumed inference 
 of a contract for through carriage from the receipt of the goods, 
 to any place be^'ond the road of the company,^ 
 
 The general doctrine as to transportation by connecting lines, 
 recognized by the Supreme Court of the United States, — and also 
 by the majority of the state courts, — although a different rule has 
 been adopted in England,' amounts to this : that each road con- 
 lining itself to its common law liability, is only bound, in the ab- 
 sence of a special contract to safely carry over its own road and 
 safely transfer to the next connecting carrier ; — but, that one of 
 the companies may agree, that its liability shall extend over the 
 whole route. In the absence of a special agreement to that effect 
 such liability will not attach, and the agreement will not be in- 
 ferred from doubtful expressions or loose language, — but only from 
 clear and satisfactory evidence." 
 
 ' Blmore v. Naugatuck R. Co. 23 Conn. 457, 63 Am. Dec. 143. 
 
 . 2 Michigan Cent. R. Co. v. Myrick, 107 U. S. 103, 27 L. ed. 325. 
 
 ^ Muscltamp v. Lancaster d- P. J. R. Co. 8 Mees. & W. 421 ; ScotJiorn v. South 
 Staffordshire R. Co. 8 Exch. 341; Collins v. Bristol & E. R. Co. 11 Exch. 
 790; Wilby v. West Cornwall R. Co. 2 Hurlst. & N. 708; Crouch v. Great 
 ^Yestern R. Co. 2 Huilst. & N. 491, 3 Hurlst & N. 183; Webber v. Great 
 Western R. Co. 3 Hurlst. & C. 771; Mytton v. Midland R. Co. 4 Hurlst. & 
 N. 615; Coxon v. GreatWexiern R. Co. 5 Hurlst. ik N. 274. 
 
 * Michigan Cent. R. Co. v. Mijrick, 107 U. S. 102, 27 L. ed. 325; Hill Mfg. Co. 
 V. Bodon & L. R Cnrp. 104 .Mass. 133, 6 Am. Rep. 202; Buff'ett v. Troy & 
 B. R Co. 40 N. Y. 172: Sussex R. Co. v. Morris & E. R. Co. 19 N. J. Eu. 
 25; Hare v. London & N. W. R. Co. 2 Johns. & H. 80; Munhall v. Pennsyl- 
 vania R. Co. 92 Pa. 150; Eclipse Toirhoat Co. v. Ponlchartrain R. Co. 24 La. 
 Ann. 1; Jencks v. Coletnan, 2 Sunin. 221; WifiQins Ferry Co. v. Chicago & 
 A. R Co. 73 iMo. 389: Nutting v. Connecticut River R. Co. 1 Gray, 502; Bur- 
 roughs V. Norwich cfc \V. R. Co. 100 Mass. 26, 1 Am. Rep. 78; Harris v. Grand 
 Trunk R. Co. 15 R. 1. 371; Phillips v. North Carolina R. Co. 78 N. C. 294; 
 G rover d- B. Sewing Much. Co. v. Missouri Pac. R. Co. 70 Mo. 672, 35 Am. 
 Rep. 444; Savannah, F. &W. R. Co. v. Harris, 26 Fla. 148; MeConnell v. 
 Norfolk & W. R. Co. 86 Va. 248; Berg v. Atchison, T. & S. F. R. Co. 30
 
 LIABILITY FOK GOODS TKANSPORTED BEYOND TERMINATION. 371 
 
 There are decisions of some of the states which seem to hold, 
 and are often cited as asserting the rule, that a railroad company 
 which receives goods to carry, marked for particular destination, 
 though beyond its own line, is prima facie bound to carry them 
 to that place and deliver them there, and that an agreement of 
 that nature is implied by the receipt. of the goods thus marked.' 
 Thus a stipulation relieving the carrier from responsibility of the 
 goods, where they are " receipted for in good order " by the suc- 
 ceeding carrier, will not release the first carrier from its common 
 law liability." A carrier to whom freight is delivered for trans- 
 portation over its own and other lines is liable for the negligence 
 of a connecting carrier.^ A carrier receiving freight charges to 
 destination beyond its liiie, in absence of proof of its authority to 
 contract for connecting carriers, is presumed to contract on its own 
 account for the entire route." And some courts which deny that 
 the acceptance of goods marked beyond carrier's line implies a 
 contract to deliver at their destination admit that a contract, to be 
 
 Kan. 561; Hunter v. Southern Pac. R. Co. 76 Tex. 195; Crawford v. South- 
 ern R. Asso. 51 Miss. 222, 24 Am. Rep. 626; Knott v. Raleigh <fc G. Co. 98 N. 
 C. 73; Moi'He v. Brainard, 41 Vt. 550; Jenneson v. Camden & A. R. & Transp. 
 Co. (Pa.) 4 Am. L. Reg. 234; Skinner v. Hall, 60 Me. 477; Hadd v. United 
 States <& a Exp. Co. 52 Vt. 335. 36 Am. Rep. 757; Hill v. Burlington, C. R. 
 & K. R. Co. 60 Iowa, 196; Clyde v. Hubbard, 88 Pa. 358; Rickerson Roller 
 Mill Co. V. Grand Rapids & I. R. Co. 67 Mich. 110; Baltimore <& 0. R. Co. 
 V. Schumacher, 29 Md. 176, 96 Am. Dec. 510; Elmore v. Naugatuck R. Co. 
 23 Conn. 457, 63 Am. Dec. 143; Detroit & B. C. R. Co. v. McKemie, 43 
 Mich. 609; Condict v. Grand Trunk R. Co. 54 N. Y. 502. 
 
 ^Illinois Cent. R. Co. v. Frankenberg. 54 111. 88, 5 Am. Rep. 92; Wilcox v. Par- 
 melee, 3 Sandf. 610; Bunett v. Filsaw, 1 Fla. 403; Illinois Cent. R. Co. v. 
 Copeland, 24 III. 332, 76 Am. Dec. 749; Illinois Cent. R. Co. v. Johnson, 34 111. 
 389; United States Exp. Co. v. Haines, 67 111. 137; Erie R. Co. v. M'ikox, 84 
 111. 239, 25 Am. Rep. 451; Teall v. Sears, 9 Barb. 317; Angle v. Mississippi & 
 M. R. Co. 9 Iowa, 487; Adams Exp. Co. v. Wilson, 81 111. 337; Mulligan v. 
 Illinois Cent. R. Co. 36 Iowa, 181; East Tennessee & V. R. Co. v. Rogers, 6 
 Heisk. 143 ; Mosher v. Southern Exp. Co. 38 Ga. 37; Southern Exp. Co. v. Shea, 
 38 Ga. 519; Falvey v. Georgia R. Co. 76 Ga. 597; Nashua Lock Co. v. Woi'- 
 cester d JV. R. Co. 48 N. H. 339, 2 Am. Rep. 242; Ohio <& M. R. Co. v. Em- 
 rich, 24 111. App. 245; Wabash. St. L. & P. R. Co. v. Jaggerman, 115 111. 407; 
 Mobile & G. R. Co. v. Copeland, 63 Ala. 219, 35 Am. Rep. 13; Noyes v. Rut- 
 land & B. R. Co. 27 Vt. 110: Atlanta & W. P. R. Co. v. Texas Grate Co. 81 
 Ga. 602; Louisville & N. R. Co. v. Campbell, 7 Heisk. 253; Hansen v. Flint <fe 
 P. M. R. Co. 73 AVis. 346; Baltimore d- 0. R. Co. v. Campbell, 36 Ohio St. 647; 
 Kyle V. Laurens R. Co. 10 Rich. L. 382, 70 Am. Dec. 231. 
 
 « Fatman v. Cincinnati, H & D. R. Co. 2 Disney (Ohio) 248. 
 
 3 (Mio & M. R. Co. V. Hamlin, 42 111. App. 441. 
 
 * Condict V. Grand Trunk R. Co. 4 Lans. 106.
 
 372 TRANSrORTATION BY CAKRIEK OVER CONNKCTING LINKS. 
 
 liable beyond its own line, may be implied from circumstances, 
 witiiout express contract.' 
 
 But some of the cases cited as sustaining the Enulisli rule, rest ii: 
 fact upon express statute. Tlius the JS'ew York act of 1847, chap- 
 ter 270, renders each railroad, which forms a link in a line of 
 transportation which ao-rees to convey property beyond its own 
 road, liable for the negligence of each of the other roads running 
 in connection with it, over which the property shall subsequently 
 pass on its way to its destination.* And a statute declaring that 
 " whenever two or more railroads are connected together, any 
 company owning either of said roads receiving freight to be trans- 
 ported to any place on tlie line of either of said roads, shall be 
 liable as common carrier for the safe delivery of such freight at 
 such place," imposes a liability only u])on the company which 
 originally receives the goods, where the delivery is to a carrier 
 for transportation over its own line ; the owner can recover for 
 damages to the goods on the ground of negligence, upon proof of 
 delivery to the first carrier, unless it can relieve itself by 
 evidence of its freedom from negligence.' And it is held 
 that the Missouri statute providing that the initial carrier by 
 which a receipt or bill of lading is issued shall be hable for 
 any loss of or damage to goods shipped, resulting from its 
 own negligence or that of any other carrier to which the prop- 
 erty is delivered, is constitutional.* And that this statute render- 
 ing a carrier receiving goods for carriage beyond its route liable 
 for the negligence of a connecting carrier applies to a contract to 
 carr}' goods from a point in the state to a point l)eyond it.^ But 
 in Texas it is ruled, that a provision Ihniting the liability of a 
 railway company to its own line, in a bill of lading from a railway 
 
 ^Moser v. Brainard, 41 Vt. 550: CuUh v. Bminerd, 42 Vt. 566, 1 Am. Rep. 353; 
 
 Nashua Lock Co. v. Worcester & N. R. Co. 48 N. H. 339, 2 Am. Rep. 242; 
 
 Najac V. Bof,ton tfe L. R. Co. 7 Allen, 329, 83 Am. Dec. 686; Barter v. 
 
 Wheeler, 49 N. H. 9, 6 Am. Rep. 434. 
 * Root V. Great Western R. Go. 2 Lans. 199. 
 ^ Smith V. New York Cent. R. Co. 43 Barb. 225, 41 N. Y. 620. 
 ^Dimmitt v. Kansas City, St. J. & C. B. R. Co. 103 Mo. 433; Nines v. St. Louis, 
 
 I. M. & S. R. Co. 107 Mo. 475. 
 & Watkins v. St. Louis, L M. dc S. R. Co. 44 Mo. App. 245.
 
 LIABILITY FOR GOODS TRANSPORTED BEYOND TERMINATION. 373 
 
 Station in Texas to Galveston, in the same state, tlience bj steamer 
 to Liverpool, purporting to be a foreign bill of lading and signed 
 by one who signs as agent severally for the railway and the steam- 
 ship companies, does not make it a domestic bill of lading so as to 
 bring it within Tex. Rev. Stat. art. 278, forbidding carriers be- 
 tween points within the state from limiting their common law lia- 
 bility ; and that a contract of a shipment of cotton from a station 
 in the state of Texas on the line of a railroad to its terminus in 
 the state of Lousiana is a foreign shipment, and not within Tex. 
 Rev. Stat. art. 278, providing that railroad companies and other 
 common carriers within the state shall not limit their liability at 
 common law.' 
 
 In Georgia, while the English rule, from some rulings, seems 
 to be favored, it is admitted that, at common law, in the absence of 
 contract, the carrier's liability ends with his delivery to connect- 
 ing carrier,' and a local statute is the foundation on which many 
 of the decisions rest. Thus a declaration alleging that defendant 
 was only one of connecting railroads of a continuous line and re- 
 ceived from another railroad named, certain machinery easily in- 
 ]it?ed by exposure, which it negligently transported in open cars, 
 states a common law action, and is not sufficient to raise the ques- 
 tion of defendant's liabilit}', under the Georgia Code, § 2084, 
 making the last of several railroads which received goods in good 
 order, responsible for any damage, open or concealed, to the goods. 
 A plaintiff relying on the provisions of this statute for recovery, 
 should give notice by particular allegations in his declaration, as 
 the liability under the proof, depends upon the statute,' A 
 connecting carrier between whom and the initial carrier no 
 privity or contractual relation is shown, the contract of shipment 
 having been made with the initial carrier to transport the goods 
 to their destination, is not liable on an implied contract to deliver 
 the goods, for damages because of a delay in making delivery, 
 whether such delay occurred on its own line or not, the remedy 
 
 ^Missouri Pac. R. Co. v. Sherwood, 17 L. R. A. 643, 4 Inters. Com. Rep. 240, 
 
 84 Tex. 125. 
 2 Central R. & Bkg. Co. v. ShclUe. 86 Ga. 6S6. 
 8 Western & A. R. Co. v. Expoaiiion Cotton Mills, 2 L. R. A. 102, 81 Ga. 522.
 
 374 TRANSPOKTATION BY CARRIER OVER CONNECTING LINES. 
 
 of the shipper being against the initial carrier.' "When goods are 
 received by a carrier to be transported beyond the terminus of 
 its line, and delivered at a particular place and to particular per- 
 sons at such place or destination, without more, a contract is im- 
 plied that the carrier will cause such goods to be carried to the 
 place of destination safely, without damage or hnrt ; and it will be 
 liable to the consignor for failure to perform its contract, for any 
 damages which may arise therefrom to the party injured ; and this 
 rule is not changed by Ga. Code, § 2084, providing that each 
 company shall be responsible only to its own terminus, and that 
 the last company shall be responsible to the consignee, and that 
 each shall settle among themselves the question of ultimate lia- 
 bility.' 
 
 A railroad company whose line extends from Atlanta to "West 
 Point, Georgia, having received at Atlanta goods for shipment, 
 consigned to Dallas, Texas, and having fixed by contract with 
 the consignor the rate of freight for the whole distance, appor- 
 tioning a part of the same among the carriers, itself included, to 
 New Orleans, and assessing the balance for the transportation be- 
 yond New Orleans, the contract was prima facie a through con- 
 tract, and bound the initial company for performance to Dallas, 
 the point of destination. This was so, notwithstanding the named 
 rate was made subject to change without notice, the effect being 
 to limit the agreed special rate to the particular shipments with 
 reference to which the rate was established, but not to allow any 
 change, either along or at the terminus of the route, which would 
 aifect these shipments.^ A shipment of goods is taken out of the 
 operation of Ga. Code, § 2084, regulating the liability of con- 
 necting railroads for the loss of and damage to goods, by the fact 
 that the original shipment is by steamship, to be delivered to a 
 connecting railroad; and the railroad is not liable unless the goods 
 were received by it in good order.* A railroad company which 
 
 > East Tennessee, V. & G. R. Co. v. Johnson, 85 Ga. 497. 
 
 * Overruling Baugli v. McDaniel, 42 Ga. 642; Falvey v. Georgia R. Co. 76 Ga. 
 
 597. 
 » Atlanta & W. P. B. Co. v. Texas Grate Co. 81 Ga. 603. 
 
 * Josejyh v. Georgia R. & Bkg. Co. 88 Ga. 426.
 
 LIABILITY FOR GOODS TRANSPORTED BEYOND TERMINATION. 375 
 
 receives fruit under a special tliroiigh contract of shipment over 
 other .lines, without legal limitation of its lial)ility, is liable for 
 the nefflio'ence of its agents on another line in failino- to deliver 
 the goods within a reasonable time.' 
 
 ]\[any of the other cases, moreover, in the state courts, which 
 are cited as sustaining the English rule, are, in fact, decisions 
 where an express liability beyond its own line was assumed b}' 
 the carrier, — although the courts place the cases upon what they 
 assume to be the doctrine announced in Miischainp v. Lancaster 
 db P. J. R. Co. 8 M. & W. 421. And it is equally true that 
 many of the cases in which the court has denied the liability, — 
 unless agreed upon by express contract, were cases where such 
 lial)ility was excluded by express contract. In a case in one of 
 the state courts, the English and American cases are reviewed at 
 some length, and, it is said, that some of the decisions are based 
 on the mistake of supposing that in the Muschamp case the de- 
 fendants were held liable by the court as a matter of law. Some 
 are controlled or influenced by the mistake of supposing that in 
 Muschamp's case the opinion of the judges on the prima facie 
 weight of the evidence were opinions on the law. It would seem 
 — it is said in this review — that in no one of them has the ques- 
 tion been held to be, or been treated as, a question of law, where 
 it was claimed to be a question of fact, or where the attention of 
 the court was called to the distinction l)etween law and fact, — a 
 distinction which has been clouded with misapprehension of Mus- 
 champ's case. In nearly all of the cases, where there is no de- 
 cisive contract in writing, it is held to be, or practically treated 
 t(j be, a question of fact. There is much in the American au- 
 thorities going strongly to show, that Lord Abinger was right, 
 and there is nothing in them having any considerable tendency to 
 show that he was wrong, when he said in Muschamp's case: "Tlie 
 whole matter is therefore a question for the jury to determine 
 what the contract was, on the evidence before tliem."^ The ques- 
 tion of the first carrier's liability beyond his own line, depends 
 
 1 Central R. d- Bkg. Co. v. Georgia Fruit & V. Exch. 91 Ga. 389; Central B. 
 
 & Bkg. Co. V. HaKKelkus. 91 Ga. 883. 
 
 2 Gray v. Jackson, 51 N. H. 34, 13 Am. Rep. 1.
 
 376 TKAN8P0KTAT10N BY CAKKIEK OVER CONNECTING LINES. 
 
 upon the inqnii-y wlietlier he in any form assumed or held him- 
 self out to the public as assuming any responsibility beyond the 
 terminus of his own route.' 
 
 The Supreme Court of the United States has held, however, 
 that what constitutes a contract of carriage, is not a question of 
 local law, upon which the decision of the state court must con- 
 trol. It is a matter of general law, upon which that court will 
 exercise its own judgment.* 
 
 § 96. Carrier may Restrict Liahility to its own 
 
 Line. 
 
 The condition where goods are received to be transported be- 
 yond the carrier's line, that the risk shall terminate on delivery, 
 to the connecting line, is reasonable,' and there is no question 
 among the authorities, of the power of the carrier by express 
 contract, to limit its liability beyond its own line. This is the 
 rule recognized by nearly all of the English and American courts.'' 
 
 1 St. Louis Ins. Co. v. St. Louis, V. T. H. & I. R. Co. 104 U. S. 146, 26 L. ed. 
 679. 
 
 ^ Chicago y. Bobbins, 67 U. S. 2 Black, 429, 17 L. ed. 304; Brookh/n, C. d- ]}f. 
 B. Go. V. National Bank of the Bepublic, 102 U. S. 14, 26 L. ed. 61; Hough 
 V. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612. 
 
 ^Aldridgev. Great Western R. Co. 15 C. B. N. S. 582; Field v. Chicago d- R. 
 I. R. Co. 71 111. 458; Harris v. Grand Trunk R. Co. 15 R. I. 371; Detroit & 
 B. C. R. Go. V. McKemie, 43 Mich. 609; Jones v. Cincinnati, 8. & M. R. Co. 
 89 Ala. 376; Tolman v. Abbot, 78 Wis. 192; Ortt v. Minneapolis & St. L. R. 
 Co. 36 INIinn. 396; McConnell v. Norfolk & W. R. Cp. 86 Va. 248; Merchants' 
 Dexjyatch & Transp. Go. v. Moore, 88 111. 136, 30 Am. Rep. 541; Hadd v. 
 United States & C. E.rp. Co. 52 Vt. 335. 36 Am. Rep 757. 
 
 < Michigan Cent. R. Co. v. Myrick, 107 U. S. 102, 27 L. ed. 325; Pratt v. 
 Grand Trunk R. Co. 95 U. S. 43, 24 L. ed. 336; Ogdensburg & L. C. R. Co. 
 V. Pratt, 89 U. S. 22 Wall. 123, 22 L. ed. 827; Tardos v. Chicago, St. L. & 
 N. 0. R. Co. 35 La. Ann. 15; Louisville & N. R. Co. v. Meyer, 78 Ala. 
 597; East Tennessee, V. & G. R. Co. y. Brumley, 5 Lea, 401; Mulligans. 
 Illinois Cent. R. Co. 36 Iowa, 186, 14 Am. Rep. 514; Detroit & M. R Co. 
 V. Farmers & M. Bank, 20 Wis. 124; Pendergast v. Adams Kip. Co. 101 
 Mass. 120; Berg v. Atchison, T. & S. F. R. Co. 30 Kan. 562; St. Louis & I. 
 M. R. Co. V. Lamed, 103 111. 293; Field v. Chicago & R. I R. Co. 71 111. 
 462; American Exp. Co. v. Second Nat. Bank of Tiiusville, 69 Pa. 394, 8 
 Am. Rep. 268; ^/na L. Ins. Co. v. Wheeler, 49 N. Y. 616; Snider v. 
 Adams Exp. Co. 63 Mo. 382; Taylor v. Little Rock, M. R. t& T. R. Co. 
 32 Ark. 399,29 Am. Rep. 1; Central R. & Bkg. Co. v. Amnt, 80 Ga. 195; 
 ScMffy.New York Cent. & H. R. R. Co. 52 How. Pr. 91; Merchants Des- 
 patch Transp. Co. v. Bloch, 86 Tenn. 424; Illinois Cent. R. Co. v. Franken
 
 CAKKIEK MAY KESTKICT LIABILITY TO ITS OWN LINE. 377 
 
 Even the case of Muschamp v. Lancaster (& P. J. R. Co. 8 
 Mees^ & W. 421, does not assort a dilterent rule. In England 
 and in some of the states of the Union as shown in this last sec- 
 tion, the mere receipt of goods to be carried to a destination be- 
 yond the line of the carrier who first receives them is held to 
 evidence a contract to transport to such destination, while in 
 others such receipt is not lield to evidence a contract to convey 
 beyond that carrier's line; but in the jurisdiction in which these 
 diverse rulings are made there is a general concurrence of opin- 
 ion in the proposition that the carrier may by special contract ex- 
 empt itself from liability for an injury to freight resulting after 
 it has gone into the hands of another carrier to be transported to 
 destination. The ground of concurrence is contract, wdiich in 
 some jurisdictions it is held is necessary to relieve from liability 
 for the act of a connecting carrier over whose line the freight 
 must or does pass to its destination, while in the others it is held 
 that, in the absence of special contract, no such liability rests on 
 the recei\'ing carrier for injuries accruing after he has safely 
 passed the freight to a connecting carrier.' 
 
 An initial carrier whose contract of transportation expressly 
 limits its liability to its own road cannot be held liable for a delay 
 in transportation on a connecting line, due to an unexpected and 
 unprecedented snow blockade, and not contributed to by any neg- 
 ligence either on its part or that of the connecting carrier.* A 
 carrier may by special contract limit to its own line its liability 
 for negligence in the transportation and care of stock shipped, 
 and where it does so it is not liable for injuries due to the 
 negligence of another carrier.^ A carrier which undertakes 
 the shipment of stock for reduced through rates, and especially 
 limits its liability for negligence to its own line, cannot be 
 
 berg, 54 111. 88, 5 Am. Rep. 92; Binroughs v. mrrwich & W. R. Co. 100 
 Mnss. 26. 1 Am. Rep. 78; Uuited Stnfex Exp. Co. v. Ra-'^h, 24 Ind. 403; 
 Chicago & N. W. R. Co. v. MonlfoH, 60 III. 175; Erie R. Co. v. Wilcox, 84 
 111. 239, 25 Am. Rep. 451; Aldndge v. Great Western R. Co. 15 C. B. N. S. 
 582. 
 
 > See ante, § 95. 
 
 ''Palmer v. Atchison, T. & S. F. R. Co. 101 Cal. 178. 
 
 3 Galveston, H. & S. A. R. Co. v. Short (Tex. Civ. App.) Feb. 7, 1894.
 
 378 TRANSPORTATION BY CARRIER OVER CONNECTING LINKS. 
 
 rendered liable for injuries occnrring on a connecting line, on 
 the ground that the shi[)[)er did not want his stock shipped over 
 that route, as in such case the initial carrier has the right, in the 
 absence of any contrary stipulation, to choose its connecting lines.' 
 A delivered to the United States Express Co. a package of 
 money to be transported to a place not on the route of that com- 
 pany. The package was transported by the company to a point 
 on the line nearest the place of destination, and there delivered 
 as was customary, to the proprietors of a line of stages, known as 
 " "Winslow's Express," to be carried to its destination. The re- 
 ceipt given by the United States Express Co. stipulated that the 
 company undertook to forward the package to the point nearest 
 its destination reached by that company, and that the company 
 should be held liable as forwarders only. The package was lost 
 while in the custody of Winslow's Express. A.' action was 
 brought by the consignees against the United States Express Co. 
 to recover the value of the package. It was ruled that the 
 United States Express Co. was only bound to transport the pack- 
 age safely to the point on its line nearest to the place of destina- 
 tion and there deliver it to a proper carrier to be forwarded to its 
 destination, and having done this, that company was not respon- 
 sible for the subsequent loss.' It is perfectly competent for sev- 
 eral distinct and independent companies to limit their liability by 
 contract as expressed in the bill of lading, for the transportation 
 of goods over their line,' 
 
 Carriers making a through contract for the shipment of mer- 
 chandise, whether through an initial line agreeing to ship beyond 
 its own road or through a transportation company having no line 
 of its own, but simply authorized to ship over connecting lines, 
 may insert therein a fire exemption clause, although no offer is 
 made to assume the risk for additional compensation, since there 
 is no common law liability to make the through shipment,* and 
 certainly a bill of lading containing a clause in which it is mutu- 
 
 ' Galveston, H. cfe 8. A. R. Co. v. SJiort (Tex. Civ. App.) Feb. 7, 1894. 
 
 « United States Exp. Co. v. Rush, 24 Ind. 403. 
 
 ^Sdiiff V. New York Cent. & H. R. R. Co. 52 How. Pr. 91. 
 
 *Denung v. Merchants Cotton-Press & S. Co. 13 L. R. A. 518, 90 Tenn. 306.
 
 CARRIER MAY RESTRICT LIABILITY TO ITS OWN LINE. 379 
 
 ally agreed, in consideration of special rates, that the liability of 
 each carrier shall be limited to loss or injury to the goods occur- 
 ring on his own line, is a legitimate limitation of the carrier's lia- 
 bility, and becomes a part of the contract binding on the shipper, 
 although he could not read and did not know that the limiting 
 clause was in the bill.' A stipulation in a shipping contract, re- 
 stricting the right to recover against the carrier for damages done 
 to the property shipped, to the company in whose hands it is 
 when damaged, is a reasonable one.' 
 
 A carrier giving a shipping receipt limiting to its own line its 
 liability for loss of or damage to freight received by it, is not liable 
 for an injury occurring to freight in the possession of a connect- 
 ing carrier ; and its liability is not increased by the fact that the 
 freight was delivered at the termijius of its line to be taken by the 
 connecting carrier to its destination.'" A carrier is not lial)le for 
 damages to perishable freight, under a written contract l)y the 
 terms of which it is expressly provided that it shall not be respon- 
 sible beyond its own line, due to delays occurring on other roads, 
 where it is not guilty of any negligence while the freight is in its 
 possession.* 
 
 Under Mo. Rev. Stat. 1S89, § 941, a railway carrier receiving 
 goods to be shipped over its own and connecting lines to the point 
 of destination may stipulate in the contract of shipment against 
 damages to the goods occasioned by the negligence of the connect- 
 ing carrier.* A railway company receiving goods for transporta- 
 tion may limit its liability by specific agreement that it is to be 
 liable only for loss or damage occurring on its own line and not 
 for such as may occur on a connecting line." 
 
 An initial carrier may protect itself by contract against lialiility for 
 loss not occurring on its own line, whether the shipment be wholly 
 
 ' Jones V, Cincinnati, 8. & M. R. Co. 89 Ala. 376. 45 Am. & En^. R. Cas. 331 ; 
 
 Western R. Go. v. Harwell, 91 Ala. 340, 45 Am. & Eug. R. Cas. 358. 
 "^ Keio York & T. SS. v. Wright (Tex. Civ. App.) March 7, 1894. 
 ^ Tolman v. Abbot, 78 Wis. 192. 
 
 * Atchison, T. & S. F. R. Co. v. RicJiard-son , 53 Kan. 157. 
 ^ Hill V. Missouri Pac. R. Co. 46 Mo. App. 517. 
 
 * Nines V. St. Louis, I. M. & 8. R. Co. 107 Mo. 475.
 
 380 TRANSI'OKTATION BY CAKKIER OVER CONNECTING LINES. 
 
 witliin one state or be interstate,* even where the statute imposes the 
 lial>ility.° A raih'oacl operated partly in Texas and partly in another 
 state may limit its liability for carrying cotton into another state, 
 notwithstanding Tex. Rev. Stat. art. 278, which forbids carriers en- 
 tirely within the state to limit their liability at common law.' In 
 Texas, a carrier may by contract limit its liability to loss or dam- 
 age occurring on its own line of road and i)rovide that it shall not 
 be liable for any loss occurring on a connecting line ;* and in states 
 where the liability imposed on the first carrier may be relieved by 
 a written receipt from the next carrier, an instrument is effective, 
 although not in technical form.* 
 
 ^97. May Contract for Freight and Transporta- 
 tion beyond its own Line. 
 
 The right of a corporate carrier to go beyond its terminus to 
 procure freight and passengers, and to transport them to its ter- 
 minus for carriage over its route, is not absolute and unqualified, 
 but has some limitations. AVliat those limitations are, it is only 
 possible in a general M'ay to define. The New York Central & 
 Hudson River Railroad Company could not estal)lish a line of 
 steamers between Liverpool and New York to carry passengers 
 and freight from Liverpool to New York in order that it might 
 secure the business of transporting such passengers over its route 
 to Buffalo; but it might run ferryboats from Staten Island, or 
 from the New Jersey shore for the purpose of securing passen- 
 gers or freight for transportation over its route. The right to 
 go beyond its terminus to procure j)assengers and freight for 
 
 ' McCarn v. International & G. N. R. Co. 16 L. R. A, 39, 84 Tex. 352; Hill v. 
 Missouri Pac. B. Co. 46 Mo. App. 517; F. A. Brew Class Co. v. Ohio & M. 
 R. Co. 44 Mo. App. 416; Historical Pub. Go. v. Adams E.cp. Co. 44 Mo. App. 
 421; Mnes v. St. Louis, I. M. & 8. R. Co. 107 Mo. 475; Gulf, C. & S. F. B. 
 Co. V. Baird, 75 Tex. 256; Ft. Worth & D. C. R. Co. v. Williams, 11 Tex. 
 121; Hunter v. Southern Pac. R. Co. 76 Tex. 195; Texas & P. R. Co. v. 
 Adams, 78 Tex. 372; Harris v. Hoioe, 5 L. R. A. 777, 73 Tex. 537. 
 
 2 Dimmitt v. Kansas City, St. J. & C. B. R. Co. 103 Mo. 433. 
 
 3 Missoui'i Pac. B. Co. v. International M. Ins. Co. 84 Tex. 149. 
 
 4 Gulf. C & S. F. R. Co. V. Clarke 5 Tex. Civ. App. 547; Texas & P. R. Co. 
 
 V. Smith (Tex. Civ. App.) Dec. 18, 1893. 
 ^Miller v. South Carolina R. Co. 9 L. R. A. 833, 83 S. C. 359.
 
 CONTRACT FOE FREIGHT AXD TRANSPORTATION. 381 
 
 transportation over its route, l)y a corporate carrier, must be ex- 
 ercised within reasonable limits, and under such circumstances 
 that it may fairly be said to be incident to its legitimate corporate 
 powers.' Where this is the case, the power of a carrier, whether 
 incorporated or not, to render itself liable for the safe delivery of 
 goods beyond its own line, has been almost universally recog- 
 nized, — both in this country — except in Connecticut," and in Eng- 
 land. Such a contract is not uUi'a viresJ" 
 
 An initial carrier which undertakes the shipment of livestock 
 for a reduced through rate thereby binds itself to protect such 
 other rate, and is liable for any charge above the agreed rate, 
 made for transportation over its own or connecting lines." A 
 railway company may, by contract, assume to carry goods beyond 
 its line, and it will be then responsible as a common carrier for 
 the entire route," and liable for the acts and negligence of other 
 carriers not under its control.' A contract by the receiver of a 
 railroad company for the carriage of freight and passengers be- 
 yond the limits of the road immediately under its control is 
 valid.' A carrier which undertakes to transport freight be- 
 yond its own route is liable in Xew York for tlie consecjuences 
 of any want of reasonable diligence at any part of the route, 
 in the absence of any limitation of liability in the contract of af- 
 freightment.^ It ensures the delivery thereof to the consignee, and 
 is liable to him for any loss or injury occurring during transpor- 
 tation, except such as results from the act of God or a public 
 
 ' Swift V. Pacific Mail 8S. Co. 106 N. Y. 206. 
 
 ' Converse v. Norwich & N. T. Transp. Co. 33 Conn. 166. 
 
 ^ Feitaly. Middlesex R. Co. 109 Mass. 398, 12 Am. Rep. 720; Bissellv. Mirh- 
 
 igan, S. & N. I. R. Co. 22 N. Y. 258; Swift, v. Paciiic Mail SS. Co. supra; 
 
 Koyes v. Rutland <& B. R. Co. 27 Vt. 110; Weed v. Saratoga & S. R. R. Co. 
 
 19 Wend. 534 (See Editorial Note & Citation Lawyer Edition); Western <& 
 
 A. R. Co. V. McElwee, 6 Heisk. 219; Baltimore & P. S. B. Co. v. Brown, 54 
 
 Pa 77; Perkins v. Portland. S. & P. R. Co. 47 Me. 573, 74 Am. Dec. 507; 
 
 Wilby V. West Cornwall R. Co. 2 Hurlst. & N. 703; Wylde v. Northern R. Co. 
 
 of N. J. 53 N. Y. 156; Root v. Great Western R. Co. 45 N. Y. 524; Condict 
 
 V. Grand Trunk R. Co. 54 N. Y. 500. 
 * Galveston, H. S. & A. R. Co. v. Short (Tex. Civ. App.) Feb. 7, 1894. 
 « Hill Mfg. Co. V. Boston & L. R. R. Corp. 104 Mass. 122, 6 Am. Rep 202. 
 '^Noyes v. Rutland & B. R. Co. 27 Vt. 110. 
 ''Kansas Pac. R Co. v. Bayles, 19 Colo. 348. 
 ^Jennings v. Grand Trunk R. Co. 127 X. Y. 438, 49 Am. & Ens. R. Ca<?. 93.
 
 382 TJRANSl'OKTATION BY CARRIER OVER CONNECTING LINES. 
 
 enemy or tlie si»le fault of tlie owner or liis ai,^ent, including a 
 loss resulting from the combined fault of the carrier and such 
 owner.' 
 
 Where liability has once attached under a contract for the 
 shipment of goods over its own line and connecting lines, it can- 
 not be released by notice, or even a contract limiting its liability 
 for negligence of any connecting line.^ Nor can a carrier ex- 
 pressly contracting to deliver goods at a certain point, release 
 itself from liability by proof of delivery to another carrier to 
 complete such transportation.' 
 
 ?^ 98. Must Deliver Goods to Connecting Carrier. 
 
 One whose route, not being the first one, lies somewhere be- 
 tween the point of shipment and the j)oint of destination, along 
 the usual route of travel, is the connecting carrier. It becomes 
 such under the contract — express or implied — by which the ship- 
 per places in the hands of the carrier goods destined for delivery 
 beyond the initial carrier's line, — and to a point along the line of 
 the route occupied by such intermediate carrier. And the con- 
 tract to deliver, by the initial carrier, to a point of destination, 
 makes such connecting carrier the agent of the initial carrier for 
 Continuing the transportation. Or, if the initial carrier has only 
 undertaken to transport the goods to the end of its own line and 
 thence forward, by the connecting carrier, — the contract makes 
 such connecting carrier the agent of the shipper for transporting 
 them along his route." Under this definition, a "Transfer Com- 
 pany" or "Trucking Company" is not a connecting carrier where 
 it receives the goods after the point of destination has been 
 reached. It is said, that "there can be no connecting carrier who 
 does not, as such, receive the goods from the last preceding car- 
 rier, acting under and by virtue of the original contract for 
 tlirough transportation." Under such circumstances, where the 
 
 ' McCarthy v. Louisville d- N. R. Co. (Ala.) Dec. 22, 1893. 
 
 2 Cincinnati, H. <& D. R. Co. v. Pontius, 19 Ohio St. 221, 2 Am. Rep. 391. 
 
 ^Kyle V. Laurens R. Co. 10 Rich. L. 382; Little v.Semple, 8 Mo. 99, 40 Am. 
 
 Dec. 133. 
 ^ Hanson v. Jacob, 12 Mo. App. 125.
 
 MUST DELIVER GOODS TO CONNECTING CAHKIEK. 383 
 
 delivery is required, not at the depot of the carrier, but at a spe- 
 cial designation in the place, the transportation company is only 
 the means employed by the carrier thus to perfect its delivery.' 
 Where the consignee has been notified to get his goods, the trans- 
 fer company employed by him to remove them is not a connect- 
 ing carrier.^ 
 
 A carrier is not relieved from liability as an insurer by simply 
 unloading goods at the end of his line and storing them in a 
 warehouse without; delivery or attempting to deliver to next car- 
 rier/ Reasonable diligence must be used to deliver or tender 
 goods to the succeeding carrier." Goods marked to a destination 
 requiring their passage over the lines of several connecting car- 
 riers, impose a duty on each carrier to transport the goods safely 
 over its own route and deliver them to the connecting carrier/ 
 While, in the al)sence of a special contract, a railroad company is 
 not bound to carry goods beyond its terminus, — yet, if they are 
 directed to a point beyond its line, it is required to deliver them 
 to the proper custody to insure their transportation." 
 
 In the absence of any contract by an initial carrier to deliver 
 perishable goods at their destination, the carrier's common law 
 liability is to deliver the goods in good order to the connecting 
 carrier within a reasonable time; and it is not lialjle for any sub- 
 secjuent delay in forwarding the goods, by reason of which they 
 were delivered in a damaged condition.' The refusal of a car- 
 
 ^ Nmuon V. Jacob, 12 IMo. App. 125; Western & A. R. Co. v. Exposition Cot- 
 ton Mills, 2 L. R. A. 103, 81 Ga. 522. 
 
 ^Nanson v. Jacob, 93 Mo. 381. 
 
 ^^tnalns. Co. v. Wheeler, 5 Lans. 480, affirmed in 49 N. Y. 61G; Dunson 
 V. ^'ew York Cent. B. Co. 3 Lans. 265; Trixh v. Milwaukee Jt St. P. R. Co. 19 
 MiiiL. 37<), 18 Am. Il"p. 340; Micldann Cent. R. Co. v. Mineral Springs 
 Mfg. Co. 83 U. S. 16 Wall. 318, 21 L. ed. 297. 
 
 *Burrovrjhs v. Norwich & W. R. Co. 100 Ma?s. 26, 1 Am. Rep. 78; Whitworth 
 V. Erie R. Co. 87 N. Y. 413; Dunham v. Boston & M. R. Co. 70 Me. 164, 
 35 Am. Rep. 314; Regan v. Grand Trunk R. Co. 61 N. H. 579. 
 
 6 McDonald v. Western R. Corp. 34 N. Y. 497. 
 
 ^RomeR. Co. v. Sullivan, 25 Ga. 228. 
 
 "< Central R. & Bkg. Co. v. l^kelUe, Rickerson, 86 Ga. 686; Roller Mill Co. v. 
 Grand Rapids &I. R. Co. 67 Mich. 110; Nutting v. Connecticut River R. Co. 
 1 Gray, 502; Nashville & C. R. Co. v. Sprayberry, 8 Biixt. 341. 35 Am. Rep. 
 705; McConnell v. Norfolk & W. R. Co. 86 Va. 248; Illinois Cent. R. Co. v 
 Kerr, 6b Miss. 14.
 
 384 TKANSPOKTATION BY CARRIER OVER CONNECTING LINES. 
 
 rier, after payment of freight and oifer of customary switching 
 charges, to switch cars to a connecting line for delivery at the 
 coal yard of the consignee, whose financial responsibility is not 
 questioned, unless he promises in advance to pay any demurrage 
 charges that may be made, regardless of their unreasonableness, 
 will render the carrier liable for damages to him, although he 
 had previously refused to pay such charges on other cars.' So 
 long as a carrier holds the goods in his vehicles of transportation, 
 awaiting the pleasure, convenience, or necessities of the succeed- 
 ing carrier, his liability as carrier continues.'' A railroad com- 
 pany is not excused from delivery to a connecting carrier by a 
 clause in its charter that the company shall be responsible for 
 goods on deposit at its depot awaiting delivery, as M-arehousemen 
 and not as common carriers.' 
 
 Where a freight car is itself transported over connecting lines, 
 the liability of each connecting road does not commence until 
 the car is transferred to it, and the first carrier is liable to the 
 shipper until it shows such delivery." A carrier which checks a 
 passenger's baggage to a station upon a connecting railroad is lia- 
 ble for its destruction in a union depot used by both, before it 
 has delivered the baggage to the other carrier.^ The duty of a 
 carrier receiving goods to be transported beyond its route, is not 
 terminated by storing the goods in its warehouse at the end of 
 the route, unless there be a custom or special agreement to that 
 effect.^ It is competent to introduce evidence of the course of 
 business followed by connecting carriers, on a question of the de- 
 livery or receipt of goods between them.' 
 
 Where no special directions accompany the shipment, whose 
 destination is indicated only by the marks thereon, — the carrier 
 may assume that the shipper intends that they shall be trans- 
 
 ' Mndoon v. Chicago <fe N. W. R. Co. 3 Inters. Com. Rep. 711. 
 
 ■^ Bennitt v. Missouri P. R. Go. 46 Mo. App. 656. 
 
 3 Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318, 
 
 830, 21 L. ed. 21)7, 303. 
 *Rome R. Co. v. Sloan, 39 Ga. 636. 
 ° Ilyman v. Central Vermont R. Co. 66 Hun, 202. 
 ^ Irish V. Milwaukee & St. P. R. Co. 19 Minn. 376, 18 Am. Rep. 340. 
 ' Root V. Great Western R. Co. 65 Barb. 619.
 
 MUST DELIVER GOODS TO CONNECTING CABRIER. 385 
 
 ported in the usual and customary manner. Thus, if the usual 
 practice is to deliver goods marked to a certain point, to a con- 
 necting carrier by canal, or by steamer, or by stage, the carrier 
 will have discharged his duty when he has made such delivery, 
 in accordance with such custom to thus forward ;' and even a 
 duty implied by law under ordinary circumstances, may be con- 
 trolled by a uniform usage and course of business among car- 
 riers."'' But, in this, as in all other matters of business, the custom, 
 in order to have controlling force, must be general, uniform and 
 well established ; — and when the custom is thus proved it will be 
 conclusively assumed to be known to the shipper, and will be 
 binding upon him.' 
 
 A custom is something which has by its universality and an- 
 tiquity acquired the force and effect of law, in a particular place 
 or country, in respect to the subject-matter to which it relates, 
 and is ordinarily taken notice of without proof.^ The chief office 
 of custom is to illustrate the intention of contracting parties in 
 reference to matters on which the contract is not explicit, and 
 thereby terms not inconsistent with a contract may be held to be 
 a part of it ; but when the contract is clear and explicit, custom 
 cannot change it.^ Parties who are engaged in a particular trade 
 or business, or persons accustomed to deal with those engaged in 
 a particular business, ma}'^ be presumed to have knowledge of the 
 uniform course of such business. Its usages may therefore, in 
 the absence of any agreement to the contrary, reasonably be sup- 
 posed to have entered into and formed part of their contracts 
 and understandings in relation to such business, or ordinary inci- 
 dents thereto.* In such a case it is competent to show what the 
 
 > Van Santword v. St. John, 6 Hill, 160. 
 
 2 Rawson v. Holland, 59 N. Y. 618, 18 Am. Eep. 394. 
 
 » Ante, %% 33, 74. 
 
 * Morningstar v. Cunningham, 110 Ind. 328. 
 
 ^HarrellY. Zimpleman, 66Tex. 292; Smith y.Clews,4:l,. R. A. 392, 114N.T. 190. 
 
 ^East Tennessee V. & G. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; 
 Mooney v. Hoimrd Ins. Co. 138 Mass. 375, 52 Am. Rep. 277; Florence 
 Much. Co. V. Daggett, 135 Mass. 582; Fitzimmons v. Academy of Christian 
 Brothers, 81 Mo. 37; Cooper v. Kane, 19 Wend. 386, 32 Am. Dec. 512; 
 Kelton V. Taylor, 11 Lea, 264, 47 Am. Rep. 284; Morningstar v. Cunning- 
 ham, 110 Ind. 328. 
 
 25
 
 386 TEANSroRTATION BY CARKIEK OVER CONNECTING LINES. 
 
 known and ordinary usage of a particular business is, with a view 
 of raising a presumption that the transaction in question was ac- 
 cording to the ordinary course of the business to which it related.* 
 Sometimes, if the custom be legal, knowledge of its existence must 
 be brought home to the shipper.'' 
 
 While goods are passing over successive links of a connect- 
 ing line, — although they may be temporarily deposited in depots 
 or warehouses along the route, — they are considered in transit, 
 until their final destination is reached ; and the carrier in 
 whose possession they are when destroyed or injured is liable.' 
 The plaintiff was the owner of a line of steamers, employed in. 
 the transportation of goods between Baltimore and llichmond. 
 Its steamers were accustomed to stop at City Point, for the pur- 
 pose of landing goods to be sent to Petersburg. The defendant, 
 a railroad company, was engaged in the transportation of goods 
 over its railroad, from City Point to Petersburg. A contract ex- 
 isted between the parties, whereby goods and merchandise des- 
 tined for transportation to Petersburg were to be received by the 
 plaintiffs in Baltimore, carried in steamers to City Point, and 
 there delivered to the defendant to be by it transported over its 
 railroad to the place of destination. One of the steamboats of 
 the plaintiffs left Baltimore every Saturday afternoon, arrived at 
 City Point on Sunday, and there, such of its cargo as was des- 
 tined for Petersburg, was landed and deposited in the warehouse 
 of the defendants, and remained in the warehouse until the fol- 
 lowing day. After the goods in question had been so deposited 
 and on the same day the warehouse and all the goods were de- 
 stroyed by fire. Suit was brought against the plaintiff by the 
 shipper of the goods, and judgment was recovered against it. 
 All labor, " at any trade or calling on a Sabbath day, except in a 
 
 ^ Reissner v. Oxley, 80 Ind. 580; Lonergan v. Steioart. 55 111. 44; Li/on v. 
 
 » Gibson v. Culver, 17 Wend. 305, 31 Am. Dec. 299; Dunham v. Boston & M. 
 R. Co. 70 Me. 164, 35 Am. Rep. 314. 
 
 ^Conkey v. Milwaukee & St. P. R. Co. 31 Wis. 619, 11 Am. Kep. 630; over- 
 ruling, on this question, Wood v. Milwaukee & St. P. R. Co. 27 Wis. 541, 
 9 Am. Rep. 465.
 
 MUST DELIVER GOODS TO CONNECTING CAKRIER. 387 
 
 lionseliolcl, or other work of necessity or charity," is prohibited 
 in Virginia by the 16th section of the Code. In this case the 
 plaintiff made the contract with tlie shippers in its own name, col- 
 lected the entire freight money, and paid over to defendant such 
 portion of it as belonged to them nuder the arrangement. 
 
 It is said that to take care of the goods on a " Sabbath day," 
 and safely and securely keep them, after the goods were received 
 was a work of necessity, and, therefore, was not unlawful, and 
 there is no authority in any court to declare the goods forfeited 
 even admitting that the acts of landing and depositing the goods, 
 and of opening and closing the warehouse on Sundays, were 
 within the prohibition of the statute. Subsequent custody of the 
 goods was not within that prohibition ; and the law imposed the 
 obligation upon the defendant to keep the goods safely until the 
 following morning, and to transport them over the railroad to 
 the place of destination and deliver them to the consignees. A 
 subsequent custody of the goods was not unlawful ; the obliga- 
 tion of the defendant, under the circumstances of this case, was 
 not varied by the fact that the goods were deposited in its ware- 
 house by its consent on the " Sabbath day."' 
 
 Storage of goods passing over connecting lines, by one of the 
 intervening carriers in its depot, will not be treated as warehous- 
 ing the goods. This doctrine does not apply where goods are 
 consigned to a point beyond the line of the road storing them." 
 There must be a delivery to the next carrier ; and relation of 
 warehouseman cannot be assumed while the goods remain in the 
 depot." The carrier, forming a link in the transportation, while 
 holding goods for delivery to the connecting carrier, is the agent 
 of the owner,'' and is authorized to treat the connecting carrier as 
 the consignee's agent to receive the delivery; and its liability 
 continues until the goods are ready for delivery to such agent, 
 
 » Powhatan S. B. Co. v. Appomattox R. Co. 65 U. S. 24 How. 247, IG L. ed. 
 682. 
 
 ^Hooper V. Chicago & N. TF. R. Co. 27 Wis. 81. 9 Am. Rep. 434. 
 
 ^Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318, 21 
 L. ed, 297. 
 
 * Patten v. Union Pac. R. Co. 29 Fed. Rep. 590.
 
 3Sb TKANSPOKTATIOX BY CARRIER OVER CONNECTING LINES. 
 
 and a reasonable time has passed for the removal of the goods.' 
 The placing of a car by the initial carrier on the side track of the 
 connecting carrier, witliout giving the latter any notice, and with- 
 out marking it with the name and address of the consignee, or 
 sending any waybill or shipping directions, does not establish the 
 relation of common carrier between the shipper and the connect- 
 ing carrier. 
 
 A carrier has no right to assume, in discharge of his obliga- 
 tion, that an offer to deliver to the connecting carrier would have 
 been met with a refusal to receive.' If the goods are stored by 
 the carrier, without a reasonable, diligent attempt to secure their 
 forwarding in accordance with the instructions given to the car- 
 rier on their shipment, it will be liable." Where notice of the 
 arrival of goods is placed by custom, in a special depository, to 
 which the next carrier has access, this is a sufficient notice of the 
 arrival ; but if the goods are not removed within a reasonable 
 time, there should be a storage thereof or an act equivalent 
 to the legal termination of the relation of cari-ier.* A rail- 
 road company is not liable for the loss by fire of a car re- 
 ceived b}^ it from another company, while it is standing on its side 
 track at its destination to be unloaded by the consignee, although 
 by its contract it is to transport it to its yard when unloaded.' If 
 connecting line will not receive them, carrier may, after a reason- 
 able time, store them, and then be liable only as a warehouse- 
 man.' If the goods cannot be shipped, they must be carefully 
 
 1 Wood V. Milwaukee & St. P. R. Co. 27 Wis. 541, 9 Am. Rep. 465. 
 « ML Vernon Co. v. Alabama G. 8. li. Co. 92 Ala. 296. 
 
 3 Michigan Cent. B. Co. v. Mineral Springs Mfg. Co. 33 U. S. 16 Wall. 318, 21 L. 
 
 ed. 297. 
 
 4 Gas^ V. Neto York, P. & B. R. Co. 99 Mass. 220, 96 Am. Dec. 742; Merchants 
 
 Despatch Transp. Go. v. Kahn, 76 111. 520; Ayers v. Western R. Corp. 14 
 Blatchf. 9; Condict v. Grand Trunk B. Co. 54 N. Y. 500; Louisville & N. B. 
 Co. V. Campbell, 7 Heisk. 258; Michigan Cent. B. Co. v. Mineral Springs Mfg . 
 Co. 83 U. S. 16 Wall. 31^, 21 L. ed. 297; Brintnall v. Saratoga & W. B. Co. 
 32 Vt. 665; Irish v. Milwaukee & Si. P. B. Co. 19 Minn. 376, 18 Am. Rep. 
 340. 
 
 ^ Mills V. Michigan Cent. B. Co. 45 N. Y. 622, 6 Am. Rep. 152; Angle v. Missis- 
 sippi & M. B. Co. 9 Iowa. 487. 
 
 ^Peoria & P. U. B. Co. v. United States Boiling Stock Co. 136 111. 643. 
 
 ■" Nutting v. Connecticut Biver B. Co. 1 Gray, 502; Baicson v. Holland, 59 N. Y. 
 611, 18 Am. Rep. 394.
 
 MUST DELIVER GOODS TO CONNECTING CAEEIEK, 389 
 
 stored.' Otherwise the carrier will be liable for a conversion of 
 the goods.' 
 
 Upon the refusal of the connectino; carrier — to whom the car- 
 rier is instructed to transfer the goods — to accept them, the con- 
 signor or consignee should be notified and reasonable care should 
 be taken to protect the goods.' Where the goods are declined for 
 any reason by the carrier to whom they are tendered, the original 
 carrier must use due diligence in shipping them by the best avail- 
 able remaining method ; and he will be relieved from responsibil- 
 ity for any loss that may result after such effort.* A carrier may 
 require prepayment of freight charges from any shipper, at its 
 choice, and may lawfully refuse to receive freight from a receiv- 
 ing carrier without such prepayment, although it does not require 
 it from others ; but notice of such requirement should be given 
 to the shipper or receiving carrier.^ 
 
 A reasonable time within which the connecting carrier must ac- 
 cept goods ready for delivery to him by the preceding carrier, is 
 the earliest practicable time after the first carrier gives notice of 
 its readiness to deliver, and is not affected by circumstances ren- 
 dering it embarrassing for the second carrier to accept them wdth 
 promptness. The question is one for the jury, controlled, of 
 course, by this rule of law.° 
 
 It is the carrier's duty to inform the shipper of any unavoid- 
 able circumstances existing at the termination of his own route, 
 
 ' Leiiimky v. Great Western Dispatch, 10 Mo. App. 134; Wliiticorth v. Erie R. 
 Co. 87 N. Y. 413; Condon v. Marquette & 0. B. Co. 55 Mich. 218, 54 Am. 
 Rep. 367. 
 
 « Georgia R. Co. v. Cole, 68 Ga. 623. 
 
 ^Petersen v. Case, 21 Fed. Rep. 885; Goold v. Chapin, 20 N. Y. 259, 75 Am. 
 Dec. 398 ; Lesinsky v. Great Western DispatcJi Co. supra; Strong v. A Cer- 
 tain Quantity of Wheat, 70 U. S. 3 Wall. 225, 18 L. ed. 194; LouisiiUe & N. R. 
 Co. V. CampbeU, 7 Heisk. 253. 
 
 *Hornthal v. Roanoke, N. & B. 8. B. Co. 107 N. C. 76; Regan v. Grand Trunk 
 R. Co. 61 N. H. 579; Peck v. Weeks, 34 Conn. 145; Gray v. Jackxon, 51 N. H. 
 9, 13 Am. Rep. 1; Nashville & C. R. Co. v. David, 6 Heisk. 261, 19 Am. Rep. 
 594; St. Louis Ins. Co. v. St. Louis, V. T. H. & I. R. Co. 104 U. S. 146, 26 L. 
 ed. 679; Cass v. Boston & L. R. Co. 14 Allen, 448; Empire Tramp. Co. v. 
 Wallace, 68 Pa. 302, 8 Am. Rep. 178; American Exp. Co. v. Smith, 33 Ohio 
 St. 511, 31 Am. Rep. 561. 
 
 ''Randall v. Richviond ifi D. R. Co. 11 L. R. A. 460, 107 N. C. 748. 
 « Wood V. Milwaukee & St. P. R. Co. 27 Wis. 541, 9 Am. Rep. 4G5.
 
 390 TRANSPORTATION BY CARRIER OVER CONNECTING LINES. 
 
 in the way of a proin])t delivery to tlie carrier next in line.' And 
 it is liable for detention of goods addressed to a specified place 
 " via " another, at the latter, withont using reasonably available 
 means to forward them to their destination or notifying 
 the consignee, notwitlistanding any custom of its own not 
 communicated to the shipper or consignee." !No custom, how- 
 ever, will be recognized which is in direct confiict with the 
 settled legal rights of the parties, thus : A custom is illegal 
 which requires a shipper to agree as a condition of shipment, that 
 his measure of damages should not be more than the cash value of 
 the stock shipped at the place of shipment.' But a carrier's 
 failure to notify a shipper of the liability of storms on a con- 
 necting line is not such negligence, as matter of law, as would 
 render it liable for a delay in transportation caused by an un- 
 usual and unexpected blockade, but should be submitted to the 
 jury to determine whether the company was in. fact negligent/ 
 
 The common law ol)ligations of a railroad company to a con- 
 necting line are the same as to reception, transportation and de- 
 livery of freight as those existing between a railroad company 
 and an individual shipper. The receiving carrier has no more 
 right to require the delivering carrier to stop its cars at the junc- 
 tion of the two roads than an individual would have to require 
 to stop at the point nearest his residence.' While a constructive 
 delivery, by deposit at a place agreed upon by connecting carriers, 
 may be sufficient as between the carriers, to cast the loss upon the 
 carrier in default, such custom will not affect the shipper, who 
 retains his recourse upon the carrier who, while making a con- 
 structive delivery, has not actually transferred the property to the 
 connecting carrier.* A railway company does not, by giving its 
 
 • Michigan Gent. B. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318, 21 
 
 L. ed. 297. 
 ^ Denver & R. Q. R. Co. v. De Witt, 11 Colo. App. 419. 
 
 3 Missouri Pac. M. Co. v. Fagan, 2 L. R. A. 75, 72 Tex. 127. 
 
 4 Palmer v. AicMson, T. & S. F. B. Co. 101 Cal. 178. 
 ^Shelbyville B. Co. v. Loiiisville, C. & L. R. Go. 82 Ky. 541. 
 
 « Conkey v. Mihoankee & St. P. R. Co. 31 Wis. 619. 11 Am. Rep. 630; McDonald 
 V. Western B. Corp. 34 N. Y. 497; Condon v. Marquette, H. & 0. R. Go. 55 
 Mich. 218, 54 Am. Rep. 367; Meriam v. Hartford tfc N. R. R. Co. 20 Coun.
 
 MUST DELIVEK GOODS TO CONNECTING CAKRIERS. 391 
 
 "bills of lading for cotton in tlie sheds of another company, take 
 possession of the cotton, and does not make the other company 
 its assent to hold the cotton.' 
 
 "Where, by agreement between the first carrier and connecting 
 carrier, neither considered the goods as delivered from one to the 
 other unless the freight was paid or the waybill endorsed " freight 
 charges guaranteed," the first carrier cannot, by placing the car 
 of goods on the track used in common by them, and notifying 
 the connecting carrier, but without guaranteeing the latter's 
 freight charges, relieve itself from liability for goods damaged 
 by fire in a depot of the connecting carrier.* The placing of a 
 car by an initial carrier on the side track of the connecting car- 
 rier, without giving the latter any notice, and without marking it 
 with the name and address of the consignee, or sending any way- 
 bill or shipping directions, does not establish the relation of con- 
 tractors between the initial and the connecting carrier.^ 
 
 Where the road on which goods were shipped, delivered the 
 goods to a connecting road with a transfer bill, damages cannot 
 be claimed against the first road for the wrongful delivery by the 
 connecting road to the consignee, without requiring the j^resenta- 
 tion of the bill of lading.^ And where parties are in joint 
 possession of premises, and a particular place within those prem- 
 ises is designated at which one carrier shall deposit goods 
 transported over his line, and which are to be carried by 
 the connecting carrier in joint possession of the premises, 
 such deposit will be treated as an actual delivery." The gen- 
 eral rule is that a carrier of goods destined beyond his 
 line, is — as to the succeeding carrier — the owner, and he has power 
 to contract with such succeeding carrier on behalf of the owner, 
 
 362, 52 Am. Dec. 344; Michigan S. & N. I. R. Co. v. SImrtz, 7 Mich. 518; 
 
 Goohi V. Chapin, 20 N. Y. 259, 75 Am. Dec. 398; Fenner v. Buffalo & 8. L. 
 
 R. Co. 46 Barb. 103; ^tna Ins. Co. v. Wheeler, 49 N. Y. 161. 
 > St. Louis, I. M. & S. R. Co. v. Commercial U. Ins. Co. 139 U. S. 223, 35 L. ed. 
 
 154. 
 ^Palmer v. Chicago, B. & Q. R. Co. 56 Conn. 137. 
 ^Mt. Vernon Co. v. Alabama O. S. R. Co. 92 Ala. 296. 
 * Rickerson Roller Mill Co. v. Qro.ml Rapids & 1. R. Co. 67 Mich. 110. 
 ^ Pratt V. Grand Trunk R. Co. 95 U. S. 43, 24 L. ed. 336; Converse v. Norwich 
 
 & N. T. Transp. Co. 33 Conn. 166.
 
 392 TRANSPORTATION BY CARRIER OVER CONNECTING LINES. 
 
 and release and limit the liability of the latter the same as the 
 owner could do ; and it is his duty — unless his authority is ex- 
 pressly limited — to enter into such contract, and forward the 
 goods, rather than retain them and await instructions.' This au- 
 thority of the original carrier, however, it lias been held, cannot 
 make the owner responsible for the negligence of a connecting 
 road.'' In a delivery of the goods to the succeeding carrier, care 
 must be taken to accompany such delivery with full and accurate 
 information as to the instructions under which the goods were 
 shipped. And on failure to communicate such instructions, and 
 the consequent loss of the goods, the original carrier will be lia- 
 ble.' 
 
 A bill of lading is the written contract of the parties and by 
 its terms their riglits and liabilities must be measured,* and the 
 carrier undertaking to forward the goods to the destination indi- 
 cated by the marks is liable for loss where it delivers the goods 
 to a connecting line without the instructions contained in their 
 bill.' A condition on the back of a tlirough bill of lading, reliev- 
 ing a railway company from responsibility as soon as the goods 
 have been delivered to the next succeeding carrier, is legal and 
 reasonable, and is binding on the shipper, who either has, or from 
 the circumstances is presumed to have, knowledge thereof, and 
 to have accepted the contract subject to such condition.* 
 
 The shipper who accepts a bill of lading for goods consigned 
 to a point beyond the terminus of the initial carrier's line, in le- 
 gal contemplation, authorizes the initial carrier to select any rea- 
 
 1 S(jvire v. New York Cent. & E. R. R. Co. 98 Mass. 240, 93 Am. Dec. 162; 
 
 Rawson V.Holland, 59 N-. Y. 611, 18 Am. Rep. 394; York Mfg. Co. v. Illinois 
 Cent. B. Co. 70 U. S. 3 Wall. 113, 18 L. ed. 173; Marquette, H. & 0. R. Co. 
 V. Kirkwood, 45 Mich. 51, 40 Am. Rep. 453. 
 
 2 Sherman v. Hudson River R. Co. 64 N. Y. 254; Dunham v. Boston & M. R. 
 
 Co. 70 Me. 164, 35 Am. Rep. 314. 
 
 ^ North V. Merchants & M. Tramp. Co. 146 Mass. 315; Little Miami B. Co. v. 
 Washburn, 22 Ohio St. 334. 
 
 *Fry V. Louisville, N. A. & C. R. Co. 103 Ind. 265. 
 
 * North V. Merchants & M, Transp. Co. supra. 
 
 ^ Beaumont V. Canadian Pac. B. Co. 5 Mont. L. Rep. (Super. Ct.) 255; Grand 
 Trunk B. Co. v. McMillan, 16 Can. S. C. 543, 43 Am. & Enij. R. Cas. 468^ 
 Central B. & Bkg. Co. v. Avant, 80 Ga. 195: Ohio & M. B. Co. v. Einrich^ 
 24 111. App. 245; Bethea v. Northeastern B. Co. 26 S. C. 91.
 
 MUST DELIVER GOODS TO CO^'NECTI^'G CARRIER. 39S 
 
 sonable or usual direct and safe route bj which to forward after 
 the goods reach the end of his hne, — unless the particular line by 
 which the goods consigned are to be forwarded, is designated in 
 the bill of lading. If the bill be silent in respect to the line by 
 which the goods are to be forwarded, parol evidence will not be 
 permitted to show that a special line was agreed upon.' 
 
 If a shipper gives no directions as to the particular route by 
 wliicli the freight is to be sent forward, it is the duty of the freight 
 agent to forward it by the best and cheapest route for the ship- 
 per. But where a shipper directs the initial carrier as to the 
 route by which the freight shall be shipped to destination, the 
 freight agenf should make proper notations on the waybill to ac- 
 complish the purpose.' At common law, a carrier is not bound 
 to carry except on his own line, and if he contracts to go beyond, 
 he may confine himself in carrying, to the particular route he 
 chooses to use and may select his own agencies.' While it is the 
 duty of a state carrier which engages in interstate commerce to 
 forward traffic offered from a connecting line, there is no author- 
 ity, in the Interstate Commerce Act, to compel the carrier to 
 forward the traffic over a route not oj^erated or selected by itself.* 
 
 Generally, where there is a choice among connecting carriers, 
 the directions of the shipper must be followed." A carrier is not 
 justified in making a delivery of a shipment, except in accordance 
 with the bill of ladino;/ Where the first carrier delivered the 
 goods to a railroad other than that named in the agreement, and 
 they were burned while in possession of such second carrier, the 
 first carrier is liable for the loss,' and where there is an express con- 
 
 ' Snow V. Indiana, B. & W. R. Co. 109 Ind. 422; Camden & A. R. Go. v. For- 
 syth, 61 Pa. 81; White v. Ashton, 51 N. Y. 280; Hinckley v. Kew York Cent. 
 & H. R. R. Co. 56 N. Y. 429; Indianapolis & C. R. Co. v. Remmy, 13 Ind. 
 518; Patten v. Union Pac. R. Co. 29 Fed. Rep. 590. 
 
 "^ Pankey v. RicJunond & B. R. Co. 3 Inters. Com. Rep. 33. 
 
 ^Atchison, T. & S. F. R. Co. v. Denver &N. 0. R. Co. 110 U. S. G67, 28 L. ed. 
 291. 
 
 * Mattingly v. Pennsylvania Co. 2 Inters. Com. Rep. 806. 
 
 ^Rawson v. Holland, 59 N. Y. 611, 18 Am. Rep. 394. 
 
 ^Pennsylvania R. Co. v. Stern, 119 Pa. 24. 
 
 ''Independence Mills Co. v. Burlington, C. R. & N. R. Co. 72 Iowa, 535. See 
 also Palmer v. Chicago. B. d; Q. R. Co. 56 Conn. 187; Patten v. Union Pac. 
 R. Co. 29 Fed. Rep. 590.
 
 394 TRANSPOETATION BY CARRIER OVER CONNECTING LINES. 
 
 tract to deliver to the order of the plaintiff at the end of defend- 
 ant's route, a contract to forward by a connecting carrier beyond 
 the terminus of its route cannot be implied.' If possession of 
 goods be given for a specific purpose, as to a carrier or wharfinger, 
 the property is not changed by the sale of such a bailee, and the 
 owner may recover them even from the bona fide buyer." , An 
 agent constituted for a particular purpose, and under a limited 
 power, cannot bind his principal if he exceeds that power.' 
 A carrier which has received merchandise under a bill of lad- 
 ing providing for delivery to a vessel named, or some other 
 steamship company or line, or vessels chartered thereby, is enti- 
 tled to recover the possession thereof upon refusal o^ the master 
 of such vessel to sign any receipt or bill of lading except one con- 
 taining the provision, " other conditions as per charter party," 
 although the property is in fact owned by the charterer, since 
 such provision would render the carrier liable as for a variation 
 from the terms of the bill of lading, and it is not required to as- 
 sume any additional liability.* 
 
 § 99. Contract for Through Carriage, 
 
 Railway companies, unless forbidden by their charters, have 
 the power to contract for shipments the entire distance over any 
 connecting lines. The contracting company is liable upon the 
 other lines as upon its own.^ It may contract to deliver Ijeyond 
 the limit of the state which incorporated it.* The supreme court 
 of Connecticut is the only one denying this proposition.'' A carry- 
 
 » Ortt V. Minneapolis & St. L. B. Co. 36 Minn. 396; Worth v. Mercliants & M. 
 
 Transp. Co. 146 Mass. 315. 
 * Wilkinson v. King, 2 Campb. 335. 
 3 Munn V. Commission Co. 15 Johns. 44, 8 Aro. Dec. 219; Beals v. Allen, 18 
 
 Johns. 3G3, 9 Am. Dec. 221; Thompson v. Stewart, 3 Conn. 172, 8 Am. Dec. 
 
 168; Andrews v. Kneeland, 6 Bow. 354; Blane v. Proudfit, 3 Call, 207, 2 
 
 Am. Dec. 546. 
 ^ The Torgorm, 48 Fed. Rep. 584. 
 « Ohio & M. R. Co. V. McCarthy, 96 U. S. 258, 34 L. ed. 693; Ogdemhurg & 
 
 L. C. B. Co. V. Pratt, 89 U. S. 22 Wall. 123, 22 L. ed. 827; Hill Mfg. Co. 
 
 V. Boston <$■ L. B. Co. 104 Mass. 122, 6 Am. Rep. 202. 
 < Burtis V. Buffalo & S. L. R. Co. 24 N. Y. 269. 
 '' Converse Y . Norwich & N. T. Transp. Co. 33 Conn. 166; Hood v. New York 
 
 <& N. H. B. Co. 22 Conn. 502.
 
 CONTKACT FOK THKOUGH CARRIAGE. 395 
 
 ing corporation over a portion of a continuous line of transporta- 
 tion may contract to carry beyond the terminus of its route, and 
 such a contract is not ultra vires.^ 
 
 Where the contract of the initial carrier is not express for 
 through carriage, it becomes a question of fact upon the evidence 
 adduced. It ha« been held in some cases, that a bill of lading 
 or a receipt for the goods marked to a particular point, and the 
 payment of the full freight to that point, will be sufficient as 
 evidence of such a contract.' Any evidence from which the in- 
 tention of the parties can be properly inferred, is proper as bear- 
 ing upon this question. ^Yhere the defendant was part owner of a 
 line of steamships between San Francisco and the Isthmus of 
 JSTicaraugua, and was the owner of a connecting line between the 
 isthmus and K'ew Tork, which he advertised as "Yanderbilt's 
 ]^ew Line, — The Only through Line via ]^icaraugua to San 
 Francisco," and an independent line across the isthmus furnished 
 tickets to the defendant, and a common agent of the defendant 
 and the company running its line upon the Pacific coast sold 
 tickets, — one from Xew York to the isthmus, another across the 
 isthmus; — and another ticket indicating a vessel in which the de- 
 fendant had no interest, but the tickets entitling the passenger to 
 a continuous passage from ISTew York to San Francisco, — the evi- 
 dence was regarded as sufficient to hold the defendant liable for 
 the failure of the vessel in which the j^laintiff was entitled to 
 transportation from the isthmus to San Francisco to appear; and 
 the consequent delay and illness of the plaintilf occasioned by the 
 climate.' 
 
 That the cars upon which the goods are placed, pass not only 
 over the initial carrier's line, but over the connecting carrier's, 
 and that the arrangements made for continuous shipping are rec- 
 
 ^Weed V. Saratoga & 8. R. Co. 19 Wend. 534; Wylde v. jVorfhern R. Co. of N. 
 J. 53 N. Y. 156; Rooty. GreatWestern R. Co. 45 N. Y. 524; Condict v. 
 Grand Trunk R. Co. 54 N. Y. 500; Swift v. PaciHc Mail SS. Co. 106 N. Y. 
 206; Jennings v. Grand Trunk R. Go. 52 Hun, 227. 
 
 * Illinois Cent. R. Co. v. Frankenherg, 54 111. 88, 5 Am. Rep. 92. But see 
 
 ante, § 95. 
 
 • quimhtj V. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469. See Hill Mfg. Co. v. 
 
 Boston & L. R. Corp. 104 Mass. 122, 6 Am. Rep. 202; Rooty. GreatWest- 
 ern R. Co. 45 N. Y. 532.
 
 396 TRANSPORTATION BY CARRIER OVER CONNECTING LINES. 
 
 ognized by the other roads, that the usage existed for throiif!:;h 
 carriage, that a through rate was paid, and the bill of lading pur- 
 ported to be for through carriage, — are facts which may properly 
 be considered in determining, not only the initial carrier's lia- 
 bility along the whole line, but, in an action against one of the 
 connecting carriers for liability for loss of goods while in its pos- 
 session.' An advertisement by the initial carrier headed, — "Great 
 Through Fast Route to All Points North and East;" "This Ee- 
 liable through Line makes the Shij^ment of Cotton and Tobacco 
 a Specialty;" "Contract for a Through Rate;" "Through Rates 
 $10.25 per Bale from Columbus to Boston;" is said to be evidence 
 that the cotton is the subject of the contract of carriage over the 
 entire line.* A bill of lading for the transjDortation of goods 
 from H. to G. in Texas, and for the delivery at the latter place 
 to the consignee or a connecting carrier, is not a contract for car- 
 riage beyond that place, notwithstanding that it guarantees a 
 through rate of freight to a town in Connecticut, which is named 
 in it as the ultimate point of destination.' 
 
 Where the terms of the receipt of the carrier were "to forward 
 to Dalton," a point beyond its own line, — it was held that this 
 was not a contract to carry it to that point, but that the carrier 
 was discharged, having safely delivered to a connecting carrier.* 
 But, there are authorities which do not sustain such an interpre- 
 tation of this form of contract, unless there be peculiar circum- 
 stances indicating an intent to limit the contract to the carrier's 
 own line.* Where goods are marked to a point beyond the line 
 
 ' Ogdenslmrg & L. G. R. Co. v. Pratt, 89 U. S. 22 Wall. 123, 23 L. ed. 827; 
 
 Boot V. Great Western B. Go. 45 N. Y. 524. 
 ■*Evansville & G. B. Co. v. Androscoggin Mills, 89 U. S. 22 Wall. 594, 22 L. 
 
 ed. 724. See Bobinsonv. MercJiants DespatcJi Transp. Go. 45 Iowa, 470; 
 
 Gandee v. Pennsylvania B. Go. 21 Wis. 582, 94 Am. Dec. 566; Berg v. 
 
 Narragansett SS. Go. 5 Dalv, 394; International & G. JV. B. Go. v. Tisdale, 
 
 4 L. R. A. 545, 74 Tex. 8. ' 
 2 Bennitt v. Missouri Pac. B. Co. 46 Mo. App. 656. 
 4 Bced V. United States Exp. Go. 48 N. T. 462, 7 Am. Rep. 561. 
 ^Buckland v. Adams Exp. Co. 97 Mass. 124, 93 Am. Dec. 68; St. Louis, K. G. 
 
 & JS. R. Co. V. Piper, 13 Kan. 505: East Tennessee & V. B. Co. v. Bogers, 
 
 6 Heisk. 143, 19 Am. Rep. 589; Nashua Lock Co. v. Worcester & N. B. Co. 
 
 48 N. H. 339, 2 Am. Rep. 242; Cutts v. Brainerd, 42 Vt. 566, 1 Am. Rep. 
 
 353.
 
 CONTRACT FOE THROUGH CARRIAGE. 397 
 
 of the carrier receiving it, and a receipt is given stating the marks 
 on the goods, with an engagement to forward by its road and 
 transfer to ... or order, at its depot in . . . , he or 
 they first paying freight, etc., with a stipnlation that, if the mer- 
 chandise be not called for on its arrival, it will be stored at the 
 risk and expense of the holder, — the carrier will be responsible 
 for the delivery of the goods at the point for which they are 
 marked.' A common carrier contracting to deliver goods at a 
 certain place is lia])le for them after they have been delivered at 
 an intermediate point to another carrier to forward to their des- 
 tination.* AYhere the lial)ility of the receiving carrier is stipu- 
 lated to terminate on delivery to another carrier, when the goods 
 were "unloaded from the cars at the place of delivery," and the 
 cars were transferred to the next carrier without unloading the 
 goods, the contract was construed as a through freight contract, 
 rendering the first carrier liable beyond its terminus.^ 
 
 The successive receipt and forwarding in ordinary course of 
 business, by two or more carriers, of interstate traffic shipped un- 
 der through bills for continuous carriao^e over their lines, is assent 
 to a "common arrangement" for such carriage within the mean- 
 ing of the Act to Regulate Commerce, without previous express 
 agreement between them.* The words "common control, man- 
 agement, or arrangement," as found in the Act to Regulate Com- 
 merce, § 1, apply to a case where the initial carrier furnishes the 
 shipper with a car specially fitted up for his business, which is 
 taken over connecting roads on special through time tables.^ A 
 bill of lading of fruit, issued in Georgia and headed with the 
 name of a certain railroad company "and connections," stating 
 that the fruit is consigned to certain persons in New York and 
 Philadelphia, to be transported by the company and connecting 
 carriers to the station or wharf nearest its ultimate destination, a 
 guaranty of freight charges for the entire route being taken from 
 
 > Cutts V. Brainerd, 42 Yt. 566, 1 Am. Rep. 353. 
 « Little V. Semple, 8 Mo. 99, 40 -Am. Dec. 123. 
 3 Toledo, P. & W. R. Co. v. Merriman, 52 III, 123, 4 Am. Rep. 590. 
 * Troy Board of Trade v. Alabama Midland R. Co. 4 Inters. Com. Rep. 348. 
 ^Boston Fruit & P. Exch. v. New York & N. E. B. Co. 3 Inters. Com. Rep. 
 493.
 
 398 TBANSPOKTATION BY CARRIER OVER CONNECTING LINES. 
 
 the shippers, — is a through contract for shipment from Georfi^ia 
 to New York and Philadelphia, renderin*^ the company si<^nin<^ 
 it responsible for performance beyond the terminus of its own 
 road.' See Kay, Passenger Carriers, §§ 148, 158. 
 
 Where goods are received by the carrier, guaranteeing that the 
 cost of delivery of the goods beyond its own line shall not exceed 
 a fixed rate, l)ut stipulating against liability beyond its own line, 
 it will not be held liable under a through contract, — although the 
 rate guaranteed is less than the aggregate charges usual on the 
 several lines over which the freight must pass, where this con- 
 tract is unknown to the other carriers.^ Where goods are trans- 
 ported over connecting lines, under an agreement that each suc- 
 cessive carrier is to receive the goods, advancing the freight 
 charges, and the last one collecting the whole from the consignor, 
 tliis collection by the final carrier, and payment of the charges to 
 its predecessor, will not render it liable for an injury to the goods 
 before it receives them.' A contract of a railroad company to 
 transport to tlieir destination goods marked for transportation to 
 a point be3'ond its terminus, renders the carrier liable in Georgia 
 for an injury by the negligence of its connecting lines, al- 
 though such carrier is itself only a connecting line with that to 
 which the goods were originally delivered by the shipper." A 
 bill of lading showing the destination and the consignees, as well 
 as the shipper, saying the goods are shipped in good order, •' to 
 be delivered in good order as addressed," at a certain place be- 
 yond the line of the carrier's road, is a through contract." Where 
 the line of transpoi'tation extends through different states, the 
 rights of the parties in case of loss would be governed by the 
 laws of the state where the loss occurred." 
 
 The liability of the carriers, where there are connecting lines, 
 and which carrier may be sued, has been the subject of much 
 
 ' Central R. & Bkg. Co. v. Hasselkus, 91 Ga. 383. 
 
 « Schneider v. Evans, 25 Wis. 241, 3 Am. Rep. 56. 
 
 ^Darling v. Boston &W. B. Corp. 11 Allen, 295. 
 
 * Beard v. St. Louis, A. & T. H. B. Co. 79 Iowa, 527, 42 Am. «&Eng. R. Cas. 
 
 509. 
 ' Hanson v. Flint & P. M. B. Co. 73 Wis. 346. 
 ^Barter v. Wheeler, A9 N. H. 9, 6 Am. Rep. 434.
 
 CONTKACT FOK THROUGH CARRIAGE. 399 
 
 discussion. The English doctrine is, that in the absence of a spe- 
 cial contract, the first carrier is liable to the destination — that is, 
 he is exclusively liable, — unless released by contract, or unless the 
 receiving; carrier can be considered as agent or partner of the con- 
 necting carrier.' For want of privity of contract, it is said, that 
 the connecting carrier cannot be sued by the shipper, even though 
 his default has caused the loss or injury. That it is presumed 
 that the initial carrier contracts as controlling the entire line of 
 communication.^ And it is said that it would be inconvenient 
 for the carrier to seek out the guilty party along the line of a 
 connecting carrier in a distant locality, and establish the fact of 
 negligence or that a loss occurred on that particular division ; and 
 that the original carrier has facilities for enforcing a claim on its own 
 behalf against a defaulting connecting carrier, not possessed by the 
 shipper.' An initial carrier which assumes liability for the transpor- 
 tation of freight over a through line formed by several carriers, and 
 which is obliged to pay damages resulting from the negligence of 
 a connecting carrier, may recover over against the latter.^ But 
 where, as is the rule generally in the United States, the fact of 
 original liability in the initial carrier does not exclude a right of 
 action against the intermediate carrier in whose possession the 
 goods are damaged or lost, the force of this objection is materi- 
 ally weakened. 
 
 In this country the universal rule, — nnless in Georgia* — is, that 
 
 the action will always lie against connecting carriers, in whose 
 
 • possession the goods were at the time of their injury or loss.^ 
 
 ' Muschamp V.Lancaster & P. J. R. Co. 8 Mees. «& W. 421; Mytton v. Midland 
 
 B. Co. 28 L. J. Exch. 385; Bristol S E. B. Co. v. Collins, 29 L. J. Exch. 41; 
 
 Coxon V. Great Western B. Co. 29 L. J. Exch. 165; Foulkcs v. Metropolitan 
 
 Dist. B. Co. 28 Week. Rep. 526. 
 - Bristol & E. B. Co. v. Collins, supra; Wilby v. West Cornwall B. Co. 2 Hurlst. 
 
 & N. 707. 
 ^Nashua Lock Co. v. Worcester & N. B. Co. 48 N. H. 339, 2 Am. Rep. 242; 
 
 Western &A.B Co. v. McEboee, 6 Heisk.208; Illinois Cent. B. Co. v. Frank- 
 
 enberg, 54 111. 88, 5 Am. Rep. 92. 
 * Missouri Pac. B. Co. v. Twiss, 35 Neb. 267. 
 ^Southern Exp. Co. v. Shea, 38 Ga. 519; Mosher v. Southern Exp. Co. 38 Ga. 
 
 37; Cohen v. Soutliern Exp. Co. 45 Ga. 148. 
 ^International & O. N. B. Co. v. Tisdale, 4 L. R. A. 545, 74 Tex. 8; Barter 
 
 V. Wheeler, 49 N. H. 9, 6 Am. Rep. 434; Chicago & N. W. B. Co. y. Northern 
 
 Line Packet Co. 70 111. 218; Packard v. Taylor, 35 Ark. 402, 37 Am. Rep. 
 
 37; Halliday v. St. Louis, K. & N. R. Co. 74 Mo. 159, 41 Am. Rep. 309.
 
 400 TRANSPORTATION BY CARRIER OVER CONNECTING LINES. 
 
 A connecting carrier into whose hands corae goods received by 
 anotlier company on a contract with the owner to carry them to 
 their destination, is Hable in an action of tort for unreasonable de- 
 lay in delivering them at their destination, although there are no 
 contract relations between the two companies, or between the 
 owner of the goods and the company causing the damage.' But 
 a carrier receiving goods from a connecting carrier will not be 
 responsible for injury to the goods, unless it is shown to have oc- 
 curred on its line ; — even though it acted as agent for subsequent 
 carriers in receiving the goods.^ Where a forwarder, to whom a 
 carrier delivers goods, is its agent and the agent of the company 
 to whom the same are delivered, and the forwarder gives the 
 bill of lading limiting the duty of the latter to deliver the goods to 
 anotlier company, the bill of lading will be binding upon the tirst 
 and second carriers, and the second carrier will not be responsible 
 for the delivery of the goods to the consignee by the last carrier." 
 
 § 100. Contract hy Agent for Through Carriage. 
 
 Acceptance of goods, marked to a point beyond the carrier's 
 limit and the payment of a through rate, is not, as has been 
 shown, in most states, held to be prima facie evidence of a con- 
 tract to deliver the goods at their final destination, — but simj^ly 
 binds the carrier to deliver to the next connecting carrier.* The 
 prevailing rule in the states is that the general freight agent has 
 authority to contract for the transportation of goods beyond the 
 limit of the carrier s line.^ But the station agent of a railway 
 company, under the rule in some states, has no implied power to 
 bind his company to carry goods beyond the terminus of its line." 
 
 ^Johnson v. East Tennessee, V. & 0. R. Co. 90 Ga. 810. 
 
 « Hunt V. New York <& E. R. Go. 1 Hilt, 228. 
 
 3 Chicago & N. W. R. Co. v. Northern Line Packet Co. 70 111. 218. 
 
 "^Illinois Cent. R. Co. v. Kerr, 68 Miss. 14; Camden <& A. R. Co. v. Forsyth, 61 
 Pa. 81; ^tna Ins. Co. v. Wheeler, 49 N. Y. 616; Hill v. Burlington, C. R. S 
 N. R. Co. 60 Iowa, 197; Piedtnont Mfg. Co. v. Columbia & G. R. Co. 19 S. C. 
 353. See also, ante, § 95. 
 
 ' White V. Missouri Pac. R. Co. 19 Mo. App. 400. 
 
 '^Patterson v. Kansas City, {Ft. S. & M. R. Co. 47 Mo. App. 570.
 
 CONTRACT BY AGENT FOR THROUGH CARRIAGE. 4:01 
 
 And the station agent of a connecting railroad line has no power, 
 solely by virtue of that position, to waive a provision of a ship- 
 ping contract between the shipper and the initial carrier limiting 
 the time for suit on a claim for loss or damages occurring on its 
 own line of road.' 
 
 In Ingledeiu v. Northern R. Co. 7 Gray, 86, it did not appear 
 that '"the defendants assumed any duty in relation to the delivery 
 of the boxes to another carrier," or that they " were charged with 
 any duty in forwarding the rice to Keene, or that the officers of 
 the defendant corporation knew of the transportation beyond 
 their own line." Where a corporation has a general agent, who 
 is employed by it for the express purpose of receiving and 
 transporting merchandise for hire, and he is held out to the world 
 as invested with authority for this purpose, if goods are delivered 
 to him to be transported in the way of his duty, the corporation 
 will be liable for the manner in which the duty is performed, and 
 the contract of bailment may be regarded as made with it.^ 
 
 Station agents are, under the rule sometimes announced, to be 
 presumed to have the pov/er to make contracts for their railroads, 
 for the transportation of freight. The limitations of their powers 
 the public cannot take notice of, unless they are conveyed to the 
 pul)lic in such a maimer as to authorize the inference that ship- 
 pers are apprised of them.' The question, whether or not the 
 railway station agent is, as such agent, authorized to bind such 
 company by a contract to furnish cars to a shipper at his stations 
 at a particular time, is, in other courts, one of fact and not of 
 law.* The single act of an assumed agent, and a single recogni- 
 tion of his authority by the principal, if sufficiently unequivocal, 
 positive and comprehensive in its character, may be sufficient 
 proof in other similar acts.* Authority to an agent to do a thing, 
 generally includes everything usual and necessary for the accom- 
 plishment of the main object. ° 
 
 > Gulf, C. (fe 8. F. R Co. V. Clarke, 5 Tex. Civ. App. 547. 
 ^Mayall v. Boston & M. R. Co. 19 N. H. 122, 49 Am. Dec. 149. 
 8 Prxiitt V. Hannibal & St. J. R. Co. 62 Mo. 527. 
 " Wood V. Chicago, M. & St. P. R. Co. 59 Iowa, 196. 
 ' Wilcox V. Chicago, M. & St. P. R. Co. 24 Minn. 269, 
 ^ Rolman v. Georgia R. Co. 67 Ga. 595. 
 26
 
 402 TRANSPORTATION BY CARRIER OVER CONNECIING LINES. 
 
 Occasionally courts in this country anJ in En<:;laTi(l, which raise 
 an implication of the carrier's contract to transport beyond its own 
 line, are inclined to assume the power of the agent who entered 
 into such contract,' and the courts also, on the other hand, which 
 require proof of the contract to transport beyond the carrier's 
 line, admit more readily, on slight evidence, the power of the 
 general agent," than that of a local agent.' 
 
 ' Hansen v. Flint & P. M. U. Co. 73 Wis. 346; Bristol & E. R. Co. v. Collim 
 
 7 H. L. Cas. 194. 
 * Givver & B. Sewing Much. Co. v. Missouri Pac. R. Co. 70 Mo. G72, 35 Am. 
 
 Rep. 444. 
 3 Burroguhs v. Norwich cfe W. R. Co. 100 Mass. 26, 1 Am. Kep. 78; Turner v. 
 
 St. Louis d S. F. R. Co. 20 Mo. App. 633.
 
 CHAPTER XIY. 
 
 LIABILITIES— CHARGES— FACILITIES — CONNECTING CARRIERS 
 —COMBINATIONS. 
 
 § 101. Stijndation of Initial Carrier Limiting Liabilities. 
 § 103. Freight Charges of Connecting Carrier. 
 
 § 103. Carrier Assuming Joint and Several Liability — Partnership, 
 § 104. Facilities Furnished Connecting Carrier. 
 § 105. Provisions Enforcing Conyiections and Forbidding Combina- 
 tions. 
 
 % 101. stipulation of Initial Carrier Limiting 
 
 Liabilities. 
 
 Where the contract of carriage is construed to be with the 
 first carrier over the entire Hne, rendering such carrier respon- 
 sible for the final delivery of the goods, connecting carriers, who 
 continue the transportation beyond the line of the first carrier, 
 are but its representatives, and entitled therefore, to all the ben- 
 efits of any contract it may make diminishing its common law 
 liability.' Where goods were delivered at Batli, marked for de- 
 livery at a point beyond the line of the Great Western E,. Co., 
 and were destroyed by fire on the line of a connecting carrier, 
 the latter was held not entitled to the benefit of a stipulation ex- 
 empting the first carrier from liability from losses or damage by 
 fire." It was subsequently held, however, that, where .oroods were 
 received at the Great Western Railway Company's station at 
 Bath, to be forwarded to Torquay, and at Bristol the goods were 
 to be placed on the South Devon line to reach Torquay, — the 
 receipt note at Bath stating that the goods were received "to be 
 sent to Torquay station and delivered to R. C. Collins, Consignee 
 
 ^ Adams Exp. Co. v. Harris, 7 L. R. A. 214, 120 Ind. 73; Kiffv. Atchison, T. 
 
 & S. F. R. Co. 32 Kan. 2&^;Whitworth v. Erie B. Co. 87 N. Y. 414; Taylor 
 
 V. Little Bock, M. B. & T. B. Co. 39 Ark. 148. 
 2 Collins V. Bristol & E. B. Co. 1 Hurlst. & N. 517. 
 
 403
 
 404 LIAIJILITY CHARGES FACILITIES COXNECTINW CARUIEKS. 
 
 of the Agent," and tlie goods were destroyed by fire wliile on 
 the Bristol & Exeter line, reversing the judgment of the Ex- 
 chequer Chamber — that the contract was with the Great Western 
 Company and the Bristol & Exeter Company was not liable.' 
 
 One of several carriers giving a through bill of lading for trans- 
 portation of freight over a through line, formed by it and other 
 carriers, has been held the agent of the others to accomplish the 
 carriage and delivery of the goods, and as primarily liable for a loss 
 occurring on its own or one of the connecting lines,^ and one of 
 such connecting railways receiving goods from another, is enti- 
 tled to the lienefit of any stipulation M'hich the original carrier 
 may have made with the shi})per.' 
 
 A carrier receiving freight from another carrier under an 
 agreement between the latter and the shipi)cr is entitled to the 
 benefit of any valid limitation of the first carrier's liahility, just 
 as it is lialjle for any failure to perform its part of the contract/ 
 and it must be regarded on principle as the safer rule to hold 
 the shipper as contracting for one lialjility as to all connecting car- 
 riers,^ although it has been said that a carrier cannot be consid- 
 ered as ratifying the original contract of shipment for goods 
 which it receives from another company and transports, when it 
 is bound by statute to j^erfoi-m such service.' 
 
 A railroad company forming part of a through line from the 
 southern states to Boston, having contracted to carry cotton from 
 Columbus, Mississippi to Boston, a clause in the bill of lading 
 that it "The Evansville & Crawfordsville Kailroad Company, 
 will not be liable for loss or damage by fire from a'^y cause what- 
 ever" — covered the entire route, and was not to be limited to a 
 part of the distance only, and the company is not liable for cot- 
 
 > Bristol & E. R. Co. v. Collins, 5 Hurlst. & N. 969, 7 H. L. Cas. 197. 
 
 'Mi)<.so>iri Pac. R. Co. v. Tioiss, 35 Neb. 267. 
 
 ^Manhattan Oil Co. v. Camden & A. R. Co. 52 Barb. 72, 5 Abb. Pr. K S. 
 
 289, 54 N. Y. 197; Lanib v. Camden & A. R. Co. 2 Daly, 454; Maghee v. 
 
 Camden & A. R. Co. 45 N. Y. 514, 6 Am. Rep 124; Babcock v. Lake Shore 
 
 & M. S. R. Co. 43 How. Pr. 317. 
 
 * St. Louis, L M. & S. R. Co. v. Weakly, 50 Ark. 397. 
 
 * See Lamb v. Camden & A. R. Co. supra; Whitworth v. Erie R. Co. 13 Jones 
 
 & S. 602, affirmed in 87 N. Y. 414; Levy v. Southern Exp. Co. 4 S. C. 234. 
 « Dicyer v. Oulf, C. & S. F. R. Co. 7 L. R, A. 478, 75 Tex. 572.
 
 STIPULATIONS OF INITIAL CAKKIER LIMITING LIABILITIES. 405 
 
 ton destroyed by fire on the route before it reached the said 
 company's road.' Shippers of goods which are damaged in a 
 manner for which tlie bill of lading given by the steamship com- 
 pany, in whose charge tho goods were at the time of the damage, 
 exempts the steamship company from liability, cannot recover 
 therefor from the steamship company's connecting railroad line, 
 as such railroad would have no recourse to the steamship com- 
 pany.^ 
 
 Where the freight through to Baltimore is stated in a steam- 
 boat bill of lading, for the shipment of goods at Memphis to be 
 delivered at Cairo, and the bill of lading is signed by an agent 
 of a connecting railroad company, the contract is one for through 
 shipment, — and the raih-oad company is entitled to the benefit of 
 the exceptions contained in the bill of lading.' Under a freight 
 transportation contract referring to and embracing connecting 
 .lines, the connecting carriers may adopt and act upon it, and 
 thereby become entitled to the benefit of the valid exemptions 
 therein, although it is not for through transportation and though 
 no rate for the entire distance is fixed.* 
 
 Where the contract of carriage is witli the first carrier simply 
 to carry over its own line and deliver to the connecting carrier, 
 stipulations restricting liability are held by some of the courts to 
 be for the benefit of such iidtial carriers only.^ And a common 
 carrier having discharged his own contract of transportation, can- 
 not enter into a s]3ecial contract on behalf of the owner, with the 
 next carrier, limiting or restricting the liability of the latter.' 
 
 A connecting carrier is not entitled to the benefit of provisions 
 in the bill of lading taken by the initial carrier, if it makes a new 
 
 1 Emnmille & G. R. Co. v. Androscoggin Mills, 89 U. S. 22 Wall. 594, 22 L. 
 
 ed. 724. 
 « East Tennessee, V. & O. R. Co. v. Wright, 76 Ga. 532. 
 
 2 Woodtcard v. Illinois Cent. R. Co. 1 Biss. 447. 
 
 *WesternR. Co. v. Harwell, 91 Ala. 340, 45 Am. & Eng. R, Cas. 358. 
 ^Western & A. R. Co. v. Ed position Cotton Mills, 2 L. R. A. 102, 81 Ga. 523; 
 
 Maghe^ v. Camden & A. R. Co. 45 N. Y, 514, 6 Am. Rep. 124; Babcock v. 
 
 Lake Shore & M. S. R. Co. 49 N. Y. 491 ; Manhattan Oil Co. v. Camden <fc 
 
 A. R. & Transp. Co. 54 N. Y. 197; ^Et?ia Ins. Co. v. Wheeler, 49 N. Y. 
 
 616; Merchants Despatch Transp. Co. v. Bolles, 80 111. 473; Brancroft v. 
 
 Merclmnts Despatch Transp. Co. 47 Iowa, 262, 29 Am. Rep. 482. 
 « Babcock v. Lake Shore & M. S. R. Co. 49 N. Y. 491.
 
 406 LIABILITIES — CHARGES — FACILITIES CONNECTING CARKIEB8. 
 
 contract upon taking the goods from tlie latter, and gives a new 
 bill of lading stating the extent of its liability.' A contract with 
 a carrier to which horses are first delivered for shipment to a 
 point on the line of another carrier, limiting liability for injury 
 to them, does not enure to the benefit of the latter carrier, where 
 it repudiates the contract, requires the execution of a new con- 
 tract, and collects additional freight.' A connecting carrier be- 
 tween whom and the initial carrier no privity or contractual rela- 
 tion is shown, the contract of shipment having been made with 
 the initial carrier to transport the goods to their destination, was 
 held not liable on an implied contract to deliver the goods, for dam- 
 ages because of a delay in making delivery, whether such delay 
 occurred on its own line or not, the remedy of the shipper being 
 against the initial carrier.' In Canada there is no privity of contract 
 which will support an action by the consignee against a carrier for 
 loss of goods shipped under a bill of lading given by a connecting 
 carrier.* If a contract by a carrier for transportation is invalid, 
 the liability of a connecting carrier by whose negligence the 
 goods are lost or damaged must be determined under the princi- 
 ples of the public law.° 
 
 The rules of one of the connecting roads other than the con- 
 tracting railroad cannot influence or affect the contract, although 
 part of the goods were put on board on such connecting road.* 
 An intermediate carrier, it has been decided, can derive no bene- 
 fit from a contract between the first carrier and the shipper, lim- 
 iting the former's liability, which makes no provision for an ex- 
 tension of its benefits to any other than the first carrier.' 
 
 It is said that a connecting carrier cannot shield itself from lia- 
 
 ^Broiming v. Goodrich Transp. Co. 10 L. R. A. 415, 78 Wis. 391. 
 
 ^Atchison, T. & S. F. R. Co. v. Dill, 48 Kau. 210. 
 
 ^East Tennessee, V. & G. R. Co. v. Johnson, 85 Ga. 497. 
 
 < Richardson v. Canadian Pac. R. Co. 19 Ont. Rep. 369, 45 Am. & Eng. R. 
 
 Cas. 413. 
 6 Woodburn v. Cincinnati, N. 0. & T. P. R. Co. 40 Fed. Rep. 731. 
 « Ohio & M. R. Co. V. McCarthy, 96 U. S. 25S, 24 L. ed. 693; Ogdenshurg & 
 
 L. G. R. Co. V. Pratt, 89 U. 8. 22 Wall. 123, 22 L. ed. 827. 
 
 ''Adams Exp. Co. v. Harris. 7 L. R. A. 214, 120 Ind. 73; Babcock v. Lake 
 Shore <& M. S. R. Co. 49 N. Y. 491.
 
 FKEIGHT CHARGES OF COXNECTING CARRIEK. 407 
 
 bilitj for the goods damaged by reason of the defective condition 
 of a car upon the ground that the car belonged to the other com- 
 pany,' and yet the same court rules that under S. C. Gen. Stat. 
 § 14:71, a railroad cannot refuse to receive and attach to its train 
 and transport cars of connecting roads, although they are of an 
 old pattern and not so safe and convenient as its own.^ The last 
 carrier in connecting lines must deliver the shipment at the place 
 of destination to the consignee there, if he was made known to 
 it in receiving the freight from the preceding connecting com- 
 pany.'' 
 
 § 10 S. Freight Charges of Connecting Carrier. 
 
 The general freight agent of the receiving line has no power to 
 bind the connecting line by an announcement of the rate for freight 
 over it.* A carrier who receives goods from another, destined to a 
 point on its line, without making a new contract, does not thereby 
 become a party to and bound by the contract made by the initial 
 carrier with the owner, if he has no notice of its terms. A con- 
 necting carrier which advances the charges of the preceding one 
 at the usual rates, without notice of any special arrangement be- 
 tween it and the owner, can demand of the consignee paj^uent of 
 the charges so advanced ; and the owner must look for reimburse- 
 ment to the contracting carrier upon its guaranty." A connect- 
 ing carrier to which is delivered for transportation goods shipped 
 from another state and waybilled over its line, for which the 
 initial carrier without its knowledge gave a bill of lading over 
 another connecting line at the schedule rate of the latter, which 
 is less than that of the former, is not liable for the statutory pen- 
 
 1 Wallingford v. Columbia & O. E. Co. 26 8. C. 258. 
 
 ^Simms v. South Carolina R. Co. 26 S. C. 490. See Richardson v. Great East- 
 em R. Co. L. R. 10 C. P. 486, as to duty of the carrier to examine condi- 
 tion of cars received from another carrier. 
 
 ^ North Pennsylvania R. Co. v. Commercial Nat. Bank of Chicago, 123 U S 
 737, 31 L. ed. 287. 
 
 * Hill V. Burlington, C. R. & N. R. Co. 60 Iowa, 196, 9 Am. & Enff. R. Cas, 
 21. 
 
 ^Missouri, K. & T. R. Co. v. Stoner, 5 Tex. Civ. App. 50.
 
 408 LIABILITIES OIIAROES FACILITIES CONNECTING CAKKIEKS. 
 
 alty for failure to deliver the p;oods on tender of the charijes 
 named in the bill of lading, as it cannot be compelled to receive 
 less than its established rate and thus become <(uilty, under the 
 Interstate Commerce Act, of a misdemeanor and sul)ject to fine 
 and im])ri.s()nnient.' Connectinji; carriers are not bound by a stip- 
 ulation in a bill of lading issued by the carrier to whom the goods 
 are delivered, that the total cost of transportation shall not exceed 
 a certain sum, where the bill of lading does not purjiort to be a 
 true one and there is no traffic between them and the Urst car- 
 rier; and they are not liable for refusal to deliver the goods ex- 
 cept upon payment of their transportation charges exceeding such 
 sum, where they have no knowledge of such agreement or of the 
 prepayment of the freight, although the bill of lading shows that 
 the freight was prepaid." 
 
 There can be no recovery for damage to goods snstained, with- 
 out fault or negligence of the last carrier, while they were right- 
 fully detained to await payment as preliminary to making delivery 
 to the consignees, where the first and last carriers are independ- 
 ent. Where the bill of lading issued by the former is silent as to 
 any contract to ship the goods as " released " or at a reduced rate, 
 and the last carrier paid charges and earned freight without 
 notice of a contract outside of the bill of lading, the right to hold 
 the goods for payment of the charges advanced and freight earned 
 on the basis of ordinary rates is not affected by any secret outside 
 contract.' A railroad company guaranteeing delivery of cotton 
 shipped over its own road and connecting lines, at a specified rate 
 of freight, and giving a bill of lading containing a provision that 
 " it is understood that railroads connecting with this line recog- 
 nize its bill of lading and will settle freight bill accordingly," is 
 liable for the wdiole amount of overcharges made and collected 
 by its connecting carriers ; and it cannot evade lialjility by urg- 
 ing a stipulation in the bill of lading that it shall not be liable 
 for damages to the cotton after leaving its own line of road, as 
 
 I DillingJiam v. FiseJU, 1 Tex. Civ. App. 546. 
 
 ' Moses V. Port Townsend S. R. Co. 5 Wash. 594. 
 
 3 Georgia R. Co. v. Murray, 85 Ga. 453. 8 Ry. & Corp. L. J. 247.
 
 FREIGHT CHARGES OF CONNECTING CARRIER. 409 
 
 such stipulation has no aiDplication to freight rates.' A carrier is 
 not liable for rates made by a connecting road.' 
 
 Wliere the first company by which goods are shipped to be 
 transferred over connecting lines gives a bill of lading stating a 
 certain sum as the full rate, and on their arrival at their destina- 
 tion the connecting carrier demands and the shipper pays an ex- 
 cess over the sum agreed upon, such shipper cannot recover back 
 the excess from the latter company in the absence of some agree- 
 ment with it.* An initial railroad company which delivers a 
 through bill of lading to a shipper is not liable for the penalty of 
 1500 imposed by Sayles's (Tex.) Civ. Stat. arts. 4257, 4258, for 
 exacting more than the maximum freight rates, where it delivered 
 the goods to a connecting carrier by which the overcharge was 
 exacted.* A railroad company which has agreed with connecting 
 lines upon a joint tariff of rates in compliance with the Interstate 
 Commerce Act is required to collect the interstate commerce rate 
 for freight passing over its own and such lines and which it de- 
 livers to the consignee, and not a smaller sum named in the bill 
 of lading issued by the initial carrier.* Where one of connect- 
 ing carriers, over whose lines goods are shipped, collects tlie full 
 legal rate for the entire distance, the same should be divided be- 
 tween the companies upon some equitable principle, and the 
 courts will determine what this should be, on the failure of the 
 carriers to agree." 
 
 The mere reception and continuous transportation by a railroad 
 company, of freight which comes to it over other lines of rail- 
 roads, destined to its local stations, for which the initial carrier 
 has issued through bills of lading and quoted through rates, does 
 not constitute such an " arrangement " as to bring the carrier un- 
 der the Act to Regulate Commerce, § 1, where the through rates, 
 
 > Little Bock & Ft. S. R. Co. v. Dmiels, 49 Ark. 352, 
 
 ^ Alien V. Louisville, N. A. <& C. R. Co. 1 Inters. Com. Rep. 621; Crews v. 
 
 Eichinond & D. R. Co. 1 Inters. Com. Rep. 703. 
 ^ Mount Pleasant Mfg. Co. v. Cape Fear & 7. V. B. Co. 106 N. C. 207, 42 Am. 
 
 & Eng. R. Cas. 498. 
 ^ Qulf, C. & S. F. B. Co. V. Adair (Tex. App.) Dec. 7, 1889. 
 ''Missouri, K. & T. R. Co. v. Stoner, 5 Tex. Civ. App. 50. 
 ^Ackley v. Chicago, M. & St. P. R. Co. 36 Wis. 252.
 
 410 LIABILITIES CHAKUES FACILITIES CONNECTING CAKIUEUS. 
 
 SO quoted, allow to that company its full local rates. AVhere a 
 contract is made with a shipper by a cnrrier, member of a through 
 line, for shipment of goods over the line at a less rate than the pub- 
 lished lawful rate charged shippers in general, it is not a violation 
 of the Act to Hegulate Commerce, within the jurisdiction of the 
 Interstate Commerce Commission, for the delivering carrier to 
 exact payment of the full lawful rate before delivery, although 
 if the shipper was an innocent party he might be entitled to his 
 goods on payment of the contract rate." A steamship line is not 
 entitled to fro rata freight upon cotton shipped by it, to be 
 transported from Galveston and New Orleans to New York and 
 thence to European ports by steamer from New York under 
 through bills of lading providing that none of the different car- 
 riers are to be responsible for any damages except such as occur 
 on their own parts of the route, where the cotton is totally de- 
 stroyed by fire without its fault while on its pier in New Yoi'k 
 awaiting transhipment ; but is entitled to jpro rata freight out of 
 the proceeds of a portion of the cotton damaged and sold for the 
 best interest of the carrier, owner, and insurer, and for their joint 
 account and beneht/ , 
 
 Where, for the purpose of making its own mileage more and 
 the mileage of the forwarding carrier less, the receiving carrier — 
 having two alternative routes for through traffic, one longer than 
 the other, — sought, for the purpose of a through route, to carry 
 by the longer one at a greater cost and labor in working and 
 maintaining the junctions, — such longer route, it was ruled, was 
 not a reasonable route within the meaning of section 11 of the 
 English regulation of Railways Act, 1873." Where the carrier of 
 goods to a connecting line not having accommodations at the 
 junction, was compelled to convey the goods three miles beyond 
 the junction to a station on its own line, and then sent them back to 
 the junction by another train, it is entitled, in estimating the 
 
 ' Interstate Commerce Commission v. Cincinnati, If. 0. & T. P. B. Co. 4 Inters. 
 
 Com. Rep. 383. 
 « Duncan v. Atchison, T. & S. F. R. Co. 4 Inters. Com. Rep. 385. 
 ^British & F. M.Ins. Co. v. Southern Pnc. E. Co. 55 Fed. Rep. 82. 
 * East <&West Junction B. Co. v. Great Western R. Co. 1 Nev. & McN. 881.
 
 CAKRIERS ASSUMING JOINT AND SEVERAL LIABILITY. 411 
 
 mileage proportionately between the two companies, to charge 
 mileage one way over the two miles.' 
 
 A shipper of goods to a city in a foreign country over two rail- 
 roads connecting at the border, by through bill of lading provid- 
 ing that, if the freight is removed at the connecting point, it shall 
 be regarded as a local shipment to such point and the full proper 
 rate to such point collected, cannot withdraw the goods at such 
 point upon payment merely of the jpro rata which the first road 
 would have received under the through shipment, where the ship- 
 ment was made with knowledge of the local rate, and intent to 
 withdraw upon payment of the lesser pro rata rate,* A shipper 
 cannot recoup damages done by one connecting carrier against a 
 subsequent carrier's claim for freight, where he was present when 
 it received the property and made no objection, though he in- 
 formed it of the damage and intimated his intention to demand 
 compensation from the previous carrisr.' 
 
 § 103. Carriers Assuming Joint and Several Lia- 
 hility— Partnership. 
 
 Several carriers forming a continuous line by agreement, are 
 each — jointly and severally — liable for losses occurring on any 
 part of their line/ Thus associated for the transportation of 
 freight between two designated points, charging through freight 
 and giving through bills of lading, they are chargeable as com- 
 mon carriers between these points/ Where each of two connect- 
 ing common carriers forming a continuous line of transportation, 
 is competent to contract alone for transportation over the entire 
 line, they are competent to make a joint contract for such trans- 
 portation and thus become joint carriers and jointly lialjle for loss 
 or damage to goods transported under such joint contract." The 
 
 • Buckfastleigh, T. & 8. D. B. Co. v. South Devon R. Co. 1 Nev. & McN. iS21. 
 
 ^Southern Pac. R. Co. v. Haas (Tex.) Nov. 3, 1891. 
 
 3 St. Louis, I. M. <& S. R. Co. v. Lear, 54 Ark. 399. 
 
 ^Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 4^4. 
 
 ' Cincinnati, H. & D. R. Co. v. Spratt, 2 Duv. 4. 
 
 ■^ Swift V. Pacific Mail SS. Co. 106 N. Y. 206.
 
 412 LIABILITIES — CHAKGES — FACILITIES — COIS'iiECTINO CAIUIIERS. 
 
 power of corporations thus to become joint carriers is recognized 
 and is founded on public convenience and business principles.* 
 
 Where several carriers engaged in traffic in a special product 
 each had its own line ; but in connection with other lines of an 
 association of carriers, continuous lines were formed, for which 
 carriers' agents solicited shipments and granted through bills of 
 lading for one sum, that consignees paid, and the carriers divided 
 among them, as to third parties with whom they contracted, the 
 several carriers in association are liable for a loss taking place on 
 any part of the whole line." Being thus associated, they are ob- 
 ligated to carry through from place of shipment to destination by 
 their vocation and holding out." 
 
 The question of the agency of one railroad company for another 
 company depends, so far as the public and passengers are con- 
 cerned, not upon the actual fact of an arrangement or contract 
 between the two companies, but upon what the former com])any, 
 by holding itself out as the latter's agent, invited the public to 
 believe/ When ceveral carriers unite to complete a line of trans- 
 portation, and receive goods for one freight, they are each liable 
 for damages during transportation, subject to reclamation against 
 the party by whose act the damage occurred/ Where carriers 
 thus form a continuous line, accepting one price for transporta- 
 tion, which is divided in fixed proportions, — the carrier first re- 
 
 ' Aigen v. Boston & M. R. Co. 132 Mass. 423; Block v. Fitchhurg R. Co. 139 
 Mass. 308; Gass v. New York, P. & B. R. Co. 99 Mass. 220. 96 Am. Dec. 
 742; Hot Springs B. Co. v. Trippe, 42 Ark. 465, 48 Am. Hep. 65; ISt. Louis 
 Ins. Co. V. St. Louis, V. T. H. & L R. Co. 104 U. S. 146, 26 L. ed. 679; Bar- 
 ter V. Wieeler, 49 N. H. 9, 6 Am. Rep. 4o4; Wylde v. Northern R. Co. of N. 
 J. 53 N. Y. 156; Swift v. Pacific Mail SS. Co. 106 N. Y. 206. 
 
 ^Barter v. Wheeler, supra: Bradford v. South Carolina R. Co. 7 Rich. L. 201, 
 62 Am. Dec. 411; Cincinnati, H. & D. R. Co. v. Spratt, 2 Duv. 4; Nasliaa 
 Lock Co. V. Worcester & N. R. Co. 48 N. H. 339, 2 Am. Rep. 242; Clvouteaux 
 V. Leech. 18 Pa. 224, 57 Am. Dec. 602; Baltimore <& P. S. B. Co. v. Brown, 
 54 Pa. 77; Hart v. Rensselaer & S. R. Co. 8 N. Y. 37, 59 Am. Dec. 447; 
 Emnsville & C. R. Co. v. Androscoggin Mills, 89 U. S. 22 Wall. 594, 22 L. 
 ed. 724; Ogdensburg <fe L. C. R. Co. v. Pratt, 89 U. S. 22 Wall. 123, 22 L. 
 ed. 827; Coates v. United States Exp. Co. 45 Mo. 23":5; Gass v. New Yoik, P. 
 & B. R. Co. and Aigen v. Boston & M. R. Co. supra. 
 
 ^ Merchants Dispatch Transp. Co. v. Bloch, 86 Tenn. 398; New York Cent. R. 
 Co. V. Lockwood, 84 L'. S. 17 Wall. 357, 21 L. ed. 627; Atchison, T. & S. F. 
 R. Co. V. Denver & N. 0. R. Co. 110 U. S. 680, 28 L. ed. 296. 
 
 *Dye V. Virginia M. R. Co. 9 Mackey, 63. 
 
 * Richardson v. Tlie Charles P. Chouteau, 37 Fed. Rep. 533.
 
 CAKKIEKS ASSUMINGr JOINT AND SEVERAL LIABILITY. 413 
 
 ceivino; the goods is bound for their safe carriage through the 
 entire hne,' and having entered into a joint contract for trans- 
 portation, one of them cannot introduce evidence that another 
 neglected to furnish cars.' The fact that the railways of two or 
 more corporations are operated jointly and under a common man- 
 agement, the earnings of both going into a common purse, and 
 the carriacces and trains of either running; over the lines of the 
 other, are either or all of them evidence tending to show such 
 partnership/ 
 
 The giving of a through bill of lading by a carrier contracting 
 to carry goods, the making of through freight charges, the fur- 
 nishing of one car for the whole distance,, and the act of the agent 
 at the end of the route (being the agent of another company than 
 the receiving company) in receiving the whole freight money, — 
 sufficiently show joint liability on the part of the two carriers for 
 failure to deliver the goods according to the contract made by the 
 receiving carrier.* 
 
 Carriers over different routes who associate themselves under 
 a contract for a division of profits in certain proportions, or of 
 the receipts after deducting expenses, are jointly liable as partners 
 to third persons ; but no joint liability exists where the agree- 
 ment is that each shall bear the expenses of his own route, and 
 that the gross receipts shall be divided in proportion to the dis- 
 tance or otherwise.^ The owners of several steamers operated 
 jointly for their own benefit under the name of a certain line are 
 all liable as partners or joint traders on a contract of affreight- 
 ment, made by their authorized agent, in such name, to carry 
 goods in one of the steamers." 
 
 But no partnerohip or joint liability betv/een carriers is created 
 by the single fact, that one rate is given for the carriage of a con- 
 
 ' Nashua Lock Co. v. Worcester & N. B. Co. 48 N. H. 339, 2 Am. Rep. 242. 
 
 ^Sisson V. Cleveland & T. B. Co. 14 Mich. 489, 90 Am. Dec. 252. 
 
 ^Pearce v. Madison & I. B. Co. 63 U. S. 21 How. 441, 10 L. ed. 184; Champion 
 
 V. Bostwick, 18 Wend. 175, 31 Am. Dec. 376; Cobh v. Abbot, 14 Pick. 289; 
 
 Hurt V. Bensselaer cB 5. B. Co. 8 N. Y. 37, 59 Am. Dec. 447 ; Quiraby v. Van 
 
 derbilt, 17 N. Y. 306, 72 Am. Dec. 469. 
 
 * International <& G. iV. B. Co. v. Tisdale, 4 L. R. A. 545, 74 Tex. 8. 
 
 & Peterson v. Chicago, B. 1. & P. B. Co. 80 Iowa, 92, 8 Ry. & Corp. L. J. 95. 
 
 • BraitJiwaite v. Power, 1 N. D. 455.
 
 414 LIABILITIES CHARGES FACILITIES CONNECTING CARRIERS. 
 
 tinnons route,' and although the carrier receiving the goods has 
 an arraiiii'euient with the next carrier for rates on "through fare" 
 to be divided ^/'6» rata^ it will not be lial)lc under a through con- 
 tract beyond its own line, where the sti])ulation in the bill of lad- 
 ing given is that goods are to be transported to the terminus of 
 its road, and there transferred to agents of connecting roads, and 
 that the company alone in whose care the goods are damaged 
 shall be answerable.' A railroad com])any whose line is one of 
 several connecting roads, in the absence of special contract or of 
 an association or copartnership by which each of the connecting 
 lines is liable for the contracts of the others, is not responsible for 
 damage for negligence occurring beyond its own terminus. In 
 such case its lial)ility is confined to that of a forwarding agent.' 
 
 One of several independent steamers constituting a certain well 
 known line, belonging to different owners who are not interested 
 in the business of any vessels except their own, which fails to take 
 all the cotton specified in bills of lading given by the agent of the 
 line, where the bills for the whole quantity were made out in the 
 name of that vessel in exchange for shipping receipts which, by 
 mistake of the employes of such agent, named that vessel instead 
 of giving tlie agent an option between that and the vessel next 
 following, as agreed on in a contract for shipment between the 
 agent and the owner of the cargo, — is not liable for loss on ac- 
 count of a fall in the market pi-ice before the arrival of the next 
 vessel, but is liable for the premium paid for insurance on the 
 cotton which was not actually carried.^ 
 
 Connecting carriers are not partners, so as to render one line 
 liable for anything more than the damage done on its own road, 
 under a contract made wdth another line providing that the lia- 
 bility of the latter shall cease at the end of its own line, and that 
 
 '■Burroughs v. Norwich & W.R. Co. 100 Mass. 26, 1 Am. Rep. 78; Aigen v. 
 
 Boston & M. R. Co. 132 Mass. 42;:J; Block v. Fitchburg R. Co. 139 Mass. 308; 
 
 Hot Springs R. Co. v. Tvippe, 42 Ark. 465. 48 Am. Rep. 65; Goldsmith v. 
 
 Chicago & A. R. Go. 12 Mo. App. 479; Snider v. Adams Exp. Co. 63 Mo. 383; 
 
 Citizen's Ins Co. v. Kountz Line, 4 Woods, 268. 
 2 Cincinnati, H. & D. R. Co. v. Pontius, 19 Ohio St. 221, 2 Am. Rep. 391. 
 ^Enott V. Raleigh & Q. R. Co. 98 N. C. 73. 
 * Crenshaw v. Pearce, 43 Fed. Rep. 803.
 
 FACILITIES FURNISHED CONNECTING CARRIER. 415 
 
 " tlie terms of this contract apply to any and all roads which are 
 a part of this route," in view of Tex. Eev, Stat. art. 4251, making 
 it the duty of every railroad company to draw over its road the 
 passengers, merchandise, and cars of ever}^ other railroad compan}' 
 which connects with its road.' A railroad company entering into 
 a contract with connecting lines for carrying cattle, the contract 
 providing that its liability shall cease at its terminus, is not liable, 
 as a member of a partnersliip or as a joint contractor, for injuries 
 to the cattle on a road other than its own.'' Where a contract is 
 made for the transportation of cattle to a point l)eyond the line of 
 the road of the company with which the contract is made, the 
 liability of the contracting road to cease at its terminus, a connect- 
 ing company to which the cattle, after being transported over 
 several roads, are finally delivered and by which they are deliv- 
 ered at their destination and all charges collected for carriage, is 
 not lial)le as a partner or joint contractor for injuries received by 
 the cattle on roads other than its own.' 
 
 Railroads not actually connected, but having an arrangement 
 under which goods carried on one line, designated to pass over 
 the other line, or some point thereon, are delivered to the second 
 carrier with the bill of expenses already incurred, — which forms 
 the foundation for a waybill, — the second company will not be 
 liable except as a warehouseman, until the delivery of the bill of 
 expenses." An arrangement for freight and passenger traffic, 
 which is clearly terminable, so far as its terms indicate, at will, 
 may be terminated without previous notice/ 
 
 § 104" Facilities Fiuiiishecl Connecting Carrier. 
 
 The third section of the Interstate Commerce Act provides, 
 among other things that, " every common carrier subject to the 
 provisions of this Act shall, according to their respective powers? 
 
 1 Ft. Worth (fe D. G. R. Co. v. Fuller, 3 Tex. Civ. App. 340. 
 
 2 Qulf, G. & S. F. B. Go. V. Baird, 75 Tex. 256, 40 Am. & Eng. R. Cas. 160. 
 ^Ft. Worth & D. C. B. Go. v. Williams, 77 Tex. 131, 42 Am. & Eng. R. Cas. 
 
 464. 
 *Judson V. Western B. Gorp. 4 Allen, 520, 81 Am, Dec. 718. 
 ^Investment Go. of Philadelphia v. Ohio & N. W. R. Co. 41 Fed. Rep. 878.
 
 41G LIAIJILITY CHARGES FACILITIES — C0JS•^'ECT1^'G CAKKIERS. 
 
 afford all reasonable, proper, and equal facilities for the inter- 
 cban<^e of traffic hetweea their respective lines, and for the re- 
 ceiving, forwarding, and delivering of passengers and property 
 to and from their several lines and those connecting therewith, 
 and shall not discriminate in their rates and charges between snch 
 connecting lines, bnt this shall not be constrned as requiring any 
 such common carrier to give the use of its tracks or terminal 
 facilities to another carrier engaged in like business." Where a 
 railroad company, having ample facilities for physical connection 
 and through business with a connecting line, with which it has in 
 the past long had an arrangement for doing a through business on a 
 prorating basis, terminates that arrangement without any good 
 reason and enters into a similar arrangement with another con- 
 necting line, and refuses further through business over its former 
 connection; this conduct is unjust discrimination within the mean- 
 ing of the language above quoted. That a carrier has a special 
 contract with an independent corporation of which it owns half 
 the stock, making them a combination of carriers, does not make 
 the railroad of the latter part of its own line, so that the furnish- 
 ing to it of superior facilities for the exchange of interstate traffic 
 will not constitute undue discrimination against a road connecting 
 jDliysically with itself. 
 
 Where the only link between the carrier and its favored con- 
 necting line is such community of interest as springs from the 
 existence of the contract for the interchange of traffic, if it be 
 that such a contract makes each line a mere continuation or ex- 
 tension of the other, it is hard to conceive how a case of refusing 
 equal facilities could ever be made out. The very granting of 
 superior facilities to one line would make it a part of the one 
 that favored it, and no longer a connecting road, when compared 
 with its unsuccessful rival. Where the "arrangements" between 
 se^^eral roads are such that they form a combination of carriers, 
 within the meaning and effect of section 1, so as to make them 
 a legal unit within the provisions of the Act, as such, they are 
 jointly responsible for affording equal facilities in proper cases 
 to competing lines connecting with such combined continuous 
 lines. But, besides the duty which any one of these corporations
 
 FACILITIES FURNISHED CONNECTING CARRIES. 417 
 
 may owe, jointly with the others, it is not relieved from its obli- 
 gations under the Act to all roads which connect directly with 
 itself.' 
 
 A common carrier by rail, to which property is offered for 
 transportation, cannot in any indirect manner and by refusal to 
 perform obligations imposed by law upon it, enforce its contracts, 
 but must for that purpose resort to the customary remedies. Kor 
 can a common carrier, as a reason for refusal to afford to another 
 common carrier the customary reasonable and equal facilities for 
 the interchange of traffic, assign the fact that such other common 
 carrier supplies no public necessity, the jDublic having been fully 
 accommodated without it.* The provisions of section 1, requir- 
 ing charges to be reasonable and just, and of section 2, forbidding 
 unjust disci'imination, apply when exceptional charges are made 
 under section 4, as they do in other cases.' But neither this, n jr 
 any other provision of the law, requires of the common carrier of 
 interstate commerce, the duty of either forming new connections, 
 or of establishing new stations for the reception and delivery of 
 freights. The Act to Regulate Commerce deals with such com- 
 mon carriers as it finds them, and leaves to them full discretion 
 as to what extensions they will make of their lines, the connec- 
 tions they may form, and the yards and depots they may choose 
 to estal)lish. The fact that one connecting railway company has 
 a contract for the interchange of interstate commerce freicrht. 
 which involves the use of the receiving railway's tracks and ter- 
 minal facilities, will not authorize a court of equity to compel the 
 receiving railway to grant a like contract or compensation to an- 
 other connecting company. Ko common carrier can justly com- 
 plain of another because it is not allowed the use of the tracks 
 and terminal facilities of such other in the same manner and to 
 the same extent a third carrier is.* When railroad companies, in 
 
 ^Mw York & N. B. Co. v. New York & N. E. R. Co. 4 Inters. Com. Rep. 
 
 117, 50 Fed. Rep. 867. 
 * Kerducky & I. Bridge Co. v. Louistille <fc N. R. Co. 2 Inters. Com. Rep. 103 
 
 2 L. R. A. 289. 
 'Re Southern R. & SS. Asso. 1 Inters. Com. Rep. 278. 
 -*■ Little Rock & M. R. Co. v. St. Louis, L M. & S. R. Co. (C. C. E. D. Ark. 
 
 59 Fed. Rep. 400. 
 
 or
 
 418 LIABILITIES CHARGES FACILITIES CONNECTING CARKIEKS. 
 
 compliance with their charter obligations, have provided them-^ 
 selves with convenient, suitable, and ample stations and depots, 
 for the accommodation of their business, the law imposes upon 
 them no duty, either to the public or other railroad lines, of mak- 
 ing new stations, 3^ards, or depots, even though such additional 
 constructions might be for the convenience of the public, or of 
 other carriers. Congress has certainly not undertaken, even if it 
 possessed the power, to deal with such matters. 
 
 When a new railroad makes a physical connection with an old 
 raih-oad, at a point other than the established yard or depot of 
 the old road, but neither company has any yard, station, depot, 
 or ground, at the point of connection; nor any buildings, sheds, 
 or platforms there, for the reception and accommodation of 
 freights, to be handled and exchanged at that point; nor any 
 clerks or employes, stationed there for the inspection of cars, re- 
 ception of freights, etc.; an interchange of traffic at such a point 
 cannot be made in a proper and convenient way to either com- 
 pany; and no'autliority is conferred upon the Commission, or up- 
 on a United States circuit court, to compel the old company to 
 provide at said point of connection the same or equal facilities, 
 which it had previously provided at its regular, established yards 
 and depots. Where there are no facilities at said connection, for 
 receiving, forwarding, or delivering freight, individual shippers, 
 or consignees of freight, have no right to require the old com- 
 pany to receive or deliver their traffic, at such point of connec- 
 tion; and the new company, or other companies using its tracks, 
 cannot proj^erly demand, or require of the old company, to con- 
 cede to it, or them, rights and facilities, which the old company 
 is under no obligation, or duty, to grant, or provide for individual 
 owners or shippers of interstate commerce. This would be con- 
 ferring upon common carriers, engaged in transporting interstate 
 traffic, rights and privileges superior to those intended for the 
 benefit of such commerce itself. The tracks and terminal facili- 
 ties of a railroad company can be used by a connecting company 
 for the exchange of interstate freight, only with the consent of 
 the former. Refusal to permit a forwarding company to perform 
 an act involving the use of the tracks and terminal facilities of a
 
 FACILITIES FURNISHED CONNECTING CAKKIEK. 419 
 
 receiving company is not a discrimination or denial of equal facili- 
 ties by one carrier to a connecting carrier.* The law was not de- 
 signed to advance the interests of carriers; but was intended for the 
 benefit and advantage of the commerce they trans]3orted; and the 
 provisions of the Act all look to that as its object and purpose. 
 The fact that a railroad company interchanges traffic with certain 
 railroads, at its regular established yard or depot (where it has 
 provided all reasonable, proper, and equal facilities for that pur- 
 pose) and refuses to interchange traffic with a new road, at a 
 point of connection where no such facilities exist, does not con- 
 stitute any " discrimination," or any " undue, or unreasonable 
 preference or advantage," in favor of the raih-oads with wliicli 
 such interchange is made. The third section of the Act does not 
 mean that whatever facilities a railroad company may furnish, or 
 provide, for the interchange of business with connecting lines, at 
 any one place (such as its regularly established and properly 
 equipped depot) it is bound to provide for any, and all other 
 railroads, at such other and difterent points as they may select in 
 making their connection. On the contrary, said section means, 
 that where a railroad subject to the provisions of the Act has 
 provided and established, at any given place, its facilities, in the 
 shape of yards, stations, and depots, for the interchange of traf- 
 fic, or for the receiving, forwarding, and delivering of passengers 
 and property, and there affords such facilities to some of its con- 
 necthig lines, it shall not deny to other connecting lines at that 
 point, the same proper, reasonable, and equal facilities. 
 
 It by no means follows because certain facilities for the inter- 
 change of freight are furnished by a railroad to another connect- 
 ing line or lines at one point, upon certain terms, conditions and 
 considerations, and where ample accommodations for the transac- 
 tion of such business are provided and maintained at the joint 
 expense of the companies using them, that another company, 
 making a physical connection with the road (furnishing such fa- 
 cilities) at another, different, and distant place, is entitled to de- 
 mand at said diff'erent point of connection, the same, or equal 
 
 J Little Rock & M. R. Co. v. St. I^uis, 1. M. & S. R. Co. (C. C. E. D. Ark.) 
 59 Fed. Rep. 400.
 
 420 LIABILITIES — CHARGES — FACILITIES — CONNECTING CARRIEKS. 
 
 facilities. The company making the pliysical connection, at a 
 point other than that at which the estabhshed road has ah-eady 
 provided its facilities, and conducts its interciiange, with other 
 connecting lines, cannot demand or require an interchange at such 
 point of physical connection, without first furnishing at such 
 point, reasonable, and proper facilities, for the interchange sought. 
 It cannot rely upon the terminal facilities at another point of the 
 road, with which it has formed the physical connection ; nor can 
 it compel the road, with which the connection is made, to join 
 with it, in the expense of providing at that point, the facilities 
 necessary and proper for the interchange.' 
 
 No provision of the Act confers equal facilities upon connect- 
 ing lines, under dissimilar circumstances and conditions. On the 
 contrary, even as to interstate commerce itself, the distinction is 
 recognized throughout the law, between discriminations and pref- 
 erences which are just and reasonable, and those which are un- 
 just and unreasonable, according as they are made, or given, under 
 similar or dissimilar circumstances and conditions. All discrim- 
 inations and preferences are not forbidden, or made unlawful ; 
 but only such as are unjust, or undue, or unreasonable. In each, 
 and every case, therefore, the question whether a discrimination 
 is unjust, or a preference is undue, or unreasonable, either as to 
 the common carrier, or the commerce it may transport, involves 
 a consideration of the circumstances and conditions, under which 
 such discrimination, or preference, is made or given. 
 
 An interchange of traffic at a new point of connection between 
 railroads, where there are no buildings, sheds, platforms, or other 
 facilities, for the proper care, protection, and handling of freight, 
 and no clerks, or employes, stationed there to look after, and at- 
 tend to the business, cannot possibly be carried on, without re- 
 quiring the old road to concede the use of its track and terminal 
 facilities to the new road, or without imposing upon the old road 
 the trouble, inconvenience, and expense of handling the traffic 
 interchanged between them ; and neither the Commission, nor a 
 United States circuit court, has any autliority to require the old 
 
 ' Little Rock & M. R. Co. v. St. Louis, L M. & S. B. Co. (C. C. E. D. Ark.) 
 59 Fed. Rep. 400.
 
 FACILITIES FUK>fISHED CONNECTING CAEEIEE. 421 
 
 I'oad to concede the use of its tracks and terminal facilities, in 
 order to accomplish an interchange of traffic, nor can a court, or 
 the Commission, impose upon the old road the duty of making 
 such interchange, at its own expense, over its own tracks, with its 
 own engines, at its own yard, and with its own employes. Such 
 interchanges between railroads are arranged by mutual agree- 
 ments, fixing the compensation to be paid for services, and for 
 the use of improvements, and providing for " prorating," the ex- 
 pense incident to such interchange. But if the parties cannot 
 themselves agree upon such terms, neither a court nor the Com- 
 mission can make an agreement for them, under the existing law. 
 The provision in the third section of the Act, to the eifect that a 
 common carrier shall not be required " to give the use of its tracks 
 and terminal facilities, to another carrier engaged in like busi- 
 ness," is a limitation upon, or qualification of, the duty of afford- 
 ing all reasonable, proper, and equal facilities, for the interchange, 
 or for the receiving, forwarding, and delivering, of traffic to, 
 from, and between, connecting lines ; and therefore it is left open 
 to any common carrier to contract, or enter into arrangements, 
 for the use of its tracks and terminal facilities, without subjecting 
 itself to the charge of giving an undue, or unreasonable prefer- 
 ence or advantage to such lines, or of discriminating against other 
 carriers who ai;e not parties to, or included in such arrangements. 
 No common carrier can, therefore, justly complain of another, 
 that it is not allowed the use of that other's tracks and terminal 
 facilities, upon the same or like terms and conditions, which, un- 
 der private contract or agreement, are conceded to other lines. 
 A railroad company cannot be compelled to receive freight from 
 a connecting road in cars other than its own, although it receives 
 freight from another competing road in the cars of the latter, and 
 transports them over its road.' 
 
 Under the terms and operations of a contract, made by a brido-e 
 company and three railroad companies, the railroad companies 
 secured and enjoyed all reasonable, proper, and equal facilities, 
 for the interchange of cars and traffic, between them, which in- 
 
 ' LMe Rock & M. R. Co. v. St. Louts, I. M. & S. R. Co. (C. C. E. D Ark ) 
 59 Fed. Red. 400.
 
 422 LIABILITIES CHARGES FACILITIES CONNEOTINO OAERIEES. 
 
 terchange was conducted for many years at the regular, estab- 
 lished yard or depot of one of them, and the expense of such in- 
 terchange was shared by them, in certain proportions fixed by 
 contract. After the passage of the Act to Regulate Commerce, 
 one of the railroad companies voluntarily abandoned those facili- 
 ties, and changed its business to another bridge — not in the inter- 
 est of the public, nor of the interstate conunerce it handled, but 
 for its own private benefit and advantage ; and then sought tu 
 compel the company (at whose yard the intercliange of traffic had 
 been conducted) to allow such intercliange at a new point of con- 
 nection, and to afford at such point, facilities equal to those 
 which the applicant had voluntarily abandoned, but the court, on 
 the hearing, declared that the ap})lication ought not to be granted. 
 The seventh section makes it unlawful for any common carrier, 
 subject to the provisions of the Act, "to enter into any jombina- 
 tion, contract, or agreement, express or implied, to prevent, by 
 change of time schedule, carriage in different cars, or by other 
 means or devices, the carriage of freights from being continuous 
 from the place of shipment to the place of destination," etc. It 
 is no violation of said section, for a railroad company to enter 
 into contracts with other comjianies for the establishment of 
 through routes, and through rates, for the continuous carriage of 
 interstate traffic. Such contracts are in no wise consistent with 
 the things forbidden by said section.' 
 
 Breaking up a through billing arrangement at through rates, 
 with a responsible company, without any reason therefor, and at- 
 tempting to give all the business that would come under it to a 
 different company, is unlawful." To refuse altogether to receive 
 traffic from one connecting line ; to receive it only under ari-ange- 
 ments which impose such obligations upon the shippers as to 
 transfer and rebilling as would make the transaction of the busi- 
 ness impracticable in competition with a more favorable line ; to 
 receive it without reshipment and transfer indeed, but to system- 
 atically neglect to forward it ; to receive and forward it, but to so 
 
 1 Kentucky <&!. Bridge Co. v. Louisville N. R. Co. 2 Inters. Com. Rep. 351, 2 
 
 L. R. A. 289, 37 Fed. Rep. 567. 
 ^New York & N. R. Co. v. New York & N. E. R. Co. 3 Inters. Com. Rep. 542.
 
 FACILITIES FURNISHED CONNECTING CARRIER. 4:23 
 
 arrange the hours or manner of delivery as to deprive it of facili- 
 ties equal to those afforded to traffic coming from the petitioner ; 
 these and a great variety of other devices which might be sug- 
 gested, while differing some in detail, are in substalnce practically 
 the same. To require petitioner to bring a new proceeding each 
 time the ingenuity of the offending carrier may devise some slight 
 variation of the methods by the means of which its \dolation of 
 the statute is persisted in, would be to fritter away the system of 
 procedure provided in the statute to secure obedience to its re- 
 quirements.' Where the owners of a coal mine who, pursuant to 
 the authority given them by the state constitution, have connected 
 their mine with the main track of a second railroad, the fact that 
 the manager of the first railroad with which they had made such 
 connection, in the exercise of his discretion,- determined that the 
 operation of cars on both side tracks and on a common track lead- 
 ing to the weighing scales at the mine is so unsafe and imprudent 
 as to justify it in disconnecting its track, is not conclusive, but 
 facts must be set up showing in what respect the use by both 
 companies is unsafe.^ 
 
 There is nothing in the Act which makes mere distance between 
 connecting points, whether a furlong, a mile, or ten or twenty, 
 controlling of the question of discrimination in facilities to con- 
 necting lines. "Wliere '' the physical conditions for interchange 
 of trafiic with both the connecting lines are suitable, adequate, 
 and suljstantiaily equal," the requirements of the second clause of 
 the third section seem to be plainly applicable.' The provisions 
 of the interstate commerce law requiring connecting railroads to 
 receive and deliver passengers and freight from other roads, and 
 afford equal facilities for the interchange of traffic, apply with 
 equal force to their officers and employes." 
 
 ]S^ either at connnon law nor under the Act of Con2:ress of June 
 15, 1866 (U. S. Eev. Stat. § 5258) or the Interstate Commerce 
 
 Uiew Fork & K R. Co. v. Mw York & N. E. R. Co. 4 Inters. Com. Rep. 117, 
 
 50 Fed. Rep. 867. 
 » Chicarp & A. R. Co. v. Suffern, 129 III. 274. 
 » New York & N. R. Co. v. New York & N. E. R. Co. svpra. 
 * Toledo, A. A. <fe N. M. R. Co. v. Pennsylvania Co. 19 L. R. A. 395 54 Fed. 
 
 Rep. 746.
 
 4:24: LIABILITIES CHARGES — FACILITIES CONNECTING CARRIERS. 
 
 Act of Feb. 4, 1887, can a common carrier be compelled to make 
 throuirh traffic arrano;ement with connecting lines.' The Act to 
 Regulate Commerce does not empower the commission to compel 
 railroad companies to enter into joint arrangements with carriers 
 by water for through carriage at through rates." The Act of 
 Congress in its present form is inadequate to satisfactorily estab- 
 lish a through route with through rates without the co-operation 
 of carriers in arranging for the division of rates and other neces- 
 sary agreements.' In the absence of statutory provision the rights 
 of a railroad company, under a lawful agreement for a specified 
 use of the track of another railroad company, are measured, in re- 
 spect to the tracks used, by the terms of the contract.* An agree- 
 ment between railroad companies, granting mutual rights to run 
 cars on each other's track, but containing no provision authorizing 
 the assignment or leasing of such rights, confers no such power ; 
 and the exercise of such power can be restrained by injunction.* 
 A contract drafted in pursuance of negotiations between two 
 railroad companies, duly signed, sealed, and delivered by the 
 proper officers, agreeing to use their tracks interchangeably, can- 
 not, on the ground that the officers were not authorized to make 
 the contract, be disregarded by one of the companies by which it 
 was adopted and ratified and acted upon in the management of 
 its business, and which received its benefits for more than a year.' 
 Though rates in interstate traffic are the subject of agreement 
 among carriers who transport the freight, and for their existence 
 are dependent upon such agreement ; and one of the features of 
 such rates usually is that each carrier receiving the freight pays 
 the charges upon it of the carrier delivering it.' A refusal to 
 
 ^Kentucky & I. Bridge Go. v. Louisville & N. R. Co. 2 Inters. Com. Rep. 351, 
 
 3 L. R. A. 289, 37 Fed. Rep. 567. 
 ' lie Joint Water & Rail Lines, 3 Inters. Com. Rep. 486 ; Kentucky & L. Bridge 
 
 Co. V. Louismlle tfc N. R. Co. supra; Capehart v. Louisville & N. R. Co. 3 
 
 Inters. Com. Rep. 278. 
 
 3 Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co. 2 Inters. Com, Rep. 
 
 454; Kentucky & L Bridge Co. v. Louisville & N. R. Co. supra, 
 
 4 Alford V. Chicago, R. L & P. R. Co. 2 Inters. Com. Rep. 771. 
 ^Brooklyn Crossiown R. Go. v. Brooklyn City R. Co. 51 Ilun, 600. 
 * Jourdan v. Loi^g Island R. Co. 115 N. Y. 380. 
 
 "^Re Clark, 3 Inters. Com. Rep. 797.
 
 FACILITIES FURNISHED CONNECTING CARRIEK. 425 
 
 transport goods unless an excessive charge is paid is not a refusal 
 to afford reasonable facilities, within the meaning of the Act re- 
 quiring railway and canal companies to afford all reasonable facil- 
 ities for traffic' 
 
 A regulation of a railway company that it will not receive 
 goods that have been damaged while in the hands of other roads, 
 unless it is indemnified against liability for such damage, is rea- 
 sonable and valid. ^ The transportation by a railroad company to- 
 a certain point on its line, of freight received from a coimecting 
 carrier which had reserved the right to forward the property by 
 any carrier it might select, especially where the freight thereon 
 was to be paid at the point of destination by the purchaser, is not 
 a service rendered by the party by whom the through sliipment 
 is made, but for the connecting carrier; and therefore there may 
 be an unlawful discrimination between the charges for such serv- 
 ice and for a shipment by the same shipper to the same consignee 
 at the same destination over the local line alone/ 
 
 A carrier having an agent at one of its stations, wlio delivers 
 goods arriving for parties residing there, for the profft of the com- 
 pany, cannot refuse to recognize or act upon the general orders 
 signed by the consignees of the goods, directing the company to 
 hand over to such carrier for delivery all goods which might ar- 
 rive at that station, addressed to such consignee ; nor can they 
 require from such carrier, special orders in each instance, describ- 
 ing the goods or packages demanded ; as such action is a violation 
 of the English Eailway & Canal Traffic Act (17 & 18 Yict. chap. 
 31, § 2) being an undue and unreasonable prejudice to the com- 
 peting carrier in the conduct of his business, and an undue pref- 
 erence and advantage to the company itself.'' A railway company 
 estal)lishing various offices in different parts of the cit}", for re- 
 ceiving goods to be transported to its depot, cannot exclude other 
 
 ' Beg. V. Railway Comrs. & D. 1. Co. L. R. 22 Q. B. Div. 642, 40 Am. & En?. 
 R. Cas. 59. 
 
 * Missouri Pac. B. Co. v. Weisman, 2 Tex. Civ. App. 80. 
 ' United Slates v. Tozer, 2 Inters. Com. Rep. 597. 
 
 * Parkinson v. Great Western B. Co. L. R. 6 C. P. 554.
 
 426 LIABILITIES — CHARGES — FACILITIES — CONNECTING CARRIERS. 
 
 carriers from access to its depot for tlie delivery of goods col- 
 lected by them, during hours when it permits its own vans access.' 
 
 It may be said it is a matter of common knowledge that the 
 demands and exigencies of commerce require in the transporta- 
 tion of freight, that the cars of one company should be hauled 
 over the I'oad of another, and that, in order to meet this demand, 
 the gnage of the tracks of the great trunk lines has been made 
 uniform. This necessity has been recognized and provided for 
 by statute in many of the states, including Alabama. Section 
 21 of article 47 of the Constitution, and section 1165 of the Code 
 of 1886, carrying the same into effect, make it mandatory on 
 railroads, when required, to transport or draw over its line the 
 passengers, freight, or cars of any intersecting or connecting road, 
 on reasonable terms, provided such cars are adapted to the guage 
 of its track, are sufficiently strong, and otherwise in proper con- 
 dition for safe transpoi-tation. So, likewise, it is the duty of a 
 railroad company, under section 1165 of the Code, to receive 
 from a connecting line of railway such ears only as are adapted 
 to the guage of its track, that are sufficiently strong, and other- 
 wise in proper condition for safe transportation ; and when it re- 
 ceives a car on its line from such other company, the presump- 
 tion is that it meets the above requirements.' A statute requir- 
 ing all railroad companies to receive from any connecting road 
 having the same guage all cars containing goods or freight con- 
 signed to a point on their road does not require a railroad to issue 
 through bills of lading to points beyond its own line, or to deliver 
 its own cars containing freight to a connecting line.' 
 
 A statute requiring freight in car load lots to be transferred 
 without unloading, unless the unloading is done without charge, 
 and that smaller quantities shall be transferred into the cars of 
 the connecting carrier at cost, which shall be made a part of the 
 joint rate, does not interfere with the constitutional guaranties 
 for the protection of the rights and property of the carriers.* 
 
 ' Re Palmer, L. & S. W. B. Co. 1 Nev. & McN. 271, L. R. 6 C. P. 194. 
 
 2 Louisville & N. R. Co. v. Roland, 18 L. R. A. 260, 96 Ala. 626. 
 
 3 Coles V. Central R. & Rkg. Co. 86 Ga. 251, 45 Am. & Eng. R. Cas. 328. 
 "^Burlington, G. R. & N. B. Co. v. Dey, 12 L. R. A. 436, 82 Iowa, 312.
 
 i'ACILITIES FUKNISHED CONNECTING CARRIER. 427 
 
 Tlie provision of the charter of the ISTorthern Pacific Railroad 
 Company, that it shall permit any other railroad com])any to form 
 running connections with it, imposes no obligation upon it to run 
 the cars of another company over its road, except when the trans- 
 fer of the freight contained therein would injure it. The " run- 
 ning connections" include only such arrangements as to the time 
 of trains and as to stations, platforms, and other facilities, as will 
 enable companies desiring to connect to do so without detriment 
 or serious inconvenience.* It does not require it to permit the 
 use of its road by the cars of other companies, or to honor tickets 
 of such other companies." A railway company has no right under 
 the Florida laws to lease the terminal point of its track and termi- 
 nal facility on a navigable stream to a steamboat company in such 
 manner as to defeat the ingress and egress to and from its track 
 by other competing lines of steamboat companies.^ 
 
 Under the constitution of Colorado one railroad company has 
 not a constitutional right, which a court of chancery can enforce 
 by a decree for a specific performance, to form the same business 
 connection, and make the same traffic arrangement, with another 
 company as that company grants to or makes with any competing 
 company operating a connected road. The right of one company 
 to connect its road with that of another company, which is made 
 part of the fundamental law, implies no more than a mechanical 
 union of the tracks of the roads so as to admit of the convenient 
 passage of cars from one to the other. It does not include the 
 right of business intercourse between the two companies.^ But a 
 railroad company may be comjDcUed to oiier the same facilities 
 for interchange of cars and freight in bulk with one connecting 
 road that it does with another. The Interstate Commerce Act 
 prohibits discrimination. What are reasonable facilities for an 
 
 ^Oregon Short Line & U. N. R. Co. v. N'orthern Pac. R. Co. 4 Inters. Com. 
 Rep. 249, 51 Fed. Rep. 465, 51 Am. & Eng. R. Cas. 145. 
 
 * Oregon ShortLine & U. N. R. Co. v. Northern P. R. Co. (C. C. App. 9th C.) 
 
 61 Fed. Rep. 158. 
 
 * Indian River 8. B. Co. v. East Coast Transp. Co. 28 Fla. 387, 49 Am. & 
 
 Eng. R. Cas. 212. 
 
 * Atchison, T. & 8. F. R. Co. v. Denver d M. 0. R. Co. 110 U. S. 667, 28 L. 
 
 ed. 291.
 
 428 LIABILITIES CHARGES — FACILITIES CONNECTING CARRIERS. 
 
 interchange of business between connecting railroad companies^ 
 witliin the requirements of the Interstate Commerce Act, de- 
 pends upon the state of the traffic and the business, and the ques- 
 tion is to be determined by what is considered reasonable by the 
 public, and what is required to conveniently transact the busi- 
 ness. The intervention betw^een two railroads of a terminal sys- 
 tem owned by an independent company will not prevent the roads 
 from being connecting lines within the meaning of the Interstate 
 Commerce Act requiring such lines to interchange business ; at 
 least where the stock of the terminal company is owned by the 
 two roads jointly, or by one of them in such a manner that the 
 terminal in reality forms a part of its road. 
 
 A railroad company can require a connecting company to re- 
 ceive through cars and take freight in them over its line without 
 transfer, although the use of the latter's terminals and terminal 
 facilities will necessarily be required for the service, and although 
 the roads are parallel and rival lines and the service of transport- 
 ing the freight has been practically performed by one company, 
 which needs the assistance of its rival simply to deliver the 
 freight at points near the terminus of its road ; for this purpose 
 no contract between the companies is necessary. The connect- 
 ing company may be required to receive passengers under similar 
 circumstances. One railroad company may have a right to issue 
 Ijills of lading for freight and through tickets for passengers over 
 a connecting road, although there is no contract between the 
 companies.' 
 
 It has been ruled that no obligation to transport freight over 
 its line in the cars of another company, when it has cars of its 
 own not in use, to pay the charges thereon of the other company, 
 or to honor tickets for passage over its line issued by the other 
 company, is imposed upon a railroad company by the Interstate 
 Commerce Act, § 3, providing that carriers shall give no undue 
 or unreasonable preference, and shall afford all reasonable, proper 
 and equal facilities for the interchange of traffic. It is not, as a 
 carrier of freight and passengers, under any obligation to take 
 
 1 Oregon Short Line cfi U. N. R. Co. v. Northern Pac. R. Co. 3 Inters. Com. 
 Rep. 205.
 
 FACILITIES FUBNISHED CONNECTING CARRIER. 429 
 
 freio^ht from a connectino' road in the cars of the latter and trans- 
 port it in such cars while its own cars are not in use, in the ab- 
 sence of any controlling custom among railroads. The refusal 
 by a railroad company to transport freight on foreign cars origi- 
 nating east of a certain meridian, when its own cars are not in 
 use but are free to be employed in the transportation desired, or 
 where a transfer of freight will not be injurious to it, is not an 
 unreasonable discrimination against another railroad company, or 
 a denial to it of reasonable and proper facilities under the Inter- 
 state Commerce Act, although it accepts in such cars freights 
 originating west of such meridian.' If it accepts freight in 
 the cars of a connecting road and transports it therein when it 
 has cars of its own not in use, it is not liable for mileage upon 
 such cars in the absence of an arrangement to that effect ; but 
 the existing custom that when a railroad takes the freight in 
 the foreign cars because it has none of its own out to use, or be- 
 cause the freight would be injured by the transfer, it shall pay 
 certain mileage on the cars used, is reasonable and will be en- 
 forced.* A railroad company is not liable for the loss by fire of 
 a car received by it from another company, while it is standing 
 on its side track at its destination to be unloaded by the consignee, 
 although by its contract it is to transjjort it to its yard when un- 
 loaded.' 
 
 A bridge company which is not, either in law or in fact, a com- 
 mon carrier of interstate traffic, cannot invoke the provisions of 
 the Act to Regulate Commerce to compel railway companies to 
 transact business with or through such bridge company. Its 
 franchise does not constitute it a common carrier, nor confer on 
 it authority " to equip its road, and to transport goods and pas- 
 sengers thereon, and charge compensation therefor." "Where a 
 railroad company, by contract with a bridge company, acquires 
 the right to use a bridge, with its approaches, for its engines, cars 
 
 J Oregon Short-Line & U. If. li. Co. v. Northern P. R. Co. (C. C. Apn. 9th C.) 
 61 Fed. Rep. 158. 
 
 « Oregon Short Liiie & U. N. B. Co. v. Northern Pac. R. Co. 4 Inters. Com. 
 Rep 249, 51 Fed. Rep. 465, 51 Am. & Eng. R. Cas. 145. 
 
 ^Peoria & P. U. R. Co. v. United States Rolling Stock Co. 136 111. 643, revis- 
 ing 36 111. App. 553.
 
 430 LIABILITIES — CHARGES FACILITIES CONNECTING CAJiKlEKS. 
 
 and trains, it is regarded, under the Act to Regulate Commerce, 
 § 1, as the owner or operator of the bridge and approaches, for 
 tlie time being as to all freight transported by it over the bridge.' 
 Burton Stock Car Company, which furnislies stock cars to 
 shippers over railroad, does not exchange wuth or use cars be- 
 longing to others, and is not a connecting line entitled to equal 
 facilities for interchange of traffic under sec. 3, par. 2, of the Act. 
 Such company is not unjustly discriminated against by refusal of 
 railroad companies to pay same rate of milage for its cars as for 
 ordinary freight cars. Customary milage rate for freight cars of 
 other railway companies used upon paying company's line, and 
 which payment is, by interchange of cars, practically equalized 
 among different roads, is not the measure of payment for the use 
 of cars belonging to other persons than railroad companies,' 
 
 § 10 o. Provisions Enforcing Connections and For- 
 bidding Combinations. 
 
 The following are the constitutional and statutory provisions 
 affecting connections for business and prohibiting combinations 
 between railroads to prevent compensation. Alabama constitu- 
 tion requires roads to connect, receive and transport each other's 
 freight and passengers.' The meaning of the last clause of article 
 15, section 4, of the Constitution of Colorado, which provides 
 that "every railroad company shall have the right with its road 
 . . . to connect with . . . any other railroad," is that 
 such roads are to be connected physically, as distinguished from 
 the business connection between roads which have approximate 
 termini* Under the constitution of Colorado one railroad com- 
 pany has not a constitutional right, which a court of chancery 
 
 ^Eeyihtcky & I. Bridge Co. v. Louistille & N. R. Co. 2 L. R. A. 289, Sinters. 
 
 Com. Rep. 351, 37 Fed. Rep. 567. 
 ■Burton Stock Car Co. v. Chicago, B. & Q. B. Co. 1 Inters. Com. Rep. 329. 
 3 See also, Code of 1886, vol. I. p. 389, § 1586; Arizona. Rev. Stat. 1887, 
 
 § 318, p. 113; Arkansas. Const. 1874, art. 17. § 4; Act March 24, 1887, § 2; 
 
 Laws, p. 114: Colorado. Const. 1876, art. 15, § 5; Rev. Stat. 188c!, §353, 
 
 p. 211; Rev. Stat. 1883, § 360, p. 213. 
 * Denver & JV. 0. B. Co. v. Atchison, T. & S. F. B. Co. 13 Fed. Rep. 546.
 
 PItOVISIOJSfS ENFUKCING- CONNECTIONS, ETC. 431 
 
 can enforce by a decree for a specific performance, to form tlie 
 same business connection, and make the same traffic arrange- 
 ment, with another company as that company grants to or makes 
 with any competing company operating a connected road. The 
 right of one company to connect its road with that of anotlier 
 company, which is made part of the fundamental law, implies no 
 more than a mechanical union of the tracks of the roads so as to 
 admit of the convenient passage of cars from one to the other. 
 It does not include the rio-ht of business intercourse between the 
 two companies.^ 
 
 AVhere two railway companies agree that they shall accept no 
 freight for certain places, except to be carried over the road of 
 the other, it is a conspiracy to grasp commerce, and suppress the 
 building of railroads within such locality. A contract of this kind 
 is against public policy, and therefore void. A contract by which 
 one railroad company agrees with another upon a division of ter- 
 ritory and traffic between them, and that one will not " do any 
 through business to and from Xew Mexico via Trinidad or El 
 Moro," amounts to an express renunciation of a duty of trans- 
 portation enjoined by the state, and is therefore void.'^ AVhere 
 a railroad corporation is about to purchase, controlling interest 
 in the stock of a rival railroad, the sale being invalid should be 
 restrained.' Under the Act of February 12, 1885, all railroad 
 companies have power to make contracts and arrangements with 
 each other for leasing or running their respective roads, or any 
 
 ^Atchison, T. & S. F. E. Co. v. Denver <& N. 0. R. Co. 110 U. S. 667, 28 L. 
 ed. 291. 
 
 ^Denver & N. 0. B. Co. v. AtcMson, T. & 8. F. R. Co. 15 Fed. Rep. 650, 4 
 McCrary, 325, 16 Cent. L. J. 209, reversed on another point in 110 U. S. 
 667, 28 L. ed. 291; Connecticut. Act April 17, 1883, § 1; Laws. p. 267. 
 See State v. Hartford <& iV. R. R. Co. 29 Conn. 539; Gen. Laws 1888, 1889 
 requires mutual connection and transportation of passengers and freight; 
 Dakota. Civil Code 1883, ^ 478, 1, p. 830; Florida. Act June 7, 1887. 
 § 1 ; June 7, 1889, same requirement. Georgia. Const. 1877, art. 4, § 2, 
 T[ 4; Act of Sept. 27, 1881, § 15; Laws, p. 165; 1882, 1883, same provision. 
 
 ' Central R. Co. v. Collins, 40 Ga. 582; Havemeyer v. Havemeyer, 11 Jones & 
 S. 506, 515; Central R. & Bkg. Co. v. State, 54 Ga. 401, followed in Savan- 
 nah, O. & N. A. R. Co. \. State. 55 Ga. 557; Idaho. Rev. Slat. 1887, au- 
 thorize connection of roads. Acts consolidating the Central Railroad & 
 Banking Company with the Macon & Western Railroad Company con- 
 strued.
 
 432 LIABILITIES CHAKGES FACILITIES CONNECTING CAKKIERS, 
 
 part thereof; and a plea to an information, in the nature of a quo 
 warranto, charging one company with usurping the powers and 
 franchises granted to another, which sets up a contract between 
 it and tlie other company authorizing it to operate the road of 
 such other company, and that it is operating the road under such 
 contract, is a good plea.' 
 
 Where, under the Illinois state constitution, private persons, 
 such as the owners of mines, are entitled to a side track connect- 
 ing with the main track of a railroad, and such a side track has 
 been constructed, the fact that the owners of the mine subse- 
 quently caused another side track over their own property to be 
 constructed in connection with the main track of another com- 
 pany, in such a manner as in no way to interfere with the cars of 
 the tirst company, will not justify that company in disconnecting 
 its switch and refusing further accommodation to the mine own- 
 ers." There being no statute in Indiana which in terms forbids 
 or prohibits railroad corporations of that state from executing 
 leases of their property, a lease made by such a corporation, and 
 which is neither in violation of any statute nor against the public 
 policy of the state, is valid.* "Where several insurance com])anies 
 equalize rates of insurance in a large city, and agree not to insure 
 otherwise under penalty, the agreement is void/ The power to 
 declare contracts void as against public policy should only be ex- 
 ercised in cases that are free from doubt.' 
 
 Where the charter of a railroad company provided " that any 
 and all such railroad, or railroads, hereafter constructed, may con- 
 nect and join with the road, hereby contemplated," the connec- 
 tion thus authorized is a physical, and not a business connection 
 
 ' Illinois. Const. 1870, art. 11, § 11; Illin(m M. R. Co. v. Peojile, 84 111. 426; 
 Rev. Stilt. 1887, provides for connection of roads. 
 
 » Chicago & A. R. Co. v. Suffer n, 129 111. 274. 
 
 3 Indiana. Rev. Stat. 1888, § 8931; Pittsburg, C. & St. L. R. Co. v. Columbus, 
 C. & I. C. R. Co. 8 Biss. 456. 
 
 *Meizger v. Cleveland, 3 Ind. Law Mag. 42 (1883). Code 1881 authorizes con- 
 nection of roads. 
 
 *Iowa Rev. Code 1884, § 1297, p. 341; Richmond v. Dubuque & 8. C. R. Co. 
 26 Iowa, 191; Act of April 15, 1888, requires each road to exchange and for- 
 ward cars, etc. Act of April 8, 1S90, requires through tariff for freight and 
 cai-8. Kansas. Comp. Laws 1885, p. 778, § 5231; p. 779, § 5222.
 
 PROVISIONS ENFOKCING CONNECTIONS, ETC. 433 
 
 and it does not require an interchange of traffic at the point of 
 junction.* 
 
 By virtue of Special Laws 1870, cliap. 57, § 4, and Special 
 Laws 1871, chap. 71, § 1, the Minneapolis Railroad Company has 
 authority to make a valid lease to another company of this 
 state of rights which it has acquired since the passage of said 
 chapter 71, by condemnation of land." Roads must exchange 
 and forward traffic. Currier v. Concord B. Corp. 48 N. H. 321, 
 says : " The object of the law is to prevent the consolidation of 
 rival and competing lines of railroad by contracts or arrange- 
 ments between them, by means of which competition is removed ; 
 tlie purpose being to prevent the increase of the charges of such 
 railroads beyond what might be expected under the influence of 
 a free competition." The Act providing for the consolidation of 
 railroads does not give by implication the power to lease." 
 Whether a provision in the charter of a railroad company author- 
 izing it to lease or consolidate with any other railroad, and author- 
 izing any company to take such lease and operate the same, would 
 be sufficient to confer such authority upon any railroad of the 
 state, does not arise in a pending case, where the title of the Act 
 incorporating the railroad company does" not indicate such sub- 
 ject, and such provision of its charter is therefore void.' Under 
 
 ' Kentucky. Kentucky & I. Bndge Co. v. Louin-iUe & N. A. R. Co. 2 Inters. 
 Com. Rep. 351, 2 L. "R. A. 289, 37 Fed. Rep. 567; Louisiana. Constitution 
 requires connection and forwarding of trafBc; Maine. Rev. Stat. 1883, 
 chap. 51, p. 480. § 54; Rev. Stat, to 1889 requires forwarding of traffic; 
 Minnesota. March 7, 1887, same requirement; Maryland. Rev. Code, 
 1878, p. 359; Michigan. Const. 1850, art. 19a, § 2; How. Ann. Stat. 1882, 
 p. 854, S 3343. Michigan Session Laws, 1873, as amended 1877, 1883, re- 
 quire transportation of cars and traffic of connecting roads. Minnesota 
 Gen. Stat. 1878, p. 381; Act March 3, 1881, g 3; Laws, p. 110. 
 
 * Pence v. St. Pmil, M. & M. R. Co. 28 Minn. 488; Missouri. Const. 1875, art. 
 12, §§ 17, 18; Act March 30, 1887, § 1; Laws, p. 102; Id. § 2; see Wiggins 
 Perry Co. v. Chicago & A. R. Co. 73 Mo. 389, 39 Am. Dec. 519, 5 Mo. App. 
 347; Nebraska. Const. 1875, art. 11, § 3; Laws, 1887, chap. 60, § 5, p. 543, 
 requires interchange of traffic but not" joint use of road: New Hampshire. 
 Gen. Laws, 1878, p. 377, require facilities for interchange of traffic. 
 
 'Greenhood, Public Policy, 663-673; New Jersey. Act 1880; P. L. 1880, 
 231, authorizing railroads to lease roads, etc., simply confers a right to 
 exercise the power given after consent of those affected thereby or payment 
 of satisfactory compensation. 
 
 *Mias V. Central R. Co. of N. J. 41 N. J. Eq. 1. 
 
 *See Camden & A. R. Co. v. Mays Landing & E. H. C. R. Co. 48 N. J. L. 
 28
 
 i34 LIABILITIES CHARGES FACILITIES CONNECTING CARRIERS. 
 
 the statutes of New York railway lines cannot be consolidated 
 unless they are substantially continuous lines, or running in the 
 same general direction.' Where proprietors of five lines of l)oat8, 
 engaged in the transportation of persons and freight, combine, 
 and stipulate that they all shall charge certain prices, the net 
 earnings of all to be divided according to certain fixed propor- 
 tions, the agreement is invalid." The proprietors of all boats on 
 the Erie and Oswego canals entered into an agreement to estab- 
 lish a uniform scale of prices of freight and passage, and to di- 
 vide the profits arising therefrom proportionately, according to 
 the number of boats employed, with a provision preventing the 
 members from engaging in similar business outside of the combi- 
 nation. The contract was declared illegal.' 
 
 Section 108 of the Penal Code New York makes it a misde- 
 meanor for two or more persons to conspire (subd. 6) " to commit 
 any act injurious to the public health, to public morals, or to 
 trade or commerce, or for the perversion or obstruction of public 
 justice, or of the due administration of the laws." The Ke- 
 vised Statutes contained a similar provision/ In People v. Shel- 
 don, 22 L. K. A. 221, 139 N. Y. 251, the fact that the defend- 
 ants subscribed the constitution and by-laws of the Lockport 
 Coal Exchange, and participated in its management, was not con- 
 troverted on the trial. Nor was there any dispute that the object 
 of the organization was to prevent competition in the price of 
 coal among the retail dealers, acting as the Lockport Coal Ex- 
 change, by constituting the exchange the sole authority to fix the 
 price which should be charged by the members, individually, for 
 coal sold by them. Nor is there any dispute that, in pursuance 
 of the plan, the exchange did proceed to fix the price of coal, and 
 
 530. New York Laws of 1847, chap. 223, require equal facilities to be 
 granted to all competing or connecting roads in traffic and for transporta- 
 tion of cars, passengers and freight. Rev. Stat. 1882, p. 1592. 
 
 ' 2 Rev. Stat. (7th ed.) 1590; People v. Bonton, H. T. d-IF. R Co. 12 Abb. N. C. 
 230. 
 
 * Hooker v. Vandewater, 4 Denio, 349, 47 Am. Dec. 258. 
 
 3 Stanton v. Allen, 5 Denio, 434, 435, 49 Am. Dec. 282; Transportation Cases, 
 Whart. Prec. No. 658. 
 
 ^2 Rev. Stat. p. 692, § 8, subd. 6.
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 435 
 
 that the parties to the agreement were thereafter governed there- 
 by in making sales to their customers. Kor is it questioned that 
 the price first established was 75 cents in advance of the then 
 market price, and that there was afterwards a still further ad- 
 vance. The defendants gave evidence tending to show (and of 
 this there was no contradiction) that before and at the time of 
 the organization of the exchange the excessive competition be- 
 tween the dealers in coal in Lockport had reduced the price below 
 the actual cost of the coal and the expense of handling, and that 
 the business was carried on at a loss. It was not shown that the 
 prices of coal, fixed from time to time by the exchange, were ex- 
 cessive or oppressive, or were more than sufficient to afford a fair 
 remuneration to the dealers. The trial judge submitted the case 
 to the juiw upon the proposition that if the defendants entered 
 into the organization agreement for the purpose of controlling 
 the price of coal, and managing the business of the sale of coal, 
 so as to prevent competition in price between the members of the 
 exchange, the agreement was illegal, and that if the jury found 
 that this was their intent, and that the price of coal was raised in 
 pursuance of the agreement to effect its object, the crime of con- 
 spiracy was established. The correctness of this proposition is 
 the main question in the appeal. 
 
 The court decided that if the confederacy into which the defend- 
 ants entered was an act " injurious to trade or commerce," irre- 
 spective of its results in the particular case, then there is no diffi- 
 culty in maintaining the conviction. If a combination between 
 independent dealers, to prevent competition between themselves 
 in the sale of an article of prime necessity, is, in the contempla- 
 tion of the law, an act inimical to trade or commerce, whatever 
 may be done under and in pursuance of it, and although the ob- 
 ject of the combination is merely the due protection of the par- 
 ties to it against ruinous rivalry, and no attempt is made to charge 
 undue or excessive prices, then the indictment was sustained by 
 proof. On the other hand, if the validity and legality of an agree- 
 ment having for its object the prevention of competition between 
 dealers in the same commodity depend upon what may be done 
 under the agreement, and it is to be adjudged valid or invalid
 
 436 LIABILITIES CUAKOliS FACILITIES CONNECTING OAKKIERS. 
 
 accordii^^ to the fact whether it is made tlie means for raising the 
 price of a commodity beyond its normal and reasonable value, 
 tlien it would be difficult to sustain this conviction, for it affirma- 
 tively appears that the price fixed for coal by the exchange did 
 not exceed what would afford a reasonable profit to the dealers. 
 It was said by Parker, Ch. J. (Lord Macclesfield), in his celebrated 
 judgment in M'dchel v. Reynolds, 1 P. Wms. 181, wliich was the 
 case of a bond taken from the defendant on the sale by him to 
 the plaintiff of the lease of a bake house, claimed to be void as in 
 restraint of trade : " In all restraints of trade, where nothing 
 more appears, the law presumes them bad.' But if the circum- 
 stances are set forth that presumption is excluded and the court 
 is to judge of these circumstances, and to determine accordingly ; 
 and if, upon them, it appears to be a just and honest contract, it 
 ought to be maintained." If this agreement, and what was done 
 under it, is to be judged as an isolated transaction, and its right- 
 fulness is to be determined alone upon the particuUir circum- 
 stances, whether it did or did not produce an injury to trade, we 
 might well hesitate. The obtaining by dealers of a fair and rea- 
 sonable price for what they sell does not seem to contravene pub- 
 lic policy, or to work an injury to individuals. On the contrary, 
 the general interests are promoted by activity in trade, which 
 cannot permanently exist without reasonable encouragement to 
 those engaged in it. 
 
 Producers, consumers, and laborers are alike benefited by health- 
 ful conditions of business. But the question here does not turn 
 on the point whether the agreement between the retail dealers in 
 coal did, as matter of fact, result in injury to the public, or to 
 the community in Lockport. The question is. Was the agree- 
 ment one, in view of what might have been done under it, and 
 the fact that it was an agreement, the effect of which was to pre- 
 vent competition among the coal dealers, upon which the law 
 affixes the brand of condemnation, and which it will not permit? 
 It has hitherto been an accepted maxim in political economy that 
 " competition is the life of trade." The courts have acted upon, 
 
 ' But see United States v. Tram- Missouri Freight Asso. 24 L. R. A. 73, 58 Fed. 
 Rep. 58.
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 437 
 
 and adopted this maxim in passing upon the validity of agree- 
 ments, the design of which was to prevent competition in trade, 
 and have held such agreements to be invalid. It is to be noticed 
 that the organization of the " exchange " was of the most formal 
 character. The articles bound all who became members to con- 
 form to the regulations. The observance of such regulations by 
 the members was enforced by penalties and forfeitures. A mem- 
 ber accused by the secretary of having violated any provision of 
 the constitution or by-laws was required to purge himself by affi- 
 davit, although evidence to sustain the charge should be lacking. 
 The shippers of coal were to be notified, in case of persistent de- 
 fault by the member, that "he is not entitled to the privileges of 
 membersliip in the exchange." No member was permitted to 
 sell coal at less than the price fixed by the exchange. The or- 
 ganization was a carefully devised scheme to prevent competition 
 in the price of coal among the retail dealers, and the moral and 
 material power of the combination afforded a reasonable guaranty 
 that others would not engage in the business in Lockport except 
 in conformity M'ith the rules of the exchange. The cases of 
 Hooker v. Yandewater, 4 Denio, 349, 47 Am. Dec. 258, and Stan- 
 ton v. AlUn^ 5 Denio, 434, 49 Am. Dec. 2S2, are, decisive au- 
 thorities in support of the judgment in this case. They were 
 cases of combinations between transportation lines on the canals 
 to maintain rates for the carriage of goods and passengers, and 
 the court, in those cases, held that the agreements were void, on 
 the ground that they were agreements to prevent competition; 
 and the doctrine was affirmed that agreements having that pur- 
 pose, made between independent lines of transportation, were, in 
 law. agreements injurious to trade. In those cases it was not 
 shown that the rates fixed were excessive. In the case, in 5 
 Denio, the judge delivering the opinion referred to the efi^ect of 
 the agreement upon the public revenue from the canals. This 
 was an added circumstance, tending to show the injury which 
 mio-lit result from agreements to raise prices or prevent compe- 
 tition.' 
 
 > See also People v. Fit^her, 14 Wend. 10, 28 Am. Dec. 501; Arnot v. Pittston 
 & E. Coal Co. 68 N. Y. 558, 23 Am. Rep. 190.
 
 438 LIABILITIES — CHAEGES — FACILITIES — CONNECTING CAlililEKS. 
 
 The gravamen of the offense of conspiracy is the comhination. 
 A.grecnieiits to prevent competition in trade are, in contempla- 
 tion of law, injurious to trade, because they are liable to be in- 
 juriously used. The present case may be used as an illustration. 
 The price of coal now fixed by the exchantre may be reasonable, 
 in view of the interests both of dealers and consumers, but the 
 organization may not always be guided by the principle of abso- 
 lute justice. There are some limitations in the constitution of 
 the exchange, but these may be changed, and the price of coal 
 may be unreasonably advanced. It is manifest that the exchange 
 is acting in sympathy with the producers and shippers of coal. 
 Some of the shippers were present when the plan of oi-ganization 
 was considered, and it was indicated on the trial that the i)roduc- 
 ers had a similar organization between themselves. If agree- 
 ments and combinations to prevent competition in prices are, or 
 may be, hurtful to trade, the only sure remedy is to prohibit all 
 agreements of that character. If the validity of such an agree- 
 ment was made to depend upon actual proof of public prejudice 
 or injury, it would be very difficult, in any case, to establish the 
 invalidity, although the moral evidence might be very convinc- 
 ing. The principle upon which the case was submitted to the 
 jury is sanctioned by the decisions in New York, and the jury 
 were properly instructed that, if the ])ur})ose of the agreement 
 was to prevent competition in the price of coal between the re- 
 tail dealers, it was illegal, and justified the conviction of the de- 
 fendants. 
 
 The trial judge was requested by the defendants' counsel, in 
 substance, to charge that the overt act required to be proved to 
 sustain a conviction for conspiracy must be one which might in- 
 juriously affect the public, and that the act of the defendants in 
 raisin o- the price of coal was, of itself, not such an overt act as 
 was required. The request was properly refused. The offense 
 of conspiracy was complete at common law on proof of the un- 
 lawful agreement. It was not necessary to allege or prove any 
 overt act in pursuance of the agreement.' In New York state 
 
 > 3 Chitty, dim. Law, 1142; O'ConneU v. Reg. 11 Clark & P. 155.
 
 PKOVISIONS ENFORCING CONNECTIONS, ETC. 439 
 
 this rule of the common law was changed by the Revised Statutes; 
 and, witli certain exceptions, it was provided that no agreement 
 should be deemed a conspiracy " unless some act beside such 
 agreement be done to effect the object thei-eof by one or more 
 of the parties to such agreement.'" And this principle was re- 
 enacted in the Penal Code, § 171. The object of the statute was 
 to require something more than a mere agreement to constitute 
 a criminal conspiracy. Tliere must be some act in pursuance 
 thereof, and done to effect its object, before the crime was con- 
 summated. A mere agreement, followed by no act, is insuffi- 
 cient. The overt act charged in the indictment, and proved, was 
 the raising of the price of coal. The raising of the price of coal 
 by a dealer, unconnected with any conspiracy, is not unlawful; 
 but if there is a conspiracy to regulate the price, and that con- 
 spiracy is unlawful, then raising the price is an act done to effect 
 its object, whether the price fixed is reasonable or excessive. 
 The object of the statute is accomplished when it is shown tliat 
 the parties have proceeded to act upon the agreement, and done 
 anything towards effecting its object. 
 
 A contract by the owners of a railroad to be made, under an 
 act of incorporation, with the owners of a rival railroad, not to 
 continue such road beyond a certain point, is void as contraven- 
 ing public policy.''' The accpiisition of lands to prevent interfer- 
 ence of competing lines, or for purposes of speculation, cannot be 
 consummated under the statutes authorizing the taking of private 
 property for public use." Public policy is opposed to any infringe- 
 ment of the righte of travel, or of any of the facilities which com- 
 petition may furnish, and the law will not uphold any agreement 
 which does or may injuriously affect such rights or facilities.* A 
 contract made by a corporation in violation of the terms of its 
 •charter, is ultra vires, and void as against public policy.^ Arail- 
 
 ' 2 Rev. Stat. p. 693, § 10. 
 
 « Hnrtfoi'd & N. H. R. Co. v. New York & N. H. U. Co. 3 Robt. 411. 
 
 ^Rensselaer cfc S. R. Co. v. Davis, 43 N. Y. 137. 
 
 ■* Hartford & N. H. R. Go. v. New York & N. H. R. Co. supra. See People v 
 
 Bo!^ton & A. R Co. 70 N. Y. 5(39, 570; Cldcarjo etc. R. Co. v. AUu Gen 9 
 
 West Jur. 347 (l«7r)). 
 ^ Union Bridge Co. v. Troy & L. R. Co. 7 Lans. 240.
 
 440 LIABILITIES CHARGES FACILITIES CONNECTING GARRIEKS. 
 
 way company cannot transfer or lease its line unless antliorized 
 by statute.' By chapter 444 of 1859, the Long Island Railroad 
 Company was authorized to take a lease of any railroad that 
 might be connected therewith. It was held that under this pro- 
 vision of the statute, a lease might be taken of a competing road, 
 provided that, when united, the two roads were capable of forming 
 continuous lines.^ The manner of procedure against a consoli- 
 dated corporation was determined in Prouty v. Lahe Sliore & M. 
 S. li. Co. 6 Hun, 246, 64 N. Y. 641. 
 
 An agreement by a steamship corporation to buy out a com- 
 peting line which, in consideration of a monthly payment, agrees 
 to discontinue running vessels between ports mentioned, and not 
 to charter or sell its vessels for use on that route, and not to 
 become in any way interested in the running of steamships be- 
 tween those places, is not void as in restraint of trade.' An 
 agreement between plaintiff and defendant, each being a rail- 
 road company, that plaintiff would at all times deliver to defend- 
 ant for transportation all the freight and passengers that it could 
 lawfully control or influence, and that it would use its influence 
 to promote the interests and business of defendant company as 
 far as it could properly ; that defendant would use its influence 
 and exercise its control to promote plain tifii's interest ; that it 
 would make good anj^ deficiencies of plaintiff to meet the interest 
 upon its present bonded indebtedness ; that plaintiff should cause 
 to be deposited with defendant a majority of its capital stock ; 
 and that, so long as the management of the plaintiff company 
 should be satisfactory to defendant, the latter would give to the 
 representative of plaintiff the right to vote upon the stock so de- 
 posited, — is not jper se void on the ground that it is contrary to 
 
 1 lYoy & B. B. Go. V. Boston, H. T. & W. R. Co. 86 N. Y. 107; EincUey v. 
 Qilders'eeve, 19 Graut, Ch. 213. See also Aity. Gen. y. Niagara Falls In- 
 ternational Bridge Go. 20 Grant, Ch. 34; Pittshurq & C. R. Go. v. Bidford 
 & B. R. -Go. 81* Pa. 104; Woodruff v. Erie R. Go. 25 Hua, 246; Ahb'M v. 
 Johnstown O. & K. Horse R. Go. 80 N. Y. 27, 36 Am. Rap. 572; Archer v. 
 Terre Haute & I. R. Go. 102 111. 493. 
 
 ^Wallace v. Long Island R. Go. 12 Hun, 460. 
 
 ^Leslie v. Lorillard, 1 L. R. A. 456, 110 N. Y. 519.
 
 PROVISIONS ENFORCING CONNECTiONii. 441 
 
 public policy.* The JN^orth Carolina Eailroad Company is in- 
 vested by its charter with full autliority to lease its road, with 
 power to the lessee to change the gauge thereof." The lines of 
 two railway companies, which are in their general features par- 
 allel and competing, cannot be connected for the carriage of 
 freight and passengers over both " continuously," within the 
 meaning of Revised Statutes, § 3379 of Kansas; and hence such 
 companies cannot become consolidated into one corporation under 
 that section,' 
 
 The Lateral Eailroad Act is constitutional.^ The Act of March 
 29, 1840, is a supplement to the Act of May 5, 1832, is in pari 
 ■materia with it, and should be so construed ; and neither Act au- 
 thorizes the connection of a lateral road, except with a public im- 
 provement. Two railway companies owning lines of railroad 
 connected only by other railroads which such companies hold by 
 lease are not authorized to become consolidated into one corpora- 
 tion under Pennsylvania Revised Statutes, § 3379." The lease of 
 a railway is held invalid in Kersey Oil Co. v. Oil Greek c& A. 
 R. Co. 12 Phila. 371. Where a corporation authorized to make 
 purchases and sales of and investments in the bonds and securities 
 of other corporations, contracted for the purchase of a controlling 
 interest in the stock and securities of a projected line of railroad, 
 and the consideration coming from another railroad company; 
 the projected railroad having a traffic contract with such other 
 railroad company, by which the former, when completed, would 
 be a parallel or competing line with it, the corporation in whose 
 name the contract of purchase was made not owning a parallel 
 
 1 TonawnndaValley & C. R. Go. v. New York, L. E. i&W.R. Co. 43 Hun, 496. 
 
 New Mexico. Act of Feb. 12, 1890, requires connection for transferring 
 
 cars and traffic. 
 « State V. Richmond cfe D. R. Co. 72 N. C. 634, 73 N. C. 527, 21 Am. Rep. 473. 
 
 Nortli Dakota Act of May 12 and March 19, 1890, requires connection of 
 
 roads on petition of twenty freeliolders and intercliange of traffic. 
 ^ State v.Vanderbilt, 31 Ohio St. 590; Ohio. Rev. Stat. 1884, p. 674, g 3300; 
 
 Act of April 22, 1885; Laws, p. 150; Rev. Stat. 1890, requires connection 
 
 of crossing roads so as to transfer cars; Pennsylvania. Const. 1873, art. 
 
 17, § 4, authorizes connection of road and requires interchange of traffic. 
 * Harvey v. Llovd, 3 Pa. 331; Shoenherger v. Mulhollan, 8 Pa. 134; Hays v. 
 
 Risher, 32 W. 169. 
 » Keeling v. Griffin, 56 Pa. 305.
 
 442 LIABILITIES CHARGES FACILITIES CONNECTING CARRIERS. 
 
 or competing line, — transfer of the property, or any of it, will be 
 enjoined as coming within Pennsylvania Constitution, art. 17, § 4, 
 which prohibits any railroad from acquiring or consolidating with 
 a parallel or competing railroad.' A preliminary injunction was 
 granted to restrain the withdrawal of railway connection with an 
 old established stock-yard, the withdrawal being attempted to aid 
 in the erection of a monopoly at another point." 
 
 Such combinations are illegal at common law, because contrary 
 to public policy. Agreements for such combinations and prom- 
 ises founded thereon will not be enforced,^ and the carrying out 
 of the combinations will be enjoined.^ Unless specially author- 
 ized by statute to lease its road, a railroad cannot, by so doing, 
 ■defeat its obligations to the public, or escape the liability which 
 the law imposes for torts, although committed by its lessee.^ 
 Where several common carriers combine as an association, the 
 object of which is to reduce competition between them, and to 
 provide a uniform charge for carriage, and fix upon such a rate, 
 each member to pay a fine for carrying freight for less than the 
 same, the agreement is void, and the association cannot recover 
 the fine.' An agreement between competing railway companies 
 
 ^Pennsylvania R. Co. v. Com. (Pa.) 4 Cent. Rep. 495, 501; South Carolina. 
 Gen. Stat. 1882, g;^ 1471-1474, requires equal facilities to be given to all 
 connecting roads: South Dakota. Const, art. 17, authorizes connection of 
 roads and requires interchange of traffic. 
 
 ^ Tennessee. Coe v. Louisville & N. R. Co. 3 Fed. Rep. 775; Texas. Const. 
 1876, art. 10, g§ 5, 6; Civil Stat. 1888, vol. 2, p. 442, art. 42, 46; Act March 
 28, 1887; Laws, p. 329; Act of April 2, 1887, chap. 123, S§ 4251-4254 (S. 
 B. No. 115) requires interchange on equal terms of all truffle and express 
 business; West Virginia. Const. 1872, art. 11, § 11; Code 1887, p. 521; 
 Act of 1875, chap. 82, requires intersecting ronds to receive and forward 
 traffic on equal terms; Virginia. Code, 1887, § 1208, carrier must afford 
 reasonable facilities and forward cars, boats, etc.; Vermont. R. L. 1880, 
 roads must connect and must afford equal facilities; Wisconsin. (Rev. 
 Stat. 1878, p. 536, § 1833). 
 
 ^Hooker v. Vandewater, 4 Denio, 349, 47 Am. Dec. 258; Stanton v. Alle7i, 5 
 Di^nio, 434, 49 Am. Dec. 282; Sayre v. Louisville Union Benev. Asso. 1 Duv. 
 143, 85 Am. Dec. 613; Morgan v. Donovan, 58 Ala. 241; Hartford & N. H. 
 R. Co. V. New York & N. H. R. Co. 3 Robt. 411; State v. Hartford & N. H. 
 R. Co. 29 Conn. 538. 
 
 * Central R. Go. v. Collins, 40 Ga. 582; Elkins v. Camden <& A. R. Co. 36 N. 
 
 .] . Eq. 5. 
 ^ Lakin v. Willamette Valley & C. R. Co. 13 Or. 436, 57 Am. Rep. 25; Balsley 
 V. St. Louis, A. <& 7. H. R. Co. 119 111. 68, 59 Am. Rep. 784. 
 
 * Say re v. Louisville Union Benev. Asso. 1 Duv. 143, 85 Am. Dec. 613.
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 44:3 
 
 for the purpose of fixing reasonable freight rates and preventing 
 ruinous competition is not invaUd under the Act of Congress of 
 July 2, 1890, prohibiting contracts in restraint of trade or com- 
 merce, nor as amounting to a transfer of franchises and corporate 
 powers of the companies/ 
 
 A railroad company without statutory authority cannot guaran- 
 tee the covenants of another company in the lease of a railroad, 
 merely because of an anticipated increase of its own business in 
 consequence of such lease.' The charter of a railroad company 
 is — outside the limits of the rule against impairing the obligation 
 of contracts — subject to the Constitution, statutes and public pol- 
 icy of the state by which the corporation was created. If the 
 constitution, statutes or public policy of the state forbid the com- 
 jjany from entering into combinations to prevent competition, the 
 act of the company in entering into such a combination is %dt7'a 
 vires even though the combinations involve interstate traffic ; 
 and the state courts have jurisdiction to enjoin the act or to for- 
 feit the charter of the company therefor.' 
 
 In a recent decision by the United States Court of Appeals, 
 Eighth Circuit,^ on an appeal by the plaintiff from a decree of the 
 Circuit Court of the United States for the District of Kansas, in 
 favor of the defendants, in a proceeding to dissolve the Trans- 
 Missouri Freight Association, on the ground that it had violated 
 
 ' United States v. Tram- Missouri Freight Asso. 53 Fed. Rep. 440. 
 s Pennsylvania B. Co. v. St. Louis, A. & T. H. R. Vo. 118 U. S. 290, 30 L.ed. 
 83. 
 
 * Tippecanoe County Comrs. v. Lafayette, M. <fe B. R. Co. 50 Ind. 85 (competi- 
 
 tive tratiic between Lafayette, Ind., and points in 111.); State v. Vanderbilt, 
 37 Ohio St. 590 (competitive traffic betvi-een Cincinnati, Ohio, and points 
 outside Ohio reached through ports on Lake Erie); Pennsylvania R. Co. v. 
 Com. (Fa.) 4 Cent. Rep. 495 (competitive traffic between Pittsburg and 
 points reached through New York city); State y. Atchison & N. R. Co. 24 
 Neb. 143, 32 Am. & Eng. R. Cas. 388 (competitive traffic between Lincoln, 
 Neb., and points in Kansas); Thouron v. East Tennessee, V. <& G. R. Co. 90 
 Tenn. 609, 5 Ry. & Corp. L. J. 77 (competitive traffic between points in 
 Tennessee and points in adjoining states). See also State v. Hartford <& N. 
 H. R. Co. 29 Conn. 538; Hartford &N. H. R. Co. v. Neic York & N. H. R. Co. 
 3 Robt. 411 (competitive traffic between New Hampshire, Connecticut, and 
 points in Massachusetts); Morgan v. Donovan, 58 Ala. 241 (competitive 
 traffic between Mobile, Ala., and New Orleans, La.); as to foreign com- 
 merce, see Murray v. Vanderbilt, 39 Barb. 141. 
 
 * United States v. Trans- Missouri Freight Assoeiation, 24 L. R. A. 73, 58 Fed. 
 
 Rep. 58.
 
 44:i LIAiilLITIES CHARGES FACILITIES CONNECTING CAKRIERS. 
 
 the United States Anti-Trust Act, the decision of the circuit court 
 was sustained, and tlie rule was announced that an association of 
 raih'oad companies for mutual protection by establishing and 
 maintaining reasonable rates, rules and regulations is not illegal 
 as a restraint of trade, under the Anti-Trust Act of Congress, 
 merely because it incidentally tends to restrict competition in 
 some degree, where each member of the association must still 
 compete with other members for business, and while regular 
 monthly meetings are provided for at which action may be taken, 
 five days' notice of any proposed reduction of rates or change of 
 rules must be given, and members are bound by the decision of 
 the association, unless they give written notice in ten days there- 
 after to the contrary, and any menibjr may withdraw on thirty 
 days' notice. That an association of railroad companies cannot 
 be held to create a monopoly, within the meaning of the Anti- 
 Trust Act of Congress, where it is not intended to have any trade 
 of its own, but to be a mere adviser of its members, who are com- 
 petitors of each other. And that a contract between railroad 
 companies is not necessarily " in restraint of trade " and illegal, 
 within the meaning of the Anti-Trust Act of Congress, because 
 it in some manner imposes a restriction upon competition. 
 
 The facts are as follows : 
 
 The bill alleges that the defendant railroad companies were 
 corporations and common carriers, and that they owned inde- 
 pendent and competing lines of railroad in that part of the 
 United States west of the Mississippi and Missouri rivers ; that 
 they were engaged in transporting freight among the states and 
 to and from foreign nations, and that they had been encour- 
 aged to construct and maintain these competing lines of railroad 
 independent of each other by subsidies and. grants of lands from 
 the United States and the people of the states and territories west 
 of these great rivers. The bill then alleges that, not being con- 
 tent with the rates of freight they were receiving, intending op- 
 pressively to augment those rates, to counteract the effect of free 
 competition upon them, to establish and maintain arbitrary rates, 
 and to procure large sums of money from the people of those 
 states and territories engaged in interstate commerce, they en-
 
 PROVISIONS ENFOKCfNG CONNECTIONS, ETC. 445 
 
 tered into an ao;reement on March 15, 1889, which, as subse- 
 quently modiiied, reads thus : 
 
 " Memorandum of agreement, made and entered into tliis fif* 
 teenth day of March, 1889, by and between the following rail- 
 road companies, viz : Atchison, Topeka & Santa Fe Railroad, 
 Chicago, Rock Island & Pacific Railway, Chicago, St. Paul, Min- 
 neapolis & Omaha Railway, Burlington &; Missouri River Rail- 
 road in Nebraska, Denver & Rio Grande Railroad, Denver & Rio 
 Grande Western Railway, Fremont, Elkhorn & Missouri Valley 
 Railroad, Kansas City, Ft. Scott & Memphis Railroad, Kansas 
 City, St. Joseph & Council Bluffs Raih'oad, Missouri Pacific Rail- 
 way, Sioux City & Pacific Railroad, St. Joseph & Grand Island 
 Railroad, St. Louis & San Francisco Railway, Union Pacific Rail- 
 way, Utah Central Railway, and such other companies as may 
 hereafter become parties hereto. Witnesseth, for the purpose of 
 mutual protection, by establishing and maintaining reasonable 
 rates, rules, and regulations on all freight traffic, both through 
 and local, the subscribers do hereby form an association, to be 
 known as the Trans-Missouri Freight Association, and agree to 
 be governed by the following provisions : 
 
 " Article I. 
 
 " Tiie traffic to be included in the Trans-Missouri Freight As- 
 sociation shall be as follows : 
 
 " 1. All traffic competitive between any two or more members 
 hereof passing between points in the following described terri- 
 tory, commencing at the Gulf of Mexico, on the 95th meridian ; 
 thence north to the Red river ; thence via that river to the east- 
 ern boundary line of the Indian territory ; thence north by said 
 boundary line and the eastern line of the state of Kansas to the 
 Missouri river, at Kansas City ; thence via the said Missouri river 
 to the point of intersection of that river with the eastern bound- 
 ary of Montana ; thence via the said eastern boundary line to the 
 international line, — the foregoing to be known as the ' Missouri 
 River Line ;' thence via said international line to the Pacific 
 coast ; thence via the Pacific coast to the international line be- 
 tween the United States and Mexico ; thence via said interna-
 
 4-i6 LIABILITIES CHARGES FACILITIES CONNECTING CARRIERS. 
 
 tional line to the Gulf of Mexico, and thence via said Gulf to 
 the point of l>eginning-, including business between points on the 
 bonndary line as described. 
 
 " 2. All freight traffic originating within the territory as de- 
 fined in the first section when destined to points east of the afore- 
 said Missouri river line. 
 
 " Exceptions. 
 
 " (a) The D. & R. G. and the D. & R. G. W., except their 
 business to and from points in Colorado west of the D. & R. G. 
 line between Denver and Trinidad ; also business via their lines 
 between jjoints in Colorado and points in Utah. 
 
 " All local business between Denver and Trinidad and inter- 
 mediate points ; all local business of the A. T. & S. F. between 
 Pueblo and Canon City, Colo.; all stone traffic having both ori- 
 gin and destination within the state of Colorado. 
 
 " The jurisdiction of this association, in so far as the business 
 of the Denver & Rio Grande and the Denver &. Rio Grande 
 Western railway companies is concerned, covers the following 
 traffic, namely : 
 
 " All freight traffic to, from, or through all common or junc- 
 tion points in the states of Nebraska and Kansas and the Indian 
 territory, originating at or destined to Denver, Colorado Springs, 
 Pueblo, or Trinidad. 
 
 " All freight traffic between Ogden, Spanish Fork, and inter- 
 mediate points on the one hand, and to, from, or through points 
 in Kansas or Nebraska upou or east of the 103d mci'idian, on the 
 other hand. 
 
 " Traffic which may be excluded under the application of the 
 above is only such as may be delivered to or received from the 
 Denver & Rio Grande Railroad and Denver & Rio Grande West- 
 ern Railway. 
 
 " (b) Traffic included in the Ti-ans-Continental & International 
 Association. 
 
 " (c) Traffic passing between points in Kansas or Nebraska and 
 l^Iississippi river points, Carondelet and south ; also traffic passing 
 between points in Kansas or Nebraska and points in the southern
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 44:T 
 
 states east of the Mississippi river and south of the soutli line of 
 Kentucky and Virginia, regardless of the route by which the 
 business crosses tlie Mississippi or Ohio rivers. 
 
 " (d) Traffic passing between Missouri river points and points 
 in tlie territory east of said river. 
 
 " (e) All traffic to points on the Northein Pacific and Manitoba 
 railways. 
 
 " (f) Traffic to points in Arkansas. 
 
 " (g) Coal, stone and gravel from Colorado, "Wyoming and Da- 
 kota, to points in Kansas and Xeljraska, and to Sioux City, Coun- 
 cil Bluffs, or Pacific Junction, Iowa, St. Joseph, Kansas City, or 
 Boswell, Mo. 
 
 " (h) The interchange of traffic with the Colorado Midland and 
 South Park Companies, to or from Aspen, Colorado, Glenwood 
 Springs, Colorado, and intermediate points, including coal 
 branches therefrom, and Buena Yista, Colorado, and Leadville^ 
 Colorado. 
 
 " (ij Business to and from Florence, Colorado, by all lines. 
 
 "Article II. 
 
 " Sec. 1. The association shall. l)y unanimous vote, elect a chair- 
 man of the organization. The chairman may be removed by a 
 two thirds vote of the members. 
 
 " Sec. 2. There shall be regular meetings of the association at 
 Kansas City, unless notice shall be given by the chairman that the 
 business to be transacted does not warrant calling the members 
 together, which notice shall be given not less than four days 
 l)efore the day set for the meeting. When a meeting, regular or 
 special, is convened, it shall be incumbent upon each party hereto 
 to be represented by some officer authorized to act detinitel}^ upon 
 any and all questions to be considered. Each road shall designate 
 to the chairman one person wdio shall be held personally responsi- 
 ble for rates on that road. Such person shall be present at all 
 regular meetings when possible, and shall represent his road, 
 unless a superior officer is present. If unable to attend, he shall 
 send a substitute, with written authority to act upon all questions
 
 44:8 LIABILITIES CHAKUES FACILITIES CONNECTLS'G CARRIERS. 
 
 which may arise, and the vote of such substitute shall be binding 
 upon the company he represents. 
 
 " Sec. 3. A committee shall be appointed to establish rates, rules, 
 and regulations on the traffic subject to this association, and to 
 consider changes therein, and make rules for meeting the compe- 
 tition of outside lines. Their conclusions, when unanimous, shall 
 be made effective wlien they so order ; but if they diifer the 
 question at issue shall be referred to the managers of the lines 
 parties hereto, and if they disagree it shall be arbitrated in the 
 manner provided in article 7. 
 
 " Sec. 4. At least five days' written notice prior to each monthly 
 meeting shall be given the chairman of any proposed reduction in 
 rates, or change in any rule or regulation governing freight 
 traffic ; eight days in so far as applicable to the traffic of Colorado 
 or Utah. 
 
 " Sec. 5. At each monthly meeting the association shall consider 
 and vote upon all changes proposed of which due notice has been 
 given, and^all parties shall be bound by the decision of the asso- 
 ciation so expressed, unless then and there the parties shall give 
 the association definite written notice that in ten days thereafter 
 they shall make such modification, notwithstanding the vote of the 
 association; provided, that, if the member giving notice of the 
 change shall fail to be represented at the meeting, no action shall 
 be taken on its notice, and the same shall be considered with- 
 drawn. Should any member insist upon a reduction of rate 
 against the views of the majority, or if the majority favor the 
 same, and if, in the judgment of said majority, the rate so made 
 affects seriously the rates upon other traffic, then the association 
 may, by a majority vote upon such other traffic, put into effect 
 corresponding rates, to take effect upon the same day. By unan- 
 imous consent any rate, rule, or regulation relating to freight 
 traffic may be modified at any meeting of the association without 
 previous notice. 
 
 " Sec. 6. Notwithstanding anything in this article contained, 
 each member may, at its peril, make at any time, without previous 
 notice, such rate, rule, or regulation as may be necessary to meet 
 the competition of lines not members of the association, giving at
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 449 
 
 the same time notice to the chairman of its action in the premises. 
 If the chairman upon investigation shall decide that such rate is 
 not necessary to meet the direct competition of lines not members 
 •of the association, and shall so notify the road making the rate, it 
 shall immediately withdraw such rate. At the next meeting of 
 the association held after the making of such rate it shall be 
 reported to the association, and, if the association shall decide by 
 a two thirds vote that such rate was not made in good faith to 
 meet such competition, the member offending shall be subject to 
 the penalty provided in section 8 of this article. If the associa- 
 tion shall decide by a two thirds vote that such rate was made in 
 good faith to meet such competition, it shall be considered 
 as authority for the rate so made. 
 
 " Sec. 7. All arrangements with connecting lines for the division 
 of through rates relating to traffic covered by this agreement shall 
 be made by authority of the association : provided, however, that 
 when one road has a proprietary interest in another the divisions 
 between such roads shall be what they may elect, and shall not be 
 the property of the association : provided, further, that, as regards 
 traffic contracts at this date actually existing between lines not 
 having connnon proprietary interests, the same shall be reported, 
 80 far as divisions are concerned, to the association, to the end that 
 divisions with competing lines may, if thought advisable by them, 
 be made on equally favorable terms. 
 
 " Sec. 8. It shall be the duty of the chairman to investigate all 
 apparent violations of the agreement, and to report his findings 
 to the managers, who shall determine by a majority vote (the 
 member against whom complaint is made to have no vote) what, 
 if any, penalty shall be assessed, the amount of each fine, not to 
 exceed one hundred dollars, to be paid to the association. If any 
 line party hereto agrees with a shipper, or any one else, to secure 
 a reduction or change in rates, or change in the rules or regula- 
 tions, an(-l it is shown upon investigation by the chairman that 
 such an arrangement was effected, and traffic thereby secured, 
 such action shall be reported to the managers, who shall determine, 
 as above provided, what, if any, penalty shall be assessed. 
 
 " Sec. 9. "When a penalty shall have been declared against any 
 29
 
 450 LIABILITIES CHAKGES FACILITIES CONNECTING CARKIEKS. 
 
 member of this association, tlie chairman shall notify the manag- 
 ing officer of said company that such line has been assessed, and 
 that within ten days thereafter he will draw for the amount of the 
 fine ; and the draft, when presented, shall be honored by the 
 company thus assessed. 
 
 " Sec, 10. All fines collected to be used to defray the expenses 
 of the association, the offending party not to be benefited by the 
 amounts it may pay as fines. 
 
 " Sec. 11. Any member not 23resent or fully represented at roll 
 call of general or special meetings of the freight association, of 
 which due and proper notice has been given, shall be fined one 
 dollar, to be assessed against his company, unless he shall liave 
 previously filed with the chairman notice of inability to be present 
 or represented. 
 
 "Article III. 
 
 " The duties and powers of the chairman shall be as follows : 
 
 " Section 1. He shall preside at all meetings of the association 
 and make and keep a record thereof, and promulgate such of said 
 j)roceedings as may be necessary to inform the parties hereto of 
 the action taken by the association. 
 
 " Sec. 2. He shall at all times keep and publish for the use of 
 the members a full record of the rates, rules, and regulations pre- 
 vailing on all lines parties thereto on business covered by this 
 agreement, and each of the parties thereto agrees to furnish such 
 number of copies of the rates, rules, and regulations issued by it 
 as the chairman may require. 
 
 " Sec. 3. He shall construe this agreement and all resolutions 
 adopted thereunder, his construction to be binding until changed 
 by a majority vote of the association. 
 
 " Sec. 4. He shall publish in joint form all rates, rules, or reg- 
 ulations which are general in their character and apply throughout 
 the territory of the association, and shall also publish in the man- 
 ner above such rates, rules, or regulations applying on traffic 
 common to two or more lines as may be agreed upon by the lines 
 in interest. 
 
 " Sec. 5. He shall be furnished with copies of all waybills for
 
 PKOVISIONS ENFORCING CONNECTIONS, ETC. 451 
 
 freight carried under this agreement when called for, and shall 
 furnish such statistics as may be necessary to give members gen- 
 eral information as to the traffic moved, subject to the provisions 
 of the Interstate Commerce Railway Association agreement as to 
 lines members thereof. 
 
 " Sec. 6. He shall render to each member of the association 
 montlily statements of the expenses of the association, showing 
 the proj)ortions due from each, and shall make drafts on members 
 for the different amounts thus shown to be due. 
 
 " Sec. 7. He shall hear and determine all cbarges of violations 
 of this agreement, and assess, collect, and dispose of the fines for 
 such violations as provided for herein. 
 
 " Sec. 8. The chairman shall be empowered to authorize lines 
 in the association to meet the rates of another line or other lines 
 in the association when in his judgment such action is justified by 
 the circumstances ; this, however, not to act in any way as an in- 
 dorsement of an unauthorized rate made by any member. 
 
 "Sec. 9. Only parties interested shall vote upon questions aris- 
 ing under the agreement, and in case of doubt the chairman shall 
 decide as to whether any party is so interested or not, subject to 
 appeal, as provided bv section 3 of article 3 of the agreement. 
 
 " Article TV. 
 
 " Any willful under billing in weights or billing of freight at 
 wrong classification shall be considered a violation of this agree- 
 ment, and the rules and regulations of any weighing association 
 or inspection bureau as established by it, or as enforced by its 
 officers and agents, shall be considered binding under the pro- 
 visions of this agreement, and any willful violation of them shall 
 be subject to the penalties provided herein. 
 
 *' Article Y. 
 
 " The expenses of the association shall be borne by the several 
 parties in such proportion as may be fixed by the chairman. Any 
 member not satisfied with the allotment so made may appeal to 
 the association, which shall, at its first regular meeting thereafter,
 
 452 LIABILITIES CHARGES FACILITIES — CONNECTING CAEEIEES. 
 
 determine the matter, which may be done by a two thirds vote of 
 the members. 
 
 "Article YI. 
 
 "There shall be an executive committee of three members, to 
 be elected by unanimous vote. The committee shall approve the 
 appointment and salaries of necessary employes, except that of 
 the chairman, and authorize all disbursements. All action of this 
 committee shall be unanimous. 
 
 "Article YII. 
 
 "In case the mana2:ers of the lines parties hereto fail to agree 
 upon any question arising under this agreement that shall be 
 brought before the association, it shall be referred to an arbitra- 
 tion board, which shall consist of three members of the executive 
 board of the Interstate Commerce Railway Association ; provided, 
 however, that, in case of arbitration in which the members of 
 this association only are interested, they may, by unanimous vote, 
 substitute a special board. 
 
 "Article YIII. 
 
 "This agreement shall take effect April 1, 1889, subject there- 
 after to thirty days' notice of a desire on the part of any line to 
 withdraw from or amend the same." 
 
 The bill further alleges that this agreement took effect April 
 15, 1889 ; that under it rules, regulations, and rates for carrying 
 freight over the railroads of the defendant companies were fixed 
 by the association, and have since been maintained by them ; that 
 since that date these railroad companies have declined and refused 
 at all times to fix or give rates for the carriage of freight based 
 upon the cost of constructing and maintaining their several lines 
 of railroad and the cost of carrying freights over the same, and 
 such other elements as should be considered in establishing tariff 
 rates upon each particular road ; and that the people engaged in 
 interstate commerce have been compelled to pay the arbitrary 
 rates of freight, and to submit to the arbitrary rules and regula- 
 tions established and maintained by the association formed under
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 453 
 
 the agreement, and have been and are deprived of the benefits 
 that mio;ht be expected to flow from free competition between the 
 several hnes of raih-oad of the defendant companies, and that in 
 this way the defendant comjDanies have combined in restraint of 
 trade and commerce among the states, and have attempted to 
 monopolize, and have monopolized, a part of this commerce. 
 
 Three of the railroad companies were not members of the asso- 
 ciation, and will not be further noticed. The answers of the 15 
 companies who were members of the association are substantially 
 the same. The first defense in these answers is that the Inter- 
 state Commerce Law of February 4, 1887, entitled " An Act to 
 Regulate Commerce" ' and the acts amendatory thereof, consti- 
 tute a complete code of laws regulating that part of commerce 
 among the states and with foreign nations which relates to trans- 
 portation, and that the Act of July 2, 1890, is not applicable to, 
 and does not govern, them or their actions. 
 
 Coming to the merits of the suit, these defendants admit that 
 they are common carriers ; that, with some exceptions not import- 
 ant here, they owned independent and competing lines of railroad 
 in that part of the United States west of the Missouri and Missis- 
 sippi rivers, and that they were engaged in the transportation of 
 freight among the states and territories, and to and from foreign 
 nations, in that region, but they deny that they owned the only 
 through lines of railroad engaged in that business there ; and al- 
 lege that there were several others, to wit, the IS^orthern Pacific 
 Railroad Company, the Great Northern Railway Comj)any, the 
 Southern Pacific Railroad Company, and the Texas Pacific Rail- 
 road Company. They admit that some of them were assisted and 
 encouraged to construct and maintain through competing lines of 
 railroad, independent of each other, by subsidies, land grants, and 
 donations from the United States, and from the people of the 
 various states and territories west of the great rivers. They ad- 
 mit that they entered into the agreement March 15, 1889, and 
 that rules, regulations, and rates of freight have since been fixed 
 and charged by the association thus formed, and that they have 
 
 ' 24 Stat, at L. 379, chap. 104; Rev. Stat. Supp. 529.
 
 454 LIABILITIES CHARGES FACILITIES CONNECTING CARRIERS. 
 
 complied with and maintained tliem. They deny, however, that 
 at the time they entered into the agreement they were dissatisfied 
 with the rates of freight they were receiving. They deny that 
 they intended, in connection witli the formation of the association 
 or otherwise, to unjnstly or oppressively augment such rates, or 
 to counteract the effect of free competition on prices or facilities 
 of transportation, or to establish or to maintain arbitrarj^ rates, or 
 to prevent any one of the defendants from reducing rates, or to 
 procure unreasonably great sums of money from the people of 
 the states and territories west of the great rivers engaged in in- 
 terstate commerce. They deny that the formation and operations 
 of the association have had any such effects, but aver that they 
 have tended to decrease rates, and to lienefit the people and the 
 roads. They deny that they had any intention by the formation 
 of the association to monopolize or attempt to monopolize the 
 freight traffic of the region affected by it, and deny that it has 
 had any such effect. They allege that they were subject to the 
 provisions of the Act of Congress of February 4, 1887, entitled 
 "An Act to Regulate Commerce," and the acts amendatory there- 
 of. They aver that under that Act they were required to make 
 all charges reasonable and just ; that they were prohibited from 
 making any unjust discriminations, or any undue or unreasonable 
 preferences, or from giving any undue advantages, and that they 
 were required to establish a classification of freight and rates of 
 freight, and to publish and file with the Interstate Commerce 
 Commission schedules showing this classification and these rates, 
 and then to abide by and maintain them ; that, in order to com- 
 ply with this law, consultation between and concerted action of 
 the railroad companies conducting the transportation business 
 west of the great rivers was essential ; and that they made this 
 agreement and formed this association in order that they might 
 more effectually comply with the provisions of this law than they 
 could do acting independently. They allege that the rates they 
 have established and maintained have been reasonable and just ; 
 that since the organization of the association more than 200 re- 
 ductions of rates have been made through its action ; that their 
 agreement forming the association was filed with the Interstate
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 4:55 
 
 ■Commerce Commission under the Act, and tliat the rules, regu- 
 lations, and rates they have established and maintained have been 
 in strict conformity to the provisions thereof. They deny that 
 the people have been deprived of the benefits which might be 
 expected to flow from free competition in the business of trans- 
 portation, and allege that the utmost freedom compatible with 
 obedience to the Interstate Commerce Act and with the preser- 
 vation of the existing agencies of competition prevails, and they 
 insist that their association and action under this contract consti- 
 tute no combination or conspiracy in restraint of interstate or 
 international commerce. 
 
 The decision insists that contracts between competing corpo- 
 rations, commonly termed " pooling contracts," to divide their 
 earnings from the transportation of freight in fixed proportions, 
 have long been held void by the courts as against public policy. 
 Such contracts do not simply restrict competition, they tend to 
 destroy it ; and, if they do not affect that result, it is only because 
 they do not completely accomplish their main purpose. When 
 acting independently, the spur of self-interest drives each corpo- 
 ration to furnish the people with the best accommodations and 
 the safest and most rapid transportation at the lowest profitaljle 
 rates, in order that it may attract larger patronage and gather in- 
 creased gain. But under the operation of a pool this incentive 
 to exertion is withdrawn. Each carrier finds it to its interest to 
 enhance the price of carriage, and finds that its profits are not 
 sensibly diminished by furnishing poor facilities for transporta- 
 tion and inexpensive and mean accommodations. In 1887 Con- 
 gress recognized and adopted this rule of public policy, and by 
 section 5 of " An Act to Regulate Commerce," commonly called 
 the " Intei'state Commerce Act " * prohibited such contracts be- 
 tween common carriers engaged in interstate or international 
 commerce. That Act, however, prohibited contracts for the pool- 
 ing of freights of different and competing railroads only ; it pro- 
 hibited contracts that thus destroyed competition ; it did not 
 prohibit all contracts that in any way restricted or regulated com- 
 
 ' 24 Stat, at L. 379, chap. 104; Rev. Stat. Supp. 539.
 
 456 LIABILITIES CHARGES FACILITIES CONNECTING CARRIERS. 
 
 petition. By the Act of July 2, 1890, entitled " An Act to Pro- 
 tect Trade and Commerce Against Unlawful Restraints and 
 Monopolies," commonly called the " Anti-Trust Act," ' Congress 
 provided that : 
 
 " Section 1. Every contract, combination in the form of trust 
 or otherwise, or conspiracy, in restraint of trade or commerce 
 among the several states, or with foreign nations, is hereby de- 
 clared to be illegal. Every person who shall make any such con- 
 tract or engage in any such combination or conspiracy, shall be 
 deemed guilty of a misdemeanor. 
 
 " Sec. 2. Every person who shall monopolize, or attempt to 
 monopolize, or combine or consph*e with any other person or per- 
 sons, to monopolize any part of the trade or commerce among the 
 several states, or with foreign nations, shall be deemed guilty of a 
 misdemeanor." 
 
 " Sec. 4. The several circuit courts of the United States are 
 hereby invested with jurisdiction to prevent and restrain viola- 
 tions of this Act." 
 
 The government bases this suit on tliese provisions of the latter 
 Act. It claims that the contract in question, and the association 
 formed under it, are illegal on three grounds : First, because the 
 contract prevents free and unrestricted competition between com- 
 peting lines of railroad ; second, because it tends to create a mo- 
 nopoly ; and third, because the railroad corporations have through 
 this contract abandoned the discharge of some of their duties to 
 the public. 
 
 The first ground stated is chiefly relied on, and it presents ques- 
 tions of deep interest, the decision of which must have a far- 
 reaching and important influence on the transportation system of 
 the nation. The government does not claim that the contract, 
 and association assailed effected a pooling of freights, or that they 
 tend to retard improvement in the facilities afforded for safe,, 
 quick, and convenient transportation, or that they are obnoxious 
 to any of the provisions of the Interstate Commerce Act ; but it 
 insists that the Anti-Trust Act prohibits all contracts and com- 
 
 »26 Stat, at L. 209, chap. 647; Rev. Stat. Supp. 763.
 
 PROVISIONS ENFOE.CIXG CONNECTIONS, ETC. -±57 
 
 binations between competing railroad corporations whicli in any 
 manner restrict free competition. The argument is, the Anti- 
 Trust Act prohibits any contract between com23eting railroad 
 companies that restricts competition. This contract restricts com- 
 petition ; therefore it is illegal. Is, then, every contract between 
 competing railroad companies that in any manner imposes a re- 
 striction upon competition a " contract in restraint of trade " and 
 illegal within the meaning of the Anti-Trust Act ? Is the exist- 
 ence of restriction upon competition the standard by which the 
 legality of these and all other contracts must be measured under 
 that Act ? And if not, by what standard shall their legality be de- 
 termined ? These are questions that the position of the govern- 
 ment compels consideration of before it can be determined whether 
 or not this contract is void. Their determination demands a care- 
 ful examination and construction of that part of the Anti-Trust 
 Act which declares that " every contract, combination in the form 
 of trust or otherwise, or conspiracy, in restraint of trade or com- 
 merce among the several states," is illegal. ISTo definition of 
 these terms is found in this Act, but the terms are not new. For 
 more than 200 years before it was passed the courts of England 
 and America had from time to time declared that certain classes 
 of contracts in restraint of trade were against public policy, and 
 therefore illegal and void under the common law. The line of 
 demarcation between these illegal contracts and the innumerable 
 valid agreements that are daily made in the business world had 
 been drawn by long lines of decisions, and had been repeatedly 
 pointed out by the Supreme Court of the United States.' Two- 
 years before its passage Congress had enacted the Interstate Com- 
 merce Law. They had there provided a code of rules and estab- 
 lished a commission for the express purpose of regulating that 
 part of interstate and international commerce which relates to 
 transportation. Under these circumstances, three well settled 
 rules of construction must be applied to ascertain the meaning 
 and scope of the Act; 
 
 ' Gibbs V. ComoUdated Gas Co. 130 U. S. 396. 409, 33 L. ed. 979, 984; Foicle v. 
 Park, 131 U. S. 88, 33 L. ed. 67.
 
 458 LIABILITIES CHARGES FACILITIES — CONNECTING CAKEIEKS. 
 
 (1) It must be read in the light of all general laws upon the 
 same subject in force at the time of the passage of the Act. 
 
 (2) Where words have acquired a well understood meaning by 
 judicial interpretation, it is to be presumed that they are used in 
 that sense in a subsequent statute, unless the contrary clearly ap- 
 pears. 
 
 (3) Where Congress creates an offense, and uses common law 
 terms, the courts may properly look to that body of jurisprudence 
 for the true meaning of the terms used, and, if it is a common 
 law offense, for the definition of the offense if it is not clearly de- 
 fined in the Act adopting or creating it.' 
 
 Thus we must consider the statutes in force and the decisions 
 that had been rendered when this Act was passed to determine 
 what contracts in restraint of trade were then illegal, for it is clear 
 both from the rules referred to and from the title of the Act, viz : 
 "An Act to Protect Trade and Commerce against Unlawful Re- 
 straints and Monopolies," that it was such contracts, and such 
 contracts only, that Congress intended to declare unlawful and 
 criminal in interstate commerce. 
 
 Under the common law, the ground on which contracts in re- 
 straint of trade were declared unlawful was that they were against 
 public policy. But when it becomes necessary to consider 
 grounds of public policy in the determination of a case, it is well 
 to bear in mind the oft quoted remarks of Justice Burrough in 
 Richardson v. 3£ellish, 3 Bing. 252, that public policy '' is a very 
 unruly horse, and when you once get astride of it you never know 
 where it will carry you. It may lead you from the sound law." 
 Public policy changes with the changing conditions of the times. 
 It is hardly to be expected that a people who are transported by 
 steam with a rapidity hardly conceived of a century ago, who are 
 in constant and instant communication with each other by elec- 
 tricity, and who carry on the most important commercial transac- 
 tions by the use of the telegraph while separated by thousands of 
 miles, will entertain precisely the same views of what is condu- 
 
 ' United States v. Armstrong, 2 Curt. 446; United States v. Coppersmith, 4 Fed. 
 Rep. 198; Re Oreen, 53 Fed. Rep. 104, 111; McCool v. Smith, 66 U. S. 1 
 Black, 459, 469. 17 L. ed. 218, 221; McDonald v. Hovey, 110 U. S. 619, 628, 
 28 L. ed. 269, 271.
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 459 
 
 ■cive to the public welfare in commercial and business transactions 
 as the people of the last century, who lived when commerce crept 
 slowly along the coasts, shut out of the interior by the absence of 
 roads, and hampered by an almost imjsassible ocean. In 1415 a 
 writ of debt was brought on an obligation by one John Dier, in 
 which the defendant alleged the obligation in a certain indenture 
 which he put forth, and on condition that if the defendant did 
 not use his art of a dyer's craft, within the city where the plain- 
 tiff, etc., for half a year, the obligation to lose its force, and said 
 that he did not use his art within the time limited. Hull, J., 
 said : " In my opinion, you might have demurred upon him that 
 the obligation is void, inasmuch as the condition is against the 
 common law ; and, per Dieu, if the plaintiff were here, he should 
 go to prison till he paid a line to the king.' In 1841, Lord Lang- 
 dale, master of the rolls, held that a contract made by a lawyer 
 not to practice his profession in Great Britain for 20 years was 
 not against public j^olicy, and that it was valid.'' In 1843, the 
 court of exchequer held that an agreement not to practice as a 
 surgeon dentist in London or any other town where the plaintiffs 
 might have been practicing was reasonable and lawful so far as it 
 related to London, but against public policy and void as to the 
 other towns.' In 1869, Yice Chancellor James sustained a con- 
 tract by vendors not to carry on or allow others to carry on in any 
 part of Europe the manufacture or sale of certain kinds of leather 
 so as in any way to interfere with the exclusive enjoyment by the 
 purchasing company of the manufacture and sale thereof, and 
 issued an injunction to enforce it.' In 1889 the supreme court of 
 l^ew York sustained a contract not to manufacture or sell ther- 
 mometers or storm glasses throughout the United States for ten 
 years.' And in 1891 the United States Supreme Court held 
 that a contract giving the Pullman Southern Car Company 
 the exclusive right to furnish all drawing room and sleeping cars 
 
 •Y. B.,2Hen.V. fol. 5, pi. 26. 
 
 * Whitaker v. Eoice, 3 Beav. 383. 
 
 3 Mallan v. May, 11 Mees. & W. 652, 667. 
 
 * Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345. 
 
 * Watertawn Thermometer Co. v. Pool, 51 Hun, 157, 163.
 
 460 LIABILITIES CHARGES FACILITIES CONNECTING- CARRIERS. 
 
 required by that road during a period of fifteen years was not att 
 illegal restraint of trade, and sustained it." It is with the public 
 policy of to-day, as illustrated by public statutes and judicial de- 
 cisions, that courts have now to deal. In considering that sub- 
 ject, courts are not governed by their own views of the interests of 
 the people, or by general considerations tending to show what 
 policy would probably be wise or unwise. Such a standard of de- 
 termination might be unconsciously varied by the personal views 
 of the judges who constitute the court. The public policy of the 
 nation must be determined by its Constitution, laws, and judicial 
 decisions. So far as they disclose it, it is the province of the 
 court to learn and enforce it, beyond that it is unnecessary and 
 unwise to pursue inquiries.* 
 
 Turning first, theii, to the decisions. It has long been settled 
 that contracts or combinations of the producers or dealers in 
 staple commodities of prime necessity to the people, to restrict or 
 monopolize their supply or enhance their price, pooling contracts, 
 or combinations between such producers or dealers to divide their 
 profits in certain fixed proportions, and pooling contracts or com- 
 binations between competing common carriers, are illegal restraints 
 of trade, and void ; while contracts or combinations between em- 
 ployers or workmen to fix and abide by certain prices for labor 
 or services may be valid in their inception, but become illegal 
 restraints of trade whenever the associations formed under them 
 interfere with the freedom of those who are not members to re- 
 fuse to abide by their prices, or to employ or be employed at 
 other rates, or whenever such associations undertake to prevent 
 nonmembers from using their property or their labor as they see- 
 fit. The main purpose of contracts of these classes that are thus 
 held illegal is to suppress, not simply to regulate, competition; 
 and, if suppression is not effected, it is because the contracts fail 
 to accomplish their purpose. It is evident that there is a wide 
 difference between such contracts and those the purpose of which 
 
 1 Chicago, St. L. & N. 0. R. Co. v. Pullman Southern Car Co. 139 U. S. 79, 35 
 
 L. ed. 97. 
 " Vidal V. Philadelphia, 43 U. S. 2 How. 127, 197, 11 L. ed. 205, 233 : Swann, 
 
 V. Swann, 21 Fed. Rep. 299.
 
 PROVISIONS ENFORCING- CONNECTIONS, ETC. 461 
 
 is to SO regulate competition that it may be fair, open, and healthy, 
 and whose restriction upon it is slight, and only that which is 
 necessary to accomplish this purpose. It does not necessarily fol- 
 low that contracts of the latter class constitute illegral restraints 
 of trade because those of the former classes do.* 
 
 To maintain the proposition that any contract between common 
 carriers that restricts competition in any degree is an illegal re- 
 straint of trade, numerous cases may be cited where such expres- 
 sions as the following are found in the opinions of the courts : 
 " The people have a right to the necessaries and conveniences of 
 life at a price determined by the relation of supply and demand, 
 and the law forbids any agreement or combination whereby that 
 price is removed beyond the salutary influence of legitimate com- 
 petition."" " It is against the general policy of the law to destroy 
 or interfere with free competition, or to permit such interference 
 or destruction.'" " Combinations and conspiracies to enhance the 
 price of any article of trade and commerce are injurious to the 
 pul)lic."^ " Whatever destroys, or even restricts, competition in 
 trade, is injurious, if not fatal, to it."° A careful and patient 
 examination of the cases cited, however, discloses the fact that 
 the contracts considered in those cases, which are not of doubtful 
 authority, were of one of the classes already referred to, or rest 
 upon some other ground than the existence of restriction upon 
 competition. ° It was natural that in the discussion of contracts 
 
 * Ray, Contractual Limitations, §§ 57, 58, 59. 
 
 ^DeWittWire Cloth Co. v. Netc Jersey Wire Cloth Co. 14 N. Y. Supp. 277. 
 » Steicart v. Erie & W. Transp. Co. 17 Minn. 372. 
 
 * People V. Fisher, 14 Wend. 9, 28 Am. Dec. 501. 
 
 * Hooker v. Vandewater, 4 Denio, 349, 353, 47 Am. Dec. 258. 
 
 *They were cases involving contracts of competing producers or dealers to 
 limit the supply and enhance the price of, or to monopolize, staple com- 
 modities, like Morris Bun Coal Co. v. Barclay Coal Co. 68 Pa. 173, 8 Am. 
 Rep. 159; India Bagging Asko. v. Kock, 14 La. Ann. 168; United States v. 
 Jellico Mrmntain Coal & 0. Co. 12 L. R. A. 753, 46 Fed. Rep. 432; Santa 
 Clara Valley Mil & L. Co. v. Hayes, 76 Cal. 387; De Witt Wire Cloth Co. v. 
 New Jersey Wire Cloth Co. 14 N. Y. Supp. 277; Central Ohio Salt Co. v. Gu- 
 thrie, 35 Ohio St. 666; and People v. North River Sugar Ref. Co. 54 Hun, 
 354; or cases involving pooling contracts, like Craft v. McConoughy, 79 111. 
 346, 22 Am. Rep. 171; Hooker v. Vandewater, 4 Denio, 349, 47 Am. Dec. 
 258; Stanton v. Allen, 5 Denio, 434, 49 Am. Dec. 282; Anderson v. Jett, 6 
 L. R. A. 390, 89 Ky. 375; Oibhs v. Consolidated Gas Co. 130 U. S. 396, 32 
 L. ed. 979; Alorrill v. Boston & M. R. Co. 55 N. H. 531; Denver & N. 0.
 
 462 LIABILITIES CHAKGES FACILITIES— CONNECTING CAEKIERS. 
 
 of these classes the courts should condemn in unmeasured terms 
 the suppression of competition, but in none of these eases were 
 they required to hold, and in none of them did they hold, in the 
 decisions when read in relation to the facts of the cases respec- 
 tively, tliat every restriction of competition by contracts of com- 
 peting dealers or carriers was illegal. These decisions rest upon 
 broader ground, — on the ground that the main purpose of the 
 obnoxious contracts was to suppress competition, and that they 
 thus tended to effect an unreasonable and unlawful restraint of 
 trade ; they rest on the well settled rules, and come witliin the 
 well defined classes, above referred to. 
 
 A more extended view of the authorities strengthens this con- 
 clusion, and makes plain the line of demarcation which separates 
 legal contracts that incidentally restrict competition from illegal 
 contracts in restraint of trade. Tlie decision in the leading case 
 upon this subject,' the case which Chief Justice Fuller says is 
 the foundation of the rule in relation to the invalidity of con- 
 tracts in restraint of trade,"" held that a contract that clearly re- 
 stricted competition was not an illegal restraint of trade. The 
 action was upon a bond the condition of which was that the ob- 
 ligor, who was the assignor of a lease of a bakehouse and mes- 
 suage in the parish of St. Andrews Holborn, would not exercise 
 his trade of a baker within that parish for three years. The con- 
 tract was held valid, and the action sustained. This decision was 
 rendered in 1711. Chief Justice Parker, in delivering it, de- 
 
 R. Co. V. Atchison, T. & 8. F. R. Go. 15 Fed. Rep. 650; and Woodricff v. 
 Berry, 40 Ark. 252; or cases involving combinations of workmen which 
 compelled nonmembers to abidie by the prices for labor which they had 
 fixed or to abandon their employment, like People v, Fisher, 14 Wend. 9, 
 28 Am. Dec. 501, and United States v. Workingmen's Amalgamated Council, 
 54 Fed. Rep. 994, 1000; or cases where the contracts were ultra vires the 
 corporations, and their purpose and effect was to monopolize trade, like 
 Central R. Co. v. Collitis, 40 Ga. 582; Hazlehurst v. Savannah, O. & N. A. 
 R. Co. 43 Ga. 13; andWestern U. Teleg. Co. Y.American U. Teleg. Co. 65 
 Ga. 160, 38 Am. Rep. 781 ; or cases of questionable authority, like Com. 
 V. Carlisle, Bright. (Pa.) 36, 39. See, contra, Snoio v. Wheeler, 113 Mass. 
 179, 185; Bowen v. Matheson, 14 Allen, 499; Skrainkay. Scharringhatisen, 
 8 Mo. App. 522; and Carew v. Rutherford, 106 Mass. 1, 14, 8 Am. Rep. 287. 
 
 ^Mitchell V.Reynolds, 1 P. Wms. 181, 1 Smith, Lead. Cas. [7th Am. ed.l pt 
 2, p. 708. 
 
 « Gibbs V. Consolidated Gas Co. 130 U, S. 409, 32 L, ed. 984.
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. ■163 
 
 clared that contracts in partial restraint of trade were valid if 
 made upon sutiicient consideration, but tliat contracts in general 
 restraint of trade were illegal, because they deprived the party 
 restrained of his livelihood and the subsistence of his family, and 
 the public of a useful member. The point actually decided, that 
 contracts in partial restraint of trade may be sustained, has been 
 uniformly approved, but in the development of the law applicable 
 to tliis subject there has been added to it the further condition 
 that the restriction imposed must be reasonable in view of all the 
 facts and circumstances of each particular case. The remark of 
 Chief Justice Parker that contracts in general restraint of trade 
 are illegal — a remark that was not necessary to the determination 
 of the question before him — has been, to say the least, greatly 
 modified by subsequent decisions. There is a plain tendency in 
 the later authorities to repudiate the proposition that there is any 
 hard and fast rule that contracts in general restraint of trade are ille- 
 gal, and to apply the test of reasonableness to all contracts, whether 
 the restraint be general or partial.' In Tallis v. Tallis, 1 El. & 
 Bl, 391, the court of queen's bench held, in 1853, that a covenant 
 restricting competition, which Ijound the covenantor not to exer- 
 cise his trade of a canvassing publisher in London or within 150 
 miles of the general postoffice, or in Dublin or Edinburgh, or 
 within 50 miles of either, or in any other town where the cove- 
 nantee or his successors had an establishment or might have had 
 one within six months preceding, was not an illegal restraint of 
 trade, and enforced it. In Mogul SS. Co. v. McGregor, 21 Q. 
 B. Div. 544, certain shipowners engaged in the carrying trade 
 between London and China had formed an association for the 
 purpose of keeping up the rate of freights in the tea trade, and 
 securing that trade to themselves. They accomplished this pur- 
 pose by allowing a rebate of 5 per cent on all freights paid by 
 shippers who shipped in their vessels only, and thus partially or 
 entirely excluded the plaintiffs, who were competing shipowners, 
 from the tea carrying trade. The latter brought suit for an in- 
 junction and damages, but, notwithstanding the obvious restric- 
 
 ' Ray, Contractual Limitations, §g 57, 58, 59,
 
 464 LIABILITIES — CHARGES — FACILITIES — CONNECTING CARRIERS. 
 
 tion upon free competition, Lord Coleridge held that the associa- 
 tion was not an unlawful combination in restraint of trade, and 
 gave judgment for the defendants. This decision was rendered 
 in 1888. It was sustained on appeal,' and finally afiirmed by the 
 house of lords.'* In Perkins v. Lyman, 9 Mass. 522, the supreme 
 judicial court of Massachusetts held, in 1813, that a contract by a 
 merchant not to be interested in any voyage to the northwest 
 coast of America was not invalid as in restraint of trade. In 
 another case' a contract of a match manufacturer never to manu- 
 facture or sell any friction matches in the District of Columbia, 
 or in any part of the United States except Idaho and Montana, 
 was sustained and enforced. The Supreme Court in 1873* 
 decided that a contract between two steam navigation com- 
 panies engaged in the business of transportation on the riv- 
 ers, bays, and waters of California, and on the Columbia river 
 and its tributaries, respectively, was declared by the Supreme 
 Court not to be in restraint of trade, althougli it prohibited the 
 use of a certain steamer in the waters of California for ten years. 
 And in 1890 the supreme court of New Hampshire in an exhau- 
 tive and persuasive opinion held that contracts by which a rail- 
 road corporation leased its road and rolling stock to a comj)etitor 
 for many years were not necessarily against public policy or void 
 at common law, when the purpose of the contracts and combina- 
 tions did not appear to be to raise the rate of transportation above 
 the standard of fair compensation, or to violate any duty owing 
 to the public by noncompeting companies.* 
 
 > 23 Q. B. Div. 598. 
 2 1892, App. Cas. 25. 
 
 3 Diamond Match Co. v. Roeher, 106 N. Y. 473, 60 Am. Rep. 464. 
 
 4 Oregon Steam iTa®. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315. 
 
 * Manclmter & L. R. Co. v. Concord R. Co. (N. H.) 3 Inters. Com. Rep. 319, 
 9 L. R. A. 689. If further authority is wanted for the proposition that it 
 is not the existence of the restriction of competition, but the reasonable- 
 ness of that restriction, that is tlie test of the validity of contracts that are 
 claimed to be in restraint of trade, it will be found in Fowle v. Park, 131 
 U. S. 88, 97, 33 L. ed. 67, 74; Oibbs v. Consolidated Gas Co. 130 U. S. 396, 
 32 L. ed. 979; Re Greene, 52 Fed. Rep. 104, 118; Horner v. Graves. 7Bing. 
 735, 743; Hubbard \ . Miller , 27 Mich. 15, 19, 15 Am. Rep. 153; Romillon 
 V. Ronsillon, L. R. 14 Ch. Div. 351, 363; Leather Cloth Co. v. Lmsont, L. 
 R. 9 Eq. 345, 354;McA;e?iS v. Emm, 3 Younee & J. 318; Ontario Salt Co. 
 V. Merchants Salt Co. 18 Grant Ch. 540; Mallan v. May, 11 Mees & W. 
 652, 657; Whiltaker v. Howe, 3 Beav. 383; Kellogg v. Larkin, 3 Pinney, 123,
 
 PKOVISIONS ENFORCING CONNECTIONS, ETC. 465 
 
 From a review of these and other authorities, it clearly appears 
 that wlien the Anti-Trust Act was passed the rule had become 
 firinlj established in the jurisprudence of England and the United 
 States that the validity of contracts restricting competition was 
 to be determined by the reasonableness of the restriction. If the 
 main purpose or natural and inevitable effect of a contract was to 
 suppress competition or create a monopoly, it was illegal. If a 
 contract imposed a restriction that was unreasonably injurious to 
 the public interest, or a restriction that was greater than the in- 
 terest of the party in whose favor it was imposed demanded, it 
 was illegal. But contracts made for a lawful purpose, which 
 were not unreasonably injurious to the public welfare, and which 
 imposed no heavier restraint upon trade than the interest of the 
 favored party required, had been uniformly sustained, notwith- 
 standing their tendency to some extent to check competition. 
 The public welfare was first considered, and the reasonableness 
 of the restriction determined under these rules in the light of all 
 the facts and circumstances of each particular case. 
 
 But it is said that railroad corporations are quasi jDublic cor- 
 porations, and any restriction upon their competition is ao-ainst 
 the public policy of the nation. It is not to be denied that there 
 are some expressions to be found in adjudged cases,' to the effect 
 that where a business is of such character that it cannot be re- 
 strained to any extent whatever without prejudice to the public 
 interests, the courts decline to enforce or sustain contracts impos- 
 ing such restraint, however partial. But the language employed 
 by the courts in these cases should be read in the light of the cir- 
 cumstances under which it was uttered, and with due reference 
 to the point actually adjudicated. Thus in the earliest of these 
 
 150; Beal v. Chase, 31 Mich. 490; Skrainka v. Scharringhansen, 8 Mo. 
 .4 pp. 522, 525;Tl%.9i/is Ferry Co. v. Chicago & A. R. Co. 73 Mo. 389; Glou- 
 ctster hixglass & G. Co. v. Russia Cement Co. 154 Mass. 92, 94; Watertown 
 Thermometer Co. v. Pool, 51 Hun, 157, 163; Master Stevedore's Asso. v. WaUi, 
 2 D ily, 1; Hodge v. Sloan. 107 N. Y. 244; Brow)i v. Rounsavell, 78 III. 589; 
 Jones V. Fell, 5 Fla. 510, 515; Ray, Contractual Limitations, §§ 57, 58, 59. 
 i Oibbs V. Consolidated Gas Co. 180 U. S. 396, 409. 32 L. ed. 979, 984; West Vir- 
 ginia Transp. Co. v. Ohio River Pipe Line Co. 22 W. Va. 600, 625 ; Chirago 
 Gaslight & C. Co. v. Peoples Gaslight & C. Co. 121 111. 530; Western V. Teleg. 
 Co. V. American U. Teleg. Co. 65 Ga. 160, 38 Am. Rep. 781. 
 
 30
 
 4:66 LIABILITIES — CHAKGES — FACILITIES CONNECTING CARRIERS. 
 
 cases' it was held that a contract between a railroad company and 
 a telegraph company by which the former granted to the latter 
 the exclusive right to construct a telegraph line along its right of 
 way, necessarily excluded all other telegraph lines from the use 
 of a right of way that by condemnation had been devoted to pub- 
 lic uses, and was void, because it was in restraint of trade, and 
 tended to create a monopoly. In West Virginia Transp. Co. v. 
 Ohio River Pipe Line Co. it was held that an owner of 2000 
 acres of oil land could not grant to one pipe line company an ex- 
 clusive right to lay a pipe line across said lands, because the legis- 
 lature, by authorizing pipe line companies to condemn lands for 
 the construction of such lines, had thereby declared that the pub- 
 lic had an interest in their construction, and that a contract which 
 precluded such companies from laying a line across an extensive 
 tract of land was necessarily opposed to public policy. In Chi- 
 cago Gaslight & C. Co. v. Peoples Gaslight <& C. Co. the court 
 held that a gas company, which had accepted a charter authoriz- 
 ing it to lay pipes and to supply gas throughout the entire limits 
 of the city, could not disable itself from the performance of the 
 public duty it had undertaken by entering into a contract with 
 another company not to lay pipes and supply gas in a large sec- 
 tion of said city. And in Gibbs v. Consolidated Gas Co. a like 
 contract by one gas company with another to abandon the dis- 
 charge of public duties which had been devolved upon it by its 
 charter was held, on that account, to be against public policy, 
 and void, and to be void on the further ground that the contract 
 was in open violation of a statute which prevented the cumpany 
 from " entering into a , . . contract with any other gas com- 
 pany whatever." 
 
 No doubt can be entertained that the contract involved in each 
 of the cases last referred to was against public policy for its 
 marked tendency to create a monopoly, and to suppress healthy 
 competition. Two of the contracts were also vicious in the re- 
 spect that the corporation had attempted to disable itself from 
 exercising powers which had been conferred upon it for the pub- 
 
 ^ Western U. Tekg. Co. v. American JJ. Teleg. Co. 65 Ga. 160, 38 Am. Rep. 781.
 
 PKOVI&IONS ENFORCING CONNECTIONS. 467 
 
 lie advantai^e. But, in view of the state of facts on which the 
 decisions were predicated, and the points actually adjudicated, it 
 would be unwise to deduce an unbending rule that any and every 
 contract between two railway companies which enjoins or con- 
 templates concert of action in the matter of establishing freight 
 or passenger rates between competitive points is against public 
 policy, and an unlawful restraint of trade. Xo case has yet gone 
 to that extent, or has declared that the business of transporting 
 freight and passengers by rail is of such character that no restraint 
 whatever upon competition therein is permissible. On the con- 
 trary, contracts between common carriers which imposed some 
 restrictions upon competition have been frequently sustained by 
 our highest courts, and the rule has been often applied that the 
 test of their validity was not the existence, but the reasonableness, 
 of the restriction imposed,* But even if such an extreme view, 
 as is above indicated, was once tenable, it cannot well be main- 
 tained since the passage of the Interstate Commerce Law, and the 
 action that has been taken thereunder by the government Com- 
 mission which was created to enforce its provisions. The Inter- 
 state Commerce Law imposes several important restrictions upon 
 the right of railway companies to do as they please in the matter 
 of making and altering rates, and Congress has thereby expressed 
 its conviction that unrestrained competition between carriers is 
 not, at the present time, and under existing conditions, most con- 
 ducive to the public welfare, but that other things are quite as 
 essential to the public good. Mark the diiference in public pol- 
 icy towards merchants and railroad companies exhibited by the 
 common law and by the Interstate Commerce Act. Merchants 
 may refuse to sell their wares at all, they may refuse to transact 
 any business ; but railroad companies are common carriers ; they 
 must furnish transportation when requested ; they must operate 
 their roads or forfeit their franchises; merchants may charge any 
 price they may see fit for their wares, but railroad companies are 
 
 ' Oregon Steam Nav. Co. v. Winsar, 87 U. S. 20 Wall. 64, 22 L. ed. 315; Chi- 
 cago, 8i. L. & N. 0. R. Co. V. Pullman Southern Car Co. 139 U. S. 79, 35 
 L. ed. 97: Mogul SS. Co. v. McGregor, 21 Q. B. Div. 544; Manchester & L. 
 R. Co. V. Concord R. Co. (N. H.) 3 Inters. Cora. Rep. 319, 9 L. R. A. 689; 
 Wiggins Ferry Co. v. Chicago & A. R. Co. 73 Mo. 389, 39 Am. Rep. 519.
 
 468 LIABILITIES — CHARGES — FACILITIES — CONNECTING OAKKIEKS. 
 
 restricted to reasonable and just charges for transportation (In- 
 terstate Commerce Act, § 1) ; merchants may sell articles of like 
 character ard value for as many different prices as they have dif- 
 ferent customers, but railroad companies are restricted to the same 
 charges to all their customers for like services (Interstate Com- 
 merce Act, § 2) ; merchants may give to any customers or any 
 localities any jDreference or advantage they choose over other cus- 
 tomers or localities, but railroad companies are prohilnted from 
 giving any undue preference or advantage to any party or place 
 (Interstate Commerce Act, § 3) ; merchants may sell articles of 
 inferior value for higher jjrices than those they charge and re- 
 ceive for those of greater value, but railroad companies are pro- 
 hibited from charging or receiving a greater compensation for a 
 short haul than for a long haul (Interstate Commerce Act, § 4) ; 
 merchants may keep their prices secret ; railroad companies must 
 publish their rates for transportation, and are prohibited from 
 charging or receiving a greater or less compensation than that 
 specified in the published schedules (Interstate Commerce Act, 
 § 6) ; merchants may change their prices instantly and without 
 notice, railroad companies are prohibited from increasing their 
 rates except after ten days' public notice or from decreasing them 
 except after three days' public notice (Interstate Commerce Act, 
 § 6) ; merchants may transact their business free from the super- 
 vision or interference of the government ; but railroad companies 
 are subject to the supervision of a Commission, established by the 
 government, authorized to take the necessary proceedings for the 
 enforcement of these restrictions (Interstate Commerce Act, § 12). 
 These restrictions relate almost exclusively to rates for the trans- 
 portation of freight and passengers. They are numerous, radical, 
 and effective. They became operative by an Act of Congress 
 three years before the Anti-Trust Act was passed, and they es- 
 tablish beyond cavil that from that date the public policy of the 
 nation was that competition between railroad companies engaged 
 in interstate commerce should not go wholly unrestricted. 
 
 Turn now to the published reports of the Interstate Commerce 
 Commission, whose opinion on such matters is certainly entitled 
 to great consideration, the view is even more clearly expressed
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 
 
 469 
 
 that it was the purpose of Congress to place important restraints 
 upon competition ; that imcontrolled stru_2:gles for patronage by 
 railwa}^ carriers are frequently detrimental to the public welfare ; 
 that rate wars are especially injurious to the business interests of 
 the country and contrary to the spirit of existing laws ; that the 
 Interstate Commerce Act invites conferences between railway 
 managers, and that concert of action in certain matters by railway 
 companies is absolutely essential to enable it to accomplish its 
 true purpose. 
 
 In the Fourth Annual Eeport of the Commission, at page 19, 
 is found the following statement : 
 
 " It is thus seen at every turn that the regulation of rates on a 
 consideration of the pecuniary or other situation of any single 
 road, and without a survey of the whole field of operations where- 
 by its business may be affected, and under a supposition that what 
 is done in respect to that road may be hmited in its consequences, 
 is entirely antagonistic to all principles of railroad transportation. 
 The railroad managers have perceived this from the very first, 
 and it is because they have perceived this that they have been 
 compelled to organize themselves into railroad associations, for 
 the purpose of agreeing upon classifications and rates, and upon a 
 great variety of other matters pertaining to the methods of con- 
 ducting interlocking and ovei'lapping business, and all business 
 affected by competitive forces." And on page 21 of the same 
 report the following : 
 
 " In former reports, the Commission has referred to the un- 
 doubted fact that competition for business between railroad com- 
 panies is often pushed to ruinous extremes, and that the most 
 serious difficulties in the way of securing obedience to the law 
 may be traced to this fact. When competition degenerates to 
 rate wars, they are as unsettling to the business of the country as 
 they are mischievous to the carriers, and the spirit of the existing 
 law is against them." 
 
 In the Second Annual Eeport, on page 25, when speaking of 
 the unity of railroad interests, the Commission uses this lan- 
 guage : 
 
 " But the voluntary establishment of such extensive responsi-
 
 470 LIABILITIES — CHARGES FACILITIES CONNECTING CARRIERS. 
 
 bility would require such mutual arrangements between tlie car- 
 riers as would establish a common authority, which should be 
 vested with power to make traffic arrangements, to fix rates, and 
 to provide for their steady maintenance, to compel the perfom- 
 ance of mutual duties among the meinbers, and to enforce 
 promptly and efficiently such sanctions to their mutual under- 
 standing as might be agreed upon." 
 
 And in the same report, on page 28, is the following : 
 
 " A short road may sometimes make itself little better than a 
 public nuisance by simply abstaining from all accommodation 
 that could not by law be forced from it. It would not be likely 
 to do this unless for some purpose of extortion from other roads, 
 but the existence of a power to annoy and embarrass is a fact of 
 large importance. The public has an interest in being protected 
 against the probable exercise of any such power. But its inter- 
 est goes further than this ; it goes to the establishment of such 
 relations among the managers of roads as will lead to the exten- 
 sion of their traffic arrangements with mutual responsibilities, just 
 as far as may be possible, so that the public may have, in the ser- 
 vices performed, all the benefits and conveniences that might be 
 expected to follow from general federation. There is nothing in 
 the existence of such arrangements M^liich is at all inconsistent 
 with earnest competition. They are of general convenience to 
 the carriers as well as to the public, and their voluntary extension 
 may be looked for until, in the strife between roads, the limits of 
 competition are passed, and warfare is entered upon. But, in 
 order to form them, great mutual concessions are often indis- 
 pensable, and such concessions are likely to be made wlien rela- 
 tions are friendly, but are not to be looked for when hostile rela- 
 tions have been inaugurated." 
 
 In the First Annual Report, on page 33, the Commission fur- 
 ther said : 
 
 " To make railroads of the greatest possible service to the coun- 
 try, contract relations would be essential, because there would 
 need to be joint tariffs, joint running arrangements and inter- 
 change of cars, and a giving of credit to a large extent, some of 
 which were obviously Ijeyond the reach of compulsory legislation.
 
 PROVISIONS ENFOBOING CONNECTIONS, ETC. 471 
 
 and, even if they were not, could be best settled, and all the inci- 
 dents and qualifications fixed, by the voluntary action of the par- 
 ties in control of the roads respectively. A^^reement upon these 
 and kindred matters became, therefore, a settled policy, and short 
 independent lines of road seemed to lose their identity, and to 
 become parts of great trunk lines, and associations were formed 
 which embraced all the managers of roads in a state or section of 
 the country. To these associations were remitted many questions 
 •of common interest, including such as are alcove referred to. 
 Classification was also confided to such associations, it beins: evi- 
 dent that differences in classification were serious obstacles to a 
 liarmonious and satisfactory interchange of trafiic. But what 
 perhaps, more than anything else, influenced the formation of 
 such associations, and the conferring upon them of large author 
 ity, was the liability, which was constantly imminent, that de- 
 structive wars of rates would spring up between competing roads 
 to the serious injury of the parties and the general disturbance of 
 business. Accordingly, one of the chief functions of such associ- 
 ations has been the fixing of rates, and the devising of means 
 whereby their several members can be compelled or induced to 
 observe the rates when fixed." 
 
 It is not necessary to state the reasons which probably infiu- 
 enced Congress to impose some restrictions upon comi^etition in 
 the matter of railway transportation, and to place railway carriers 
 under the operation of a law which, for its successful execution, 
 as pointed out by the Interstate Commerce Commission, seems to 
 some extent to invite conference and concert of action. It is un- 
 necessary to state the reasons why railroad companies should be 
 accorded the privilege of entering into arrangements with other 
 companies which may, to some extent, regulate competition. 
 Reasons to that effect have been stated with great ability and 
 persuasive force in some of the cases.' It is sutficient to say that 
 there was no hard and fast rule in force when the Anti-Trust Act 
 was enacted which made every contract between railroad compa- 
 nies void on grounds of public policy if it in any wise checked 
 
 ^Manchester & L. B. Co. v. Concord M. Co. (N. H.) 3 Inters. Com. Rep. 319, 
 9 L. R. A. 689.
 
 472 LIABILITIES — CHAKGES FACILITIES — CONNECTING CARRIERS. 
 
 competition. The more reasonable doctrine then prevailed, es- 
 pecially in view of the recent passage of the Interstate Commerce 
 Act, that such contracts were void if, judged in the light of all 
 the circumstances and conditions under which they were made, 
 they unreasonably restricted competition. 
 
 In view of the foregoing principles, it remains only to examine 
 tlie contract which is alleged to be in violation of the Anti-Trust 
 Act, but before doing so a preliminary observation will not be 
 out of place. The Anti-Trust Act is a criminal statute, and it 
 should not be so construed as to subject persons to the penalties 
 thereby imposed unless the contract complained of is one that is 
 clearly within the provisions of the statute. It is also well to 
 note that the case came before the court simply on bill and 
 answer. The bill alleges that its purpose, and that of the associ- 
 ation formed under it, was to suppress competition, enhance 
 rates of freight, and monopolize the traffic. The answers deny 
 these averments, and allege that the purpose of the contract and 
 association was to carry into effect the provisions of the Interstate 
 Cominerce Act, and to make rates public and steady. The bill 
 alleges that the effect of the contract and association has been to 
 raise the rates of freight above those which the public might 
 have reasonably expected to obtain from free competition. The 
 answers deny this allegation, and aver that the effect has been to 
 maintain reasonable rates, and that more than 200 reductions of 
 rates have been efEected through the association. Upon a hear- 
 ing on bill and answer the averments of fact contained in the bill 
 were overcome by the denials of the answer, and the averments 
 of fact in the answer stood admitted.' 
 
 The result is that the government's right to relief therefore 
 rested upon the contract itself, and the fact that the rates main- 
 tained under it have not been unreasonable, and that many re- 
 ductions have been made under its operation. The ordinary 
 rules of interpretation must then be applied to the language of 
 the contract, and, if it appears that its purpose and tendency 
 
 > Tainter v. Clnrk, 5 Allen, 66; Brinckerhoffy. Bvoicn, 7 Johns. Ch 217; Per- 
 kins V. Niclwls, 11 Allen, 542.
 
 PEOVISIONS ENFOKCING CONNECTIONS, ETC. 473- 
 
 were to unreasonably restrict comj)etitiou, it must be declared 
 illegal.' 
 
 In construing the contract it must also be remembered that 
 fraud and illegality are not to be presumed, and that the purpose 
 of the contract is that which is clearly manifest by its terms. In 
 Mitchell V. Reynolds^ 1 P. Wms. 181, the unfortunate remark 
 ^ that wherever such contract stat indifferenter, and for aught 
 appears, may be either good or bad, the law presumes it prima 
 facie to be bad," fell from Chief Justice Parker. This seems to 
 be the reverse of the proposition that every man is presumed to 
 be innocent until he is proved to be guilty. It has long been re- 
 pudiated by the courts of England and America. The burden is 
 on the party who seeks to put a restraint upon the freedom of 
 contract to make it plainly and obviously clear that the contract 
 is against public policy, and the true rule of construction is that 
 neither fraud nor illegality is to be presumed, but the contract is 
 to be assumed to have been made in good faith for the purpose 
 which appears on the face of it, and not colorably for any other.* 
 
 Proceeding, then, to an examination of the contract, it is sub- 
 stantially as follows : In the preamble there is a declaration that 
 the association is formed for " mutual protection by establishing 
 and maintaining reasonable rates, rules, and regulations, both 
 through and local." Article 1 declares that substantially all 
 traffic competitive between two or more members in that part of 
 the United States between the Mississippi and Missouri rivers 
 and the Pacific ocean shall be governed by the association. It is 
 provided by article 2 that the association shall choose a chairman 
 by unanimous vote ; that there shall be regular monthly meetings 
 of the association in which each member must be represented by 
 some responsible officer authorized to act definitely on all ques- 
 tions to be considered ; that a committee shall be appointed to 
 
 ^Dillon V. Barnard, 88 U. S. 21 Wall. 430. 437, 22 L. ed. 673, 676; Interstate 
 
 Land Co. v. Maxwell Land Grant Co. 139 U. S. 569, 577, 35 L. ed. 278, 281. 
 •^Printing & N. Reg. Co. v. Sampson, L. R. 19 Eq. 4G2; TalUs v. Tallis, 1 El. 
 
 & Bl. 391; Rousillon V. BousiUon, L. R. 14 Ch. Div. 351, 365; Stewart v. 
 
 Erie & W. Transp. Go. 17 Minn. 372, 391; Marsh v. Rus&ell, 66 N. Y. 288- 
 
 Phippen v. Siickney, 3 Met. 384, 389.
 
 474 LIABILITIES — CHARGES — FACILITIES — CONNECTING CAERIERS. 
 
 establish rates, rules, and regulations for the traffic, and that these 
 shall be put into effect ; that any railroad company may give five 
 days' written notice prior to any monthly meeting of any pro- 
 posed reduction of rates or change of rules, and eight days' notice 
 as to the traffic of Colorado or Utah ; that thereupon the reduc- 
 tion or change shall be considered and voted upon by the associa- 
 tion at the next monthly meeting, and all members shall be bound 
 by the decision of the association, " unless then and there the par- 
 ties shall give the association definite written notice that in ten 
 days thereafter they shall make such modification notwithstand- 
 ing the vote of the association ;" that any member may without 
 notice, at its peril, make any rate, rule, or regulation necessary to 
 meet the competition of outside lines, subject to a liability to pay 
 a penalty of $100 if the association decides by a two thirds vote 
 that the rate, rule, or regulation was not necessary for that pur- 
 pose ; that all arrangements with connecting lines for the division 
 of through rates relating to traffic covered by the agreement shall 
 be made by authority of the association, and that the chairman of 
 the association shall punish violations of the agreement by fines 
 not exceeding $100 in any case. Article 3 makes the chairman 
 the executive officer of the association, requires him to publish 
 and furnish to the members of the association the rates, rules, and 
 regulations established, and all changes in them, and requires him 
 to enforce the provisions of the contract. Article 4 prohibits 
 under-billing or billing at a wrong classification. Articles 5 and 
 6 provide for the appointment of the necessary employes and the 
 payment of the necessary expenses of the association. Article 7 
 provides for arbitration in case the managers of the parties to the 
 agreement fail to agree upon any question arising under it ; and 
 article 8 provides that any member may withdraw from the asso- 
 ciation on 30 days' notice. 
 
 It is obvious at a glance that this agreement is not aft'ected by 
 any of the vices of an ordinary pooling contract. The income of 
 each member of the association under the terms of the agreement 
 is still measured by the amount of freight and tlie number of 
 passengers it carries, and it is still to the interest of each member 
 of the association to make that patronage as great as possible, by
 
 PROVISIONS ENFORCING CONNECTIONS, ETC. 475 
 
 affording to the public superior facilities for safe, speedy, and 
 convenient transportation. Under the operation of the agree- 
 ment, each company must still compete with its associate mem- 
 bers in the character of its roadbed, quality of its equipments, 
 length of route, convenience of its terminal facilities, and in the 
 efficiency of its management, for all of these considerations will 
 necessarily have a marked influence upon the amount of its pat- 
 ronage. 
 
 In other of its features, also, the contract is not subject to criti- 
 cism. In these days, when persons engaged in many other call- 
 ings and avocations are in the habit of meeting at intervals, as 
 associations, for the purpose of cultivating more friendly relations 
 and establishing regulations conducive to the general welfare of 
 the trade, it is difficult to see upon what jnst grounds repre- 
 sentatives of railway companies can be denied the right of 
 forming associations for the purpose of friendly conference and 
 to formulate rules and regulations to govern railway traffic. The 
 fact that the business of railway companies is irretrievably inter- 
 woven, that they interchange cars and traffic, that they act as 
 agents for each other in the delivery and receipt of freight and 
 in paying and collecting freight charges, and that commodities 
 received for transportation generally pass through the hands of 
 several carriers, renders it of vital importance to the public that 
 uniform rules and regulations governing railway traffic should be 
 framed by those who have a practical acquaintance with the sub- 
 ject, and that they should be promulgated and faithfully ob- 
 served. The advisability of establishing such rules and regula- 
 tions in the mode above indicated, particularly for the uniform 
 classification of freight, has been frequently pointed out in the 
 reports of the Interstate Commerce Commission. Indeed, the 
 benefits that would result from uniform rules and regulations, 
 and from uniformity in the classification of freight, seem so obvi- 
 ous that it is unnecessary to enumerate them. 
 
 It follows, therefore, that the stipulations of such agreements 
 enjoining a monthly conference between representatives of the 
 various members of the associations, and the a2:)pointment of a 
 committee to formulate rules and regulations governing the traffic
 
 476 LIABILITIES CHARGES FACILITIES CONNECTING CAKRIERS. 
 
 embraced by the agreements are not only not opposed to public- 
 policy, but, if faithfully carried out, will tend to promote the public 
 interests. It is also obvious that the stipulation requiring fiva 
 days' written notice of a proposed reduction in rates does not, in 
 and of itself, render the contract unlawful. It is certain that a 
 contract not to reduce established rates without a public notice of 
 three days, and not to increase them without a notice of ten days^ 
 w^ould not be against public policy, because the Interstate 
 Commerce Act has prohibited such changes with less notice. The 
 plain object of this provision was to prevent competitors from re- 
 sorting to secret, unfair, and ruinous methods of warfare, to make 
 competition fair and open, and to enable shippers to modify their 
 action to suit the coming changes. There is no purpose of the 
 provision, or of the policy that dictated it, that would not be as 
 well, if not better, served by a notice of fifteen or forty days, as. 
 one of three days. 
 
 But it has been urged that contracts like the one in question 
 restrains competition in rates, and is therefore unlawful. That it 
 does have some tendency to check competition in that respect can 
 not be denied ; but that the restraint imposed is slight, that there 
 is abundant room within the terms of the agreement for the play 
 of all the healthy forces of competition, and that it has a 
 pronounced tendency to prevent sudden and violent fluctuations 
 in rates, commonly termed " rate wars," seems to be equally 
 manifest. It is not reasonable to suppose that any member of 
 such associations which, by virtue of the situation, can really 
 afford to transport freight or passengers between any two com- 
 petitive points for a substantially less sum- than its competitors, 
 will be likely to forego the advantage that its situation gives it> 
 even under the operation of the agreement. It is much more 
 probable that, under the operation of such agreements, as under 
 the influence of free competition, the rates between competitive- 
 points will be largely, if not entirely, based upon the rate which 
 the road having the shortest line and best facilities esteems fair- 
 and reasonable compensation. 
 
 It will be observed that under the terms of the agreement no 
 member of the association has bound itself to be governed by a rate
 
 PKOVISIONS ENFORCING CONNECTIONS, ETC. 477 
 
 "fixed by a vote of the majority for a longer period than ten days 
 after the monthly meeting next succeeding its notification of a 
 proposed change in rates ; and for that reason the limitation im- 
 posed by the contract npon the right of a member of the associa- 
 tion to adopt such a rate as it sees tit is very slight, and the power 
 reposed in the association is correspondingly small. It is not to 
 be supposed, therefore, that the natural or probable effect of such 
 a contract will be to sensibly raise either freight or passenger rates 
 above the level which they would attain under the influence of 
 what is termed " unrestricted competition." On the other hand, 
 it seems highly probable that the contract will prevent sudden and 
 violent fluctuations in freight rates, such as often upset the busi- 
 ness calculations of entire communities, and that this is one of the 
 main reasons which lead to the formation of such associations. It 
 must be concluded also that it will have a sensible tendency to in- 
 duce a more uniform system of classification throughout the great 
 region where the associations operate, and also to induce tlie 
 establishment of a more perfect code of rules and regulations gov- 
 erning freight traflic. It may also tend to prevent stealthy, 
 secret, and unfair methods of warfare, and to make the strife for 
 patronage among the members of associations open, fair, and hon- 
 orable. All of these are objects that are in line with the true 
 spirit of the Interstate Commerce Act and an intelligent public 
 policy. 
 
 The result is the necessary finding of fact that such contracts in 
 view of all the circumstances and the situation of the parties 
 thereto, do not impose such unreasonable restraints on competition 
 as will warrant the conclusion of law that it is one of those con- 
 tracts or conspiracies in restraint of trade and commerce among 
 the several states which fall within the inhibition of the Anti- 
 Trust Act of July 2, 1890. 
 
 Nor is there any monopoly of trade, or any attempt to monop- 
 olize trade, within the meaning of that Act, evidenced by such 
 contracts. So far as can be learned, the associations have never 
 intended to liave, and never have had or attempted to have, any 
 trade. They have not held or attempted to obtain or hold any 
 property except the moneys necessary for the bare expenses
 
 478 LIABILITIES CHARGES FACILITIES CONNECTING CAKRIEKS. 
 
 required to pay officers and employes. They have been and are 
 mere advisers with their members upon disputed questions sub- 
 mitted by the contracts to consideration. So far as can be learned 
 from the contracts, each member of the associations is striving 
 with every other in the territory, whether a member of the asso- 
 ciation or not, to divert from the latter and gather to itself all 
 possible trade. There are no provisions in the contracts that the 
 chairman may authorize members to meet the rates of competitors 
 who are not members of the associations, and that any member 
 may meet the rates of such a competitor at its peril ; but these 
 provisions were necessary for the protection of members of the 
 associations against the attacks of non-members. Without such 
 provisions unreasonably low rates established by the latter would 
 draw away the business of the members, and deprive them of the 
 opportunity to compete on equal terms. These provisions give no 
 company any higher right or greater power than it had before the 
 contract was made, but simply reserved to each the privilege of 
 exercising its original right to meet competition without giving the 
 fifteen days' notice in case of a warfare upon it by a nonmember. 
 
 A monopoly of trade embraces two essential elements : (1\ 
 The acquisition of an exclusive right to, or the exclusive control 
 of, that trade ; and (2) the exclusion of all others from that right 
 and control. Evidently there is nothing in this contract indicat- 
 ing any purpose or attempt to obtain such a monopoly. The great 
 transportation systems of the Great Northern Railway Company, 
 the Northern Pacific Railroad Company, the Southern Pacific 
 Railroad Company, and the Texas Pacific Railroad Company were 
 operated in the region subject to the regulation of this association, 
 but none of these companies were members of it ; and, even if 
 they had been, there would still have been no evidence of any 
 attempt to monopolize trade here, because each member is left to 
 compete with every other for its share of the traffic' 
 
 The position that railroad companies entering into such contracts 
 have so far disabled themselves from the performance of their 
 public duties by the execution of the contracts as to give ground 
 for the avoidance of the contracts, and for a forfeiture of their 
 
 ' Re Greene, 52 Fed. Rep. 104, 115.
 
 PKOVISIONS ENFOKCING CONNECTIONS, ETC. 479 
 
 franchises, cannot be successfully maintained. It is well settled 
 upon principle and authority that, where a corporation by a con- 
 tract entirel}'^ or substantially disables itself from the performance 
 of the duties to the public imposed upon it by the acceptance of 
 its charter, the contract is void, and its franchise may be forfeited. 
 The reasons for this rule, and some of the limitations of it, have 
 been stated,' and it is unnecessary to repeat them here. It goes 
 without saying that this rule in no way limits the power of a cor. 
 poration to discharge its duties through agents of its own selec- 
 tion. There is no doubt that each of these corporations could 
 lawfully appoint an expert or a committee of experts upon the 
 subject of classification and rates of freight upon its road, em- 
 power him or tliem to fix the rates, and then maintain them for 
 forty days unchanged. Practically the fifteen representatives of 
 these companies, at a meeting of the association, their chairman, 
 and their committee that originally fixed the rates and rules, 
 together constitute an advisory committee on rates and rules of 
 traffic, composed of men whose intimate knowledge of the needs 
 of the shippers, and of the character and quantities of the 
 commodities transported through the different portions of the 
 large area traversed by these railroads, and whose wide experience 
 in the effect of various rates upon the accommodation of the pub- 
 lic and the business of the companies fit them well to carefully con- 
 sider and wisely establish just and reasonable rates throughout this 
 territory. Such a committee each company acting independently 
 might have appointed, and it is not perceived that the fact that 
 two or more companies appoint the same men to establish rates 
 and rules for the traffic upon their respective roads in any way in- 
 validates the appointment of either. 
 
 Moreover, the power delegated to the association, its committee 
 and chairman, is so limited in extent and so restricted in time that 
 it is hardly worthy of serious consideration as the ground for the 
 avoidance of a contract and the forfeiture of a franchise. The 
 power granted to the committee originally chosen to establisli 
 the rates and rules expires by limitation upon a thirty days' notice 
 
 ' Union Pae. R. Co. v. Chicago, R. I. <& P. R. Co. 10 U. S. App. 98, 51 Fed. 
 Kep. 309, 317-331.
 
 480 LIABILITIES — CHARGES — FACILITIES — CONNECTING CARRIERS. 
 
 of withdrawal from the association ; the power of the association 
 itself to prevent modifications and changes in the rules and rates 
 established ceases after fifteen days' notice of an intention to make 
 the modifications and changes notwithstanding its action. It is 
 true that there is a provision in the second article of the agreement 
 that regular meetings of the association shall be held, "unless 
 notice shall be given by the chairman that the business to be 
 transacted does not warrant calling the members together," but 
 the claim that this gives the chairman power to prevent the con- 
 sideration of proposed changes in rates, and thus to maintain them 
 indefinitely, by preventing a meeting of the association, cannot be 
 serious. The effect of such a contract is that, when a company 
 gives notice of a proposed change of any importance, the meeting 
 shall be held. Such a notice presents business to be transacted 
 that does warrant calling the members together. If, under such 
 circumstances, the chairman gives notice that there is no such 
 business, he violates the contract. The presumption is that he 
 will not violate it ; and, if he does do so, that i£ no ground for an 
 avoidance of the contract. 
 
 The result is that neither the contract nor the association 
 formed under it can be held to be obnoxious to the provisions of the 
 Anti-Trust Act in view of the facts admitted by the pleadings, and 
 in the absence of other evidence of their consequences and effect. 
 Many of the considerations referred to are presented upon the 
 question whether or not the Anti-Trust Act applies to or in any 
 way governs transportation companies that are engaged in that 
 part of interstate and international commerce which consists solely 
 of the transportation of persons and property, in view of the very 
 substantial regulation of this part of commerce provided by the 
 Interstate Commerce Act. The views expressed rendered it un- 
 necessary for the court to determine this question. It rests the 
 decision on the ground that, if the Anti-Trust Act applies to and gov- 
 erns interstate and international transportation and its instrumen- 
 talities, the contract and association in question do not appear to 
 be in violation of it.' 
 
 1 United States v. Trans- Missouri Freight Association, 24 L. R. A. 73, 58 Feri. 
 Rep. 440.
 
 CHAPTER XY. 
 
 INTERSTATE AND STATE COMMERCE. 
 
 § 106. Power to Regidate Coiiwierce. 
 
 S 107. State Regulatio7is Affecting Common Carriers. 
 
 § 108. Interstate Commerce Commission — Jurisdiction and Practice. 
 
 § 109. State Railroad Commission. 
 
 § 110. Uniform Classification. 
 
 § 111. Classification of Freight and Rates. 
 
 § 112. Reasotiable Rates for Freight. 
 
 % 106. Power to Regulate Commerce. 
 
 Among the powers specifically granted to Congress, and in the 
 exercise of which the power of Congress is supreme, is the power 
 " to regulate commerce with foreign nations, and among the sev- 
 eral states, and with the Indian tribes.'" The power to regulate 
 commerce among the several states, as well as with foreign na- 
 tions, was delegated to the Federal government in pursuance of 
 a preconceived purpose on the part of the leading representatives 
 of public opinion to provide for and promote the free and unre- 
 stricted sale and interchange of commodities between the states. 
 The power is complete in itself with no limit other than that 
 prescribed; and it may operate on any and every subject of com- 
 merce to which the legislative discretion may extend.'' Rates on 
 commerce among the states may be regulated by Federal author- 
 ity, with reference to trade conditions and circumstances of locali- 
 ties.' It appears from contemporaneous history of the condition 
 of the country, especially from the journals of the general assem- 
 
 'Fed. Const, art. 1, §8, subd. 3. 
 
 2 United States v. Mariqold, 50 U. S. 9 How. 560, 13 L. ed. 257; Gihhons v. 
 Ogden, 22 U. S. 9 Wheat. 1, 6 L. ed. 23, 17 Johns. 488; Pollard v. Uagan, 
 44 U. S. 3 How. 212, 11 L. ed. 565; Smith v. Turner, 48 U. S. 7 How. 396, 
 12 L. ed. 749; State v. Kennedy, 19 La. Ann. 397. 
 
 ^ Kauffman Milling Co. v. Missouri Pac. li. Co. 3 Inters. Com. Rep. 400. 
 31 481
 
 482 INTERSTATE AND STATE COMMEKCE. 
 
 blies of the states and of the Federal convention, that there was 
 a deep seated desire in all parts of the Union to establish a uni- 
 form system of commercial regulation, such as would prohibit 
 one state from imposing burdens upon the business of citizens of 
 other states, whether by a tax upon their persons or property m 
 transitu^ on their goods when offered for sale, or by an imposed 
 tax.' The control of commerce, being in the Federal govern- 
 ment, is not to be restricted by state authority."'' The design and 
 object of the grant of exclusive power to Congress were to estab- 
 lish uniformity among the several states, and to prevent unjust 
 and invidious distinctions.^ The power of Congress is exclusive 
 only when exercised, or when states are expressly prohibited.'* 
 The earlier cases that gave rise to the construction of this clause 
 of the Constitution were chiefly controversies as to the right of a 
 state to levy a tax upon passengers or products passing through 
 and along its highways to a market beyond its borders. The test 
 of constitutionality to which every doubtful state statute was sub- 
 jected was involved in the inquiry whether its enforcement would 
 tend to trammel the trade between citizens of different states or 
 embarrass them in passing from one to another. The idea was 
 crystallized by Justice Strong in the definition of " regulating 
 commerce," given by him in HanniJxil & St. J. R. Co. v. Husen, 
 95 tJ. S. 470, 24 L. ed. 529, to wit: " Transportation is essential 
 to commerce, or, rather, it is commerce itself; and every obstacle 
 to it, or burden laid upon it, by legislative authority, is regula- 
 tion."' 
 
 Waters navigable in themselves in a state, and connecting with 
 
 ' 1 Elliott, Deb. 140; 5 Elliott, Deb. 540. 
 
 '^Pembina Consol. S. Min. & M. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 
 
 650, 2 Inters. Com. Rep. 24. 
 ^Veazie v. Mooi\ 55 U. S. 14 How. 568, 14 L. ed. 545; Welton v. Missouri, 91 
 
 U. S. 275. 23 L. ed. 347. 
 * Re Brinkman, 1 Nat. Bankr. Reg. 425; Ogden y. Saunders, 25 U. S. 12 
 
 Wheat. 213, 6 L. ed. 606; Smith v. Turner, 48 U. S. 7 How. 283, 12 L. ed. 
 
 702; Com. v. O'llara, 1 Nat. Bankr. Reg. 86; Re Brown, 3 Nat. Bankr. 
 
 Reg. 250; Martin v. Berry, 37 Cal. 208. 
 6 Ward V. Maryland, 79 U. S. 12 Wall. 418, 20 L. ed. 449; PJiiladelphia & R. 
 
 R. Co. V. Pennsylvania (" The State Freight Tax") 82 U. S. 15 Wall. 232, 21 
 
 L. ed. 146;lFeto«. v. Missouri, supra; Henderson v. Wickham, 92 U. S. 259, 
 
 23 L. ed. 543; Chy Lung v. Freeman, 92 U. S. 275, 23 L. ed. 550,
 
 POWER TO EEGULATE COMMERCE. 483 
 
 other navigable waters so as to form a waterway to other states 
 or foreign nations, cannot be obstructed or impeded so as to im- 
 pair, defeat, or place any burden upon a right to their navigation 
 granted by Congress; such right, owners of steam tugs, enrolled 
 and licensed under the law of the United States, have. A state 
 cannot interfere with or put obstructions upon commerce author- 
 ized by the United States, and over which Congress has control, 
 without coming in contact with the exclusive power of Congress 
 to regulate commerce, interstate and foreign. The ordinance of 
 the city of Chicago, requiring a license fee for steam tug boats 
 navigating the Chicago river, which boats were engaged in the 
 coasting and foreign trade and in towing vessels engaged in in- 
 terstate commerce, is invalid. A license exacted for the use of 
 tugs for towing vessels into the Chicago river and its adjacent 
 waters is not one exacted for the special improvement of deepen- 
 ing the river, nor to pay the expenses of such improvement.' 
 
 "Commerce," said Chief Justice Marshall, "undoubtedly is 
 traffic, but it is something more ; it is intercourse." The police 
 power is the authority to establish such rules and regulations for 
 the conduct of all persons as may be conducive to the public 
 interest, and, under our system of government, is vested in the 
 legislatures of the several states of the Union; the only limit to 
 its exercise being that the statute shall not conflict with any pro- 
 vision of the state constitution, or with the Federal Constitution, 
 or laws made under its delegated powers.'' So long as the state 
 legislation is not in conflict with any law passed by Congress in 
 pursuance of its powers, and is merely intended and operates in 
 fact to aid commerce, and to expedite, instead of hindering, the 
 safe transportation of persons or ])roperty from one common- 
 wealth to another, it is not repugnant to the Constitution of the 
 United States, and will be enforced either as supplementary to 
 partial Federal statutes relating to the same subject, or in lieu of 
 such legislation, where Congress has not exercised its powers at 
 
 ' Harmon v. Chicago, 147 U. S. 396, 37 L. ed. 216. 
 
 « Martin v. Hunter, 14 U. S. 1 Wheat. 326, 4 L. ed. 102; State v. Moore, 104 
 
 N. C. 714; Philadelphia & R. R. Co. v. Pennsylmriia {''iState Tax on Railway 
 
 Gross Receipts") 82 U. S. 15 Wall. 284. 21 L. ed. 164.
 
 484 INTEKSTATE AND STATE COMMERCE. 
 
 all.' Intercourse by telegraph ])etween states is interstate com- 
 merce, and a state has no authority to regulate same.'' And in 
 cases arising under the law merchant, the Supreme Court of the 
 United States has held itself less bound by the decisions of 
 the state courts than in other cases. ^ The Supreme Court of 
 the United States has also, in a long line of cases, passed upon the 
 power assumed by some of the states to impose a tax on persons 
 or goods in transitu to another state — a license tax upon travel- 
 ing salesmen who might offer to sell within their borders mer- 
 chandise manufactured in or commodities shipped from another 
 state before such articles of commerce should become inter- 
 mingled with its own products. 
 
 Thus, a circuit court of the United States has held that a li- 
 cense tax of $500 per annum, imposed on every person selling in 
 a city any meat which is not from animals of his own raising, un- 
 less he rents a stall in a public market, while the rent of such 
 stall is $150 per year and the market regulations are so restricted 
 and burdensome as to preclude the reasonable conduct of a Avhole- 
 sale business there, is unconstitutional in respect to wholesale 
 dealers in meat brought from other states, by reason of the neces- 
 sarily resulting discrimination against them, although the ordi- 
 nances on the subject on their face purport to apply to vendors 
 irrespective of the places from which it comes, — especially where 
 neither sales nor inspection of meat are restricted to the mai-ket, 
 and the regulations are clearly made for the purpose of revenue, 
 and not merely to prevent the sale of uninspected meat." These 
 adjudications within the last decade marked much more clearly 
 the line to which Congress may rightfully claim exclusive author- 
 
 ' Morgan's L. & T. R. & 88. Co. v. Louisiana Board of Health, 118 U. S. 455, 
 30 L ed. 237; Train v. Boston Disinfecting Co. 144 Mass. 523, 59 Am. Rep. 
 113- 8miili v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804; 
 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 
 Inters Com. Rep. 2^S:Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Chi- 
 cago & N. W. R. Co. V. Fuller, 84 U. S. 17 Wall. 560, 21 L. ed. 710. 
 
 ^Western U. Teleg. Go. v. Pendleton, 122 U. S. 347, 30 L. ed. 1187, 1 Inters. 
 Com. Rep. 306;TFcf6a*7i. 8t. L. & P, R. Co. v. Illinois, 118 U. S. 557, 30 L. 
 ed. 244, 1 Inters. Com. Rep. 31. 
 
 « 8mith V. Alabama, 124 U. S. 465, 31 L. ed. 503, 1 Inters. Com. Rep. 804. 
 
 * Georgia Packing Co. v. Macon, 22 L. R. A. 775, 4 Inters. Com. Rep. 508, 60 
 Fed. Rep. 774.
 
 POWER TO REGULATE COMMERCE. 485 
 
 ity to legislate, and have also indicated more definitely the limits 
 to which the states may still cross that boundary in the exercise 
 of permissive police power. The controlling principle which per- 
 vades all of them is that only such legislation by the states is in- 
 hibited as impedes, obstructs, or controls commerce, or comes in 
 conflict with some statute passed by Congress to regulate it.' In 
 Ilannihal & St J. R. Co. v. Ilusen, 95 U. S. 470, 24 L. ed. 529, 
 Justice Strong, delivering the opinion, said: "Many acts of a 
 state may, indeed, affect connnerce, without amounting to a regu- 
 lation of it, in the constitutional sense of the term ; and it is 
 sometimes difficult to distinguish between that which merely 
 affects or influences, and tliat which regulates or furnishes a rule 
 of conduct. . . . While we unhesitatingly admit that a state 
 may pass sanitary laws and laws for the protection of life, liberty, 
 health, or property within its borders ; while it may prevent ani- 
 mals suffering from contagious or infectious diseases, or convicts, 
 from entering the state ; while, for the purpose of self-protection, 
 it may establish quarantine and reasonable inspection laws — it 
 may not interfere with transportation into or through the state 
 be^^ond what is absolutely necessary for its self-protection. It 
 may not under cover of exerting its police power, substantially 
 prohibit or burden either foreign or interstate commerce. In 
 Weltoii V. .Missouri, 91 U. S. 282. 23 L. ed. 350, it is said : " The 
 fact that Congress has not seen fit to prescribe any specific rules 
 to govern interstate commerce does not affect the question. Its 
 inaction on this subject, when considered in reference to its legis- 
 lation with respect to foreign commerce, is equivalent to a decla- 
 ration that interstate commerce shall be free and untrammeled." 
 Where the regulation of commerce requii-es a uniform rule, 
 the power of Congress is exclusive; but where it requires differ- 
 
 ' Bobbins v. Slielby County Taxing Dist. 120 U. S. 489, 30 L. ed. 604, 1 Inters. 
 Com. Rep. 45; McGall v. California, 136 U. S. 104, 34 L. ed. 391, 3 Inters. 
 Com. Rep. 181; Asher v. Texas. 128 U. S. 129, 32 L. ed. 368, 2 Inters. Com. 
 Rep. 241; Lynfj v. Mic7iif/an, 135 U. 8. 166, 84 L. ed. 153, 3 Inlers. Com. 
 Rep. 143; Walling v. Michigan. 116 U. S. 446. 29 L. ed. 691; Inman SS. 
 Co. V. Tinker. 94 U. S. 238, 24 L. ed. 118; Wi'kerson v. Baftrer, 140 U. S. 
 545, 35 L. ed. 572; Bowman v. Chicago & JV. W. B. Co. 125 U. S. 465, 31 L. 
 ed. 700. 1 Inters. Com. Rep. 823; Philadelphia & S. Mail SS. Co. v. Penn- 
 sylvania, 122 U. S. 326, 30 L. ed. 1200, 1 Inters. Com. Rep. 308.
 
 486 INTEKSTATE AND STATE COMMERCE. 
 
 ent rules in difPerent localities, the states maj legislate, but only 
 in the absence of congressional legislation/ It is for Congress in 
 its discretion to determine when its full power shall be brought 
 into activity, and when it legislates, the states are absolutely pro- 
 hibited from interfering.^ A state statute in conflict with a con- 
 gressional regulation of commerce is unconstitutional as an inva- 
 sion of the exclusive power of Congress.' 
 
 The power of Congress over commerce between the states is, 
 as a general rule, exclusive, and its inaction is equivalent to a 
 declaration that it shall be free from any restraint which it has 
 the right to impose, except as by such statutes as are passed by the 
 state for the pui-pose of facilitating the safe transmission of goods 
 and carriage of passengers, and are not in conflict with any valid 
 Federal legislation.^ The failure of Congress to make express 
 regulations indicates that the subject shall be free.^ Familiar in- 
 stances of statutes falling within the foregoing exception are 
 found in those relating to harbor pilotage, beacons, buoys, the im- 
 provement of navigable waters, the examination as to fitness of 
 engineers and other railroad employes, and which are discussed 
 by the courts in the cases cited above. The validity of these and 
 other state laws, which relate directly to, or indirectly affect, com- 
 
 ' Cooley V. PMladelvMa Port Wardens, 53 U. S. 12 How. 299, 13 L. ed. 996; Gil- 
 man v. Philadelphia. 70 U. S. 3 Wall. 713, 18 L. ed. 96; Crandall v. Ne- 
 vada, 73 U. S. 6 Wall. 35, 18 L. ed. 745; Ex parte McNiel, 80 U. S. 13 Wall, 
 240. 20 L. ed. 625; Pound v. Turck, 95 U. S. 462, 24 L. ed. 526; Mitchell v. 
 Sfeelman, 8 Cal. 363; People v. Central Pac. B. Co. 43 Cal. 404. 
 
 « United States v. Coombs, 37 U. S. 12 Pet. 72, 9 L. ed. 1004; New York v. 3Iiln, 
 36 U. S. 11 Pet. 155, 9 L. ed. 669; Oilman v. Philadelphia, supra; United 
 States V. Mw Bedford Bridge, 1 Woodb. & M. 421. 
 
 ^Sinnot v. Davenport, 63 U. S. 22 How. 227, 16 L. ed. 243; Blanchard v. The 
 MarthaWashington, 1 Cliff. 473; Ex parte Ah Fong, 3 Sawy. 145; Hender- 
 son V. Wickham, 92 U. S. 259, 23 L. ed. 543. 
 
 ^Cooley, Const. Lira. 595; Mobile County v. Kimball, 102 U. 8. 697. 26 L. ed. 
 239; Wilson v. McNamce, 102 U. S. 572. 26 L. ed. 234; Wilson v. Black Bird 
 Creek Marsh Co. 27 U. S. 2 Pet. 245, 7 L. ed. 412; Pound v. Turck, 95 U. 
 S. 459, 24 L. ed. 525; Turner v. Maryland, 107 U. S. 38, 27 L. ed. 370; 
 Morgan's L. & T. E. <& SS. Co. v. Louisiana Board of Health, 118 U. S. 455, 
 30 L. ed. 237. 
 
 * Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. 
 Com. Rep. 882; P/iiladeljMa & S. M. SS. Co. v. Pennsylvania, 122 U. S. 326, 
 30 L. ed. 1200, 1 Inters. Com. Rep. 308; Bobbins v. Slielby County Taxing 
 Hist. 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45; Bowman v. Chi- 
 cago & N. W. E. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823.
 
 rOWER TO REGULATE COMMERCE. 487 
 
 nierce between the states, has been sustained upon the ground, 
 either that the particular statute upon its face appeared to have 
 been passed for the purpose of expeditinor the safe transportation 
 of persons and property, or in the exercise of poUce powers, 
 which it is more convenient to leave subject to local legislation ; 
 such as the building of bridges over inland navigable streams. 
 Where the manifest tendency of enforcing such laws has been, as 
 far as could be foreseen from their terms, to impede the free and 
 expeditious conduct of commerce over interstate lines by land or 
 water, they have been declared repugnant to the organic law, and 
 void, even where Congress had failed to legislate on the branch 
 of the subject to which thay relate. The futile attempts by state 
 legislatures either to give exclusive privileges to a particular tele- 
 graph company, or to subject telegraph companies generally to 
 such license tax or tax on messages as would imply the right to 
 destroy their business by burdening them with such imposts, il- 
 lustrates the view that where Congress has not exercised a police 
 power comprehended under the general authority to regulate 
 commerce, the states may exercise the power to aid, but not to 
 impede or obstruct it.* 
 
 In Western U. Teleg. Co. v. Fendleton, 122 IJ. S. 358, 30 L. 
 ed, 1189, 1 Inters. Com. Rep. 306, Justice Field says: "In these 
 cases, the supreme authority of Congress over the subject of com- 
 merce by the telegraph with foreign countries or among the states 
 is affirmed, whenever that body chooses to exert its power ; and 
 it is also held that the state can impose no impediments to the 
 freedom of that commerce.'" In Walling v. Michigan, 116 U. 
 S. 446, 29 L. ed. 691, Justice Bradley, speaking for the court, 
 says : " We have repeatedly held that so long as Congress does 
 not pass any law to regulate commerce among the several states 
 it thereby indicates that such commerce shall be free and untram- 
 meled." ''' When we come, therefore, to the application of the 
 authorities to a state statute, the question arises at the threshold 
 
 ^Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1. 24 L. ed. 708: West- 
 ern IT. Tdecj. Co. V. Texas, 105 U. S. 460, 26 L. ed. 10G7; Leloup v. Mobile, 
 127 U. 8. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134. 
 
 '■Brown v. Houston, 114 U. S. 631, 29 L. ed. 260.
 
 488 INTERSTATE AND STATE COMMEKCE. 
 
 of the inquiry whether the statute which is drawn in question 
 would, in its enforcement, tend to trammel or obstruct the trade 
 carried on between the states, and not whether it might not re- 
 motely influence it.' The control of navigable waters constituting 
 channels of communication between states and foreign countries 
 is within the commercial power of Congress f and navigable 
 waters of the United States are those which form by themselves, 
 or by uniting with others, a continuous highway for commerce 
 with other states.' 
 
 The Congress of the United States, being empowered by the 
 Constitution to regulate commerce among the several states, and 
 to pass all laws necessary or proper for carrying into execution 
 any of the powers specifically conferred, may make use of any 
 appropriate means for this end. As said by Chief Justice Mar- 
 shall, " The power of creating a corporation, though appertaining 
 to sovereignty, is not, like the power of making war, or levying 
 taxes, or of regulating commerce, a great substantive and inde- 
 pendent power, which cannot be implied as incidental to other 
 powers, or used as a means of executing them. It is never the 
 end for which other powers are exercised, but a means by which 
 other objects are accomplished." Congress, therefore, may cre- 
 ate corporations as appropriate means of executing the powers of 
 government, as, for instance, a bank for the purpose of carrying 
 on the fiscal operations gf the United States, or a railroad corpo- 
 ration for the purpose of promoting commerce among the states." 
 Congress has likewise the power, exercised early in this century 
 by successive acts in the case of the Cumberland or National 
 Road from the Potomac across the Alleghenies to the Ohio, to 
 
 1 Bagg v. Wilmington, C. & A. R. Co. 14 L. R. A. 596, 109 N. C. 279. 
 
 2 Southern S. S. Co. v. New Orleans Port Wardens, 73 U. S. 6 Wall. 31, 18 L. 
 
 ed. 749; Gloucester Ferry Co. v. Pennsylvania, 114 V. S. 196, 29 L. ed. 158, 
 
 1 Inters. Com. Rep. 382; Bowman v. Chicago & N. W. R. Co. 125 U. S. 
 
 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823. 
 2 Cited in Decker v. Baltimore & N. ¥. R. Go. 1 Inters. Com. Rep. 434, 30 
 
 Fed. Rep. 723. 
 *McCulloch V. Maryland, 17 U. S. 4 Wheat. 316, 411, 422, 4 L. ed. 579, 602, 
 
 605; Oi^horny. Bank of United States, 22 U. S. 9 Wheat. 738, 861, 873, 6 L. 
 
 ed. 204, 233, 236; Union Pac. R. Co. v. Myers {" Pac. R. Removal Cases") 
 
 115 U. S. 1. 18, 29 L. ed. 319, 325; California v. Central Pac. R. Co. 127 
 
 U. 8. 1, 32 L. ed. 150, 2 Inters. Com. Rep. 153.
 
 I'OWKK TO itKtji L LATE OOMMEKCE. 489 
 
 authorize the construction of a puLlic liighway connecting several 
 states.' And whenever it becomes necessary for the accomplish- 
 ment of any object within the authority of Couf^ress, to exercise 
 the right of eminent domain and take priv^ate lands, making just 
 compensation to the owners, Congress may do this with or with- 
 out a concurrent act of the state in which the lands lie.^ From 
 these premises the conclusion appears to be inevitable that, al- 
 though Congress may, if it sees fit and as it has often done, recog- 
 nize and approve bridges erected by authority of two states across 
 navigable waters between them, it may, at its discretion, use its 
 sovereign powers, directly or through a corporation created for 
 that object, to construct bridges for the accommodation of inter- 
 state commerce by land, as it undoubtedly may to improve the 
 na violation of rivers for the convenience of interstate commerce 
 by water,' Where states have concurrent powers with Congress, 
 the passage of an Act by Congress, on the subject, suspends prior 
 statutes on that subject enacted by the state, during the continu- 
 ance of the Congressional Act." Even though a statute be passed 
 in the exercise of the police power, where it comes within the 
 domain of Federal authority, as defined by the Constitution, the 
 latter must prevail." The judicial opinions sometimes cited in 
 support of the opposite view are not, having regard to the facts 
 of the cases in which they were uttered, of controlling weight. 
 
 Mr. Justice McLean, indeed, in an opinion delivered by him 
 in the circuit court, by which a bill by the United States to re- 
 strain the construction of a bridge across the Mississippi river was 
 
 • See Indiana v. United States, 148 U. S. 148, 37 L. ed. 401. 
 
 « Van BrockUn v. Anderson, 117 U. S. 151, 154, 29 L. ed. 845. 846, and cases 
 
 cited; Cherokee Nation v. Southern Kansas E. Co. 135 U. S. 641, 656, 34 L. 
 
 ed. 295, 301. 
 » 1 Hare, Const. Law, 248. 249. See Acts of July 14, 1862, chap. 167 (12 
 
 Stat, at L. 569); February 17, 1865, chap. 38 (IB Stat, at L. 431); July 25, 
 
 1866, chap. 246 (14 Stat, at L. 244); March 3. 1871, chap. 121, § 5 (16 Stat. 
 
 at L. 572, 573); June 16, 1886, chap. 417 (24 Stat, at L. 78). 
 *Boedefeld v. Reed, 55 Cal. 299; Sturgesv. CroicninsMeld, 17 U. S. 4 Wheat. 
 
 196, 4 L. ed. 548; Van Nostrand v. Carr, 30 Md. 128, 2 Nat. Bankr. Reg. 
 
 155. 
 » Gibbons v. Ogden, 22 U. S. 9 Wheat. 210, 6 L. ed. 73; Henderson v. Wickham, 
 
 92 U. S. 259, 23 L. ed. 543; New Orleans Oas Light Co. v. LouUiana Light 
 
 &H. P. <& Mfg. Co. 115 U. S. 650, 29 L. ed. 516.
 
 490 INTERSTATE AND STATE COMMEKCE. 
 
 dismissed, no injury to property of the United States and no sub- 
 stantial obstruction to navigation being sliown, and there having 
 been no legislation by Congress upon the subject, took occasion 
 to remark that " neither under the commercial power, nor under 
 the power to establish f>ost roads, can Congress construct a bridge 
 over navigable water ;" that " if Congress can construct a bridge 
 over navigable water, under the power to regulate commerce or 
 to establish post roads, on the same principle it may make turn- 
 pike or railroads throughout the entire country ;" and that " the 
 latter power has generally been considered as exhausted in the 
 designation of roads on which the mails are to be transported ; 
 and the former by the regulation of commerce upon the high 
 seas and upon our rivers and lakes." ' The same learned justice 
 repeated and enlarged upon that idea in his dissenting opinion in 
 Pennsylvania v. Wheeling c& B. Bridge Co. 59 U. S. 18 How. 
 421, 442, 443, 15 L. ed. 435, 442, where, after the Wlieeling 
 bridge, constructed across the Oliio river under an act of the 
 state of Virginia, had by a decree of the court, at the suit of the 
 state of Pennsylvania, been declared to be in its then condition 
 an unlawful obstruction of tlie navigation of the river, and in 
 conflict with the acts of Congress regulating such navigation, and 
 therefore ordered to be elevated or abated. Congress passed an 
 Act, declaring the bridge to be a lawful structure in its then po- 
 sition and elevation, establishing it as a post road for the passage 
 of the mails of the United States, authorizing the corporation to 
 have and maintain the bridge at that cite and elevation, and re- 
 quiring the captains and crews of all vessels and boats navigating 
 the river to regulate the use thereof, and of any pipes or chim- 
 neys belonging thereto, so as not to interfere w^tli the elevation 
 and construction of the bridge.'' But the majority of the Su- 
 preme Court of the United States in that case held that " the Act 
 of Congress afEorded full authority to the defendants to recon- 
 struct the bridge." Mr. Justice Nelson, in delivering its opinion, 
 said : " We do not enter upon the question, whether or not Con- 
 gress possess the power, under the authority in the Constitution 
 
 ' United States v. Railroad Bridc/e Co. 6 McLean, 517, 534, 525. 
 » Act of August 31. 1853, chap. Ill, g§ 6, 7 (10 8tat. at L. 113).
 
 POWiiU TO EEUULATE COMMERCE. 491 
 
 to establish postoffices and post roads, to le<^alize this brido^e ; 
 for conceding that no such powers can be derived from this 
 clause, it must be admitted that it is, at least necessarily included 
 in the power conferred to regulate commerce among the several 
 states. The regulation of commerce includes intercourse and 
 navigation, and of course, the power to determine what shall or 
 chall not be deemed in judgment of law an obstruction to naviga- 
 tion ; and that power, as we have seen, has been exercised con- 
 sistently with the continuance of the bridge." And Mr. Justice 
 Daniel, in a concurring opinion, sustaining the validity of the 
 Act of Congress, said : " They have regulated this matter upon 
 a scale by them conceived to be just and impartial, with reference 
 to that commerce which pursues the course of the river, and to 
 that which traverses its channel, and is broadly diffused through 
 the country. They have at the same time, by what they have 
 done, secured to the government, and to the public at large, the 
 essential advantage of a safe and certain transit over the Ohio." ' 
 In the cases of The Passaic Bridges, 3 Wall. appx. T82, de- 
 cided by Mr. Justice Grier in the circuit court, and of Gilman 
 V. PMladelphia, TO U. S. 3 Wall. 713, 18 L. ed. 96, 2,xxdiWright 
 V. Nagle, iCil U. S. 791, 25 L. ed. 921, the bridge in question had 
 been erected under authority of a state and was wholly within the 
 state, and no question arose, or was considered, as to the power 
 of Congress, in regulating interstate commerce, to authorize the 
 erection of bridges between two states. But in Stocldon v. Bal- 
 timore i& A" r. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. Rep. 9, 
 Mr. Justice Bradley, sitting in the circuit court, upheld the con- 
 stitutionality of the Act of Congress of June 16, 1886, chap. 417, 
 authorizing a corporation of Xew York and one of j^ew Jersey 
 to build and maintain a bridge, as therein directed across tlie 
 Staten Island Sound or Arthur Kill.' The reasons upon which 
 the decision in that case rested were, in substance, the same as 
 were stated by that eminent judge in two opinions afterwards de- 
 
 »59 U. S. 18 How. 431, 436, 458, 15 L. ed. 437, 439. 448. A similar decision 
 was made in Oray v. Chicnqn, I. & N. R. Co. {'•The Clinton Bridge") 77 U. 
 S. 10 Wall. 454, 19 L. ed. 9(39. See also Milier v. New York, 109 U. S. 385, 
 27 L. ed. 971. 
 
 ^24 Stat, at L. 73.
 
 492 lilTERSTATE AMD STATE COMMEKCE. 
 
 livered bj liim in belialf of the court, in which the power of 
 Congress, by its own legislation, to confer original authority to 
 erect bridges over navigable waters, whenever Congress consid- 
 ers it necessary to do so to meet the demands of interstate com- 
 merce by land, is so clearly demonstrated, as to render further 
 discussion of the subject superfluous. In Willamette Iron Bridge 
 Co. V. Hatch, 125 U. S. 1, 31 L. ed. 629, in which it was held 
 that section 2 of the Act of February 14, 1859, chap. 33 (11 Stat, 
 at L. 383) for the admission of Oregon into the Union, providing 
 that " all the navigable waters of the said state shall be common 
 highways, and forever free, as well to the inhabitants of said state 
 as to all other citizens of the United States," did not prevent the 
 state, in the absence of legislation by Congress, from authorizing 
 the erection of a bridge over such a river. Mr. Justice Bradley, 
 speaking for the whole court, said : " And although, until Con- 
 gress acts, the states have the plenary power supposed, yet, when 
 Congress chooses to act, it is not concluded by an^^thing that the 
 states, or that individuals by its authority or acquiescence, have 
 done, from assuming entire control of the matter, and abating 
 any erections that may have been made, and preventing any oth- 
 ers from being made, except in conformity with such regulations 
 as it may impose. It is for this reason, namely, the ultimate 
 (though yet unexerted) power of Congress over the whole sub- 
 ject-matter, that the consent of Congress is so frequently asked 
 to the erection of bridges over navigable streams. It might itself 
 give original authority for the erection of such bridges, when 
 called for by the demands of interstate commerce by land ; but, 
 in many, perhaps the majority of cases, its assent only is asked, 
 and the primary authority is sought at the hands of the state." 
 In California v. Ce7itral Pac. R. Co. 127 U. S. 1, 32 L. ed. 150, 
 2 Inters. Com. Kep. 153, it was directly adjudged that Congress 
 has authority, in the exercise of its power to regulate commerce 
 among the several states, to authorize corporations to construct 
 railroads across the states, as well as the territories of the United 
 States ; and Mr. Justice Bradley, again speaking for the court, 
 and referring to the acts of Congress establislnng corporations to 
 build railroads across the continent, said : " It cannot at the pres-
 
 POWKK TO KEGULATE COMMEKCE. 4V)3 
 
 ent daj be don1)tcd that Congress, under the power to regulate 
 commerce among the several states, as well as to provide for 
 postal accommodations and military exigencies, had authority to 
 pass these laws. The power to construct, or to authorize individ- 
 uals or corporations to construct, national highways and bridges 
 from state to state, is essential to the complete control and regu- 
 lation of interstate commerce. Without authority in Congress to 
 establish and maintain such highways and bridges, it would be 
 without authority to regulate one of the most important adjuncts 
 of commerce. This power in former times was exerted to a very 
 limited extent, the Cumberland or National road being the most 
 notable instance. Its exertion was but little called for, as com- 
 merce was then mostly conducted by water, and many of our 
 statesmen entertained doubts as to the existence of the power to 
 establish ways of communication by land. But since, in conse- 
 quence of the expansion of the country, the multiplication of its 
 products, and the invention of railroads and locomotion by steam, 
 land transportation has so vastly increased, a sounder considera- 
 tion of the subject has prevailed, and led to the conclusion that 
 Congress has plenary power over the whole subject. Of course, 
 the authority of Congress over the territories of the United States, 
 and its power to grant franchises exercisible therein, are, and ever 
 have been, undoubted. But the wider power was very freely ex- 
 ercised, and much to the general satisfaction, in the creation of 
 the vast system of railroads connecting the east with the Pacific, 
 traversing states as well as territories, and employing the agency 
 of state as well as Federal corporations." An Act of Congress 
 declares the construction of the North River Bridge between the 
 states of New York and New Jersey to be " in order to facilitate 
 interstate commerce ; " and it makes due provision for the con- 
 demnation of lands for the construction and maintenance of the 
 bridge and its approaches, and for just compensation to the own- 
 ers. In the light of the foregoing principles and authorities the 
 court sustained the constitutionality of this Act.' 
 
 ' Luxton V. North River Bridge Co. 147 U. S. 337, 37 L. ed. 194.
 
 494 INTERSTATE AND STATE COMMERCE. 
 
 %107. State Regulations Affecting Cojmnon Car- 
 riers. 
 
 The power of Congress over commerce between the states and 
 the cori'csponding power of individual states over such commerce 
 have been the subject of such frequent adjudication in the Ignited 
 States Supreme Court, and the relative powers of Congress and 
 the states with respect thereto are so well defined, that each case, 
 as it arises, must be determined upon principles already settled, as 
 falling on one side or the other of the line of demarkation be- 
 tween the powers belonging exclusively to Congress, and those 
 in which the action of the state may be concurrent. The adju- 
 dications of the court with respect to the power of the states over 
 the general subject of commerce are divisible into three classes. 
 First, those in which the power of the state is exclusive ; second, 
 those in which the states may act in the absence of legislation by 
 Congress ; third, those in which the action of Congress is exclusive- 
 and the states cannot interfere at all. 
 
 The first class, including all those wherein the states have plen- 
 ary power, and Congress has no right to interfere, concern the 
 strictly internal commerce of the state, and while the regulations 
 of the state may affect interstate commerce indirectly, their bear- 
 ing upon it is so remote that it cannot be termed in any just sense 
 an intei'ference. Under this power, the states may authorize the 
 construction of highways, turnpikes, railways, and canals between 
 points in the same state, and regulate the tolls for the use of the 
 same/ and may authorize the building of bridges over non-navi- 
 gable streams, and otherwise regulate the navigation of the strictly 
 internal waters of the state — such as do not, by themselves or by 
 connection with other waters, form a continuous highway over 
 which commerce is or may be carried on with other states or 
 foreign countries.^ This is true notwithstanding the fact that the 
 goods or passengers carried or traveling over such highway be- 
 
 ' Baltimore & 0. R. Co. v. Maryland, 88 U. 8. 21 Wall. 456, 22 L. ed. 678. 
 2 Veazie v. Moor, 55 U. S. 14 How. 568, 14 L. ed. 545; United States v. The 
 
 Montello, 78 U. S. 11 Wall. 411, 20 L. ed. 191, 87 U. S. 20 Wall. 430. 22 K 
 
 ed. 391.
 
 STATE REGULATIONS AFFECTING COMMON CARRIERS. 495 
 
 tween points in the same state may ultimately be destined for 
 other states, and, to a slight extent, the state regulations may be 
 said to interfere with interstate connnerce. The states may also 
 exact a bonus, or even a portion of the earnings of such corpora- 
 tion, as a condition to the granting of its charter.' 
 
 Congress has no j)ovver to interfere with police regulations re- 
 lating exclusiv^ely to the internal trade of the states ; " nor can it 
 by exacting a tax for carrying on a certain business thereby au- 
 tliorize such business to be carried on within the limits of a state.' 
 The remarks of the Chief Justice in this case contain the sub- 
 stance of the whole doctrine: "Over this" (the internal) "com- 
 merce and trade, Congress has no power of regulation nor any 
 direct control. This power belongs exclusively to the states. No 
 interference by Congress with the business of citizens transacted 
 within a state is warranted by the Constitution, except such as is 
 strictly incidental to the exercise of powers clearly granted to the 
 legislature. The power to authorize a business within a state is 
 plainly repugnant to the exclusive power of the state over the 
 same subject." 
 
 It was at one time thought that the admiralty jurisdiction of 
 the United States did not extend to contracts of affreightment 
 between ports of the United States, though the voyage were per- 
 formed upon navigable waters of the United States." But later ad- 
 judications have ignored this distinction as applied to those waters.* 
 
 Under this power the states may also prescribe the form of all 
 commercial contracts, as well as the terms and conditions upon 
 which the internal trade of the state may be carried on.* 
 
 ^Society for Savings v. Coite, 73 U. S. 6 Wall. 594, 18 L. ed. 897; Providmt 
 Inst, for Savings v. MasmcluiKelts, 73 U. S. 6 W=ill. 611, 18 L. ed. 907 
 Hamilton Mfg. Co. v. Mas.-^ar-ItyxMs, 73 U. S. 6. Wall. 633. 18 L. ed. 904 
 Baltimore <& 0. R. Go. v. Marylaad, 88 U. S. 21 Wall. 450, 23 L. ed. 678 
 Ashley V. liyan, 153 U. S. 436, 38 L. ed. 773. 
 
 « United Slates v. De Witt, 76 U. S. 9 Wall. 41, 19 L. ed. 593; Patterson v. 
 Kentucky, 97 U. S. 501. 24 L. ed. 1115. 
 
 3 License Tax Cases, 72 U. S. 5 Wall. 4G3, 18 L. ed. 497. 
 
 * Allen V. Newberry, 62 U. 8. 21 How. 244. 16 L. ed. 110. 
 
 « The Belfast v. Boon, 74 U. S. 7 Wall. 634, Oil, 19 L. ed. 2G6. 271; Rodd v. 
 Heartt'i" The Lottawanna"), 88 U. S. 21 Wall. 5r)S, 587. 23 L. ed. 654, 665; 
 Lord V. Ooodall, N. & P. SS. Co. 103 U. S. 541, 26 L. ed. 224. 
 
 6 Trade Mark Cases, 100 U. S. 83, 25 L. ed. 550.
 
 496 INTERSTATE AND STATE COMMERCE. 
 
 Within the second class of cases — those of what may be termed 
 concurrent jurisdiction — are embraced laws for the regulation of 
 pilots ; ' quarantine and inspection laws and the policing of har- 
 bors ; " the improvement of navigable channels ; * the regulation of 
 wharfs, piers, and docks;* the construction of dams and bridges 
 across the navigable waters of a state," and the establishment of 
 ferries/ 
 
 Of this class of cases it was said by Mr. Justice Curtis f " If it 
 were admitted that the existence of this power in Congress, like 
 the power of taxation, is compatible with the existence of a sim- 
 ilar power in the states, then it would be in conformity with the 
 contemporary exposition of the Constitution, and with the judi- 
 cial construction, given from time to time by this court, after the 
 most deliberate consideration, to hold that the mere grant of such 
 a power to Congress did not imply a prohibition on the states to 
 exercise the same power ; that it is not the mere existence of such 
 a power, but its exercise by Congress, which may be incompatible 
 with the exercise of the same power by the states, and that the 
 states may legislate in the absence of Congressional regulations." " 
 
 • Cooley V. Philadelphia Port Wardens, 53 U. 8. 12 How. 299, 13 L. ed. 996; 
 
 PaeiiiG Mail S8. Co. v. JoUffe, 69 U. S. 2 Wall. 450, 17 L. ed. 805; Ex parte 
 
 McNiel, 80 U. S. 13 Wall. 236, 20 L. ed. 624; Wilson v. McNamee, 102 U. 8. 
 
 572, 26 L. ed. 234. 
 5 Oihhom V. Ogden, 22 U. 8. 9 Wheat. 1, 203, 6 L. ed. 23, 71; New York v. 
 
 Miln, 36 U. 8. 11 Pet. 102, 9 L. ed. 648; Turner v. Maryland, 107 U. 8. 38, 
 
 27 L. ed. 370; Morgan's L. & T. R. & 88. Go. v. Louisiana Board of Health, 
 
 118 U. 8. 455, 30 L. ed. 237. 
 ^Mobile Gotmty v. Kimball. 102 U. 8. 691, 26 L. ed. 238; Escanaba <& L. M. 
 
 Transp. Co. v. Chicago, 107 U. 8. 678, 27 L. ed. 442; Huse v. Qlover, 119 U. 
 
 8. 543. 30 L. ed. 487. 
 
 4 Gannon v. New Orleans, 87 U. 8. 20 Wall. 577, 22 L. ed. 417; Keokuk N. L. 
 
 Packet Co. v. Keokuk, 95 U. 8. 80, 24 L. ed. 377; Northwestern JJ. Packet 
 Co. V. 8t. Louis, 100 U. 8. 423, 25 L. ed. 688; Cincinnati, P. B. 8. & P. 
 Packet Co. v. Gatlettsburg , 105 U. 8. 559, 26 L. ed. 1169; Pittsburg & 0. R. 
 Tramp. Go. v. Parkersburg, 107 U. 8. 691, 27 L. ed. 584; Ouachita & M. R. 
 Packet Co. v. Aiken, 121 U. 8. 444, 30 L. ed. 976, 1 Inters. Com. Rep. 379. 
 
 5 Wilson V. Black Bird Greek Marsh Co. 27 U. 8. 2 Pet. 245, 7 L. ed. 412; Card- 
 well V. American River Bridge Co. 113 U. 8. 205, 28 L. ed. 959; Pound v. 
 Turck, 95 U. 8. 459, 24 L. ed. 525. 
 
 « Conway v. Taylor, 66 U. 8. 1 Black, 603, 17 L. ed. 191. 
 
 •' Cooley V. Philadelphia Port Wardens, 53 U. 8. 12 How. 299, 318, 13 L. ed. 
 
 996," 1004. 
 « See also 8lurge8 v. Crowninshield, 17 U. 8. 4 Wheat. 192, 193, 4 L. ed. 547, 
 
 548.
 
 STATE KEGULATI0N3 AFFECTING COilMON CAKKIERS. 497 
 
 But even in the matter of building a bridge, if Congress chooses 
 to act, its acting necessarily supersedes the action of the state.* 
 As matter of fact, the building of bridges over waters dividing 
 two states is now usually done by Congressional sanction. Under 
 this power the states may also tax the instruments of interstate 
 commerce as it taxes other similar property, provided such tax 
 be not laid upon the commerce itself. 
 
 But wherever such laws, instead of being of a local nature and 
 not affecting interstate commerce but incidentally, are national in 
 their character, the non-action of Congress indicates its will that 
 such commerce shall be free and untrammelled, and the case falls 
 within the third class — of those laws wherein the jurisdiction of 
 Congress is exclusive.* Subject to the exceptions above specified, 
 as belonging to the first and second classes, the states have no 
 right to impose restrictions, either by way of taxation, discrimina- 
 tion, or regulation, upon commercj between the states. That, 
 while the states have the right to tax the instruments of such 
 <;ommerce as other property of like description is taxed, under 
 the laws of the several states, they have no right to tax such com- 
 merce itself, is too M-ell settled even to justify the citation of au- 
 thorities. The proposition was first laid down in Crandall v. 
 Nevada, 73 U. S. 6 Wall. 35, 18 L. ed. 745, and has been steadily 
 adhered to since. That such power of regulation as they possess 
 is limited to matters of a strictly local nature, and does not extend 
 to fixing tariffs upon passengers or merchandise carried from one 
 state to another, is also settled by more recent decisions, although 
 it must be admitted that cases upon this point have not always 
 been consistent. 
 
 The question of the power of the states to lay down a scale of 
 ■charges, as distinguished from their power to impose taxes, was 
 first squarely presented to the court in Mann v. Illinois, 94 U. 
 <S. 113, 24 L. ed. 77, in which a power was conceded to the state 
 to prescribe regulations and fix the charges of elevators used for 
 
 ^ Pennsylvania V. Wheeling & B. Bridge Co. 59 U. S. 18 How. 421, 15 L. ed. 
 
 435. 
 ■'Brown v. Houston, 114 U. 8. 622, 29 L. ed. 257; Bowman v. Chicago <£• N. 
 
 W. B. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823. 
 
 32
 
 498 INTERSTATE AND STATE COMMEKOE. 
 
 the reception, storage, and delivery of grain, notwithstanding- 
 such elevators were used for the storage of grain destined for 
 other states. The decision was put upon the ground that eleva- 
 tors were property "affected with a public interest," and that 
 from time immemorial in England, and in this country from its 
 first colonization, it had been customary to regulate ferries, com- 
 mon carriers, hackmen, bakers, millers, wharfingers, innkeepers, 
 etc., and in so doing to fix a maximum of charge to be made for 
 services rendered, accommodations furnished, and articles sold. 
 That the decision does not necessarily imply a power in the states 
 to prescribe similar regulations with regard to railroads and other 
 corporations directly engaged in interstate commerce is evident 
 from the remarks of the Chief Justice in delivering the opin- 
 ion of the court : " The warehouses of these plaintiffs in error 
 are situated and their business carried on exclusively within the 
 limits of the state of Illinois. They are used as instruments by 
 those engaged in state as well as those engaged in interstate com- 
 merce, but they are no more necessarily a part of commerce than 
 the dray or the cart by which but for them grain would be trans- 
 ferred from one railroad station to another. Incidentally they 
 may become connected with interstate commerce, but not neces- 
 sarily so. Their regulation is a thing of domestic concern, and 
 certainly, until Congress acts in reference to their interstate rela- 
 tions, the state may exercise all the powers of government over 
 them, even though in so doing it may operate upon commerce 
 outside its immediate jurisdiction." ' 
 
 In the next case, viz, that of the Chicago^ B. & Q. R. Co. v. 
 Iowa, 94 U. S. 155, 24 L. ed. 94, was a bill filed by the Chicago, 
 Burlington & Quincy Kailroad Company, an Illinois corporation, 
 to restrain the prosecution of suits against it under " An act to 
 establish reasonable maximum rates of charges for the transporta- 
 tion of freight and passengers on the different railroads of this 
 state." The complainant was also the lessee of the Burlington & 
 
 ' Tlie principle of this case has been recently affirmed in Budd v. Neic York, 
 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, and reaffirmed in 
 Brass V. North Dakota, 153 U. S. 391, 38 L. ed. 757, though not without 
 strong opposition from a minority of the court.
 
 STATE REGULATIONS AEFECTING COMMON OAKBIERS. 499 
 
 Missouri Railroad in Iowa, the two roads being connected by a 
 bridge which crossed the Mississippi river at Burlington, thus 
 making a continuous raih'oad from Chicago to Platsmouth on the 
 Mississippi river, in Iowa. Tlie case was held to be covered by 
 Munn V. Illinois, the road, like the warehouse in that case, be- 
 ing situated within the limits of a single state. " Its business," 
 said the Chief Justice, "is carried on there, and its regulation is a 
 matter of domestic concern. It is employed in state as well as in- 
 terstate commerce, and, until Congress acts, the state must be 
 permitted to adopt such rules and regulations as may be necessary 
 for promotion of the general welfare of the people within its own 
 jurisdiction, even though in so doing those without, may be indi- 
 rectly affected." In short, the case was treated as one of internal 
 commerce only. 
 
 In the next case, viz, Peih v. Chicago <& iT. W. R. Co. 9i TJ. 
 S. 16J-, 24 L. ed. 97, it was held that under the constitution of 
 Wisconsin, providing that all acts creating corporations within the 
 state " may be altered or repealed by the legislature at any time 
 after their passage," the legislature had a right to prescribe a 
 maximum of charges to be made by the Chicago & Northwestern 
 Railway Company for transporting persons or property within 
 the state, or taken up outside the state and brought within it, or 
 taken up inside and carried without. The vital question is not 
 discussed at any length, but it was held that, until Congress acted 
 with reference to the relations of this company to interstate 
 commerce, it was within the power of the state of Wisconsin to 
 regulate its affairs so far as they were of a domestic concern. 
 These three cases were cited with approval in Rwjgles v. Illinois, 
 108 U. S. 526, 27 L. ed. 812, in which the power of a state to 
 limit the amount of charges by a railroad company for fares and 
 freight was recognized. 
 
 A similar principle, though under quite a different state of 
 facts, was involved in Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 
 547, which concerned an act of the legislature of Louisiana, re- 
 quiring those engaged in the transportation of passengers among 
 the states to give all persons traveling within that state, upon 
 vessels employed in such business, equal rights and privileges in
 
 500 INTEESTATE AND STATE COMMERCE. 
 
 parts of the vessel, without distinction on account of race or color. 
 The act was held to be a regulation of interstate commerce, and, 
 therefore, unconstitutional and void. In Stone v. Farmers Loan 
 (& T. Co. {^'Railroad Commission Cases'') 116 U. S. 307, 29 L. 
 ed. 636, it was held that the right of a state to limit the charges 
 of a railroad company for the transportation of persons or prop- 
 erty within its jurisdiction could not be granted away by its legis- 
 lature unless by words of positive grant or words equivalent in 
 law ; and that a statute which granted to a railroad company the 
 right from time to time to fix and regulate the tolls and cliarges 
 by them to be received for transportation did not deprive the 
 state of its power to act upon the reasonableness of the tolls and 
 charges so fixed and regulated. It was held that the state might, 
 "beyond all question, by the settled rule of decision in this court, 
 regulate freights and fares for business done exclusively within 
 the state, and it would seem to be a matter of domestic concern 
 to prevent the company from discriminating against persons and 
 places in Mississippi." " Nothing can be done by the govern- 
 ment of Mississippi which will operate as a burden on the inter- 
 state business of the company or impair the usefulness of its 
 facilities for interstate traffic. . . . The commission is in ex- 
 press terms prohibited by the Act of March 15, 1884, from inter- 
 fering with the charges of the company for the transportation of 
 persons or property through Mississippi from one state to another. 
 The statute makes no mention of property taken up without the 
 state and delivered within, nor of such as may be taken within 
 and carried without." The court studiously avoided committing 
 itself upon the question of the power of the commission over in- 
 terstate commerce. 
 
 The prior cases were all reviewed, and the subject exhaustively 
 considered in the Wahash, St. L. & P. R. Co. v. Illinois, 118 
 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Kep. 31, in which there 
 came under review a statute of Illinois enacting that if any railroad 
 company should, within that state, charge or receive for transporting 
 passengers or freight of the same class the same or a greater sum for 
 any distance than it does for a longer distance, it should be liable 
 to a penalty for unjust discrimination. The defendant in that
 
 STATE REGULATIONS AFFECTING COMMON CARRIERS. 501 
 
 case made snch discrimination in regard to goods transported over 
 the same road or roads, from Peoria, Illinois, and from Gilman, 
 in Illinois, to JNew York ; charging more for the same class of 
 goods carried from Gilman than from Peoria, the former being 
 86 miles nearer the city of 'New York than the latter, this differ- 
 ence being in the length of line in the state of Illinois. The court 
 held that such transportation was commerce among the states, 
 even as to that part of the voyage which lay within the state of 
 Illinois, and that the regulation of such commerce was confided 
 to Congress exclusively, under its power to regulate commerce 
 between the states, and that the statute in question, being in- 
 tended to regulate the transmission of persons or property from 
 one state to another, was not within that class of legislation which 
 the states may enact in the absence of legislation by Congress. 
 In delivering the opinion of the court Mr. Justice Miller cited 
 the prior cases, and said that it must be admitted that, in a gen- 
 eral way, the court treated the cases then before it as belonging 
 to that class of regulations of commerce, which, like pilotage, 
 bridging navigable rivers, and many others, could be acted upon 
 by the states in the absence of any legislation by Congress upon 
 the same subject. He further observed that " the great question 
 to be decided, and which was decided, and which was argued in 
 all those cases, was the right of the state in which the railroad 
 company did business to regulate or limit the amount of any of 
 these' traffic charges. The importance of that question over- 
 shadowed all others ; and the case of Jftmn v. Illinois was se- 
 lected by the court as the most appropriate one in which to give 
 its opinion on that subject, because that case presented the ques- 
 tion of a private citizen, or unincorporated partnership, engaged 
 in the warehouse business of Chicago, . . . free from the 
 question of continuous transportation through the several states, 
 . . . and the question how far a charge made for a continuous 
 transportation over several states, which included a state whose 
 laws were in question, may be divided into separate charges for 
 each state, in enforcing the power of the states to regulate the 
 fares of its railroads, was evidently not fully considered." The 
 substance of the opinion was that, if the prior cases were to be
 
 502 INTERSTATE AND STATE COMMERCE. 
 
 considered as laying down the principle that the states might 
 regulate the charges for interstate traffic, they must be considered 
 as overruled.' In none of the subsequent cases has any disposition 
 been shown to limit or qualify the doctrine laid down in the 
 Wabash case, and to that doctrine the Supreme Court of the 
 United States still adheres." 
 
 The real question involved in the case last cited, is whether the 
 case had been distinguished from the Wabash case. That in- 
 volved the right of a single state to fix the charge for transporta- 
 tion from the interior of such state to places in other states. The 
 case the court last considered involves the right of one state to 
 fix charges for the transportation of persons and property over a 
 bridge connecting it with another state, without the assent of 
 Congress or such other state, and thus involving the further in- 
 quiries, first, whether such traffic across the river is interstate 
 commerce ; and, second, whether a bridge can be considered an 
 instrument of such commerce. 
 
 The first question is answered in the affirmative upon the au- 
 thority of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 
 29 L. ed. 158, 1 Inters. Com. Rep. 382, in which the state of 
 Pennsylvania attempted to tax the capital stock of a corporation 
 whose entire business consisted in ferrying passengers and freight 
 over the river Delaware between Philadelphia, in Pennsylvania, 
 and Gloucester, in New Jersey. This traffic was held to be in- 
 terstate commerce, and, inasmuch as it appeared that the "ferry 
 boats were registered in New Jersey, and were taxable there, it 
 was held that there was no property held by the company which 
 could be the subject of taxation in Pennsylvania, except the lease 
 of a wharf in that state. " Congress alone," said the court (p. 
 204) " therefore, can deal with such transportation ; its non-action 
 is a declaration that it shall remain free from burdens imposed l)y 
 state legislation. Otherwise, there would be no protection against 
 conflicting regulations of different states, each legislating for its 
 
 » See also Bowman v. Chicago d iV. W. B. Co. 125 U. S. 465, 31 L. ed. 700, 1 
 Inters. Com. Rep. 823. 
 
 2 The Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, de- 
 cided May 26, 1894.
 
 STATE REGULATIONS AFFECTING COMMON CAKKIERS. 503 
 
 own interests and products and against those of other states." If, 
 as was intimated in that ease, interstate commerce means simply 
 commerce between the states, the courts declare, that it must ap- 
 ply to all commerce which crosses the state line, regardless of the 
 distance from which it comes or to which it is bound, before or 
 after crossing such state line — in other words, if it be commerce 
 to send goods from Cincinnati, in Ohio, to Lexington, in Ken- 
 tucky, it is equally such to send goods or to travel in person from 
 Cincinnati to Covington ; and while the reasons which influenced 
 the court to hold in the Wabash case that Illinois could not fix 
 rates between Peoria and New York may not impress the mind 
 fio strongly when applied to fixing the rates of toll upon a bridge 
 or ferry, the principle is identically the same, and, at least in the 
 absence of mutual or reciprocal legislation between the two states, 
 it is impossible for either to fix a tariff of charges. 
 
 "With reference to the second question, an attempt is made to 
 distinguish a bridge from a ferry boat, and to argue that while 
 the latter is an instrument of interstate commerce, the former is 
 not. Both are, however, it is said, vehicles of such commerce, 
 and the fact that one is movable and the other is a fixture makes 
 no difference in the application of the rule. Commerce was de- 
 fined in GiUons v. Ogden, 22 U. S. 9 Wheat. 1, 189, 6 L. ed. 23, 
 68, to be " intercourse," and the thousands of people who daily 
 pass and repass over this bridge may be as truly said to be engaged 
 in commerce as if they were shipping cargoes of merchandise 
 from ]S[ew York to Liverpool. While the bridge company is not 
 itself a common carrier, it affords a highway for such carriage, 
 and a toll upon such bridge is as much a tax upon commerce as a 
 toll upon a turnpike is a tax upon the traffic of such turnpike, or 
 the charges upon a ferry a tax upon the commerce across a river. 
 A tax laid upon those who do the business of common carriers 
 upon a certain bridge is as much a tax upon the commerce of 
 that bridge as if the owner of the bridge were himself a conunon 
 carrier. 
 
 Let us examine some of the cases which are supposed to coun- 
 tenance the doctrine that ferries and bridges connecting two states 
 are not instruments of commerce between such states in such
 
 504 INTEKSTATE AND STATE COMMEKCE. 
 
 sense as to exempt them from state control. In Conway v. Tay- 
 lor, m [J. S. 1 Black, 603, IT L. ed. 191, a ferry franchise on the 
 Ohio was held to be grantable under the laws of Kentucky to a 
 citizen of that state who was a riparian owner on the Kentucky 
 side. It was said not to be necessary to the validity of the grant 
 that the grantee should have the right of landing on the other 
 side or beyond the jurisdiction of the state. The opinion, how- 
 ever, did not jDass upon the question of the right of one state to 
 regulate the charge for ferriage, nor does it follow that because a 
 state may authorize a ferry or bridge from its own territory ta 
 that of another state, it may regulate the charges upon such 
 bridge or ferry. A state may undoubtedly create corporations 
 for the purpose of building and running steamships to foreign 
 ports, but it would hardly be claimed that an attempt to lix a 
 scale of charges for the transportation of persons or property to 
 and from such foreign ports would not be a regulation of com- 
 merce and beyond the constitutional power of the state. It is 
 true the states have assumed the right in a number of instances, 
 since the adoption of the Constitution, to fix the rates or tolls 
 upon interstate ferries and bridges, and perhaps in some instances 
 have been recognized as having the authority to do so by the 
 courts of the several states. But there is no citation of any case 
 in the United States Supreme Court where such right has been 
 recognized. Of recent years it has been the custom to obtain the 
 consent of Congress for the construction of bridges over navi- 
 gable waters, and by the seventh section of the Act of September 
 19, 1890 (2G Stat, at L. 426, 454) it is made unlawful to begin 
 the construction of any bridge over navigable waters, until the 
 location and plan of such bridge have been approved by the Sec- 
 retary of War, who has also been in frequent instances authorized 
 to regulate the tolls upon such bridges, where they connected two 
 states. So, too, in Wiggins Ferry Co. v. East St. Louis, 107 U. 
 S. 365, 27 L. ed. 419, it was held that a state had the power to 
 impose a license fee, either directly or through one of its munici- 
 pal corporations, upon ferry keepers living in the state, for boats 
 which they owned and used in conveying from a landing in the 
 state passengers and goods across a navigable river to another
 
 STATE REGULATIONS AFFECTING COMMON CARKIKKS. 505 
 
 state. It was said that, " the levying of a tax upon vessels op 
 other watercraft, or the exaction of a license fee by the state 
 within which the property subject to the exaction has its situs^ is 
 not a regulation of commerce within the meaning of the Consti- 
 tution of the United States." Obviously the case does not touch 
 tlie question involved.* Upon the other hand, however, it was 
 held in 2[omn v. Wew Orleans, 112 U. S. 69, 18 L. ed. 653, that 
 a municipal ordinance of Kew Orleans imposing a license tax 
 upon persons o^vning and running tow boats to and from tho 
 Gulf of Mexico was void as a regulation of commerce. 
 
 It is clear that the state of Kentucky, by the statute in ques- 
 tion,* attempts to reach out and secure for itself a right to pre- 
 scribe a rate of toll applicable not only to persons crossing from 
 Kentucky to Ohio, but from Ohio to Kentucky, a right which 
 practically nullifies the corresponding right of Ohio to fix tolls 
 from her own state. It is obvious that the bridge could not have 
 been built without the consent of Ohio, since the north end of 
 the bridge and its abutments rest upon Ohio soil ; and without 
 authority from that state to exercise the right of eminent domain, 
 no land could have been acquired for that purpose. It follows 
 that, if the state of Kentucky has the right to regulate the travel 
 upon such bridge and fix the tolls, the state of Ohio has the same 
 right, and so long as their action is harmonious there may be no 
 room for friction between the states ; but it would scarcely be 
 consonant with good sense to say that separate regulations and 
 
 1 Covington & C. Bridge Co. v. Kentucky, 154 U. S. 304, 38 L. ed. 962. 
 
 * Note. — On March 31, 1890, the legislature of Kentucky passed an act 
 amendatory of the act of incorporation, providing that it should be unlawful 
 for any person or corporation to charge, collect, demand or receive for passage 
 over the bridge spanning the Ohio river, constructed under such act of incor- 
 poration, any toll, fare or compensation greater than, or in excess of, certain 
 rates prescribed by the act, which were much less than the directors had fixed 
 upon under the eighth section of the act of incorporation. The second section 
 provided that the company should sell passage tickets over their bridge at 
 these rates, entitling the holder to passage either way over said bridge; and by 
 the third section, the company was required to keep an office within the county 
 of Kenton constantly open for the sale of such tickets; and keep conspicuously 
 posted a schedule of the tolls fixed in pursuance of the act.
 
 506 INTERSTATE AND STATE COMMERCE. 
 
 separate tariffs may be adopted by each state (if the subject be 
 one for state regulation) and made applicable to that portion of 
 the bridge within its own territory. So far as the matter of con- 
 struction is concerned, each state may proceed separately by au- 
 thorizing the company to condemn land within its own territory, 
 but in the operation of the bridge their action must be joint or 
 great confusion is likely to result. It may be for the interest of 
 Kentucky to add to its own population by encouraging residents 
 of Cincinnati to purchase homes in Covington, and to do this by 
 fixing the tolls at such a rate as to induce citizens of Ohio to reside 
 within her borders. It might be equally for the interest of Ohio 
 to prescribe a higher rate of toll to induce her citizens to remain 
 and fix their homes within their own state, and as persons living 
 in one state and doing business in another would necessarily have 
 to cross the bridge at least twice a day, the rates of toll might 
 become a serious question to them. Congress, and Congress 
 alone, possesses the requisite power to harmonize such differences, 
 and to enact a uniform scale of charges which will be operative 
 in both directions. The authority of the state, so frequently 
 recognized to fix tolls for the use of wharves, piers, elevators, 
 and improved channels of navigation, has always been limited to 
 such as were exclusively within the territory of a single state, 
 thus affecting interstate commerce but incidentally, and cannot 
 be extended to structures connecting two states without involving 
 a liability for controversies of a serious nature. For instance, 
 suppose the agent of the bridge company in Cincinnati should 
 refuse to recognize tickets sold upon the Kentucky side, enabling 
 the person holding the ticket to pass from Ohio to Kentucky, it 
 would be a mere hrutum fulmen to attempt to punish such agent 
 under the laws of Kentucky. Or, suppose the state of Ohio 
 should authorize such agent to refuse a passage to persons coming 
 from Kentucky, who had not paid the toll required by the Ohio 
 statute; or that Kentucky should enact that all persons crossing 
 from Kentucky to Ohio should be entitled to a free passage, and 
 thus attempt to throw the whole burden upon persons crossing in 
 the opposite direction. It might be an advantage to one state to 
 make the charge for foot passengers very low and the charge for
 
 STATE EEGULATIONS AFFECTING COMMON CAEEIEKS. 607 
 
 merchandise very high, and for the other side to adopt a converse 
 system. One scale of charges might be advantageous to Ken- 
 tucky in this instance, where the larger city is upon the north 
 side of the river, while a wholly different system might be to her 
 advantage at Louisville, where the larger city is upon the south 
 side. 
 
 The United States Supreme Court decline to be understood as 
 saying that, in the absence of Congressional legislation or mutual 
 legislation of the two states, the company has the right to iix tolls 
 at its own discretion. There is always, it is said, an implied un- 
 derstanding with Teference to these structures that charges shall 
 be reasonable, and the question of reasonableness must be settled 
 as other questions of a judicial nature are settled, by the evidence 
 in the particular case. As was said in Gloucester Ferry Co. v. 
 Pennsylvania, 114 U. S. 196, 217, 29 L. ed. 158, 1G6, 1 Inters. 
 Com. Rep. 382: "freedom from such imposition does not of 
 course imply exemption from reasonable charges, as compensation 
 for the carriage of persons, in the way of tolls or fares, or from 
 the ordinary taxation to which other property is subjected, any 
 Tnore than like freedom of transportation on land implies such 
 exemption. Reasonable charges for the use of property, either 
 on water or land, are not an interference with the freedom of 
 transportation between the states secured under the commercial 
 power of Congress." Nor is the Supreme Court to be under- 
 stood as passing upon the question whether, in the absence of 
 legislation by Congress, the states may by reciprocal action fix 
 upon a tariff which shall be operative upon both sides of the 
 river. 
 
 It does hold, however, that the statute of the commonwealth 
 •of Kentucky is an attempted regulation of commerce which it is 
 not within the power of the state to make. As was said by Mr. 
 Justice ^Miller in the Wabash case : " It is impossible to see any 
 distinction in its effect upon commerce of either class between a 
 statute which regulates the charges for transportation and a stat- 
 ute which levies a tax for the benelit of the state upon the same 
 transportation." 
 
 The principle of the decisions of the Supreme Court, affirm the
 
 608 INTEKSTATE AND STATE COMMERCE. 
 
 right of a state, in the absence of regulation by Congress, to es- 
 tablish, manage and carry on works and improvements of a local 
 character, though necessarily more or less affecting interstate and 
 foreign commerce.' Wharfage is subject to local state laws, Con- 
 gress having passed no Act to regulate it. Charges for wharfage 
 graduated by tonnage of vessels using wharf are not open to ob- 
 jection that they are duties on tonnage within meaning of Con- 
 stitution. Where wharfage charges are reasonable it in no way 
 concerns those who pay them what application is made of the 
 proceeds. The appropriation of wharfage charges to maintain,, 
 extend, light and police the wharves is unobjectionable, although 
 profits may be realized by lessees from the city which owns them.^ 
 The shores of navigable waters and the soil under them were not 
 granted by the Constitution to the United States, but were re- 
 served to the states respectively.' A statute prohibiting the ship- 
 ment out of the state of oysters taken in the public waters of the 
 state, Vvdiile they are in shells, and which also prohibits the taking 
 of such oysters by any person who is not a resident of the state,, 
 is not unconstitutional as a regulation of interstate commerce." 
 
 The grant to Congress of the power to regulate commerce' 
 among the states does not embrace that commerce which is com- 
 pletely internal or between different parts of the same state. In 
 the carriage of freight and passengers between two points in one 
 state, the mere passage over soil of another state, does not render 
 that business foreign, which is otherwise domestic.^ The act of a. 
 railroad company in carrying coal from one point in Texas to- 
 another is not within the scope of interstate commerce regula- 
 tions, although such coal was originally shipped from another 
 territory, where such carrier receives it without any understand- 
 ing or arrangement, express or implied, that it shall become a link in, 
 
 ' Ouachita & M. R. Packet Co. v. Aiken, 121 U. S. 444, 30 L. ed. 976, 1 Inters. 
 
 Com. Kep. 379; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. 
 
 ed. 158, 1 Inters. Com. Rep. 382. 
 ' Ouaclnta & M. B. Packet Co. v. Aiken, supra. 
 3 Pollard V. Eagan, 44 U. S. 3 How. 212, 11 L. ed. 565. 
 * State V. Harrub (Ala.) 4 Inters. Com. Rep. 99, 15 L. R. A. 761. 
 "* Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 193, 36 L. ed. 672, 4 Inters.. 
 
 Com. Rep. 87.
 
 STATE KEGULATIONS AFFECTIiN'G COMMON CARRIERS. 509 
 
 -a chain of transportation from points outside the state.' Laws passed 
 by the individual states, under their general authority over inter- 
 nal concerns, may incidentally aiiect foreign and interstate com- 
 «ierce without conflicting with the Constitution of the United 
 States, provided they do not discriminate against such commerce 
 and are not inconsistent with the acts of Cono-ress,^ A contract 
 for interstate shipment does not come within a state law regulat- 
 ing rates, because made in that state, so that such law will intro- 
 duce a new term into the contract, but its utmost effect would be 
 to forbid a contract for an unreasonable rate and make the con- 
 tract unlawful, leaving the transaction open to adjustment 
 ■under the laws of the United States/ There is a commerce 
 wholly within the state, which is not subject to the constitu- 
 tional provision, and a distinction between commerce among 
 states and between the citizens of a single state, conducted within 
 its limits.* A statute making the owner of Texas cattle which 
 have not been wintered north liable for any damages from allow- 
 ing them to run at large and to spread Texas fever, does not con- 
 flict with the paramount authority of Congress to regulate inter- 
 state commerce.^ Where property has been clothed with a public 
 interest, the legislature may fix a limit to that which in law shall 
 be reasonable for its use. This limits the courts as well as the 
 people. If it has been improperly fixed, the legislature, not the 
 courts, must be appealed to for the change. The legislature, in 
 the exercise of its power of regulating fares and freights, may 
 classify the railroads according to the length of their lines. If 
 the same rule is applied to all railroads of the same class, there is 
 no violation of the constitutional provision securing to all the 
 equal protection of the laws.* The charter of a company is not a 
 contract, the obligation of which is impaired by the Mississippi 
 
 ' Ft. WortJi & D. C. R. Co. v. Whitehead, 6 Tex. Civ. App. 595. 
 
 » State V. Newton, 2 Inters. Com. Rep. 63, 50 N. J. L. 534. 
 
 'Swift V. Philadelphia & R. R. Qo. (C. C. N. D. 111.) 58 Fed. Rep. 858. 
 
 * Louisville, N. 0. & T. R. Co. v. Mississippi, 138 U. S. 587, 33 L. ed. 784, 2 
 Inters. Com. Rep. 801. 
 
 ^Kimmish v. Ball, 129 U. S. 217, 32 L. ed. 695, 2 Inters. Com. Rep. 407. 
 
 *Dow V. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56.
 
 510 INTEKSTATE AND STATE COMMERCE. 
 
 statute of March 11, 1884:, creating a commission to provide for 
 the regulation of freight and passenger rates, prevent unjust dis- 
 crimination, and enforce certain police regulations affecting rail- 
 road companies doing business in that state.' A state has the 
 right to prohibit and interfere with a contract in restraint of com- 
 petition, some of the parties to which are corporations created by 
 the state, although it regulates charges upon freight carried to and 
 fro between Texas and other states.^ An act prohibiting greater 
 charge than specified in bill of lading, and imposing a penalty for 
 refusal to deliver on payment or tender of charges as shown in 
 such bill, is within police power of a state/ But a state cannot,. 
 under cover of exerting its police powers, substantially prohibit or 
 burden interstate commerce." 
 
 In later cases* most of the former decisions involving the same 
 principle are cited and referred to. The first of these was a case of 
 wharfage; the second, one of quarantine ; and the third, tliat of a 
 lock in Illinois river constructed by the state of Illinois in aid of 
 navigation. The same principle was applied and enforced in the 
 cases of Cooley v. Philadelphia Port Wardens, 53 U. S. 12 How. 
 299, 13 L. ed. 996, on the subject of pilotage; in Mobile County v. 
 Kimlall, 102 U. S. 691, 26 L. ed. 238, where a state law provided 
 for the im23rovement of the river and harbor of Mobile ; in the 
 various cases of bridges over navigable rivers which have come 
 before that court, and which are reviewed and approved in 
 Escanaha <& L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. 
 ed. 442 ; and in Turner v. Maryland, 107 U. S. 38, 27 L. ed. 370, 
 which related to the inspection of tobacco. The same principle 
 
 ^ Stone V. Farmers Loan & T. Go. {"Railroad Commission Cases") 116 U. S. 
 307, 29 L. ed. 636. 
 
 •^ Gulf, C. & 8. F. R. Co. V. State, 73 Tex. 404, 2 Inters. Com. Rep. 335, 1 L. 
 R. A. 849. 
 
 ^Little Rock & Ft. S. R. Co. v. Hanniford, 49 Ark. 291, 1 Inters. Cona. Rep. 
 580. 
 
 * Hannibal & St. J. R. Go. v. Ilusen, 95 U. S. 465, 24 L. ed. 527; Boioman v. 
 Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823. 
 
 ^Parkersburg & 0. R. Transp. Co. v. Parkerburg, 107 U. S. 691, 27 L. ed. 
 584; Morr/ana L. & T. R. & SS. Co. v. Louisiana Board of Health, 118 U. 
 S. 455, 30 L. ed. 237, and Huse v. Glover, 119 U. S. 543, 30 L. ed. 487.
 
 STATE EEGULATIONS AFFECTING COMMON CAKKIEES. 511 
 
 "was reaffirmed, with the limitations to which its application is sub- 
 ject, in the recent case of Rohhins v. Shelby County Taxing Dist. 
 120 U. S. 489, 493, 30 L. ed. 694, 696, 1 Inters. Com. Kep. 45. 
 In all such cases of local concern, though incidentally affecting 
 commerce, it held that the courts of the United States cannot, as 
 such, interfere with the regulations made by the state, nor sit in 
 judgment on the charges imposed for the use of improvements or 
 facilities afforded, or for the services rendered under state author- 
 ity. It is for Congress alone, under its power to regulate com- 
 merce with foreign nations and among the several states, to 
 correct any abuses that may arise, or to assume to itself the regu- 
 lation of the subject. If, in any case of this character, the courts 
 of the United States can interfere in advance of Congressional 
 legislation, it is (as was said in Morgan) s L. & T. R. & SS. Co. 
 V. Louisiana Board of Healthy supra) where there is a man- 
 ifest purpose, " by roundabout means, to invade the dominion of 
 Federal authority." Wharfage is governed by the local state 
 laws ; no Act of Congress has been passed to regulate it. By the 
 state laws it is generally required to be reasonable ; and by those 
 laws its reasonableness must be judged. If it does not violate 
 them, the United States courts cannot interfere to prevent its ex- 
 action. Of course, neither the state, nor any municipal corpora- 
 tion acting under its authority, can lay duties of tonnage ; for that 
 is expressly forbidden by the Constitution. 
 
 But charges for wharfage may, as we have seen, be gradu- 
 ated by the tonnage of vessels using a wharf; and that this 
 is not a duty of tonnage, witliin the meaning of the Constitution, 
 has been distinctly held in several cases ; among others, in those 
 of Keolnih iV. Z. Packet Co. v. KeohuTc, 95 U. S. 80, 24 L. ed. 
 377 ; Northwesiern U. Packet Co. v. St. Louis, 100 U. S. 423, 25 
 L. ed. 688 ; Cincinnati, P. B. S. cfe P. Packet Co. v. Catletts- 
 lurg, 105 U. S. 559, 26 L. ed. 1169 ; and Parkershurg <& O. P. 
 Transjp. Co. v. Parkershurg, 107 U. S. 691, 27 L. ed. 584. And 
 being wharfage, and nothing else, if the charges are unreasonable, 
 remedy must be sought by invoking the laws of the state. If the 
 state laws furnish no remedy (in other words, if the charges are 
 sanctioned by them) then it is for Congress, and not the United
 
 512 INTERSTATE AND STATE COMMERCE. 
 
 States courts, to regulate the matter, and provide a proper rem- 
 edy. Such an interposition may become necessary ; for although 
 the imposition of unreasonable wharfage by a city or a state is 
 always the dictate of a suicidal policy, the temptation of immedi- 
 ate advantage under stringent pressure will often lead to its adoj)- 
 tion. What measures Congress might adopt for the purpose of 
 preventing abuses in this and like matters, is for it to determine. 
 It is possible that a law declaring that wharfage shall be reason- 
 able, and not oi3pressive, would answer the purpose. It would 
 then be in the power of the Federal courts to inquire and deter- 
 mine as to the reasonableness of the charges actually imposed. 
 That no such inquiry, except in the administration of the state 
 law, can be instituted, as the law now stands, is shown in some of 
 the cases. In Parkershurg & 0. R. Transp. Co. v. Parkers- 
 hurg, supra^ it said : " It is an undoubted rule, of universal ap- 
 plication, that wharfage for the use of all public wharves must 
 be reasonable. But then the question arises, By what law is this 
 rule established, and by what law can it be enforced ? By what 
 law is it to be decided whether the charges imposed are, or are 
 not, exorbitant ? There can be but one answer to these ques- 
 tions : Clearly it must be by the local municipal law, at least 
 until some superior or paramount law has been prescribed. The 
 courts of the United states do not enforce the common law in 
 municipal matters in the state because it is Federal law, but 
 because it is the law of the state." ' A statute regulating 
 mode in which messages sent by telegraph companies, doing 
 business in that state, shall be delivered in other states is 
 void.'' A state tax upon sleeping cars of a company, used in 
 carrying passengers into and out of the state, is void as a 
 regulation of interstate commerce.' A state legislature has no 
 
 • OuacMta & M. R. Packet Co. v. Aiken, 121 U. S. 444, 30 L. ed. 976, 1 Inters. 
 Com. Rep. 379; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. 
 Com. Rep. 804. 
 
 « Western U. Teleg. Co. v. Pendleton, 122 U. 8. 347, 30 L. ed. 1187, 1 Inters. 
 Com. Rep. 30(i; Wabaah, St. L. & P. R. Co. \. Illinois, 118 U. S. 557, 30 
 L. ed. 244, 1 Inters. Com. Rep. 31. 
 
 ■^ State V. Woodruff Sleeping & Parlor Coach Co. 114 Ind. 155, 1 Inters. Com. 
 Rep. 798 ; Wabash, St. L. & P. R. Co. v. Illinois, supra.
 
 STATE KEGULATIONS AFFECTING COMMON CARRIERS. 513 
 
 power to prohibit tlie conducting of natural gas from points with- 
 in to points without the state.' Goods brought into a state for 
 sale, although they become thereby a part of the mass of its prop- 
 ert}', cannot be taxed by reason of their introduction into the 
 state or because they are products of another state." But a sale 
 of the contents merely of the packages in which liquor was im- 
 ported into the state, the purchaser being required to open them 
 and empty the liquor into glasses furnished by the seller, is not a 
 sale by original packages, exempt as interstate commerce from 
 the operations of state laws regulating the sale of intoxicating 
 liquors.^ 
 
 A carrier exercising his calling within a particular state, al- 
 though engaged in the business of interstate commerce, is answer- 
 able according to the laws of the state for acts of nonfeasance or 
 misfeasance committed within its limits. If he fail to deliver 
 goods to the proper consignee at the right time or place, he is 
 liable in an action for damages under the laws of the state in its 
 courts ; or if by negligence in transportation he inflicts injury 
 upon the person of a passenger brought from another state, a 
 right of action for the consequent damage is given by the local 
 law. In neither case would it be a defense that the law givino- 
 the right to redress was void as being an unconstitutional regula- 
 tion of commerce by the state. This, indeed, was the very point 
 decided in Sherlock y. Ailing, 93 U. S. 99, 102, 23 L. ed. 819, 
 820. If it is competent for the state thus to administer justice 
 according to its own laws for wrongs done and injuries suffered, 
 when committed and inflicted by defendants while engaged in 
 the business of interstate or foreign commerce, notwithstanding 
 the power over those subjects conferred upon Congress by the 
 Constitution, what is there to forbid the state, in the further exer- 
 cise of the same jurisdiction, to prescribe the precautions and 
 safeguards foreseen to be necessary and proper to prevent by an- 
 ticipation those wrongs and injuries which, after they have been 
 
 » 8taU V, Indiana & 0. Oil, G. & Min. Co. 120 Ind. 575, 2 Inters. Com. Rep. 
 
 758, 6 L. R. A. 579. 
 « Philaddphia & S. Mail S. 8. Co. v. Pennsylvania, 122 U. S. 326, 30 L. ed. 
 
 1200, 1 Inters. Com. Rep. 308. 
 » Ilopkim V. Lewis, 15 L. R. A. 397, 4 Inters. Com. Rep. 63, 84 Iowa, 690. 
 33
 
 514 INTERSTATE AND STATE COMMERCE. 
 
 inflicted, it is admitted the state has power to redress and punish ? 
 If the state has power to secure to passengers conveyed by com- 
 mon carriers in their vehicles of transportation a right of action 
 for the recovery of damages occasioned by the negUgence of the 
 carrier in not providing safe and suitable vehicles, or employes of 
 sufficient skill and knowledge, or in not properly conducting and 
 managing the act of transportation, why may not the state also 
 impose, on behalf of the public, as additional means of preven- 
 tion, penalties for the nonobservance of these precautions ? Why 
 may it not define and declare what particular things shall be done 
 and observed by such a carrier, in order to insure the convenience 
 of the public and safety of the persons and things he carries, or 
 of the persous and property of others liable to be affected by 
 them ? ' Thus, a statute requiring each railroad within a state to 
 cause three of its regular passenger trains each way to stop at all 
 stations, cities or villages having more than a designated number 
 of inhabitants, is not invalid as applied to a railroad company 
 having but one train each way, not engaged in interstate com- 
 merce, as a regulation of commerce between the states.' But the 
 duty of a railroad company ojDerating its own road or a road that 
 it controls, to serve the local stations on its line, does not apply to 
 a company that has only a running privilege for through trains 
 to reach points on its own line over a part of the road of another 
 company which it does not control.^ 
 
 A classification of railroads for establishing rates is not void 
 simply because it operates unequally upon different roads and a 
 reasonable classification of railroads for determining rates is not 
 prohibited by the constitutional provision that no person shall be 
 deprived of property without due process of law. Under a con- 
 stitutional provision that the legislature may from time to time 
 establish reasonable maximum rates of charges for the transporta- 
 tion of passengers and freight on different railroads, the reason- 
 ableness of the rates is exclusively for the legislature. It may 
 
 ' Ouachita & M. R. Packet Co. v. Aiken, 121 C. S. 444, 30 L. ed. 976, 1 Inters. 
 
 Com, Rep. 379. 
 « Lake Shore & M. 8. R. Co. v. State, 8 Ohio C. C. 220. 
 ^Alford V. Chicago, R. I. & P. R. Co. 2 Inters. Com. Rep. 771.
 
 STATE REGULATIONS AFFECTING COMMON CAEKIERS. 515 
 
 make reasonable distinctions as to the charges to be made by rail- 
 roads in different portions of the state, and also classify different 
 roads upon the basis of their gross earnings, and a classification of 
 railroads for the purpose of establishing rates is not unfair or 
 unreasonable because based on the amount of business done per 
 mile.' The justice of a statute limiting rates of transportation 
 must be determined with reference to its effect on the whole of a 
 class of railroads, where they are classified by the statute, and not 
 with reference to one particular road. Part only of the line of a 
 railroad company cannot be taken separately in testing the justice 
 of a statute regulating rates of transportation. A foreign corpo- 
 ration which comes into the state to operate a railroad thereby 
 undertakes and becomes bound to do it according to the tei'ms and 
 conditions imposed by the constitution and laws of the state upon 
 domestic corporations, in respect to regulation of its rates. A 
 railroad is not exempt from state regulations of its rates by the 
 fact that it has been declared a post and military route and 
 national highway by acts of Congress which granted to it lands for 
 a right of way." 
 
 A ferry is a means of commercial intercourse between 
 states, bordering upon dividing waters, and it must be con- 
 ducted without imposition by states of taxes or other burdens 
 upon the commerce between them. The power of the states to 
 regulate matters of internal police includes the establishment of 
 ferries as well as the construction of roads and bridges. In 
 Gillons V. Ogden, 22 U. S. 9 Wheat. 203, 6 L. ed. 71, Chief Justice 
 Marshall said that laws respecting ferries, as well as inspection laws, 
 quarantine laws, health laws, regulating the internal commerce of 
 the states, are component parts of an immense mass of legislation, 
 embracing everything within the limits of a state not surrendered 
 to the general government ; but in this language he plainly refers 
 to ferries entirely within the state, and not to ferries transporting 
 passengers and freight between the states and a foreign country ; 
 for the power vested in Congress, he says, comprehends every 
 species of commercial intercourse between the United States and 
 
 1 Wellman v. Chicago & G. T. R. Co. 83 Mich. 592. 
 
 « St. Louis & S. F. R. Co. v. Gill, 11 L. R. A. 453, 54 Ark. 101.
 
 516 INTEKSTATE AND STATE COMMERCE. 
 
 foreign countries. No sort of trade, he adds, can be carried on 
 between this country and another to which the power does not 
 extend ; and what is true of foreign commerce is also true of com- 
 merce between states over the waters separating them. Ferries 
 between one of the states and a foreign country cannot be deemed, 
 tlierefore, beyond the control of Congress under the commercial 
 power. They are necessarily governed by its legislation on the 
 importation and exportation of merchandise and immigration of 
 foreigners — that is, are subject to its regulation in that respect ; 
 and if they are not beyond the control of the commercial power 
 of Congress, neither are ferries over waters separating states 
 Congress has passed various laws respecting such international and 
 interstate feriies, the validity of which is not open to question. 
 It has provided that vessels used exclusively as ferry boats, carry 
 ing passengers, baggage and merchandise, shall not be required tc 
 enter and clear, nor shall their masters be required to present mani- 
 fests, or to pay entrance or clearance fees, or fees for receiving or 
 certifying manifests ; " but they shall, upon arrival in the United 
 States, be required to report such baggage and merchandise to the 
 proper officer of the customs,, according to law." ' That the lights 
 for ferry boats shall be regulated by such rules as the board of 
 supervising insj^ectors of steam vessels shall prescribe ; ^ that any 
 foreign railroad company or corporation whose road enters the 
 United States by means of a ferry or tug boat, may own such 
 boat, and that it shall be subject to no other or different restric- 
 tions or regulations in such employment than if owned by a citizen 
 of the United States;^ that the hull and boilers of every ferry 
 boat propelled by steam shall be inspected, and provisions of law 
 for the better security of life, which may be applicable to them, 
 shall, by regulations of the supervising inspectors, be required to 
 be complied with before a certificate of inspection be granted ; 
 and that they shall not be navigated without a licensed engineer 
 and a licensed pilot.* 
 
 ' Rev. Stat. § 2792. 
 
 2 Rev. Stat. § 4233, Rule 7. 
 
 3 Rev. Stat. § 4370. 
 * Rev. Stat, 8 4436.
 
 STATE REGULATIONS AFFECTING COMMON CABRIEKS. 517 
 
 It is true that from the earliest period in the history of the 
 government the states have authorized and regulated ferries not 
 only over waters entirely within their limits, but over waters 
 separating them ; and it may be conceded that in many respects 
 the states can more advantageously manage such interstate fer- 
 ries than the general government ; and that the privilege of keep- 
 ing a ferry, with a right to take toll for passengers and freight, 
 is a franchise grantable by the state, to be exercised within such 
 limits and under such regulations as may be required for the 
 safety, comfort and convenience of the public. Still, the fact 
 remains that such a ferry is a means, and a necessary means, of 
 commercial intercourse between the states bordering on their 
 dividing waters; and it must therefore be conducted without the 
 imposition by the states of taxes or other burdens upon the com- 
 merce between them. Freedom from such imposition does not 
 of course imply exemption from reasonable charges as compensa- 
 tion for the carriage of persons, in the way of tolls or fares, or 
 from the ordinary taxation to which other property is subjected, 
 any more than like freedom of transportation on land implies 
 such exemption. Reasonable charges for the use of property 
 either on water or land are not an interference with the freedom 
 of transportation between the states secured under the commer- 
 cial power of Congress.' That freedom implies exemption from 
 charges other than such as are imposed by way of compensation 
 for the use of the property employed, or for facilities afforded 
 for its use, or as ordinary taxes upon the value of the property. 
 How conflicting legislation of two states on the subject of ferries 
 on waters dividing them is to be met and treated is a question 
 for consideration of the courts. Pennsylvania has never at- 
 tempted to exercise its power of establishing and regulating fer- 
 ries across the Delaware river. Any one, so far as her laws are 
 concerned, is free to establish such ferries as he may choose. No 
 license fee is exacted from ferry keepers. She merely exercises 
 
 1 Keokuk N. L. Packet Co. v. Keokuk, 95 U. S. 80, 24 L. ed. 377; Northwestern 
 n. Packet Co. v. St. Louis, 100 U, S. 423, 25 L. ed. 688; Vicksburg v. Tobin, 
 100 U. S. 430, 25 L. ed. 690; Cincinnati, P. B. S. & P. Packet Co. v. Cat- 
 lettsburg, 105 U. S. 559, 26 L. ed. 1170; Parkersburg & 0. B. Transp. Co. 
 V. Parkersburg, 107 U. S. 691, 27 L. ed. 584.
 
 518 INTEKSTATK AND STATE COMMEKCE. 
 
 the right to designate the places of landing as she does the places 
 of landing for all vessels engaged in commerce, and however 
 great the power of a state no legislation on her part can impose 
 a tax on that portion of interstate commerce which is involved 
 in the transportation of persons and freight, whatever be the 
 instrumentality by which it is carried on.' 
 
 The legislature of a state has the power to prescribe the charges 
 of a railroad company for the carriage of persons and merchan- 
 dise within its limits, in the absence of any provision in the char- 
 ter of the company constituting a contract vesting in it authority 
 over these matters, subject to the limitation that the carriage is 
 not required without reward or upon conditions amounting to 
 the taking of property for iDublic use without just compensation, 
 and that what is done does not amount to a regulation of foreign 
 or interstate commerce/ Railroad companies are subject to leg- 
 islative control as to their rates of fare and freight, unless pro- 
 tected by their charters, or unless what is done amounts to a reg- 
 ulation of foreign or interstate commerce/ Where the charter 
 of a railroad coporation grants to it the jDower to establish such 
 rates of toll for the conveyance of persons and property as it 
 shall from time to time direct and determine, subsequent legisla- 
 tion to prevent extortion and unjust discrimination in railroads 
 is constitutional, and not in violation of the charter contract.* 
 Where maximum rates are fixed by statute, the intention of the 
 legislature is to confer upon the railroad company the right to 
 charge as a common carrier for freight, not by any unit of dis- 
 tance but to fix a maximum beyond which the company cannot 
 
 ' Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 198, 29 L. ed. 158, 1 Inters. 
 Com. Rep. 382. 
 
 5 Georgia B. & Bkg. Co. v. Smith, 128 U. S. 174, 32 L. ed. 377; Dow v. Beidel- 
 man, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 58. 
 
 ^ Dow V. Beidelman, supra; Stone v. Farmers Loan c6 T. Co. ("Bailroad Com- 
 mission Cases") 116 U. S. 307, 29 L. ed. 636; Chicago, B. & Q. B. Co. v. 
 Iowa, 94 U. S. 155, 24 L. ed. 94; Chicago, M. & St. P. B. Co. v. Ackley, 94 
 U. S. 179, 24 L. ed. 99; Winona & St. P. B. Co. v. Blake, 94 U. S. 180, 34 
 L. ed. 99; Buggies v. Blinois, 108 U. S. 536, 27 L. ed. 816; Illinois Cent. B. 
 Co. V. IUi7iois, 108 U. S. 541, 27 L. ed. 818. 
 
 * Illinois Cent. B. Co. v. People, 95 111. 313, 108 U. S. 541, 27'L. ed. 818; Blake 
 V. Winona <fc St. P. B. Go. 19 Minn. 418, 18 Am. Rep. 345; Buggies v. Illi- 
 nois, supra.
 
 STATE KEGULATIOISIS AFFECTING COMMON CARRIERS. 519 
 
 go and to leave the tariff of charges, within that limit, to the 
 company, — subject to the rule of common law, that the charges 
 should be reasonable, and to the regulating power of the courts 
 and the legislature.' 
 
 The limitation upon the amount of the reduction by the legis- 
 lature of railway transportation rates, in Ohio act Feb. 11, 1848, 
 § 12, that it shall not reduce the future probable profits below 
 the ten per cent therein specified, does not make it a condition 
 to the validity of the reduction that the future profits shall in 
 fact equal that sum ; and a subsequent change in a railway com- 
 pany's affairs will not take it out of the operation of such reduc- 
 tion, which was authorized and applicable to it when the act was 
 passed. The capital stock of a railway company, exclusive of 
 the accumulated profits retained in its business, is meant by the 
 phrase "its capital," in Ohio act Feb. 11, 1848, § 12, authorizing 
 the legislature to prescribe transportation rates, but providing 
 that no reduction shall be made unless the average net profits for 
 the previous ten years shall equal ten per cent per annum of its 
 capital." The power of a state to limit railroad charges for trans- 
 portation can only be bargained away, if at all, by words of posi- 
 tive grant or their equivalent.' A railroad company succeeding 
 to the rights and privileges of another company, whose charter 
 provides that it shall be subject to all the laws of the common- 
 wealth which apply to railway corporations generally, is subject 
 to the provisions of an act fixing toll and rates for railroads on 
 which different rates are not prescribed by law, and succeeds to 
 the right to operate the road subject, as to the regulation of its 
 tolls, to the general laws, and cannot claim the benefit of toll 
 provisions in the charter of its predecessor, on the ground that 
 they constituted contract obligations to which it succeeded.'' A 
 railroad extending through several states is an entirety within 
 each and is subject to the jurisdiction of courts in either state in 
 
 ' Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684. 
 
 " Iron B. Co. v. Lawrence Furnace Co. 49 Ohio St. 103. 
 
 ^ Stone V. Farmers Loan & T. Co. {"Bailway Commission Cases") 116 U. S. 307, 
 
 29 L. ed. 636. 
 '^Norfolk & W. B. Co. v. Pendleton, 86 Va. 1004.
 
 520 INTERSTATE AND STATE COMMERCP:. 
 
 an action to prevent discriminations in rates of freip;;ht.' The 
 power to regulate a carrier's rates is not a power to destroy, and 
 limitation is not the equivalent of confiscation." General statutes 
 fixing maximum rates of charges for transportation, when not 
 forbidden by charter contracts, do not deny to the railroad com- 
 panies the equal protection of the laws, or deprive them of their 
 property without due process of law, within the meaning of the 
 14th Amendment.' A power of government which actually ex- 
 ists is not lost by non-user.* The regulation of matters of this 
 kind, says the court, is legislative in its character, not judicial.* 
 But the government may appeal to the civil courts for an inquiry 
 and determination as to the existence and character of any alleged 
 obstructions, and if such are found to exist, or threaten to occur, 
 to invoke the po^vers of these courts to remove or restrain such 
 obstructions.* 
 
 The legislature in most states has reserved, in the general act 
 for the formation of railroad companies, the right to regulata the 
 question of freights.' Under the Arkansas act of March 24, 
 1887, imposing a penalty upon a carrier violating either or several 
 of its provisions, a carrier is liable to the penalty upon violation 
 of any one of such provisions.* The organization of a railroad 
 company under the laws of Arkansas is subject to the state's 
 reserved right to alter the law then in force as to the maximum 
 rate of charges of such companies." The police power may pro- 
 tect business interests by prohibiting discriminations, by regulat- 
 ing tariffs, by enforcing facilities for the public. The Inter- 
 
 ' Providence Coal Co. v. Providence & W. R. Co. 15 R. I. 303. 
 - Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 
 Inters. Com. Rep. 209. 
 
 '^ Stone V. Farmer's Loan & T. Co. ('Railway Commission Cases"), 116 U. S. 
 
 307, 29 L. ed. 636. 
 ■» Chicago, B. & Q. R. Co. v. Cutts, 94 U. 8. 155, 24 L. ed. 94. 
 'Memphis & L. R. R. Co. v. Southern Exp. Co. 117 U. S. 1, 29 L. ed. 791; 
 
 Delaware, L. & W. R. Co. v. Central Stock Yard & T. Co. 43 N. J. Eq. 81. 
 
 « Re Debs, 158 U. S. , 39 L. ed. — . 
 
 " Laws, 1850, chap. 140, § 27, subd. 9; Kilmer v. New York Cent. <& H. R. R. 
 
 Co. 100 N. Y. 395. 
 ^Little Rock & Ft. 8. R. Co. v. Bruce. 55 Ark. 65. 
 9 St. Louis & 8. F. R. Co. v. Ryan, 56 Ark. 245.
 
 STATE REGULATIONS AFFECTING COMMON CARRIERS. 521 
 
 state Commerce Act of Congress illustrates this proposition.' 
 Because individuals may serve for hire, or may, without compen- 
 sation, donate their services, it does not follow that common 
 carriers by rail may do the same thing. Although the company 
 owns the property, it is also in the enjoyment of a public fran- 
 chise ; and in the control of the property it has not the same meas- 
 ure of power that persons have and exercise over property that is 
 aifected by no public use, and operated without the exercise of 
 any public franchise.' An act prohibiting greater charge by car- 
 rier for transportation of freight than specified in the bill of lad- 
 ing, and imposing a penalty for 'refusal to deliver on payment or 
 tender of charges as shown in such bill, is not special legislation, 
 or a regulation upon interstate commerce, but is within the police 
 power of the state." A state board of transportation is clothed 
 with power to determine what is a just and reasonable charge on 
 all the lines of railway within the state ; and this may be done in 
 advance of the rendition of the service.* A railroad company is 
 not compelled to enter involuntarily into contract relations with 
 other companies, by a statute requiring the adoption of joint rates, 
 or, in default thereof, the fixing of such rates by railroad commis- 
 sioners, as in the latter case the obligation of the company as to 
 the rates is one imposed by la^\ , and not by contract. The power 
 to establish joint " through rates " for connecting carriers is in- 
 cluded within the power of the state to regulate rates of charges 
 for transportation of freight by railroads.' 
 
 The legislature has power to fix the rates for railroad charges 
 for transportation, and the extent of judicial interference is pro- 
 tection against unreasonable rates.° But a state statute imposing 
 a penalty upon a carrier for charging more for a shorter than for 
 
 ' Boston & M. B. Co. v. York County Comrs. 79 Me. 386. 
 
 * Samuels v. Louisville & N. R. Co. 4 Inters. Com. Rep. 430, 31 Fed. Rep. 57. 
 ^Little Bock & Ft. S. B. Co. v. Hanniford, 1 Inters. Com. Rep. 580, 49 Ark. 
 
 291. 
 
 * State V. Fremont, E. & M. V. B. Co. 22 Neb. 313. 
 
 5 Burlington, C. R. & N. B. Co. v. Dey, 12 L. R. A. 436, 82 Iowa, 312. 
 
 « Chicago & Q. T. B. Co. v. Welbnan, 143 U. S. 339, 36 L. ed. 176; Sfone v. 
 
 Farmers Loan & T. Co. 116 U. S. 307, 29 L. ed. 636; Chicago, M. & St. P. 
 
 B. Co. V. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209.
 
 522 INTERSTATE AND STATE COMMERCE. 
 
 a longer distance, is void as applied to cases of shipment from 
 points in the state to point without, even as to that portion of the 
 transit wliolly within the state.' State tax upon gross receipts of 
 railroads for carriage of freight or passengers into, out of or 
 through state, is void.^ A state tax upon interstate commerce is 
 void.* It makes no difference whether such commerce is carried 
 on by individuals or corporations.* A state statute regulating the 
 rights of carriers and declaring what rates shall be regarded as 
 extortionate does not apply to the case of interstate shipments.* 
 
 A state statute disqualifying persons who are color blind from 
 certain service on railroads, and providing for their examination 
 and imposing a fine upon any company employing any person for 
 such service without a certificate from examiners, is not invalid as 
 a regulation of commerce or as depriving any person of property 
 without due process of law.' Kequiring a railroad company to 
 pay fees for examining persons for certain railroad service does 
 not deprive them of property without due process of law.' In 
 Louisville & iV". R. Co. v. Baldwin, 85 Ala. 619, it is said that 
 this question was not and could not be raised and hence was not 
 authoritively decided and that so much of the Alabama act of Feb- 
 ruary, 1887, as attempts to impose on railroad corporations, with- 
 out their consent, the expense of the examination and certification 
 of the qualification of their employes in respect to color blindness 
 
 1 WabasK St. L. <Sc P. B. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244; 1 Inters. 
 
 Com. Rep. 31. 
 
 2 Fargo v. Stevens, 121 U. S. 230, 30 L. ed. 888, 1 Inters. Com. Rep. 51. 
 ^Bobbins v. Shelby County Taxing Dist. 130 U. S. 489, 30 L. ed. 694, 1 Inters. 
 
 Com. Rep. 45; Fargo v. Stevens, supra; Western U. Teleg. Co. v. Pendleton, 
 
 122 U. S. 347, 30 L. ed. 1187, 1 Inters. Com. Rep. 307; Gloucester Ferry Co. 
 
 V. Pennsylvvnia, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 383; Riddle 
 
 V. Baltimore & 0. B. Co. 1 Inters. Com. Rep. 779, 800 ; Be Hennick, 1 Inters. 
 
 Com. Rep. 6(5, 5 Mackey, 489. 
 ^ State Y.Woodruff Sleeping <fe Parlor Coach Co. 1 Inters. Com. Rep. 801, 114 
 
 Ind. 155. 
 '= Mobile & 0. B. Co. v. Dismukes, 4 Inters. Com. Rep. 200, 17 L. R. A. 113, 94 
 
 Ala. 131. 
 ^Nashville, C. & St. L. B. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. 
 
 Com. Rep. 238, affirming 83 Ala. 71; Smith v. Alabama, 124 U. S. 465, 31 L. 
 
 ed. 508, 1 Inters. Com. Rep. 804. 
 •> Nashville, C & St. L. B. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352. 2 Inters. 
 
 Com. Rep. 338, note.
 
 INTERSTATE COMMERCE COMMISSION. 523 
 
 rather than on the employe, is unconstitutional and void as a de- 
 privation of property without due process of law.' It is the state 
 law which decides who are or may be common carriers, and pre- 
 scribes the means they shall adopt for the safety of that which is 
 committed to their charge, and the rules according to which, un- 
 der varying conditions, their conduct shall be measured and 
 judged; which declares that the common carrier owes the duty of 
 care, and what shall constitute that negligence for which he shall 
 be responsible. But for the provisions on the subject found in 
 the local law of each state, there would be no legal obligation on 
 the part of the carrier, whetlier ex contractu or ex delicto^ to those 
 who employ him ; or if the local law is held not to apply where 
 the carrier is engaged in foreign or interstate commerce, then, in 
 the absence of laws passed by Congress or presumed to be adopted 
 by it, there can be no rule of decision based upon rights and 
 duties supposed to grow out of the relation of such carriers to the 
 public or to individuals. In other words, if the law of the partic- 
 ular state does not govern that relation, and jjrescribe the rights 
 and duties which it implies, then there is and can be no law that 
 does until Congress expressly supplies it, or is held by implication 
 to have supplied it, in cases within its jurisdiction over foreign 
 and interstate commerce. The failure of Congress to legislate 
 can be construed only as an intention not to disturb what already 
 exists, and is the mode by which it adopts, for cases within the 
 scope of its power, the rule of the state law, which until displaced 
 covers the subject.'' 
 
 § 108. Interstate Coimiierce Cojmnissio7%— Juris- 
 diction and Practice. 
 
 In the exercise of its Constitutional power Congress passed an 
 Act to Regulate Commerce, and created an Interstate Commerce 
 'Commission, to enforce with the aid of the United States courts, 
 the provisions of this law. The detailed purposes of the Act have 
 
 ^ Louwville & N. R. Co. v. Baldmn, 85 Ala. 619. 
 
 s Smith V. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804.
 
 52-i INTERSTATE AND STATE COMMERCE. 
 
 been stated in Neglio;ence of Imposed Duties, Passenger Carriers, 
 sections 136, 137, pp. -180, 490, the law to regulate commerce was in- 
 tended to secure to persons needing transportation service the near- 
 est possible approximation to equal treatment, and that where there 
 exists in the costs or conditions of the service sufficient reason there- 
 for, the carriers may rightfully establish and maintain carload and 
 less than carload rates, but where the carriers themselves make one 
 uniform rate per hundred pounds, if such act on the part of the 
 carrier is warranted by the conditions, a nearer approach is made 
 to perfect equality than could be made in any other way and the 
 commission should interpose no objection. But when the condi- 
 tions of the service are so marked and distinct as to bring about 
 an unjust discrimination or a preference by the maintenance of 
 such uniform rate, then there would be a departure from the 
 equality of treatment which seems to be one of the principal re- 
 sults sought for by the law.' 
 
 The Act to Regulate Commerce makes it the duty of the 
 Interstate Commerce Commission to execute and enforce the pro- 
 visions of the Act which require rates and charges to be reason- 
 able. In the performance of this duty the commission has 
 authority to inquire into the management of the business of com- 
 mon carriers and, to require the attendance and testimony of 
 witnesses, the production of books and papers, tariffs and contracts 
 relating to any matter under investigation. To enforce its 
 authority in this respect the commission must invoke the aid of a 
 court of the United States. When applied to by petition the 
 commission must investigate matters complained of and must, to 
 enforce the Act, make investigations and prosecute inquiries 
 instituted on its own motion. On making any investigation, the 
 commission is required to make a report in writing of its recom- 
 mendations, conclusions and the findings of fact on which its 
 conclusions are based, which recommendations and conclusions, if 
 not complied with, can only be enforced through the courts, after 
 trial, in accordance with established procedure. In such trial the 
 facts found by the commission, in conformity with the statute,, 
 
 ' Brownell v. Columbus & G. M. B. Co. 4 Inters. Com. Rep. 285.
 
 INTEESTATE COMMERCE COMMISSION. 525 
 
 have legal effect and are prima facie evidence, but the rec- 
 ommendations, conclusions and orders of the commission are of 
 no binding force in the courts. The commission having entered 
 upon inquiry and investigation as to the reasonableness of trans- 
 portation rates on food products and given notice of the time and 
 place of taking testimony and afforded opportunity for calling and 
 cross-examination of witnesses, such proceeding was held to be a 
 substantial compliance with the statute.' When a carrier fails to 
 answer a complaint filed under section 13 of the Act to Regulate 
 Commerce, the Commission will take such proof of the facts as may 
 be deemed proper and reasonable, and make such order thereon 
 as the circumstances of the case appear to require." 
 
 At the request of the Senate Committee on Finance the commis- 
 sion directed its auditor to* collect statistics showing changes in rates 
 from the earliest period for which it was possible to obtain data to 
 the present time. These statistics, included in the report of that 
 committee to Congress on the subject of prices and wages, show a 
 material decline in rates, and classifications prescribing rates, which 
 appears universal, and the minimum has not yet been reached, 
 it seems. The late opinion of Justice Brewer in the circuit court 
 of appeals, deciding a long and short haul case, and the statement in 
 the opinion, that the total joint rate of two roads is over an 
 independent line from lines formed by either road, and not to be 
 considered in determining the local rate of either road and 
 therefore, may be even less than the intermediate or local rate, is 
 disputed by the commission as obiter. Congress is urged to take 
 such immediate action as will give legislative construction to 
 the word "line" in the statute. Several amendments recom- 
 mended by the commission for the purpose of strengthening the 
 law are discussed in the 6th Annual Report, especially those grow- 
 ing out of the decision of the Supreme Court, that the provisions 
 of section 800 of the Revised Statutes granting immunity to wit- 
 nesses required to testify concerning illegal acts in which they have 
 
 ' Be Alleged Excessive Freight Rates and Charges on Food Products, 3 Inters. 
 Com. Rep. 151. 
 
 "^The Tecumseh Celery Co. v. Cincinnati, J. c6 M. B. Co. 4 Inters Com Ren 
 318.
 
 526 INTERSTATE AND STATE COMMEKCE. 
 
 participated are not broad enough to meet the safeguards gnaran- 
 teed to such a witness by the Constitution, and the more recent 
 decision of the United States circuit court, that Congress cannot 
 constitutionally require the Federal courts to use tlieir process to 
 compel the production of testimony before a non-judicial tribunal. 
 Regarding the proposed amendment by which pooling is to be 
 permitted the report says : " The attempt to secure the public 
 from discrimination, extortion, favoritism, undue preference, and 
 to secure to every citizen just and reasonable rates and equal and 
 exact treatment in all transportation matters is the very essence, 
 spirit, and purpose of the law, and it would be vain to protect 
 carriers from competitive attacks upon each other if the general 
 public cannot be protected from the greater evils above enumer- 
 ated. If the law is to be amended the two classes of amendments 
 should go hand in hand. Until the law is made strong, as its 
 framers intended, in the matters of fair and stable rates, equal 
 treatment, and suppression of all favoritism, it is idle to seek to 
 protect carriers, whose iinmunity under the authoritative construc- 
 tions of the law from restrictions intended by Congress, seems one 
 of the remarkable facts in current history." Other subjects 
 treated in the report are Canadian competition, interstate traffic 
 not subject to the Act, statistical work of the commission for the 
 years ending June 30, 1891 and 1892, Government aided railroads 
 and telegraph lines, fourth Convention of Kailroad Commissioners, 
 and relations of railway companies and their employes. 
 
 The power of the commission to relieve from hardship under 
 the Act is strictly limited.' It has no power to require the adop- 
 tion of an equal and uniform mileage basis.^ The Act includes 
 only such carriers as use a railway or a railway and water craft 
 "under common control, management or arrangement for a con- 
 tinuous carriage or shipment " from one state to another.^ So far 
 as a railroad whose line is entirely within one state issues through 
 
 ' Ee Iowa Barb Steel Wire Co. 1 Inters. Com. Rep. 605. 
 
 ^ LaCrosae Mamifactures & J. Union v. Chicago, M. cfc St. P. R. Co. 2 Inters. 
 
 Com. Rep. 9. 
 ^Ex parte Koelder, 1 Inters. Com. Rep. 28, 30 Fed. Ren. 867; Mis>iouri & 1. 
 
 R. Tie & Lumber Co. v. Cape Oirardeau & S. W. R. Co. 1 Inters. Com. 
 
 Rep. 607.
 
 INTERSTATE COMMERCE COMMISSION. 527 
 
 bills of lading to points in other states and makes through rates, 
 it falls under the provisions of the Act.* The regulation of the 
 transportation of foreign mercliandise from a port of entry to a 
 place within the United States, upon a through bill of lading, does 
 not extend to the control of ratss made in the foreign port for its 
 carriage to the port of entry of the United States or to a foreign 
 country adjacent.^ This interstate commerce consists of inter- 
 course and traffic between citizens of different states, and includes 
 the transportation of property and the navigation of public waters 
 for that purpose, as well as the purchase, sale and exchange of 
 commodities.' Transportation of property from one state to an- 
 other is interstate commerce, whether carriers engaged in moving 
 it or vehicles on which it is borne, cross line of state or not.* A 
 transportation of goods under one contract and by one voyage 
 from the interior of Illinois to New York is interstate commerce.* 
 Shipments between points within the same state do not constitute 
 interstate commerce because made on a railroad which runs for 
 part of the trip in another state. The enforcing of an order of 
 railroad commissioners requiring a raih-oad company to conform 
 to their schedule of rates is a matter of public right for which an 
 action may be maintained in behalf of the state.* 
 
 In Lord v. Goodall, N. & P. SS. Co. 102 U. S. 541, 26 L. 
 ed. 224, it was decided that vessels navigating the high seas, al- 
 though engaged only in the transportation of goods and passen- 
 gers between ports and places in the same state were subject to 
 the acts of Congress regulating the liability of the owners of 
 vessels navigating the high seas by virtue of the power of Con- 
 gress over commerce. But in the recent case of Lehigh Yalley 
 
 ' Re Annapolis, W. & B. E. Co. 1 Inters. Com. Rep. 315. 
 
 ^iVewj York Board of Trade & Transportation v. Pennsijlvania R. Co. 3 Inters. 
 
 Com. Rep. 417. 
 ^ Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. 
 
 Com. Rep. 383; Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. 
 
 ed. 700, 1 Inters. Com. Rep. 830. 
 * Ex parte EosJiler, 1 Inters. Com. Rep. 28, 30 Fed. Rep. 867. 
 5 Wabash St. L. & P. R. Co. \. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. 
 
 Cora. Rep. 31. 
 « Campbell v. Chicago, M. & St. P. R. Co. 17 L. R. A. 443, 4 Inters. Com. Rep. 
 
 203, 86 Iowa, 587.
 
 528 INTEKSTATE AND Sl'ATE COMMEKCE. 
 
 R. Co. V. PennsTjlvania, 145 U. S. 192, 36 L. ed. 672, 4 Inters. 
 Com. Rep. 87, affirming the decision of the supreme court of 
 Pennsylvania, reported in 2 Inters. Com. Rep. 226, also in a note 
 to 1 L. R. A. 232, it was also decided by the Supreme Court of the 
 United States that the mere passage of freight and passengers 
 over the soil of another state in transit between points in the 
 same state, does not render the transportation interstate commerce 
 so as to exclude the power of the state in which the shipments 
 were made to tax the traffic. And the court says that it was un- 
 necessary in Lord v. Goodall^ N. (& P. SS. Co. supra., to invoke 
 the power to regulate commerce in order to find authority for 
 the law in question, as it might be referred to the power as to 
 maritime law. Another consideration as stated in both cases is 
 that the laws of nations on the high seas might become involved 
 and the United States compelled to respond. In Pacific Coast 
 SS. Co. V. Railroad Comrs. 9 Sawy. 253, the circuit court of the 
 United States held that California state railroad commissioners 
 had no power to regulate or interfere with ti-ansportation by a 
 steamship company between ports within the state if they were 
 in transit to or from other states or if the transportation consisted 
 of voyages upon the ocean bringing the steamships under the ex- 
 clusive control of Congress. The above decision of the United 
 States Supreme Court seems to settle the law in accordance with 
 the decision in Campbell v. Chicago., M. c& St. P. R. Co. 17 L. 
 R. A. 413, 4 Inters. Com. Rep. 203, 86 Iowa, 587, thus overrul- 
 ing State V. Chicago, St. P. M. & 0. R. Co. 2 Inters. Com. Rep. 
 519, 3 L. R. A. 238, 40 Minn. 267, in which the railroad and 
 warehouse commission of the state was held to have no authority 
 to fix the rates for transportation between two points within the 
 state over a route extending across a neighboring state. And it 
 would seem also to overrule New Orleans Cotton Exch. v. Cin- 
 cinnati, N. 0. & T. P. R. Co. 2 Inters. Com. Rep. 289, and 
 Sternljerger v. Cape Fear & Y. V. R. Co. 2 Inters. Com. Rep. 
 426, 2 L. R. A, 105, 29 S. C. 510, in wliich the decision was sim- 
 ilar to that of the Minnesota case, unless a distinction is to be 
 made in the South Carolina case by reason of the fact that the 
 transportation between points in the same state was over several
 
 INTERSTATE COMMEKCE COMMISSION. 529 
 
 railroads, some of which were entirely in that state and some en- 
 tirely in North Carolina, and others partly in both states. Some- 
 what remotely connected with this question is the decision in 
 Scammon v. Kansas City, St. J. <& C. B. R. Co., 41 Mo. Aj^p. 
 194, to the eifect that a shipment from another point in the same 
 state to Kansas City, Mo., does not become interstate commerce 
 because the delivery was actually made across the state line in 
 Kansas where the consignee's place of business was, as the con- 
 tract was for a shipment to Kansas City, Mo., and any other place 
 of delivery was merely for the convenience of the parties. 
 
 A shipment is not within the provisions of a statute forbidding 
 carriers within the state to limit their common law liability, where 
 the contract provides for the carrying of the goods to a foreign 
 port by means of the carrier's own line, its connecting lines in an- 
 other state, and an ocean steamship company. A statute forbid- 
 ding common carriers within the state, on land or in boats or ves- 
 sels on the waters entirely within the body of the state, to limit 
 or restrict their liability as it exists at common law, applies to 
 shipments purely domestic beginning and ending in the state. A 
 clause limiting the liability of a railway company to its own line 
 which is wholly within the state will not convert into a domestic 
 hill of lading an instrument which purports on its face to be a 
 through bill of lading to a foreign port, providing for the trans- 
 portation of the goods to their foreign destination and fixing the 
 through rate of freight.' 
 
 The general doctrine that an agency in transportation which is 
 entirely within the limits of a state may be regarded as engaged 
 in interstate or foreign commerce has been long established. 
 Thus a steamer running entirely within the limits of a state is an 
 instrument of interstate commerce when engaged in receiving 
 and transporting goods in the course of transportation from one 
 state to another.' So any railroad wliich forms a part of or con- 
 stitutes a link in a through line extending into several states is 
 ^engaged in interstate commerce so far as it transports goods 
 
 1 Missouri Pac. B. Co. v. Sherwood, 17 L. R. A. 643, 4 Inters. Com. Rep. 240, 
 
 84 Tex. 125. 
 ^ The Daniel Ball v. United States, 77 U. S. 10 Wall. 557, 19 L. ed. 999. 
 34
 
 530 INTERSTATE AND STATE COMMERCE. 
 
 bound from one state to another.* And vessels engaged in tow- 
 ing or lightering in aid of vessels which are engaged in foreign 
 or interstate trade and commerce are themselves to be regarded 
 as engaged in such commerce.' While the above cases do not 
 directly decide any question of shipments, but questions as to 
 license, taxation, or other control and regulation of the agencies 
 of commerce, they involve questions as to the nature of transpor- 
 tation within a state when it is only a part of transportation be- 
 yond the limits of the state. So the regulation of charges for 
 transportation within a state by a railroad which is only a part of 
 a through transportation between states is beyond the power of 
 the state.' But when two carriers act independently though con- 
 currently in making reduced rates, and no through bill of lading 
 or freight receipt is given, and neither is interested in or liable 
 for the carriage of goods beyond its own line, the transportation 
 by one carrier entirely within the limits of a state is not interstate 
 commerce, although the transportation by the other carrier ex- 
 tends into another state, and the Interstate Commerce Act does 
 not apply to the former carrier unless the goods are shipped di- 
 rectly to or from a foreign country,'' When the products of the 
 farm or the forest are collected and drawn, floated, or otherwise 
 brought into a town or station, whether on a river or a line of 
 railroad, they are not exports or in process of exportation until 
 committed to a common carrier for transportation out of the state, 
 or started on such ultimate passage.* Where transportation of 
 goods destined for a point without the state has been actually 
 begun, temporary stoppage within the state, without the intention 
 of abandoning the original movement, which is ultimately com- 
 pleted, will not deprive the transportation of the character of in- 
 
 » Norfolk & W. R. Go. v. Pennsylvania, 136 U. S. 114, 34 L. ed. 394, 3 Inters. 
 
 Com. Rep. 178. 
 ^Moran v. New Orleans, 112 U. S. 69, 28 L. ed. 653; Siiinot v. Davenport, 63 
 
 U. S. 22 How. 227, 16 L. ed. 243; Foster v. Davenport, 63 U. S. 22 How. 
 
 244, 16 L, ed. 248; Harmon v. Chicago (111.) 34 Am. & Eng. Corp. Cas. 149. 
 » Wahash, St. L. & P. R. Co. v. lllinois.US U. S. 557, 30 L. ed. 244, 1 Inters. 
 
 Com. Rep. 31; Louisville & N. R. Co. v. Railroad Commission of Tennessee, 
 
 19 Fed. Rep. 679. 
 * Ex parte Koehler, 1 Inters. Com. Rep. 28, 30 Fed. Rep. 867. 
 » Coe V. Eirol, 116 U. S. 517, 29 L. ed. 715.
 
 INTEESTATE COMMEKCE COMMISSION. 531 
 
 terstate commerce.' E'either can the character of transportation 
 to another state be destroyed by shipping to an agent within the 
 state by a local bill of lading and reshipment by him without un- 
 loading, breaking bulk, or delay, to the ultimate consignees in an- 
 other state, and the shipment to the agent is not subject to the 
 regulation as to rates by the state railroad commission.^ 
 
 The Act does not apply to a railroad wholly within a state, joining 
 with connecting steamers in independent although concurrent re- 
 duction of rates, unless goods are going to or from a foreign 
 country. The Interstate Commerce Act does not apply to car- 
 riage wholly within a state of property shipped from or destined 
 to a point without, not in a foreign country.' Knowledge of the 
 carrier, whose line is wholly withm state, that the ultimate desti- 
 nation of freight is without the state will not make'it subject to the 
 Interstate Commerce Act. That the ultimate destination of f reig-ht 
 delivered to a carrier, for transportation from one point to an- 
 other in the same state, is in another state, does not bring the 
 transportation by such carrier within the jurisdiction of the Com- 
 mission.* The word " line " in the Act to Regulate Commerce 
 means a physical line, not a business arrangement.^ A short road 
 used as means of conducting interstate traffic in coal by compa- 
 nies owning connecting interstate roads, is subject to Act to Reg- 
 ulate Commerce. Such road must be accessible to interstate 
 shippers on equal and reasonable terms, and cannot be used to 
 discriminate between mine owners on its line.* The Act to Reg- 
 ulate Commerce should be liberally construed in favor of com- 
 merce among the states ; but when complaint is made or relief 
 sought solely or mainly in the interest of common carriers, the 
 act complained of or the right asserted, must clearly appear to 
 
 ^Delaware & H. Canal Co. v. Com. (Pa.) 1 L. R. A. 233, 2 Inters. Com. Eep. 
 
 222. 
 ' Cutting v. Florida R. & Nav. Co. 46 Fed. Rep. 641. 
 « Ex parte Koehler, 1 Inters. Com. Rep. 28, 30 Fed. Rep. 867. 
 
 * Missouri & I. B. Tie Lumber Co. v. Cape Girardeau & 8. W. R. Co. 1 
 
 Inters. Com. Rep. 607. 
 « Boston & A. B. Co. v. Boston & L. R. Co. 1 Inters. Com. Rep. 571. But, 
 see late opinion of Justice Brewer in Court of Appeals, ante. 
 
 * Heck V. East Tennessee, V. <& O. R. Co. 1 Inters. Com. Rep. 775.
 
 632 
 
 INTERSTATE AND STATE COMMERCE. 
 
 have been forbidden or conferred ; and where the complaining 
 carrier is not in a position to commend itself to the favorable 
 consideration of a court of equity, no strained construction of the 
 law will be made in its favor. The right asserted by a petitioner 
 asking for the enforcement of an order of the Interstate Com- 
 merce Commission arises and is claimed under a law of the 
 United States which relates to a subject over which Congress has 
 exclusive control; and this is sufficient to sustain the jurisdiction 
 of the circuit court, independent of the citizenship of the parties 
 to the controversy, since it involves a Federal question,' 
 
 A complaint, under the Act to Eegulate Commerce, based on 
 acts which were done before the passage of the statute, charges 
 no violation of the Act, within the cognizance of the Interstate 
 Commerce Commission." The person aggrieved should complain 
 in his own name ; complaint by a ticket broker will not be en- 
 tertained.* The complainant need not necessarily have a pe- 
 cuniary interest to be entitled to a hearing.* The burden of 
 proving the exaction of unreasonable rates is on petitioner.^ A 
 complaint, of which no reasonable ground for investigation ap- 
 pears, will not be hied." The Act contemplates that a carrier 
 complained of for cliarging exorbitant rates, may change rates 
 before a hearing. In such case the petition may be dismissed.'' 
 The burden is on the carrier to justify any departure from the 
 rules prescribed by the statutes.* Damages cannot be awarded 
 by the Commission where defendants were entitled to have the 
 amount assessed by a jury.' But a procedure for the enforcement 
 of lawful orders of the Commission, founded upon controversies 
 
 ' Kentucky & I. Bridge Co. v. Louisville & N. B. Co. 2 Inters. Com. Rep. 351, 
 
 3 L. R. A. 289, 37 Fed. Rep. 567. 
 ^White V. Michigan Cent. B. Co. 3 Inters. Com. Rep. 641. 
 ^ Ottinger v. Southern Pac. B. Co. 1 Inters. Com. Rep. 607. 
 
 * Boston <&A. B. Co. v. Boston & L. B. Co. 1 Inters. Com. Rep. 571. 
 
 * Harding v. Chicago, St. P. M. & 0. B. Co. 1 Inters. Com. Rep. 375. 
 
 *La Crosse Manufacturers &J. Union v. Chicago, M. & St. P. B. Co. 2 Inters, 
 
 Com. Rep. 10. 
 ''Fulton V. Chicago, St. P. M. & 0. B. Co. 1 Inters. Com. Rep. 375. 
 ^ife Southern B. <& SS. Asso. 1 Inters. Com. Rep. 278. 
 ^Biddlev.Mw York, L. E. & W. B. Co. 1 Inters. Com. Rep. 787; Heck v. 
 
 East Tennessee, V. & G. B. Go. 1 Inters. Com. Rep. 775.
 
 INTERSTATE COMMERCE COMMISSION. 533 
 
 which required trial by jury, having been provided by the amend- 
 ment of March 2, 1889, of section 16 of the Act to Kegulate Com- 
 merce, it is the duty of the Commission to pass upon the ques- 
 tion of reparation for past damages whenever a claim is made 
 therefor.' The Act does not afiord a remedy for transactions 
 occurring before it took effect.^ The Commission will not ex- 
 press its opinion in a case not within its jurisdiction/ Where 
 the parties neither by evidence nor argument supply the Com- 
 mission with information as to the question propounded, it will 
 not be decided,* The Interstate Commerce Commission has au- 
 thority to institute investigations and to deal with violations of 
 the law independently of a formal complaint, or of direct dam- 
 age to a complainant.' Investigation may be made by the Com- 
 mission on its own motion, concerning a course pursued by cer- 
 tain carriers in respect to compliance with the provisions of the 
 Act to Regulate Commerce.^ A complaint made for the pur- 
 pose of retaliation for a fancied wrong — as, to get even with a 
 carrier for the revocation of complainant's pass — does not com- 
 mend itself to the Commission.' It will not determine a colla- 
 teral inquiry or question presented by evidence admissible only 
 for other purposes, until an opportunity has been furnished the 
 parties to be heard in a proceeding such as is provided for by the 
 statute.* It has no power to make rates generally, but only to 
 determine whether rates imposed by railroads are in conflict with 
 statute.' It has no power to enforce contracts, nor has it any 
 general power to manage business of carriers.'" The Commission 
 
 ^Madoon v. Chicago <& JSf.W. B. Co. 3 Inters, Com. Rep. 711. 
 
 2 Ottinger v. Southern Pac. R. Co. 1 Inters. Com. Rep. 607; Traders & T. 
 
 Union V. Philadelphia & R. R. Co. 1 Inters. Cora. Rep, 371; Holbrook v. 
 
 Si. Paul, M. & M. R. Co. 1 Inters. Com. Rep. 333. 
 ^Re Iowa Barb Steel Wire Co. 1 Inters. Com. Rep. 605. 
 * Rice V. Louisville & N. B. Co. 1 Inters. Com. Rep. 723. 
 
 5 Re Grand Trunk R. Co. 2 Inters. Com. Rep. 496. 
 
 6 Re Atlanta & W. P. B. Go. 2 Inters, Com. Rep, 461, 
 
 T Slater v. Northern Pac. B. Co. 2 Inters, Com. Rep. 243, 
 
 8 Business Mens Asso. v, Chicago cfe N. W. B. Co. 2 Inters. Com. Rep. 48. 
 
 9 Thatcher v. VitcMurg B. Co. 1 Inters. Com, Rep. 356; Re Theatrical Rates, 1 
 
 Inters, Com. Rep. 18. 
 >o Traders & T. Union v, Philadelphia & B. B. Co. 1 Inters, Com. Rep. 371,
 
 534: INTERSTATE AND STATE COMMERCE. 
 
 has only a limited power, expressly defined by the Act, to inter- 
 fere to prevent M^rong and oppression in specified cases." The 
 statute provides that "no complaint shall at any time be dis- 
 missed because of the absence of direct damage to the complain- 
 ant," and defendants are therefore not entitled to a dismissal of 
 the complaint on the ground that the petitioners, being merely 
 commission merchants, can sustain no direct or material damage 
 under the rates in question." When on complaint of a carload 
 shipper unjust discrimination is alleged to result from equal rates 
 on carload and less than carload quantities of the same commod- 
 ity, the burden of proof is upon the complainant.' 
 
 When a carrier on complaint under the fourth section avers such 
 substantial dissimilarity in circumstances and conditions as justify- 
 ing its greater charge for shorter hauls, it is concluded by its 
 pleading, and must affirmatively show that the circumstances and 
 conditions of which it is entitled to judge in the first instance, are 
 in fact substantially dissimilar ; but upon an application for relief 
 under the fourth section proviso, the carrier is not limited by such 
 a rule of evidence, and may present to the Commission every ma- 
 terial reason for an order in its favor. There seems to be no lim- 
 itation upon the power of the Commission to grant relief under 
 that proviso when, after investigation, the Commission is satisfied 
 that the interests of commerce, and common fairness to the car- 
 riers, require that an exception should be made.* When investi- 
 gation by the Commission to inquire into the business manage- 
 ment of a common carrier has been fully concluded as to some 
 matters, and not concluded as to others, an order may be made 
 pendente lite, as to the former, and the cause retained for further 
 consideration and order as to the latter.^ The fact, that the prop- 
 erty and affairs of a carrier have been placed by a United States 
 court in the hands of a receiver, does not alfect the jurisdiction of 
 
 ' Traders & T. Union v. Philadelphia & R. E. Co. 1 laters. Com. Rep. 371; 
 
 lie Iowa Barb Steel Wire Co. 1 Inters. Com. Rep. 605. 
 ^ James v. Canadian Pac. R. Co. 4 Inters. Com. Rep. 274. 
 
 * BrowneU v. Columbus & C. M. B. Co. 4 Inters. Com. Rep. 285. 
 
 * Trammell v. Clyde SS. Co. 4 Inters. Com. Rep. 121. 
 
 ^ Be Carriage of Persons Free or at Beduced Bates, 3 Inters. Com. Rep. 717.
 
 INTERSTATE COMMERCE COMMISSION. 535 
 
 the Commission under a complaint charging such carrier with vio- 
 lation of the Act to Regulate Commerce/ JSTor should the fact 
 of a receivership for a defendant carrier subsequent to complaint, 
 interfere with the progress of a proceeding brought merely for the 
 purpose of railway regulation.'' A service upon the main line of 
 a railway, outside of 3'ard limits and under orders, as in case of 
 regular or special trains, is not a switching service ; and an order 
 of the railway commissioners that all shipments tendered shall be 
 switched over such line will not be enforced by a decree, where 
 its enforcement involves a change in the management as to classi- 
 fication and opei'ation of trains, and would necessitate an exten- 
 sion of the company's line for switching service, and the subjec- 
 tion thereto of a part of tlie main line track outside the yard limits 
 under direction of a yardmaster.' Tlie provision of the Interstate 
 Commerce Act, that the findings of fact of the Commission shall 
 be prima facie evidence of the matters therein stated, does not 
 make them conclusive in proceedings before the court to enforce 
 the order of the Commision ; but the court must consider all evi- 
 dence submitted, and base its judgment thereon/ 
 
 The principal office, within the meaning of the Act of Congress 
 authorizing a circuit court where such office is situated to enforce 
 orders of the Interstate Commerce Commission, of a railroad cor- 
 poration created by an Act of Congress which does not prescribe 
 where such office shall be kept, is the one where its principal offi- 
 cers have their business domicil, the meetings of stockholders, 
 directors and executive committee are held, the stock books kept 
 and the dividends declared, rather than the place where the sub- 
 ordinate officers in charge of the operating, traffic and accounting 
 departments of the business discharge their duties." The pro- 
 cess of a Federal court was refused by Judge Gresham in the 
 U. S. Circuit Court in aid of an investigation before the Inter- 
 
 ' Board of Trade of Troy v. Alabama Midland R. Co. 4 Inters. Com. Rep. 348. 
 
 « TrammeU v. Clyde SS. Co. 4 Inters. Com. Rep. 121. 
 
 'Slate V. Chicago, M. & St. P. B. Co. (Iowa) May 23, 1898. 
 
 ■* Interstate Commerce Com. v, Atchison, T. & S. F. R. Co. 4 Inters. Com. Rep. 
 
 323, 50 Fed. Rep. 295. 
 ^Interstate Commerce Com. v. Texas & P. R. Co. 4 Inters. Com. Rep. 62.
 
 536 INTERSTATE AND STATE COMMERCE. 
 
 state Commerce Commission, declaring it an administrative and 
 not a judicial body; and that a proceeding before an admin- 
 istrative body is not a "case" or "controversy" witliin tlie consti- 
 tutional powers of the Federal courts. The conclusion reached 
 was that so much of section 12 as autliorizes the courts to use 
 •their process in aid of inquiries before the Interstate Commerce 
 Commission is unconstitutional and void, and the application was 
 dismissed/ The United States Supreme Court on appeal denied 
 this doctrine in toto, reversing the decision of the circuit court.' 
 
 ^109. State Railroad Coimnission. 
 
 Investing a railroad commission with authority to make just 
 and reasonable rules and regulations to prevent excessive charges 
 and unjust discriminations and preferences by carriers, the rea- 
 sonableness and legality of which is reviewable by the courts, is 
 not unconstitutional as a delegation of legislative power. Au- 
 thority is given to the railroad commission to hear and determine 
 complaints of unjust discriminations and preferences under a 
 Railroad Commission Act, which expressly provides that if a rail- 
 road company is guilty of a violation of the rules of the com- 
 mission and after due notice of such violation does not make full 
 recompense for the wrong or injury done, it shall incur a penalty, 
 and also constitutes such commission a court of record. The de- 
 tails of practice and pleading may be supplied by a railroad com- 
 mission which is constituted a court of record under the inherent 
 power of every court of record to make such rules not inconsist- 
 ent with the law as are necessary to the exercise of the powers 
 conferred upon it.' The provision for a railroad commission, in 
 a state constitution, the control of which extends to " transporta- 
 
 ^ Re Interstate Commerce Commission, 4 Inters. Com. Rep. 315, 53 Fed. Rep. 
 476. 
 
 "See Interstate Commerce Commission v. Brimson, 4 Inters. Com. Rep. 545, 
 154 U. S. 447, 38 L. ed. 1047. 
 
 2 Atlantic Exp. Co. v. Wilmington & W. B. Co. 4 Inters. Com. Rep. 294, 18 L. 
 R. A. 393, 111 N. C. 463.
 
 STATE BAILKOAD COMMISSION. 53T 
 
 tion companies," should be construed to extend the supervision 
 of the commission to all persons engaged in the business of trans- 
 portation, whether as corporations, joint stock companies, part- 
 nerships or individuals.' A state raih'oad commission will not be 
 enjoined from carrying into effect a maximum schedule of freight 
 rates made by it, on the ground that they were so low as to pre- 
 vent the railroad fj-om doing a compensatory business, where the 
 evidence as to the probability of loss is substantially conflicting, 
 and only a very small part of the local traffic will be affected by 
 the rate, until experience has shown that such rate is not compen- 
 satory. "Where the state railroad commission was temporarily 
 enjoined from enfoi-cing a maximum schedule of freight rates, on 
 the g.'ound that they were so low as to j)revent a compensatory 
 business by the railroads, it was not a violation of the injunction 
 for them to make another schedule of rates, after investigation 
 of another complaint, even though the purpose of the complaint 
 was to evade the injunction, as the commissioners did no more 
 than their duty in hearing the complaint and establishing proper 
 rates upon the decision thereof.^ An inquiry by the courts into 
 the reasonableness of rates established by state authority for rail- 
 road transportation is not prevented by the fact that the legisla- 
 ture has pursued the forms of law in prescribing a schedule of 
 rates; but the question is open and must be decided in each case, 
 whether the rates prescribed are within the limits of legislative 
 power, or are mere proceedings which, if not restrained, will work 
 a confiscation of property.^ The Mississippi statute of March 2, 
 1888, as settled by the supreme court of that state, applies solely 
 to commerce within the state ; and the Supreme Court of the 
 United States must accept as conclusive such construction of the 
 statute of the state by its highest court.* 
 
 1 Moran v. Boss, 79 Cal. 549. 
 
 « Chicago, B. & Q. B. Co. v. Dey (C. C. S. D. Iowa) 38 Fed. Rep. 656. 
 
 » CMcago <fe N. W. B. Co. v. Dey, 2 Inters. Com. Rep. 325, 1 L. R. A. 744, 35 
 Fed. Rep. 866. 
 
 * Louisville, N. 0. & T B. Co. v. Mississippi, 3 Inters. Com. Rep. 801, 133 XJ. 
 S. 587, 33 L. ed. 784.
 
 538 INTEKSTATE AND STATE COMMERCE. 
 
 "Where a tariff of freight and passenger rates has been estab- 
 lished bj the state railroad commissioners, and the railroad com- 
 pany and the commissioners differ as to whether such rates, consid- 
 ered as a whole, will prove remunerative to the company, and there 
 is room for a difference of intelligent opinion on the question, the 
 courts cannot interfere or substitute their judgment for that of 
 the commissioners, but the tariffs, as fixed by the commissioner^' 
 must, in so far as the courts are concerned, be left to the test of 
 experiment.* So long as public officers confine themselves to 
 such duties as are confided to them by law, the court will not in- 
 terfere to see whether they are acting wisely or judiciously.' A 
 statute prohibiting more than fair and reasonable rates by a rail- 
 road corporation, being merely declaratory of a common law rule, 
 although penal, does not deprive the company of its property 
 without due process of law, because the statute does not fix any 
 limit of the rates, — especially where a provision is made in the 
 same statute for the fixing of rates by commissioners. There is 
 no unconstitutional delegation of power to railroad commissioners 
 by a statute authorizing them to fix reasonable maximum rates 
 of charges for freight and passenger traffic, where their schedule 
 is not final but is made merely prima facie evidence of the rea- 
 sonableness of the rates established. Making a schedule com- 
 piled by commissioners prima facie evidence that the rates 
 therein fixed are reasonable maximum rates of charges for rail- 
 road carriage does not infringe upon the right of trial by jury. 
 Provisions in a statute as to unlawful discrimination in rates will, 
 even if unconstitutional, not make invalid other provisions as to 
 reasonableness of rates. Where only transportation within the 
 state, and that which is .not a part of any continuous transporta- 
 tion without the state, is within the provisions of an act, it does 
 not affect interstate commerce. The power of railroad commis- 
 sioners to make a schedule of reasonable maximum rates does not 
 impair the obligation of the contract of a railroad company, 
 
 ^Pemacola & A. R. Co. v. Slate, 2 Inters. Com. Rep. 522, 3 L. R. A. 661, 25 
 Fla. 310. 
 
 * Western U. Teleg. Co. v. New York, 2 Inters. Com. Rep. 53 J, 38 Fed. Rep 
 552.
 
 STATE EAILROAD COMMISSION. 639 
 
 under an act wliicli authorized its board of directors to establish 
 rates of toll from time to time, but also provides that the com- 
 pany's by-laws shall uot be repugnant to the constitution and 
 laws of the state.* 
 
 A statute authorizing railroad commissioners to fix reasonable 
 and just freight rates, and providing that such rates shall be suffi- 
 cient evidence, in an action to enforce them, of their reasonableness, 
 is not unconstitutional as making them conclusive evidence and de- 
 priving the railroad companies of a full hearing upon the reason- 
 ableness of the rates fixed. The courts will not interfere or grant 
 any relief to a railroad company against rates fixed by commis- 
 sioners, upon a complaint made as to one or several rates only, or 
 where the freight and passenger rates established by the commis- 
 sioners are not assailed as an entirety, for the courts have no power 
 to make freight or passenger tariffs,' But reduction of rates of 
 transportation upon a railroad so as to injure the vested rights of 
 the carrier in his property by statute or by the act of a railroad 
 commission, is unconstitutional as a deprivation of property with- 
 out due process of law.^ 
 
 The provisions of the Hoult Law (Oregon) passed Feb. 20, 
 1885, leaving to railroad companies the right, under certain 
 limitations, to fix freights, and declaring the charging of 
 more for a shorter than for a longer haul in the same 
 direction an unjust discrimination, are repealed by the Oregon 
 Act of Fed. 20, 1891,* leaving to a commission the power 
 to fix rates, subject to a decree of the courts as to their reason- 
 ableness.' A construction by the railroad commissioners, of the 
 term " car load," in a statute fixing the maximum freight rates 
 at so much per car load for each of the several classes of freight, 
 as meaning, in the light of existing usage, ten tons, and not all 
 
 ^Richmond & D. R. Go. v. Trammel, 53 Fed. Rep. 196. 
 
 « Chicago, B. & Q. R. Go. v. Jones, 149 111. 361, 24 L. R. A. 141. 
 
 3 Glyde v. Richmond & D. R. Go. 57 Fed. Rep. 430. 
 
 •»2 Hill's Code (3d ed.) p. 1967. 
 
 ^ State V. Rogers, 23 Or. 348.
 
 540 INTERSTATE AND STATE COMMEKCE. 
 
 that a car can safely carry, is reasonable and just and will be fol- 
 lowed by the courts where it has been acted upon long enough 
 to become a rule. The enforcement of a tariff of freight and 
 passenger rates which will not pay the expenses of operating a 
 railroad was held, upon the pleadings, to show an abuse of the 
 discretion given to railroad commissioners by the statute author- 
 izing them to prescribe reasonable and just rates of freight and 
 passenger transportation, and to amount to a taking of the rail- 
 road company's property without just compensation.' A Federal 
 court has jurisdiction of a suit by a railroad company chartered 
 in one state to restrain the railroad commissioners of another 
 state from putting in force a scliedule of rates, since such a suit 
 is not one against a state, within the 11th Amendment of the 
 United States Constitution." But the order of the state board of 
 transportation determining what is a proper cliarge to and from 
 any points within the state, based on its linding of facts, will be 
 prima facie evidence of its correctness.^ The Iowa Act of April 
 5, 1888, gives to the state board of railroad commissioners power 
 to make a full schedule of maximum rates of trans^jortation 
 charges of railroad companies, after the investigation of any com- 
 plaint; which schedule shall apply to all points within the state, 
 and shall not be limited to the matter set out in the complaint.* 
 The word " locality," in the Act prohibiting discrimination against 
 any person, iirm, corporation or locality, in railway charges, may 
 refer to a village, city, county or portion of the state.* An order 
 of railroad commissioners providing that the maximum rate of 
 freight to be charged by any railroad company receiving freight 
 from a shipper at a station on its line destined to a point on the 
 line of another road, or receiving freight from another road des- 
 tined to a point on its own line, shall be a certain per cent of the 
 
 ^Boss V. Kansas City, St. J. & G. B. B. Co. Ill Mo. 18. 
 
 2 Chicago & N. '^. B. Co. v. Bey, 2 Inters. Com. Rep. 325. 1 L. R. A. 744, 35 
 Fed. Rep. 866; Bichmond & D. B. Co. v. Trammel, 53 Fed. Rep. 196. 
 
 ^ State Y.Fremont, E. & M. V. B. Co. 22 Neb. 318. 
 
 ♦ Chicago, B. & Q. B. Co. v. Dey, 38 Fed. Rep. 656. 
 
 ^ State V. Fremont, E. & M. V. B. Co. 22 Neb. 313.
 
 STATE BAILEOAD COMMISSION. 541 
 
 single rates, fixes a joint rate, requiring the statutory notice for 
 establishing an original rate, and is not a mere revision of the 
 schedule of rates with reference to single rates, which may be 
 made without notice under the Iowa statutes. The fixing of a 
 joint freight rate, by the Iowa railroad commissioners, for ship- 
 ments over two or more lines in the state, is governed by the 
 latter section of Iowa Act 1S90, and is unauthorized by Act 
 1888 and the first section of Act 1890; and notice of intention to 
 fix such freight rate as provided by Act 1890, chap. 17, § IT, is 
 essential to the jurisdiction of the board.^ Where a schedule 
 of rates for railroad charges, fixed by legislative authority, 
 will not pay the cost of necessary service, a^Dpliances and the 
 repair thereof, interest on bonds, and then leave something for 
 dividends, its enforcement will be enjoined. In a suit to restrain 
 the enforcement of unreasonable rates, it is no defense that jDlain- 
 tiff is a foreign corporation and may retire when the business 
 ceases to be profitable, or that it operates through other states, 
 where no rates are fixed which wiU enable it to make profit. In 
 a suit to restrain the enforcement of unreasonable rates it is no 
 defense that the reduced rates may increase the volume of busi- 
 ness and make it the more remunerative in the future.' Where 
 the actual cost for switching cars in a city exceeds the compensa- 
 tion fixed therefor by a schedule of rates prej^ared by state rail- 
 road commissioners, the schedule cannot be enforced.' 
 
 Indeed, it has been said that courts cannot carry into efi'ect the 
 decisions of the railroad commissioners. ^N^either the attorney 
 general nor the com'ts can enforce their order,^ and it is beyond 
 the powers and functions of the courts to hold practically under 
 their control the administration of railroad afiiairs as to freight and 
 other business.^ An order or recommendation of the railroad 
 commissioners requiring a railroad company to repair its road or 
 
 » Chicago <& N. W. R. Co. v. Dey, 2 Inters. Com. Rep. 325, 1 L. R. A. 744. 35 
 Fed. Rep. 866. 
 
 * Slate V. Cliicago, B. <& Q. R. Co. (Iowa) May 14, 1894. 
 
 8 Chicago, St. P. M. & 0. R. Co. v. Becker, 35 Fed. Rep. 883. 
 *Peovle v.New York, L. E. & W. R. Co. 104 N. Y. 58, 58 Am. Rep 484- Peo- 
 ple V. Rome, W. & 0. R. Co. 103 N. T. 95. 
 
 * Chouteau v. Union li. & Transit Co. 22 Mo. App, 286.
 
 5i2 INTEESTATE AND STATE CCMMERCE. 
 
 track for the security, accommodation, and convenience of the 
 pubhc, is, under Kan. Gen. Stat. 1889, 1" 1328, advisory only, 
 and is not conclusive either upon the railroad company or on the 
 courts.' The penalties prescribed by Mass. Pub. Stat. chap. 
 112, §§ 192-194, cannot be recovered against a railway comj)any 
 for refusing to carry milk for the rates lixed by the railroad com- 
 missioners, where the proceedings before the board w^ere not 
 regular and formal, and its order was not explicit, and the record 
 does not show that the company was ever notified of the pro- 
 ceedings or had an opportunity to be heard before the commis- 
 sioners.'' The Kailroad Commission Act of Florida conferring 
 authority upon railroad commissioners to fix reasonable freight 
 and transportation railway rates is not unconstitutional as author- 
 izing an exercise of judicial or legislative power, which cannot 
 be delegated.' A railroad company which has not exacted a 
 charge in excess of the maximum rate fixed by Mo. Act 1887, 
 regulating charges by carriers, and providing that the railroad 
 commissioners may, upon failure of the carrier fix a schedule of 
 reasonable rates, is not, in the absence of rates fixed by the com- 
 missioners, liable in treble damages for extortion, under the pro- 
 visions of such Act giving a right of action to a shipper for un- 
 lawful charges." The charter of a railroad company is not a 
 contract, the obligation of which is impaired by a statute, creating 
 a commission to provide for tlie regulation of freight and passen- 
 ger rates, prevent unjust discrimination and enforce certain police 
 regulations affecting railroad companies doing business in that 
 state/ 
 
 %110. Uniforin Classification. 
 
 When the Act of Cono-ress to Reo-ulate Commerce went into 
 effect the several articles of commerce which were the subjects 
 of transportation by rail were, to a considerable extent, in dif- 
 
 ' State V. Kansas Cent. R. Co. 47 Kan. 497, 49 Am. & Eng. R. Cas. 176. 
 * Littlejield v. Fitchburg R. Co. 158 Mass. 1. 
 3 Starrs v. Pensacola & A. R. Co. 29 Fla. 617. 
 '^Winsor Coal Co. v. Chicago & A. R. Co. 52 Fed. Rep. 716. 
 ^ Stone Y. Farmers Loan & T. Co. ("Railroad Commission Cases") 116 U. S. 
 307, 29 L. ed. 636.
 
 TJNIFOKM CLASSIFICATION. 54:3 
 
 ferent sections of the United States, for the purposes of rating, 
 classified differently. In one section the several carriers were 
 perhaps found to be associated together in the use of a classifica- 
 tion containing a number of classes, commonly in the neighbor- 
 hood of six, in which the articles expected to be offered for trans- 
 portation were arranged, those which it was thought should bear 
 the highest rates being placed in the first class, and so on in de- 
 scending order to the last. Such an arrangement facilitated the 
 making of rate sheets, since it enabled a great number of articles 
 to be rated together in a single paragraph by specifying the rate 
 for the class instead of for each article separately, as would other- 
 wise have been necessary. The carriers associated in another 
 section would perhaps have made and put in force a classification 
 considerably different from this; and overlapping the territory 
 (jf one or both there was, in many cases, found in force still an- 
 other classification, made sometimes by the carriers, sometimes 
 by state authorities for the roads of the state. Even single roads 
 in some cases had independent classifications. The consequent 
 confusion may easily be conceived. The purchaser of property 
 at a distance often found great difficulty in learning what the 
 charges for carriage would be, and this difficulty sometimes ap- 
 proached an impossibility when the shipment was for long dis- 
 tances, since the classification might change several times on the 
 way. The consequent difficulty in making the ordinary calcula- 
 tions for business sales or purchases which must always be af- 
 fected by the charges for carriage, is obvious. Traffic managers 
 and agents found themselves, almost as much as the shippers, em- 
 barrassed by the difficulty of keeping so far posted as to be able 
 to state with accuracy the successive sums which would make up 
 the total to be paid by the shipper of freight for any consider- 
 able distance. The consequent errors and claims against the car- 
 riers for refunding: overcharo-es were infinite in number and fur- 
 nished a great amount of labor for the management of roads, 
 besides resulting in many losses. 
 
 One peculiarity of this variety of classification was that, al- 
 though all were made with some regard to uniform general prin- 
 ciples, they all varied in the application of these principles, and
 
 54:4: INTERSTATE AND STATE COMMERCE. 
 
 upon considerations more or less special to their respective dis. 
 tricts. Thus none of them perhaps lost sight of the general prin- 
 ciple, that the rating of articles of commerce may properly be 
 made to bear some proportion to the value, the most valuable 
 being taxed highest to the relief of those which cannot bear trans- 
 portation for a long distance, or perhaps at all, if the charge were 
 to be measured strictly by the carriers' service. Nevertheless 
 each classification qualified this principle in its application with a 
 view to the special benefit of the products and industries of its 
 section ; and the same article might therefore be rated low in a 
 section where the prosperity of the people largely depended upon 
 it and high in another section where its production was limited 
 or unknown, and where other articles of local production were 
 rated low for like local reasons. The classifications thus had, as 
 between different sections, an effect something similar to that 
 which might be produced if the several states had power to lay 
 customs duties and should do so on the principle of protecting 
 local industries. This state of things was one of the first to which 
 the Commission directed its attention, and it has uniformly in- 
 sisted that the several existing classifications ought to be merged 
 into one. The Commission, however, has never overlooked or 
 failed to appreciate the very great difficulties that must attend 
 such a work. It was perfectly obvious that the merging could 
 not be effected by the voluntary action of the railroad authorities 
 which had made the classifications without very great concessions 
 being made on every side; concessions, the necessary effect of 
 which must be, while lowering the relative rates upon some arti- 
 cles of commerce, to very considerably increase them upon others. 
 Not only would the roads be affected thereby, but every section 
 of the country would of necessity be compelled to resign some- 
 thing of the advantage which before it had enjoyed in respect to 
 its special products or industries ; and it could not be expected to 
 assent to this willingly until it should be made to see that ade- 
 quate compensation was made in other directions. It would n. t 
 be enough that the completion of such a work could plainly be 
 seen to be of national importance, and politic and useful for the 
 people as a whole, but it must also be evident to any particular
 
 UKIFOKM CLASSIFICATION. 545 
 
 section that it lost nothing by its accomplishment. Even when 
 this was obvious the local interests unfavorably affected by the 
 unification must be expected to oppose it vio-orously. 
 
 In September, 1SS8, a resolution passed the lower house of 
 Congress directing the Commission, prior to January 1, 1881), to 
 prescribe one uniform classification of freight for the use and 
 guidance of the various railroads of the United States, This 
 resolution was laid aside in the Senate, dou bless because it was 
 believed that the preparation of a satisfactory classification within 
 the time mentioned was quite beyond the power of any body of 
 men ; and, second, because to make a classification by concessions 
 on behalf of every section of the country, it was indispensable 
 that every section should be represented and that the representa- 
 tives should be familiar with the reasons which had influenced the 
 making of the classification then in force. Obviously such repre- 
 sentatives were most likely to be found among traffic managers of 
 roads or officers of railway associations, whose interests, as well as 
 the interests of sections served, were directly involved. The 
 Commission, however, took frequent occasion to impress earnestly 
 upon railway managers the necessity for their taking early action, 
 not only because it was imporuant in the interests of the public 
 and of the roads themselves, but also because it must inevitably 
 be brought about at some not distant day, by statute if not othei*- 
 wise; and every day's delay only prolonged and increased the 
 disorder and confusion. Many railroad managers responded 
 promptly and favorably so far as their individual influence could 
 go, but among many of the ablest and fairest-minded of the man- 
 agers it has all the while been an accepted maxim that to combine 
 freight classifications into one, otherwise than very slowly and by 
 successive stej)s, was quite out of the question, and that all sug- 
 gestions pointing to speedy consolidation could only be looked 
 upon as Utopian. Nevertheless, there have been among those 
 connected with railway service some men of abilit}^ and far-seeing 
 views who have been of a different opinion, and who for the past 
 three years especially have labored so far as other duties would 
 permit of their doing so, to bring about uniform classification 
 speedily. In December, 1SS8, delegates from the New England 
 35
 
 546 INTERSTATE AND STATJ<; COMMEUCK. 
 
 Association, the Trunk Line Association, the Central Traffic As- 
 sociation, the Southern Eailvvay & Steamship Association, the 
 Mississippi Valley Lines, the Western Freight Association, the 
 International Association and the Transcontinental Association 
 convened at Chicago and appointed a standing committee consist- 
 ing of two members from each association " to nnify as rapidly as 
 possible the several classifications now in nse." Of this com- 
 mittee, Mr. J. W. Midgley, of Chicago, who, from the first, had 
 been active and influential in working for uniform classification, 
 was made chairman. The committee had numerous meetings? 
 which continued up to June 21, 1890, when a report was agreed 
 upon for submission to the associations represented. The report 
 was accompanied by a classification also agreed upon, and which 
 it was recommended should be made effective. The classification 
 is voluminous, and with modifications has been adopted and put 
 in force by the several associations now represented, January 1, 
 1895.' The changes which a general uniform classification will 
 make in existing rates must be very considerable in all the asso- 
 ciations, and they require careful study and examination before it 
 can be fully determined that the effect will not be seriously harm- 
 ful. This would be particularly the case in the territory of the 
 Southern Railroad & Steamship Association, where the interests 
 are more diverse than elsewhere, the railroads being in sharp com- 
 petition, not merely with each other, but also with steamship lines 
 at important points. There is every reason to believe, however, 
 that the subject is being earnestly and favorably considered there 
 as well as elsewhere, and with a determination that promises sat- 
 isfactory results. A most unfortunate circumstance attendant 
 upon this effort to accomplish a great reform is that the Transcon- 
 tinental Association failed to unite in the result reached by the 
 conference, so that the business of the Pacific Coast with tlie re- 
 mainder of the country will necessarily for the present be left to 
 the old confusion. JSIevertheless a very long step has now been 
 taken towards the final accomplishment of the great work of uni- 
 fication, and the time is not far off when one classification of 
 
 'Official classification No. 14, C. E. Gill, chairman, 143 Liberty Street, New 
 York.
 
 UNIFORM CLASSIFICATION. 547 
 
 freights for the purpose of rating for transportation by rail will 
 cover the whole territory which is subject to the Constitution and 
 laws of the United States. 
 
 In considering the question of uniform classification the Inter- 
 state Commerce Commission decided the case of Coxe Brothers & 
 Co. against the Lehigh Valley Eailroad Company. The points 
 decided are briefly as follows : First — Classification not obligator}'- 
 on roads, but when misused, commission may correct. Second — 
 Besides terminal expenses there are other considerations which 
 justify lower proportionate charges for long distances. Third — 
 Several connecting lines doing through business treated as one in 
 the adjustment of rates. Fourth — Commission is authorized to 
 determine what rates are reasonable, as well as what are unreason- 
 able. Fifth — The present system of grouping mines in the Lehigh 
 and Mahanoy anthracite coal regions for rates east and west sub- 
 jects complainants to no undue prejudice. The rates which are now 
 $1.70, $1.40 and $1-20 per ton, according to sizes, are to be re- 
 duced to $1.50, $1.25 and $1.05. The opinion refers to the com- 
 plaint that bitumiuAus and anthracite coals are carried at different 
 rates over the same distance and the claim that both should be 
 put in the same class of freight. It is conceded, says the com- 
 mission, that the bituminous coal mines are twice, or more than 
 twice as distant as the anthracite mines from New York harbor, 
 or Perth Ainboy, while transportation charges on bituminous are 
 greater in the aggregate but less in proportion to the distance or 
 per ton per mile. It is shown that in the last ten years the price 
 of anthracite in eastern markets has been maintained and the 
 price of bituminous considerably reduced. The complainants in- 
 sist that the displacement of anthracite by bituminous, has de- 
 prived them and other miners of hard coal, of profitable markets, 
 and that this condition is the result of excessive rates on anthra- 
 cite, and of inequality and discrimination in favor of bituminous. 
 The complainants ask relief through lower charges on anthracite, 
 at the same time insisting that the charge on two coals shall be in 
 proportion to the distance of carriage. The effect of such a rule 
 is to require increased bituminous rates, or to make them higher 
 than they would otherwise be over the longer distances, and thus
 
 54:8 INTERSTATE AND STATE COMMERCE. 
 
 shut the cheaper coal out of New England and the Atlantic coast 
 markets. Any regulation imposing additional transportation or 
 other burdens on bituminous coal to keep it out of eastern mar- 
 kets, would sometimes challenge the wisdom which deposited an 
 abundance of cheap fuel in the east side of the Alleghany moun- 
 tains. The opinion states, the complainants also aver that the de- 
 fendant railway company is giving undue preference to the 
 Lehigh Yalley Coal Company by charging complainants more for 
 the transportation of anthracite coal, than is charged to said coal 
 company. It is shown the railroad company owns the stock, prop- 
 erty and franchises of the coal company, and the same persons are 
 officers of both. The commission thinks that the facts justify 
 the conclusion, that the railroad's charges to others than the coal 
 company are to some extent excessive. Referring to the reduced 
 rates fixed by the commission, the opinion saj^s : The charges so 
 adjusted on the several grades or sizes of coal are applicable to 
 complainants' shipments to Perth Amboy, but are not meant to 
 aifect or establish the relation of the charges made, or to be made, 
 on Buffalo and longer distance shipments, where lower anthracite 
 rates are maintained than are or may be in force on tide ship- 
 ments. The opinion says the rates now determined upon are be- 
 lieved to be liberal for freight so inexpensive as coal, and if after 
 trial, it is found they are too high the commission will not hesi- 
 tate to require further reduction. 
 
 Unreasonable*' or unjust classification of a commodity is not 
 shown by evidence of lower classification for articles widely dis- 
 similar in the elements of risk, weight, bulk, value, or general 
 character. The proper method of comparison is the classification 
 accorded by the carriers to analogous articles. "When an article 
 moves in sufficient volume and the demands of commerce will be 
 better served, it is reasonable to give a lower classification for car- 
 loads than that which is applied to less than carload qnan titles, 
 but the difiierence in such classification should not be so wide as 
 to be destructive to competition between large and small dealers.' 
 The justice of a claim for the lower rating on carload lots can only 
 
 » Thurber v. New York Cent. <£ H. B. R. Co. 2 Inters. Com. Rep. 742, cited 
 and reaffirmed.
 
 UNIFORM CLASSIFICATION. 549 
 
 be determined upon the facts in each case.' Salt requires and gets 
 a commodity rate lower than class rates ; and railroads should only 
 be limited as to such lower ratino; by the rule that a commodity 
 shall not be carried at such unremunerative rates as will impose 
 burdens upon other articles transported, to recoup loss incurred in 
 carrying that commodity." When classification is used as a device 
 to effect unjust discrimination, or as a means of violating other 
 provisions of the statute, the Interstate Commerce Commission 
 must so revise and change it as to correct the abuse.' Two kinds 
 of soap used for the same purposes, and so advertised and held 
 out to the world, and substantially equal in value, should, for pur- 
 poses of transportation and rating, be placed in the same classifi- 
 cation.* Unless within the authorized exceptions to the general 
 rule of the statute, discrimination in charges upon like shipments 
 of the same commodities, based solely upon the purpose or 
 " business motive " of the shipper, are unlawful, whether effected 
 directly or indirectly by methods of classification." The term "a 
 like kind of traffic," as it occurs in the Act to Regulate Com- 
 merce, § 2, in respect to discrimination by carriers, does not mean 
 traffic that is identical, but it means traffic that is of "a like 
 kind " with other freight in the elements of a fair and just classi- 
 fication for the purpose oi arriving at a just and reasonable rate 
 and a rate that will avoid unjust discrimination and unlawful 
 preference." 
 
 Whether a complaint to the Interstate Commerce Commission 
 in regard to classification and rates is formal or informal, it is not 
 enough that it be made against a classification committee or a rate 
 committee concerning grievances alleged to be perpetrated by 
 carriers in the matter of classification and rates, who are repre- 
 sented to some extent by such classification or rate committee in 
 making rates, but which carriers are not bound to accept such 
 
 t 
 
 ' Brownell v. Columbus & G. M. R. Co. 4 Inters. Com. Rep. 285. 
 
 * Anthony Salt Co. v. Missouri Pac. B. Co. 4 Inters. Com. Rep. 33. 
 '"^ Coxe V. Lehigh Valley R. Co. 3 Inters. Com. Rep. 460. 
 
 * Beaver v. Pittsburg, C. & St. L. R. Co. 3 Inters. Com. Rep. 564. 
 ^Duncan v. Atchison, T. & 8. F. R. Co. 4 Inters. Com. Rep. 385. 
 
 *yew York Board of Trade & Transportation v. Pennsylvania R. Co. 3 Inters. 
 Com. Rep. 417.
 
 550 INTERSTATE AND STATE COMMEKCE. 
 
 classification and rates, and do not accept them any further than 
 thev see proper to do so ; in such a case the carriers who, it is 
 al]e<^ed, are guilty of perpetrating the grievances should be made 
 the parties defendant to the complaint, and the complaint should 
 point them out by name. The Western Classification Committee 
 in the making of classification and rates represents about seventy- 
 five railroad companies, but the classification and rates made by 
 this committee are merely recommendatory to the carriers in the 
 Association, and it is not obligatory upon the carriers to accept and 
 operate them; some of the carriers upon such articles, for 
 example, salted hides and pelts in less than carloads, make com- 
 modity rates of their own upon the classification and rates differ- 
 ent from those prepared and recommended by the Classification 
 Committee, while other carriers do not ; upon a complaint by a 
 shipper against the Classification Committee alone, upon this 
 statement of facts, it is evident that no investigation or order that 
 the commission could make would have any binding eifect what- 
 ever upon the carriers. Whore all the interstate carriers of the 
 country, working through a committee selected by them for that 
 purpose, are endeavoring to i-each a uniform classification of 
 freight, instead of having the various difi^erent and conflicting 
 classifications that exist, it being apparent to the commission that 
 such uniform classification is a result that is greatly in the public 
 interests, as well as in the interest of the carriers, and that has 
 often been recommended by the conmiission to the carriers, the 
 commission will not embarrass, delay or retard the carriers in this 
 work by instituting investigations of its own under the 12th sec- 
 tion of the Act to Regulate Commerce involving the classification 
 of a few enumerated articles, transported from and to an extended 
 area of country, but unless a formal complaint is made against the 
 carriers in regard to such matter and a hearing of it pressed to a 
 determination by the parties, the commission will wait a reason- 
 able time to see the result of the efl^ort being made by the carriers 
 in their attempt to arrive at a uniform classification. When an 
 informal complaint is made in regard to such a matter, against a 
 classification committee alone, the commission will, if it can, 
 endeavor to reach some ground that will fairly and justly adjust
 
 CLASSIFICATION OK FKEIGHT AND KATES. 551 
 
 the differences between the complaining shippers and the carriers, 
 but if it appear that these conflicting differences exist not only 
 between the carriers and the complaining sliippers, but that there 
 are other localities and other dealers whose interests are directly 
 involved and who are opposed to the relief sought by the 
 complaining shij^pers, then the practice of the commission is not 
 to proceed in any investigation of the matter until the com- 
 plaint is put into such shape that such localities and dealers, as 
 well as the carriers comjDlained of, can have an opportunity to be 
 heard.' 
 
 %111. Classification of Freight and Rates. 
 
 Classification of freight for transportation purposes is lawful." 
 The proper classification of an article for freight rates is to be 
 judged relatively by the classification of other articles similar in 
 character, quality, and conditions of transportation.' 
 
 That a reasonable, fair and just difference may be made in pro- 
 portion to quantity hauled of the same article in a full carload 
 and in less tlian carload lots, and the respective rates charged up- 
 on each according to weight, is a principle that has been often 
 recognized by the Interstate Commerce Commission. That a 
 rate maker may and in fact should take into consideration such 
 controlling conditions, in preparing a classification, as bulk and 
 space occupied, the weight of the article as compared with its 
 dimensions, its value, whether it can be so loaded into a car as to 
 make a full carload, and whether as a matter of fact it is hauled 
 in carloads as well as in less than carloads, are each and all true. 
 A classification of freight designating different classes for carload 
 quantities and for less than carload quantities, for transportation 
 at a lower rate in carloads than in less than carloads, is not in con- 
 travention of the Act to Regulate Commerce.* The difference 
 in the rate of transportation of compressed and uncompressed 
 
 ' McMillan v. Western Classification -Committee, 3 Inters. Com. Rep. 382. 
 2 Thurber v. New York Cent. & H. R. R. Co. 2 Inteis. Com. Rep. 742. 
 2 Myers v. Pennsylvania Co. 2 Inters. Com. Rep. 403; Harvard v. Pennsyl- 
 vania Co. 3 Inters. Com. Rep. 257. 
 * Thurber v, New York Cent. <& H, R. R. Co. supra.
 
 552 INTERSTATE AND STATE COMMERCE, 
 
 cotton by rail carriers should be the actual and necessary cost of 
 compressina:;.' Interstate carriers have power to make coniiuod- 
 ity class rates and special class rates to meet the circumstances 
 and conditions of traffic alono; their lines.'' Cost of service is only 
 one of the elements to be considered in determining proper classi- 
 fication and relative rates for different articles/ In arrany-ins: 
 the classification of articles of commerce, their market value and 
 the shipper's representations to the public as to their character 
 may properly be taken into account in ascertaining the analogy 
 they bear to other articles in determining the class to which they 
 justly belong. The volume of traffic supplied by an article for 
 transportation is an element that may be considered on tlie ques- 
 tion of its classification as a .basis for rates.'' For a special ser- 
 vice by a carrier, such as the transportation of perishable freight, 
 requiring quick movement, prompt delivery at destination, spe- 
 cial fitting up of cars, their withdrawal from other service, and 
 their return empty on fast time, a higher rate than for the car- 
 riage of ordinary freight, is reasonable and just, but should bear a 
 just relation to the value of the service to the traffic, and is not 
 wholly in the discretion of the carrier.^ Competitive commodi- 
 ties are entitled to relatively reasonable rates for transportation, 
 proportioned to each other according to the respective costs of 
 service.^ Terms of art, or terms peculiar to any occupation or 
 bnsiness, used in a classification sheet to designate the product of 
 a particular employment, are supposed to be understood in that 
 employment; and it is not competent for railroad experts, when 
 the meaning of the classification is questioned, to testify in what 
 sense they are understood in classification circles.^ 
 
 ' Neio Orleans Cotton Exch. v. Illinois Cent. B. Go. 2 Inters. Com. Rep. 777. 
 "^ New York Board of Trade <fi Transportation v. Pennsylvania R. Co. '6 Inters. 
 
 Com. Rep. 417. 
 ^ F. Schumacher Milling Co. v. Chicago, R. 1. & P. R. Go. 4 Inters. Com. Rep. 
 
 373. 
 * Warner v. New York Cerd. & II. R. R. Co. 3 Inters. Com. Rep. 74. 
 ''Delaware State Grange P. of II. v. Neio York, P. & N. R. Co. 3 Inters. Com. 
 
 Rep. 554. 
 ^Squire v. Michigan Cent. R. Co. 3 Inters. Com. Rep. 515. 
 ' Uurlhurt v. Lake Shore & M. 8. R. Co. 2 Inters. Com. Rep. 81.
 
 CLASSIFICATION OF FKFIGHT AND KATES. 553 
 
 "Where questions of classification and rates are involved as to 
 one particular article of freight, it is often necessary to examine 
 and consider the classification and rates upon other articles in 
 which the same calculations in respect of value, bulk and expense 
 of handling, and of carriage, would to a considerable extent en- 
 ter ; and for the purposes of such comparison it is not indispensa- 
 bly necessary that the articles should be competitive with each 
 other, though if they are competitive tlien this feature must more 
 strongly bring to view the fact of discrimination in rates, if there 
 be such.' The mere fact that one article, for example, sewing 
 machines, is shipped "in greater quantities" than surgical chairs, 
 when each as a rule is shipped in less than carload quantities, and 
 of no large difterence in bulk, weight and value, and of no ap- 
 preciable difference in expense of handling and of haul, does not 
 constitute in itself any reason why the former should enjoy lower 
 rates or classification than the latter nor with the additional rea- 
 son that they are shipped "in greater quantities." In such a 
 case mere quantity, not measured by a recognized unit of quan- 
 tity adapted to carriage and lessening the expense of handling 
 and carriage, cannot be allowed to affect rates in the transporta- 
 tion of property. The small dealer is entitled to just and rea- 
 sonalde rates on his product, as much so as large dealers, and any 
 discrimination between them in rates based upon the idea that 
 the one class of persons makes many shipments while the other 
 makes but few, is in the expressed judgment of the Interstate 
 t'ounnerce Commission unjust and unreasonable under the pro- 
 visions of the Act to Regulate Commerce. It is a discrimination 
 in favor of one kind of trafl^ic as against another in the vital mat- 
 ter of rates, and is unlawful. The same doctrine found in what 
 the commissioners call " occasional loose judicial dicta," to the 
 effect that a carrier under such circumstances may make " con- 
 cessions" in rates in favor of "a large as against a small quantity 
 of freight," upon the idea that there is "a wholesale and retail 
 principle" involved in it, is a doctrine that they regard as at war 
 with the fundamental purpose of the Act to Regulate Commerce, 
 
 ' Harvard Co. v. Pennsylvania Co. 3 Inters. Com. Rep. 257.
 
 bb-ii IXTEESTATE ASD STATE COMMERCE. 
 
 which has for one of its main objects the protection of the weak 
 as against the strong, and destroys the establishment of propor- 
 tional equity and justice. The commissioners conclude that these 
 dicta, if given full effect, would undermine this fundamental pur- 
 pose, and give to combinations and schemes for securing advan- 
 tages over single individuals a power that would shut out all 
 small competition, and put the weak at the mercy of the strong 
 at every turn where railway transportation became a matter of 
 moment in business transactions. 
 
 The Interstate Commerce Commissioners claim that the lower 
 rate in proportion upon a carload of freight, treating a carload as 
 a unit, than upon the same articles in less than a carload, does not 
 come within any such principle as this, but is founded altogether 
 upon different considerations. TThen an article moves in suffi- 
 cient volume and the demands of commerce will be better served, 
 it is reasonable to give a lower classification for carloads than that 
 which is applied to less than carload quantities ; but the difference 
 in such classification should not be so wide as to be destructive to 
 competition between large and small dealei"s.' So also is the rec- 
 ognized principle that the longer the haul the lower the rate per 
 ton per mile, although the aggregate rate is continually increasing, 
 in consequence of which railway carriers can well afford to make 
 through rates on very long hauls at charges less in proportion ac- 
 cording to distance than local rates upon very short hauls. The 
 proposition of lower rates according to " quantity " is very differ- 
 ent from another with which it is sometimes confounded, namely, 
 that a railroad company which has a very large volume of traffic, 
 consisting of articles of different kinds, can well afford to make 
 cheaper rates than one which has a small volume of traffic, for 
 the reason that the cost of transportation is greatly reduced and 
 the magnitude of its business and the revenue it receives thereon, 
 will justify such cheaper rates. A difference is made by the offi- 
 cial classification between articles boxed and those that are 
 crated. All musical instruments must be boxed or they will not 
 be taken, while it is sufficient if desks, sewing machines, surgical 
 
 ' Brownell v. Columini8 & C. M. R. Co. 4 Inters. Com. Rep. 285.
 
 CLASSIFICATION OF FREIGHT AND KATES. 000 
 
 -chairs and many other articles are crated. But it appears that 
 pianos, cabinet organs, desks, sideboards and sewing machines, as 
 a rule, are all shipped in less than carload quantities, the same as 
 surgical chairs, and when necessary that various articles are trans- 
 ported in the same car with each of these, and that bundles or 
 packages of goods that are not of great weight may be placed 
 upon surgical chairs in the same manner as upon pianos, cabinet 
 organs, desks and sewing machines. 
 
 A question was presented to the commission where the car. 
 load rate of surgical chairs is second class, or 52 cents per 100 
 pounds, from Canton to Boston, but it was said that for all prac- 
 tical purposes it might as well not exist, because manufacturers 
 of tliese articles never ship them in that way, and in the 
 course of their business cannot do so. The reasonableness 
 of this rate is not questioned, but the very great difference 
 between it and the less than carload rate may reasonably be 
 insisted upon as a circumstance wliich shows that the latter 
 is too high. This difference is great, it is a difference be- 
 tween 52 cents per 100 pounds and $1.26 per 100 pounds, or a 
 difference of 74 cents per 100 pounds, on a shipment of one of 
 these chairs from Canton to Boston. The same difference would 
 relatively exist to other points not so far distant. A difference 
 like this under the circumstances the commission decides is man- 
 ifestly too large ; it is so great as to be miusual. A carrier cannot 
 and does not expect to receive equally remunerative rates from 
 each of the different kinds of freight carried by it over its line. 
 It is entitled to a fair, reasonable and just rate upon each of these ; 
 and what is such fair, reasonable and just rate depends upon a 
 variety of considerations. According to its condition, size and 
 weight, a sm-gical chair cannot be said to be light and bulky when 
 crated for shipment. There is of course a small amount of dead 
 space connected with it, but this is frequently true of many kinds 
 of freig'ht. While these surgical chairs are not the heaviest 
 freight, nor the most compact according to dimensions, yet they 
 are far more so than many other kinds of freight. They are 
 greatly more heavy and compact according to space occupied than 
 reclining chairs, and it is dithcult to conceive how reclining chairs
 
 556 INTERSTATE AND STATE COMMERCE. 
 
 could have the backs folded forward over the chair and crated m 
 such manner, as to occupy so little space and at the same time fur- 
 nish so much weight according to space as these surgical chairs. 
 The latter are also much heavier tlian the average barber and 
 dental chairs. After consideration of all the evidence, the Com- 
 mission reached the conclusion, that first class, or a rate of 63 centa 
 per 100 pounds from Canton to Boston, would be a reasonable rate 
 on surgical chairs when partly knocked down and shipped at owner's- 
 risk, crated, in less than carload quantities; that if shipped at carrier's 
 risk when so crated, a first-class-and-one-half rate, or 94 cents per 
 100 pounds would be just and reasonable between these points ; 
 and that the same classification adapted to other and shorter dis- 
 tances in the Trunk Line Classification territorj- reached by these 
 carriers, making the rates proportionately lower where the dis- 
 tances are shorter than from Canton to Boston, or higher where 
 they are longer, would be just and reasonable.' 
 
 In a proceeding to correct a classification by tlie initial carrier of 
 freight which, before reaching its destination, must pass over the 
 roads of several carriers, all such carriers should be made parties; 
 but if the initial carrier alone is made defendant the proceeding is 
 not therefore defective. Every carrier is held liable for correctness 
 of weight and classification of freight received so far as same can 
 be practically ascertained.* Violation by one carrier of principles 
 governing relative rates on competitive articles does not justify sim- 
 ilar violations by its competitors.^ A shi})per of freight claiming 
 under a contract of shipment, which he procured by false representa- 
 tions as to the class to which the freight belonged, thereby ob- 
 taining a lower rate than he would have obtained had it been 
 properly classified, cannot set up that the higher ]-ate sought to 
 be recovered upon discovery of the fraud is an unjust discrimina- 
 tion and therefore unlawful.'* If the classification operates uni- 
 formly, the court cannot decide whether it was the best that could 
 
 ' Harvard Co. v. Pennsylvania Co. 3 Inters. Com. Rep. 257. 
 « Harlburt v. Lake Shore <& M. 8. R. Co. 2 Inters. Com. Rep. 81. 
 
 * Squire v. Michigan Cent. B. Co. 3 Inters. Com. Rep. 515. 
 
 * Mi-ixouri, K. & T. B. Co. v. Trinity County Lumber Co. 1 Tex. Civ. Anp. 
 
 553.
 
 CLASSIFICATION OF FREIGHT AND BATES. 557 
 
 have been made.' "Wliere an existing classification and rate are 
 not shown to operate injuriously to the carriers from a given 
 point, or to give undue advantage to shippers, a change is not 
 justifiable that materially injures an important industry and a 
 class of shippers at that point, who have there built up the indus- 
 try in reliance on a continuation of the previons classification and 
 rate, first established and long maintained by the carriers them- 
 selves without complaint from any quarter.' But an assurance 
 by the carrier, that if one will locate in business on its line his 
 property shall be taken for transportation as belonging to a speci- 
 fied class, cannot bind the carrier so as to compel a classification 
 accordingly. A right to special rates cannot be made out in this 
 way.' 
 
 In arranging the classification of articles of commerce, their 
 market value, and the shippers' representations to the public as to 
 their character, may properly be taken into account in ascertain- 
 ing the analogy they bear to other articles, and determining the 
 class to which they justly belong. This is especially applicable 
 to articles in which there is no free competition among producers 
 and shippers. And carriers are not required to estimate the in- 
 trinsic value of freight as distinguished from its commercial value 
 for purposes of classification and rates. The volume of traffic 
 suj)plied by an article for transportation is also an element that 
 may be considered in its classification, as a basis for rates that are 
 reasonable both for carriers and shippers. Patent medicines man- 
 ufactured and shipped, are rated in the official classification as 
 first class for less than carloads, and third class for carloads. Ale, 
 beer and mineral water, are rated as third class in less than car- 
 loads and fifth class in carloads. The market value of the medi- 
 cines is three times or more higher, than that of the other articles 
 named, and the quantity transported much less. Upon complaint 
 made that the patent medicines should be classified the same as 
 ale, beer and mineral waters, the commission ruled that in view 
 of the much higher market value of the medicines, and the smaller 
 
 ' Bow V. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56. 
 ' Bates V. Pennsylvania R. Co. 2 Inters. Com. Rep. 715. 
 ^Hurlburt v. Lake Shore <& M. 8. B. Co. 2 Inters. Com. Rep. 81.
 
 558 INTERSTATE AND STATE COMMERCE. 
 
 volume of traffic they supply, a higher classification than for the 
 other articles named, in which there is much greater competition 
 among shippers, is not unreasonable, and the classification at pres- 
 ent in force is not shown to be unjust.' A manufacturer's de- 
 scription of an article to induce its purchase by the public also 
 describes it for transportation, and carriers may accept his descrip- 
 tion for purposes of classification and rates. Carriers are not re- 
 quired to analyze freight to ascertain whether it is in fact inferior 
 to the description or public representations under which it is sold, 
 in order to give it a lower rate corresponding to its actual value. 
 Upon complaint by a manufacturer of soap, advertised and sold 
 as toilet soap, charging unjust discrimination by classifying his 
 product in the second class with other toilet soaps, and not in the 
 fourth class with laundry soaps, as he claims it should be classed, 
 for the reason that his toilet soap is not substantially superior to 
 soap put on the market by certain other manufacturers as laundry 
 soap, which, under that description, is transported at a lower rate, 
 it was held that his description of his product for commer- 
 cial purposes as an article of superior grade and value, warrants 
 its classification accordingly, and carriers are not required to 
 classify and transport it as a laundry soap," 
 
 In Proctor v. Cincinnati^ H. & D. R. Co. the complainants 
 were large manufacturers of common soap at Cincinnati, Ohio. 
 In the official classification common soap stands in the fifth class 
 in carload lots. The defendant railroad companies have always 
 given it the rate of fifth class articles, but for many years prior to 
 May, 1889, they charged the complainants for only net weight, 
 the gross weight being one sixth more than net weight, but since 
 said date they have charged for gross weight without diminishing 
 the rate per hundred pounds. The effect of this was to charge 
 one sixth more for the same service than had before been charged. 
 The charge for transportation under the net weight practice was 
 reasonable and just, and without complaint on the part of shippers 
 or carriers, and the increased charge by the device of charging 
 
 > Warner v. New York & H. R. R. Co 3 Inters. Com. Rep. 74 
 
 * Andrews Soap Go. v. Pittsburg, G. & St. L. R. Co. 3 Inters. Com. Rep. 77.
 
 CLASSIFICATION OF FREIGHT AND RATES. 559 
 
 for the gross weight, being one sixth advanced for the same ser- 
 vice, was found to be unwarranted, as it operated to make the 
 rate unreasonable.' FearHne must be placed in the iifth class 
 freight in classification of Southern Railway & Steamship Asso- 
 ciation, and relative difference in rates on pearline and eonnnon 
 soap must not exceed difference of sixty cents per 100 pounds on 
 pearline, and thirty-three cents on common soap." The classifica- 
 tion of petroleum oil and its products in car loads, adopted and 
 generally applied by carriers, is the same ; and the rates upon oil 
 and its products should correspond with their classification and be 
 alike." Rates established for the purpose of keeping up a line of 
 road material (as railroad ties) for which the road itself has use, 
 or to keep the price thereof low for its own advantage, cannot be 
 justified. The classification of railroad ties in a different class 
 from other lumber, thus imposing a higher rate upon ties than upon 
 other lumber, is an unjust discrimination.* Classification of coals 
 as gas coal and counnon coal is, under the facts of the case, improper.^ 
 A greater freight rate may properly be charged on commercial coal 
 than on railroad coal which is of inferior grade, the run of the 
 mine, is carried in the cars of the purchaser, and is mined and shipped 
 when the demand is small for commercial coal, so that the mines 
 are kept open and the laborers employed." Under a classification 
 wliich puts luml)er in carloads in the sixth class, and unfinished 
 wagon materials in the fifth class, hub-blocks prepared to be sold 
 to the manufacturers of hubs and of wheeled vehicles, but upon 
 which only so much labor has been expended as is needful to put 
 them in a condition for seasoning, are regarded as raw material,, 
 and belong, when not otherwise specified in the classification 
 sheet, with lumber, instead of unfinished wagon materials.' The 
 rates charged on " household goods " will not be declared unlaw- 
 
 ' Proctonv. Cincinnati, H. & D. R. Co. 3 Inters. Com. Rep. 131. 
 » Pyle V. East Tennessee, V. & G. R. Co. 1 Inters. Com. Rep. 767, 
 ^Rice V. Western New York & P. R. Co. 3 Inters. Com. Rep. 163. 
 * Reynolds v. Western Note York & P. R. Co. 1 Inters. Com. Rep. 685. 
 ' NitsMll etc. Coal Co. v. Caledonian R. Co. 2 Nev. & McN. 39. 
 ^Louisville, E. & St. L. Consol. R. Co. v. Croicn Coal Co. 43 111. App. 228. 
 ' Hurlburt v. Lake Shore & M. S. R. Co. 2 Inters. Com. Rep. 81.
 
 660 INTERSTATE AND STATE COMMERCE. 
 
 ful on the mere fact that as a condition of granting them the de- 
 fendants require the shipper to release all claim for damages in 
 case of loss to the amount of $5 per 100 lbs., or $1000 per car- 
 load of 20,000 lbs., there being no proof showing that snch rates 
 are unreasonable in view of said limitation,' A carrier cannot 
 justify an unjust or unreasonable charge by observing the classifi- 
 cation and rates of a published schedule, under the Arkansas Act 
 of March 24, 1887, prohibiting unjust discrimination in charges 
 and the making of unjust or unreasonable charges. That its rate 
 upon stone is but 4^ cents, may be considered by the jury in de- 
 termining whether a rate of 8 cents on brick is unjust and unrea- 
 sonable.' A mixed carload rate for cereal products or for cereal 
 products and flour, that would have the effect of throwing out 
 of the trade many competitors of complainant who manufacture 
 only certain kinds of cereal products, and of centralizing the busi- 
 ness in the hands of one or more dealers, should not be granted 
 when, without it, no wrong is done to any one and the market is 
 open to all competitors.^ 
 
 The use by carriers of different freight classifications, the ef- 
 fect of which is to increase the revenue from local traffic as com- 
 pared with that obtained from through traffic, is as much a vio- 
 lation of the Act, § 4 (the long and short haul provision) as 
 would be the imposition of a higher tariff' upon the same class in 
 the same classification. The difference in classification adopted 
 by the "western classification" (which applies to business from 
 the Pacific coast to all points west of the Missouri river) between 
 "raisins" and "dried fruits," by which a higher carload rate is 
 imposed on raisins than on other dried fruits, while by the " Pa- 
 cific coast east bound classification" (which applies to business 
 over the same roads from tlie Pacific coast to points on the Mis- 
 souri river and east thereof) such distinction is not imposed, — is, 
 in connection with the different rules of the two classifications as 
 
 ' Duncan v. Atchison, T. & 8. F. R. Co. 4 Inters. Com. Rep. 385. 
 
 « LUUe Bock <& Ft. S. R. Co. v. Bruce, 55 Ark. 65. 
 
 *F. Schumadier Milling Co. v. Chicago, R. I. & P. R. Co. 4 Inters. Com. Ren. 
 873.
 
 CLASSIFICATION OF FREIGHT AND RATES. 561 
 
 to mixed carloads, an unreasonable discrimination.' A discrim- 
 ination between the rate on corn and its direct products, which 
 subjects persons engaged in the business of manufacturing and 
 selling such products to unreasonable prejudice or disadvantage, 
 and which is without necessity or advantage to the carrier, or any 
 reason founded on the character or condition of the traffic, — is in 
 violation of the Act to Regulate Commerce, § 3, notwithstanding 
 the rate on corn is open to all persons equally and with equal 
 service." Grain and grain products classified alike are presump- 
 tively entitled to equal rates.' While the difference in cost to 
 the carrier in transporting cereal products and flour, is not in it- 
 self sufficient to warrant a higher classification upon cereal pro- 
 ducts, the facts that these products range higher in value than 
 flour, while in the matter of volume of traffic afforded there is a 
 very wide difference in favor of flour, are some of the conditions 
 compelling a low rate upon flour which do not apply in the trans- 
 portation of cereal products." Celery should be classed with 
 cauliflower, asparagus, lettuce, green peas, string beans, oyster 
 plant, egg plant, and other vegetables enumerated in Class C of 
 the Western Classification, rather than with berries, peaches, 
 grapes, and other fruits specified in Class III. thereof. Mixed 
 carloads of celery and cauliflower, or other vegetables in the same 
 class, should be transj^orted at no higher rate per carload, than for 
 a carload quantity of either.' No unjust discrimination results 
 to the carload shipper of eggs from the equal rating of carload 
 and less than carload lots, and the special service rendered in 
 gathering and forwarding small shipments in "pick-up" cars, 
 where for carload shipments ice to the amount of 6000 pounds 
 is furnished by the carrier without extra charge.^ Salt is an arti- 
 cle which requires and gets a commodity rate lower than class 
 rates, and the general rule applicable thereto would seem prop- 
 
 ' Martin v. Southern Pac. Go. 2 Inters. Com. Rep. 1. 
 
 ^ Bates vl Pennsylvania B. Go. 2 Inters. Com. Rep. 715. 
 
 'McMorran v. Grand Trunk B. Go. 2 Inters. Com. Rep. 604. 
 
 *F. Schu7nacher Milling Go. v. Chicago, B. J. & P. B. Co. 4 Inters.' Com. 
 
 Rep. 373. 
 « Tecumseh Celery Go. v. Cincinnati, J. & M. B. Go. 4 Inters. Com. Rep. 318. 
 ^Brownell v. Columbus & G. M. B. Go. 4 Inters. Com. Rep. 885. 
 36
 
 562 INTERSTATE AND STATE COMMEKCE. 
 
 erly to be that, if it lias been placed at commodity or lower than 
 class rates, the only limitation upon the roads should be that the 
 commodity should not be carried at entirely unremunerative rates, 
 so as to impose burdens upon other articles of transportation to 
 recoup loss incurred in carrying the commodity. There is no 
 sufficient similarity between salt and grain to make a comparison 
 in any degree instructive. Salt moves in quantities sufficient to 
 supply the entire demand, from widely separated points of pro- 
 duction to common intermediate points of consumption. Grain 
 moves, as a rule, in one direction only to the general markets of 
 the world, and the demand is practically unlimited. The markets 
 for grain will usually absorb the entire supply, and the lowering 
 of rates on grain inures largely to the producer of grain. A re- 
 duction in salt rates to the interior of Iowa and Missouri could 
 not have such an effect. The market is necessarily limited. Dis- 
 turbing rates would lead to corresponding reductions as to the 
 other competing iield, so that a reduction will not give any profit, 
 or any greater market in the end to the Kansas producers. Nat- 
 ural causes and forces ought to have full sway. The public mind 
 has condemned what it has believed to be the attempt of railway 
 managers to interfere with them. Commissions and other bodies 
 in regulating transportation should, as far as possible, avoid the 
 same error. ^ 
 
 An interesting and instructive case involving the classification 
 of wheat and wheat flour was considered by the Interstate Com- 
 merce Commission. The case is altogether peculiar. Originally 
 brought by millers of St. Louis against certain carriers engaged 
 in transporting wlieat and wheat flour into Texas, it in fact rep- 
 resents the milling interests of Missouri and Kansas, and, by the 
 intervention of the millers of Texas, has broadened into a con- 
 troversy between the first-named millers on the one hand, and 
 the last-named millers on the other hand. The carriers that 
 are the nominal respondents upon the record, in the main sup- 
 port the contention of the Texas millers. The essential fact 
 upon which the controversy turns is undisputed. This is that 
 
 * Anthony Salt Co. v. Missouri Pac. R. Go. 4 Inters. Com. Rep. 43.
 
 CLASSIFICATION OF FREIGHT AND KATES. 563 
 
 the carriers make a differential of five cents a hundred pounds in 
 the charge for the transportation of wheat and wheat flour into 
 Texas, the rate on wheat being 46 cents a hundred pounds, and 
 on flour 51 cents a hundred pounds. These rates are grouped 
 for the whole wheat and flour producing territory in Missouri 
 and Kansas, and for all the competitive points in Texas to which 
 those goods are carried, without regard to difl-erences in distance. 
 Neither the amount of the rates nor the grouping method 
 employed is called in question, and the differential alone is chal- 
 lenged. Only the relative reasonalDleness of these rates is there- 
 fore to be considered. The carriers and the Texas millers sub- 
 stantially agree in presenting the reasons relied on as a justification 
 for this differential. These reasons relate in part to the interests 
 of the wheat growers and millers of Texas, and in part to the in- 
 terests of the carriers. The principal reasons assigned are in 
 substance as follows : The difference in the value of the wheat 
 and the flour manufactured from the grain. It is claimed that 
 because flour is a manufactured article, and of greater market 
 value, it can legitimately bear a higher transportation rate, and 
 that this principle is generally applied. The difference in the 
 quantity constituting a carload, by reason of which the carrier 
 receives a considerably larger revenue from an average carload 
 of wheat at the reduced rate of 46 cents than from an average 
 carload of flour at the rate of 51 cents per hundred pounds, and 
 that the relation of revenue to service for the use of the same 
 kind of car warrants the difference in rate on the two commo- 
 dities. The increased business that accrues to the Texas carriers 
 as a result of and incidental to the carriage of wheat from with- 
 out the state to Texas mills, in the subsequent haul of flour from 
 the mills to Texas points, and also in hauling to the mills neces- 
 sary supplies for carrying on their operations, such as mill ma- 
 chinery, fu^l, cooperage, sacks and other things. The importance 
 of maintaining the Texas mills in order to afford a market for 
 the increasing quantity of wheat grown in Texas, which could 
 not be marketed to advantage if it had to be shipped out of the 
 state. The milling business in Texas is claimed to be an essential 
 concomitant of wheat production, a pursuit in which many of
 
 564 mTBKSTATE AlfD STATE COMMERCE. 
 
 the inhabitants are engaged, and of growing importance. "With- 
 out these mills to furnish a local market, wheat production would, 
 except in cases of failures of crops elsewhere, be un remunerative. 
 It is said, and the evidence tends to support the statement, that 
 without the differential the Texas mills would not be able to com- 
 pete with the more northern mills. The Texas millers insist that 
 a larger differential than five cents per hundred pounds is neces- 
 sary to maintain their competition successfully with the northern 
 mills, and that the difference should be not less than fifteen cents 
 to afford them a reasonable margin of profit. The carriers say, 
 in substance, that the differential of five cents per hundred pounds 
 is a compromise between the rival claims of the Texas millers and 
 wheat growers on the one hand and the millers in Missouri and 
 Kansas on the other hand, and that it has been established after 
 hearing the claims of both sides, and careful consideration of the 
 subject with the view of an equitable arrangement that would 
 not be unjust or unduly prejudicial to the interests of any of the 
 parties. There is no doubt that under the general rule of classifi- 
 cation in most parts of the country, wheat and wheat flour, are 
 classified alike and carried at the same rate. This is especially 
 the case upon shipments of those articles from the "West to the 
 Atlantic seaboard and intermediate points ; but, as is shown in' the 
 statement of facts, the rule is not universal, and, besides the ex- 
 tensive area in question, comprising most of three large states, a 
 difference of from four to six cents per hundred pounds is made 
 upon shipments into the very considerable territory of the South- 
 ern Kailway & Steamship Association, and a greater difference — 
 20 to 40 cents — is made upon the local shipments within the state 
 of Texas. 
 
 Whatever the reasons may be for these differences, and without 
 reference to the adequacy or inadequacy of the reasons, the differ- 
 ences in fact exist as exceptions to the general rule of classifica- 
 tion, and are not of recent creation, but have existed and business 
 has been done under them for at least fifteen years. Until about 
 four years ago the difference was 15 cents a hundred pounds.' The 
 change made has therefore been favorable and not prejudicial to 
 the northern mills. That it might be better in the main to have
 
 CLASSIFICATION OF FKEIGHT AND KATES. 565 
 
 one uniform rule is conceded, and this may become necessary in 
 case the new uniform classification shall be applied, but that there 
 may be some justifiable exceptions to a general rule cannot be 
 denied, and in view of the diversified conditions of the country, it 
 can scarcely be assumed that it cannot be shown by evidence that 
 an exception in some one or more localities is reasonable, and that 
 it will not necessarily work unjust discrimination. When a rigid 
 apj^lication of a general rule will work injuriously to important 
 public interests, an exception that will mitigate the evil and result 
 in no practical injustice is reasonable. The only question import- 
 tant to consider is whether the differential in question works un- 
 just discrimination against the complaining millers. This, under 
 the statute, is purely a question of fact. A statute may define 
 what shall be deemed unjust discrimination, and when that is done 
 the particular act so defined must be held to be unjust discrimina- 
 tion'as matter of law.' But in a case like this it is altogether a 
 question of fact. Assuming that as a general rule wheat and 
 wheat flour should have the same classification and rate, the dif- 
 ferential in question is undoubtedly a discrimination, but it does 
 not follow that the discrimination is unjust under the particular 
 circumstances and conditions. As was said in the Report of the 
 Senate Committee of 1886, page 183 : " In the practical manage- 
 ment of a railroad, whether by the strongest government or by a 
 corporation, it is found impossible to avoid the exercise of 
 discrimination, and, in consequence, the courts have always recog- 
 nized the distinction between justifiable and unjust discrimination. 
 Whether the discrimination practiced in any given instance was 
 allowable, or unwarranted, is a question that can be fairly determ- 
 ined only by understanding the trade conditions, and special circum- 
 stances, that influence and govern the action of the railroad 
 managers in that particular transaction. These are of almost 
 infinite variety and frequently beyond the observation of those 
 witliout practical experience in railroad management." 
 
 The discrimination in this case is professedly founded upon -the 
 trade conditions and special circumstances that exist in the localities 
 
 ^JDenaby Main Colliery Co. v. MancTmter , S. & L. B. Co. L. R 11 App. Cas. 97, 
 6 I^^ev. & McN. 133.
 
 566 INTERSTATE AND STATE COMMERCE. 
 
 where the discrimination applies. The rival and competing mills 
 that are parties, nominally or practically, to the controversy, in 
 fact exist, and have a right to exist and carry on business if that 
 can be done without undue prejudice to the rights of others. The 
 wheat growing industry of Texas is also an existing fact, consti- 
 tuting a large occupation of the inhabitants, increasing in quantity 
 and in acreage in considerable volume, and it is in the public 
 interest that this industry should have fair opportunity for devel- 
 opment and remunerative existence. The carriers, recognizing 
 the facts of the situation, applied the method, neither uncommon 
 nor necessarily unlawful, of a differential adapted to the circum- 
 stances, and for a long time have maintained a higher though 
 gradually decreasing rate on flour brought into the state from 
 other portions of the country than on the grain. This, it is said, 
 has served as a factor in developing the milling business, which in 
 turn created a local market for Texas wheat. In support of this 
 adjustment it is said that an equal rate gives undue advantages to 
 millers without the state near the wheat supply, and tliat the dif- 
 ferential tends only to equalize more nearly the trade conditions, 
 and involves no unjust discrimination. If the effect were to 
 enhance materially the price of flour to consumers in Texas, ob- 
 jections on public grounds might be made. But no complaint has 
 come from consumers, and the evidence shows that the price of 
 flour has decreased in Texas as it has elsewhere. Nor is there any 
 claim that the growers of wheat in Kansas and Missouri are 
 injured. The sales of their wheat in Texas necessarily benefit 
 them. The contention is between the millers of the respective 
 territories, and it is quite evident that the Missouri millers 
 are affected fully as much, if not more, by the competition of 
 Kansas millers, as by the conditions in Texas. As an incident of 
 the case, but without affecting its disposition, it may be said that 
 from the carriers' standpoint solely, there is reason to believe that 
 the differential is advantageous to their interests. They earn 
 more revenue on a carload of wheat than on a carload of flour car- 
 ried into Texas. Their business is to some extent increased by 
 the second liaul of flour from the Texas mills, and by the carriage 
 of necessary supplies to those mills. On the other liand, it is to
 
 CLASSIFICATION OF FREIGHT AND RATES. 567 
 
 be observed, the complaint is not against a newly created state of 
 affairs, changing for the worse the conditions under which 
 business has been carried on, but the conditions have in fact 
 existed for many years without complaint, although the differential 
 until about four years ago was three times the present amount. 
 The complaint is therefore against a long standing condition 
 existing now only in a greatly modified form, and which does not 
 have the effect to exclude the northern mills from the Texas 
 markets. The testimony fully shows that the northern mills, un- 
 der the differential, are able to compete with the Texas mills on 
 terms that are not unduly advantageous to the Texas millers, and 
 that, of the large amount of flour needed for consumption in 
 Texas beyond that produced from Texas wheat, at least one half 
 is carried into Texas in the form of flour. The Texas miller pays 
 128fV cents freight on 280 pounds of wheat to produce a barrel 
 of flour of 196 pounds, and Y9 pounds of bran and screenings, and 
 there are five pounds of waste. The northern miller pays 102 
 cents freight on 200 pounds for a barrel of flour. This leaves, at 
 the rates charged, a difference of 26^ cents a barrel in favor of 
 the northern miller, between the transportation charge on the 
 quantity of grain necessary for a barrel of flour and on the flour 
 itself. Bran and screenings have a market value in Texas only 
 about equal to the cost of their transportation. At St. Lonis the}' 
 can be profitably marketed. The local Texas rate on flour from 
 the mills to competitive points in that state, of 23 cents a hun- 
 dred pounds, and the local rates on wheat to the mills in Missouri 
 and Kansas, which range from 10 to 20 cents a hundred pounds, 
 are factors in the general situation, and upon a fair balance of all 
 the elements involved, it was considered by the commission, that 
 an approximately equitable result seems to have been reached in 
 the difl"erence between the rates in question. 
 
 Considered as a question of fact, therefore, the adjustment of 
 this diffeilential, it is said, does not appear upon the evidence be- 
 fore the commission to have resulted in unjust discrimination 
 against the complainant or the millers similarly situated to them- 
 selves. The general effect of the differential seems only to be to 
 place the competitive millhig interests upon a substantial parity.
 
 568 INTERSTATE AND STATE COMMERCE. 
 
 Both undoubtedly make less profits and have less business than 
 if the competitors of either did not exist, but the question is not 
 whether either of the parties shall have a monopoly of the busi- 
 ness and therefore higher profits, but whether, as both legiti- 
 mately exist and have lawful right to pursue the business in 
 which they are engaged, they shall be put upon a substantial foot- 
 ing of equality by an arrangement that allows some profit to both 
 and enables them to compete on relatively equal terms. Upon 
 this aspect of the case, the commission stated its inability to dis- 
 cover, upon the showing made, that, as matter of fact, unjust dis- 
 crimination resulted from the differential of five cents per hundred 
 pounds, and it would not, therefore, pronounce it unlawful. 
 
 The larger question, that a higher rate on wheat flour than on 
 wheat is an unlawful interference with the freedom of interstate 
 commerce, is not understood to exist in this case. Such a ques- 
 tion might arise if a state attempted to impose a burden on an 
 article of commerce coming into it from another state. It is not 
 seen how it can arise in respect to the exercise of the national 
 authority. Interstate commerce is under Federal jurisdiction,, 
 and the rates on interstate traffic may be regulated by Federal 
 authority with reference to trade conditions and the circumstances 
 of localities without infringing any of its rights or immunities 
 under the Constitution. The absolute power of regulation is in 
 Congress, and the only freedom of commerce is the freedom 
 from other burdens or regulations than those imposed by Con- 
 gress or pursuant to its authority. A common carrier cannot be 
 required to move interstate traffic without the payment of reason- 
 able charges for its service, and can exact only a reasonable charge 
 from the traffic. The reasonableness of the charge may depend 
 on a variety of considerations, and the relations of one article to 
 another, or of one locality to another, may be among these con- 
 siderations. The relative reasonableness of rates is therefore part 
 of the domain of Federal regulation. If it is reasonable in view 
 of the carrier's service and earnings, or for public considerations, 
 that grain and its products should have the same rate, or should 
 bear different rates, it is the province of regulation to determine 
 the question. It may be reasonable that the same article shall be
 
 CLASSIFICATION OF FREIGHT AND KATES. 669 
 
 carried at one rate in one part of the country, or on one road, 
 and at a different rate in another part of the country or on another 
 road. But different articles, though analogous in some respects, 
 are not necessarily to be carried at the same rate. Wheat and 
 flour are not the same commercial articles. The process of manu- 
 facturing converts the grain into an article for household use, and 
 a new value is given to it. This new article cannot be said to be 
 of right entitled to the same rate as the natural berry from which 
 it has been made. For carriers' reasons, which in most cases are 
 reasons of expediency, they have been classified alike in most 
 parts of the country, but whether this has been done by the rail 
 carriers by reason of the competition of water carriers, or to de- 
 velop the milling of flour in or near the centres of wheat produc- 
 tion, or on account of foreign markets, or because they believe it 
 to be right, does not appear, and is not material to this contro- 
 versy. The right to an equal rate on flour and wheat must first 
 be shown before a higher rate on flour can be declared unlawful. 
 This question of right was the question in dispute in a recent case. 
 Without discussing the abstract question, the commission consid- 
 ered it sufficient for the purposes of this case to determine that 
 on the facts disclosed no actual injustice has been found in the 
 existence of a rate five cents a hundred pounds higher on flour 
 than on wheat in the territory in question.* 
 
 The evidence disclosed another feature in the case, however, 
 that required of the commission separate consideration. It ap- 
 pears that in every year the carriers made very considerable 
 reductions in the rate on wheat without making simultaneous re- 
 ductions in the rate on flour, and that in such instances the differ- 
 ential would sometimes be fifteen cents per hundred pounds, or 
 even more. This does not appear to have been accidental, but 
 to have been intended by the carriers, and the great disparities 
 in the rates were allowed to exist at times for a number of 
 days aiM at other times for a month or more. The effect of the 
 failure to make the reductions simultaneous was undoubtedly seri- 
 ously prejudicial to the northern millers, and practically excluded 
 
 ^Kauffman MiUing Co. y. Missouri Pac. R. Co. 3 Inters. Com. Rep. 401.
 
 570 INTERSTATE AND STATE COMMERCE. 
 
 them from the Texas market. No circumstances in justification, 
 or even in extenuation, of this practice were shown, and the 
 commission found that this practice worked unjust discrimination 
 against the complainants and others situated as thej were, and was 
 unlawful. It also found that under present conditions a discrimi- 
 nation exceeding five cents a hundred pounds is unjust. 
 
 The general conclusion reached by the commission upon the 
 whole case, was that the complaint was not sustained as to a differtni- 
 tial of five cents per hundred pounds, but it was sustained as to a 
 differential exceeding that amount ; and that the respondent car- 
 riers should cease and desist altogether from charging or receiv- 
 ing a greater differential upon the carriage of wheat and flour 
 from Missouri and Kansas points to Texas points than five cents 
 a hundred pounds. But the results reached apply only to the 
 situation existing at the present time in the territory in question, 
 and are not intended to lay down any permanent rule for the 
 future, or to be applied in any other territory. The case is dis- 
 posed of with a view to what is best for the public interests im- 
 mediately concerned, and upon facts found to exist rather than 
 upon theories of transportation. No question of general policy 
 is involved. An exceptional condition only is presented with 
 relative rates adapted to the condition, and a sudden change in 
 the relations of these rates could scarcely fail to be injurious to 
 important vested interests. The statute contemplates and clearly 
 provides for dissimilar conditions that may affect the making of 
 rates by carriers, and in a proper case of that nature it is no less 
 the duty of public tribunals to recognize dissimilarities that jus- 
 tify exceptional rates than to apply the general principles of the 
 law. 
 
 %112. Reasonable Rates for Fi^ eight. 
 
 It is not necessary for a shipper to make a special contract with 
 a common carrier in order to entitle himself to transportation for 
 his goods. A common carrier, l)y virtue of its assuming that po- 
 sition and thereby becoming entitled to the privileges, liens and 
 protections given by statute and at the common law, becomes at 
 the same time bound to carry the merchandise of all, for a reason-
 
 REASONABLE KATES FOE FKEIGHT. 671 
 
 able reward, whenever tendered in the usual way. The differ- 
 ence between a common carrier and a private carrier consists 
 largely in that obligation which arises without special agreement. 
 The compensation of the common carrier is assured to it by a lien 
 upon the goods, a right which is not enjoyed by a private carrier- 
 In case the articles tendered for transportation are not surely 
 worth the freight mone}', its right to demand payment in advance 
 has long been recognized ; its interests are well protected in every 
 direction and it has no right to refuse to accept for transporta- 
 tion, at a reasonable rate, any article of such a nature as it is ac- 
 customed to transport, for any person seeking the service,' and it 
 is only entitled to a reasonable compensation for transportation of 
 freight.^ 
 
 A common carrier cannot lawfully make unreasonable charges 
 for his services, or unjust discrimination between his customers.^ 
 But the common law imposes no duty upon common carriers to 
 charge a higher rate for transporting goods a longer distance than 
 like goods a shorter distance.* Whether railroad companies com- 
 bine or act separately in making rates and charges is not impor- 
 tant ; the essential requirement is that however made they shall 
 be reasonable of themselves, and so fairly adjusted as to be rea- 
 
 ' Rice V. Cincinnati, W. & B. R. Co. 2 Inters. Com. Rep. 594. 
 
 ^ SCO-field Y. Lake Shore & M. S. R. Co. 43 Ohio St. 571; Christie v. Missouri 
 Pac. R. Co. 2 Inters. Com. Rep. 22, 94 Mo. 453; Root v. Long Lsland R. Co. 
 2 Inters. Com. Rep. 576, 4 L. R. A. 331, 114 N. Y. 300; State v. Cincinnati, 
 JSr. 0. & T. P. R. Co. 7 L. R. A. 319, 47 Ohio St. 130; Bayles v. Kansas Pac. 
 R. Co. 5 L. R. A. 480, 2 Inters. Com. Rep. 643, 13 Colo. 181; Rlinois & St. 
 L. R. & Coal Co. V. Beaird, 24 111. App. 322; Messenger v. Pennsylvania R. 
 Co. 36 N. J. L. 407, 13 Am. Rep. 457; Audenried v. Philadelphia & R. R. 
 Co. 68 Pa. 370, 8 Am. Rep. 195; Lndianapolis, D. & S. R. Co. v. Ervin, 118 
 111. 250; Johnson v. Pensacola & P. R. Co. 16 Fla. 623, 26 Am. Rep. 731; 
 McDuffee v. Portland & R. R. Co. 52 N. H. 447, 13 Am. Rep. 72; Neic Eng- 
 land Exp. Co. V. Maine Cent. R. Co. 57 Me. 188, 2 Am. Rep. 31; Ex parte 
 Benson, 18 S. C. 38, 44 Am. Rep. 564; McNees v. Missouri Pac. R. Co. 22 
 Mo. App. 224; Cleveland, C. C. & L R. Co. v. Closser, 3 Inters. Com. Rep. 
 387, 9 L. R. A. 754, 126 Ind. 348; Stewart v. Lehigh Valley R. Co. 38 N. J. 
 L. 905; Hersh v. Northern Cent. R. Co. 74 Pa. 181; Kinsley v. Buffalo, iY. 
 Y. & P. R. Co. 3 Inters. Com. Rep. 318, 37 Fed. Rep. 181; Fitchburg R. Co. 
 V. Gage, 12 Gray, 393. 
 
 » Cook V. Chicago, R. L & P. R. Co. 3 Inters. Com. Rep. 383, 9 L. R. A. 764, 
 81 Iowa, 551. 
 
 ^Illinois & St. L. R. & Coal Co. v. Beaird, 24 111. App. 322.
 
 572 INTERSTATE AND STATE COMMEKCE. 
 
 sonable in their relations to each other and in their results.' Rates 
 should be so relatively reasonable as to protect communities and 
 business against unjust discrimination." The relative reasonable- 
 ness of rates on shipments from western points to cities on the 
 Atlantic seaboard is to be determined by all the circumstances 
 and conditions that affect the traffic to the respective points be- 
 tween which the rates are questioned, and not solely by one 
 standard of comparison.' Making of freight rates may be affected 
 by a variety of practical considerations, as the sparsely settled 
 character of the country ; the articles of freight upon which the 
 railroad must depend as compared with other roads transporting 
 similar commodities through more populous communities ; the re- 
 lation of local and through freights ; the mode of shipping and 
 delivering, as wheat from elevators, and wheat in sacks ; and ex- 
 penses of hauling empty cars.* A variety of practical considera- 
 tions must enter into making of freight rates and determine to a 
 great extent whether rates are reasonable.* The question of the 
 reasonableness of rates is alwaj^^s a perplexing one ; a great variety 
 of considerations are necessarily involved in each instance ; theory 
 and conjecture merely are not enough ; a comparison of one iso- 
 lated rate with another is not sufficient ; the whole field must be 
 considered in order to approximate justice, and at best the result 
 cannot be regarded as other than approximation.* On com- 
 plaint of a relatively unreasonable rate on lumber from Eau Claire 
 to various points on the Missouri river as compared with rates to 
 the same points from La Crosse, Winona, and various other 
 
 ' New Orleans Cotton Exchange v. Cincinnati, N. 0. & T. P. R. Co. 2 Inters. 
 Com. Rep. 289. 
 
 * Boards of Trade Union y. Chicago, M. <& St. P. E. Co. 1 Inters. Com. Rep. 
 
 608. 
 
 » Boston Chamber of Commerce v. Lake SJwre & M. 8. B. Co. 1 Inters. Com. 
 Rep. 754. 
 
 * Evans v. Oregon R. & Nav. Co. 1 Inters. Com. Rep. 641; Hays v. Pennsyl- 
 
 tania Co. 13 Fed. Rep. 309; Scofleld v. Lake Shore & M. S. B. Co. 43 Ohia 
 St. 571; Missouri Pac.B. Co. v. Texas <£ P. B. Co. 80 Fed. Rep. 2; Girardot 
 V. Midland B. Co. 4 Ry. & Canal Traffic Cas. 291; Greenock v. Southeastern 
 B. Co. 2 Nev. & McN. 319; Concord & P. B. Co. v. Forsaiih 59 N. H. 122, 
 47 Am. Rep. 181. 
 
 ^ Evans v. Oregon B. & Nav. Co. 1 Inters. Com. Rep. 641. 
 
 * Howell V. New York, L. E. & W. B. Co. 2 Inters. Com. Rep. 163.
 
 REASONABLE KATES FOK FKEIGHT. 573 
 
 Inmber shipping points. It was decided that the case must mainly 
 be determined by comparing the rate in question with the rates 
 from neighboring towns, similar in size, situation and volume of 
 competing traffic, and at approximately the same distance from 
 common markets; that the rate complained of subjects Eau Claire 
 to undue prejudice and disadvantage, and is unlawful ; and that 
 such rate should not exceed the rate from La Crosse and "Winona 
 by more than two cents per hundred pounds when, as at the time 
 complaint was filed, the rate from those points is not over 11 cents 
 per hundred ; nor by more than two and one half cents per hun- 
 dred pounds above the present rate of 16 cents per hundred from 
 La Crosse and Winona.' The length and character of the haul, the 
 costs of service, the volume of business, the conditions of competi- 
 tion, the storage capacity and the geographical situation of the 
 different terminal points are all elements of importance bearing 
 upon the relative reasonableness of the respective charges for 
 transportation." A prima facie case of unreasonableness of rates 
 is not made out by showing that the rates for a certain commodity 
 are higher in certain cases than certain other rates, and that they 
 produce a large profit to the carrier.' 
 
 Common carriers may, within the limits of fairness and impar- 
 tiality, consult their own interests in making contracts for the 
 carriage of goods." As a general proposition where a railroad 
 company is not restricted by charter or statute it may make an 
 arrangment of rates for special purposes on a sufficient considera- 
 tion, and for the legitimate increase of its business.' In the ab- 
 sence of any statutory prohibition or restraint, a common carrier 
 may lawfully demand or contract for such compensation for car- 
 riage as he may be able to obtain, without regard to its unreason- 
 ableness. Outside of the Interstate Commerce Act there is no law 
 
 ^Eau Claire Board of Trade v. Chicago, Mil. <& St. P. By. Co. 4 Inter S. Com. 
 
 65. 
 ^Boston Chamber of Commerce v. Lake SJwre & M. S. R. Co. 1 Inters. Com. 
 
 Rep. 754. 
 » Howell V. New Ym% L. E. <& W. R. Co. 2 Inters. Com. Rep. 163. 
 * Ckveiand, G. G. & 1. B. Co. v. Glosser, 9 L. R. A. 754, 3 Inters. Com. Rep. 
 
 387, 126 Ind. 348. 
 -''Missouri Pac. B. Go. v. Texas & P. B. Co. 30 Fed. Rep. 3.
 
 574: INTERSTATE AND STATE COMJVIERCE. 
 
 of the United States as a distinct sovereignty, imposing any restraint 
 upon the imposition by a carrier of unreasonable rates. And a 
 state law prohibiting the exaction by carriers of unreasonable 
 rates is, as applied to a contract for shipment from one state to 
 another, an interference with interstate commerce, and cannot be so 
 applied.' It is said, that the requirement that a carrier should 
 charge only reasonable rates, does not compel that the charge 
 should be equal as to all persons ; and that a contract to one com- 
 pany at reduced rates in preference to others, is not invalid where 
 the charges made to other parties are not unreasonable.'' 
 
 The first section of the Interstate Commerce Act provides that 
 all charges for services, rendered by common carriers subject to 
 the provisions of the law, " shall be reasonable and just," and pro- 
 hibits and declares unlawful, '''any unjust and unreasonable 
 charge." This is the sole requirement of the law, upon the sub- 
 ject of rates, which common carriers subject to the provisions of 
 the law may demand for the transportation of interstate traffic* 
 Section 1 requiring charges to be reasonable, and section 2, for- 
 bidding unjust discrimination, apply when exceptional charges are 
 made under section 4, as they do in other cases.* The provision 
 in the Act to Regulate Commerce, that all rates shall be just and 
 reasonable, was intended for the protection of the general public, 
 and not for that of the carrier against the action of its own offi- 
 cers or the action of rivals. Under the Interstate Commerce Act, 
 all charges made for any service for the transportation of any pas- 
 sengers or property, or for receiving, delivering, storing or hand- 
 ling property, must be reasonable and just ; and no discrimination 
 can be made in rates, charges, or facilities.* Less desirable freight 
 must be accepted upon reasonable terms, as well as that which is 
 more desirable.' Carriers should bring their tariffs into conform- 
 ity with the statute, without suggestions from the commission as 
 
 ^ Swift V. PhilmleljMa & R. B. Co. 58 Fed. Rep. 858. 
 
 « Johnson v. Pensacola & P. R. Co. 16 Fla. 623, 26 Am. Rep. 731. 
 
 ^Kentucky & I. Bridcje Co. v. Louismlle <fe N. R. Co. 2 Inters. Com. Rep. 351, 
 
 2 L. R. A. 289, 37 Fed. Rep. 567. 
 * Re Southern. R. & SS. Asso. 1 Inters. Com. Rep. 378. 
 
 « Cutting v. Florida R. & Nav. Co. 4 Inters. Com. Rep. 424, 30 Fed. Rep. 663, 
 ^Riddle V. New York, L. E. & W. R. Co. 1 Inters. Com. Rep. 787.
 
 REASONABLE KATES FOE FREIGHT, 575 
 
 to details.* Railroad companies cannot be required to make 
 freight rates upon" mere conjectures/ The purpose of the Inter- 
 state Commerce Act requires that, when circumstances will fairly 
 admit of it, charges to all points for like service shall be made 
 relatively equal/ But the Interstate Commerce Commission can- 
 not compel a railroad company to increase its rates, which are sup- 
 posed to be so low as to be ruinous to itself or its rivals.* A 
 steamship company cannot be required to transport merchandise 
 at a rate which it has made for a short time under circumstances 
 of special competition, where its charges to all shippers are the 
 same.* Interstate carriers have power to make commodity class 
 rates and special class rates to meet the circumstances and condi- 
 tions of traffic along their lines.'' 
 
 In determining what are reasonable rates, the fact that a road 
 earns little more than operating expenses is not to be overlooked, 
 but cannot be made to justify grossly excessive rates. Wherever 
 there are more roads than the business at fair rates will remuner- 
 ate, they must rely on future earnings for a return of investments 
 and profits.' In arriving at what is a just and reasonable rate on 
 freight transported by a carrier on a short local line having but a 
 small volume of business, where the cost of transportation is ex- 
 ceptionally great, arising from steep grades, sparse population, 
 and light ti'affic, these are circumstances and conditions of con- 
 trolling weight in the making of the rates, and cannot be over- 
 looked when a question of their reasonableness is involved ; and 
 under such circumstances the fact that an independent pipe line 
 from Titusville to Buffalo transports oil between those points at 
 lower rates than the railroad company constitutes no just reason 
 why the railroad company should be required to reduce its rates 
 
 ' Be Tariffs of Columbus & W. B. Co. 2 Inters. Com. Rep. 11. 
 
 * Evans v. Oregon B. & Nav. Co. 1 Inters. Com. Rep. 641. 
 2 Crews V. Bkhmond & D. B. Co. 1 Inters. Com. Rep. 703. 
 *Be Chicago, St. P. & K. C. B. Co. 2 Inters. Com. Rep. 137. 
 
 * Lough V. Outerbridge, 66 Hun, 108. 
 
 * New York Board of Trade & Transportation v. Pennsylvania B. Co. 3 Inters. 
 
 Com. Rep. 417. 
 'iVew Orleans Cotton Exch. v. Cincinnati, N. 0. & T.P. B. Co. 2 Inters. Com. 
 Rep. 289; Bice v. Western New York & P. B. Co. 2 Inters. Com. Rep. 298.
 
 576 INTERSTATE AND STATE COMMERCE. 
 
 to those of the pij^e line.' Snch difference in the cost of the ser- 
 vice will justify a carrier in making reasonable' differences in its 
 rates." But the difference in rates must bear some proportion to 
 the difference of the cost to carriers.' A reasonable rate is one 
 that will make just and fair return to the carrier when it is 
 charged to all who are to pay it without any unjust discrimination 
 against any, and when the revenue it produces is subject to no 
 improper reductions. The test whether a rate upon goods fixed 
 by the railroad commission is just and reasonable is the question 
 whether or not such rates will afford some rate of remuneration 
 to the railroad company.* 
 
 The commercial necessities of a railway in meeting competition 
 are not to be excluded from consideration, although that alone 
 would not justify a preference, in determining whether, under the 
 English Railway & Canal Traffic Act 1888, § 27, the public in- 
 terests require the existence of the rates complained of.^ In the 
 carriage of great staples, rates yielding only moderate profits to 
 the carrier are both necessary and justifiable. Charges for trans- 
 portation service should have reasonable relation to cost of pro- 
 duction and to the value of the service to the producer and ship- 
 per, but should not be so low on any as to impose a burden on 
 other traffic. In fixing reasonable rates, the requirements of 
 operating expenses, bonded debt, fixed charges, and dividend on 
 
 ' Rice V. Western New York <& P. R. Co. 2 Inters. Com. Rep. 278. 
 
 2 Chicago <& A. B. Co. v. People, 67 111. 11-24, 16 Am. Rep. 599; Denaby Main 
 Colliery Co. v. Manchester, 8. & L. B. Co. L. R. 11 App. Cas. 97, 26 Am. & 
 Eng. R. Cas. 293; NicJwlson v. GreatWestern B. Co. 5 C. B. N. S. 366; Ban- 
 some V. Eastern Counties B. Co. 1 C. B. N. S. 437 ; Foreman v. Qreai East- 
 ern B. Co. 2 Nev. & McN. 202; Bellsdyke Coal Co. v. North British B. Co. 2 
 Nev. & McN. 39; Oirardot v. Midland B. Co. 4 Ry. & Canal Traffic Cas. 
 291; Lotspeich v. Central B. & Bkg. Co. 73 Ala. 806, 18 Am. & Eng. R. Cas. 
 490; Burton Stock Car Co. v. Chicago, B. & Q. B. Co. 1 Inters. Com. Rep. 
 329; Providence Coal Co. v. Providence & W. B. Co. 1 Inters. Com. Rep. 363. 
 
 * Harris v. Cockermouth &W. B. Co. 1 Nev. & McN. 97-102, 3 C. B. N. S. 693; 
 
 Qarton v. Bristol & E. B. Co. 1 Nev. & McN. 227, 3 C. B. N. S. 639; Nich- 
 olson V. OreatWestern B. Co. 1 Nev. & McN. 185; Denaby Main Colliery Co. 
 V. Manchester, S. & L. B. Co. L. R. 11 App. Cas. 122; Baxendale v. Great 
 Western B. Co. 1 Nev. «& McN. 202; Bansome v. Eastern Counties B. Co. 1 
 Nev. & McN. 69. 
 
 * Clyde V. Richmond & D. B. Co. 57 Fed. Rep. 436. 
 
 'Liverpool Corn Trade Asso. v. London & N. W. B. Co, [18911 1 Q. B. 120, 9 
 Ry. & Corp. L. J. »3.
 
 KEASONABLE KATES FOK FKEIGHT. 577 
 
 capital stock from the total traffic, are all to be considered ; but 
 the claim that rate is to be measured by these as a fixed standard 
 is subject to some qualifications, one of which is the obligations 
 must be actual and in good faith. The rate of compensation 
 which railroad companies may lawfully receive for transportation 
 services cannot be so limited that the shipper may in all cases re- 
 alize actual cost of production. Where carriers frequently put 
 in force and continue for considerable periods of time tariff of 
 rates and charges, it is a fair inference that such rates and charges 
 are profitable.* It has been said that the test of the reasonable- 
 ness of a rate for freights is not the profit of the company, but 
 what is a reasonable rate to be charged to the person making the 
 payment.' But in passing upon the reasonableness of rates the 
 question whether they afford the carrier a proper return for the ser- 
 vice rendered is to be considered, as well as the result of the busi- 
 ness to the shipper or producer of the traffic. Rates should bear 
 a fair and reasonable relation to the antecedent cost of the traffic 
 as delivered to the carrier, and to the commercial value of such 
 traffic' Competitive commodities are entitled to relatively rea- 
 sonable rates for transportation, proportioned to each other ac- 
 cording to the respective costs of service.* 
 
 But reduced rates at points where competitive influences are 
 controlling must not fall below some revenue from the traffic in 
 excess of cost ; and higher rates at other points, required for the 
 necessary revenue of a carrier, must be reasonable in themselves 
 and also relatively reasonable in comparison with the competitive 
 rate.^ That at a certain time an article cannot be profitably 
 shipped at existing tariff rate is not conclusive evidence that that 
 rate is unreasonable. The fact that long haul traffic will only 
 bear certain rates is no reason for carrying it for less than cost at 
 expense of other traffic* When an article of traffic does not 
 
 ' Re Alleged Excessive Freight Rates & Charges on Food Products, 3 Inters. Com. 
 
 Rep. 93. 
 ■•* Canada Southern R. Co. v. International Bridge Co. L. R. 8 App. Cas. 723. 
 2 Loud V. South Carolina R. Co. 4 Inters. Com. Rep. 305. 
 * Squire v. Michigan Cent. R. Co. 3 Inters. Com. Rep. 515. 
 ^ Lehmann v. Southern Pac. R. Co. 8 Inters. Com. Rep. 80. 
 « Riddle v. New York, L. E. <& W. R. Co. 1 Inters. Com. Rep. 787. 
 
 37
 
 578 INTERSTATE AND STATE COMMERCE. 
 
 move on account of burdensome rates, and the carrier is hauling 
 a considerable number of empty cars in the direction such article 
 would naturally move if accorded a lower rate, the carrier may be 
 justified in carrying at a rate sufficient to induce the movement 
 of such traffic, provided no extra or additional charge is in conse- 
 quence 23ut upon other articles carried ; but the fact that freight 
 will furnish return loads for empty cars is not a reason for the 
 reduction of rates on such freight, when it does not appear that 
 the rates are unreasonable.' The element of value in the com- 
 modity transported is taken into consideration in the estabhsh- 
 ment of a rate, since the greater the value the greater the carri- 
 er's liability as an insurer of freight. But the reasonableness of 
 a carrier's rate is not necessarily to be determined by the question 
 of the profit or loss which the producer receives upon his pro- 
 duct," all the surrounding circumstances and conditions must be 
 considered as well as the rights of the shippers.^ When the rea- 
 sonableness or relative reasonableness of charges is challenged, 
 every material consideration which enters into the making of 
 such charges, including the apportionment thereof to connecting 
 roads in a through line, is pertinent to the inquiry." The ques- 
 tion of relative injustice must be viewed upon broader grounds 
 than a mere balancing of one rate against another. A reduction 
 of rates which will throw into confusion an adjustment of rates 
 over a large section of country, which are claimed to be unreason- 
 able of themselves, should not be required unless a clear right 
 thereto exists under some direct provision of the law.^ 
 
 In the recent case of Reagan v. Farmers Loan da Trust Co. 
 in the U, S. Supreme Court, decided May 26, 189-i,' the bill was 
 filed by a second mortgagee. The railroad company was made 
 a defendant, and filed a cross bill. Each of these bills contains a 
 
 ' F. Schumacher Milling Co. v. Chicago, R. I. & P. B. Co. 4 Inters. Com. Rep. 
 
 373. 
 '^Florida Fruit Exch. v. Savannah, F. & W. R. Co. 4 Inters. Com. Rep. 400. 
 ^ Bminens Men's Asso. v. Chicago, Si. P. M. & 0. R. Co. 3 Inters. Com. Rep, 
 
 41. 
 ■'James v. Canadian Pac. R. Co. 4 Inters. Com. Rep. 374. 
 ' Rend v. Chicago & N. W. R. Go. 3 Inters. Com. Rep. 313. 
 « 154 U. S. 362, 38 L. ed. 1014.
 
 BEASONACLE KATES FOJB FKEIGHT. 579 
 
 general averment that the rates are unjust and unreasonable. 
 That in the original bill, which was filed April 30, 1892, or some 
 six or seven months after the action of the commission, is in 
 these words : 
 
 " Eighth. That the classifications and schedules of rates and 
 charges so announced and promulgated in and bj said commodity 
 tariffs and circulars of said commission, or sought so to be, as 
 hereinbefore shown, are unfair, unjust, and unreasonable, and 
 that the same cannot be adopted or put or continued in effect by 
 the defendant company or defendant receiver without serious and 
 irreparable loss to it, and serious and irreparable injury to and 
 destruction of the property, rights, and interests of your orator 
 and the beneficiaries of its trust as hereinafter more fully set 
 forth ; that the rates so charged and announced by said commis- 
 sion are not compensatory, and are unreasonably low, and the 
 adoption and enforcement thereof would result, as nearly as can 
 be estimated, in a diminution of revenues derived from the oper- 
 ation of said International & Great Northern Railroad, aggre- 
 gating more than ^200,000 per annum, and that the revenues 
 from said raih-oad, so reduced and diminished, would be inade- 
 quate and insufficient to provide for the payment of the interest 
 upon the prior obligations of the defendant railroad company, re- 
 cited in paragraph 4 hereof, and the interest upon the second 
 mortgage bonds secured by said mortgage to your orator as trus- 
 tee, after providing for the expenses of operating said lines of 
 railroad and property, and maintaining the same in proper order 
 and good working condition, so that the traffic and business of 
 said road, and of every part thereof shall at all times be conducted 
 with safety to person and property, and with due expedition." 
 
 By the special facts disclosed in the several bills it appears that 
 there is a bonded indebtedness of over $15,000,000, and in addi- 
 tion capital stock to the amount of $9,755,000 ; that the bonds 
 and stock, were issued for and represent value, and that the rates 
 theretofore existing on the road were not sufficient to enable the 
 company to pay all the interest on the bonds. At the time suit 
 was commenced the first mortgage bonds outstanding amounted 
 to $7,054,000, drawing 6 per cent interest ; the second mortgage
 
 580 INTERSTATE AND STATE COMMERCE. 
 
 bonds to $7,95 1,000, drawing also 6 per cent interest. The 
 stockholders had never received any dividends whatever upon 
 their investment, but on the contrary (as appears* from the cross 
 bill filed subsequently to the commencement of the suit) they 
 had been forced to pay a cash assessment of over a million of 
 dollars, or about 12 per cent of the face value of the stock, for 
 tlie purpose of providing in part for the interest upon the first 
 moi'tgage bonds; the holders of those bonds had been compelled 
 to accept, and had accepted, in payment of one half of the ac- 
 crued and defaulted interest — a sum exceeding $750,000 — 
 deferred certificate of indebtedness bearing interest at the rate of 
 5 per cent ; the holders of the second mortgage bonds had been 
 called upoTi to fund, and substantially all had consented to fund, 
 passed due interest, amounting to upwards of $1,250,000, in third 
 mortgage bonds, bearing 4 per cent interest, and they had also 
 been required to reduce, and substantially all had agreed to re- 
 duce, the interest on their bonds to i^ per cent per annum for 
 the period of six years, and thereafter to 5 per cent per annum. 
 For about three years the road had been in the hands of a re- 
 ceiver, appointed on account of the default of the company in 
 the payment of its obligations. A statement in detail was incor- 
 jDorated in the bill of the earnings and operating expenses of the 
 road during the years 1889 and 1890, and the first nine months 
 of 1891, which was supplemented by a like statement in the cross 
 bill subsequently filed of the earnings and expenses for the entire 
 year 1891 and the first three months of 1892. These statements 
 show the following figures : 
 
 "1889: Earnings $3,488,185 14 
 
 Operating expenses, exclusive of taxes 2,629,453 90 
 
 Surplus 858,732 24 
 
 1890: Earnings 3,646,422 33 
 
 Operating expenses, exclusive of taxes 3,148,245 09 
 
 Surplus 498,177 24 
 
 1891: Earnings 3,648,641 79 
 
 Operating expenses, exclusive of taxes 3,093,550 20 
 
 Surplus 555,091 59 
 
 Three months of 1892: 
 
 Earnings. 759,176 18 
 
 Operating expenses, exclusive of taxes 829,074 87 
 
 I^eficit f.9,898 69"
 
 REASONABLE KATES FOR FREIGHT. 581 
 
 The bill also contains a tabular statement of the revenue per 
 ton per mile derived from the operation of the road during the 
 years 1883 to 1893, inclusive, as follows : 
 
 " Revenue per ton per mile for 1883 (in cents) 2.03 
 
 1884_ 1.90 
 
 1885 1.71 
 
 1886. 1.65 
 
 1887. 1.38 
 
 188S 1.33 
 
 1889 1.44 
 
 '• 1890 1.38 
 
 " " 1891 (first nine montiis) 1.30" 
 
 The mileage owned and operated by the company within the 
 state of Texas amounts to 825 miles. There had been necessa- 
 rily expended in cash in the construction and equipment of its 
 road more than §50,000 per mile and it could not be replaced for 
 less than $30,000 per mile. There is also this allegation in the 
 cross bill : 
 
 " That the lines of railway of your orator's company have at 
 all times been operated as economically as practicable, and that 
 its oj^erating expenses have at all times been as reasonable and 
 low in amount as they could be made by economical and judicious 
 management, and that it has not been possible for your orator to 
 operate said road for less than it has been operated. That for 
 the year ending June 30, 1892, there were employed by your 
 orator's company seventeen general officers, who received during 
 said year an average daily compensation of $12.61:, and, exclusive 
 of its general officers, all of its employes during and for the year 
 ending June 30, 1892, received an average daily comjjensation 
 of §2.01, and that at all times your orator has secured the service 
 of its officers and employes as cheaply as practicable, and has em- 
 ployed no more than necessary, and that the above were fair and 
 reasonable rates of pay. That at all times the International & 
 Great ]S^o^thern Railroad Company has secured all supplies, ma- 
 terial, and property, of whatever character, for the operation of 
 its road at the cheapest market price and at as low rates as the 
 same could be secured, and has secured and used no more than 
 actually necessary in the operation of the road."
 
 582 INTERSTATE AND STATE COMMERCE. 
 
 In the amendment to the cross bill, filed in March, 1893, is 
 given a table showing the actual reductions in amounts received 
 by the railroad company for the transportation of the diHerent 
 classes of goods under the operation of the new tariffs up to 
 August 31, 1892, and amounting to $159,691:.51, and also a table 
 showing the per cent of reductions as to different articles — vary- 
 ing from 5 per cent on cement to 5-4.90 per cent on grain in car- 
 loads. The bill also, in general terms, negatives the probability 
 of any increase in amount of business to compensate for the re- 
 duction in rates, a negation sustained by the figures given in the 
 amended bill as to the actual effect upon the receipts. It also 
 contains a general averment that the rates on interstate business 
 would be injuriously affected to an equal amount by reason of 
 the reduction of rates on business within the state. 
 
 As against these facts the attorney general presses these mat- 
 ters : In the table in the bill heretofore referred to, showing earn- 
 ings and expenses during the years 1889 and 1890, and the first 
 nine months of 1891, there is this item, several times repeated, 
 " balance of income account," and this on September 30, 1891, is 
 stated at $3,795,785.68. Of what this account is composed we 
 are not informed (possibly there was included within it the pro- 
 ceeds of the land grant, which, as we are told, was made by. the 
 state to the corporation) but, whatever it includes, it was on Jan- 
 uary 1, 1889, as stated $2,612,118.68, which would make the in. 
 crease of that account during the two years and nine months to 
 be $1,183,667. Confessedly no interest was paid during those 
 years, and that amounted each year to something like $900,000, 
 or nearly two millions and a half for the two years and nine 
 months. It is obvious that, no matter what may have been in the 
 bookkeeping of the company included in this account, or how 
 much or from what sources in prior years the road had accumu- 
 lated this balance the increase during the time stated did not 
 equal the accruing interest. The attorney general also notices the 
 report for the year ending June 30, 1892, made by the company 
 to the raih'oad commission, a copy of which is attached as an ex- 
 hibit to the amendment to the cross bill, and from that he tabu- 
 lates a statement which, as he contends, shows that the earnings
 
 KEASONABLE RATES FOB FREIGHT. 583 
 
 during that year were sufficient to pay the operating expenses and 
 fixed cliarges. We give the table as he has prepared it : 
 
 " Gross earnings from operations $3,568,690 26 
 
 Less operating expenses 2.986,204 12 
 
 Income from operation $582,486 14 
 
 To which should be added amounts expended for ' cost of road, 
 equipment, and permjinent improvements/ admitted to have 
 been included in operating expens(js-. 302,085 77 
 
 Dividends on (compress) stocks owned. 8,020 00 
 
 Total income $892,591 91 
 
 Deductions from Income. 
 Interest on funded debt accrued during the year, viz: 
 On $7,954,000 first mortgage bonds at»6 per cent.. $477,240 00 
 On $7,054,000 second mortgage bonds, one month, 
 
 at6per cent 35,270 00 
 
 On $7,054,000 second mortgage bonds, eleven 
 
 months, at 4^ per cent 290,977 50 
 
 Total interest accrued $803,487 50 
 
 Rental paid Colorado River Bridge Comparv 14,583 33 
 
 Taxes .-.. ". 28,951 35 
 
 Total deductions $847,022 17 
 
 Surplus after paying operating expenses proper, interest 
 
 accrued on bonds, taxes, etc $45,569 74" 
 
 But this table ignores that which is disclosed in the cross bill, 
 to wit, $750,000 in certificates of indebtedness, bearing interest 
 at five per cent, and $1,250,000, third mortgage bonds, bearing 
 four per cent interest, the interest on which sums would exceed 
 all the apparent surplus. These items also appear in the report, 
 under the head of current liabilities, the total balance of which on 
 July 1, 1892, is given as $3,772,062.94:, which sum may not un- 
 reasonably be taken as showing by how much the company has 
 fallen short of paying its operating expenses and fixed charges. 
 Again, the sum of $302,085,77 appears in that table, under the 
 description " Cost of road, equipment and permanent improve- 
 ments, admitted to have been included in operating expenses," 
 and is added to the income as though it had been improperly in- 
 cluded in operating expenses. But before this change can be 
 held to be proper, it is well to see what further light is thrown 
 on the matter by other portions of the report. That states that 
 there were no extensions of the road during that year, so that
 
 584 INTEKSTATE AND STATE COMMEKCE. 
 
 all of this sum was expended upon the road as it was. Among 
 the items going to make up this sum of |302,085.77 is one of 
 $113,212.09 for rails, and it appears from the same report 
 that there was not a dollar expended for rails, except as included 
 within this amount. Now, it goes without saying that in the 
 operation of every road there is a constant wearing out of the 
 rails and a constant necessity for replacing old with new. The 
 purchase of these rails may be called permanent improvements, 
 or by any other name, but they are what is necessary for keeping 
 the road in serviceable condition. Indeed, in another part of the 
 report, under the head of " renewals of rails and ties," is stated 
 the number of tons of " new rails laid " on the main line. Other 
 items therein are for fencing, grading, bridging, and culvert ma- 
 sonry, bridges and trestles, buildings, furniture, fixtures, etc. 
 It being shown affirmatively that there were no extensions it is 
 obvious that these expenditures were those lecessary for a proper 
 carrying on of the business required of the company. Certainly 
 the mere title, under which these expenditures are once stated, 
 is not sufficient to overthrow the facts so fully and clearly shown 
 that the stockholders have never received any dividends ; that in 
 order to meet the accumulating interest on the bonds they have 
 had to put their hands in their pockets and advance a million and 
 over of dollars. Those are facts whose significance cannot be de- 
 stroyed by any mere manner of bookkeeping or classification of 
 expenditures. 
 
 Further, the attorney general asserts that there are five trunk 
 lines, of which the International & Great Northern road is one, 
 paralleling each other, and thus dividing the business of the terri- 
 tory through which they pass ; that the state of Texas had made 
 large donations of land to railroad companies, and that, as appears 
 from its executive documents, this railroad company had received 
 a donation of 3,352,320 acres to aid in its construction, as well as 
 exemption of all its property from taxation for twenty-five years. 
 He also calls attention to the financial depression which has of 
 late years pervaded every avenue of trade, and adds a table from 
 the report of the commissioner of agriculture of Texas, showing 
 as to different articles produced in that state an increase in the
 
 REASONABLE RATES FOR FREIGHT. 585 
 
 amount of product and a decrease in the prices received therefor; 
 all of which considerations, lie earnestly insists, ali'ect the question 
 of the reasonableness of the rates prescribed. 
 
 The court say that none of the matters mentioned in the fore- 
 going paragraph appear in the pleadings or elsewhere in the rec- 
 ord, and it is, therefore, doubtful to what extent they may be 
 taken into consideration. If we may take judicial notice of the 
 live parallel roads, must we also assume that the existence of the 
 other four diminishes the business of the International & Great 
 ^STorthern, and that, if they had never been built, all the business 
 which now passes over the five would have been carried by the 
 one? May not the topography of the country be such as to pre- 
 vent any of the business of the other roads from ever comino- to 
 the International & Great Nortliern, even if, without them, it 
 was obliged to seek water or wagon transportation ? May not 
 the building of those other roads have increased the population 
 and business to such an extent that the overflow has, so far from 
 diminishing, really resulted in an increase of the business of the 
 International & Great Northern ? If there has been a division of 
 business, has there not also been a competition by which the rates 
 have been reduced, and reduced to such an extent as to forbid 
 the propriety of any further reduction ? If we may take judicial 
 notice that the state made a grant of three million and odd acres 
 to the company, must we also take notice of the value of that 
 land, of its sale, and the amount realized therefrom? While 
 undoubtedly there has been lately a period of financial depres- 
 sion, can we take judicial notice of the extent to which that de- 
 pression has reduced the prices of the products of the state ? and 
 is the report of the commissioner of agriculture of the state to be 
 considered as evidence before us, and accepted as substantially 
 correct, both as to product and prices ? And if the depreciation 
 of prices, as stated in said report, be accepted as correct, will such 
 depreciation uphold a compulsory reduction of the rates of trans- 
 portation to such an extent that some of those who have invested 
 their money in railroad transportation receive no compensation 
 therefrom ? Is it just to deprive one party of all compensation in 
 order that another may make some profit ? They who invest their
 
 5S6 INTERSTATE AND STATE COMMERCE. 
 
 money in railroads take the same chances that men engaged in 
 other business do of making profit from the carrying on of their 
 business ; and, as appears from other cases submitted to us with 
 this, some of the railroads in the state of Texas have operated at 
 a constant loss. But such possibilities of loss are simply the nat- 
 tural results of all business freely carried on, against which the 
 law is powerless to afford protection. Very different are the con- 
 siderations which arise when the strong arm of the law is in- 
 voked to compel parties engaged in legitimate business, and 
 business which cannot be abandoned at will, to so reduce their 
 charges for service as to make the carrying on of that business 
 result in a continued loss. In the one case the law is powerless 
 to prevent injury ; in the other it is used to work injury. Coun- 
 sel suggest that the state itself may construct and operate rail- 
 roads, and then may properly make rates so low that the business 
 is done at a loss. They refer to the postal system of the United 
 States which, carried on for the common welfare, not infrequently 
 results in a loss which is made good out of the public treasury. 
 But the parallel is not good. In the case suggested the loss is 
 cast through taxation upon the general public, and all bear their 
 proportionate share of that loss which is incurred in securing a 
 common benefit, while the scope of this legislation is to secure 
 such common benefit at the expense of a single class. The equal 
 protection of the laws — the spirit of common justice — -forbids that 
 one class should by law be compelled to suffer loss that others 
 may make gain. If the state were to seek to acquire the title to 
 these roads, under its power of eminent domain, is there any 
 doubt that constitutional j^rovisions would require the payment 
 to the corporation of just compensation, that compensation being 
 the value of the property as it stood in the markets of the world, 
 and not as prescribed by an act of the legislature. Is it any less 
 a departure from the obligations of justice to seek to take not the 
 title but the use for the public benefit at less than its market value? 
 The Act of 1853, to which reference has already been made, 
 contained a section looking to the acquisition by the state of the 
 title to railroad property. Section 17 of the acts (Tex. Gen. 
 Laws, 1853, p. 58) is as follows :
 
 REASON ABLE BATES FOR FREIGHT. 587 
 
 '' If the legislature of this state shall at any time make a pro- 
 vision by law for the repayment to any such company of the amount 
 expended by them in the construction of said road, together with 
 all moneys for pei-manent fixtures, cars, engines, machinery, chat- 
 tels, and real property then in use for the said road, with all 
 moneys expended for repairs or otherwise, and interest on such 
 sums at the rate of twelve per centum per annum, after deduct- 
 ing the amount of tolls, freights, passage money, and all moneys 
 received from the sale of lands donated by the state to said com- 
 pany, with twelve per centum per annum interest on all such sums, 
 then the road, with all its fixtures and appurtenances aforesaid, 
 and all the lands donated to the same by the state and remaining 
 unsold, shall vest in and revert to the state : Provided, That the 
 state shall not be required to pay or allow a greater rate of inter- 
 est on any amount of the money so expended by any company 
 which shall have been borrowed from this state than the state shall 
 have received for the same from such company." 
 
 This section, as will be perceived, provides for the payment of 
 interest at the high rate of 12 per cent on the difference between 
 what the company has paid out and what it has taken in, and to 
 that extent evidences the thougnt of the state that justice required 
 the return to the builders of railroads of something more than the 
 actual cost as the condition of depriving them of the title. It is 
 only significant, however, as an expression of the thought of tlie 
 state at the time ; for, were the provision ever so unjust, every 
 corporation which, after the passage of the act, invested its money 
 in building a road would do so with the knowledge that that was 
 the condition upon which the investment was made, and could not, 
 therefore, challenge its validity. 
 
 And now, the court inquire, what deductions are fairly to be 
 drawn from all the facts before us ? Is there anything which de- 
 tracts from the force of the general allegation that these rates are 
 unjust fud unreasonable? This clearly appears. The cost of 
 this railroad property was $40,000,000 ; it cannot be replaced to. 
 day for less than $25,000,000. There are $15,000,000 of mort- 
 gage bonds outstanding against it, and nearly $10,000,000 of 
 stock. These bonds and stock represent money invested in the
 
 588 INTERSTATE AND STATE COMMERCE. 
 
 construction of this road. The owners of the stock have never 
 received a dollar's worth of dividends in return for their invest- 
 ment. The road was thrown into the hands of a receiver for 
 default in payment of the interest on the bonds. The earnings for 
 the last three years prior to the establishment of these rates was 
 insufficient to pay the operating expenses and the interest on the 
 bonds. In order to make good the deficiency in interest the stock- 
 holders have put their hands in their pockets and advanced over 
 a million of dollars. The supplies for the road have been 
 purchased at as cheap a rate as possible. The officers and 
 employes have been paid no more than is necessary to secure men 
 of the skill and knowledge requisite to suitable operation of the 
 road. By the voluntary action of the company the rate in cents 
 per ton per mile has decreased in ten years from 2.03 to 1.30. 
 The actual reduction by virtue of this tariii in the receipts during 
 the six or eight months that it has been enforced amounts to over 
 $150,000. Can it be that a tariff which under these circumstances 
 has worked such results to the parties whose money built this 
 road is other than unjust and unreasonable ? Would any invest- 
 ment ever be made of private capital in railroad enterprises with 
 such as the proffered results ? 
 
 It is unnecessary the court conclude, to decide, and it does not 
 'wish to be understood as laying down as an absolute rule that in 
 every case a failure to produce some profit to those who have in- 
 vested their money in the building of a road is conclusive that the 
 tarifi: is unjust and unreasonable. And yet justice demands that 
 every one should receive some compensation for the use of his 
 money or property, if it be possible without prejudice to the rights 
 of others. There may be circumstances which would justify such 
 a tarifi ; there may have been extravagance and a needless expen- 
 diture of money ; there may Ije waste in the management of the 
 road ; enormous salaries, unjust discrimination as between 
 individual shippers, resulting in general loss. The construction 
 may have been at a time when material and labor were at the 
 highest price, so that the actual cost far exceeds the present 
 value ; the road may have been unwisely built, in localities where 
 there is not sufiicient business to sustain a road. Doubtless too,
 
 KEASONABLE RATES FOR FREIGHT. 589 
 
 there are many other matters affecting the rights of tlie commu- 
 nity in which the road is built as well as the rights of those who 
 have built the road. 
 
 But the court does hold that a general averment in a bill that 
 a tariff as established is unjust and unreasonable is supported by 
 the admitted facts that the road cost far more than the amount of 
 the stock and bonds outstanding ; that such stock and bonds rep- 
 resent money invested in its construction ; that there has been no 
 waste or mismanagement in the construction or operation ; that 
 supplies and labor have been purchased at the lowest possible 
 price consistent with the successful operation of the road ; that 
 the rates voluntarily fixed by the company have been for ten 
 years steadily decreasing until the aggregate decrease has been 
 more than fifty per cent ; that under the rates thus voluntarily 
 established the stock, which represents two fifths of the value, has 
 never received anything in the way of dividends, and that for the 
 last three years the earnings above operating expenses have been 
 insufficient to pay the interest on the bonded debt, and that the 
 proposed tariff, as enforced, will so diminish the earnings that 
 they will not be able to pay one half the interest on the bonded 
 debt above the operating expenses ; and that such an averment so 
 supported will, in the absence of any satisfactory showing to the 
 contrary, sustain a finding that the proposed tariff is unjust and 
 unreasonable, and a decree reversing it being put in force. 
 
 It follows from these considerations in the judgment of the 
 courts that the decree as entered must be reversed in so far as it 
 restrains the railroad commission from discharging the duties im- 
 posed by the act, and from proceeding to establish reasonable 
 rates and regulations ; but must be aflirmed so far only as it re- 
 strains the defendants from enforcing the rates already established. 
 
 The principle that the ratio of freight rates decreases with the 
 increase of distance is true when the rates are based upon dis- 
 tance and cost alone, and are not affected by other modifying 
 conditions ; the extent of traffic carried, and the character of the 
 country traversed, are to be considered.' But the method of 
 
 ' Lincoln Board of Trade v. Burlington & M. R. Co. 2 Inters. Com. Rep. 95.
 
 590 INTERSTATE AND STATE COMMERCE. 
 
 testing the freight rates of a raih-oad by the rate per ton per mile 
 cannot be considered a controlling rule in determining the rea- 
 sonableness of rates.' It is often impracticable to establish dif- 
 ferent rates on the same commodity from practically the same 
 locality to the same market, although the distances vary." The 
 fact that a rate in one direction is materially higher than that in 
 the opposite direction does not, as in case of hauls over the same 
 line in the same direction, establish prima facie the unreason- 
 ableness of the higher rate. This is especially true where the 
 hauls are of great length.^ But a carrier making higher rates 
 upon shorter hauls upon the same line in the same direction has 
 the burden of proving their reasonableness." Distance is not al- 
 ways the controlling element in determining what is a reasonable 
 rate for railroad service in carrying gooas, but there is ordinarily 
 no better measure.^ Through rates are not required to be made 
 on a mileage basis, nor local rates to correspond with the divisions 
 of a joint through rate over the same line. Milage is usually an 
 element of importance, and due regard to distance proportions 
 should be observed in connection with other considerations that 
 are material in lixing transportation charges.^ A departure from 
 equal milage rates on different branches or divisions of a road is 
 not conclusive that the rates are unlawful, but the burden is on 
 the company making such departure to show its rates to be rea- 
 sonable when disputed.'' 
 
 Divisions of a joint rate among the carriers may be inquired 
 into for the purpose of ascertaining, from the divisions, whether 
 a rate unreasonable in itself may not be traced to the inequality 
 
 ' Business Mens Asso. v. Chicago, St. P. M. & 0. R. Co. 2 Inters. Com. Rep. 
 
 41; Business Mens Asso. v. Chicago & N. W. R. Co. 2 Inters. Com. Rep. 48; 
 
 Manufacturers & J. Union v. Minneapolis & St. L. R. Co. 3 Inters. Com. 
 
 Rep. 115. 
 ' Coxe V. LehighValley R. Co. 3 Inters. Com. Rep. 460. 
 » Duncan v. Atchison, T. & 8. F. R. Co. 4 Inters. Com. Rep. 385. 
 * Spavlanhurg Board of 'Trade v. Richmond & D. R. Co. 2 Inters. Com. Rep. 
 
 193; Re Chicago, St. P. & K. C.R. Co. 2 Inters. Com. Rep. 137. 
 " James v. East Tennessee, V. & O. R. Co. 2 Inters. Com. Rep. 609. 
 ^ McMorran v. Grand "Trimk R. Co. 2 Inters. Com. Rep. 604. 
 ^ Northwestern Iowa Grain & S. S. Asso. v. Chicago & N. W. R. Co. 2 Inters. 
 
 Com. Hep. 431 ; New Orleans Cotton Exch. v. Cincinnati, N. 0. (& T. P. R. 
 
 Co. 2 Inters. Com. Rep 289.
 
 KEASONABLE RATES FOR FREIGHT. 591 
 
 of sucli divisions.' Taking the through rate to recognized " basing 
 points," and adding thereto that local rate which will give the 
 lowest combination, is not a proper method of determining a rate, 
 as it treats continuous traffic as consisting of two kinds of service.^ 
 Where the rate lixed for transportation by statute is " not ex- 
 ceeding live cents per ton per mile, when the same is transported 
 the distance of thirty miles or more, and in case the same is trans- 
 ported for a less distance than thirty miles, such reasonable rate 
 as may be from time to time fixed by the company," the com- 
 pany cannot fix— ^as a matter of law — a greater rate for the less 
 distance than thirty miles, than the maximum allowed for the 
 full thirty miles.' Where the provision in the charter authoriz- 
 ing imposition of rates, is of doubtful meaning, the construction 
 most favorable to the public will be adopted.* Where the whole 
 quantity of tonnage, reduced to a common standard of tons moved 
 1 mile, is divided by the entire receipts, — it gives the average 
 charged at a mean rate. And where the statute limits the aver- 
 age charges for toll and transportation to four cents per ton per 
 mile for freight, the carrier may impose more than four cents per 
 mile on some charges, so that hj making others less, the general 
 average shall not exceed four cents.^ Where the rate on freight 
 " carried over the whole line of its road," furnishes a basis for an 
 additional rate, allowed by statute for the transportation of local 
 freight, it is to be taken a^ the rate charged on freight taken on 
 at one terminus and discharged at the other, and not the rate for 
 freight brought from or carried to a point beyond the terminal 
 of the road, and it is the rate prevailing at the time of the ship- 
 ment." The method of testing freight rates by the rate per ton 
 per mile cannot be considered a controlling rule in determining 
 the reasonableness of rates. Comparison of rates under dissimilar 
 circumstances and conditions cannot be adopted as standards in 
 
 1 Perry v. Florida Gent. & P. R. Co. 3 Inters. Com. Eep. 740. 
 ^Hamilte^n v. Chattanooga, R. & G. R. Go. 3 Inters. Com. Rep. 483. 
 3 Campbell v. Marietta & G. R. Go. 23 Ohio St. 168. 
 * Stockton & D. R. Go. v. Barrett, 11 Clark & F. 590. 
 5 Hernh v. Northern Gent. R. Go. 74 Pa. 181. 
 
 ^Mobile & M. R. Go. v. Steiner, 61 Aia. 559; State v. Mobile & M. R. Go. 59 
 Ala. 321.
 
 592 INTERSTATE AND STATE COMMERCE. 
 
 arriving at their reasonableness,' Transportation charges need 
 not be proportioned to the distances between different points, 
 where those distances are greatly dissimilar/ When the reason- 
 ableness of rates is in question, charges on long thriDUgh lines 
 cannot offer just basis for comparison with local rates for rela- 
 tively short distances/ In through rates on long hauls, but not 
 always in local rates, the rate per ton per mile grows less in pro- 
 portion to the greater distance ; while the aggregate of the rate 
 increases in proportion to such greater distance." The Act to 
 Regulate Commerce aids the rule making aggregate charge of 
 transjDortation of freight less in proportion every hundred miles 
 after the first.^ The fact that the rates of a railroad company 
 are not established on a mileage basis does not necessarily make 
 out their illegality or injustice." Rates lower than the established 
 tariff are prohibited by law.'' 
 
 A carrier operating parallel lines, and accepting lower rates on 
 one line, should make corresponding charges on the other line, when 
 it is conceded that a given carload rate can be criticised for no 
 other reason than that the same rate is accepted for smaller ship- 
 ments, that carload rate may be reasonable both in fact and in 
 law, and the circumstance that the lesser quantity is carried at the 
 same rate per hundred pounds affords necessarily no just ground 
 of complaint by the carload shipper. How can the law be vio- 
 lated if the rate is reasonable and all shippers are treated alike ? 
 Long continued custom and the methods of transportation in 
 actual use may justify in most cases a lower rate for carload ship- 
 ments than for smaller quantities, but when a carrier sees fit to 
 apply the same rule for fixing its compensation whether it carries 
 a train load or a ton, what right of the larger shipper is infringed, 
 
 ' Business Mens Asso. v. Chicago, St. P. M. & 0. B. Co. 2 Inters. Com. Rep. 41. 
 
 * Eau Claire Board of Trade v. Chicago, M. & St. P. R. Co. 4 Inters. Com. Rep. 
 
 65. 
 
 2 Crews V. Richmond <Sk D. R. Co. 1 Inters. Com. Rep. 703. 
 
 * Business Mens Asso. v. Chicago, St. P. M. & 0. R. Co. supra. 
 
 ' Farrar v. East Tennessee, V. & O. R. Co. 1 Inters. Com. Rep. 764. 
 « La Crosse Manufacturers & J. Union v. Chicago, M. d St. P. R. Co. 2 Inters. 
 Com. Rep. 9. 
 
 ■" Re Passenger Tariffs & Rate Wars, 2 Inters. Com. Rep. 340.
 
 REASONABLE KATES FOR FREIGHT. 593 
 
 and upon what principle can the action of the carrier be con- 
 demned? Under ordinary conditions, of course, the larger the 
 shipment the greater the profit per hundred pounds to the car- 
 rier. The carload undoubtedly pays better in proportion to the 
 weight transported than the smaller quantity, when the same rate 
 is applied to both. More than this, the work of loading and un- 
 loading is mainly done by the carrier when merchandise is shipped 
 in small quantities, while in the case of carload shipments the 
 loading is usually done by the consignor and the unloading by 
 the consignee. The carrier can afford to take the greater ship- 
 ment for a smaller rate of compensation. This is partly because 
 the larger shipper, for his own convenience or advantage per- 
 forms part of the service which it is the carrier's duty to perform, 
 and partly because the greater tonnage can be hauled and deliv- 
 ered at proportionally less expense. But the pecuniary advantage 
 •of the carrier is by no means the controlling consideration in de- 
 termining the just relation of rates. The general public right to 
 equal transportation must be recognized, and that right may be 
 seriously invaded if charges are graduated according to the 
 volume of business. Some of the largest shippers not only do 
 their own loading and unloading, but also provide their own cars, 
 side tracks, warehouses and other facilities for the easy and eco- 
 nomical delivery to the carrier of their immense shipments and 
 thus make their patronage peculiarly desirable. Much the same 
 argument which provides a reduced rate to carload shippers would 
 justify a still lower rate as frequently happens by the train load. 
 But no reduction from carload rates in favor of train load shippers 
 would be sanctioned by the Interstate Commerce Commissioners 
 ■or permitted by the law making power.* 
 
 "Where parcels are packed, a railway company cannot impose 
 the full rate which it might charge if they were shipped sepa- 
 rately.^ Less rate may be charged for furnishing freight in fully 
 loaded t^-ains at regular intervals.' A difference in charge is jus- 
 
 » Brownell v. Columbus & C. M. B. Co. 4 Inters. Com. Rep. 285. 
 » CamUos v. Philadelphia <& R. B. Co. 9 Phila. 411. 
 * Nicholson v. GreatWestern B. Co. 5 C. B. N. S. 366. 
 38
 
 594 INTERSTATE AND STATE COMMERCE. 
 
 tified where the transportation is over steep grades.' A differ- 
 ence in bulk will justify difference in rates." Or difference in 
 expense of loading and unloading." Or when return loads could 
 not be had.* A carrier should receive a greater compensation in 
 the aggregate for hauling a carload of large tonnage than one of 
 less tonnage, but, other things being equal, as a general rule the 
 rate per hundred weight should be less in the former than in the 
 latter case."* Different rates may be charged where shippers own 
 private side tracks and return cars more promptly.* The expense 
 of hauling the Burton cars in one direction unloaded, since by 
 their construction they are not suited to carry general freight, 
 and the fact that a large percentage of ordinary cattle cars are 
 hauled back loaded upon long hauls of western roads, are con- 
 siderations which justify difference in charge against shippers 
 who prefer to hire improved stock cars.' 
 
 Where a special service is required of the carrier, such as rapid 
 transit and speedy delivery in case of perishable freight, a higher 
 rate than for the carriage of ordinary freight is warranted ; and 
 if a carrier charging a rate based on such special service fails tO' 
 render it, to the damage of the shipper and without legal excuse, 
 the remedy of the latter would seem to be by a proper proceeding 
 in a court of law, and not by a complaint of excessive rates.* For 
 a special service by a carrier, such as the transportation of perish- 
 able freight, requiring quick movement, prompt delivery at des- 
 tination, special fitting up of cars, their withdrawal from other 
 service, and their return empty on fast time, all involving greater 
 expense to the carrier, a higher rate than for the carriage of ordi- 
 nary freight is warranted by the conditions of the service, and is 
 
 ^BelMyke Coal Co. v. North British R. Co. 2 Nev. & McN. 105; NitsMlletc. 
 
 Coal Co. V. Caledonia B. Co. 2 Nev. & McN. 39. 
 « Lotspeich v. Central B. & Bkg. Co. 73 Ala. 306. 
 3 Chicago & A. B. Co. v. People, 67 111. 26. 16 Am. Rep. 599. 
 
 * Chicago <& A. R. Co. v. People, supra; Oirardot v. Midland B. Co. 4 Ry, & 
 
 Canal Traffic Cas. 291. 
 
 ^Murphy v. Wabash B. Co. 3 Inters. Com. Rep. 725. 
 
 ^Denaby Main Colliery Co. v. Ma7iche.ster, S. & L. B. Co. L. R. 11 App. Cas. 
 102. 
 
 ''Burton Stock Car Co. v. Chicago, B. & Q. B. Co. 1 Inters. Com. Rep. 329. 
 
 * Loud V. South Carolina B. Co. 4 Inters. Com. Rep. 205.
 
 REASONABLE KATES FOE FREIGHT. 595 
 
 reasonable and just. But the higher rate for a special service 
 should bear a jnst relation to the value of the service to the traffic, 
 and is not wholly in the discretion of the carrier. While a car- 
 rier should be fully compensated, the public interests require that 
 the traffic should not be rendered valueless to the producer if the 
 charges of the carrier have such an effect and can be reasonably 
 reduced. The requirements of the statute that all rates shall be 
 reasonable and just involves a consideration of the commercial 
 value of the traffic, and implies that rates should be so adjusted 
 that producers of traffic as well as carriers may carry on their 
 j)ursuits successfully, if practicable for both and without injustice 
 to the carrier. The public good requires, what is plainly the 
 spirit of the law, that the transportation interests are not alone to 
 be considered, but that in the just enforcement of regulations care 
 should be taken that the lawful and necessary occupations of citi- 
 zens are not unjustly burdened. In the case of the Delaware 
 State Grange of P. of H. v. New York, P. & ISf. R. Co. 3 
 Inters. Com. Rep. 554, the Delaware Railroad Company, the 
 Philadelphia, Wilmington & Baltimore Railroad Company, and 
 the Pennsylvania Railroad Company, the complaint was that 
 the defendants' charges for the transportation of specified per- 
 ishable articles of truck farming, from stations on their lines of 
 railroad to Jersey City and Philadelphia, were excessive and un- 
 reasonable, and that the charges were higher for the shorter dis- 
 tances from their stations on the Peninsula, in Delaware and 
 Maryland, than for the longer distance from Xorfolk, Ya. It 
 was found that the charges on certain articles specified from 
 stations on the Peninsula were excessive, and a reduction as fol- 
 lows was ordered: On peaches and berries, from all stations on 
 the main line, 20 per cent. On apples, peas, kale, spinach, 
 radishes, cabbages, lettuce, and other vegetables, except potatoes, 
 from all stations north of Delmar, and for apples, peas, and other 
 vegetables, except kale, spinach, radishes, cabbages, and lettuce, 
 from all stations south of Delmar on the main line, 25 per cent. 
 On jjotatoes, on the main line from all stations 25 per cent. ' The 
 reduced rates are, however, in many cases still considerably above 
 the rates on the same articles from Norfolk, and the showing not
 
 596 INTERSTATE AND STATE COMMERCE: 
 
 being sufficient to enable the commission to determine satisfac- 
 torily bow far the lower Norfolk rates were justified by the dif- 
 ference in the conditions and circumstances, that subject was left 
 for future consideration. 
 
 In the cases of Leonard & Chappel against the Chicago & Al- 
 ton Railroad, complainants were formerly allowed to ship live 
 cattle in carloads from Mt. Leonary, Mo., to Chicago, at $50 per 
 car and to load twenty into a car. On January 21st last, Leonard 
 ojffered 180 cattle for shipment in nine cars, but this was refused 
 and he was informed the rate would be 24 cents per 100 pounds 
 for a carload of not less than twenty thousand pounds, and any 
 excess of that number of pounds to a car would be charged for 
 at the same rate. The freight charge was $599.88 and the cattle 
 were loaded in twelve cars. The main question was whether 
 carriers can rightfully substitute for the practice of charging car- 
 load rates on cattle, irrespective of weight, the rule that while a 
 car-lot rate is named a minimum rate for a carload is prescribed, 
 and any excess over the minimum is to be charged for by the hun- 
 dred pounds in proportion to the car-lot rate. The commission 
 decides that this rule is not unlawful, and being more in propor- 
 tion to the service rendered, it is prima facie more just and rea- 
 sonable than the practice it supplanted. Upon the hearing it was 
 shown that by state law, or the rulings of state commissions, ship- 
 pers of cattle in Kansas or Missouri to points within the state had 
 the right to load cars without regard to weight, at a stated price 
 per car. It was said the rule was the same in some other states 
 and the commission was urged to conform thereto. The commis- 
 sion holds that such state action is not a reason for adopting the 
 like rule in interstate traffic, if that course is found not to be most 
 just and politic. The difference between the rate on carloads and 
 that on less than carloads must be reasonable.' 
 
 Allowing a charge for weight of oil barrels, where shipment in 
 tanks is less dangerous, and also is more likely to result in return 
 loads, does not authorize such a charge as against tank shipments 
 on lines where these conditions do not exist.* A tank used in 
 
 • Duncan v. Atchison, T. & 8. F. R. Co. 4 Inters. Com. Rep. 385. 
 " Ee llelative Tank <& Barrel Bates on Oil, 2 Inters. Com. Rep. 245.
 
 REASONABLE KATES FOB FREIGHT. 597 
 
 carrying oil is deemed by carriers part of the car and the rate is 
 charged only upon the contents, while for carriage in box cars 
 the barrels containing the oil are treated as freight and the rate 
 is charged both for the weight of the barrel and its contents. 
 The prevention of this prejudice to shippers in barrels requires 
 that for purposes of rates, when a carrier uses both tank and box 
 cars for carrying oil in carloads, the barrels shall be deemed part 
 of the box car ; and that, as in the case of transportation in tanks, 
 the rate shall be charged only for the weight or quantity of oil 
 carried, exclusive of the weight of the barrels, and be the same 
 for like weight or quantity carried in tanks.' Charges under the 
 net-weight practice being just and without complaint, an increase 
 by charging for gross weight, being one sixth advance, is unrea- 
 sonable." A former special and preferred rate is not a fair test 
 of the reasonableness of a present rate of freights under the Act 
 to Regulate Commerce.^ A railroad company, while long main- 
 taining a rate without the presence of competition on other than 
 equal terms, is making evidence that such rate is not too low.* 
 
 Comparisons of rates charged by railroad companies under cir- 
 cumstances and conditions substantially dissimilar, cannot be 
 adopted as standards in arriving at the reasonableness and just- 
 ness of rates.' An allegation that freight and passenger rates 
 fixed by railroad commissioners for one road are unjust and un- 
 reasonable, when compared with the rates permitted on other 
 lines operating under the same conditions, does not overthrow the 
 reasonableness of the rate, since a rate reasonable for one road 
 may not be so for another, though they are connecting lines." 
 When great disparity exists between charges which are lower to 
 competitive than to intermediate points much less remote, the in- 
 ference is irresistible that the lower rate must be unremunerative 
 upon any theory, or else the larger rate gives an unwarranted re- 
 
 ^Rice V. Western Neto Ym-k & P. B. Co. 3 Inters. Com. Rep. 163. 
 
 * Proctor V. Cincinnati, PL. & D. R. Co. 3 Inters. Com. Rep. 131. 
 ' Myers v. Pennsylvania Co. 2 Inters. Com. Rep. 403. 
 
 * Northwestern Iowa Grain & 8. S. Asso. v. Chicago <& N. W. R. Co. 2 -Inters. 
 
 Com. Rep. 431. 
 ^Business Mens Asso. v. Chicago & N. W. R Co. 2 Inters. Com. Rep. 48. 
 ^Starrs v. Pensacola & A. B. Co. 29 Fla. 617.
 
 598 INTEESTATE AND STATE COMMERCE. 
 
 turn for the services rendered.' Rates that are just and reason- 
 able from selected manufacturing points east of the Missouri river 
 and west of the Atlantic seaboard, are prima facie just as reason- 
 able from all other points in the same territory." An arbitrary- 
 differential added to the rates from Chicago to New York, to 
 make the rate to Boston, was held improper, and a percentage 
 was ordered to be substituted, instead of the arbitrary sum.' 
 The relative reasonableness of rates on shipments from western 
 points to cities on the Atlantic seaboard, is to be determined by 
 all the circumstances and conditions that affect the traffic to the 
 respective points between which the rates are questioned, and not 
 solely by one standard of comparison.* The rates on wheat and 
 barley, of fifty and fifty-six cents per hundred weight, respect- 
 ively charged from Ritzville, "Washington, to St, Paul, Minne- 
 sota, a distance of 1576 miles, in view of the circumstances and 
 conditions surrounding the traffic, are held not to be unreason- 
 able. ° The rate on unfinished cheap bedroom sets shipped 
 knocked down from Lansing, Michigan, to Oakland, California, 
 should not exceed eighty-five per cent of wliatever rate may be 
 adopted for such sets in a finished condition. ° The increase of 
 rates for the transportation of oranges from Florida points to 
 northeastern cities over the line of the Savannah, Florida & 
 Western Railway and its connections, which was made Nov. 23, 
 1890, and amounted to thirty-three and one third per cent upon 
 rates previously in effect, — is unjust, unreasonable, excessive, and 
 in violation of the Intei-state Commerce Act ; and it is not justi- 
 fied by the increased facilities which have been afforded by the 
 carriers for handling and preserving the fruit.' Contracts pro- 
 viding that a complainant may ship coal to points north and west, 
 
 • Board of Trade of Chattanooga v. East Tennessee, V. & O. B. Co. 4 Inters. 
 
 Com. Rep. 213. 
 ' Re Tariffs of Transcontinental Lines, 2 Inters. Com. Rep. 203. 
 3 Toledo Produce Exch. v. Lake Shore & M. 8. R. Co. 3 Inters. Com. Rep. 830. 
 
 * Ronton Cfuimber of Commerce v. Lake Shore & M. 8. R.. Co. 1 Inters. Cora. 
 
 Rep. 754. 
 
 * Buchanan V. Northern Pae. R. Co. Sinters. Com. Rep. 655. 
 
 • Potter Mfg. Co. v. Chicago & Q. T. R. Co. 4 Inters. Com. Rep. 223. 
 
 ' Florida Fruit Exch. v. Savannah, F. & W. R. Co. 4 Inters. Com. Rep. 400.
 
 KEASONABLE RATES FOR FREIGHT. 599 
 
 on the same terms and rates that respondent for the time being 
 gives other persons, do not preclude complainant from showing 
 that such rates are unjust, oppressive, or unreasonable. Com- 
 plainant is therefore entitled to a hearing upon that question be- 
 fore the Interstate Commerce Commission.' Charges on anthra- 
 cite coal, which are higher than on iron ore, pig iron, and other 
 low-grade freight, or on general freight, the expense of carrying 
 which is much greater than the expense on coal, are unreason- 
 able.^ 
 
 Through rates are not required to be made on a mileage basis, 
 nor local rates to correspond with the divisions of a joint through 
 rate over the same line.^ An intermediate local rate should never 
 exceed the through rate to the terminus of the line plus the local 
 rate back to the intermediate point.'' Where the rate of freight 
 charges over one line on similar freight carried from neighboring 
 territory to the same market, is considerably greater than over 
 •other lines for distances as long or longer, such greater rate is 
 held to be excessive and should be reduced.^ In the absence of 
 legislative regulation, the courts must decide for the carrier, 
 when controversies arise, what is reasonable.' The question of 
 the reasonableness of a rate of charge for transportation by a rail- 
 road company, is eminently a question for judicial investigation, 
 requiring due process of law for its determination.'' Whether 
 the difference in rates for transportation for local traiSc and 
 through traffic is reasonable, or unreasonable is a question of fact 
 for the jury.' The Interstate Commerce Commission will not 
 determine the relative reasonableness of rates at many stations 
 and in a large extent of territory, upon the mere face of tariffs 
 
 > Haddock v. Delaware, L. & W. R. Co. 3 Inters. Com. Rep. 303. 
 
 * Goxe V. Lehigh Valley B. Co. 3 Inters. Com. Rep. 460. 
 
 * MeMorran v. Grand Trunk B. Co. 2 Inters. Com. Rep. 604. 
 
 * Martin v. Southern Pae. Co. 2 Inters. Com. Rep. 1. 
 
 * James v. East Tennessee, V. <& G. B. Co. 2 Inters. Com. Rep. 609. 
 <^Dow -vJ Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56. 
 
 ^ Chicago, M. & St. P. B. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 8 
 
 Inters. Com. Rep. 209. 
 « United States v.[Tozer, 2 Inters. Com. Rep. 597, affirming 2 Inters. Com. 
 
 Rep. 540.
 
 600 INTERSTATE AND STATE COMMERCE. 
 
 and without further proof.' "Where a case involving the reason- 
 ableness of rates has been disposed of by the carrier assenting to 
 the rates demanded, no opinion will be expressed on the rates- 
 which have been abandoned, even though the parties request it.* 
 The reasonableness of rates cannot be fairly determined in a pro- 
 ceeding to which some of the parties responsible for such rates 
 are not parties.' In deciding a case against one or more carriers 
 who are charged with making rates which are unjustly discrim- 
 inating in a certain line of traffic, the decision made upon the 
 facts of the particular case does not necessarily govern rates in 
 other sections of the country, where the facts bearing upon them 
 may be altogether different.'' A prima facie case of unreason- 
 ableness of rates is not made out by showing that the rates for a 
 certain commodity are higher in certain cases than certain other 
 rates, and that they produce a large profit to the carrier.' 
 
 Wliere no discrimination is alleged as between points of pro- 
 duction tributary to the same market, or on account of dispropor- 
 tionate rates on different kinds of traffic similar in character and 
 volume, it must affirmatively aj)pear that charges assailed as un- 
 reasonable, are so and ought to be reduced.^ A reduction of rates 
 by a carrier is not jper se evidence that the former rates were un- 
 reasonable, as such reduction may be accounted for because of a. 
 decrease in cost of transportation and an increase in the volume 
 of the traffic to which such rates apply.^ Whether the difference 
 in rates for transportation for local traffic and for through traffic 
 
 Spartanburg Board of Trade v. Richmond & D. B. Go. 2 Inters. Com. Rep. 
 193. 
 
 ^Lincoln Board of Trade v. Union Pac. B. Co. 2 Inters. Com. Rep. 101; Har- 
 ris v. Duval, 2 Inters. Com. Rep. 514; Pennsylvania Co. v. Lotdsville, N. 
 A. & C. R. Co. 2 Inters. Com. Rep. 603; Bawson v. Newport News & M. V. 
 Co. 2 Inters. Com. Rep. 626. 
 
 ^New Orleans Cotton Exch. v. Cincinnati, N. 0. & T. P. Co. 2 Inters. Com. 
 Rep. 289; Michigan Congress Water Co. v. Chicago & O. T. Co. 2 Inters. 
 Com. Rep. 428; Kentucky & I. Bridge Co. v. Louisville & N. B. Co. 2 
 Inters. Com. Rep. 102. 
 
 *B£ Relative Tank & Barrel Bates on Oil, 2 Inters, Com. Rep. 245. 
 
 * Howell V. New York, L. E. & W. B. Co. 2 Inters. Com. Rep. 162. 
 
 • Lincoln Creamery v. Union Pac. B. Co. 3 Inters. Com. Rep. 794. 
 ''Loud V. South Carolina B. Co. 4 Inters. Com. Rep. 205.
 
 KEASONABLE RATES FOE FREIGHT. 601 
 
 is reasonable or unreasonable, is a question of fact for the jury." 
 The burden of proof is on petitioner charging exaction of unrea- 
 sonable rates." In case of complaint for violation of section 4 of 
 Act, the burden of proof is on the carrier to justify any depart- 
 ure from the general rule prescribed by statute, by showing that 
 circumstances and conditions are dissimilar.' The burden of 
 23roof is not on the carrier to show that the difference in the 
 charge is proportioned to the saving.^ The mere fact that a less 
 tariff is allowed by a carrier to one class of shippers, for special 
 reasons applicable to them only, than is applied to all others, is 
 not proof that the rate generally charged is unreasonable.^ A 
 prima facie case of unreasonableness of rates is not made out by 
 showing tliat the rates for a certain commodity are higher in cer- 
 tain cases than certain other rates, and that they produce a large 
 profit to the carrier." A satisfactory justification must be made 
 where large advances are made on old rates of long standing, 
 where the traffic affected is large and constantly increasing and 
 of vital importance to a large section of country.' A carrier can- 
 not justify an unjust or unreasonable charge by observing the 
 classification and rates of a published schedule, under the Arkan- 
 sas act of March 24, 1887, prohibiting unjust discrimination in 
 charges and the making of unjust or unreasonable charges.* 
 
 On complaint of an unreasonable rate on butter in less than 
 carloads from Lincoln, Kan,, to Denver, Col., it appeared that 
 defendant's line between those points runs through a sparsely 
 populated country, furnishing comparatively little business to the 
 carrier, and also that the rate was common to numerous towns of 
 
 * United States v. Tozer, 2 Inters. Com. Rep. 597. 
 
 * Harding v. Chicago, St. P. M. & 0. E. Co. 1 Inters. Com. Rep. 375. 
 « Re Southern B. & SS. Asso. 1 Inters. Com. Rep. 278. 
 
 ^Denaby Main Colliery Co. v. Manchester, S. & L. R. Co. L. R. 11 App. Cas. 
 
 97, 26 Am. & Eug. R. Cas. 293; Allen v. Louisville, N. A. & C. R. Co. 1 
 
 Inters. Com. Rep. 621. 
 ^Missouri, K. & T. R. Go. v. Irinity County Lumber Co. 1 Tex. Civ. App. 
 
 553. ' 
 6 Howell V. New York, L. E. & R. Co. 2 Inters. Com. Rep. 162. 
 ' Railroad Commission of Florida v. Savannah, F. & W. R. Co. 3 Inters. Com. 
 
 Rep. 688. 
 ''LUtle Bock <& Ft. S. R. Co. v. Bruce, 55 Ark. 65.
 
 602 INTERSTATE AND STATE COMMERCE. 
 
 importance at an equal or greater distance from Denver, and was 
 maintained by all the roads extending into that territory; it 
 was held that the charge was not shown to be unreasonable, 
 nor did the evidence furnish sufficient reason for interfering with 
 a rate established by a number of roads and common to many 
 communities. Comparison with rates in other localities where 
 dissimilar conditions and modifying circumstances are found, is 
 not sufficient to establish the unreasonableness of the charges com- 
 plained of. Where no discrimination is alleged as between points 
 of production tributary to the same market, or on account of dis- 
 proportionate rates on different kinds of traffic similar in charac- 
 ter and volume, it must affirmatively appear that the charges 
 assailed are unreasonable and ought to be reduced.* AYhere the 
 agent of a railroad company authorizing a certain rate on a cer- 
 tain kind of freight, the amount to be shipped not being named, 
 is shown to be acquainted with the shipper or receiver, for whose 
 benefit the rate is made, and admits that if he had understood 
 the communication to refer to the kind of freight claimed, he 
 would have taken it to mean a season's supply of such freight, he 
 cannot make the defense that the contract calls for the transpor- 
 tation of only an indefinite quantity, and does not authorize the 
 transportation of a specific large amount, constituting a year's 
 supply.^ A statute giving railroad commissioners authority to 
 fix joint rates for a railroad, makes the rules thus fixed only prima 
 facie evidence, although not expressly limiting them to that effect, 
 where the only penalties are for charging unjust and unreasonable 
 rates, and a former statute which did not extend to joint rates, 
 and of which this was an amendment, expressly limiting the effect 
 of the commissioner's order as to rates, to prima facie evidence, 
 and there is no uncertainty in such a statute on the ground that 
 it does not permit any charge with certainty of its reasonableness, 
 as the state is precluded from denying that the commissioners' 
 rates are reasonable.' A railroad company is not liable to the 
 
 ' Lincoln Creamery v. Union Pac. R. Go. 3 Infers. Com. Rep. 794. 
 » Central Trust Co. v. Wabash, St. L. & P. B. Co. 38 Fed. Rep. 561. 
 ^Burlington, G. R. & N. R. Go. v, Dey, 12 L. R. A. 436, 82 Iowa, 312, 45 
 Am. & Eng. R. Cas. 391.
 
 REASONABLE KATES FOK FEEIGHT. 603 
 
 pennlt}' imposed by N'ew York Laws 1857, chap. 185, as amended, 
 for charging an excessive rate of fare over a spur of road built by- 
 it, not as a part of its road, but as an independent and temporary 
 structure from a station on its line to a race track over grounds 
 held by it for other than railroad purposes, and not built under 
 the 'New York General Kailroad Act of 1850.' When the re- 
 fund of an excessive charge by a carrier has been unnecessarily 
 delayed for a considerable period, the officials responsible there- 
 for become fairly chargeable with willful intention to violate the 
 law.° 
 
 In discussing the question of the binding force of an agree- 
 ment to carry at a stipulated rate, it has been suggested that a 
 contract binding a carrier to transport as many carloads of grain 
 as the shipper may desire transported is ineffective for the reason 
 that the shipper is under no obligation to ship any definite or 
 designated quantity of grain. But the fact that there is no desig- 
 nation of quantity does not invalidate a contract unimpeachable 
 in all other respects. Possibly such a contract may be revoked, 
 but if acts are done in performance, it is valid at all events as to 
 those acts, for until there is an effective revocation the contract 
 remains in force. A proposal, although revocable in its nature, 
 becomes effective if accepted and acted upon before annulled by 
 revocation." A railroad company, operating a part of a through 
 line which it joins in making, and owning a controlling interest 
 in the capital of another railroad, by which the other part is 
 operated, cannot free itself from responsibility of excessive 
 through rates by getting behind the latter company as a separate 
 carrier.* 
 
 1 Palm V. Neto York, N. H. & H. B. Go. 42 N. Y. S. R. 219. 
 » Phelps V. Texas & P. B. Co. 4 Inters. Com. Rep. 363. 
 
 2 Wellington v. Apthorp, 145 Mass. 69; Louisville, iV. A. & C. B. Co. v. Flan- 
 
 agan, 113 Ind. 488; Cleveland, C. C. & I. B. Co. v. Closser, 3 Inters. Com. 
 Rep. 387, 9 L. R. A. 754, 126 lad. 348. 
 * Brady v^ Pennsylvania B. Co. 2 Inters. Com. Rep. 78.
 
 CHAPTER XYI. 
 
 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 § 113. Substantially Similar Circumstances and Conditions. 
 
 § 114. What Circumstances atid Conditions Influence Rates for Louq 
 
 or Short Haul. 
 § 115. Com2Jetition with Water Carrier ; with Foreign Railroads ; 
 
 with Non-Interstate Railroad; in " Rare and Peculiar 
 
 Cases. ^' 
 § 116. Long and Short Hauls aiid Group Rates. 
 
 % 113. Suhstantially Similar Circumstances and 
 
 Conditions. 
 
 The phrase "substantially similar circumstances and conditions" 
 occurs in both the second and fourth sections of the Act to Regu- 
 late Commerce. An intelligent construction of this phrase in- 
 volves the duty of ascertaining how it originated in the statute. 
 The words " under substantially similar circumstances" were in 
 the discrimination clause of the original house bill reported by 
 the commerce committee of the House of Representatives in 
 1884, In the Reagan substitute bill the words did not appear, 
 nor were they in the bill as it passed the house in January, 1885. 
 The words " under similar circumstances " were used in connec- 
 tion with discriminations in the summary statement of causes of 
 complaint against the railroad system contained in the report of 
 the senate select committee, presented in 1886 ; and the phrase 
 " under substantially similar circumstances and conditions " was a 
 part of the second section of the original senate bill which was 
 introduced by Senator Cullom. During the debate upon amend- 
 ments proposed by Senator Camden and Senator Aldrich, some 
 discussion was being had in regard to the word " quantity." 
 Senator Camden proposed that the words " of a like kind of prop- 
 erty under substantially similar circumstances and conditions" be 
 substituted for the amendments offered, and the substitute was 
 
 604
 
 SUBSTANTIALLY SLVIILAR CIKCUMSTANCES AND CONDITIONS. 605 
 
 adopted. A short history of the framing of the fourth section is 
 given in the opinion of the commission, in Re Southern R. <& 
 SS. Asso. 1 Inters. Com. Eep. 278. The words "under similar 
 circumstances " had been put into a short haul provision by the 
 legislature of Connecticut before the Interstate Commerce Law was 
 enacted, and that statute was referred to in the congressional de- 
 bates. The words " under the same circumstances" are in section 
 90 of the English Act of 1845, and they and also the words "un- 
 der like circumstances," have been frequently employed by the 
 courts of England. 
 
 Whatever use may have been made in English decisions of the 
 word "circumstances" or of the word "conditions" the value of 
 these decisions as precedents to be followed in deciding cases in 
 this country, depends greatly upon the similarity of the statutory 
 provision governing the English case, to the provision of our law 
 under which the case to be determined is brought. A compari- 
 son of certain clauses in English statutes with the second, third 
 and fourth sections of the Act to Eegulate Commerce is shown 
 below : 
 
 Equality Clause. Unjust Discrimination Clause. 
 
 English Act. American Act. 
 
 Sec. 90 Railway Clauses Act 1845. Sec. 2. Act to Regulate Commerce, 
 
 "And whereas it is expedient that 1887. 
 the company should be enabled to vary That if any common carrier subject 
 the tolls upon the railway so as to ac- to the provisions of this Act shall, di- 
 commodate them to the circumstances rectlyor indirectly, by any special rate, 
 of the traffic but that such power of rebate, drawback, or other device, 
 varying should not be used for the pur- charge, demand, collect, or receive 
 pose of prejudicing or favoring partic- from any person or persons a greater 
 ular parties or for the purpose of col- or less compensation for any service 
 lusively or unfairly creating a mono- rendered, or to be rendered, in the trans- 
 poly, either in the hands of the company portation of passengers or property, sub- 
 or of particular parties; it shall be law- ject to the provisions of this Act, than 
 ful, therefore, for the company, subject it charges, demands, collects, or re- 
 to the provisions and limitations herein ceives from any other person or persons 
 and in the Ipecial act contained from for doing for him or them a like and 
 time to time to alter or vary the tolls contemporaneous service in the .trans- 
 by the special Act authorized to be portation of a like kind of traffic under 
 taken, either upon the whole or upon substantially similar circumstances and 
 any particular portions of the railway, conditions, such common carrier shall
 
 606 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 as they shall think fit; provided, that 
 all such tolls be at all times charged 
 equally to all persons, and after the 
 same rate, whether per ton per mile, 
 or otherwise, in respect of all passen- 
 gers, and of all goods or carriages of 
 the same description, and conveyed or 
 propelled by a like carriage or engine, 
 passing only over the same portion of tlie 
 railway under tJie same circumstances; 
 and no reduction or advance in any 
 such tolls shall be made either directly 
 or indirectly in favor of or against any 
 particular company or person traveling 
 upon or using the railway. 
 
 Undue Preference Claitsb. 
 English Acts. 
 
 Sec. 2. Railway and Canal Traffic 
 Act, 1854. 
 
 Sec. 11. Railway and Canal Traffic 
 Act, 1873. 
 
 * * * and no such company shall 
 make or give any undue or unreason- 
 able preference or advantage to or in 
 favor of any particular person or com- 
 pany, or any particular description of 
 traffic, in any respect whatsoever, nor 
 shall any such company subject any 
 particular person or company, or any 
 particular description of traffic, to any 
 undue or unreasonable prejudice or 
 disadvantage in any respect whatso- 
 
 be deemed guilty of unjust discrimina- 
 tion which is hereby prohibited and de- 
 clared to be unlawful. 
 
 Undue Preference Clause. 
 American Act. 
 
 Sec. 3. Act to Regulate Commerce. 
 
 That it shall be unlawful for any com- 
 mon carrier subject to the provisions of 
 this Act to make or give any undue or 
 unreasonable preference or advantage 
 to anyparticular person, company, firm, 
 corporation, or locality, or any particu- 
 lar description of traffic, in any respect 
 whatsoever, or to subject any particu- 
 lar person, company, firm, corporation, 
 or locality, or any particular descrip- 
 tion of traffic, to any undue or unrea- 
 sonable prejudice or disadvantage in 
 any respect whatsoever. 
 
 The 4th Section of the Act to Regulate Commerce. 
 
 " That it shall be nnlawf iiV for any common carrier subject to 
 the provisions of this Act to charge or receive any greater com- 
 pensation in the aggregate for the transportation of passengers or 
 of like kind of property, nnder substantially similar circumstances 
 and conditions, for a shorter than for a longer distance over the 
 same line, in the same direction, the shorter being included within 
 the longer, distance ; but this shall not be construed as authoriz-
 
 SUBSTANTIALLY SIMILAR CIKCUMSTANCE8 AND CONDITIONS. 607 
 
 ing any common carrier within the terras of this Act, to charge 
 and receive as great compensation for a shorter as for a longer 
 distance ; Provided, however, That npon application to the com- 
 mission appointed under the provisions of this Act, such common 
 carrier may, in special cases, after investigation by the commis- 
 sion, be authorized to charge less for longer than for shorter dis- 
 tances for the transportation of passengers or property ; and the 
 commission may from time to time prescribe the extent to which 
 such designated common carrier may be relieved from the opera- 
 tion of this section of this Act." 
 
 The language of the fourth section presents one very important 
 consideration which should always be kept in view, namely : that 
 which will not amount to a justification of the greater charge for 
 the shorter haul under the prohibitory rule of the section may 
 nevertheless warrant the commission in granting a relieving order 
 upon an application for relief under the proviso clause of the sec- 
 tion. To stand upon one's right under the law is one thing, and 
 to obtain relief by process of law is another. Ordinarily the 
 commission should not alter the standing of parties in proceed- 
 ings before it. When upon complaint under the 13th section of 
 charges alleged unlawful under the rule of the fourth section, the 
 can'ier avers substantial dissimilarity in circumstances and condi- 
 tions as justifying the greater charge for the shorter distance, it 
 is concluded by its pleading and must affirmatively show that the 
 circumstances and conditions of which it is entitled to judge in 
 the first instance are in fact substantially dissimilar. But uj)on 
 an application under the fourth section proviso the carrier is the 
 petitioner, not the respondent ; it is not limited by the terms of 
 the rule and may present to the consideration of the commission 
 every material reason for an order in its favor. And upon in- 
 vestigation of the matter the commission is not confined to issues 
 made by pleadings, but may, among other things, examine into 
 the legality of rates on competing lines. The commission may, 
 for cause Ihown on such an application, institute on its own mo- 
 tion a collateral proceeding for the purpose of correcting appar- 
 ently unlawful rates on the competing line, and pending the pro- 
 ceeding grant temporary relief to the petitioning carrier. But it
 
 €08 COMPETITION, DISCRIMINATION AND CONTINUOUS CARKIAGB. 
 
 must not be inferred by this that the commission will entertain 
 applications for relief based on frivolous grounds. The petition 
 or application must make out in statement a prima facie case of 
 hardship under the rule, and when the competition of another 
 carrier is the cause of an application to charge less for the longer 
 distance, it must appear therein that traffic considerable in amount 
 will be lost to the petitioning carrier if through action of the 
 ■commission its situation in regard to such longer distance rate 
 shall not be relieved." 
 
 At the time of the enactment of this section no similar provis- 
 ion was contained in any English statute. The Railway & 
 Canal Traffic Act of 1888, after re-enacting the undue preference 
 clause of 1854, also provides in paragraph 3, section 27, as fol- 
 lows : " The court or the commissioners shall have power to di- 
 rect that no higher charge shall be made to any person for serv- 
 ices in respect of merchandise carried over a less distance, than is 
 made to any other person for similar services in respect of the 
 like description and quantity of merchandise carried over a greater 
 distance on the same line of railway." The difference between 
 the English and American acts in respect to long and short hauls, 
 is that there the commission or the court is empowered to pro- 
 hibit the greater charge for the shorter distance, while here the 
 law itself prohibits the greater charge for the shorter distance 
 when the circumstances and conditions surrounding the trans- 
 portation are substantially similar, but empowers the commission 
 to authorize the less charge for longer distances. In England a 
 complaint of greater charge for the shorter haul is triable under 
 the undue preference clause, which is nearly identical with a por- 
 tion of section 3 of our law, and the English commission or court 
 may prohibit such greater charge. But in the United States such 
 a proceeding must be brought under the fourth section of the 
 Act to Regulate Commerce. In either country a complaint of 
 undue preference or prejudice must (prior to the English statute 
 of 1888 which shifted the burden to the carrier) be supported by 
 proof of damage which makes the preference or prejudice unrea- 
 
 ' Trammell v. Clyde 8S. Co. 4 Inters. Com. Rep. 154.
 
 SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS. 609 
 
 sonable or undue, but in cases broui^ht under our fourth section 
 or long and short haul clause, which particularly describes the 
 act it declares to be unlawful, such proof is not required. A case 
 of undue or unreasonable preference or advantage or prejudice or 
 disadvantage includes, as the terms themselves impl)% considera- 
 tion of all those circumstances and conditions which bear, not 
 only upon the transportation by the carrier, but also often relate 
 to the value and volume of the traffic, the favorable or unfavor- 
 able location of the places involved in the controversy, character 
 of grades on different divisions, lateral lines, and other essential 
 elements which enter more particularly into matters of relative 
 services and relative rates. 
 
 This undue preference clause may justly be termed an omnibus 
 provision, enacted first by Parliament, and then by Congress, to 
 prohibit carriers from doing any act which unduly or unreason- 
 ably puts one shipper or description of traffic up in the scale of 
 favor, or puts another shipper or description of traffic down to his 
 or its disadvantage or vC^rong. But when the Act to Regulate 
 Commerce was passed. Congress not only adopted that clause, but 
 saw tit to go further, and specify that certain charges by the car- 
 rier would in themselves constitute wrong. The second and 
 fourth sections of the Act — that is, the unjust discrimination and 
 long and short haul clauses — are provisions of this character. 
 Under these sections the carrier must not charge more for like 
 service, nor more for less service, rendered in the transportation 
 of a like kind of traffic, under substantially similar circumstances 
 and conditions. These provisions describe the offense, and limit 
 the circumstances and conditions to be considered, to those under 
 which the transportation is conducted. The undue preference 
 clause of the English statute, which was copied into the third 
 section of our law, contains no such description or limitation, nor 
 do the words, " substantially similar circumstances and condi- 
 tions," or any of them, appear therein. Considerable variation in 
 language 'is also found in comparing the English equality clause 
 of 1845, with the second or unjust discrimination clause of our 
 law. That the latter covers much more ground must be apparent 
 to the casual observer, and if it were not for the fact that our 
 39
 
 610 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 second section contains the phrase " suhstantially similar circum- 
 stances and conditions," and the English eqiialitj clause in its 
 proviso has the words '' under the same circumstances " no refer- 
 ence or comparison would be deemed necessary. The frequent 
 citation of English decisions in cases affecting interstate transpor- 
 tation, with manifest disregard of vast dilferences in facts, time, 
 extent of country, methods of trade and transportation and great 
 dissimilarity in statutory provisions, is ample warrant for the 
 above somewhat extended comparison, and for the following ex- 
 amination of some English cases which have been quoted for the 
 purpose of influencing decisions in this country. 
 
 The case of Atty. Gen. v. BiriningJiain c& D. J. R. Co., 2 Eng. 
 E.y. & Canal Cas. 124, was recently cited in a case brought under 
 the second section of the Act to Regulate Commerce. The Eng- 
 lish case was decided in August, 1810. The American case was 
 tried in 1890, fifty years later. The railway in the English case 
 was operated under a special act which contained an equality 
 clause similar to the proviso of section 9< » of the English Act of 
 1815, above quoted. A passenger journeying to London over 
 connecting railways was charged by the first railway for the car- 
 riage between two points on its line less than it charged to an- 
 other passenger who only traveled between the two points on the 
 first carrier's line, but the through charge to London was not less 
 than the charge for the local or intermediate journey. The case 
 was dismissed because prejudice to the latter class of passengers 
 was not shown, and for the further reason that the higher rate 
 charged was not in itself unreasonable. In that case the differ- 
 ence in destination made out the difference in circumstances 
 which the siDecial act required should be " the same." To charge 
 less per mile for greater distances is a common rule of transporta- 
 tion and its legality is well settled. The case in which the fore- 
 going was cited related to charging a party of ten or more per- 
 sons less per capita than was charged to single passengers, the 
 journeys of the party and of the single passenger being between 
 the same points, and in tlie same train ; it was brought under a 
 provision of our law which merely specified that the circumstances 
 and conditions should be substantially similar, and not the same,
 
 SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS. 611 
 
 and its phraseology is entirely different from that of the English 
 Equality Clause of 1845. The fact that charges are not unrea- 
 sonable j96r se^ does not prevent their being relatively unreason- 
 able, or constituting unjust discrimination under our second sec- 
 tion by reason of being unequal. If the circumstances and 
 conditions are substantially similar for like service, the discrim- 
 ination is declared in the lavr to be unjust, but the English Stat- 
 ute required the circumstances to be the same. 
 
 The case of Hozier v. Caledonian R. Co., 1 Nev. & McN. 30, 
 was also cited in the same case as showing that the parties must 
 be shown to be competitors.* All these cases were tried with 
 reference to undue preference or prejudice, which had to be 
 shown to exist before the defendants could be held guilty of un- 
 lawful action. But in the case they were cited to influence no 
 showing was called for. Can it be said that the cases thus cited 
 might not have been differently decided if tried under a provis- 
 ion of law like our second section, which not only forbids but 
 defines the thing forbidden ? The English statutes do not show 
 any such definitive rule as is contained in the second and fourth 
 sections of the Act to Regulate Commerce. Section 90 of the 
 1845 statute, in its proviso required equality when the carriage 
 is over the same portion of the line under the same circumstances. 
 Section 2 of our Act only requires the traflBc to be like, the serv- 
 ice to be like and contemporaneous, and the transportation under 
 substantially similar circumstances and conditions. The provis- 
 ions are so different in terms that the same set of facts might 
 constitute immunity under the English provision and guilt under 
 our law. Indeed, the Supreme Court of the United States tersely 
 says of the English acts : " These traffic acts do not appear to be 
 as comprehensive as our own and may justify contracts which, 
 with us, would be obnoxious to the long and short haul clause of 
 the Act, or would be open to the charge of unjust discrimination.'' 
 
 ' So, also, in like manner were Jones v. Eautern Counties R. Co. 1 Nev. & 
 McN. 45; Painter v. London, B. & 8. C. B. Co. 2 C. B. N. S. 702, and In- 
 fraco7nbe T. C. Co. v. London S. W. R. Co. W. N. 289, referred to. 
 
 * Interstate Commerce Com. v. Baltimore & 0. R. Co. 145 U. S. 263, 36 L. ed. 
 699, 4 Inters. Com. Rep. 92. Take the case of Hozier v. Caledonian R. Co. 
 1 Nev. & McN. 30.
 
 612 COMPETITION, DISCKIMINATION AND CONTINUOUS CARRIAGE. 
 
 This was a long and short haul case. The decision was under the 
 undue preference clause and to the effect that there must be com- 
 petition of interest, or the complainant must show personal dis- 
 advantage, before he has title to complain, the fact that the com- 
 plainant had frequent occasion to travel not being suthcient. 
 Would this decision be possible under our fourth section ? 
 
 The case of Jones v. Eastern Counties R. Co. 1 Nev. & MclS". 
 45, is another passenger case where more was charged from one 
 station than from another station situate a further distance on the 
 same line. The rule was refused because undue preference was 
 not shown. The mere suggestion of undue preference was held 
 to be insufficient. Under the fourth section of the Act to Regu- 
 late Commerce, proof of the greater charge for the shorter dis- 
 tance would have been sufficient, for there was nothing whatever 
 in the case upon which the defendant could base justification un- 
 der our long and short haul clause. In a brief for defendants in 
 the cases of the Georgia Railroad Commission' this case of Jones 
 V. Eastern Counties R. Co. is cited to show that through and 
 local traffic constitutes such difference that the greater charge 
 does not unduly prejudice the shorter distance points, and also 
 that when active competition exists at the longer distance point 
 it affords a good reason for making the lower charge. If our long 
 and short haul clause did not exist and the case were brought 
 under the undue preference provision the through and local traffic 
 defense might possibly have some weight, but in the face of the 
 mandate contained in the fourth section the claim of justification 
 on the ground that one traffic is local and the other through is 
 absurd. To allow such claim would be to defeat the object of 
 the section. The rate on through traffic to the longer distance 
 point may be proportionately less than the rate on local traffic to 
 the intermediate point, but under the fourth section it cannot be 
 less in the aggregate. As to competition, the position of the 
 commission is well defined. Some competition does afford justi- 
 fication and some does not. But the Jones case had in it no ele- 
 ment of competition. Whatever was said there in relation to 
 through and local traffic and competition was spoken by the judges 
 at the trial. The decision was that the mere suggestion of pref- 
 
 ' Trammell v. Clyde SS. Co. 4 Inters. Com. Rep, 154.
 
 SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS. 613 
 
 erence because of the greater charge for the shorter distance was 
 insufficient. The same brief cites Strick v. Swansea Canal Co. 
 16 C. B. IST. S. 245, decided in 1864. A proviso in a canal act 
 was similar to the proviso in section 90 of the 1845 statute. It 
 was held competent for the company to carry at a lower rate for 
 a particular individual in consideration of a large guaranteed 
 minimum toll in order to enable them (the company) to enter into 
 competition with a rival line of railway. It seems that other 
 English decisions in similar cases have a different conclusion, but 
 whether this is true or not it is too manifest for discussion that 
 our second section would forbid the ruling here/ and moreover, 
 that such a contract would in this country be held in contraven- 
 tion of the common law." 
 
 In a case lately decided by the English Commission* the conflict 
 of English decisions was commented upon as follows : " The ques- 
 tion had several times been mooted whether a rate so low as, when 
 compared with another, to amount prima facie to an undue prefer- 
 ence, could be justified on the ground that it was rendered neces- 
 sary by the existence of competitive modes of carriage, whetlier 
 by land or water. The state of the authorities upon the matter 
 was far from satisfactory.* The manner in which the question 
 how far the necessities of competition will justify preferential 
 charges was touched upon in Garton v. Bristol c& E. H. Co. 6 C. 
 B. N. S. 639, throws no additional light upon the subject. Budd's 
 case, is open to the further observation (for which I am in- 
 debted to Sir F. Peel) that it is in conflict with the subsequent 
 Scotch case of Murray v. Glasgow & S. W. R. Co. 4 Ky. & 
 Canal Traffic Cas. 456, in the court of session, and the case of 
 Manchester, S. & L. R. Co. v. Denaby Main Colliery Co. 14 Q. 
 B. Div. 209, 11 App. Cas. 97, 26 Am. & Eng. R. Cas. 93, in the 
 
 ' Providence Coal Co. v. Providence & W. R. Co. 1 Inters. Com. Rep. 363. 
 
 * Hays V. fennsylvania Co. 12 Fed. Rep. 309. 
 
 ^Liverpool Corn Trade Asso. v. London & N. W. R. Co. [1891] 1 Q. B. 120, 
 45 Am. & Eng. R. Cas. 216. 
 
 * The dicta in Harris v. Cockermouth R. Co. 3 C. B. N. S. 693, 713, per Cock- 
 
 burn, L. C. J., and in Ransome v. Eastern Counties R. Co. 4 C. B. N. S. 135, 
 177 werCrowder, J., are I think, very difficult to reconcile with the deci- 
 sion in Budd v. London <& If. W. R. Co. 36 L. T. N. S. 803,
 
 614: COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 English court of appeals, where it was laid down that an action 
 will not lie to recover overcharges made in violation of the pro- 
 visions of the Act of 1854, against undue preferences. When 
 the Denaby Main case was in the House of Lords the question 
 was not decided, and the state of the authorities has been dis- 
 cussed by Cave, J., in his judgment in Lancashire <& Y. R. Co. 
 V. Greemvood, 21 Q. B. Div. 215, 35 Am. & Eng. R. Cas. 537." 
 In a still more recent cases decided in the English Court of 
 Appeal, the above mentioned case of Harris v. Cockermouth^ 
 Manchester^ S. <& L. R. Go. v. Denahy Main Golliery Go. and 
 Ransome v. Eastern Gounties R. Go. and also Evershed 
 V. London dh iT. W. R. Go. L. E. 3 App. Cas. 1029, were dis- 
 cussed ; and the case of Budd was held to be no longer law. The 
 ruling on the main question presented by the appeal was that the 
 railway commissioners or the court may take into consideration 
 the existence of a competing route between the same points, in 
 considering a case of alleged undue preference.' In that opinion 
 Lord Herschell said of the Equality and Undue Preference 
 clauses : " Where there is a breach of the equality clause, no 
 doubt you may sue to recover the difference, on the basis that you 
 can compel the railway company to pay you back anything which 
 you have paid over what, for precisely the same service, they have 
 charged to another. But under the Railway & Canal Traffic 
 Act, as was pointed out in the House of Lords, the company have 
 their option. They may put up one charge, they may put down 
 the other. It is not an equality clause ; it is only a clause relat- 
 ing to undue preference or advantage." " The words of the 
 equality clause have no elasticity at all; there are no outside cir- 
 cumstances to be taken into consideration, and it is not a question 
 of regarding the position of the one trader as compared with the 
 other, and then saying whether there is any undue preference. 
 It is an absolute rigid equality which is demanded by the statute." 
 These words of the learned English judge clearly illustrate what 
 has been said in relation to our own second and fourth sections as 
 compared with the undue preference section which was copied 
 
 ' Phippa V. London & N. W. R. Co. [18921 2 Q. B. 229.
 
 WHAT CIKCUMSTANCES AND CONDITIONS INFLUENCE KATES. 615 
 
 from the English statute into our law. In a case purely of alleged 
 undue preference or prejudice the English cases have direct appli- 
 cation. Even in cases under our second and fourth sections, 
 English cases brought under the undue preference clause in which 
 the decision has held undue preference to exist, have value as 
 showing how strictly the English commission or court has ap- 
 plied the broad language of the clause to a particular set of facts, 
 but when English decisions under the undue preference clause are 
 cited by a carrier in justification of its action under the strict lan- 
 guage of our second and fourth sections, the citations have greatly 
 diminished force. These sections apply only against rates in spe- 
 cific cases, but the undue preference clause or third section is in- 
 clusive ; it applies both to rates and facilities, and says generally 
 to the carrier, you shall not in any manner unduly prefer one per- 
 son or kind of traffic over another, and leaves it to the commis- 
 sion or the court to say when the undue preference is given. In 
 the second and fourth sections what is unlawful is clearly defined, 
 the circumstances and conditions of the transportation being sim- 
 ilar in substance. Therefore, while English cases are valuable as 
 defining undue preference or prejudice their value is greatly lim- 
 ited in cases where the statute itself describes the ofEeuse it de- 
 clares unlawful.* 
 
 %lljf. What Circmn stances and Conditions Influ- 
 ence Rates for Long or Short Haul. 
 
 In regard to such elements of transportation as through and 
 local traffic, and cost of service, it was held by the commission in 
 Re Southern R. <& SS. Asso. 1 Inters. Com. Rep. 278 : " The 
 commission further decides that when a greater charge in the 
 aggregate is made for the transportation of passengers or the like 
 kind of property for a shorter than a longer distance over the 
 same lind in the same direction, the shorter being included in the 
 longer distance, it is not sufficient justification therefor,, that 
 the traffic which is subjected to such greater charge is way or 
 
 > Trammell v. Clyde SS. Co. 4 Inters. Com. Rep. 120.
 
 616 COMPETITION, DISCRIMINATION AND CONTINUOUS CAEKIAGE. 
 
 local traffic, and that which is given the more favorable rates is 
 not." " Nor is it sufficient justification for such greater charge 
 that the short haul traffic is more expensive to the carrier, unless 
 when the circumstances are such as to make it exceptionally ex- 
 pensive, or the long haul traffic exceptionally inexpensive, the 
 difference being extraordinary and susceptible of definite proof." 
 Disproportionate expenses of carriage and great variation in 
 the volume of traffic to various points are ever present in railroad 
 service, were within the knowledge of Congress when the section 
 was framed, and must of necessity have been considered as not 
 constituting substantially dissimilar circumstances and conditions, 
 in other than extraordinary cases, for under the contraiy view it 
 is manifest that in a large majority of cases the design of the 
 section would be defeated. A defense of the higher rate for the 
 shorter haul, which is based upon cost, must amount to a practical 
 demonstration that the short haul traffic is exceptionally expen- 
 sive, or the cost of the long haul transportation exceptionally low.' 
 What are the circumstances and conditions which a carrier may 
 in the first instance take into account in fixing rates for longer 
 and shorter distances over its line? Under necessary and well 
 settled rules of railroad transjDortation essentially different cir- 
 cumstances and conditions constantly arise. The section says, 
 " The transportation of a like kind of property under substan- 
 tially similar circumstances and conditions." A barrel of flour 
 is a like kind of property with a carload of flour, but they are 
 different units of quantity, and the transportation of a carload is 
 not under substantially similar circumstances and conditions with 
 those which apply to the shipment of a barrel, or, under present 
 rules of transportation, any number of barrels less than a carload. 
 Other examples would be one horse and a carload of horses, fur- 
 niture knocked down or set up, small lots of grain in sacks or 
 loose in carloads, and so on through the great variety of articles 
 of commerce which seek carriage in different quantities and 
 forms. It is proper also to recognize the right of a carrier to 
 charge different but duly published rates according as its liability 
 is diminished by proper conditions stated upon the bill of lading 
 accepted by the shipper, or upon the ticket accepted by the pas-
 
 WHAT CIRCUMSTANCES AND CONDITIONS INFLUENCE RATES. 617 
 
 senger, whereby the carrier, under such special contract, secures 
 to itself some lawful pecuniary or economic advantage. These, 
 and other transportation methods not necessary or possible to 
 specify, constitute many kinds of essentially dissimilar circum- 
 stances and conditions arising upon its own line, by which a car- 
 rier, may rightfully be governed. Circumstances and conditions 
 affecting transportation also arise through competition with other 
 carriers for business ; that is, circumstances and conditions which 
 do not wholly arise upon the carrier's own line. 
 
 The necessity for a construction of the fourth section of the 
 Act became apparent almost immediately after the organization 
 of the commission. A large number of applications for relief 
 were then filed by roads operating in all sections of the 
 country. Investigations were held in many places, and on 
 June 7, 1S87, the applications were disposed of in the opin- 
 ion above quoted from,' and it was evidently intended that 
 the construction there laid down sliould be sufficient for all 
 cases based on similar grounds which might thereafter arise under 
 the fourth section; but the construction put upon the statute at 
 that time seems to have been misapprehended in some essential 
 particulars by carriers. The commission held in that case that 
 the phrase " under substantially similar circumstances and con- 
 ditions" in the fourth section is used in the same sense as in the 
 second section ; and under the qualified form of prohibition in 
 the fourth section, carriers are required to judge in the first in- 
 stance with regard to the similarity or dissimilarity of the circum- 
 stances and conditions that forbid or permit a greater charge for 
 the shorter distance. The commission said in regard to the em- 
 ployment of the same qualifying phrase in both sections 2 and 4 : 
 " It will be observed that the phrase is precisely the same ; and 
 there can be no doubt that the words were carefully chosen, pro- 
 bably because they were believed to express more accurately and 
 precisely than would any others, the exact thought which was in 
 the legislative mind. And in this section (2) as well as in section 
 4, the phrase is employed to mark the limit of the carrierV priv- 
 ilege ; its privilege, too, in respect to the very subject-matter with 
 
 ' Re Petitions of the Louisville <& Nashville B. Co. 1 Inters. Com. Rep. 278.
 
 618 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 which section 4, where it is employed, has to do, namely, the 
 charges for transportation service." In all cases under the sec- 
 ond section the actual facts are of necessity entirely within the 
 carrier's knowledge. The qualifying phrase, " under substantially 
 similar circumstances and conditions," used in the same sense in 
 the second and fourth sections, has no greater force or different 
 meaning in the one than in the other. 
 
 In reviewing what was held in the Louisville & Nashville case 
 the precise wording of the statute must not be overlooked. The 
 first part of tlje section forbids carriers to charge more for the 
 shorter than for the longer haul, when the transportation is under 
 substantially similar circumstances and conditions. The other 
 portion of the section, that which relates to a relieving order 
 by the commission, permits such an order only for the purpose 
 of a lesser charge for the longer haul, but the discretion of the 
 commission is not limited, except that the case must be special — 
 must present a question requiring authoritative action. The 
 commission said in that case that if the section had passed as it 
 once stood, without containing the qualifying phrase " under sub- 
 stantially similar circumstances and conditions," the commission 
 might have exercised its discretion in all cases where the circum- 
 stances and conditions appear to be different, and it would have 
 entered upon its duties " with a distinct understanding of the 
 task imposed, even though its adequate performance might have 
 been out of the question, but modified as it now stands, the neces- 
 sity for a relieving order is greatl}^ narrowed, it being ol)vious 
 that no order is needed to relieve against the operation of the 
 statute, when nothing is done or proposed which it makes unlaw- 
 ful." 
 
 But the commission clearly foresaw at that time that a con- 
 struction of the statute which would deliver even questions purely 
 of fact unto the carrier's judgment in the first instance, must be 
 accompanied by a statement of principles on which such judg- 
 ment must be based or the greatest confusion and litigation would 
 follow, and thereupon proceeded to lay down for the guidance of 
 carriers, rules which would not warrant them in making charges 
 greater for shorter distances,than those established for longer hauls.
 
 WHAT CIKCUMSTANCES AND CONDITIONS INFLUENCE BATES. 619 
 
 The rules limiting the judp^inent of the carrier in respect to 
 greater charges for shorter hauls were briefly stated as follows : 
 
 " Sixth : The commission further decides that when a greater 
 charge in the aggregate is made for the transportation of passen- 
 gers or the like kind of property for a shorter than for a longer 
 distance over the same line in the same direction, the shorter be- 
 ing included in the longer distance, it is not sufficient justification 
 therefor that the traffic which is subjected to such greater charge 
 is way or local traffic, and that which is given the more favorable 
 rates is not, Nor is it sufficient justification for such greater 
 charge that the short haul ti-affic is more expensive to the carrier, 
 unless when the circumstances are such as to make it exception- 
 ally expensive, or the long haul traffic exceptionally inexpensive, 
 the difierence being extraordinary and susceptible of definite 
 proof. Nor that the lesser charge on the longer haul has for its 
 motive the encourao-ement of manufacturers or some other branch 
 of industry. Nor that it is designed to build up business or trade 
 centers. Nor that the lesser charge on the longer haul is merely 
 a continuation of the favorable rates under which trade centers 
 or industrial establishments have been built up. The fact that 
 long haul traffic will only bear certain rates is no reason for car- 
 rying it for less than cost at the expense of other traffic." ' 
 
 The commission might have stopped there and directed the 
 carriers to withdraw their applications, leaving further construc- 
 tion of the section to come up in cases of complaint or subsequent 
 application for relief. But before laying down any principles, 
 except the construction as to the carrier's right of primary de- 
 termination, it said : " It is manifestly important to the public 
 interest, as well as to that of the railroads themselves, that mis- 
 takes shall as far as possible be avoided. It is also important that 
 the general rule laid down by the statute be strictly complied 
 with whenever compliance appears to be fairly practicable, and 
 that carriers direct their attention more to the feasibility of com- 
 ing into conformity with it, than to the possibility of finding rea- 
 sons upon which to ground exceptions. They are thereio.c enti- 
 
 ' Trammell v. Clyde 88. Co. 4 Inters. Com. Rep. 120.
 
 620 COMPETITION, DISCRIMINATION AND CONTINUOUS CABKIAGE. 
 
 tied to the benefit of such conchisions as Ave have already reached 
 upon the general merits of their applications that they may be 
 guided thereby in the preparation of their tariffs respectively. 
 In giving these conclusions we limit ourselves strictly to the cases 
 presented and leave out of view such other grounds of relief, if 
 any, as are not yet formally brought forward." The commission 
 then proceeded to discuss and lay down the rules above set forth. 
 It being apparent that competition of various kinds would con^ 
 stitute a main subject for consideration in cases of long and short 
 hauls, the commission discussed the force and effect of the com- 
 petition of carriers not subject to the law, and also that of car- 
 riers subject to its provisions, for the purpose of arriving at such 
 general conclusions in regard thereto as would properly direct 
 carriers in establishing rates for longer and shorter hauls. The 
 commission said generally on the subject of competition as cre- 
 ating dissimilarity in circumstances and conditions, that Congress 
 in rejecting the fourth section as introduced in both of its 
 branches, and insisted upon in the bill passed by the House, 
 " understood that they were not adopting a measure of strict 
 prohil)ition in respect to charging more for the shorter than for 
 the longer distance, but that they were, instead, leaving the door 
 open for exceptions in certain cases, and among others in cases 
 where the circumstances and conditions of the traffic were affected 
 by the element of competition, and where exceptions might be a 
 necessity if the competition was be^'ond doubt especially in view." 
 But the commission immediately said in that connection that 
 Congress must be supposed to have allowed this because the pub- 
 lic interest required it, and " that only legitimate open and fair 
 competition was meant, not everything that has been done under 
 the name of competition, and which in many cases has been 
 equally destructive of public and private right. Among com- 
 mon abuses, have been the granting of special favor in exceptional 
 rates, rebates, drawbacks, etc., all of which are now expressly 
 prohibited by law when they assume the form of unjust discrim- 
 ination. There has also been favoritism between places and com- 
 munities, as a result of competition ; but this is no longer per- 
 missible." It was also expressly stated in the opinion that the
 
 COMPETITION WITH WATEK CAKRIER, ETC. 621 
 
 prohibitions against unjust and unreasonable rates, and unjust 
 discriminations, apply as well to cases under section 4 as in other 
 cases. In taking this view of the meaning of the statute the 
 commission undoubtedly relieved itself of many onerous duties 
 in the consideration of cases arising on applications for orders 
 granting leave to charge less for the longer distance on the score 
 of competition ; and the difficulty of discliarging these duties was 
 clearly set forth in the beginning of the opinion. By defining 
 the kinds of competition which might entitle the carrier to make 
 less charges for the longer distances, and thereby justify conse- 
 quent greater charges on its line for shorter hauls, the commission 
 has recognized that competition of that character constitutes a 
 state of facts of which the carriers could judge in the first in- 
 stance, without giving color of right to any charges on the com- 
 peting line.' 
 
 § 115. Competition luith Water Carrier ; with For- 
 eign Railroads ; with JVon- Inter state Rail- 
 roads; in ''Rare and Peculiar Cases." 
 
 Now what kind of competition did the commission hold might, 
 by warranting a lesser long haul charge, justify carriers in estab- 
 lishing greater charges for shorter hauls ? The answer is : Com- 
 petition with water carriers. Competition with foreign railroads. 
 Competition with railroad lines wholly in a single state. Such 
 carriers are not subject to the law. They are independent of all 
 regulation by the Federal authority, and consequently the carrier, 
 subject to such regulation, in first determining for itself to charge 
 less for the longer distance because of such competition, does not 
 by meeting the competitive rates give color of right to rates on 
 the other competing lines, for the law does not regulate such 
 rates. The commission described one other kind of competition 
 whicht might entitle a carrier to charge less for a longer haul and 
 thereby justify short haul charges. This was in " rare and pe- 
 culiar " cases of competition with a railroad subject to the Act, 
 
 ' TrammeU v. Clgde SS. Co. 4 Inters. Com. Rep. 130.
 
 622 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 where a strict application of the general rule of the statute would 
 be destructive of legitimate competition. This class of cases was 
 illustrated by two instances of very circuitous routes; one being 
 where the competing lines run from the point of shipment, one 
 in a direct line to the longer distance point while the other runs 
 in the opposite direction and its traffic reaches the longer distance 
 point by taking a wide circuit. This was the Pittsburg or Youngs- 
 town case. The other illustration was that of roads running north 
 and south delivering to connections at terminals or intermediate 
 junctions, and competing to and from a common market with di- 
 rect east and west roads, wliicli by reason of greatly less distance 
 make the rates to the longer distance point. The belief was in- 
 dulged in by the commission, that the carriers by strictly observ- 
 ing the limitations put upon their judgment in that opinion, and at 
 the same time obeying the other provisions of the statute, would 
 find little necessity for applying to the commission for relief; 
 that the operation of the law upon two carriers subject to its pro- 
 visions would render competition between them an infrequent 
 cause for seeking aid in an order relaxing the rule. But from 
 the outset the commission realized that the provision for relief 
 in the fourth section would promote the interests of interstate 
 commerce and uphold the rights of carriers, by preserving com- 
 petition between carriers subject to the Act which tlie commis- 
 sion should ascertain to be legitimate. The opening part of the 
 opinion under consideration states the view of construction which 
 was thereinafter discussed and approved: That "the order for 
 relief would be needful only when the case was not one of plainly 
 dissimilar circumstances and conditions, but in which, neverthe- 
 less, there might be reasons and equities that would sanction such 
 greater charge." Further on the commission said: "The later 
 clause in the same section which empowers the commission to 
 make orders for relief in its discretion, does not, in doing so, re- 
 strict it to a finding of circumstances and conditions strictly dis- 
 similar, but seems intended to give a discretionary authority for 
 cases that could not well be indicated in advance by general des- 
 ignation, while the cases which upon their facts should be acted 
 upon (by the carriers) as clearly exceptional, would be left for
 
 COMPETITION WITH WATER CAERIEK, ETC. 623 
 
 adjudication when the action of the carrier was challenged. The 
 statute becomes on this construction practical and this section 
 may be enforced without serious embarrassment." 
 
 It would be impossible to " indicate in advance by general des- 
 ignation " all cases of competition between carriers subject to the 
 Act, that should, or should not come under the general rule. Com- 
 petition between carriers subject to the Act does not constitute 
 plainly dissimilar circumstances and conditions, and the duty of 
 primarily determining the question is laid upon the commission 
 by the fourth section of the statute. The necessity for supple- 
 mental construction arises from the fact that carriers in the opera- 
 tion of their lines have not held strictly to the principles laid 
 down in the Louisville & Nashville opinion, under a possible mis- 
 apprehension of the scope of that decision. In stating in that 
 oi^inion what kinds of competition might entitle the carrier to 
 make lesser long haul charges, or that create dissimilar circum- 
 stances and conditions under which it would be justified in charg- 
 ing more for shorter hauls, it is said in a late case.' — "In the light 
 of more than five years operation of the statute, the Commission 
 now conclude it should not have included in such statement, 
 •rare and peculiar cases of competition between railroads subject 
 to the Act, where a strict application of the general rule of the 
 statute would be destructive of legitimate competition, if this 
 language in the opinion was fairly susceptible of the interpreta- 
 tion which the carriers have put upon it. As an exception it 
 was not consistent with the otherwise harmonious theory on which 
 the whole opinion was based. It constituted an exception to the 
 clear reservation for the primary action of the Commission in 
 cases involving competition between carriers subject to the Act, 
 which is implied in the fourth section. Because the instances of 
 such ' rare and peculiar ' cases cited in the opinion, are such as 
 indicate a hardship that the commission would not fail to recog- 
 nize and by an order under the provisory clause relieve, if applied 
 for, was no good ground for permitting the carriers to determine 
 for themselves what cases of such competition are rare and pe- 
 culiar, or when any cases of strife for traffic between carriers sub- 
 
 ' Trammell v. Clyde SS. R Co. 4 Inters. Com. Rep. 120.
 
 624 COMPETITION, DISCRIMINATION AND CONTINUOUS CAKRIAGE. 
 
 ject to the law will, if the strict rule of the fourth section is ap- 
 plied, be 'destructive of legitimate competition.' From the fact 
 that many carriers have, as was natural, expanded the permission 
 restricted to 'rare and peculiar cases' into a privilege to presume 
 that whenever they engage in competition with other carriers 
 subject to the Act the case becomes ' rare and peculiar,' the ex- 
 ceptional ruling has become inoperative, delusive, and opened 
 the door to many evasions of the statute. There is nothing in 
 the statute which warranted the exception." 
 
 The prohibitory part of the fourth section of the statute is fol- 
 lowed by this proviso : " That upon application to the commis- 
 sion appointed under the provisions of this Act, such common 
 carrier may, in special cases, after investigation by the commis- 
 sion, be authorized to charge less for longer than for shorter dis- 
 tances for transportation of passengers or property ; and the 
 commission may from time to time prescribe the extent to which 
 said designated common carrier may be relieved from the opera- 
 tion of this section of this Act." Force must be given to this 
 part of the section as well as the other. In the framing of the 
 fourth section it appears that a proviso of this character was 
 made a part of it before the words " under substantially similar 
 circumstances and conditions," were inserted in the preceding 
 general rule. The debate indicates that the then object of the 
 proviso was to give the commission substantially discretionary 
 power to relieve carriers from the operation of the genei'al rule. 
 The subsequent incorporation of the clause, "substantially simi- 
 lar circumstances and conditions " in the prohibitory part of the 
 section, the same phrase being already in the second section, could 
 only have been intended to provide for a class of cases where the 
 carrier is capable of determining for itself whether the transpor- 
 tation conditions are similar, and this it can easily do when the 
 competition is with carriers not subject to regulation under the 
 Act. If it had been intended by that phrase to cover all cases of 
 dissimilar circumstances and conditions apparent and actual, re- 
 gardless of whether fairness and justice to carriers, shippers and 
 localities demanded the exceptional charge, then the proviso 
 would have been stricken out when the similarity clause was in-
 
 COMPETITION WITH WATER CARKIEK, ETC. 
 
 G25 
 
 serted. But the debates indicate that both the proviso and the 
 clause were regarded as necessary, and that the proviso would 
 apply to a class of cases not intended to be covered by the simi- 
 larity clause. In the absence of anything in the phraseology of 
 the statute which clearly indicates to what class of cases these two 
 provisions respectively apply, it becomes necessary to seek for an 
 interpretation that is reasonable and will give effect to both clauses. 
 A statute must, if possible, be so construed as to give effect to all 
 its provisions. The competition of carriers subject to the Act 
 with carriers not amenable to its provisions jilainly constitutes 
 dissimilar circumstances and conditions which justify a reason- 
 able departure from the rule of the fourth section if the competi- 
 tion be actual and controlling in respect to traffic important in 
 amount. This includes the competition of independent water 
 lines, independent state railroads, and foreign railroads, where 
 they have not so connected themselves with the carriage of inter- 
 state traffic as to thereby become subject to the Act. 
 
 Of the similarity or dissimilarity in the circumstances and con- 
 ditions which originate in real and tangible competition with lines 
 not subject to the Federal authority, the carrier is obviously well 
 qualified to judge and determine for itself in the ffrst instance. 
 Such circumstances and conditions have direct bearing upon 
 traffic over the line, and are not subject to qualification by a mul- 
 titude of other facts pertaining to lines of other carriers subject 
 to Federal regulation. For instance, the competition between 
 rail carriers both subject to the Federal law for business between 
 two points does not, hecause it exists, constitute circumstances and 
 conditions of transportation which one carrier is competent to say 
 will warrant exceptional rates on its road, even though the other 
 may have been the shorter line. Such a case presents questions 
 that can only be properly determined by the regulating authority 
 created by the law. Rates on the competing line may or may 
 not b^ lawfully adjusted, and the low rates to the competitive 
 point may be remunerative on the shorter line but unreasonably 
 low and unprofitable over the longer line. This is a case for in- 
 vestigation by the commission, not only with reference to the 
 long line but it also involves a scrutiny of the rates of the com- 
 40
 
 626 COMPETITION, DISCKIMLNATION AND CONTINUOUS CAKKIAttE. 
 
 peting road and the reasons which cause the low rates to be 
 charged. Another consideration is that the carriers if left to 
 themselves are likely to force the already low rate lower and 
 lower, whether it originally paid both carriers or not, until finally 
 a point is reached where other traffic on both lines is burdened 
 with j)art of the cost which properly belongs to the business com- 
 peted for ; charges to many ]3oints on both lines are thrown out 
 of just relation, and what is still worse, the competition which 
 has become illegitimate is likely to have so affected rates of roads 
 not interested in the original strife, but which have felt obliged 
 to give relatively lower rates to competitive points on their lines 
 in the same territory, that they too stand in unlawful light. 
 Competition unrestrained will naturally develop into reckless 
 warfare, or through that combination which is the logical result 
 of destructive or ruinous competition, perpetuate a system of 
 rates which is burdensome to many communities while it unduly 
 favors a few, and yet brings no additional returns to the carriers- 
 concerned. The law-making power never intended that compe. 
 tition should have such unrestrained and disastrous sway, before 
 the remedy of regulation should be invoked and applied. 
 
 But competition between carriers, subject to the Act to Kegu- 
 late Commerce, lyxay furnish grounds for disproportionate rates • 
 on the line of one of the carriers, and when such railroad com- 
 pany meets a stronger competitor in the strife for business be- 
 tween the same points, such a case should, if the weaker line will 
 gain some profit from the competitive rate, be brought to the 
 attention of the commission as a speoial case for relief under the 
 proviso of the fourth section. The commission will investigate 
 the matter, and having in view the rights of both carriers and 
 their duties to the persons and communities they serve, equitably 
 determine the questions involved. 
 
 The regulation provided by the Act to Eegulate Commerce is 
 not intended to limit or restrict, but rather to preserve and en- 
 courage legitimate competition between carriers subject to its 
 jurisdiction ; but the legality of such competition should in no 
 case be arbitrarily determined by the competitors themselves. 
 Those who are subject to the law can never find excuse for diso-
 
 COMPETITITION WITH WATER CAERIER, ETC. 627 
 
 bedience in the disobedience of another, and neither should be 
 allowed to jndge of what constitutes obedience on the part of 
 another. Competition between carriers subject to the Act, to be 
 legitimate, must be based upon actual compliance with the pro- 
 visions of that law. When the competing carrier is not subject 
 to the Act, that fact alone may constitute a substantial dissimilar- 
 ity in circumstances and conditions, because the rates of the com- 
 peting carrier are not subject to regulation under the statute, so 
 that there is no room for presumj)tion or doubt in such a case. 
 In such a case it is easy to see that it was wi^e for Congress to 
 allow the carrier to act independently of the regulating body in 
 deviating from the general rule, but in a case where both carriers 
 are subject to the statute, there can be no presumption of the ex- 
 istence of facts that would warrant a departure from that rule, 
 and the question whether they do exist or not, must necessarily 
 be a mixed question of fact and law depending on various con- 
 siderations, as hereinbefore shown, which the regulating body 
 must pass upon ; and complicated as such a question is it' would 
 be contrary to all analogy to allow one of the parties in interest 
 to determine for itself. It would be a novelty in the drafting of 
 statutes to charge a person who is made subject to the law, with 
 the solution of such difficult and intricate problems as must arise 
 under the fourth section of this statute, on the claim of a right 
 arising from competition with another carrier also subject to that 
 law, to disregard its general provision, and which Congress fore- 
 saw could only receive just solution by wholly disinterested 
 minds. The protection of the law extends equally to carriers 
 and the public, and no other interpretation of its provisions than 
 that which awards even handed justice to both is admissible. 
 The line between the right of a carrier to conclude for itself in 
 the first instance, and the necessity of applying to the commission 
 for relief, is sharply drawn at the point -where the carrier is mani- 
 festly Unable to rightfully decide. 
 
 In no case is there any presumption of dissimilarity of circum- 
 stances and conditions where the competing lines are both subject 
 to the Act, and there being no such presumption, neither road 
 can deviate from the general rule on its own motion, but must
 
 628 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 apply for relief under the proviso clause of the section, and the 
 burden will rest upon the road seeking such relief. Under that 
 proviso there seems to be no limitation upon the power of the 
 commission to grant relief when, upon consideration of all the 
 facts the commission is satisfied " that the interests of the com- 
 merce of the country and common fairness to the common car- 
 riers require that an exception should be made." It is difficult 
 to see why this proviso is not broad enough to enable the com- 
 mission to relieve all cases of hardship under the fourth section 
 arising from competition between carriers subject to the Act, in- 
 cluding many of the embarrassments now felt by the American 
 carriers, in competition with Canadian carriers, which may be sub- 
 ject to the Act in respect to the traffic competed for. 
 
 The foregoing has been especially directed to the competition 
 of carriers subject to the Act between the same points. The same 
 course should be taken when carriers meet the competition of 
 other lines which carry traffic to the same point, but from differ- 
 ent points of origin. The strife for trade between different mar- 
 kets seeking transportation for like commodities to the same 
 locality, is undoubtedly one of the most potent commercial forces 
 of our time. But a common carrier cannot rightfully assume 
 that this or that market upon its line is entitled as a matter of' 
 right, in shipments to a given point, to rates which another car- 
 rier sees fit to give from a market on its line to the same point. 
 It does not follow that markets competing for trade in the same 
 territory must enjoy similar rates in order to compete with each 
 other ; and the carrier which serves one market has no right to 
 assume that substantially equal rates must be given. Market 
 competition does not create circumstances and conditions, which 
 the carriers can take into account in determining for themselves 
 in the first instance, whether they are justified under the 4th sec- 
 tion in charging more for a shorter than for a longer distance over 
 their lines. To determine the force and efliect of such competi- 
 tion involves commercial considerations peculiar to the business 
 of shippers, such as advantage of business location, comparative 
 economy of production, comparative quality and market value of 
 commodities, all of which are entirely disconnected from cii'cum-
 
 COMPETITION WITH WATEE CARRIER, ETC. 629 
 
 stances and conditions under which transportation by the carrier 
 is conducted. Carriers cannot create abnormal situations bj mak- 
 ing rates which equalize advantages and disadvantages of compet- 
 ing localities, and thereupon claim justification for greater charges 
 on shorter hauls, on the ground that the lesser long haul charges 
 which accomplish such equalization are necessary to secure in- 
 crease in traffic over their lines. Under the ith section, where 
 doubt arises as to the existence of facts which would legitimately 
 force a lower rate for the longer haul, and we think doubt must 
 always exist where the competing carriers run from different 
 markets, the carrier cannot assume to solve it. The propriety of 
 applying to the commission for relief in such a case is apparent. 
 
 To repeat the idea above discussed, the competition of carriers 
 subject to the law between the points mutually served, or compe- 
 tition between different markets to the point where competing 
 lines join, does not, merely because it exists, make out the dissim- 
 ilar circumstances and conditions upon which a carrier may on its 
 own motion base a lower rate for one point, while it keeps in 
 effect a higher rate for a shorter distance over its line. They are 
 not presumptively dissimilar. Investigation by the commission 
 may, with no wrong to the carrier, but with permanent benefit to 
 the places they serve, result in bringing charges to all points in 
 the immediate territory into closer conformity with the law, and 
 render a lower rate for the longer distance unnecessary, or else 
 furnish sound reasons for its being sanctioned. Regulation hav- 
 ing been provided by Congress, its ajDplication is not only con- 
 stant, but the machinery of the law is at all times available by the 
 carriers governed, as well as by the public which the carriers 
 serve. 
 
 The special cases referred to in the proviso of the fourth sec- 
 tion, in which the commission is empowered to make investiga- 
 tion and grant relief from the requirements of the general rule, 
 incluflle aH cases that primarily involve questions of regulation 
 over the resi^ective competing lines. The line which fprees the 
 lower rate may itself be guilty of disproportionate rates. Such 
 disparity may not be so great as to have caused a complaint to the 
 commission t^ the patrons of the line, notwithstanding the bur-
 
 630 COMPETITION, DISCKIMINATION AND CONTINUOUS CAKEIAGE. 
 
 dens imposed may be manifest, but when rates so adjusted are 
 made the basis of another hue's departure from the rule of equi- 
 table charges, the situation imperatively calls for the intervention 
 of the regulating authority, both in the interests of the connect- 
 ing roads and of their patrons. A construction of the law which 
 allows a carrier to determine for itself in every instance whether 
 the lower rate for the longer distance is warranted, is liable, when 
 such lower rate is adopted by it, to cause another carrier serving 
 the same territory to feel justified in establishing a lower rate for 
 the longer distance on its line to the same point, or to a diiferent 
 point appearing to require relatively favorable rates ; and is also 
 liable to cause other carriers in the same section to take similar 
 action ; thus creating an artificial or abnormal situation, which 
 constantly provokes belief and claim of unjust discrimination and 
 endless controversies between shippers and carriers. Such a situ- 
 ation, left unchanged, presents a railroad problem most difiicult 
 of solution. But a construction of the law which will compel a 
 carrier, before putting in a lower rate for the longer distance, to 
 seek relief by a method which will involve a careful examination 
 of the traffic conditions as to all the lines competing for carriage 
 in the same territory, would tend to promote a solution more 
 beneficial for all parties. A concise statement of this construc- 
 tion of the fourth section on the point above discussed is : The 
 carrier has a right to judge in the first instance whether it is justi- 
 fied in making the greater charge for the shorter distance under 
 the fourth section, in all cases where the circumstances and condi- 
 tions arise wholly upon its own line, or through competition for 
 the same traffic with carriers not subject to regulation under the 
 Act to Regulate Commerce. In other cases, under the fourth sec- 
 tion, the circumstances and conditions are not presumptively dis- 
 similar, and carriers must not charge less for the longer distance, 
 except upon the order of the commission. 
 
 Soon after the Louisville & Nashville opinion was promulgated 
 by the commission, Judge Pardee of the United States circuit 
 court approved this construction in Missouri Pac. R. Co. v. 
 Texas cfc P. R. Co. 31 Fed. Rep. 527. Upon ex parte applica- 
 tion of the receivers of the defendant for advice in relation to the
 
 COMPETITION WITH WATER CAERIEK, ETC. 631 
 
 construction of the fourth section of the Act to Regulate Com- 
 merce, the court held : Under section 4 of the Interstate Com- 
 merce Law, relating to the charges for the long and short haul, it 
 seems that where the circumstances and conditions are dissimilar 
 there is no prohibition ; where the circumstances and conditions 
 are similar the prohibition attaches ; and that where it is difficult 
 to point out clearly the circumstances or conditions which produce 
 dissimilarity, the doubt should go in favor of the object of the 
 law, and the circumstances and conditions should be taken as sub- 
 stantially similar. Where the circumstances and conditions are 
 similar, or substantially similar, and the result to the carrier is in- 
 jurious, relief can be had only through the commission. Neither 
 is this view in serious conflict with the opinion expressed by Judge 
 Deady in Ex parte Koe?der, 1 Inters. Com. Hep. 317. The Ex 
 parte Koehler cases all involved water lines, and the rulings were 
 made with especial reference to the influence of competition by 
 that mode of carriage ; and the language of the judge in the 
 course of discussion must be construed with like reference. 
 
 The case of the Interstate Commerce Commission v. Atchison, 
 T. c& S. F. R. Co., 50 Fed. Rep. 295, was brought to enforce an 
 order of the commission issued against the defendants in a pro- 
 ceeding brought before it by the San Bernardino Board of 
 Trade. In this case the defendants took a great deal of 
 additional evidence upon the subject of water transportation at 
 the longer distance point. The court discussed the evidence at 
 considerable length and held that such means of transportation 
 actually existed, was actually and actively seeking the traffic, and 
 that shipments by water were increasing. The decision turned up- 
 on this showing, and the language of the court in the course of 
 the discussion must be held to have been made with reference to 
 the facts therein set forth. The principle stated by the court that 
 to render lawful a greater charge for a shorter than for a longer 
 haul, under section four of the Act, it is not necessary to first 
 obtain authority of the commission ; that such charge is lawful if 
 the circumstances and conditions are not in fact substantially 
 similar and the carrier may determine for himself, subject to a 
 liability for violating the Act, if, on investigation, the fact be
 
 632 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 found against him, is clearly in line with this view as to competi- 
 tion by water lines, or the competition of foreign railroads, or the 
 competition of independent state railroads. The decision was not 
 rendered upon any controlling considerations of competition be- 
 tween carriers subject to the law. In the case of Oshorne v. 
 Chicago & N. W. R. Co., 48 Fed. Eep. 40, Judge Shiras in charg- 
 ing the jury, said : " Whether the railway company was justified 
 by a cut rate, making what was called in argument ' illegitimate 
 competition,' and circumstances of that kind which grow out of 
 the handling and management of the railroad business of the 
 country, by other competing lines, and its effect upon the busi- 
 ness of the defendant company, in the judgment of the court, is 
 a question that cannot be submitted to you. Questions of that 
 kind are for the judgment and determination of the board of 
 commissioners appointed under this Act, and the courts and 
 juries, when they are called to act upon particular cases arising 
 under this Act, where it is denied that the law has been violated, 
 are only authorized to determine the question whether in the 
 service rendered, the character of the property, its conveyance, 
 and other facts which inhere in the carrying of freight upon the 
 particular line which is charged with wa-ong doing, there existed 
 dissimilar circumstances and conditions relieving this company 
 from the charge of collecting a larger rate for the shorter haul 
 over the same line, in the same direction, and under otherwise 
 substantially similar circumstances and conditions." 
 
 This decision distinctly follows the construction that where 
 doubt exists, the circumstances and conditions should be taken as 
 substantially similar. Doubt always exists as to the legitimate 
 force of the competition between carriers, subject to the law, which 
 one of them claims to compel the making of exceptional charges 
 over its line. The law restrains both alike and the true presump- 
 tion is that they have equal advantage under the law. But if 
 hardship is encountered then relief, temporary and continuing, 
 may on proper showing be obtained under the proviso of the 
 fourth section. In a case where the competition of a state rail- 
 road which in no way made it subject to the Act, was alleged to 
 justify the lower rate, the Interstate Commerce Commission sus-
 
 COMPETITION WITH WATER CRRRIEE, ETC. 633 
 
 tained the defendant, and laid down the following principle: 
 " The words ' substantially similar circumstances and conditions ' 
 as found in the second and fourth sections of the Act to Regulate 
 Commerce, in certain important particulars define the rights and 
 duties of carriers, and the rights of shippers as well. For ex- 
 ample, if the carrier claims to act under the compulsion of cir- 
 cumstances and conditions of his own creation or connivance in 
 the making of an exceptional rate, then these will not avail him; 
 or if the carrier claims to act under a compulsion of circumstances 
 and conditions in the making of an exceptional rate which he 
 could obviate by reasonably fair and just exertion on his part, 
 then they will not avail him. But if the carrier is in good faith 
 acting under a compulsion of circumstances and conditions beyond 
 his control, not of his connivance, and which he could not ob- 
 viate by any reasonably fair and just effort on his part, and to 
 avoid large loss adopts exceptional rates on a portion of his line, 
 not unreasonable in themselves, and forced upon him by the ac- 
 tion of an independent state railroad, which is not subject to the 
 Act to Regulate Commerce, and which is operating a slightly 
 shorter and competing line with his own, these are circumstances 
 and conditions under the operation of the statute which justify 
 him in adopting such exceptional rates thus forced upon him on 
 this portion of his line.'" This rule excludes the competition of 
 carriers subject to the Act from the carriers judgment. The 
 distinction herein made between the competition of carriers sub- 
 ject to the Act, and the competition of such a carrier with those 
 not subject to the Act, is also applicable to competition alleged 
 in cases under the second and third sections, and the commission 
 so considered in Harwell v. Columhus db IF. R. Co. 1 Inters. Com. 
 Rep. 631. 
 
 In a case where railroad competition was alleged by the res- 
 pondent to justify the exceptionally lower rate, which came before 
 the com^nission for investigation in July, 1888, it appeared that 
 the lower rate was caused by what the respondent termed unfair 
 competition by the competing line, and the evidence tended 
 
 ' Business Men's Asso. v. Chicago, 8t. P. M. & 0. B. Co. 2 Inters. Com. Rep. 
 41.
 
 634 COMPETITION, DISOEIMINATION AND CONTINUOUS OAERIAGE. 
 
 strongly to show that the long haul rate was unreasonably low.' 
 In its annual report to Congress for that year the commission 
 said of its decision in that case : " The reasoning seemed strong 
 and was certainly plausible. But the question involved was a 
 question of the construction of the Act ; its answer was to be ar- 
 rived at on consideration of what was probably the legislative in- 
 tent. It was seen that the circumstances and conditions relied 
 upon as entitling the carrier to make the exceptional rates were 
 not circumstances growing out of natural causes ; they were not 
 the outcome of competition by water routes; there was no pecu- 
 liarity of the line which would make the rates at the termini and 
 at other stations relatively just ; the only dissimilarity in the cir- 
 cumstances and conditions which attended the making of the rates 
 at the different points was that at the termini there was sharp 
 railroad competition and at the intermediate stations there was 
 not. But this was a state of things that, at the pleasure of the 
 railroad companies acting generally, or even of single companies 
 disposed to act in hostility, might be made to exist at any point 
 of railroad connection in the country; and if the greater charge 
 on the shorter haul was admissible in the case under investigation, 
 the rule of the fourth section would be of no practical value what- 
 ever. Any railroad company might by its action absolve a com- 
 petitor from its obligation, and be itself absolved in return. The 
 legislature never intended this consequence. It did not intend, 
 the commission believed, that the carriers subject to the law, 
 should at pleasure thus make the rule of the statute ineffectual. 
 The carrier under investigation conformed to this conclusion and 
 graded its rates accordingly, and the objectionable rates made by 
 the carrier complained of were also soon discontinued." 
 
 There has been a late English construction of the law of undue 
 preference contained in the Act of 1888, as applied to a case where 
 competition with other railways between the same points and also 
 water transportation was relied upon to justify a lower charge for 
 a longer distance, but the shorter was not included within the 
 longer distance. A clause in the statute relating to the public 
 
 ' Be Chicago, St. P. & K. C. E. Co. 2 Inters. Com. Rep. 137.
 
 COMPETITION WITH WATER CARKIEK, ETC. 635 
 
 interest and interests of the railways is carefully construed. A8 
 to the public interest, it was held, that the fact that it is seldom 
 not in the interest of the public to have a choice of competing 
 routes, does not decide the question. " It is clear that the Act 
 contemplates the possible existence of competition which may not 
 be in the interests of the public although it be effectual to secure 
 traffic." After considering the words "public interests" the fol- 
 lowing rules are stated in the English opinion : " It is however, 
 as a general rule, against the public interests that uncertainty 
 should be introduced into trade by frequent or violent or arbi- 
 trary changes of the circumstances under which people engaged 
 in business have to carry it on and to make their living. It is, 
 as a broad general rule, against the public interests that artificial 
 circumstances, which at the will or caprice or for the self interest 
 of any man, or body of men, may be swept out of existence as 
 lightly as they were perhaps created, should be permitted to in- 
 terfere with the natural course of trade.' This English case 
 clearly illustrates the construction of the law, that the existence 
 of competition between carriers subject to the Act does not jus- 
 tify them in the first instance in charging a lower rate for the 
 longer distance. That case is not a proper one to cite as a prece- 
 dent in a long and short haul case under our statute, for the cir- 
 cumstances of carriage are very different. It was purely a case 
 of relative rates of undue preference between markets, but it 
 shows how strictly the English authorities interpret the broad 
 language of their law, in accordance with the evident intent of 
 the law-making jjower. 
 
 A proceeding known as the " Import Rate Case," and insti- 
 tuted by the Interstate Commerce Commission to enforce its 
 order restraining- carriers from charo-ino- less for services rendered 
 in carrying import traffic from American seaports, when shipped 
 from foreign ports under through bills, than they charge for car- 
 rying domestic shipments of like kind of trafiic between the same 
 points, was decided in the United States Circuit Court, Southern 
 District of New York, on October 5, 1892. The long and short 
 
 1 Liverpool Corn Trade Asso. v. London & N. W. B. Co. L. R. [1891] 1 Q. B. 
 120, 45 Am. & Eng. R. Cas. 216.
 
 636 COMPETITION, DISCRIMINATION AND CONTINUOUS CAEKIAGE. 
 
 haul question was also to some extent involved. Wallace, J., 
 writing the opinion, which sustains the ruling of the commission, 
 in conclusion said : " The Interstate Commerce Act would be 
 emasculated in its remedial efficacy, if not practically nullified, if 
 a carrier can justify a discrimination in rates merely upon the 
 ground that unless it is given, the traffic obtained by giving it 
 would go to a competing carrier. A shipper having a choice 
 between competing carriers, would only have to refuse to send 
 his goods by one of them unless given exceptional rates, to justify 
 that one in making the discrimination in his favor on the ground 
 of the necessity of the situation." See also the decision of the 
 commission in the case of James & M. Buggy Co. v. Cincinnati., 
 N. 0. & T. P. E. Co. 3 Inters. Com. Eep. 682. In that case the 
 defendants sought to justify the greater charge for the shorter 
 haul on the ground of the competition of water carriers in con- 
 nection with delivering rail lines from a different market. On 
 this point the commission held that " water competition to 
 justify the greater charge for the shorter distance, must be com- 
 petition in transportation to the longer distance point, and as to 
 freight which, if not carried over the line on which it is located, 
 would reach such destination by water transj)ortation." The case 
 was brought by complaint. There was no appearance at the 
 hearing first assigned. The defendants subsequently, upon the 
 ruling of the commission that the burden was upon them, took a 
 little testimony by deposition, and the case was submitted with 
 little or no argument on either side. The ruling and the order 
 to cease and desist from charging more for the shorter than for 
 the longer distance, was in accordance with the spirit of the com- 
 mission's previous decisions and the only logical outcome of the 
 case. The defendants attempted to justify the greater charge 
 for the shorter distance, on the ground of substantially dissimilar 
 circumstances and conditions, but they were not plainly dissim- 
 ilar, under the construction of the section as laid down by the 
 commission and approved by the courts. The competition re- 
 lied upon to constitute the dissimilarity in circumstances and 
 conditions, was not only from a different point of shipment, but it 
 was the competition by carriers over through routes subject to
 
 LONG AND SHORT HAULS AND GROUP RATES. 637 
 
 the Act. What was said in that decision with reference to the 
 competition of markets has been re-afiirmed.' The competitors 
 stood presumably with equal advantage under the law and the 
 exceptional rate could only be sanctioned by an order granted 
 uj)on investigation which should sustain the carrier's application 
 for relief. 
 
 Where branch lines of a railway company are crossed by the 
 main line of another company, and from these points the com- 
 pany comes in competition with the other company from its main 
 line points, the charges on these branches do not establish a stand- 
 ard of reasonable rates for like distances from points on another 
 branch of the same company, where no such competition exists.^ 
 
 § 116. Long and Short Hauls and Groiij) Rates. 
 
 Complaints of tlie operation of that part of the fourth section of 
 the Act to Kegulate Commerce commonly called the long and short 
 haul clause, as appears by the report of the Interstate Commerce 
 Commission, rapidly decreased. The carriers by rail have so far 
 made their rates and charges fairly proportional as between local 
 and long haul traffic that the clause, if it ever worked injustice to 
 them, does so no longer. Indeed, as the general result is to give 
 greater satisfaction to local communities without unjustly aii'ect- 
 ing the great centers of commerce, the outcome cannot fail to be 
 beneficial to the carriers themselves. Nothing is more desirable 
 to any railroad than that its patrons shall be convinced that its 
 rates are just, and they can never be made to believe this while 
 the extraordinary differences in charge which were formerly made 
 in many cases, as between the long and short haul traffic carried 
 over the same line, are persisted in. Much of the complaint now 
 made of the clause in question, with a view to affecting public 
 sentiment, ignores altogether the fact that the prohibition of the 
 greatfr charge for the shorter haul, is very much qualified in the 
 statute, and that in respect to freights, it is limited to those of a 
 
 > Trammell v. Clyde 88. Co. 4 Inters. Com. Rep. 120. 
 
 ^Northwestern Iowa Grain & 8. 8. Asso. v. Chicago & N. W. B. Co. 3 Inters. 
 Com. Rep. 431.
 
 638 COMPETITION, DISCRIMINATION AND CONTINUOUS CARKIAGE. 
 
 like kind carried over the same line in the same direction and 
 under similar circumstances and conditions. A stranger to the 
 law might infer, from some public addresses and pamphlets which 
 have assumed to discuss this subject, that the railroad companies 
 were prohibited from carrying the necessities of life over long 
 distances at very low rates, unless their rates on other subjects of 
 transportation for shorter distances were made to correspond- 
 Indeed, instances have been pointed out in which it was said that 
 certain articles of commerce could not now be transported for 
 long distances, because by reason of this provision they would 
 not bear the charges that must under compulsion of law be im- 
 posed upon them. Among such instances has been mentioned 
 the granite industry of New England, as to which it has been 
 said that valuable manufactories have ceased to be profitable be- 
 cause it has now become impossible for the proprietors to obtain 
 from the railroad companies the nominal rates for the transporta- 
 tion of their products which they formerly enjoyed, since it is 
 now, by the long and short haul clause, made criminal for the 
 companies to give such rates. A complaint of this nature is base- 
 less in point of fact. The instance mentioned may safely be as- 
 sumed to be chosen rather from regard to the needs of an attack 
 upon the law, .than from any belief in the justice of its applica^ 
 tion. The prohibition of the fourth section, so far as it concerns 
 this article of commerce, or any other that can be named, will 
 have no application whatever until it is made to appear that else- 
 where upon the lines of the roads conveying it, there is jaroperty 
 of the same kind for transportation by the same carriers in the 
 same direction, upon which the carriers are disposed to make 
 greater charges in the aggregate for the shorter hauls. The 
 wheat of the extreme west, it is also said, can no longer have the 
 nominal rates which were formerly made for transportation to 
 the seaboard, but this assertion is also without point or applicabil- 
 ity, unless it is shown that the carriers are not only disposed to 
 give such rates, but propose to make up for the consequent losses 
 to themselves by the imposition of greater charges in the aggre- 
 gate for the carriage of the like grain when offered for carriage 
 by growers in the states nearer the seaboard. Nominal rates, im-
 
 LONG AND SHORT HAULS AND GROUP RATES. 639 
 
 partially made as between shippers of like articles, in the same 
 direction, and under like circumstances and conditions, are as ad- 
 missible now as they ever were. 
 
 A law that does not prohibit an equal charge for the transporta- 
 tion of like articles for the longer as for the shorter distance, would 
 seem to be quite as liberal as could be asked for or desired, pro- 
 vided the transportation in each case is under like circumstances 
 and conditions. And such is the law of the clause in question ; 
 the same charge may be made for the carriage of the like articles 
 for ten miles, as for a thousand, without a violation of its terms. 
 Even in its prohibition of the greater charge upon the shorter 
 haul it lays down no arbitrary or inflexible rule, but assumes that 
 there may be exceptional cases which can be justified in reason. 
 And it is a matter of common knowledge that there are in differ- 
 ent parts of the country many cases in which the greater charge 
 is still imposed for the shorter haul of like property in the same 
 direction, which the carriers defend upon a showing that the cir- 
 cumstances of the cases are so different as to warrant this seemino- 
 anomaly and unfairness. Those who complain of the provision 
 in question as an unwarranted invasion of the rights of carriers, 
 appear to overlook the fact that, as enacted in the Law to Eeo-u- 
 late Commerce, it is not new. As far back as 1850 it was enacted 
 in Yermont that " a railroad corporation whose roads are lo- 
 cated in the state, shall not charge a larger sum for freight, mer- 
 chandise or passage of passengers thereon, for a less distance to or 
 from a way station on said road, than is charged for a greater dis- 
 tance," 
 
 In 1882 it was further provided by statute in the same state 
 that "two or more corporations whose roads connect shall not 
 charge or receive for the transportation of freight to any station 
 on the road of either of them, a greater sum than is at the time 
 charged or received for the transportation of the like class and 
 quantity of freight, from the same original point of departure, to 
 a station at a greater distance on the road of eitlier of them in the 
 same direction. In the construction of this section the sum 
 charged or received for the transportation of freight shall include 
 all terminal charges : Provided, That this section shall not be
 
 640 COMPETITION, DISCKIMINATION AND CONTINUOUS CAKKIAGE. 
 
 construed as affecting the right of any railroad company to estab- 
 lish such rate on freights shipped over their line in carload lots 
 from points outside the state to points beyond the state, as may 
 seem for their best interests." The state of Virginia declared, by 
 act of 1867, that "no such company shall charge a greater sum 
 for the transportation of freight over a part of its line than is 
 charged for the transportation of similar freiglit over the whole 
 length of its line " — a provision which has since been made much 
 more stringent. Ohio, in 1872, enacted that " no person or com. 
 pany owning, controlling or operating a railroad in whole or in 
 part within this state, shall charge or receive for transportation of 
 freight for any distance within this state, a larger sum than is 
 charged by the same company or person for the transportation in 
 the same direction of freight of the same class or kind, for an equal 
 or greater distance over the same railroad and connecting lines of 
 railroad." The legislature of West Virginia in 1872 enacted that 
 " such railroad corporation shall not be permitted to charge for 
 the transportation of freight and passengers, or either, a less sum 
 from one terminus of their road to the other than from any inter- 
 mediate station to either terminus thereof, nor a greater sum for 
 the transportation of freight and passengers, or either, from any 
 intermediate station to either terminus of the road, or from either 
 terminus to an intermediate station, or from one intermediate sta- 
 tion to another, than from any intermediate station to either ter- 
 minus, or from either terminus to an intermediate station, or 
 from one intermediate station to another, where the distance is 
 less." Here it is seen that the rule laid down is inflexible, not 
 permitting exception. 
 
 In the year 1873 the state of New Jersey declared by law 
 that " hereafter it shall not be lawful for any railroad or canal 
 company, doing business in this state, to charge or receive any 
 greater rate of compensation for freight upon goods, wares or 
 merchandise transported between way stations or between a ter- 
 minal station and a way station, than they charge and receive 
 for freight upon such goods, wares and merchandise between the 
 terminal stations of such railroad or canal." This, it will be per- 
 ceived, laid down a fixed and inflexible rule that allowed of no
 
 LONG AND SHORT HAULS AND GKOCP RATES. 641 
 
 exceptions dependent upon circumstances. The policy of Illinois 
 was declared, by act of 1873, as follows : " If any such railroad 
 corporation shall charge, collect or receive for the transportation 
 of any passenger or freight of any description upon its railroad 
 for any distance within this state, the same or a greater amount of 
 toll or compensation than is at the time charged, collected or re- 
 ceived for the transportation in the same direction of any passen- 
 ger or like quantity of freight of the same class over a greater 
 distance of the same railroad : ... all such discriminating 
 rates, charges, collections or receipts, whether made directly or by 
 means of any rebate, drawback or other shift or evasion, shall be 
 deemed and taken against such railroad corporation as prima facie 
 evidence of the unjust discriminations prohibited by the provis- 
 ions of this act ; and it shall not be deemed a sufficient excuse or 
 justification of such discriminations on the part of such railroad 
 corporation that the railway station or point at which it shall 
 charge, collect or receive the same or less rates of toll or compen- 
 sation for the transportation of such passengers or freight, or for 
 the use and transportation of such railroad car, the greater dis- 
 tance than for the shorter distance, is a railway station or point at 
 which there exists competition with any other railroad or means 
 of transportation." 
 
 The people of Pennsylvania, when adopting their constitution 
 in 1873, inserted therein the following provision : " Persons and 
 property transported over any railroad, shall be delivered at any 
 station, at charges not exceeding the charges for transportation of 
 persons and property of the same class in the same direction, to 
 any more distant station." This again is without qualification, and 
 it is believed that the railroads of that state have found it greatly 
 to their advantage to comply with this provision, and that the 
 people themselves have never been heard to complain of it. The 
 state of Massachusetts, by statute in 1874, declaring that : "No 
 railroad corporation shall charge or receive for the transportation 
 of freight to any station on its road, a greater sum than is at the 
 time charged or received for the transportation of the like class 
 and quantity of freight from the same original point of departure, 
 to a station at a greater distance on its road, in the same direc- 
 41
 
 642 COMPETITION*. DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 tion. Two or more railroad corporations whose roads connect, 
 shall not charo;e or receive for the transportation of freight to 
 any station on the road of either of them, a greater sum than is at 
 the time charged or received for the transportation of the like 
 class and quantity of freight from the same original point of de- 
 pai'ture to a station at a greater distance on the road of either of 
 them, in the same direction. In the construction of this section 
 the sum charged or received for the transportation of freight 
 shall include all terminal charges ; and the road of a corporation 
 shall include all the road in use by it, whether owned or operated 
 under a contract or lease." 
 
 In the constitution of Arkansas, adopted in 187-i, the following 
 provision is found : " Persons and property, transj^orted over any 
 railroad, shall be delivered at any station at charges not exceeding 
 the charges for transportation of persons and property of the 
 same class in the same direction to any more distant station." In 
 the acts of 1874-75, of North Carolina, it is provided that : " It 
 shall be unlawful for any railroad corporation, operating in this 
 state, to charge for the transportation of any freight of any de- 
 scription over its road, a greater amount as toll or compensation, 
 than shall at the same time be charged by it for the transporta- 
 tion of an equal quantity of the same class of freight transported 
 in the same direction over any portion of the same railroad of 
 equal distance." The state of New Hampshire, by an act bearing 
 date in 1879, declared that: "ISTo railroad, owned or operated in 
 this state, shall charge a higher tariff on like classes of freight by 
 the carload, when delivered at any station on its line, than is 
 charged to deliver the same at any station on the road, when the 
 transportation is for a greater distance." By another section it 
 was declared that nothing above : " Shall be so construed as to 
 affect the rights of any railroad owned or operated in this state, 
 from establisliing such rates on freight shipped over their lines 
 from points outside of the state, to points beyond the state, as may 
 seem for their best interest." And by act of September 14, 1883 
 it was provided that: "No railroad corporation shall charge or 
 receive for the transportation of freight to any station on its road 
 a greater sum than is at the time charged or received for the
 
 LONG AND SHORT HAULS AND GROUP RATES. 643 
 
 transportation of the like class and quantity of freight from the 
 same original point of departure, to a station at a greater distance 
 on its road in the same direction. Two or more connecting rail- 
 roads in this state shall not charge or receive for the transporta- 
 tion of freight to any station on the road of either of them, a 
 greater sum than is at the time charged or received for transpor- 
 tation of the like class and quantity of freight from the same 
 original point of departure, to a station at a greater distance on 
 the road of either of them in the same direction. In tlie con- 
 struction of this section the sum charged or received for the trans- 
 portation of freight shall include all terminal charges, and the 
 road of a corporation shall include all the road in use by it, whether 
 owned or operated under a contract or lease." The state of 
 Nevada, by an act of 1879, provided that: "it shall be unlawful 
 for any person or persons engaged in the transportation of prop- 
 erty ... to charge or receive any greater compensation per 
 carload, or part thereof, of similar property, per mile, for carry- 
 ing, receiving, storing, forwarding or handling the same, for a 
 shorter than for a longer distance in one continuous carriage." 
 
 The state of California, in the revision of its constitution in 
 1879, provided that: "persons and property transpoi'ted over 
 any railroad, or by any other transportation company or individ- 
 ual, shall be delivered at any station, landing or port, at charges 
 not exceeding the charges for the transportation of persons and 
 property of the same class in the same direction to any more dis- 
 tant station, port or landing," South Carolina, in 1882, declared 
 it to be unlawful for persons engaged in transportation by rail- 
 road : " To charge, collect or receive for the transportation of 
 any passenger or freight of any description upon its railroad for 
 any distance within this state, the same or a greater amount of 
 toll or compensation than is at the same time charged, collected 
 or received for the transportation of any passenger or like quan- 
 tity of freight of the same class over a greater distance of the 
 same railroad." The state of Texas, by statute in 1883, declared 
 that : " if any railroad company shall charge one person more for 
 transporting freight of the same class, in equal or less quantities, 
 over its road for the same or a less distance than it charges an-
 
 644 COMPETITION, DISCRIMINATION AND CONTINDOUS OAKKIAGE. 
 
 other for the same or a greater distance, all such discriminating 
 rates, charges or collections, whether made directly or by means 
 of any rebate or other shift or evasion, shall be considered and 
 taken as prima facie evidence of extortion and unjust discrimina- 
 tion, which is hereby prohibited and declared unlawful." The 
 state of Connecticut, by statute in 1885, enacted that " no rail- 
 road company shall charge or receive for the transportation of 
 freight to any station on its road, a greater sum than is at the time 
 charged or received for the transportation of the like kind and 
 quantity of freight from the same original point of departure and 
 under similar circumstances, to a station at a greater distance on 
 its road in the same direction. Two or more railroad companies 
 whose roads connect, shall not charge or receive for the transpor- 
 tation of freight to any station on the road of either of them, a 
 greater sum than is at the time charged or received for tlie trans- 
 portation of a like kind and quantity of freight from the same 
 original point of departure, and under similar circumstances, to a 
 station at a greater distance on the road of either of them, in the 
 same direction. In the construction of this section the sum 
 charged or received for the transportation of freight shall include 
 all terminal charges ; and the road of a company shall include all 
 the road in use by it, whether owned or operated under a con- 
 tract or a lease." In this provision it will be seen that for the 
 first time in the enactments or constitutional provisions of the 
 several states quoted, an exception appears of cases where the 
 transportation is under different circumstances. The state of 
 Oregon, by act bearing date 1885, declared that "it shall be 
 unlawful for any person engaged in the transportation of prop- 
 erty as provided in the first section of this act, to charge or re- 
 ceive any greater compensation for a similar amount or kind of 
 property for carrying, receiving, storing, forwarding or handling 
 the same, for a shorter than a longer distance, in the same direc- 
 tion."* 
 
 *NoTE.— The provisions of the Hoult Law (Oregon), passed Feb. 20, 1885, 
 leaving to railroad companies the right, under certain limitations, to fix freights, 
 and declaring the charging of more for a shorter than for a longer haul in the 
 same direction an unjust discrimination, are repealed by the Oregon act of
 
 LONG AND SHORT HAULS AND GROUP RATES. 645 
 
 It will thus be seen that eighteen of the states, previous to the 
 passage of the Act to Regulate Commerce, had by statute or by 
 constitutional amendment, beginning in 1850 and from then on 
 to 1885, made illegal the charging of a greater compensation for 
 transportation by railroad companies for a shorter than was 
 charged for a longer distance over the same line in the same direc- 
 tion. Some of the provisions were broad and general, while others 
 were narrow and failed to cover all cases which might arise of the 
 kind specified. But with the single exception of the statute of 
 Connecticut, the rule prescribed by them admitted of no excep- 
 tions. The Connecticut statute, as has been seen, did not make 
 a greater charge illegal when the circumstances were not similar. 
 The states of Missouri, Minnesota and Nebraska, by statute, in 
 the same year in which the Act to Regulate Commerce was 
 passed, made provision in general harmony with that in the Act 
 of Congress upon this subject, and Iowa and the two Dakotas 
 liave done the same thing since. It is thus seen that fully one 
 half of the states of the Union, by enactments covering a period 
 of forty years, have declared the principle of the long and short 
 haul clause of the fourth section of the Act to Regulate Com- 
 merce to be sound, just and politic, and have been enforcing it 
 without any considerable objection being made to it from any 
 source. The business of the railroads in these states, so far as it 
 was purely state business, has been made to conform to it, and it 
 is reasonable to suppose that if the managers had found it to work 
 seriously to their detriment there would long since have been or- 
 ganized enero;etic efforts to change the laws of the states in this 
 particular. No such effort has been made. 
 
 Nevertheless, as in interstate commerce there were a vast num- 
 ber of cases in which the greater charge was made upon the 
 shorter haul at the time of the enactment of the law to regulate 
 commerce, it was but natural and reasonable that Congress should 
 proceed cautiousl}^, deliberately and with some regard to the ex- 
 isting state of things, in putting in force this wise and salutory 
 
 Feb. 20, 1891 (2 Hill's Code, 2d ed. p. 1967) leaving to a commission the power 
 to fix rates, subject to a decree of the courts as to their reasonableness. State 
 V. Rogers, 22 Or. 348.
 
 646 COMPETITION, DISCRIMINATION AND CONTINUOUS CARKIAGE. 
 
 provision. It was but prudent it should make the exceptions it 
 did, permitting of the greater charge on the shorter haul when 
 the conditions and circumstances should seem to justify it, and 
 even permitting what may be called a suspension of the law in 
 special cases, if, in the opinion of the commission appointed to 
 regulate interstate traffic, it should seem after investigation to be 
 reasonable to do so. This permission, however, the commission 
 has not, as yet, been called upon to exercise. It has in some 
 cases been required to decide upon the question whether such 
 conditions and circumstances existed as would warrant the excep- 
 tions made by the carriers themselves, but in the main conformity 
 to the law of the fourth section has been so general, and the ex- 
 ceptions made were based upon such reasons of prima facie neces- 
 sity, that the supposed autocratic power of suspension has never 
 even been invited. The provision authorizing the commission, 
 upon application in special cases, and after investigation, to allow 
 a carrier to charge less for longer than for shorter distances for 
 the transportation of passengers or property, was made in the in- 
 terest of the carriers, and with a view to relax still more the rule 
 of the statute, and to relieve it entirely from anything like a rigid 
 and unyielding character. The investigation and the showing of 
 reasons are conditions precedent, and the authority is therefore as 
 carefully limited as public powers of a discretionary nature can 
 be. In the requirement of an investigation it is assumed that all 
 parties concerned will have opportunity to be heard, and that the 
 interest of all will be considered, and the commission is author- 
 ized from time to time to prescribe the extent to which the car- 
 rier may be relieved from the operation of the general rule. The 
 power formerly exercised by the railroad companies was under no 
 legal supervision ; it was subject to no requirement of previous 
 investigation ; it might be, and commonly was, exercised without 
 opportunity to the parties who must pay the exceptional and op- 
 pressive rates to be first heard in respect to their imposition, and 
 without considering any other interests than those of the carriers 
 imposing them. It was therefore a despotic authority pure and 
 simple ; and when contrasted with it, the authority which may 
 now be exercised by the commission sinks into insignificance.
 
 LONG AND SHOET HAULS AND GROUP RATES. 6i7 
 
 The forraer was autocratic and unchecked ; the latter, as is proper 
 in governmental powers, is specially limited and regulated with a 
 view to the protection of all just equities. 
 
 It is a very significant fact, as bearing upon the propriety of 
 this section of the law, that in the convention of railroad commis- 
 sioners, national and state, held at Washington, a resolution was 
 adopted by a strong vote of the state commissioners " that it is 
 expedient that the laws of the several states should be in exact 
 harmony with the provisions of the Interstate Commerce Act " in, 
 among other things, " the regulation of the relations between 
 rates of compensation to be allowed for long and short hauls." 
 This declaration comes from a body of men the great majority of 
 whom, although they rej)resent the people of their several states, 
 and may be supposed to have their interests specially in view in 
 what they do on the subject of the regulation of railways, have 
 never been accused of hostility to railroad interests, or of having 
 injured them by the manner in which they have performed their 
 public duties. Prior to the enactment of the Act to Kegulate 
 Commerce, the railway commission in England had, by its de- 
 cisions, recognized the same principle, although not required to 
 do so by the express words of the statutes under which it was 
 acting. 
 
 Carriers are required to judge in the first instance with regard 
 to the similarity or dissimilarity of the circumstances or condi- 
 tions that forbid or permit a greater charge for a shorter distance. 
 But the judgment of carriers in respect to circumstances and con- 
 ditions is not final and is subject to authority of the Commission 
 and of the courts to decide whether error has been committed or 
 statute violated. In case of complaint for violation of section 4, 
 the burden of proof is on the carrier to justify any departure from 
 the general rule prescribed by statute, by showing that circumstances 
 and conditions are dissimilar.' Complainant must not necesssrily 
 have pecuniary interest to be entitled to be heard. The Yermont 
 State Grange was held to have such interest that it might raise the 
 question and a proceeding was held maintainable upon its petition.' 
 
 ' Re Southern R. & SS. Asao. 1 Inters. Com. Rep. 278. 
 
 ' Boston & A. R. Co. v. Boston & L. R. Co. 1 Inters. Com. Rep. 571. .^
 
 64:S COMPETITION, DISCRIMINATION AND CONTINUOUS CAKEIAGE. 
 
 A complaint, in effect asking from the commission an order re- 
 quiring defendant roads to receive freight at Schenectady for 
 transportation to Boston, for rates less than are now charged by 
 some roads for transportation of like freights to Boston from sta- 
 tions nearer Boston, under substantially similar circumstances and 
 conditions was dismissed.' The commission will not grant a 
 general suspension of section 4 of the Act, but will give relief only 
 as to traffic between specified points. While the Act authorizes 
 the commission to permit exceptions, it does not authorize it to 
 require exceptions.^ 
 
 Where in a proceeding against several connecting roads for 
 violation of section 4, one claims that its only participation con- 
 sisted in sharing in low charges on long haul, complaint should 
 not be dismissed as against it.' Section 1, requiring charges to 
 be reasonable, and section two, forbidding unjust discrimination, 
 applv when exceptional charges are made under section 4, as they 
 do in other cases. The prohibition in section 4 of the Intel-state 
 Commerce Act is limited to cases in which circumstances and 
 conditions are substantially similar." The furnishing of free cart- 
 age at one place, and not at another at a less distance from the 
 point of shipment, is a violation by a railway company of the 
 long and short haul clause of the Interstate Comrrierce Act, where 
 the transportation is under substantially similar circumstances and 
 conditions." It is not a justification for charging more for a 
 shorter than for a longer distance that the traffic which is sub- 
 jected to such greater charge is way or local traffic ; nor that the 
 shorter haul traffic is more expensive to the carrier ; nor that the 
 lesser charge has for its motive the encouragement of manufact- 
 ures or some other branch of industry ; nor that it is designed to 
 build up trade centers ; nor that the lesser charge for the longer 
 haul is merely a continuation of favorable rates under which trade 
 
 1 Thatcher v. Fitchburg R. Co. 1 Inters. Com. Rep. 356. 
 » Thatcher v. Fitchburg & A. R. Co. 1 Inters. Com. Rep. 23. 
 » Bot<ton & A. R. Co. v. Boaton & L. R. R. Co. 1 Inters. Com. Rep. 571. 
 *Re Soutliern R. & 88. Asso. 1 Inters. Com. Rep. 278. 
 
 ^Interstate Commerce Com. v. Detroit, G. H. & M. R. Co. 4 Inters. Com. Rep. 
 722, 57 Fed. Rep. 1005.
 
 LONG AND SHORT HAULS AND GROUP RATES. 649 
 
 centers or industries have been built up.' The fact that freight 
 has paid a local rate to reach a longer distance point will not jus- 
 tify a greater charge upon similar freight from a shorter distance 
 point. A less charge to a longer distance point is not justified by 
 the fact that the freight is to be carried in cars of connecting lines 
 which have come to such point loaded and are to be returned, 
 which circumstances do not exist in favor of the shorter distance 
 point. A difference in bulk and value of lumber does not justify 
 a greater charge to a short distance point than to a longer one, 
 when the carriers, in their published rate sheets, put the lumber 
 in the same class and at the same rate.'' The grouping by a rail- 
 road company, as stations to which the freight rates from the far 
 east may properly be made the same, of two stations, is a conclu- 
 sive admission by it that, so far as the transportation from the 
 east to its warehouses at such stations is concerned, it is under 
 substantially similar conditions and circumstances.^ A railroad 
 company violates the Interstate Commerce Law by forwarding 
 grain from Nebraska through Iowa to Chicago, Illinois, at a less 
 rate than it charges to Chicago from points in Iowa through 
 which the grain from Nebraska passes, although the grain from 
 Nebraska is technically to be delivered at points in Illinois some 
 distance from Chicago." 
 
 Tlie only practical method yet devised for making through 
 export rates is to add to the established inland rates from the 
 interior to the seaboard the current ocean rates. Rates ten cents 
 or more per hundred pounds less on export traffic from the point 
 of shipment to New York than is charged on like commodities 
 from the same point to New York as the point of destination will 
 be deemed unjust and unlawful discrimination, in the absence of 
 a showing to the contrary.* When freight is hauled to the sea- 
 
 'i?e Southern R. & SS. Asso. 1 Inters. Com. Rep. 278. 
 
 ^ James v. East Tennessee, V. & O. R. Co. 2 Inters. Com. Rep. 609. 
 
 ^Inter^ate Commerce Com. v. Detroit, Q. H. & M. R. Co. 4 Inters. Cora. Rep. 
 
 722; 57 Fed. Rep. 1005. 
 *Junodv. Chicago & N. W. R. Co. 3 Inters. Com. Rep. 663; 47 Fed. Rep. 
 
 290. 
 « New York Produce Ezch. v. New York Cent. & H. R. R. Co. 2 Inters. Com. 
 
 Rep. 553.
 
 650 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 board for export, or to E^ew England points, from the northwest- 
 ern states or territories, or vice versa, through Detroit, the rule 
 that the estimated portion of the through rate from the starting 
 point to Detroit may be lower in proportion to distance than the 
 rate upon freight from such point destined to Detroit, cannot be 
 sustained,' The Chicago & Northwestern Railway Company has 
 two routes or lines between Chicago & Sioux City, formed by its 
 main line and different branch lines ; and a greater charge for a 
 shorter than for a longer distance in the same direction, the shorter 
 l)eing included in the longer distance, on either of said routes or 
 lines, is unlawful, under the Act to Regulate Commerce, § 4." 
 The question of a greater cliarge in the aggregate for a shorter 
 than for a longer distance over the same line in the same direc- 
 tion is not to be determined by the proportions allotted to differ- 
 ent roads on the line, but by the rate as an entirety.^ 
 
 The rule expressed by the Act to Regulate Commerce, § 4, 
 that distance shall ordinarily limit the adjustment of rates, is not 
 rendered inoperative by the existence at one point of converging 
 lines subject to the Act ; for the law applies to each of these 
 lines, and neither can put in rates to that point which are lower 
 than shorter distance charges on its line until, upon a showing of 
 special considerations grounded in justice to its patrons and itself, 
 it obtains permission from the regulating authority so to do. 
 This principle applies both to lines between the same points and 
 to lines reaching the same destination from different points of 
 consignment.'' A joint tariff arrangement between a railroad 
 company and other roads will not relieve it from liability to one 
 injured by its violation of the Interstate Commerce Law in charg- 
 ing more for a short than a long haul under the same conditions." 
 Where two or more roads forming a continuous connectino- line 
 between points in different states bill and carry interstate traffic 
 
 ' Detroit Board of Trade v. Grand Trunk R. Co. 2 Inters. Com. Rep. 199. 
 ^ Northwestern Iowa Grain & S. 8. Asso. v. Ckicago <& iV. W. R. Co. 2 Inters. 
 
 Com. Hep. 431. 
 3 Imperial Coal Co. v. Pittsburg & L. E. R. Co. 2 Inters. Com. Rep. 436. 
 " Gerke Brew. Co. v. Louisville tfi K R. Co. 4 Inters, Com. Rep. 267. 
 « 0>>borne v. Chicago & N. W. R. Co. 48 Fed. Rep. 49, 49 Am. & Eng. R. 
 Cas. 12.
 
 LONG AND SHORT HAULS AND GROUP KATES. 651 
 
 through to certain stations on the last road forininor such line, 
 neither the roads together nor any one of them can evade the 
 obligations of the Act to Regulate Commerce, § -i, by declarhig 
 that as to such traffic destined to such stations on such terminal 
 road it is a local carrier.' Where several companies join in joint 
 tariff, those making greater charges must justify it. Companies 
 permitting through business to be done over their tracks, by the 
 National Despatch line, are responsible for long haul rates. 
 Where in a proceeding against several connecting roads for vio- 
 lation of section 4, one claims that its only participation consisted 
 in sharing in low charges on long haul, complaint should not be 
 dismissed as against it.' 
 
 The competition between two roads does not of itself justify 
 the greater charge upon the shorter haul, nor does the fact that 
 one company makes the charges unreasonably low between two 
 points.^ Competition of carrier with carrier, both of which are 
 subject to the Act to Kegulate Commerce, is as much within the 
 terms of § 4, limiting the short and long haul clause to similar 
 conditions, as competition with a carrier not subject to the Act.^ 
 The competition of markets on different lines, for the sale of 
 commodities at a given point served by both lines, does not cre- 
 ate circumstances and conditions which the carriers can take into 
 account in determining for themselves in the first instance 
 whether they are justified under the Act to Regulate Commerce, 
 § 4, in charging more for shorter than for longer distances over 
 their lines." There is no competition by rail over the Canadian 
 Pacific Railway, or by water around Cape Horn, that justifies a 
 departure from the " long and short haul rule " of the statute in 
 the transportation of refined sugar from San Francisco to Fargo 
 and through Fargo to St. Paul.^ In the absence of competition 
 
 ' James & M. Buggy Go. v. Cincinnati, N. 0. & T. P. R. Co. 3 Inters. Coin. 
 
 lle^. 682. 
 ^Boston & A. R. Co. v. Boston & L. R. R. Co. Haters. Com. Rep. 571. 
 ^Re Chicago, St. P. <& K. C. R. Co. 2 Inters. Com. Rep. 137. 
 
 * Interstate Commerce Com. v. Cincinnati, N. 0. & T. P. R. Co. 4 Inters. Com. 
 
 Rep. 332. 
 & Trammell v. Clyde SS. Co. 4 Inters. Com. Rep. 120. 
 
 * Raworth v. Northern Pac. R. Co. 3 Inters. Com. Rep. 857.
 
 652 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 from Canadian railways (which are not subject to the Interstate 
 Commerce Act) the circumstances and conditions of the traffic 
 from San Francisco to Denver are not so materially different 
 from those of the traffic from San Francisco to the Missouri 
 river as to justify the transcontinental roads subject to the Act 
 in charging a greater sum for the shorter distance.' When a 
 difference in rates on grain and grain products is unreasonable, 
 the relation of local to through rates should not be unduly dis- 
 proportioned. 
 
 Through rates are not required to be made on a mileage basis, 
 nor local rates to correspond with the divisions. "With a joint 
 through rate over the same line, mileage is usually an element of 
 importance and due regard to distance proportions should be ob- 
 served in connection with the other considerations that are mate- 
 rial in fixing transportation charges. When rates on the line of 
 a carrier are on the face disproportionate or relatively unequal, 
 the burden is on the carrier to justify them when challenged. 
 Grain and grain products- classified alike are presumably entitled 
 to equal rates, aud if a difference is made by a carrier it assumes 
 the burden of sustaining it by satisfactory evidence. Upon com- 
 plaint against the Grand Trunk railway of Canada for alleged 
 unreasonableness of a rate of eight cents a hundred pounds 
 on grain and ten cents a hundred pounds on grain products from 
 Fort Huron to Buffalo, as compared with a through rate of fifteen 
 cents a hundred pounds from Chicago to Buffalo over the line 
 formed by that road and the Chicago & Grand Trunk, it was held 
 that though the local rate from Port Huron to Buffalo might be 
 regarded as disproportionate on the basis of distance alone, other 
 considerations are involved, and in view of the terminal and ferry 
 expenses at Port Huron, the ISTiagara bridge charges and the 
 Buffalo terminal expenses, all of which are borne by the Grand 
 Trunk Railway of Canada alone upon business originating at Port 
 Huron, the complaint against the eight-cent rate on grain is not 
 sustained ; but no good reason havnig been shown for a higher 
 rate on grain products, that portion of the complaint is sustained 
 
 ' Martin v. Southern Pac. R. Co. 2 Inters. Com. Rep. 1,
 
 LONG AND SHORT HAULS AND GROUP RATES. 653 
 
 and the products ordered to be carried at the same rate as 
 grain.* 
 
 In the case of the Board of Trade of Chattanooga against the 
 East Tennessee, Yirginia & Georgia Railway Company and 
 others, the complaint alleged that the rates on traffic from ]S"ew 
 York and other Atlantic seaboard points to Chattanooga are un- 
 reasonable in themselves and relatively, as compared with rates on 
 like property to Memphis and Nashville, and that rates on such 
 traffic are greater for the shorter distance to Chattanooga than for 
 the longer distance over the same line in the same direction to 
 Memphis and Nashville. It is said that defendants are justified 
 by the existence of water competition of controlling force in 
 charging less on such traffic for the longer distance to Memphis, 
 but that no such competition exists for such traffic to Nashville, 
 and any greater charge for tlie transportation of like kind of 
 property from said seaboard points for the shorter distance to 
 Ohattanooo;a than for the lono-er distance throu2;h Chattanooga to 
 Nashville is in violation of the fourth section of the Act to Regu- 
 late Commerce. Defendants ordered to cease and desist from 
 makino; such greater charges to Chattanooga, with leave to file 
 application for relief under the proviso clause of the fourth sec- 
 tion within a specified time. Competition with carriers not 
 subject to the statute is based upon natural causes and plain con- 
 ditions, but the legitimate force of competition with carriers 
 subject to the Act depends upon compliance with the law by each 
 of the competitors and the special circumstances and primarily 
 indefinite conditions in each particular case.* The right to make 
 greater charges for a short than for a long haul depends upon 
 peculiar circumstances and conditions of each case.' The general 
 rule that the cost is less per ton per mile on long than on short 
 hauls is subject to exceptions, and one of these is found where the 
 
 f 
 
 ' McMorran v. Grand Trunk R. Co. 2 Inters. Com. Rep. 604. 
 
 ' Gerke Brew. Go. v. Louisville <& N". R. Co. 4 Inters. Com. Rep. 267; Tram- 
 mell V. Clyde 88. Co. 4 Inters. Com. Rep. 120. 
 
 * Boston & A. R. Co. v. Boston <& L. R. Co. 1 Inters. Com. Rep. 571; Re 
 Southern R. & 88. Asso. 1 Inters. Com. Rep. 278.
 
 654 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 business on the long haul goes over different divisions of a line, 
 necessitating extra handling and switching.' 
 
 A local charge by a railroad company greater than a through 
 joint tariff charge made by it and another company for a longer 
 haul does not violate the long and short Iiaul clause of the Inter- 
 state Commerce Act.'' Carriers may lawfully accept the same 
 aggregate, though less profitable, rates for longer distances, pro- 
 vided they do not " subject any particular person, company, firm, 
 corporation, or locality, or any particular description of traffic, to 
 any undue or unreasonable prejudice or disadvantage.' The 
 joint use of the same track by different railroad companies does 
 not constitute them the same " line," under the long and short 
 haul clause in § 4 of the Act to Regulate Commerce, so as to 
 compel either company to graduate its tariff by that of the other. 
 As between the short and long haul, competition may exist to 
 such an extent that what would otherwise be similar circum- 
 stances and conditions will be dissimilar.* The doctrine that an 
 estimated proportion of the through rate must not be less accord- 
 ing to distance than the local rate from an intermediate point 
 to another point named in the line covered by the through rate is 
 untenable.* Besides terminal expenses and other aggregate 
 charges not depending upon the distance freight is moved, there 
 are other conditions which justify a lower proportionate charge for 
 longer distances." When rates from any cause are made greater 
 for shorter than for longer distances, the difference between such 
 rates must in no instance be unreasonable.'' Rates having been 
 established from St. Louis to Omaha in view of the distance over 
 
 ' Eau Claire Board of Trade v. Chicago, M. & St. P. R. Co. 4 Inters. Com. 
 Rep. 65. 
 
 "^ Chicago cfe iV. W. B. Co. v. Osborne, 4 Inters. Com. Rep. 257, 10 U. S. App. 
 
 430. 53 Am. & Eng. R. Cas. 18, 52 Fed. Rep. 913. 
 ^ James & M. Buggy Co. v. Cincinnati, N. 0. d T. P. M. Co. 3 Inters. Com. 
 
 Rep. 632. 
 
 ■* Interstate Commerce Com. v. Cincinnati, iV. 0. & T. P. B. Co. 4 Inters. Com. 
 Rep. 332. 
 
 ^ Poughkeepsie Iron Go. y. New York Cent. & H. B. B. Co. 3 Inters. Com. 
 Rep. 248. 
 
 * Co.ve V. Lehigh Valley B. Co. 3 Inters. Com. Rep. 460. 
 
 ^ Oerke Brew. Co. v. Louisville & N. B. Co. 4 Inters. Com. Rep. 267.
 
 LONG AND SHORT HAULS AND GROUi* KATES. 655 
 
 the Wabash line, the action of the Missouri Pacific in meeting the 
 Wabasli rates, although too low to be greatly desirable for its 
 longer line, and involving loss of former revenue at intermediate 
 points on the main line south of Omaha, by the application to the 
 situation of the long and short haul clause of the Interstate Com- 
 merce Act, cannot be properly criticised.' A joint rate between 
 two railroad companies, constituting a new line, does not furnish 
 a basis upon which either is bound to adjust its own local tariff. 
 A carrier may charge a local rate between points on its own line 
 greater than its part of a joint rate made with another connecting 
 road, although the distance between such points is less than that 
 for which the joint rate is paid and the circumstances are similar.'' 
 The making of a " group rate," or the charging of the same 
 price for a shorter as for a longer haul, is not within the provisions 
 of a statute prohibiting the charging of one shipper a greater rate 
 than another for the same or a shorter haul.^' The statute is as 
 follows : " Railroad companies may charge and receive not 
 exceeding the rate of fifty cents per one hundred pounds per one 
 hundred miles for the transportation of freight over their roads ; 
 but the charges for transportation on each class or kind of freight 
 shall be uniform, and no unjust discrimination in the rates or 
 charges for the transportation of any freight shall be made against 
 any person or place on any railroad in this state, and it shall be 
 prima facie evidence of an unjust discrimination for any railroad 
 company to demand or receive from one person, firm, or company 
 a greater compensation than from another for the transportation 
 in this state of any freight of the same kind or class in equal or 
 greater quantities for the same or a less distance, which prima 
 facie evidence may be rebutted by competent testimony on the 
 part of such company, showing that the discrimination, if any, 
 was not an unjust one, and the question upon an issue as to 
 whether any alleged discrimination is unjust or not shall be 
 a question of fact to be tried and determined as any other issue of 
 
 ^Lincoln Board of Trade v. Missouri Pae. R. Co. 2 Inters. Com. Rep. 98. 
 « United States v. Mellen, 4 Inters. Com. Rep. 247, 53 Fed. Rep. 229. 
 ^ Texas & P. R. Go. v. Kuteman, 54 Fed. Rep. 547; Texas & P. R. Co. v. 
 Kuteman, 79 Tex. 465, distinguished.
 
 656 COMPETITION, DISCBIMINATION AND CONTINUOUS CARRIAGE. 
 
 fact in a case : provided, tliat when the distance from the place of 
 shipment to the point of destination of any freight is fifty miles 
 or less, a charge not exceeding thirty cents per one hundred 
 pounds may be made for the transportation tliereof." ' 
 
 'Tex. Rev. Stat. art. 4557; Texas & P. B. Co. v. Kuteman, 54 Fed. Rep. 547.
 
 CHAPTER XYII. 
 
 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE 
 
 — Continued. 
 
 § 117. Water Transportation a Controlling Factor. 
 
 § 118. Raihuays Need not Make TJirougli Rates with Water Craft. 
 
 § 119. Tlirougli Routes and Tlirough Rates. 
 
 § 120. Combinations betioeen Rival Carriers. 
 
 § 121. Rebate Contract to Repay tlie Shipper a Part of the Rate. 
 
 %117. Water Transportation a Controlling Fac- 
 tor. 
 
 It was no part of the purpose of the Act to drive water carriers 
 out of business by means of rates for transportation bv rail rela- 
 tively unjust as between the patrons of the latter method of car- 
 riage ; and the carriers by rail do not establish the legality of the 
 greater charge upon the shorter haul by merely showing that the 
 longer haul is in competition with water transportation. They 
 must show in addition to this that the greater charge on the 
 shorter haul, if questioned, when compared with that made on 
 the longer haul, is, when all the conditions and circumstances are 
 considered, relatively just and fair as between its patrons at its 
 several stations aifected. It having been conceded that the exist- 
 ence of water competition may constitute such a difference in 
 the conditions and circumstances of transportation as will justify 
 the greater charge on the shorter haul in some cases, some car- 
 riers appear to have assumed that they are, in a clear case of that 
 nature, entirely absolved from any obligation to make the charge 
 at the point of water competition bear any proportion whatever 
 to the charges at other points, but that they may in their discre- 
 tion lower the former to any extent necessary to enable them to 
 take the business from water carriers and still maintain the rates 
 on shorter hauls at what they would have been if no such lower- 
 ing had taken place. The result would be in some cases, if the 
 42 657
 
 658 COMPETITION, DISCRIMINATION AND CONTINUOUS CAKEIAGE. 
 
 rates made by the roads were allowed to stand, that points where 
 there was water competition to any extent, however small, would 
 be given an advantage in railroad transportation that would be 
 absolutely destructive to previously existing competition of other 
 towns of equal or greater importance on the same lines of rail- 
 way. In such a case there may be double wrong ; first, in the 
 unjust discrimination as between the points served by the rail- 
 way, and, second, in the driving of water carriers out of the busi- 
 ness by rates which are made so low as to be unremunerative, the 
 loss to the carriers by rail being made up by charges on other busi- 
 ness higher than would otherwise be necessary. Such a method 
 of making rates is not in accordance with the intent of the law, 
 which has for its object to accomplish justice and establish, as- 
 nearly as is practicable, equality of right in the matter of trans- 
 portation by public agencies. 
 
 Water competition, to justify a greater charge for a shorter 
 distance, must be competition in transportation to the longer dis- 
 tance point, and as to freight which, if not carried over the line 
 on which it is located, would reach such destination by water 
 transportation.^ Possible competition will not justify such greater 
 charge under the provisions of the 4th section of the Act to Regu- 
 late Commerce.* Active competition by water and other rail- 
 I'oads at a terminal point, for the transportation of certain goods,, 
 renders the circumstances and conditions substantially dissimilar,, 
 and justifies a railroad company in charging a less rate to such 
 point than to an intermediate noncompeting point, when neces- 
 sary to meet such competition.' But the presence of combined 
 rail and water competition at a longer distance point will not jus- 
 tify a greater charge to a shorter distance point, where such com- 
 petition is of greater force and more controlling than at the 
 former point.* Water competition cannot justify charges three 
 
 ^ James & M. Buggy Co. v. Cincinnati, N. 0. & T. P. M. Co. 3 Inters. Com. 
 Rep. 683. 
 
 * San Bernardino Board of Trade v. Atchison, T. & S. F. B. Co. 3 Inters. 
 
 Cora. Rep. 138. 
 2 Interstate Commerce Com. v. Atchison, T. <& 8. F. R. Co. 50 Fed. Rep. 295. 
 See also New Orleans Cotton Exch. v. Illinois Cent. B. Co. 2 Inters. Com. 
 Rep. 777. 
 
 * James v. East Tennessee, V. & O. R. Co. 2 Inters. Com. Rep. 609.
 
 WATER TKANSPORTATION A CONTROLLING FACTOR. 659 
 
 times as great for shorter distances as those for longer distances.' 
 The English Raihraj and Canal Traffic Act permits special rates 
 of carriage to a terminus to which traffic can be carried bj other 
 modes of carriage, with which the carrier is in competition.'^ 
 When water competition is alleged to justify rates in any case 
 under the statute the carrier must affirmatively show by proof 
 which does more than create a presumption, and which clearly 
 establishes that such competition is a controlling factor in the 
 transportation of traffic important in amount from the point in 
 question.' Active competition by water and other railroads at a 
 terminal point, for the transportation of certain goods, renders 
 the circumstances and conditions substantially dissimilar, and jus- 
 tifies a railroad company in charging a less rate to the former than 
 to the latter point from those affecting an intermediate noncompet- 
 ing point, when necessary to meet such competition." 
 
 The only justification for a through rate less than an inter- 
 mediate rate on the same article is the compulsion of rail carriers 
 to accept the reduced compensation or suffer ocean rivals to per- 
 form the service ; and where the pressure of this alternative is 
 not felt, there is no ground upon which the lower through charge 
 can be excused.' If ocean competition can create a similar con- 
 dition which is to be considered in determining whether discrim- 
 inations against particular classes of traffic are unjust, ocean com- 
 petition from Liverpool to San Francisco will not justify a railroad 
 company in taking goods imported from Liverpool by way of 
 New Orleans, from JSTew Orleans to San Francisco at a rate 
 slightly in excess of the cost of transportation but less than a 
 third of the regular inland rate." The "drive" of shingle logs 
 
 ' Rice V. Cincinnati, W. db B. R. Co. 3 Inters. Com. Rep. 841. 
 
 ^Foreman v. Great Eastern R. Co. 2 Nev. & McN. 202. 
 
 ^ Ex parte Koehler, 1 Inters. Cora. Rep. 317; Harwell v. Cohnnhus <& W. R. 
 
 Co. 1 Inters. Com. Rep. 631; James v. Canadian Fac. R. Co. 4 Inters. Com. 
 
 Rep. 274. 
 * Interstate Commerce Com. v. Atchison, T. & S. F. R. Co. 4 Inters. Com. 
 
 Rep. 323. 
 ' Merchants Union of Spokane Falls v. Northern Pac. R. Co. 4 Inter's. Com. 
 
 Rep. 183. 
 'Interstate Commerce Com. v. Texas & P. R. Co. 4 Inters. Com. Rep. 408, 57 
 
 Fed. Rep. 948.
 
 660 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 down rivers which flow past the place of cut in, Maine to a sea- 
 port in Canada where shingle mills are located, and from which 
 the product may go by sea to market ports, affects shingle traffic 
 from competing mills located along these rivers at a place in 
 Canada and a place in Maine, but operates with less force at the 
 latter point. The rail rate from the Canadian mill to market 
 being fixed with especial reference to the effect of the log drive 
 to and water competition for shingle trafiic from the seaport, the 
 rate from the Maine mill should be made upon the same basis.' 
 The competition between all water lines and the all rail lines in 
 the carriage of petroleum and its products from the port of New 
 York to San Francisco, Oakland, Sacramento, Stockton, Marys- 
 ville, San Jose, and San Diego, in the state of California, is act- 
 ual, and involves the transportation of traffic important in amount, 
 and warrants the all rail lines in making such just and reasonable 
 rates as will enable them to meet the low rates and competition 
 of the competing all water lines and of the competing part water 
 and part rail lines at said points ; and in doing so they are not ob- 
 liged to make their rates at intermediate points as low as the rates 
 forced upon them by the competition." There is no competition 
 by rail over the Canadian Pacific Railway, or by water around 
 Cape Horn, that justifies a departure from the " long and short 
 haul rule" of the statute in the transportation of refined sugar 
 from San Francisco to Fargo and throuo^h Farsro to St. Paul." 
 Any advantages which enure to Michigan salt manufacturers as 
 against those of Kansas, from rates to points in Iowa, Illinois, 
 Missouri, and Nebraska, are advantages arising from natural situa- 
 tion ; and a low rate to Missouri river points is influenced by 
 water competition and also by the heavy preponderance of east 
 bound freight over west bound freight.* In the Merchants Union 
 of Spokane Falls, against the Northern Pacific Railroad Com- 
 pany and the Union Pacific Railroad Company, the points de- 
 cided are as follows : 1. By rail from eastern points to the " Pa- 
 
 ' James v. Canadian Pac. B. Co. 4 Inters. Com. Rep. 274. 
 
 " Rice V. Atchison, T. & 8. F. B. Co. 3 Inters. Com. Rep. 263. 
 
 ^Baworth v. Northern Pac. B. Co. 3 Inters. Com. Rep. 857. 
 
 " Antfiony Salt Co. v. Missouri Pac. B. Co. 4 Inters. Com, Rep. 33.
 
 WATEK TKANSPOKTATION A CONTROLLING FACTOR. 0(jl 
 
 cific coast terminals," Portland, Tacoma, and Seattle, is affected 
 by the competition of water carriers, but such competition does 
 not affect like transportation from said points to the city of 
 Spokane. Held, therefore, that defendants are justified in main- 
 taining higher rates on shipments from said points for the shorter 
 distance to Spokane than for the longer distance to said Pacific 
 terminals. 2. Held, that the only justification for a through rate 
 less than an intermediate rate on the same article is the compul- 
 sion of rail carriers to accept the reduced compensation or suffer 
 ocean rivals to perform the service, and where the pressure of 
 this alternative is not felt there is no ground upon which the 
 lower through charge can be excused. 3. In the matter of car- 
 load and mixed carload rates, defendants are required to allow 
 the same privileges on shipments to Spokane as are provided or 
 allowed on like shipments to Portland or other Pacific coast ter- 
 minals. 4, " Blanket " class rates upon the ]S[orthern Pacific road 
 for a distance of over 580 miles are held unreasonable ; defendants 
 ordered to desist from charging rates on property from eastern 
 points to Spokane, which materially exceed the two per cent of 
 class rates now in effect both to Spokane and Pacific coast termi- 
 nals.' 
 
 The possible influence of water competition upon rates for the 
 transportation of oranges, and the nonexistence of such competi- 
 tion in the carriage of berries because the latter cannot be carried 
 by water in any considerable quantities, does not authorize rail- 
 roads from Florida to Kew York to take advantage of the situa- 
 tion and charge unreasonable rates on berries."* Where the com- 
 petition of an independent water line, not subject to the provisions 
 of the Act to Kegulate Commerce, is actual with that of a rail 
 carrier for traffic at a point reached by it, and for traffic important 
 in amount, a dissimilarity of circumstances and conditions is 
 shown to exist,^ then the rail carrier if necessary to meet such 
 t 
 
 ' MercJianU Union of Spokane Falls v. Northern Pae. R. Co. 4 Inters. Com. 
 
 Rep. 183. 
 * Perry v. Florida Cent. & P. E. Co. 3 Inters. Com. Rep. 740. 
 ^JS'ew Orleans Cotton Ezch. v. Illinois Cent. R. Co. 2 Inters. Com, Rep. 777; 
 
 King v. New York, N. IL & H. B. Co. 3 Inters. Com. Rep. 272.
 
 662 COMPETITION, DISCKIMINATION AND CONTINUOUS CAERIAGB. 
 
 competition may lower its rates at tliat point without doing so at 
 other points on its Hne at which no such competition exists, and at 
 which other points the rail carrier could not so reduce its rates 
 without a large loss of revenue.' 
 
 A full discussion of the rule and the grounds upon which it 
 rests will be found in these decisions. The principle found run- 
 ning through them all is that the statute in express terms having 
 provided that the circumstances and conditions must be substan- 
 tially similar in the performance of each service, in the longer as 
 in the shorter haul, the existence of such competition as that above 
 stated at one point between a carrier subject to the law, and one 
 that is not subject to the law, creates at that point circumstances 
 and conditions which are substantially dissimilar, in the service 
 performed by the rail carrier, to those existing at other points on 
 its line where no such competition exists. In such a case the rail 
 carrier is not obliged to go out of the business at a point where 
 such competition with an independent water line prevails, leaving 
 to the water line a monopoly of that business ; nor is the rail car- 
 rier, on the other hand, compelled to lower its rates at other points 
 along its line, where no such competition is found, to the standard 
 of the rate it is compelled to make to meet the competition of the 
 water line at the point where such competition does exist ; but 
 the rail carrier may lower its rates at the point at which it has to 
 encounter such competition and in lowering them may make such 
 just and reasonable rates in view of all the circumstances and con- 
 ditions surrounding its business as will enable it to meet the com- 
 petition of the independent water line at that point." Through 
 rates on long hauls more usually than local rates on short hauls 
 encounter water competition and are made lower in proportion to 
 distance by this cause as well as other causes which have been re- 
 peatedly discussed and considered by the Interstate Commerce 
 Commission ; and the doctrine that an estimated proportion of the 
 through i-ate must not be less accordino- to distance than the local 
 
 ^ Re Southern R. & SS. Asso. 1 Inters. Com. Rep. 278; Harwell v. Columbus 
 & W. R. Co. 1 Inters. Com. Rep. 631; Business Mens Asso. v. Chicago, St. P. 
 M. c6 0. R. Co. 2 Inters. Cora. Rep. 41 ; New Orleans Cotton Exch. v. Illi- 
 nois Cent. R. Co. 2 Inters. Com. Rep. 777. 
 
 » King v. New York & N. E. R. Co. 3 Inters. Com. Rep. 273.
 
 WATEE TKANSPORTATION A CONTROLLING FACTOR. 663 
 
 rate from an inteimediate point to another point named in tlie 
 line covered by the through rate, has often been held to be unten- 
 able.' 
 
 In the transportation charges on lumber carried from Johnson 
 City, Tenn., to Boston, Mass, the rate of which complaint is 
 made is 36 cents per 100 pounds of lumber in the carload for a 
 distance of 911 miles, though from the more distant point of At- 
 lanta, Ga., 1240 miles, a lower rate of 34 cents is charged, which 
 is alleged to be in violation of the fourth section of the Act to 
 Regulate Commerce. From Macon, Ga., to Boston, the freight 
 charge is the same as from Johnson City, 417 miles the shorter 
 distance, over the same line. The commission holds that com- 
 bined rail and water competition at a longer distance point does 
 not justify a greater charge for shorter distance, while the shorter 
 distance rate is maintained by the carrier at points where the com- 
 petition is of greater force and more controlling than at the longer 
 distance point. Such greater charge is not justified by the fact 
 that local rates have been first paid on lumber to the longer dis- 
 tance points, nor by the fact that the freight is shipped in cars 
 from the longer distance points which brought machinery to those 
 points and for which profitable return loads were not always to 
 be had ; nor by a difference in the bulk and value of the lumber 
 when the published rate sheets put the lumber in the same class 
 and at the same rate. While distance is not always a controlling 
 element in determining what is a reasonable rate, there is ordi- 
 narily no better measure of railroad service in carrying goods than 
 the distance they are carried, and when the rate of freight charges 
 over one line in sending freight carried from a neighboring terri- 
 tory to the same market is considerably greater than over other 
 lines for distances as long or longer, such greater rate is held to 
 be excessive and should be reduced. The rate on lumber from 
 Johnson City to Boston should not exceed 33 cents per hundred 
 pounds^ A long line met at a given point by a short line, and 
 compelled to accept a scarcely remunerative rate, may, when that 
 
 > See Detroit Board of Trade v. Orand Trunk R. Co. 2 Inters. Com. Rep. 202; 
 New Orleans Cotton Exch. v. Illinois Cent. R. Co. 2 Inters. Com. Rep. 777; 
 Poughkeepsie Iron Co. v. New York Cent. & R. R. R. Co. 3 Inters. Com. 
 Rep. 248.
 
 664: COMPETITION, DISCKIMINATION AND CONTINUOUS CABKIAGE. 
 
 point is passed, increase its charges, with some . consideration of 
 the absolute distance by its own line from the originating point, 
 in a ratio more rapid than if it had been able to grade its own 
 rates continuously throughout its line.' The application of the 
 above principle is also affected by water competition; and a situa- 
 tion upon a navigable river, although not at present affording ac- 
 tive competition with the railroad, is to be considered. Excep- 
 tional conditions exist in respect to railroad transportation in 
 proximity to the waterways of the Great Lakes, Michigan and 
 Superior, and to rival competing railway lines operating between 
 the ports on these lakes, as to the method of grouping stations, 
 under the combined eifect of the competition of these waterways, 
 and of the Act to Begulate Commerce, § 4." 
 
 A line of steamships plying between ISTew York and Boston 
 every other day makes the distance in twenty-four hours, does the 
 largest part of the carrying trade of the grocers of Boston on 
 shipments from JSTew York, carries flour from l^ew York to Bos- 
 ton for S^ cents per hundred pounds ; ' other lines, part water and 
 part rail, known as the "Sound Lines," make daily trips between 
 New York and Boston, and carry flour from 'New York to Boston 
 at 9 cents per hundred pounds ; an all rail line composed of Jie 
 lines of the defendants upon through billing and through rates to 
 Boston alone on shipments from New York makes daily runs be- 
 tween these points and carries flour from New York to Boston at 
 9 cents per hundred pounds ; each and all of these carriers are in 
 actual competition for this business and it involves the carriage of 
 trafiic important in amount. Upon the facts it was resolved by 
 the commission, that this is a case in which the circumstances and 
 conditions in the carriage of this commodity are substantially dis- 
 similar at Boston from those existing at Readville, an interior 
 town about eight miles from Boston, on the line of the all rail 
 carriers, where no competition exists between the all rail carriers 
 and the water lines, and this fact justifies the all rail carriers in 
 meeting the rate by the water line at Boston by charging 9 cents 
 
 ' Lincoln Board of Trade v. Burlington & M. E. R. Co. 2 Inters. Com. Rep. 
 
 95. 
 * Lincoln Board of Trade v. Burlington & M. R. R. Co. supra; Business Mens 
 
 Asso. V. C/dcago & iV. W. R. Co. 2 Inters. Com. Rep. 48.
 
 WATER TKANSPORTATION A CONTKOLLING FAOTOK. 665 
 
 per hundred pounds on flour, while the combined local rates of 
 the two rail carriers are higher upon shipments of this kind of 
 freight from New York to Eeadville than they are upon the joint 
 through rate from l^ew York to Boston. The all rail line is 
 composed of two separate and distinct lines of railroad, owned by 
 two separate and distinct corporations ; but by an arrangement 
 these two corporations make joint through rates on all business 
 from and to New York and Boston passing over their lines, and 
 for this business they furnish fast freight trains which stop at no 
 stations between New York and Boston and have the right of way 
 over all other freight trains ; as to all other points along their 
 lines, however, they each charge their local rates, and this business 
 is done by way freight trains of each company respectively for 
 itself and on its own account ; all of which methods and rates in 
 each instance are duly advertised in their published tariffs. On 
 the facts herein above stated, a firm of dealers in the city of Bos- 
 ton ordered a consignment of flour from New York to Readville 
 by the all rail lines, and subsequently claimed in their complaint 
 to the Commission that they should have been charged for this 
 service the through rate to Boston and not the local rates of the 
 defendants from New York^to Readville. But it was decided that 
 complainants are mistaken as to their rights in this matter and that 
 the complaint cannot be sustained. According to the evidence, 
 the cost of service is far less expensive to the carrier in doing the 
 through business than in doing separately, each for itself, the 
 combined local business of the two railroad companies. It does 
 not appear that the through rate to Boston is unreasonably low! 
 nor does it appear upon the evidence that the local rates of these 
 two railroad companies are unjust and unreasonable. 
 
 The joint through rate to Boston on flour is one that is forced 
 upon the all rail carriers by the competition of a water line not 
 subject to the Act to Kegulate Commerce, and is a rate, low as it 
 is, in which there is a small margin of profit to the all rail carriers, 
 while the combined local rates to jReadville, although considerably 
 higher, relate to a service that is wholly different in all its mate- 
 rial features, methods and aspects, rendered by the carriers under
 
 666 COMPETITION, DISCRIMINATION AND CONTINUOUS CAKKIAGE. 
 
 circumstances and conditions that are substantially dissimilar,* A 
 lower charge for a longer distance for transportation of like traffic 
 may be justified by actual water competition of controlling force, 
 relating to traffic important in amount ; and among the circum- 
 stances and conditions that may be considered in estimating the 
 dissimilarity created by water competition are the character of the 
 roads, the character of the traffic, the preponderance of empty 
 cars moving in a direction in which the traffic must be taken, and 
 the legitimacy of the competition by the rail carrier. The trans- 
 portation of traffic under circumstances and conditions that force 
 a low rate for its carriage or an abandonment of the business, but 
 which affords some revenue above the cost of its movement, and 
 works no material injustice to other patrons of a carrier, is to be 
 deemed legitimate competition. When, however, its carriage is 
 at a loss, and imposes a burden on like traffic at other points and 
 on other traffic, it is to be deemed destructive and illegitimate 
 competition. Rates cannot be arbitrarily charged in the mere 
 discretion of a carrier. They are to be equitably adjusted with 
 regard to the public interests as well as the carrier's. Reduced 
 rates at points where competitive influences are controlling must 
 not fall below some revenue from the traffic in excess of cost, and 
 higher rates at other points, required for the necessary revenue of 
 a carrier, must be reasonable in themselves, and also relatively 
 reasonable in comparison with the competitive rate. The general 
 rule contemplated by the statute of equitably graduated charges 
 on like traffic with reasonable reference to the amount of the 
 service, is just in itself, and commonly most beneficial both to the 
 carriers and to the public, and is only to be departed from when 
 justified by exceptional conditions, and in such instances no 
 longer than the conditions require. Where a reduced rate is 
 made at the terminus of a through route, under the compulsion 
 of competition, a town not located on the line of the through 
 route, but reached over a lateral connection road, has a disadvan- 
 tage of situation entailing some additional expense, and a reason- 
 ably higher rate to such town than the forced competitive rate to 
 
 ^King v. Mw York & N. H. B. Co. 3 Inters. Com. Rep. 272.
 
 RAILWAYS NEED NOT MAKE THROUGH KATES. 667 
 
 the more distant terminus of the through route is not unjust dis- 
 crimination. Upon complaint by dealers at Humboldt, Kan., 
 against the respondent lines for unjust discrimination in charging 
 a rate of 65 cents per hundred pounds on sugar transported from 
 San Francisco to Kansas City, and 85 cents per hundred pounds 
 upon the same commodity from San Francisco to Humboldt, 
 more than a hundred miles shorter distance but not on the through 
 line, it was ruled that the reduced rate to Kansas City being 
 forced upon the carriers by competitive conditions beyond their 
 control, and the rate to Humboldt not being unreasonable in itself 
 but lower than it would be except for the influence of the competi 
 tive conditions at Kansas City, and it not appearing that substantial 
 Injustice results from the higher rate at Humboldt, the lower rate 
 to Kansas City and the higher rate to Humboldt are not deemed 
 to be in contravention of the statute.' 
 
 § 118. Railways Meed not Mahe Through Rates 
 with Water Craft. 
 
 In Ifapier v. Glasgoio & S. W. R. Co. 1 l^eY. & McK. 292, 
 the railway extended from Glasgow to Androssan and made 
 through rates for the carriage of freight and passengers from 
 points on its line to Belfast, Ireland. That portion of the car- 
 riage from Androssan to Belfast was by the water lines. The 
 proportion of the through rate from Glasgow to Androssan was 
 considerably less than the local rate charged by the rail carrier 
 between these two points. There had been a previous arrange- 
 ment existing between Napier and the railway company by which 
 the latter had made through rates with his vessel plying between 
 Androssan and Belfast. The carriage of freight and passengers 
 by this arrangement was broken off by the railway company ; and 
 then the railway company made a similar arrangement with the 
 owners tDf another vessel plying between Androssan and Belfast. 
 Napier then filed a petition, under the second section of the Rail- 
 way and Canal Traffic Act of England of 1854. That section, in 
 
 ^ Lehmann v. Southern Pac. Co. 3 Inters. Com. Rep. 80.
 
 668 COMPETITION, DISCRIMINATION AND CONTINUOUS CAKRIAGB. 
 
 its leading and controlling provisions, is very similar to the first 
 clause of the third section of the Act to Regulate Commerce ; in 
 fact, the latter maj be said to be a substantial re-enactment of 
 the former with some slight changes and additions in the phrase- 
 ology which in no way affect the question that was involved in 
 Napier's case. But, as the similarity of this portion of the two 
 sections may be more plainly seen when placed side by side, they 
 are here set out in parallel columns : 
 
 Act to Begulate Commerce. English Act of 1S5J^. 
 Sec. 3. That it shall be unlawful for Sec. 2. And no such company shall 
 any common carrier subject to the pro- make or give any undue or unreason- 
 visions of this Act to make or give any able preference or advantage to or in 
 undue or unreasonable preference or favor of any particular person or com- 
 advantage to any particular person, pany, or any particular description of 
 company, firm, corporation or locality, traffic, in any respect whatsoever, nor 
 or any particular description of traffic, shall any such company subject any 
 in any respect whatsoever, or to sub- particular person or company or any 
 ject any particular person, company, particular description of traffic, to any 
 firm, corporation, or locality, or any undue or unreasonable prejudice or 
 particular description of traffic, to any disadvantage, in any respect whatso- 
 undue or unreasonable prejudice or ever, 
 disadvantage, in any respect whatso- 
 ever. 
 
 It was unanimously held in that case that section 2 of the Rail- 
 way and Canal Traffic Act, which prohibits undue and unreason- 
 able preference or advantage being given by the railways and 
 canal companies to particular persons, did not apply to the case- 
 of arrangements made by a railway, whose line terminates at the 
 sea, with a steamboat owner for carrying across the sea goods 
 and passengers brought by the railway. The doctrine as estab- 
 lished by the Supreme Court of the United States is that the 
 common law imposes no obligation upon railroads to enter into 
 such contracts, in the absence of statutory regulations to the con- 
 trary, and that if the carrier contracts to carry freight or passen- 
 gers beyond its own line it may determine for itself what agency 
 it will employ.' The method of doing through business, and 
 
 ' See AicMson, T. & 8. F. R. Co. v. Denver & N. 0. R. Co. 110 U. S. 667. 28 
 L. ed. 291; PiUbnan Palace Car Co. v. Missouri Pac. R. Co. 115 U. S. 587, 
 29 L. ed. 499.
 
 -RAILWAYS NEED NOT MAKE THKOUGH BATES. 669 
 
 iipon tliroiigh bills of lading, requires ordinarily that the freight 
 charges shall be collected at the point of destination, and the car- 
 rier might for some reasons be willing to do a credit business 
 •of that kind with one connecting line and not with another. 
 Whether the freight is collected at the points of shipment or of 
 destination, it involves the giving of credit and payment of bal- 
 ances between the connecting; lines doino- the throu2:h business at 
 stated intervals, somewhat akin to a partnership. And a rail car- 
 rier might, for reasons satisfactory to it, be willing to make such 
 an arrangement with one connecting line and not with another. 
 Besides, there are certain responsibilities which the initial carrier 
 assumes in regard to the transportation of property beyond its 
 line, and it might very properly decline to assume that risk unless 
 it was permitted to select, as an agency, the connecting line upon 
 which it would do the service. 
 
 The last clause of section 3 of the Act to Regulate Commerce 
 does not prevent such selection. The common carriers named 
 and referred to in that clause are such alone as are subject to the 
 provisions of the statute. In the first place, this clause requires 
 of such common carriers the performance of duties that, in their 
 very nature, are reciprocal and valuable to each other as well as 
 to the public. Congress has not undertaken in this statute to re- 
 quire of any other than common carriers, engaged in the trans- 
 portation of interstate commerce in the manner described in the 
 Act, the performance of any duties whatever. In the absence of 
 •express language to that effect it cannot be inferred that Con- 
 gress intended to require a common carrier engaged in interstate 
 commerce to extend the valuable aid and facilities enumerated in 
 this clause to another common carrier, operating a connecting 
 line, which is not subject to the provisions of the statute, and 
 which cannot be required to make any return whatever on its 
 part in the shape of similar service and facilities to the interstate 
 •carrier from which it has received these benefits. To construe 
 this clause as embracing independent water lines would be to 
 make such water lines subject in some important respects- to the 
 provisions of the statute, a result that would be manifestly at 
 variance with all the other provisions of the statute. In the
 
 670 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 next place, the words " tracks and terminal facilities,'' in the 
 connection in which thej are used in this clause, evidently refer 
 to a rail carrier, either an all rail carrier, or a carrier part rail 
 and part water, but not to an independent water line. And 
 lastly, the discrimination in rates and charges forbidden by it has 
 no application to an arrangement for through rates and through 
 billing made by a common carrier subject to the provisions of 
 this statute with one connecting line for the transportation of 
 interstate commerce, and declining to do so with another con- 
 necting line, when each of these connecting lines is an independ- 
 ent water line and neither of them as such is subject to the pro- 
 visions of the Act to Kegulate Commerce. Where several rail 
 carriers engaged in interstate commerce each cross or touch a 
 navigable river, leaving a large space of territory along and near 
 the river and between their lines that can be served only by 
 steamboats, and in connection with steamboats these rail carriers 
 carry freight to and receive it from this territory at points where 
 they touch or cross the river respectively, they may make through 
 rates with only one line of steamboats, and refuse to make such 
 through rates with other steamboats, on the river ; and this is not 
 unjust discrimination or unlawful preference. In such a case all 
 that a steamboat has a right to demand, with which the rail car- 
 riers have refused to make through rates and to do through bill- 
 ing, is that the rail carriers shall receive from and deliver to such 
 steamboat freight for transportation at their publislied local tariff 
 rates.' 
 
 In Samuels v. Louisville <& JV. R. Co. 4 Inters. Com. Rep. 420, 
 31 Fed. Hep. 57, where a railroad discriminated against one of 
 two rival lines of steamboats by charging it fifty cents a hundred 
 more for freight than the other, it was corrected. Carriers of 
 interstate traftic are not obliged to pay charges of steamboat lines 
 when no agreement for a through rate exists.^ The Interstate 
 Commerce Commission cannot compel a rail carrier to receive 
 freight from or deliver it to a steamboat with which it has refused 
 
 ' Capehart v. Louisville & N. B. Go. 3 Inters. Com. Rep. 278. 
 ^Re Clark, 2 Inters. Com. Rep. 797.
 
 THROUGH ROUTES AND THROUGH RATES. 671 
 
 to make a through rate and to do through billing, upon the pre- 
 payment of charges for an estimated proportion of a through 
 rate, equal in amount to that which the rail cari-ier receives from 
 a steamboat line with which it has an arrangement for through 
 rates and through billing.' The Act to Regulate Commerce does 
 not empower the commission to compel railroad companies to 
 enter into joint arrangements with carriers by water for through 
 carriage at through rates. The fact that a railroad company 
 makes such arrangement for one of its branch roads will not 
 charge it with unjust discrimination for refusing to make identi- 
 cal arrangements on other parts of its system, when it appears 
 that from such other parts of its system it actually makes through 
 arrangements by a more direct route and at the same rates, which 
 are presumptively of equal convenience to shippers.' 
 
 %119. Through Routes and Through Rates. 
 
 In some cases another and very extraordinary phase of this 
 general subject has been presented. It has been made to appear 
 that railroad companies, when rate wars exist among themselves 
 at certain points, consider themselves at liberty to reduce the rates 
 at such points to any extent they please, leaving the intermediate 
 rates unaffected. A very striking illustration of the existence of 
 this opinion was given during August last, in the rates made from 
 St. Louis and Kansas City to Texas points. The normal rates 
 for a number of years from St. Louis to what are known as Texas 
 common points have been on the first class $1.33, falling thence 
 to 40 cents on class E. On August 1 a reduction began to be 
 made, and the rates, in six days, went down to 50 cents on the 
 first class. The reduction was less on the other classes, but it 
 was considerable on them all. The rate sheets which were is- 
 sued in this period contained the notation that the reduced rates 
 did not apply to intermediate points. Some most astonishing re- 
 sults followed. While 50 cents was being accepted for through 
 transportation of first class merchandise, the St. Louis and San 
 
 ' Capehart v. Louisville & N. R. Co. 3 Inters. Com. Rep. 278. 
 ^Be Joint Water <fe Bail Lines, 2 Inters. Com. Rep. 486.
 
 ^72 COMPETITION, DISCKIMINATION AND CONTINUOUS CARRIAGE. 
 
 Francisco Eailway and the Missouri Pacific were charging, to 
 some intermediate points, as high as $1.10, the St. Louis, Arkan- 
 sas and Texas as high as $1.15, and the St. Louis, Kansas and 
 Texas as high as $1.20. The monstrous injustice of such relative 
 ■charges is very obvious, and the commission immediately called 
 upon the authorities of these roads to put their rate sheets into 
 conformity with the law. It ought to be distinctly understood, 
 without any monition from the public authorities, that a carrier 
 does not, by entering upon a rate war, gain any new or additional 
 rights or privileges under the law. The rate war itself, in its im- 
 mediate or ultimate results, or both, is commonly a public mis- 
 chief, and is very far from furnishing ground for special favors 
 to the parties who engage in it. The carrier who, before taking 
 part in such rate war, was making, as between the certain points, 
 a lesser charge than upon shorter hauls to intermediate points, is 
 bound, when it further reduces this lesser charge, to do so to such 
 extent as to throw none of the burden of it upon intermediate 
 points. Enforcing the law with this understanding of what it 
 requires, makes the long and short haul clause tend very greatly 
 to the maintenance of steadiness in rates, and in that respect ren- 
 ders it of great advantage not only to the public at large, but, to 
 the carriers themselves. Some time since the commissioners 
 and other authorities charged in the several states with the regula- 
 tion of railroads met in convention with the Interstate Commerce 
 Commission, to consider various subjects which were of common 
 interest. Among the resolutions adopted was one : " That it is 
 expedient that the laws of the several states should be in exact 
 harmony with the provisions of the Interstate Commerce Act on 
 the following topics : the definition and prohibition of unjust dis- 
 crimination ; the prohibition of undue and unreasonable prefer- 
 ences and advantages ; the requirement of equal facilities for the 
 interchange of traffic; the regulation of the relations between 
 rates of compensation to be allowed for long and short hauls ; the 
 regulations as to printing and posting rates, fares and charges; 
 the regulations as to notice to be given of advances and reduc- 
 tions in rates ; the penalties for false billing, false classification, 
 ialse weighing, etc."
 
 THROUGH ROUTES AND THROUGH RATES. 673 
 
 In one of the annual reports of the Interstate Commerce Com- 
 merce Commission to Congress attention was called to the fact 
 that carriers whose lines were entirely within the limits of single 
 states, and therefore supposed themselves entirely exempt from 
 the Act to Regulate Commerce, claimed the right to make at will 
 such an-angements as they saw fit in respect to the interstate 
 traffic carried over their lines, and in effect to establish discrimina- 
 tions therein as between connecting lines and even between per- 
 sons and places. This state of things the commission thought 
 ought not to be allowed to continue and it was strongly urged 
 that amendment be made to the third section of the Act so as to 
 better provide for through traffic at through rates over connect- 
 ing lines. This recommendation was repeated in the next An- 
 nual Report. In the first section of the Act it is dcf^lared : " The 
 provisions of this Act shall apply to any common carrier or car- 
 riers engaged in the transportation of passengers or property 
 wholly by railroad, or partly by railroad and partly by water 
 when both are used under a common control, management or 
 arrangement, for a continuous carriage or shipment, from one 
 state or territory of the United States, or the District of Colum- 
 l)ia, to any other state or territory of the United States, or the 
 District of Columbia," etc. With this proviso: "The provis- 
 ions of this Act shall not apply to the transportation of passen- 
 gers or property, or to the receiving, delivering, storage or handl- 
 ing of property, wholly within one state," etc. In the Third 
 Annual Report the commission discussed somewhat fully the im- 
 portance of uniformity in the regulation of all the railway trans- 
 portation of the country, and as a means to that end the desirabil- 
 ity of state regulation in harmony with the provisions adopted by 
 national authority. The reasons for this uniformity were given 
 at some length, and it was shown how close and interdependent 
 are relations between state and interstate transportation, and how 
 the exercise of state authority in the regulation of state traffic by 
 rail musl necessarily to some extent embarrass the regulation of 
 interstate traffic by Congress, unless both are in substantial har- 
 mony. In some cases, roads commonly known and considered as 
 state roads, and which claim entire exemption from the provisions 
 43
 
 674 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 of the Act of Congress, and refuse to join with interstate roads 
 in making through routes and through rates, have been exercising 
 the authority to make rates upon their own lines on an assump- 
 tion that, as to interstate traffic, they were exempt as well as from 
 state authority and state regulation. Some cases are reported in 
 which the through rates upon interstate commerce have been 
 made largely to exceed the sum of the local rates for like traffic 
 carried over the same lines and between the same points. The 
 state commission of Florida recently brought to the attention of 
 this commission the fact that whereas the sums of the locals be- 
 tween a named point in Florida upon the one road and another 
 point in Georgia on the other was a certain specified sum, when 
 the freight carried in Florida was not interstate, the combined 
 charges when the traffic was interstate were more than sixty per 
 centum greater. This discrepancy resulted apparently from an 
 attempt on the part of one of the roads to compel the delivery of 
 the interstate traffic to it at a certain junction point, which would 
 secure to it a longer transportation on its own line than if it were 
 delivered elsewhere, the charge if it were delivered elsewhere 
 being increased by an arbitrary rate which made it greater than 
 the charge on state traffic. Some of the resulting burdens upon 
 interstate traffic, where compared with those upon state traffic, 
 were relatively even .more excessive than in the case above in- 
 stanced. 
 
 Where excessive rates are thus found to exist they may appear 
 upon investigation to have been imposed arbitrarily and with no 
 other thought than to take advantage of the situation to obtain 
 the highest possible remuneration for the particular service. Yery 
 often, however, they are to be traced to unfriendly relations be- 
 tween connecting roads, which lead to a failure to come to agree- 
 ment upon rates for transportation from points on the one line to 
 points on or beyond the other, and upon a division of such rates 
 between them. The excessive rates which, in such cases, one road 
 imposes are quite as likely to be designed to divert traffic from or 
 otherwise embarrass the other as to have any other purpose. It 
 cannot, for a moment, be conceded that there is any commerce by 
 rail which is not subject to either state or Federal authority under
 
 THROUGH KOUTES AND THROUGH KATES. 675 
 
 existing laws. A state road may not be compellable, under the 
 Federal law as it now stands, to unite with other roads in through 
 tariffs upon interstate traffic, and may claim with some plausibil- 
 ity that it is not compellable to carry persons or property over its 
 line otherwise than as a state road at state rates. If, however, it 
 persists in asserting exemption from Federal law, and in declining 
 to make rates upon interstate traffic as such, it thereby asserts, in 
 the most practical and emphatic manner, that all its traffic is state 
 traffic, and has no excuse whatever for imposing upon any part 
 thereof rates which exceed what the state law permits, or what 
 the road itself consents to accept for like service upon other like 
 traffic. The very claim it makes to being exclusively a state road 
 estops it from making such impositions. There can be no more 
 right to discriminate in charges against a portion of the traffic 
 carried because of the shipper having directed its transportation 
 into another state by some other agency, than there would be to 
 make like discrimination on grounds personal to the shipper him- 
 self. The commission states its opinion, however, that whenever 
 the state road gives, receives or acts upon through shipping bills, 
 for the transportation of interstate traffic over its line or even re- 
 ceives and carries such traffic for delivery to another carrier, when 
 its destination is distinctly made known and is a point beyond the 
 state boundary, it thereby, as a carrier of interstate traffic, becomes 
 subject to the Act to Regulate Commerce, not only as to making 
 and observing of rates, but as to the filing of rate sheets also. 
 
 The commission admit that a construction of the Act to the 
 effect here stated would render obligatory the filing of rate sheets 
 and reporting to the commission by nearly or quite every railroad 
 in the country ; but it insists that the inconvenience in this to any 
 one road would be insignificant when compared with the benefit 
 to the public. At the same time it recognizes that obedience to 
 the law regarding interstate traffic ouglit not at all to interfere 
 with any proper regulation of that which is legitimately state 
 traffic by state authority. Mischief would only arise when the 
 state law was found to be so far variant from the Federal law 
 that the enforcement of the former would tend to preclude proper 
 regulation under the latter. But it is suggested that the possibil-
 
 676 COMPETITION, DISCKIMINATION AND CONTINUOUS CARRIAGE. 
 
 ity of this will be prevented by state laws being made harmonious 
 with Federal law. The power to require through routes and rates 
 for through traffic is not alone important where one or more of 
 the roads assume to be state roads exclusively, for it is sometimes 
 found that a carrier which operates a great system of roads, in or- 
 der to annoy or injure a rival, will refuse to give any but long, 
 circuitous and perhaps expensive routes for some portions of its 
 traffic when direct routes would be perfectly feasible, and very 
 much more to the convenience and interest of shippers and the 
 general public. The power to cast upon the public the conse- 
 quences of rivalries and contentions between carriers who owe 
 their existence to public authorization and wlio are nominally cre- 
 ated for the public benefit, cannot perhaps be wholly taken away 
 or precluded by any possible legislation ; but it ought to be re- 
 stricted within the narrowest limits which shall be found prac- 
 ticable, and no restraint which could be imposed upon it could be 
 subject to less exception than that which would compel the mak- 
 ing of reasonable through routes for through traffic as between 
 connecting roads. Some objection has been made on the part of 
 carriers to the granting of authority for this purpose, on the 
 ground of the possible abuse, and also that the carriers themselves 
 will be impelled by their own interest to make all such arrange- 
 ments as shall be really needful. The first objection is easily 
 raised to the grant of any new governmental power, and unless 
 supported by very forcible reasons may well be treated as merely 
 formal and perfunctory ; the second is already conclusively dem- 
 onstrated by the experience of the country to be unfounded. The 
 cases in which actual inconvenience and injustice are caused to 
 the business public through the unfriendly action of rival carriers 
 in the refusal to give proper accommodations by through routes 
 and through rates are numerous, and sometimes not only annoy- 
 ing but very injurious. It ought not to be in the power of the 
 carriers to perpetuate this injustice.' 
 
 No power exists at common law, and none is given by the Act 
 to Regulate Commerce, to compel connecting railroad companies 
 
 ' 4th Annual Report of Interstate Commerce Commisdon, 3 Inters. Com. Rep. 
 337.
 
 THKOUGH ROUTES AND THROUGH KATES. 677 
 
 to unite in a joint tariff, or to enter into a through rate arrange- 
 ment for transportation, unless they desire to do so. Thej cannot 
 be compelled to abandon the full control of their separate roads ; 
 and neither of them is bound to adjust its own local tariff to suit 
 the other.* A court of equity has no power under the Interstate 
 Commerce Act to compel a receiving company which has made a 
 contract or agreement with another connecting and competing 
 company to establish the same rate, as against the receiving com- 
 pany, at the instance of a railway company with which there is no 
 contract, and compel the receiving company to accept that rate, 
 as no power is conferred by the Act upon any tribunal to provide 
 for the necessary divisions growing out of a through routing and 
 a through rating.* The commission is not invested with author- 
 ity to establish through routes, nor to fix through rates, between 
 connecting lines. The English Act of 1873, amendatory of the 
 Act of 1854, did confer such authority upon the English Commis- 
 sion ; but our Act to Regulate Commerce contains no such pro- 
 vision, and confers no such authority.' Through rates and 
 through billing are matters of agreement among carriers engaged 
 in interstate commerce, and, as was decided in the case of Little 
 Rock & M. R. Co. v. East Tennessee, V. (& G. R. Co., 2 Inters. 
 Com. Rep. 454, the commission has no power under the statute 
 to compel them against their consent to enter into arrangements 
 for through rates and for through billing.* Arrangements in re- 
 spect to through freight traffic, and joint through rates or charges, 
 as well as the forms of bills of lading, and the apportionment to 
 be made of such joint traffic rates, and of losses or damage to 
 freight in course of transit, are all matters of private arrange- 
 ments. Such arrangements, which usually include the reciprocal 
 
 1 Chicago & N. W. B. Co. v. Osborne, 4 Inters. Com. Rep. 257, 10 U. S. App. 
 
 430 52 Fed. Rep. 912; Kentucky <& 1. Bridge Co. v. Louisville & N. R. Co. 
 2 Inters. Com. Rep. 389, 2 L. R. A. 325, 37 Fed. Rep. 630; Little Rock <& 
 M. R.\Co. V. St. Louis, I. M. & S. R. Co. 2 Inters. Com. Rep. 765, 41 Fed. 
 Rep. 563; Interstate Commerce Com. v. Cincinnati, N. 0. & T. P. B. Co. 4 
 Inters. Com. Rep. 332. 
 
 2 Little Rock & M. R. Co. v. St. Louis, L M. (& 8. R. Co. 59 Fed. Red. 400. 
 
 3 Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 Inters. Com. Rep. 351, 
 
 2 L. R. A. 289, 37 Fed. Rep. 567. 
 * Capehart v. Louisville & N. R. Co. 3 Inters. Com. Rep. 278.
 
 678 COMPETITION, DISCKIMINATION AND CONTINUOUS CARKIAGE. 
 
 interchange of cars, and the use of each other's tracks and ter- 
 minal facilities, are prompted by considerations varied and com- 
 plex. In some instances, and between some companies, they may 
 be mutually desirable and beneficial, while in other cases, and with 
 other connecting lines, they might be prejudicial, and injurious to 
 the interest of one, or both ; and companies in the latter situation 
 cannot properly claim, as matter of right, what the former have 
 acquired under, and by virtue of, private contract or arrange- 
 ment. At common law, the refusal of a common carrier to make 
 through trafiic arrangements, at, or upon joint through rates, with 
 one connecting raih-oad company, such as it makes, or enters into, 
 with another connecting line, does not constitute any undue or 
 unreasonable discrimination in charges or facilities. Section 5258 
 of the U. S. Rev. Stat, (embracing the Act of June 15, 1866) im- 
 poses no duty ; it merely permits, or authorizes the carriage of 
 traffic from one state to another, and to that end, the formation 
 of continuous lines, by mutual agreement. It confers no power 
 to compel a railroad company to make through routes and through 
 rates with one connecting line, because it has, by agreement, made 
 them with another.' 
 
 It is clear that from the provisions of section six of the Act, 
 two or more common carriers may lawfully enter into contract-s 
 or agreements for the establishment of through routes at or upon 
 joint through rates, because copies of such contracts and agree- 
 ments, and of the joint tariffs of such carriers, are required to be 
 filed with the commission. If, in the exercise of the right, thus 
 impliedly, if not expressly recognized, a common carrier, by pri- 
 vate arrangements forms a through route, and establishes joint 
 through rates, with certain connecting lines, it cannot be com- 
 pelled to concede to all other connecting railroads the same or 
 equal through rates, on traffic which the latter may offer for 
 transportation. The Act does not undertake to create between 
 connecting lines such an agency or ^^quasV^ jpavkiershij) relation^ 
 as is necessarily involved in agreements, or arrangements, for the 
 establishment of through routes, and the making of through 
 
 ' Kentucky tt- /. Bridqe Co. v. Louisville & N. B. Co. 2 luteis. Com. Rep. 351, 
 2 L. R. A. 289, 39 Fed. Rep. 567.
 
 THROUGH BOUTES AND THKOUGH KATES. 679 
 
 rates ; as siicli arrangements exist by contract, express or implied, 
 the fact that a common carrier enters into them, with one or more 
 connecting lines, does not impose upon such carrier the duty, or 
 obligation, to make the same or like contracts with all other lines. 
 No authority is conferred upon common carriers of interstate 
 commerce, to issue through tickets to passengers, or through bills 
 of lading of property, at through rates, over connecting lines, in 
 the absence of such arrangements between the companies. An 
 individual shipper, or consignor, cannot legally require a railroad 
 company, to send a shipment by a particular route, beyond the 
 company's line, at the same, or equivalent through rates, which 
 such company may have established with other connecting lines ; 
 and what the individual shipper of interstate commerce may not 
 lawfully demand, common carriers engaged in transporting such 
 commerce may not lawfully require of connecting lines. In the 
 absence of through traffic arrangements between two railroad 
 companies, the one has the right to treat freights tendered to it 
 by the other as local business, and to charge for the transportation 
 thereof its local rates to destination ; and in doing so, no discrim- 
 ination is made against the other company, on the traffic it car- 
 ries. Nor does the company, charging local rates on such 
 freights, make, or give, any undue or unreasonable preference to 
 other lines, or to the traffic they handle, with whom it has agree- 
 ments for through routing, and at through joint rates which may 
 be lower than its local rates to the same points ; because the 
 service in the two cases is not the same, or identical.' 
 
 An aggregate through rate is itself an entirety, although made 
 up of agreed percentages, proportions or divisions, as the case may 
 be, of the entire rate among the several carriers ; and where the 
 rail carrier makes a through rate from a point on a navigable river 
 with a steamboat line, and refuses to make such through rate with 
 another steamboat, the commission cannot compel the rail carrier 
 to receive freight from or deliver it to the steamboat, with which 
 it has refused to make a through rate and to do through billing, 
 upon the prepayment of charges for an estimated proportion of 
 
 ' Kentucky & I. Bridge Co. v. Loimville & N. R. Co. 2 Inters. Com. Rep. 351, 
 2 L. R. A. 289, 37 Fed. Rep. 567.
 
 680 COMPETITION, DISCRIMINATION AND CONTINUOUS CAKKIAGE. 
 
 the through rate equal in amount to that which the rail carrier 
 receives from the steamboat line with which it has an arrangement 
 for through rates and through billing.' Contracts with other 
 companies for the establishment of through routes and through 
 rates for the continuous carriage of interstate traffic do not violate 
 section 7 of the Act to Regulate Commerce, prohibiting a combi- 
 nation to prevent the carriage of freights from being continuous,' 
 An agreement of a transcontinental association to promote 
 harmony of action between carriers and the maintenance of joint 
 rates, with a proper division of through rates, is not on its face 
 unlawful.^ The only practicable mode yet devised for making 
 through export rates, as appears by past experience, is to add to 
 the established inland rates from the interior to the seaboard the 
 current ocean rates.* The Interstate Commerce Law does not 
 apply in case of a shipment from one state to another, where the 
 several lines over which the freight passes have not established a 
 joint tariff of rates so as to subject them to the penalties imposed 
 by the law for its violation,^ The regulation of the transportation 
 of foreign merchandise from a port of entry to a place within the 
 United States, upon a through bill of lading, does not extend to 
 the control of rates made in the foreign port for its carriage to the 
 port of entry of the United States or to a foreign country 
 adjacent.^ 
 
 Traffic is either state or interstate traffic according to its origin 
 and destination. It is shipped by the consignor in the state where 
 the consignee dwells, or it is not. If not, it is interstate traffic, 
 and when carried over two or more lines, it is, by the fact of hav- 
 ing been received, forwarded, and delivered as one through ship- 
 ment, transported under a common control, management or 
 
 ' Capehart v. Louisville & N. JR. Co. 3 Inters. Com. Rep. 278. 
 
 ^Kentucky & I. Bridge Co. v. Louisville & N. li. Co. 2 L. R. A. 289, 2 Inters 
 
 Com. Rep. 351. 37 Fed. Rep. 567. 
 ^Duncan v. Atchison, T. & S. F. R. Co. 4 Inters. Com. Rep. 385. 
 *New York Produce Exch. v. New York Cent. & H. R. R. Co. 2 Inters. Com. 
 
 Rep. 553. 
 
 ' Oulf, C. & 8. F. R. Co. V. Welson, 5 Tex. Civ. App. 387. 
 
 « New York Board of Trade & Transportation v. Pennsylvania R. Co. 3 Inters 
 Com. Rep. 417.
 
 THROUGH ROUTES AND THROUGH RATES. 681 
 
 arrangement, as the case may be, for continous carriage or 
 shipment. The phrase "common control, management or arrange- 
 ment for continuous carriage or shipment" in the first section was 
 intended to cover all interstate traffic carried through over all 
 rail, or part water and part rail lines. The " arrangement " for 
 continuous carriage or shipment is complete whenever the carriers 
 have arranged for delivering and receiving through traffic to and 
 from each other and such an arrangement is necessarily " com- 
 mon." This construction of the words " common arrangement " 
 as used in the first section of the law is in line with decisions in 
 Boston Fruit & P. ExcJi. v. New York (& JV. K R. Co. 3 Inters. 
 Com. Rep, 493, and Mattingly v. Pennsylvania Co. 2 Inters. 
 Com. Hep. 806, and with other rulings of the commission. The 
 words " common control, management, or arrangement," apply to 
 a case where the initial carrier furnishes the shipper with a car 
 specially fitted up for his business, which is taken over connecting 
 roads on special through time tables.' The receipt successively by 
 two or more carriers for transportation of trafiic shipped under 
 through bills for continuous carriage over their lines is assent to 
 a common arrangement for such continuous carriage or shipment 
 and previous formal arrangement between them is not necessary 
 to bring such transportation under the terms of the law.'' 
 
 The 1st section of the Act to Regulate Commerce provide& 
 that it " shall apply to any common carrier or carriers engaged 
 in the transportation of passengers or property wholly by rail- 
 road, or partly by railroad and partly by water where hoth are 
 used under a common control, management, or arrangement, for 
 a continuous carriage or shipment, etc." The Georgia Railroad 
 extends from Atlanta to Augusta. The Georgia Railroad Co. 
 requested its connections, that in issuing bills of lading to its local 
 stations, no rates be inserted east of Atlanta. There is no agree- 
 ment on the part of said company for any such joint tariff, as im- 
 plies a i'educed rate from Cincinnati, Ohio, to its local stations. 
 On the contrary, that company collects and retains its entire local 
 
 ' Boston Fruit & P. Exch. v. Neio York & N. E. B. Co. 3 Inters. Com. Rep. 
 
 493, 604. 
 2 Trammell v. Clyde 88. Co. 4 Inters. Com. Rep. 120.
 
 682 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 rates on all freight shipped from Cincinnati to. its local stations. 
 The Interstate Commerce Commission held that there is no such 
 " arrangement for a continuous carriage or shipment " existing 
 between said company and its connections, as to bring the rates 
 which are charged to said local stations, within the first section 
 of the Act to Regulate Commerce, "When goods are shipped 
 through from Cinciunati, Ohio, to local stations on the Georgia 
 Railroad, the initial carrier at Cincinnati issues through bills of 
 lading, and quotes through rates. Said rates, however, are ar- 
 rived at by adding to the rates from Cincinnati to Atlanta, the 
 full local rates of the Georgia Railroad from Atlanta to said local 
 stations. The Georgia R, Co, receives the goods at Atlanta, and 
 transports them continuously to its local stations ; but it demands 
 and collects its full local rates from Atlanta to said local stations. 
 The Interstate Commerce Commission held that the mere recep- 
 tion, and continuous transportation, by the Georgia R, Co., of 
 freight which comes to it over other lines of railroads, destined 
 to its local stations, for which the initial carrier has issued through 
 bills of lading, and quoted through rates, does not constitute such 
 an " arrangement " as is contemplated by the first section of the 
 Act to Regulate Commerce, where the through rates, so quoted, 
 allow to that company its full local rates,' 
 
 In several of these cases the through charge to intermediate 
 stations is made by the addition of the terminal carrier's local 
 rate to the through rate in effect to a point on its line. This 
 practice has been disapproved of by the commission in other 
 cases.'' The addition of a local rate to a reasonable through rate 
 in order to fix the through charge to the local station is liable to 
 produce a relatively unreasonable rate to that station. The dif- 
 ference in situation of the basing and local points in respect of 
 through traffic is not properly measured by the local rate for car- 
 riage between them. The reasonableness of the added local, as 
 a local rate, is not under consideration in a case where the rate 
 
 ' Interstate Commerce Com. v. Cincinnati, N. 0. & T. P. R. Co. 4 Inters. Com. 
 
 Rep. 332; Chicago & N. W. R. Co. v. Osborne, 4 Inters. Cona. Rep. 257, 10 
 
 U. S. App. 430, 52 Fed. Rep. 913. 
 ' Re Atlanta & W. R. Co. 2 Inters. Com. Rep. 461 ; Hamilton v. Chattanooga, 
 
 R. & C. R. Co. 3 Inters. Com. Rep. 482.
 
 THROUGH ROUTES AND THROUGH RATES. 683 
 
 complained of is the total charge over different lines. The total 
 rate or charge for through carriage over two or more lines, 
 whether made by the addition of established locals, or of through 
 and local rates, or upon a less proportionate basis, is the through 
 rate that is subject to scrutiny by the regulating authority ; how 
 the rate or charge is made is only material as bearing upon the 
 legality of the aggregate charge, and how any reduction ordered 
 may be accomplished, whether by lowering locals or proportions, 
 is a matter for the carriers to determine among themselves. The 
 rate over through connecting lines is correctly adjusted upon the 
 distance through, and not upon the shorter distances over the 
 several lines.' Through and continuous lines imply through 
 rates which must be reasonable rates." Where two or more roads 
 forming a continuous connecting line between points in different 
 states bill and carry interstate traffic through to certain stations 
 ■on the last road forming such line, neither the roads together nor 
 any one of them can evade the obligations of the Act to Regulate 
 Commerce by declaring that as to such traffic destined to such 
 stations on such terminal road it is a local carrier.^ 
 
 Railroad companies making through and continuous lines can- 
 not rid themselves of the responsibility for unjust charges by 
 breaking the haul in two and calling themselves carriers on the 
 separate ends of their line." The carriage of freights cannot be 
 prevented from being treated as one continuous carriage from 
 the place of shipment to the place of destination, by any means 
 or devices intended to evade any of the provisions of the Act." 
 If a united rate, eubstantiated by a through bill of lading, 
 from the point of shipping to destination, has every essential con- 
 stituent of a through rate, it is not material that it should be 
 formally announced by one of the carriers to another who is en- 
 gaged in the making of it, in order to constitute it a through 
 
 ' Coxexv. Lehigh Valley U. Co. 3 Inters. Com. Rep. 460. 
 * Brady v. Pennsylvania B. Co. 2 Inters. Com. Rep. 78. 
 ^ James & M. Buggy Go. v. Cincinnati, N. 0. & T. P. B. Co. 3 Inters. Com. 
 
 Rep. 683; Trammell v. Clyde 88. Co. 4 Inters. Com. Rep. 139. ' 
 -* Brady y. Pennsylvania B. Co. 2 Inters. Com. Rep. 78; Board of Trade of 
 
 Troy V. Alabama Midland B. Co. 4 Inters. Com. Rep. 348. 
 ^Be Grand Trunk B. Co. 2 Inters. Com. Rep. 496.
 
 6S4 COMPETITION, DISOBIMINATION AND CONTINUOUS CARRIAGE. 
 
 rate. Words are not conclusive in any such contract. The 
 law is determined by the substantial facts. A rate is none 
 the less a through rate when freight is shipped upon a 
 through bill of lading from the point of origin to destination, 
 accompanied by a waybill showing the route over which it is to 
 pass, with the precentages of all the other lines set forth in the 
 waybill, because the initial carrier charges its local rate as part of 
 the total rate, and the remaining lines charge an agreed rate made 
 by precentages. Where a rate is in itself a through rate, and 
 made up of precentages to an intermediate point on a long haul, 
 the circumstances and conditions of transportation must be rarely 
 exceptional indeed to be of such controlling force as to warrant 
 any considerable excess of such rate in amount over a precentage 
 of a through rate for an equal distance along the same line, by 
 way of the same point, to a more distant point. A through rate 
 does not unjustly discriminate against an intermediate point be- 
 cause less proportionally than the rate from such point to the 
 common destination.' One carrier's proportion in a through rate 
 upon a long haul may be considerably less than its local rate for 
 the same freight over its own line, without constituting unjust 
 discrimination, unlawful preference, or extortion.^ Such a situa- 
 tion only becomes illegal when it can be shown that illegal results 
 follow from it.' A through rate does not unjustly discriminate 
 against an intermediate point because less proportionally than the 
 rate from such point to the common destination. The gross 
 charge for a continuous carriage, whether it be formed by combin- 
 ing local rates along the entire line of road, or based on a percent- 
 age on a part of the local rates, or on the combined locals, must 
 not ordinarily be permitted to exceed a like percentage of charge 
 over the through rate, for a particular portion of the same line, 
 including in its limit the same locality, to a more extended 
 location. 
 
 ■ Milwaukee Chamber of Commerce v. Flint & P. M. R. Co. 2 Inters. Com. 
 Rep. 393. 
 
 ^ New Orleans Cotton Exch. v. Illinois Cent. R. Co. 2 Inters. Com. Rep. 777. 
 
 ' La Cross Manufacturers & J. Union v. Chicago, M. & St. P. R. Co. 2 Inters. 
 Com. Rep. 9; Business Men's Asso. v. Chicago, St. P. M. & 0. R. Co. 2 
 Inters. Com. Rep. 41.
 
 THROUGH ROUTES AND THROUGH RATES. 685 
 
 Property billed from one station to another, with the under- 
 standing that it is to be unloaded at an intermediate station, and 
 that whether it shall be reloaded for further carriage will depend 
 upon the volition of the shipper or of any one who may have be- 
 come purchaser, does not fall within the reasons governing rates 
 on through transportation ; and the carrier is not, at such inter- 
 mediate points, entitled to have the carriage protected as a through 
 shipment as against competitors.' A railway company is under 
 special obligation to give reasonable rates for its local business; 
 but there are many influences which may affect through rates 
 while not bearing upon local rates at all, or, if at all, in less de- 
 gree. Through rates are not necessarily illegal which, when di- 
 vided between carriers, give them less than their local rates, pro- 
 vided that the through rate itself is not less than some one of the 
 locals, or unjustly discriminating against individuals or locahties, 
 or so low as to burden other business with part of the cost of the 
 business upon which it is imposed.^ A rate is none the less a 
 through rate when freight is shipped upon a through bill of lad- 
 ing from the point of origin to destination, accompanied by a 
 waybill showing the route over which it is to pass, with the per- 
 centages of all the other lines set forth on the waybill, because 
 the initial carrier charges its local rate as part of the total rate, 
 and the remaining lines charge an agreed rate made by percen- 
 tages.' When a combined rate evidenced by a through bill of 
 lading from the point of origin to destination has every substan- 
 tial constituent of a through I'ate, it is not necessary that it should 
 be formally " quoted " by one of the carriers to another who is 
 engaged in the making of it, in order to constitute it a through 
 rate. Names are nothing in such a transaction ; the law looks at 
 the elements and substance of the transaction itself.^ Carriers 
 should not treat shipments of traffic intended to be continuous 
 between interstate points as consisting of two kinds of service in. 
 
 » Chicago, R. I. & P. B. Co. v. Chicago & A. R. Co. 2 Inters. Com. Rep. 721. 
 
 ' Lippman v. Illinois Cent. B. Co. 2 Inters. Com. Rep. 414. 
 
 'Milwaukee Chamber of Commerce v . Flint & P. M. R. Co. 2 Inters. Com. 
 
 Rep. 393. 
 *■ Milwaukee Chamber of Commerce v. Flint & P. M. R. Co. supra; Board of 
 
 Trade of Troy v. Alabama Midland R. Co. 4 Inters. Com. Rep. 348.
 
 686 COMPETITION, DISCRIMINATION AND CONTINUOUS CAKRIAGE. 
 
 dependent of each other, tlie one to or from a so-called basing or 
 competitive point on a through rate, and the other between the 
 basing or competitive point and a so-called local or intermediate 
 point on a local rate.' Where freight passes over a continuous 
 line or route operated by more than one company, on which no 
 joint tariff of rates or charges has been established, the tariff" of 
 rates or charges is the sum of the established local rates or charges 
 of the several companies operating such continuous line.'' Un- 
 lawful discrimination is not established by proof that a rate of 
 freight on cotton from Yicksburg, Mississippi, to eastern points, 
 given to one, is different from that given to another, when it also 
 appears that such rate is only a part of a uniform through rate 
 from a point beyond.' 
 
 It was not intended by the Act to Regulate Commerce, that 
 produce should not on its way to a point where it is to be prepared 
 for market be charged local rates, provided that after such pre- 
 paration, it is forwarded to its less distant destination, at a rate 
 which, added to the original local rate, equals the charge between 
 origin and destination. Where a complaint is made against the 
 reasonableness of through rates agreed upon by several competing 
 lines, it is necessary to make all of such connecting lines parties 
 defendant." Unreasonable preference or advantage, or undue 
 or unreasonable prejudice or disadvantage, by a carrier, in- 
 volves the question whether the service was rendered under 
 substantially similar circumstances and conditions. More traffic 
 furnished by one than the other does not render them dissimilar ; 
 and it is for the jury to say whether a difference of 12 cents per 
 100 pounds between a local rate of a carrier and its proportion 
 of a through rate including another road was unreasonable.^ The 
 Act to Regulate Commerce, §§ 2, 3, are not violated by charging 
 a local rate from a more distant point on cotton to Vicksburg, 
 Mississippi, when after pressing there, it is forwarded to its point 
 
 ' Perry v. Florida Cent. & P. M. Co. 3 Inters. Com. Rep. 740. 
 ^ Lehmann v. Texas & P. B. Co. 3 Inters. Com. Rep. 706. 
 2 Cowen V. Bond, 2 Inters. Com. Rep. 543. 
 
 * Michigan Congress Water Co. v. Chicago & 0. T. Co. 2 Inters. Com. Rep. 
 
 428. 
 
 * United States v. Tozer, 2 Inters. Com. Rep. 540,
 
 THKOUGH ROUTES AND THROUGH RATES. 687 
 
 of destination at less than Yicksburg rate to such point, the 
 total of such two rates being made to equal the regular rate 
 from such initial 'point to such destination.* A cost that 
 ought to make the through rate to a particular station, is not 
 one caused by the delay in unloading cars at that point.' A local 
 rate which presumably is adopted as covering both the initial and 
 final expense of a local haul is prima facie excessive as part of a 
 through rate over a through line composed of two or more car- 
 riers.' Taking the through rate to recognized " basing points," 
 and adding thereto that local rate which wdll give the lowest com- 
 bination, is not a proper method of determining a rate, as it treats 
 continuous traffic as consisting of two kinds of service." Divisions 
 of a through rate need not be considered on the question of the 
 wa}^ in which the through rate is affected by an arbitrary differen- 
 tial." The division among themselves which a number of con- 
 necting carriers make of a through rate should not affect the 
 question of the reasonableness or unreasonableness of the rate as 
 an entirety." 
 
 The owner of a branch railway communicating with the de- 
 fendants' line, who collected and loaded goods upon trucks, and 
 then handed over such trucks to the defendants at the junction 
 with their line, and who also received from the defendants at the 
 junction traffic for delivery at the other end of the line, is "a per- 
 son interested," within the meaning of the English Regulation of 
 Railways Act 1873, § 14, and entitled to an order requiring the 
 defendants to distinguish in such books as they were by statute 
 required to keep, showing the rate charged for traffic from that 
 station, and how much of the rate is for each of the charges which 
 together make up the gross rate.' Joint rates on long hauls usu- 
 
 1 Cowan V. Bond, 2 Inters. Com. Rep. 543. 
 
 ^Belfast Gent. R. Co. v. Great Northern R. Co. 4 Railway Comrs. Rep. 159. 
 
 3 Board of Trade of Troy v. Alabama Midland R. Co. 4 Inters. Com. Rep. 348. 
 
 * EamiHon v. Chattanooga, R. & C. B. Co. 3 Inters. Com. Rep. 482. 
 
 * Toledo Produce Exch. v. Lake Shore & M. S. R. Co. 3 Inters. Com. Rep. 830. 
 ^Florida Fruit Exch. v. Savannah, F. & W. R. Co. 4 Inters. Com. Rep. 400. 
 ■> Tomlison v. London & N. W. R. Co. 8 Ry. & Corp. L. J. 328.
 
 688 COMPETITION, DISCEIMINATION AND CONTINUOUS CARRIAGE. 
 
 ally are, and should be, proportionately lower than local rates on 
 short hauls.' 
 
 § 120. Comhinations hetween Rival Carriers. 
 
 The Interstate Commerce Act was not desio-ned to prevent 
 competition between different roads, or to interfere with the cus- 
 tomary arrangement made by railway companies for reduced fares 
 in consideration of increased mileage, where such reduction does 
 not operate as an unjust discrimination against other persons trav- 
 eling over the road." An agreement for the pooling of traffic be- 
 tween a carrier by rail, subject to the Act to Regulate Commerce, 
 and a carrier by pipe line does not fall within the description of 
 contracts prohibited by section 5 of that Act.' Neither of two 
 rival corporations can enter into a contract which courts will rec- 
 ognize as valid for exclusive rights in territory. Neither could 
 altogether exclude the other from particular premises, or prevent 
 land not already appropriated or shown to be required for its own 
 corporate use from being taken or acquired in any lawful way by 
 another corporation for a use which is recognized as public. Such 
 contracts are against public policy, and void.* In Kettle River R. 
 Co. v. Eastern R. Co. 6 L. R. A. 211, 41 Minn. 461, it was in- 
 sisted that the proposed branch lines to certain quarries, which 
 are the property of private owners, are for the accommodation of 
 private interests only, and not for a public use, and hence that 
 the power of eminent domain cannot be exercised ; and that the 
 contract must be deemed to relate to private interests only, and is 
 not, therefore, subject to this obligation. But these corporations 
 it is said, are each quasi public corporations, and are, under their 
 
 '^Farrar v. East Tennessee, V. & O. R. Co. 1 Inters. Com. Rep. 764. See note:* 
 to Cleveland, C. C. & 1. B. Co. v. Closser 126 Ind. 348, 3 Inters. Com. Rep 
 387, 9L. R. A. 754; Pensacola & A. R. Co. v. State, 25 Fla. 310, 2 Inter.'*. 
 Com. Rep. 522, 3 L. R. A. 661; United States v. Tozer (Mo.) 2 Inters. Com. 
 Rep. 422, 2 L. R. A. 444. 
 
 ^ Interstate Commerce Com. v. Baltimore & 0. B. Co. 145 U. 8. 263 36 L. ed 
 699, 4 Inters. Com. Rep. 92. 
 
 ^ Independent Befiners Asso. v. Western New York <& P. B. Co. 4 Inters. Com 
 Rep. 162. 
 
 *6reenhood, Pub. Pol. 672, and cases cited; West Virginia Transp. Co. v. 
 Ohio River Pipe Line Co. 22 W. Va. 626.
 
 COMBINATIONS BETWEEN EIVAL CAEEIEES. 689 
 
 •charters, authorized to exercise the right of eminent domain ; and 
 
 the question whether the use is public or private does not depend 
 upon the amount of business, or the number of persons who have 
 ■occasion to use either road, but upon the right of the public to 
 require the corporations to carry their freight.' If all the people 
 have a right to use the road, it is a public use or interest, though 
 "the number who have business requiring its use may be small.^ 
 The cases cited fully illustrate and support the principle, and of 
 its correctness there can be no doubt. Two railroad companies 
 having each a through and separate line of communication be- 
 tween two given points are competing companies for all traffic 
 between such points.' The mere fact that a railroad company is 
 not parallel with another does not deprive it of the character of a 
 competing line, where it is competing by reasons of its relations 
 to other I'oads.* 
 
 Judicial notice may be taken by the court of the fact that two 
 railroads touching the same point are parallel and competing lines.° 
 An agreement between several railroad companies in Texas, some 
 -of which owned and controled competing lines, for the appointment 
 of a common governing committee, or an association (composed of 
 one member from each company) to fix the rates for which freights 
 should be carried to and from points within tlie state, was held 
 illegal because contrary to article 10, § 5, of the constitution, which 
 provides that " no I'ailroad ... or managers of any railroad 
 corporation shall consolidate the stock, property or franchise of 
 such corporation with ... or in any way control any rail- 
 road corporation owning or having under its control a parallel or 
 competing line." The language of this provision of the state 
 constitution evinces that control in any manner and to any extent 
 
 1 State V. Hibernia Uuderground R. Co. 47 N. J. L. 47. 
 
 '^Phillips V. Watson, 63 Iowa, 33; Clarke v. Blackmar. 47 N. Y. 156; Lewis, 
 Em. Dom. § 166. 
 
 3 Texan & P. R. Co. v. Soutliern Pac. R. Co. 41 La. Ann. 970, 137 U. S. 48, 34 
 
 L. e«^. 614. 
 
 4 East Line & R. R. R. Co. v. State, 75 Tex. 434. 
 
 * Gulf, C. & S. F. R. Go. V. State, 2 Inters. Com. Rep. 335. 1 L. K. A. 849, 72 
 Tex. 404; Cleveland, G. G. i& I. R. Co. v. Closser, 9 L. R. A. 754" 3 Inters. 
 Com. Rep. 387, 126 Ind. 348.
 
 690 COMPETITION, DISCKIMINATION AND CONTINUOUS CARRIAGE. 
 
 was intended to be prohibited — provided it was such as is calcu 
 lated to enable one railroad, by means of a contract or agreement 
 for interference in the other's afEairs, to keep down competition 
 between tliem. Even in the absence of such constitutional pro- 
 vision, — qucere, whether action under the agreement could not be 
 enjoined as being in restraint of competition and contrary to 
 public policy. Such agreement is not relieved from illegality 
 by the fact that any company party to the agreement has the 
 right of withdrawal, or that it cannot be punished for a failure to 
 obey the regulations, or that it has not been shown that the com- 
 panies have made charges in excess of the limits allowed by law.. 
 The state has the right to prohibit a id interfere with a contract 
 in restraint of competition, some of the parties to which are cor- 
 porations created by the state, although it regulates charges upon 
 freight carried to and fro between other states. The agreement, 
 being illegal as to some, is illegal as to all.' 
 
 A contract between corporations charged with a public duty, 
 such as is that of common carriers, providing for the formation 
 of a combination having no other purpose than that of stifling 
 competition and providing means to accomplish that object, is 
 illegal. Combinations are illegal at common law, because con- 
 trary to public policy. Agreements for such combinations and 
 promises founded thereon will not be enforced,^ and the carrying 
 out of the combinations will be enjoined.^ The purpose to break 
 down competition poisons the whole contract, for a combination 
 of rival carriers moved and controlled by that purpose alone, is 
 destructive of public interest and to the last degree antagonistic 
 to sound public policy. The principle on which this rule rests is 
 a very old one and its place in the law is very firm. The over- 
 shadowing element is the purpose which influences the parties in 
 
 ' Gulf, a & S. F. B. Co. V. State, 2 Inters. Com. Rep. 335, 1 L. R. A. 849, 72 
 
 Tex. 404. 
 ^ Hooker Y.Vandcicater, 4 Denio, 349, 47 Am. Dec. 25S; Stanton v. Allen, 5 
 
 Denio, 434, 49 Am. Dec. 283; Sayre v. Louisville Union Beneo. Asso. 1 Duv. 
 
 143, 85 Am. Dec. 613; Morqan \. Donovan, 58 Ala. 241; Hartford & N. H. 
 
 R. Co. V. NeiD York <& JST. H. R. Co. 3 Robt. 411; State v. Hartford &N.H. 
 
 R. Co. 29 Conn. 538. 
 » Central R. Co. v. CoUi'as, 40 Ga. 582; ElkinsY. Camden & A. R. Co. 36 N. 
 
 J. Eq. 5.
 
 COMBINATIONS BETWEEN KIVAL CABRIERS. 691 
 
 uniting themselves in a combination and concerting means to 
 make its purpose effective; for the law abhors a combination 
 which has for its principal object the suppression of competition 
 in matters of commerce in which the public have an interest. If 
 the constitution, statutes or public policy of the state forbid the 
 company from entering into combinations to prevent competition, 
 the act of the company in entering into such a combination is 
 ultra vires, even though the combination involves interstate traf- 
 fic ; and the state courts have jurisdiction to enjoin the act or to 
 forfeit the charter of the company therefor.' Among the early 
 cases establishing and enforcing the general principle are those 
 wherein it is held that an agreement to prevent or hinder com- 
 petition at public sales is void.* " JSTo one," said the court, in 
 Hunter v. Pfeiffer, supra, " can predicate an enforceable right 
 upon such an agreement."^ Relevant and striking illustrations 
 of the scope and force of the general principle are supplied by 
 what are known as " The Sugar Trust Cases^"* decided by the 
 courts of New York — cases rich in argument and authority.* The 
 authorities collected in. those cases demonstrate the proposition 
 
 ' Tippecanoe County Comrs. v. Lafayette, M. & B. B. Co. 50 Ind. 85 (compe- 
 titive traffic between Lafayette, Ind. and points in 111.); State v. Vander- 
 bilt, 37 Ohio St. 590 (competitive traffic between Cincinnati, Ohio, and 
 points outside Ohio reached through ports on Lake Erie); Pennsylvania R. 
 Co. V. Com. (Pa.) 4 Cent. Rep. 495 (competitive traffic between Pittsburgh 
 and points reached through New York City); State v. Atchison & N. M. Co. 
 24 Neb. 143, 32 Am. & Eng. R. Cas. 388 (competitive traffic between Lin- 
 coln, Neb., and points in Kansas); Thouron v. East Tennessee, V. & O. R. 
 Go. (Tenn. Ch.)5 Ry. & Corp. L. J. 77 (competitive traffic between points 
 in Tennessee and points in adjoining states). See also State v. Hartford & 
 N. H. R. Co. 29 Conn. 538; Hartford &N. H. R. Co. v. New York & N. H. R. 
 Co. 3 Robt. 411 (competitive traffic between New Haven, Conn., and points 
 in Massachusetts); Morgan v. Donovan, 58 Ala. 241 (competitive traffic be- 
 tween Mobile, Ala. and New Orleans, La.). As to foreign commerce, see 
 Murray v. Vanderbilt, 39 Barb. 140. 
 
 ^Hunter v. Pfeiffer, 108 Ind. 197; Jennings County Comrs. v. Verbarg, 63 Ind. 
 101; Maguire V. Smock, 42 Ind. 1; Gilberts. Carter, 10 Ind. 16, 68 Am. 
 Dec. 655; Forelanders v. HicJcs, 6 Ind. 448; Plaster v. Burger, 5 Ind. 232; 
 Bunts V. Cole, 7 Blackf. 265, 41 Am. Dec. 226. 
 
 * In support of this statement the court cited Atcheson v. Motion, 43 N. T. 
 147, ^ Am. Rep. ^'^-.Woodworth v. Bennett, 43 N. Y. 273, 3 Am. Rep. 706; 
 Cvbbs V. Smith, 115 Mass. 592; Hannah v. Fife, 27 Mich. 172. 
 
 ^People V. North River Sugar Ref. Co. 2 L. R. A. 33, 54 Hun, 355, note, af- 
 firmed in 9 L. R. A. 33, 121 N. Y. 582. See also Law Literature of Trust 
 Combinations, Monopolies, etc. 33 Abb. N. C. 317.
 
 692 COMPETITION, DISCKIMmATION AND CONTINUOUS CARRIAGE. 
 
 that a trust or combination, having for its purpose the suppression 
 of free competition, cannot live where the common law prevails. 
 
 In Hooker v. Vandeioater, 4 Denio, 349, 47 Am. Dec. 25 S, 
 competing canal companies combined and agreed to fix an estab- 
 lished i*ate of freight and to divide profits. The agreement was 
 adjudged illegal, the court saying, among other things, that " it 
 is a general proposition that an agreement to do an unlawful act 
 cannot be supported at law — that no right of action can spring 
 out of an illegal contract ; and this rule applies, not only when the 
 contract is expressly illegal, but whenever it is opposed to public 
 policy." A combination between common carriers to prevent 
 competition is at least prima facie illegal. Where several com- 
 mon carriers combine as an association, the object of which is to 
 reduce competition between them, and to provide a uniform 
 charge for carriage, and fix upon such a rate, each member to pay 
 a fine for carrying freight for less than the same, the agreement 
 is void, and the association cannot recover the fine.' ■ The doubt 
 is as to whether any ultimate purpose can save it from the con- 
 demnation of the law ; there can be no doubt that, unexplained, 
 such a combination for such a purpose is condemned by public 
 policy. If such a combination can in any event be admitted to 
 be legal it can only be so where it is affirmatively shown that its 
 object was to prevent ruinous competition and that it does not 
 establish unreasonable rates, unjust discriminations or oppressive 
 regulations. If such a contract can stand it must be upon an af- 
 firmative showing, and one so full, complete and clear as to re- 
 move the presumption (to which its existence of itself gives rise) 
 that it was formed to do mischief to the public by repressing fair 
 competition. The burden is on the carrier to remove the pre- 
 sumption, and until it is removed the agreement providing for 
 the combination gives way before this presumption and the agree- 
 ment must be held to be within the condemnation directed against 
 all contracts which violate public policy." 
 
 It had long been the custom of a common carrier of goods to 
 
 ' Sayre v. Louisville Union Benev. Asso. 1 Duv. 143, 85 Am. Dec. 613. 
 ^Cleveland, G. C. & I. E. Co. v. Classen, 9 L. R. A. 754, 3 laters. Com. Rep. 
 387, 126 Ind. 348.
 
 COMBINATIONS BETWEliX KIVAL CAKKIERS. 693 
 
 make contracts for carrying grain to the eastern cities, and in 
 its regular wa}' of business it entered into a contract with a ship- 
 per of grain whereby it undertook to transport grain from a 
 station on its road to a shipping point to which other lines also 
 carried grain. At the time this contract was made there was no 
 open and established rate of freight charges for carrying such 
 grain, except a certain rate agreed upon between the defendant 
 and other railway companies owning competing lines ; the rate 
 so fixed by the competing companies was established by an agree- 
 ment made by them for the purpose of preventing competition ; 
 and was enforced and maintained, in so far as it was enforced and 
 maintained by an agency of such companies established for that 
 purpose, and called a " pool." This pool was managed by a per- 
 son selected by the companies for that purpose and called a " pool 
 commissioner." At the time mentioned all the railway compa- 
 nies that were so located or situated as to be competitors for such 
 f r>?iglit were parties to said arrangement and pool. The rate es- 
 tablished by the combination of common carriers was 21-^ cents 
 per hundred weight. The defendant, notwithstanding such com- 
 bination and pool, offered and gave to the shipper an inducement 
 for shipping freight over its line at a rate lower than that fixed 
 by the combination and pool ; but in order to do this and be able 
 to report to the pool commissioner that such pool rate had been 
 charged, the defendant requested the shipper when shipping 
 freight over its lines, to pay the pool rate, and agreed at the same 
 time, with him, to pay a certain portion of the pool rate so 
 charged, as a rebate, in order that the shippers might in the end 
 be only required to pay the rate fixed by the carrier, and in this 
 manner and for this purpose the defendant did, on the same day, 
 agree with the shipper, in respect to the shipment of grain, that 
 he should pay the pOol rate of 21-|- cents per hundred weight and 
 that the carrier would thereupon repay to him 4|- cents on every 
 hundred weight of grain so shipped, as a rebate, so that he should, 
 in the end, pay as freight upon such shipment but 17 cents per 
 hundreci weight, which was then, in fact, the rate of the carrier, 
 for such freight, between such points as then agreed upon, Avhich 
 rebate the defendant agreed to pay promptly after such ship-
 
 694 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 ment. The contract between the raOroad companies was held to 
 be void as an illegal combination between competing carriers.' 
 The authorities found on every hand not only fully support the 
 conclusion that a contract between competing carriers, forming 
 a combination for the purpose of stifling competition, is prima 
 facie illegal ; but many of them carry the principle to a much 
 greater length.''' But contracts between railroad companies to 
 endeavor to promote each other's interest by mutual influence in 
 business and delivering freights and passengers, are not void as 
 against public policy, in favor of the party who has received ben- 
 eflt under the contract.' 
 
 Shipowners who combine together for the purpose of securing 
 exclusively for themselves a carrying trade at profitable rates, and 
 send ships to a port to which other owners have sent ships, and 
 underbid them, reducing freights so low as to prevent their get- 
 ting remunerative rates, threaten to dismiss certain agents if they 
 load such owners' ships, and circulate a notice that a rebate 
 allowed persons who sMp exclusively by their vessels will not be 
 allowed to those who ship by the other vessels, — are not guilty of 
 any conspiracy which will make them liable to such other owners.^ 
 But the acquisition and consolidation by a rail carrier, under one 
 system of management, of different competing lines of road serv- 
 ing the same territory in the carriage of competitive traffic to the 
 same markets, cannot create a right to deprive the public of fair 
 competition, or warrant oppressive discrimination to equalize 
 profits by making rates for one division that give profitable mar- 
 
 ' Texas & P. R. Co. v. Southern Pac. B. Co. 41 La. Ann. 970; Cleveland. C. C. 
 & I. R. Co. V. Closser, infra. And in support of its ruling referred to the 
 cases of Oibbs v. Consolidated Gas Co. 130 U. S. 408, 32 L. ed. 984; Wood- 
 stock Iron Co. V. Richmond & D. Extension Co. 129 U. S. 644, 32 L. ed. 819; 
 Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173, 8 Am. Rep. 159; Arnot 
 V. Pittston & E. Coal Co. 68 N. Y. 558, 23 Am. Rep. 190; Craft v. Mc- 
 Comughy, 79 111. 346. 22 Am. Rep. 171; Morrill v. Boston & M. R. Co. 55 
 N. H. 537; Jackson v. McLean, 36 Fed. Rep. 213; Santa Clara Valley Mill 
 <& L. Co. V. Hayes, 76 Cal. 387; Firemen's Charitable Asso. v. Berghaus, 13 
 La. Ann. 209; India Bagging Asso. v. Kock, 14 La. Ann. 164; Glasscock v. 
 Wells, 23 La. Ann. 517, and Cummingsv. Saux, 30 La. Ann. 207. 
 
 2 Cleveland, C C. & I. R. Co. v. Closser, 9 L. R. A. 754, 3 Inters. Com. Rep. 
 
 387, 126 Ind. 348. 
 
 3 Tonawanda Valley d; C R. Co. v. Nejn York, L. E. & W. R. Co. 42 Hun, 496. 
 *Mogul SS. Co. V. McGregor [1892] 1 App. Cas. 25.
 
 COMBINATIONS BETWEEN KIVAL CABKIEKS. 695 
 
 kets to a portion of its patrons, and higher rates and charges for 
 another division that are destructive to the pursuits of other 
 patrons who are competitors in the same business.* 
 
 In Manchester <& Lawrence R. Co. v. Concord R. Co. 
 
 5 Inters. Com. Eep. 319, 9 L. K. A. 689, m N. H. ^ 
 
 the proceeding is a bill in equity for a discovery and an 
 accounting of the defendant's dealing with the plaintiff's railroad 
 properties from December 1, 1856, to July 1, 1887, under various 
 •contracts and leases ; for the delivery of certain books, records and 
 papers alleged to belong to the plaintiff ; for the return to it of 
 rolling stock and equipments of the appraised value of $147,592, 
 which went into the defendant's possession at the time it took the 
 plaintiff's road, and which it still retains ; and for the determina- 
 tion and adjustment of the respective rights of the parties in and 
 to certain lands, depots and tracks, situate in Manchester. In bar 
 ■of the plaintift''s right to a recovery the defendant files three 
 special pleas, and, as to the matters in the bill not covered by the 
 pleas, it demurs. The plaintiff demurs to the pleas. 
 
 The first plea avers that the contracts between the parties, 
 under which the defendant went into and retained the possession 
 and management of the plaintiff's road for more than thirty years, 
 were wholly beyond the corporate power of either party to make 
 or to ratify and that therefore the defendant should be hence dis- 
 missed with its costs and charges. In other words, not denying 
 that it has received the full benefit of the performance of the 
 ■contract by the plaintiff, the defendant says that it should in 
 equity be permitted to retain the benefit and property so acquired, 
 and be dismissed with costs, because it was not empowered by its 
 <iharter to perform what it promised the plaintiff' in return. The 
 demurrer to this plea is sustained. The defense set up is, in the 
 judgment of the court, so repugnant to the natural sense of 
 justice, so contrary to good faith and fair dealing, and so opposed 
 to the weight of modern authority, that it need only be said that, 
 in equity at least, neither party to the transaction ultra vires 
 simply, will be heard to allege its invalidity while retaining its 
 
 ' Rice V. Western New York & P. B. Co. 3 laters. Com. Rep. 163.
 
 696 COMPETITION, DISCBIMINATION AND CONTINUOUS CAKRIAGE. 
 
 fruits. However the contractual power of the defendant may be 
 Hmited under its charter, there is no limitation of its power to 
 make restitution to the other party whose money or property it 
 has obtained through an unauthorized contract, nor as a corpora- 
 tion is it exempt from the common obligation to do justice which 
 binds individuals, for this duty rests upon all persons alike, 
 whether natural or artificial. 
 
 The second plea avers, and the demurrer of course admits, 
 that at the time of the making of the contracts between the par- 
 ties, and of the dealings thereunder, their respective roads " were 
 rival and competing railroads, by the competition of which the 
 prices of transportation thereon were, and, but for said supposed 
 contracts, dealings, transactions, operations and business would 
 have continued to be, materially reduced, and said alleged contracts, 
 dealings, transactions and business were made and had for the 
 purpose of destroying and preventing such competition, and did 
 destroy and prevent it." It will be noticed that tliere is no aver, 
 ment in the plea that the purpose of the contracts was to raise the 
 prices of transportation above a reasonable standard, or that they 
 did have this effect, or that the public were prejudiced by their 
 operation in any manner ; and the naked question presented then 
 is, whether all contracts between rival railway corjDorations which 
 prevent competition are necessarily contrary to public policy, and 
 therefore mala jprohibita and illegal in themselves. To state this 
 question it is said, is to answer it in the negative, because it is 
 obvious that the illegality depends upon circumstances. While,, 
 without doubt, contracts which have a direct tendency to prevent 
 a healthy competition are detrimental to the public and conse- 
 quently against public policy, it is equally free from doubt that 
 when such contracts prevent an unhealthy competition, and yet 
 furnish the public with adequate facilities at fixed and reasonable 
 rates, they are beneficial, and in accord with sound principles of 
 public policy. For the lessons of experience, as well as the 
 deductions of reason, amply demonstrate that the public interest 
 is not subserved by competition which reduces the rate of trans- 
 portation below the standard of fair compensation ; and the theory 
 which formerly obtained that the public is benefited by unre-
 
 COMBINATIONS BETWEEN RIVAL CAKRIEK8. 691 
 
 stricted competition between railroads, has been so emphatically 
 disproved by the results which have generally followed its adop- 
 tion in practice, that the hope of any permanent relief from 
 excessive rates through the competition of a parallel or rival road 
 may, as a rule, be justly characterized as illusory and fallacious. 
 Upon authority, also, arrangements and contracts between com- 
 peting railroads, by which unrestrained competition is prevented, 
 do not contravene public policy.' In the case just cited a bill 
 in chancery had been filed by a stockholder in the defendant 
 company to annul an agreement between two railway companies 
 to divide the profits of the trafiic in fixed proportions ; and it was 
 admitted there, as it is here, that the purpose of the agreement 
 was to prevent competition. In dismissing the bill Vice Chan- 
 cellor "Wood said (p. 103): "With regard to the argument 
 against the validity of the agreement, I may clear the ground of 
 one objection by saying that I see nothing in the alleged injury to 
 the public arising from the prevention of competition. ... It is 
 a mistaken notion that the public is benefited by pitting two rail- 
 way companies against each other till one is ruined, the result 
 being at last to raise the fares to the highest possible standard.'^ 
 So, also, in 1 Redf. Railways, § 146, par. 2, it is said : " There is 
 no principle of public policy which renders void a traffic arrange- 
 ment between two lines of railway for the purpose of avoiding 
 competition." And Mr. Morawetz says, in his admirable treatise 
 on Corporations : "Public policy clearly does not demand that 
 railroad companies operating competing lines shall engage in strife 
 causino; their financial ruin ; and. so far as a^jreements among 
 companies are designed to effect this result, their purpose is not 
 injurious to the public, or illegal. Moreover, such agreements are 
 positively beneficial to the public, so far as they prevent the 
 fluctuation of rates and unjust discrimination among shippers,, 
 which invariably attend the unrestricted competition of rival 
 companies. It is therefore impossible to support the proposition 
 that all agreements among railroad companies which restrict com- 
 petition Kre condemned by law. Some such agreements may be con- 
 trary to public policy, and unlawful; but if an agreement of this cliar- 
 
 1 See Hare v. London & N. F. B. Co. 2 Johns. & H. 180.
 
 698 COMPETITION, DISCEIMINATION AND CONTINUOUS CAKKIAGE. 
 
 acter is a reasonable business arrangement to protect the sharehold- 
 ers and creditors of the companies from loss, and does not cause un- 
 reasonably high charges or violate any duty which the companies 
 owe to the public, it should be sustained and enforced by the 
 courts." ' In the same section, in speaking of contracts in re- 
 straint of trade (to which many of the authorities and much of 
 the argument for the defendant relate) he says: "Even if there 
 were such a rule, as has been claimed, applicable to competition 
 in trade, the principle and jDolicy of the rule would not be appli- 
 cable to traffic arrangements designed merely to prevent ruinous 
 competition and ' wars ' among railroad companies. The main 
 objection which has been urged against combinations restraining 
 competition in trade, namely, that such combinations tend to pro- 
 duce mono|)olies and cause extortion, has no application to com- 
 binations among railroad companies, for railroad companies are 
 prohibited by law to charge more than reasonable rates. It should 
 be observed also that competition among railroad companies has 
 not the same safeguards as competition in trade. Persons will 
 ordinarily do business only when they think they see a fair chance 
 of profit; and if press of competition renders a particular trade 
 unprofitable, those engaged in that trade will suspend or reduce 
 their operations, and apply their capital and labor to other uses, 
 until a reasonable margin of profit has been reached. But the 
 capital invested in the construction of a railroad cannot be with- 
 drawn when competition renders the operation of the road un- 
 profitable. A railroad is of no use except for railroad purposes, 
 and if the operation of the road were stojDped the cajDital invested 
 in its construction would be wholly lost. Hence it is for the in- 
 terest of a railroad comj^any to operate its road, though tlie eai'u- 
 iugs are barely sufficient to pay the operating expenses. Tlie 
 ownership of the road may pass from the shareholders to the 
 bondholders, and be of no benefit to the latter ; but the struggle 
 for traffic will continue so long as the means of paying operating 
 expenses can be raised. Unrestricted competition will thus ren- 
 der the competitive traffic wholly um-emunerative, and will can.-e 
 
 »Morawetz, Corp. (2d ed.) § 1131.
 
 COMBINATIONS BETWEEN EIVAL CAKRIERS. 699 
 
 the ultimate bankruptcy of the companies unless the portion of 
 their traffic which is not the subject of competition can be made 
 to bear the entire burden of the interest and fixed charges.''* 
 The application of these principles, the court say, to the plea under 
 consideration is patent and decisive. The geographical location 
 and relative resources of the two roads were such as to render it 
 obvious that the plaintiff could not reasonably hope to success, 
 fully compete with its more powerful rival. The alternatives 
 presented, it may safely be assumed, were combination or ruinous 
 competition. It accepted the former ; and as the combination did 
 not, so far as appears by the pleadings, raise the rate of transporta- 
 tion above the standard of fair compensation, or violate any duty 
 that is owing to the public from roads which are non-competing, 
 there is nothing averred in the plea which bars the right of the 
 plaintiff to an accounting with the defendant. Numerous cases 
 have been cited in behalf of the defendant in support of its prop- 
 osition that the combination between the parties must be regarded 
 as void at common law because against public policj". For want 
 of time it is quite impossible to go through and comment upon 
 these cases in detail, but it is sufficient to say in general terms, 
 that they are cases of contract in restraint of mercantile business ; 
 or cases of contracts which attempt to derogate from the right of 
 eminent domain inherent in the state ; or cases wdiere contracts 
 between railroad companies were held contrary to public policy 
 because one of the parties attempted to bind itself not to perform 
 duties incident to the legal character of common carriers or pub- 
 lic servants ; or cases where contracts between railroad companies 
 were held contrary to public poKcy because one of the parties 
 agreed not to build or to cease to operate a road which it was 
 
 *NoTE. — There are many cases sanctioning the doctrine that combinations 
 may be formed where the purpose is lawful and the means employed not for- 
 bidden by positive law or high considerations of public policy. Central Trust 
 Co. V. Ohio Cent. B. Co. 23 Fed. Rep. 306, 23 Am. & Eng. R. Cas. 666; Boston 
 Chamber of Commerce v. Lake Sliore & M. S. B. Co. 1 Inters. Com. Rep. 391, 32 
 Am. & i:ng. R. Cas. 633; Leslies. Lorillard, 1 L. R. A. 456, 110 N. Y. 519; 
 Hare v. London & N. W. B. Co. 2 Johns. & H. 80, 7 Jur. N. S. 1145; Manches- 
 ter & L. B. Co. V. Concord B. Go. 9 L. R. A. 689, 3 Inters. Com. Rep. 319, 66 
 N. H. — , 8 Ry. & Corp. L. J. 443.
 
 700 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 chartered to build or operate ; or cases where contracts between 
 raih-oad companies have been held illegal merely on the ground 
 that they were tdtra vires^ — in short, they do not establish a rule 
 which fairly includes a case like the one at bar. The demurrer 
 to the second plea was on this reasoning sustained. 
 
 The averment in the third plea is, " that during all the time 
 from said December 1, 1856, until July 1, 1887, the roads of the 
 plaintiff and defendant each constituted a part of the different 
 lines of route for public travel and transportation between cities 
 and towns within and without this state, forming rival and com- 
 peting lines of route between such points." This plea was under- 
 stood to be based upon the statute of July 5, 1867, entitled " An 
 Act to Prevent Railroad Monopolies," and providing, among 
 other things, "that two or more railroad corporations chartered 
 by the legislature of this state, constituting the whole or parts of 
 different lines of route for public travel and transportation be- 
 tween any two cities or towns, or between any city and town, 
 either within or without this state, forming rival and competing 
 lines of route between such points, shall not be allowed to con- 
 solidate such roads or lines ; and neither of said lines, or any road 
 or roads composing the same, shall be run or operated by any 
 such rival and competing line, or any road or roads, portion 
 thereof, under any business contract, lease or other arrangement, 
 but each and every railroad corporation so situated shall be run, 
 managed and operated separately by its own officers and agents,, 
 and be dependent for its support on its own earnings from its 
 local and through business in connection with other roads, and the 
 facilities and accommodations it shall afford the public for travel 
 and transportation under fair and open competition, unless such 
 lease, contract or arrangement be first authorized by the legisla- 
 ture, and approved by the governor and council." When this 
 Act was passed, the contract in force between the parties, and 
 under which the roads were then being operated, was that of De- 
 cember 27, 1860 ; and the claim of the defendant is that whatever 
 may be said with reference to the prior contracts and to the oper- 
 ation of the roads under them up to the time of the passage of 
 the Act of 1867, that Act rendered the further execution of the
 
 COMBINATIONS BETWEEN EIVAL CARRIERS. 701 
 
 ■contract of December 27th illegal and prohibited it. This point 
 is declared to be well taken. Whatever may now be the senti- 
 ment of New Hampshire in respect to the operation of railroads 
 since the results attendant upon consolidation liave been suffi- 
 ciently demonstrated to remove any intehigent fear of extoi'tion 
 in rates or deterioration of service, there can be no doubt that in 
 1867 its sentiment was in favor of independent and competing 
 lines, and that the purpose of the legislature was to make the 
 act in question an effective instrumentality against the consolida- 
 tion of competing roads through contracts or arrangements be- 
 tween them, by means of which competition is removed.' 
 
 The act, of course, had no ex pout facto appHcation, and was 
 therefore of no effect as to anything which had already been done 
 by the parties under the contract of December 27th, but it did 
 prohibit them from further operating the roads under that con- 
 tract (unreported opinion of Jiellows, J., in Currier v. Concord 
 R. Corp.^ December Law Term, 1871) and so far rendered it 
 void as to deprive either party of the right of recovering ex- 
 pressly for its subsequent breach. Isevertiieless, the defendant is 
 not in the opinion of the court entitled to retain the money or 
 other property so acquired, and for which it has rendered no cor- 
 responding equivalent to tiie plaintiff in return, but, on the con- 
 trary, it is its duty to make equital)le compensation and restitu- 
 tion, and the duty may be enforced in this proceeding. It is true 
 that, in general, where parties are concerned in illegal agreements 
 or other transactions, whether they are raala prohilita or mala 
 in fse, courts of equity will not interpose to grant relief; but this 
 is so only when the parties stand upon equal footing, for the doc- 
 trine everywhere running through the books is that relief will be 
 granted when both parties are in delicto^ provided they do not 
 stand in pari delicto.'^ 
 
 These parties do not so stand, for, however guilty the plaintiff 
 may have been in permitting or in concurring in the illegal oper- 
 ation o| its road by the defendant after the Act of July 5tli, its 
 
 ' CurHer v. (Jonrj/rd R. Corp. 48 N. H. 325; Fialur v. Cona/rd R. Go. 50 N. 
 
 H. 208. 
 » See Story, Eq. .Jur. (12111 ed.) §~ 98, 300.
 
 702 COMPETITIOi^, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 guilt must fairly be regarded as far less in degree than that of its 
 associate in the offense. And that the leo-islature regarded the 
 defendant as the greater offender is made entirely plain by the 
 fact that the only penalty prescribed by the Act of July 5th for 
 the violation of its provisions is imposed upon the road which 
 operates another road, and not upon the road which is operated ; 
 for the reading of the second section is that " in all cases where 
 any road, its directors, officers or agents, shall hereafter enforce 
 or attempt to enforce or exercise any authority over any other road, 
 situated as provided in said first section, or do any act in conflict 
 with said first section, such officers or agents shall severally be sub- 
 ject to a fine or liability not exceeding five hundred dollars for each 
 offense, to be recovered by action of debt, or by information or 
 indictment, for the use of the county within which such suit shall 
 be instituted." These considerations, as well as others of a kin- 
 dred character, which need not be adverted to, bring the case 
 fully within the exception to the general rule, that equity will 
 not grant relief to parties concerned in illegal transactions ; and 
 if this be so, it is the end of the case as regards the questions 
 raised by the pleas, because, if the transactions between the par- 
 ties were of the character which the defendant now ascribes to 
 them, the plaintiff, not being in pari delicto^ is entitled to par- 
 ticipate in the property accumulated or its proceeds, which, as 
 between the parties, will be divided according to equity, and it 
 has not been argued to the contrary in the defendant's behalf.. 
 There is, however, another ground of relief, which should be 
 briefly mentioned. The contracts have been executed on the 
 part of the plaintiff ; they were not immoral ; and they were ille- 
 gal only so far as they were prohibited by statute. Taking this 
 to be so, and regarding the parties as truly in pari delicto, the 
 case still falls within the general rule, " that if an agreeinent is. 
 legally void and unenforceable by reason of some statutory or 
 common law prohibition, either party to the agreement who has 
 received anything from the other party, and has failed to perform 
 the agreement on his part, must account to the latter for what 
 has been so received. Under these circumstances, the courts will 
 grant relief irrespective of the invalid agreement, unless it in-
 
 COMBINATIONS BETWEEN RIVAL CARKIERS. 703 
 
 volves some positive immorality, or there are other reasons of 
 public policy why the courts should refuse to grant relief in the 
 case." ' 
 
 He adds : " These doctrines have been applied repeatedly in 
 suits arising out of contracts entered into by corporations, although 
 prohibited by statute or by the common law ; and although the 
 contracts were held illegal and unenforceable in these cases, a re- 
 covery was allowed to the extent of the consideration received." " 
 
 The leading case of Brooks v. Martin was a bill in equity for 
 an account of profits between the parties under an executed part- 
 nership contract for the purchase and location of soldiers' land 
 warrants " confessedly against public policy," as well as in viola- 
 tion of the express provisions of an Act of Congress; but the 
 court held that the partner in whose hands the profits were, could 
 not refuse to account for or divide them, on the ground of the 
 illegal character of the original contract, saying (Miller, J., p. 80 
 [735]) : " It is to have an account of these funds, and a division 
 of these proceeds, that this bill is filed. Does it lie in the mouth 
 of the partner who has, by fraudulent means, obtained possession 
 and control of these funds to refuse to do equity to his other part- 
 ner, because of the wrong originally done or intended to the sol- 
 dier ? It is difficult to perceive how the statute, enacted for the 
 benefit of the soldier, is to be rendered any more effective by 
 leaving all this in the hands of Brooks, instead of requiring him 
 to execute justice as between himself and his partner, or what 
 
 'Morawetz, Corp. § 731. 
 
 2 White V. Fi-anklin Bank, 22 Pick. 181; Dill v. Wareham, 7 Met. 438; Epis- 
 copal Charitable Society \ . Episcopal Ghuixh in Dedham, IFick. 373; Whit- 
 ney V. Peay, 24 Ark. 22; Philadelphia Loan Co. v. Townei-, 13 Conn. 249; 
 Foulke V. San Disgo & G. S. P. R. Co. 51 Cal. 365; Farmers Loan & T. Co. 
 V. St. Joseph & D. C. B. Co. 1 McCrary, 247, 2 Fed. Rep. 117; Madison 
 Ave. Baptist CMirchY. Baptist Church in Olive Street, 78 N. Y. 82; Tracy 
 V. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Sacketts Harbor Bank v. Codd, 
 18 N. Y. 248; Oneida Bank v. Ontai-io Bank, 21 N. Y. 490; Vanatta v. State 
 Bank, 9 Ohio St. 27; United Slates Exp. Co. v. Lucas, 36 Ind. 361. See 
 also Pratt v. Short, 79 N. Y. 437, 35 Am. Rep. 531; Owen v. Davis, 1 Bail. 
 L. 315; Oilliam v. Brown, 43 Miss. 641; Western U. Teleg. Co. v. Union 
 Pae. R. Co. 1 McCrary, 558. 3 Fed. Rep. 423; Lewis v. Alexander, 51 Tex. 
 578; Brooks v. Martin, 69 U. S. 2 Wall. 70, 17 L. ed. 732, and cases cited; 
 Planters Bank of Tennessee v. Union Bank of Louisiana, 83 U. S. ,16 Wall. 
 483, 21 L. ed. 473, and cases cited; Central Trust Co. v. Ohio Cent. B. Co. 
 23 Fed. Rep. 306.
 
 704 COMWETITION, DISCBIMINATION AND CONTINUOUS CAKKIAGE. 
 
 rule of public morals will be weakened by compelling him to do 
 :So. . . . The transactions which were illegal have become 
 accomplished facts, and cannot be affected by any action of the 
 court in this case." It is true that the doctrine of this case 
 has been criticised, and perhaps denied, by some of the state 
 courts ; but it was reaffirmed in Planters Banh of Tennessee v. 
 Union Banh of Louisiana, and it is not found to have been 
 been changed or modified in any subsequent decision. 
 
 In the case of Carrier v. Concord R. Corp. 48 N. H. 322, the 
 court says : " Doubtless a court of equity is not positively bound to 
 interfere in cases of this description, and may exercise its discretion ; 
 but it is peculiarly the office of equity to do justice, and justice 
 manifestly requires that the defendant should not keep any part 
 of the plaintiff's equitable sliare of the property it obtained from 
 operating the plaintiff's road, whether legally or illegally. What- 
 ever the legislature may have intended to accomplish by the Anti- 
 Monopoly Act of 1867, there is no reason to suppose their inten- 
 tion was to reward the Concord Railroad for its violation. And, 
 however it may once have been, it is certainly now difficult to see 
 how public policy is subserved by allowing the addition of a private 
 wrong to a public wrong, which necessarily results when, without 
 any equivalent in return, one party to an executed illegal transac- 
 tion excludes the other from participating in the proceeds; and it 
 is impossible to appreciate the morality which denies in such cases 
 any rights to the party whose money or other property has been 
 tiius approjuiated by his associate, contrary to express agreement 
 and common honesty, and which in conscience the benefited party 
 cannot retain. Yarious causes of demurrer to the bill are assigned 
 by the defendant, but at the argument only the one relating to dis- 
 covery was insisted upon, or need in the judgment of the court be 
 considered. The bill prays " that the defendant be ordered to make 
 a full, accurate and true discovery and disclosure of all and singu- 
 lar the matters and things herein set forth." This is the usual 
 prayer for a discovery, and no objection to its sufficiency is per- 
 ceived. It is immaterial that the prayer concludes with a request 
 that the defendant be required, but not under oath, ... to 
 •discover and state, fully and with particularity, certain things
 
 COMBINATIONS BETWEEN RIVAL CARRIERS. 705 
 
 specified ; for, if the word ' answer,' which it is said was intended 
 to be used, is substituted for ' discover,' the first objection of the 
 defendant, that a prayer for a discovery not under oath cannot be 
 granted, is readily obviated. The second objection, that the 
 pohcy of the law exempts the defendant and its officials from dis- 
 covery, is said to be based wholly upon the unfounded assumption 
 that the plaintiff's action is against public policy, and has already 
 been sufiiciently considered. T'le third and last objection is that 
 the fundamental law does not require the defendant to discover. 
 The argument in its support is that the defendant is charged with 
 the doing of that which was positively prohibited by the Act of 
 July 5, 1867 ; that, if the cliarge is sustained, each of the defend- 
 ants is liable to the penalty prescribed by the Act ; and that they 
 are asked to make discovery of facts, which, in any event, would 
 tend to fix their penal liability under that Act, contrary to tlie 
 constitutional provision that ' no subject shall ... be com- 
 pelled to . . . furnish evidence against himself.' This ob- 
 jection is held to be unavailing. Of course the defendants are 
 not obliged to discover any matters that may expose them to the 
 penalty of the Act of 1867; but they cannot do so, however will- 
 ing they may be, because prosecution under that Act is barred by 
 the statute of limitations. The transactions between the parties 
 as to which discovery is sought ended July 1, 1887, and section 10, 
 chap. 266, Gen. Laws, provides that "all prosecutions founded 
 upon any penal statute, which are wholly or in part for the use of 
 the prosecutor, shall be brought within one year, and all other 
 suits and prosecutions thereon within two years, after the commis- 
 of the offense, unless otherwise specially provided." The demur- 
 rer was therefore overruled. 
 
 § 121. Rebate— Contra ct to Repajj the Shipper a 
 Part of the Rate. 
 
 Where a carrier agrees that he will carry goods at a certain rate 
 
 and that after the shipment he will repay the shipper a rebate of 
 
 part of such rate, this, it has been said, is only an agreement to 
 
 carry the goods at a compensation ultimately agreed upon, and is 
 
 45
 
 706 COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 
 
 not illegal. Discrimination in the making of contracts by a car- 
 rier for the carriage of goods without partiality is inoffensive. 
 Partiality exists only in cases where advantages are equal and one 
 party is unduly favored at the expense of another, who stands 
 upon an equal footing. Common carriers may, within the limits 
 of fairness and impartiality, consult their own interests in making 
 contracts for the carriage of goods.' But it has also been held 
 that the allowance of a rebate by a common carrier to certain of 
 his customers, from the tariff rates charged other customers for 
 precisely similar services, is sufficient of itself to show that the 
 rates charged the latter were unreasonable, and that there was un- 
 just discrimination against them, illegal by the common law, which 
 will give the latter a right to recover the amounts paid by them 
 in excess of the rates charged the former after deducting the 
 rebates." 
 
 An agreement by a railroad company to transport coal at a 
 specified rebate from regular tariff rates in consideration of the 
 shippers erecting a dock and coal pockets on the company's land 
 for use by both parties, is not as matter of law void because of 
 unjust discrimination against other shippers, especially where the 
 shipper also agrees to do his own loading and to ship in large 
 quantities. The question of unjust discrimination is one of fact.' 
 When the consideration paid for reduced rates by a favored 
 shipper is obviously equal to the discount allowed him, there is in 
 fact no discrimination, and the contract is not obnoxious to the 
 law prohibiting discrimination between shippers.* Where a com- 
 mon carrier subject to the Act to Regulate Commerce has estab- 
 lished and published its schedule of rates and charges for a station 
 on its line, free cartage furnished by the carrier for the collection 
 and delivery of freight carried on its road to or from such station 
 operates as a reduction or rebate from the schedule charge, and is 
 
 » Cleveland, G. G. & 1. E. Go. v. Closser, 9 L. R. A. 754, 3 Inters. Com. Rep. 
 
 387. 126 Ind. 348. 
 ^ Cook V. Chicago, B. I. & P. R. Co, 3 Inters. Com. Rep. 383, 9 L. R. A. 764 
 
 81 Iowa, 551. 
 ^Rml V. Long Island B. Co. 2 Inters. Com. Rep. 576, 4 L. R. A. 331, 114 N. 
 
 Y. 300. 
 * Goodridge v. Union Pac. R. Go. 37 Fed. Rep, 183.
 
 REBATE CONTKACT TO REPAY THE SHIPPER PART OF THE RATE. 707 
 
 unlawful. If free cartage at a station has the effect to reduce a 
 rate below the charge at another station nearer the point of ship- 
 ment, it is unlawful as a less charge for a longer distance over the 
 same line and in the same direction, the less being included within 
 the greater. It is not material to the question of the lawfulness 
 of free cartage furnished at one town and not at another that the 
 business was done in that way for many years before the Act to 
 Regulate Commerce was enacted. If what was done and is now 
 done works unjust discrimination or is in any particular obnoxious 
 to the law, it is an abuse, and one that it must be assumed was in- 
 tended to be corrected by the Act. The respondent company had 
 a tariff schedule in effect grouping the rates from eastern points 
 at Ionia and Grand Rapids in Michigan, Ionia being the shorter 
 distance, and furnished free cartage at Grand Rapids and not at 
 Ionia. Upon complaint by a firm of dealers at Ionia, it was ruled 
 that the free cartage at Grand RajDids was in effect a rebate and 
 imlawful.' 
 
 The common law rule that he who attacks a contract has the 
 burden to show its invalidity, prevails in the Colorado courts. 
 Therefore a contract of rebate must be held valid until shown to 
 be otherwise.* An agreement between a carrier and a miller to 
 give the latter a rebate on coal shipped to him, used in the manu- 
 facture of corn into meal, is valid under Ala. Code 1886, § 1161, 
 where public notice by the general freight agent authorized such 
 rebate on coal used in manufacturing.' A contract by a railroad 
 company to carry corn at the customary rates, and to grant a rebate 
 to the shipper, is not illegal as being in violation of the law to 
 prevent unjust discrimination ; nor is it fraudulent as to the pur- 
 chaser of the corn.* 
 
 • Stone V. Detroit, G. H. & M. R. Co. 3 Inters. Com. Rep. 60. 
 
 ^Bayks v. Kansas Pac. R. Co. 3 Inters. Com. Rep. 643, 5 L. R. A. 480, 13 
 Colo. 181. 
 
 3 Louisville & N. R. Co. v. Fulgham, 91 Ala. 555, 9 Ry. & Corp. L. J. 451. 
 
 * Christie v. Missouri Pac. R. Co. 2 Inters. Com. Rep. 22, 94 Mo. 453.
 
 CHAPTER XYIII. 
 
 UNJUST DISCRIMINATION. 
 
 § 122. Discrimination by One Carrier against Another. 
 
 § 123. Blanket or Group Rate — Preference Given one Locality over 
 
 Another. 
 § 124. Discrimination letween Shippers — Rebate. 
 
 § 122. Discrimination hy One Carrier against 
 
 Another. 
 
 The question of reasonable or unreasonable preference by rail- 
 way companies has been considered in several cases by the Eng- 
 lish courts ; but the cases arose under the " Railway & Canal 
 Traffic Act 1854" (17 & 18 Yict. chap. 31) and furnish but little 
 aid in the determination of questions in this country, except in 
 states which have adopted the legislation somewhat similar in 
 character to that of the English rule. They are instructive and 
 of high authority as to what would be undue or unreasonable pre- 
 ference among competing customers, but none of them relate to 
 the rights of connected railroads where there is no provision in 
 law for their operation as continuous for business. And here it is 
 proper to remark that in the very Act under which these cases arose 
 it is provided that "every railway company . . . working 
 railways . . . which form part of a continuous line of rail- 
 way . . . communication . . . shall aiford all due and 
 reasonable facilities for receiving and forwarding by one of such 
 railways ... all the traffic arriving by the other, without 
 any unreasonable delay and without any . . . preference or 
 advantage or prejudice or disadvantage . . . and so that no 
 obstruction may be offered to the public desirous of using such 
 railways . . . as a continuous line of communication, and so 
 that all reasonable accommodation may, by means of the railways 
 . . . of the several companies, be at all times afforded to the 
 
 708
 
 DISCRIMINATION BY ONE CARRIEK AGAINST ANOTHER. 709 
 
 public in that behalf." If complaint was made of a violation of 
 this provision, application should be made to the courts for re- 
 lief. There is no power in the judiciary to do what the parlia- 
 ment of Great Britain Jias done and what the proper legislative 
 authority ought perhaps to do, for the relief of the parties dis- 
 criminated against. 
 
 All the American cases relate either to what amounts to undue 
 discrimination between the customers of a railroad company, or 
 to the power of a court of chancery to interfere, if there is such 
 a discrimination. None of them hold that, in the absence of 
 statutory direction or a specific contract, a company having the 
 power to locate its own stopping places can be required by a 
 court of equity to stop at another railroad junction and inter- 
 change business or that it must under all circumstances, give one 
 connecting road the same facilities and the same rates that it 
 does to another with which it has entered into special contract 
 relations for a continuous through line, and arranged facilities 
 accordingly. The time and manner in which a railroad company 
 will carry persons and property, and the price to be paid there- 
 for, are subject to legislative regulation ; but in the absence of 
 such regulation it owes only such duties to the public as the com- 
 mon law or custom has established. 
 
 A railroad company is prohibited from discriminating unrea- 
 sonably in favor of or against another company seeking to do 
 business on its road. But that does not necessarily imply that it 
 must stop at the junction of one and interchange business, be- 
 cause it has established joint depot accommodations with another 
 company at another place.' The fact that a railroad company 
 makes such arrangement for one of its branch roads will not 
 charge it with unjust discrimination for refusing to make iden- 
 tical arrangements on other parts of its system.' A carrier may 
 require prepayment of freight charges from any shipper, at its 
 choice, and may lawfully refuse to receive freight from a receiving 
 carrier without such prepayment, although it does not require it 
 
 ^AtcMsoji, T. & 8. F. R. Co. v. Denver & N. 0. R. Co. 110 U. S. 667, 28 L. 
 
 ed. 291. 
 ' Re Joint Water & Rail Lines, 2 Inters. Com. Rep. 486.
 
 710 UNJUST DISCRIMINATION. 
 
 from others ; but notice of such requirement should be given to 
 the shipper or receiving carrier.' 
 
 The riglit of railway companies to enter into a just and fair 
 arrangement with shippers for the purpose of increasing their 
 business, must be admitted, although the effect of the arrange- 
 ment may take business from others. They may extend more 
 favorable terms to all shippers, with a view of increasing their 
 business, although others engaged in the same business may be 
 incidentally injured thereby. It cannot be made a ground of 
 complaint that the public patronizes those lines of transportation 
 which give the most favorable terms.'' But a carrier cannot de- 
 cline to receive goods from a shipper, because he offers like 
 transportation to another carrier.^ 
 
 It is an undue preference, within the meaning of the English 
 Railway & Canal Traffic Act of 1854, § 2, for a railway com. 
 pany, for the purpose of discouraging the construction of a com. 
 peting line, to carry the product of certain mines at a less rate 
 for mine owners who contracted to furnish the product of other 
 mines for a series of years, than is charged to other mine owners 
 who refuse to enter into such a contract.^ The commercial neces- 
 sities of a railway in meeting competition are not to be excluded 
 from consideration, although that alone would not justify a pre- 
 ference, in determining whether, under the English Railway & 
 Canal Traffic Act 1888, § 27, the public interests require the exist- 
 ence of the rates complained of.* A reduced rate to the terminus 
 of a through route, under the compulsion of competition, is not 
 unjust discrimination against a nearer town not located on the line 
 of the through route, but reached over a lateral connecting road.' 
 
 Rates should be so rela^tively reasonable as to protect communi- 
 ties and business against unjust discrimination.'' An advantage 
 
 • Randall v. Richmond & D. R. Co. 108 N. C. 613. 
 '^ Munhall v. Pennsylvania R. Go. 93 Pa. 150. 
 
 3 Chicago & A. R. Co. v. Suffern, 129 111. 274. 
 *Diphwys Casson Slate Co. v. Festiniog R. Co. 2 Nev. & McN. 73. 
 - Liverpool Corn Trade A:iso. v. London & N. W. R. Co. [1891] 1 Q. B. 120, 45 
 Am. & Eag. R. Cas. 216. 
 
 * Lehmatm v. Southern Pac. Co. 3 Inters. Com. Rep. 80. 
 
 ''Boards of Trade Union v. Chicago, M. cfc St. P. R. Co. 1 Inters. Com. Rep. 608.
 
 DISCKUIINATION BY ONK CARRIER AGAINST ANOTHER. 711 
 
 given by a railroad, in establishing its charges on different branches 
 on its road, to competing towns on the main line, must not be 
 unreasonable.' Transportation charges are required to be rela- 
 tively reasonable, as well as reasonable in themselves, to prevent 
 unjust discrimination between localities." 
 
 A railroad company can require a connecting company to 
 receive through cars and take freight in them over its line without 
 transfer, although the use of the latter's terminals and terminal 
 facilities will necessarily be required for the service, and although 
 the roads are parallel and rival lines, and the service of transport- 
 ing the freight has been practically performed by one company 
 which needs the assistance of its rival simply to deliver the freight 
 at points near the terminus of its road. For this purpose no con- 
 tract between the companies is necessary. _ The connecting com- 
 pany may be required to receive passengers under similar 
 circumstances. The intervention, between two railroads, of a 
 terminal system owned by an independent company, will not pre- 
 vent the roads from being connecting lines, within the meaning 
 of the Interstate Commerce Act, requiring such lines to inter- 
 change business ; at least where the stock of the terminal company 
 is owned by the two roads jointly, or by one of them in such 
 manner that the terminal in reality forms a part of its road. 
 What are reasonable facilities for an interchange of business be- 
 tween connecting railroad companies, within the requirements of 
 the Interstate Commerce Act, depends upon the state of the 
 traffic and the business ; aud the question is to be determined by 
 what is considered reasonable by the public, and what is required 
 to conveniently transact the business. A railroad company may 
 be compelled to offer the same facilities for interchange of cars 
 and freight in bulk with one connecting road that it does with an- 
 other. The Interstate Commerce Act prohibits any discrimina- 
 tion of this character. 
 
 One railroad company may have a right to issue bills of lading 
 for freight and through tickets for passengers over a connecting 
 
 1 Raymond v. Chicago, M. & St. P. R. Co. 1 Inters. Com. Rep. 637. 
 ^Manufacturers & J. JJ/iion v. Minneapolis cfc St. L. R. Co. 3 Inters. Com. 
 Rep. 115.
 
 712 UNJUST DISCRIMINATION. 
 
 road, although thei'e is no contract between the companies.' 
 Refusal to permit a forwarding company to perform an act 
 involving the use of the tracks and terminal facilities of a receiv- 
 ing comj)any is not a discrimination or denial of equal facilities by 
 one carrier to a connecting carrier within the prohibition of the 
 Interstate Commerce Act. The tracks and terminal facilities of 
 a railroad company can be used by a connecting company for the 
 exchange of interstate freight only with the consent of the 
 former. No common carrier can justly complain of another be- 
 cause it is not allow^ed the use of the tracks and terminal facilities 
 of such other in the same manner and to the same extent a third 
 carrier is. The fact that one connecting railway company has a 
 contract for the interchange of interstate freight which involves 
 the use of the receiving railway's tracks and terminal facilities 
 will not authorize a court of equity to compel the receiving rail- 
 way to grant a like contract or concession to another connecting- 
 company. A connecting railway company desiring an inter, 
 change of passengers and freight cannot demand as a matter of 
 right an interchange of freight at the point of physical connection 
 without first furnishing at such ^^oint reasonable and proper facili- 
 ties for the interchange sought, and cannot rely upon the terminal 
 facilities at another point, or compel the receiving railway to go to 
 any expense of providing proper facilities at the point of physical 
 connection. A court of equity has no power under the Interstate 
 Commerce Act to compel a receiving company which has made a 
 contract or agreement with a connecting company to establish the 
 same rate upon through freight in favor of another company with 
 which there is no contract and compel the receiving company to 
 accept that rate, as no power is conferred by the Act upon any 
 tribunal to provide for the necessary divisions growing out of a 
 through routing and a through rating. The insistence by a rail- 
 way company upon its right to prepayment of the freight upon 
 goods received from a connecting carrier, rather than to consent to 
 retain a lien upon the goods until payment is made, or to hold the 
 consignee responsible in case of delivery before payment as is done 
 
 ' Oregon Short Line & U. N. R. Co. v. Northern Pac. JR. Co. 3 Inters. Com. 
 Rep. 205.
 
 DISCKIMINATION BY ONE CARRIER AGAINST ANOTHER. 713 
 
 in case of freight received from other carriers^ cannot be construed 
 to be a denial of equal facilities or a discrimination against the 
 former. A railroad company cannot be compelled to receive con- 
 necting carrier's cars to facilitate transportation if it has idle cars 
 of its own, although it receives freight from another competing 
 road in the cars of the latter and transports them over its road.' 
 
 Breaking up a through billing arrangement at through rates, 
 with a responsible company, without any reason therefor, and 
 attempting to give all the business that would come under it to a 
 different company, is unlawful. An order of the Interstate Com- 
 merce Commission, requiring a carrier to desist from a refusal to 
 afford facilities to another carrier for the exchange of interstate 
 traffic, equal to those furnished another road, previously accom- 
 plished by canceling a joint through tariff, is violated by restoring 
 such tariff but altering the running time of trains so that the 
 facilities are substantially no better than before. That the con- 
 necting points of other railroads with a certain road are sixteen 
 miles apart does not necessarily make the conditions so different 
 that the refusal to one of equal facilities for the exchange of in- 
 terstate traffic, to those afforded the other, will not constitute 
 undue discrimination. That a carrier has a special contract with 
 an independent corporation of which it owns half the stock, mak- 
 ing them a combination of carriers, does not make the railroad of 
 the latter part of its own line, so that the furnishing to it of 
 superior facilities for tlie exchange of interstate traffic will not 
 constitute undue discrimination against a road connecting physi- 
 cally with itself.* 
 
 A New York railroad extending to Dayton, Ohio, by agreement 
 being considered wdth an Ohio railroad extending from Dayton 
 to Cincinnati, an initial road at Cincinnati, with right to make 
 rates to that place, Cincinnati must be treated as a point upon the 
 line for the purpose of proceeding against the company for un- 
 just discrimination in refusing to furnish coal cars.^ Charges by 
 
 ' Little Aock & M. R. Co. v. St. Louis, L M. & S. R. Co. 59 Fed. Rep. 400. 
 ^New York & N. R. Co. v. Mw York & N. E. R. Co. 4 Inters. Com. Rep. 117, 
 
 50 Fed. Rep. 867. 
 » Riddle v. New York, L. E. & W. R. Co. 1 Inters. Com. Rep. 787.
 
 714 UNJUST DISCRIMINATION. 
 
 receiver of railroad in relation to interstate commerce business 
 must be reasonable and just ; and there can be no discrimination 
 as to rates, charges or facilities for or against two connecting 
 steamship lines.* But a railroad company operating steamers in 
 connection with its railroad as a single line is not guilty of a dis- 
 crimination against another carrier, within the prohibition of the 
 Interstate Commerce Act, by refusing to allow a rival steamboat 
 company to land its boats at a wharf used by it solely for connect- 
 ing its railroad and boats, where there is no regular public station 
 at such wharf, but the general station is at a little distance and 
 ample facilities there exist." When actual weights of goods 
 shipped cannot be ascertained without needless inconvenience, 
 estimated or constructive weights may be taken if the method of 
 estimation works no inequality in its practical application to com- 
 peting modes of conveyance/ 
 
 § 128. Blanket or Group Rate— Preference Given 
 one Locality over Another. 
 
 Preferences to localities in furnishing facilities or rates for the 
 shipment of goods are prohibited." But a railroad company can- 
 not appropriate the grievance of a traffic or locality under the 
 Interstate Commerce Act, § 3, prohibiting preference by a carrier 
 to persons, firms, or corporations, and to localities and traffic, 
 and complain on account of it/ Trade centers, or large com- 
 mercial towns, are not, as a matter of right, entitled to have more 
 favorable rates than the smaller towns for which they form dis- 
 tributing centers ; and if carriers shall give to such smaller towns 
 rates as favorable as to the larger, the commission will not inter- 
 
 ' Re Mallory, 1 Inters. Com. Rep. 294. 
 
 ^Ilwaco B. & Nav. Co. v. Oregon Short Line & U. N. R. Co. 57 Fed, Rep. 673. 
 
 '^ Rice V. Cincinnati, W. & B. B. Co. 3 Inters. Com. Rep. 841. 
 
 ■* Hozier v. Caledonian B. Co. 24 L. T. 339, 1 Nev. & M. 27; Jones v. Eastern 
 Counties B. Co. 3 C. B. N. S. 718, 1 Nev. & McN. 45; Nicholson v. Great 
 Western R. Co. 5 C. B. N. S. 366; Richardson v. Midland R. Co. 4 Ry. & 
 Canal Traffic Cas. 1; Girardot v. Midland R. Co. 4 Ry. & Canal Traffic 
 Cas. 291. 
 
 * Oreoon Short Line & U. N. R. Co. v. Northern P. R. Co. (C. C. App. 9th C.) 
 eiFed. Rep. 158.
 
 BLANKET OK GliOUP KATE PKEFERENCE GIVEN, ETC. 715 
 
 fere.' It is not ground of complaint against a railroad that it 
 equalizes its rates as between small and large towns, even though 
 the effect may be prejudicial to the large towns which before had 
 been specially favored." 
 
 The fact that one city is much larger and has more important 
 and extensive business interests than another and has been treated 
 by the carriers in making rates to surrounding points as a " trade 
 center," is no justification for a continuation of discriminatory 
 rates in favor of such city. The ol)ject of the Act to Regulate 
 Commerce was to eradicate the existing system of rebates and 
 unjust discrimination in favor of particular localities, special en- 
 terprises and favored individuals. 
 
 Unjust discrimination as between localities or individuals can- 
 not, in the nature of things, be essential to the business pros2:)erity 
 of the carrier, and it is no valid objection to the correction of un- 
 lawful rates to one point that it involves a like correction as to 
 other points.' A tariff naming a rate from one locality lower 
 than that enjoyed by its neighbor, when the circumstances are 
 the same, tenders a preference or advantage to the first ; and 
 when any shipper is damaged by the exaction of an additional 
 burden the preference becomes undue and unreasonable, unless it 
 can be justified upon some sound and substantial ground." What 
 amounts to an undue preference is a question of fact and not of 
 law.' When a railroad company in establishing its charges on 
 the different branches of its road so adjusted them as to divert 
 trade and business to one locality, such uni-easonable preference 
 for one place is not excused by the fact that the rates are the re. 
 suit of competition with other carriers. An advantage given to 
 a competing town on the main line must not be unreasonable/ 
 
 > Martin v. Chicago, B. <& Q. B. Co. 2 Inters. Com. Rep. 33. 
 
 * Crews V. Richmond & D. R. Co. 1 Inters. Com. Rep. 703. 
 
 2 Board of Trade of Troy v. Alabama Midland R. Co. 4 Inters. Com. Rep. 
 349. 
 
 *Re Tariffs of the Transcontinental Lines, 2 Inters. Com. Rep. 203. 
 
 5 Diphwys Casson Slate Co. v. Festiniog R. Co. 2 Nev. & McN. 73, 32 L. T. N. 
 S. 271; Watkinson v. Wrexham, Etc. R. Co. 3 Nev. & McN. 5; Denaby Main 
 Colliery Co. v. Manchester, 8. & L. R. Co. 3 Nev. & McN. 441. ■ 
 
 « Raymond v. Chicago, M. & St. P. R. Co. 1 Inters. Com. Rep. 627.
 
 716 TJNJDST DISCKIMINATION. 
 
 The right of one locality to equal rates with another is not dimin- 
 ished by municipal subscriptions for the building of the road.' 
 
 The Board of Trade of Eau Claire, "Wis., claimed that the Chi- 
 cago, Milwaukee & St. Paul Railway Company and others did 
 not discriminate justly as to rates between places practically equi- 
 distant and relatively small, but differing as to favorable commer- 
 cial conditions. The commission held that there should be 
 substantial similarity of rates as to such places, unless other qual- 
 ifying circumstances intervene to justify disparity. Commis- 
 sioner Knapp, in the opinion of the Interstate Commerce Com- 
 mission, says : " That rates should be fixed in inverse proportion 
 to the natural advantages of competing towns with a view to 
 equalizing ' commercial conditions,' as they are sometimes de- 
 scribed, is a proposition unsupported by law, and quite at variance 
 with every consideration of justice. Each community is entitled 
 to the benefits arising from its location and natural conditions, 
 and the exaction of charges unreasonable in themselves, or rela- 
 tively unjust, by which those benefits are neutralized or impaired, 
 contravenes alike the provisions and the policy of the statute.'' ' 
 Had the commission held otherwise, its views would have been 
 manifestly unsound. It would have retarded the healthy growth 
 and prosperity of towns and cities favored by nature above those 
 for the time being in other respects of similar size and conse- 
 quence. The law was intended to secure the just and natural 
 development of all commercial centers alike, and to prevent dis- 
 criminations that would enable communities possessing inferior 
 natural advantages to rival in strength and importance those hav- 
 ing inherent possibilities of a superior order. 
 
 Manufacturing industries should not be deprived, through a 
 carrier's adjustment of relative rates, of advantages resulting from 
 their favorable location in respect of cost of raw material sup- 
 plied from a common source, or of distance to the common market 
 for the finished product.^ 
 
 ' Lincoln Board of Trade v. Burlington & M. R. R. Co. 2 Inters. Com. Rep. 95. 
 ' Eau Claire Board of Trade v. Chicago, M. & St. P. R. Co, 4 Inters. Com. 
 
 Rep. 65. 
 ^ James v. Canadian Pac. R. Co. 4 Inters. Com. Rep. 274.
 
 BLANKET OR GROUP RATE PliEEERENCE GIVEN, ETC. 717 
 
 Where complaint alleges that a greater cliarge, in the aggre- 
 gate, for the transportation of a like kind of property, is made 
 for a shorter than for a longer distance, over the same line in the 
 same direction, the shorter being included in the longer, and that 
 an unlawful preference is thereby given one locality over another, 
 it is held that the complaint is sufficient to put the carriers on 
 proof that the services were rendered under such dissimilar cir- 
 cumstances as to justify the greater charge.' Whether the pres- 
 ent effect or practices complained of as giving undue preference 
 to one town over another by traffic rates be serious or trivial, if 
 they are legally objectionable and may lead to consequences inju- 
 rious to the interests of the complainants, the court should not 
 refuse to interfere. ° 
 
 A town favorably situated with respect to one through route, 
 but competing in a common market with another town more 
 favorably located on another through route, should not have a 
 reduction of the local rate over roads connectino- the two throuo-h 
 routes for the purpose of overcoming the natural advantage which 
 the latter competing town enjoys. A milling town possessing 
 great natural, acquired, and improved advantages for the carry- 
 ing on of that industry, and favorably situate in point of distance 
 to a large grain producing region, is entitled to the benefits aris- 
 ing from its location ; and carriers of grain to that point and to a 
 competing town considerably more remote from points of produc- 
 tion and in other particulars less advantageously located are not 
 justified in making rates on grain to the competing towns which 
 destroy the advantage the former is entitled to enjoy.* 
 
 The Act to Regulate Commerce, § 2, forbidding unjust dis- 
 criminations, applies even in cases where a departure from the 
 ^' long and short haul rule " of the statute is shown to be author- 
 ized ; and the right, if established, of making the greater charge 
 for the shorter haul, does not justify a disparity in rates so great 
 
 ' San Barnardino Board of Trade v. Atchison, T. & S. F. R. Co. 3 Inters. 
 
 Com. ^ep. 138. 
 2 Liverpool Corn Trade Asso. v. London & N. W. B. Go. [1891] 1 Q. B. 120. 45 
 
 Am. & Eng. R. Cas. 216. 
 2 Ghamber of Gommerce of Minneapolis v. Oreat Northern R. Co. 4 InteTs. Com. 
 
 Rep. 230.
 
 '?18 UNJUST DISCKIMINATIOW. 
 
 as to result in unjust discrimination. The facts that tiie rates to 
 the longer distance point cannot be raised without a loss of the 
 traffic involved, and that the rates to both the longer distance 
 point and the shorter distance point are not unreasonable in them- 
 selves, do not justify a disparity in such rates resulting in unjust 
 discrimination as against the shorter distance point. Competition 
 at St. Paul with sugar from the east refined in New York, al- 
 though necessitating low rates to St. Paul on sugar from the west 
 refined at San Francisco, does not justify a greater charge on the 
 latter to Fargo than to St. Paul.' 
 
 A railroad company making a scale of charges for the carriage 
 of coal, from two points respectively to various places, the effect 
 of which is to diminish the natural advantages which the dealers 
 at the second point possess over those at the first point — from 
 their greater proximity to those places — by practically destroying 
 in the matter of expense of carriage in favor of the latter, a cer- 
 tain portion of the distance between the first point and tliose 
 places, — gives an undue preference to the dealers at the first 
 point over those at the second point." The proposition of the 
 law seems to be that, wliere the circumstances and conditions of 
 two localities are substantially similar, there shall be no advantage 
 or preference given to one which is not also freely offered to the 
 other. To give an advantage or preference, under such circum- 
 stances, to one place would be undue, or, in other words, would 
 be giving to the favored locality an advantage, which did not oi 
 right belong to it, and producing an undue prejudice against the 
 other locality.' 
 
 The " long and short haul rule " of the statute was intended 
 to maintain and promote, and not to destroy or neutralize, natural 
 commercial advantages resulting from location." When the rea- 
 sonableness of rates is in question, charges on long through lines 
 cannot offer a just basis for comparison with local rates for rela- 
 
 ' Raworth v. Northern Pac. R. Co. 3 Inters. Com. Rep. 857. 
 ^ Ramsome v. Eastern Counties R. Co. 4 C. B. N. S. 135. 
 
 * Anthony Salt Co. v. Missouri Pac. R. Co. 4 Inters. Com. Rep. 33. 
 
 * Raworth v. Nortliern Pac. R. Co. supra.
 
 BLANKET OK GROUP KATE PKEFEKEJ^CE UIVENj ETC. 719 
 
 tiv^ely short distances.' The apportionment of rates to different 
 parts of a through line do not determine the charge to the public, 
 but may be significant on the question of reasonable rates for the 
 whole distance." An unreasonable adjustment of joint rates for 
 through transportation may constitute an unreasonable discrimina- 
 tion against local traffic' 
 
 The provisions of the Interstate Commerce Law against undue 
 discriminations in rates cannot be evaded by billing cars first to 
 one point on the line of a railroad, and rebilling them to another 
 point thereon at a different rate,^ A railroad company violates 
 the Interstate Commerce Law by forwarding grain from Nebraska 
 through Iowa to Chicago, Illinois, at a less rate than it charges to 
 Chicago from points in Iowa through which the grain from Ne- 
 Ijraska passes, although the grain from Nebraska is technically to 
 be delivered at points in Illinois some distance from Chicago.* 
 Any advantages which inure to Micliigan salt manufacturers as 
 against those of Kansas, from rates to points in Iowa, Illinois, 
 Missouri, and Nebraska, are advantages arising from natural situ- 
 ation ; and a low rate to Missouri river points is influenced by 
 water competition and also by the heavy preponderance of east 
 bound freight over west bound freight. The advantages of dis- 
 tance belonging to Kansas salt fields as against those of Michigan 
 should be given to them by a carrier in any territory supplied by 
 its lines which lies as near, or nearer, to Hutchinson as to St. 
 Louis.' Any greater charge for the transportation of like kind 
 of property from seaboard points to Chattanooga than for the 
 longer distance through Chattanooga to Nashville is in violation 
 of the Act to Regulate Commerce, § 4.'' Kates on wheat from 
 
 ' Creics V. Richmond & R. Go. 1 Inters. Com. Rep. 703. The principles laid 
 down in this case restated and reaffirmed in Martin v. Chicago, B. cD Q. R. 
 Co. 2 Inters. Com. Rep. 33. 
 
 ^ Brady v. Pennsylvania R. Co. 2 Inters. Com. Rep. 78. 
 
 3 United States v. Tozer, 2 Inters. Com. Rep. 597. 
 
 4 Osborne v. Chicago & N. W. R. Co. 48 Fed. Rep. 49, 49 Am. & Ener. R. Cas. 12. 
 ^JunodY. Chicago & N. W. R. Co. 3 Inters. Com. Rep. 663, 47 Fed. Rep. 
 
 290. ^ 
 ^Anthony Salt Co. v. Missouri Pac. R. Co. 4 Inters. Com. Rep. 33. 
 '' Board of Trade of Chattanooga v. East lennessee, V. & G. R. Co. 4 Inters. 
 
 Com. Rep. 218.
 
 7'-20 UNJUST BISClilMINATION. 
 
 points in North and South Dakota to Minneapolis should be ad- 
 justed upon the basis of distance over nearest practicable routes.' 
 An arbitrary differential added to the rates from Chicago to New 
 York to make the rate to Boston was held improper, and a per- 
 centage was ordered to be substituted, instead of the arbitrary 
 sum.^ 
 
 Where unreasonableness of freight rate on oil in carload lots is 
 charged on short local hauls, — for example, from Titusville, Penn- 
 sylvania, to Buffalo, New York ; and the charge is attempted to 
 be sustained on a comparison of these rates with rates on what is 
 usually an inferior grade of oil transported from Titusville, through 
 Buffalo, to Perth Amboy, New Jersey, for export, chiefly in the 
 cars of another company ; and it appears that upon such ship- 
 ments destined to Buffalo there are expensive terminal charges, 
 while upon such shipments to Perth Amboy these terminal charges 
 are far less considerable, — the circumstances and conditions which 
 control the making of the rates in each instance are substantially 
 dissimilar.^ Discrimination in freight rates from Chicago to New 
 York cannot be accomplished by a railroad company, either by 
 applying a 22 cent through rate to freight originating west of 
 Chicago on roads not in the arrangement, and to which is paid 
 more than their ^yo rata share of such rate to New York, or by 
 applying such rate to grain in store, by paying a " drawback " or 
 "expense bill" based upon the fiction that the grain was still in 
 transit, on the 22 cent rate, thus bringing the shipper's rate from 
 Chicago to New York down to 18.2 cents, instead of the regular 
 20 cent rate." 
 
 The cost of the production of pig iron at a furnace situated on 
 the Hudson river in the state of New York is much greater than 
 at Youngstown, Ohio, or Birmingham, Alabama, or at other 
 points in the west and south ; and while the aggregate rate charged 
 from Hudson furnace to New England mill is a great deal lower 
 than the aggregate rate charged on the western and southern irons 
 
 ' Chamber of Commerce of Minneapolis v. Great Northern B. Co. 4 Inters. 
 
 Com. Rep. 230. 
 ' Toledo Produce Exch. v. Lake Shore & M. 8. R. Co. 3 Inters. Cora. Rep. 830. 
 3 Rice V. Western New York <& P. R. Co. 2 Inters. Com. Rep. 298. 
 ■• United /States v. Micliigan Cent. R. Co. 3 Inters. Com. Rep. 287.
 
 BLANKET OR GROUP RATE — PREFERENCE GIVEN, ETC. 721 
 
 to the same mills, yet it is not sufficiently so to overcome the dif- 
 ference in the cost of production ; and the consequence is that the 
 Hudson furnace finds itself at a serious disadvantage in competing 
 with these western and southern irons in the markets and mills 
 of the New England states where there is a very great demand 
 for this class of property. But the commission has no power 
 or authority to order other carriers not parties to the proceeding 
 to raise their rates on pig iron transported from Youngstown and 
 ■Cleveland, Ohio, to New England points in order to overcome 
 the difference in the cost of production of pig iron now existing 
 against the Hudson furnace ; nor would the commission enter 
 upon the consideration of any such subject in a proceeding to 
 which such carriers were not parties and in which such localities 
 sought to be burdened with higher rates, for example, Youngs- 
 town and Cleveland, Ohio, had no opportunity to be heard ; and 
 the findings of fact in the present proceeding, which show that 
 the rates already charged the Hudson furnace by the defendants 
 .are in themselves, as well as relatively, just and reasonable rates, 
 demonstrate that the commission could not order the defendants 
 to lower these rates from Poughkeepsie to all points on the Bos- 
 ton & Albany Road one half, and to Holyoke nearly one half, in 
 order to overcome the difference in the cost of production of pig 
 iron now existing against the Hudson furnace.' 
 
 The board of trade of Chicago appeared before the Interstate 
 Commerce Commission charging certain railway companies with 
 unjust discrimination and giving undue advantage to a particular 
 locality or description of traffic. Certain propositions of fact estab- 
 lished by the evidence in this proceeding may be briefly stated as 
 showing the character of the case and also on account of the light 
 they tlirow upon the conclusions reached by the commission. The 
 city of Chicago is the largest pork packing center in the country 
 and is also the most extensive market for live hogs and all other 
 live stock. Kansas City, Leavenworth, St. Joseph, Atchison, 
 Omaha, Council Bluffs, Sioux City, Sioux Falls, Des Moines, Du- 
 buque, ' Burlington, Cedar Eapids, Marshalltown, Fort Dodge, 
 
 ' Poughkeepsie Iron Co. v. New York Cent. <& H. R. B. Co. 3 Inters. Com. Rep. 
 248. 
 46
 
 722 UNJUST DISCRIMINATION. 
 
 Keokuk, Grinnell, Otturawa, and many other points that mifyht 
 be named in the interior of Iowa, are extensive pork packing cen- 
 ters, and the liog products packed at these cities are brouglit into 
 direct competition with the hog products packed at Chicago, not 
 only in the markets of the United States, but also in all other 
 markets of the world where hog products are consumed. As 
 articles of commerce the live hog and its product are in direct 
 couipetition with each other at the points named and in the chief 
 markets of this country. From Sioux City to Mississippi river 
 points, and from Sioux City to eastern markets and seaboard cities 
 via Mississippi river points, the rates are made considerably higher 
 by the carriers on live hogs than on packing house product. 
 With, however, the single exception of Sioux City, rates are made 
 the same by rail carriers on live hogs and packing house product 
 carried from Missouri river points to Mississippi river points, or 
 from Missouri river points to eastern markets and seaboard cities 
 via Mississippi river points, or from intermediate points in the 
 states of Iowa and Missouri to Mississippi river points, or from 
 intermediate points in Iowa and Missouri to eastern markets and 
 seaboard cities via Mississippi river points, or from Chicago to 
 eastern markets and seaboard cities and intermediate points. But 
 upon all shipments of live hogs and packing house product fi"om 
 Missouri river points to the city of Chicago, or from intermediate 
 points in the states of Iowa and Missouri to Chicago, the rate 
 charged is much higher on live hogs than on packing house pro- 
 ducts. 
 
 The foregoing propositions of fact being true, the defendants 
 and interveners undertook to justify the discrimination made 
 against Chicago upon various grounds, which, with the view of 
 the commission upon each, may be briefly stated. They claim 
 that trains carrying live hogs had the right of way over other 
 freight trains and were run at a higher rate of speed on account 
 of reaching the market at Chicago. But the evidence adduced 
 did not show that this was of a nature and character that war- 
 ranted the discrimination made in rates against Chicago. They 
 also claim that there was mnch greater risk to the carrier in haul- 
 ing live hogs than in transporting packing house product, but
 
 BLANKET OK GKOUP KATE PREFERENCE GIVEN, ETC. 723 
 
 the evidence showed that there was no appreciable difference in 
 the risk of can-jing the one as compared with the other. They 
 further claim that it is more expensive to the carrier to haul live 
 hogs than packing house jsroducts to Chicago. But the evidence 
 did not sustain this ground of defense. They claim, and the evi- 
 dence showed it to be true, that the lines of railway east of the 
 Mississippi river and east of Chicago used double-deck cars for 
 transporting live hogs, while the railway lines west of Chicago 
 and between Missouri river points and Mississippi river points 
 and Chicago, with the exception of the Chicago, Milwaukee & 
 St. Paul Railway Com]3any and the Atchison, Topeka & Santa 
 Fe Railway Company, used single-deck cars, and that the two 
 exceptional roads last named had but few double-deck cars. But 
 this was found to constitute no justification for this discrimina- 
 tion in rates against Chicago. They claim that, counting coal, 
 cooperage, salt and ice used in packing house work, live hogs 
 brought in and packing house product carried out, the slaughter- 
 ing of hogs at the packing houses at Missouri river points and in 
 the interior of Iowa and Missouri furnished the rail carriers more 
 tonnage than if the live hogs were transported to Chicago and 
 converted into packing house product there. But this was not 
 found to warrant the discrimination in rates made against Chi- 
 cago. 
 
 By some it was insisted that as the rate on the live hogs from 
 Missouri river points and from points in the interior of the state 
 of Iowa, for example, to the packing house at Sioux City, added 
 to the rate on packing house product from the packing house at 
 Sioux City to Chicago, is but a trifle more than the rate on the live 
 hogs from the first point of shipment above named to Chicago, 
 that this equalized the rates relatively on live hogs and hog prod- 
 uct. But the commission finds that there is no element of justice 
 or fairness in making or computing rates upon any such basis as 
 this, and that it constitutes no ground whatever for these discrim- 
 inating rates against Chicago. The interveners insist that there is 
 a considerable shrinkage of the live hogs in being transported in 
 cars long distances, and further claim that the meat is in better 
 condition when converted into product near where the hogs are
 
 724 UNJUST DISCEIMINATION. 
 
 reared and fresh than if this is done after the hogs are transported 
 a long distance, and that therefore public considerations demand 
 that the live hogs should be converted into product near where 
 they are grown. But the commission finds that while there is a 
 temporary shrinkage of from three to five per cent in the weight 
 of a hog from Missouri river points and interior points in the states 
 of Iowa and Missouri in a liaul to Chicago, yet that the transpor- 
 tation business of the country has demonstrated that live hogs 
 may, as articles of commerce, be transported great distances with- 
 out any material injury or loss in value, and that neither these 
 considerations separately nor both combined upon the evidence 
 adduced furnish any ground for these discriminating rates against 
 Chicago. 
 
 The intervenors also defend these discriminating rates against 
 Chicago on the ground of immense investments of capital that have 
 been made in the establishment of packing houses at Missouri river 
 points and in the interior of Iowa and Missouri on the faith of these 
 rates, which give employment to a large number of persons; that 
 the business in these states has adjusted itself to this condition of 
 affairs, and that now to make the changes in these rates claimed 
 by petitioner would break up and ruin these packing houses. 
 But upon the evidence the commission is unable to find that the 
 j)referential rates given to these large establishments in Iowa and 
 Missouri and at Missouri river points as well as in other portions 
 of the country are reasonable and just when compared with the 
 heavy discriminations laid upon the packers and buyers of 
 Chicago. A business like that involving the preparation for con- 
 sumption of such a large and leading staple and necessary of life 
 as meat, with all the competition that exists for it in different and 
 competing localities, brought near to each other by the fast rail 
 lines of the country, is too large to be done in a corner, and is a 
 conspicuous instance of a commodity that requires at the hands of 
 carriers rates that are not only reasonable and just in themselves, 
 but relatively reasonable and just in their bearing upon these dif- 
 ferent localities.' 
 
 ' Board of Trade of Chicago y. Chicago & A. R. Co. 3 Inters. Com. Eep. 233.
 
 BLANKET OK GROUP RATE PREFERENCE GIVEN, ETC. Tl^S 
 
 Upon investigation had in a proceeding instituted by the 
 commission on its own motion, it appeared that the respond- 
 ent had in force over its line to Nashville a special rate on 
 coal when used for manufacturing purposes bj persons named 
 upon the manufacturers' lists prepared by the railroad company. 
 These lists were furnished to dealers who, on selling coal to such 
 manufacturers, issued certificates which entitled them to obtain a 
 refund from the railroad company amounting to the difference 
 between the regular and special rates. Pending investigation the 
 respondent discounted the " manufacturers rate " and put in force 
 a new coal tariff to Nashville whereby coal, "run of mines, nut 
 and slack," is given a rate of $1.00 per ton the year round, and 
 "screened" coal a rate of $1.15 per ton, April to September, and 
 for the remainder of the year a rate of $1.40 per ton. The rate 
 from the same mines to Memphis, a point affected by water com- 
 petition for coal traffic, is $1.40 per ton on all coal the year round, 
 and respondent buys coal at the mines and sells it in the Memphis 
 market. Under these conditions the commission declared that the 
 practice abandoned by the respondent common carrier of arbitrarily 
 determining what persons should receive the so-called " manufac- 
 turer's rate " was a clear violation of the Act to Eegulate Com- 
 merce; that the rate of $1.00 per ton charged by respondent upon 
 coal, " run of mines, nut and slack," is not unreasonably low, nor 
 disproportionate to the rate of $1.40 per ton to Memphis ; neither? 
 in view of circumstances affecting coal traffic at Memphis, is a 
 rate of $1.15 on screened coal to Nashville relatively unreasonable 
 as compared with the Memphis rate, but so long as the Memphis 
 rate does not exceed $1.40, rates on said kinds of coal from the 
 mines to Nashville should not during any portion of the year ex- 
 ceed $1.00 or $1.15, respectively, and any reduction in the 
 Memphis rate should be accompanied by proportionate reductions 
 in rates on said different kinds of coal to Nashville.' 
 
 The furnishing of free cartage by a railroad company at one 
 place a^id not at another cannot be justified as analogous to the 
 providing of a switch track for the benefit of customers whose 
 
 1 Be Louisville & N. R. Co. 4 Inters. Com. Rep. 157.
 
 726 UNJUST DISCKIMINATION. 
 
 storehouses are convenient to the railway track, since the latter is 
 usuiil railway business while cartage is something not usually un- 
 dertaken by railways. The fact that one city is a larger place 
 than another does not create different circumstances and conditions 
 which will justify a railroad company in furnishing free cartage 
 for goods transported by it in the former and not in the latter, 
 though it may reduce the cartage cost to tlie shipper at the for- 
 mer place in so far as the greater amount of business enables it to 
 do carting at a cheaper rate than at the latter place. That the 
 competitoi's of a railway company have their stations in a certain 
 place in the business center, while its own is at a distance, does 
 not create a dissimilar condition which will allow such company 
 to furnish free cartage of goods while at another station it does 
 not do so, if it would justify it in furnishing cartage at a price equal 
 to that for which cartage can be obtained from the stations of 
 such competitors.' It is not material to the question of the law- 
 fulness of free cartage furnished at one town and not at another, 
 that the business was done in that way for many years before the 
 Act to Regulate Commerce was enacted. ° 
 
 The doctrine that transportation charges should be propor- 
 tioned to the distances between different points, where those dis- 
 tances are greatly dissimilar, has never been advocated by the 
 railroads or recommended by the commission. While distance 
 is an ever present element in the problem of rates and not unf re- 
 quently a controlling consideration, the general practice of rate 
 making is opposed to the princi^Dle of exact proportion. It may 
 be the rule to which tariff construction will sometimes approxi- 
 mate, but to fix the rate for a thousand miles at twice the sum 
 prescribed for half the distance would be most arbitrary and in- 
 tolerable. AVhere all the distances brought into comparison are 
 considerable, and the differences between them relatively small, 
 there should be substantial similarity in the respective rates, un- 
 less other modifying circumstances justify disparity.^ Kates that 
 
 ' Intemtate Commerce Commmion v. Detroit, O. U. & M. R. Co. 4 Inters. Com. 
 
 Rep. 722, 57 Fed. Rep. 1005. 
 « Stone V. Detroit, G. H. & M. R. Co. 3 Inters. Com. Rep. 60. 
 8 Eau Claire Board of Trade v. Chicago, M. & St. P. R. Co. 4 Inters, Com. 
 
 Rep. 05.
 
 BLANKET OR GROUP RATE PREFERENCE GIVEN, ETC. 727 
 
 are just and reasonable from selected manufacturing points 
 throuo;li the entire territory east of Missouri river and west of the 
 Atlantic seaboard, are prima facie just and reasonable from all 
 other points in the same territory.' The commission refuses to 
 determine the relative reasonableness of rates at many stations, 
 and in a large extent of territory, upon the mere face of tariffs, 
 and without further proof.* 
 
 The fact that different rates and classifications are in force in 
 different sections of the country will not of itself, without proof 
 of unlawful discrimination or disadvantage or of unreasonably 
 high rates, warrant an extension of the lower rate and classifica- 
 tion to the section where the higher rate and classification are ap- 
 plied.' Competition of market with market, although it may not 
 be so direct in its effect as competition of carrier with carrier, may 
 constitute a part of the circumstances and conditions which a car- 
 rier can consider in fixing rates for the transportation of goods.* 
 A higher rate may be maintained to a branch line point off a 
 direct through line, without unjust discrimination.* A railroad 
 cannot be said to discriminate against a town which it does not 
 reach and in whose carrying trade it does not participate.'' That 
 a, railroad company has at one point on its line issued through 
 bills of lading to points beyond its own line confers no right on 
 shippers at another point to demand that like bills of lading be 
 issued to them.' It is often impracticable to establish different 
 rates on the same commodity from practically the same locality 
 to the same market, although the distances vary.* 
 
 The circumstances and conditions in the carriage of flour to 
 
 ^Be Tariffs of the Transcontinental Lines, 2 Inters. Com. Rep. 203. 
 
 * Spartanburg Board of Trade v. Richmond & D. R. Co. 2 Inters. Com. Rep. 
 
 193. 
 ^F. Schumacher Mill. Go. v. Chicago, R. I. & P. R. Co. 4 Inters. Com. Rep. 
 373. 
 
 * Interstate Commerce Com. v. Cincinnati, N. 0. & T. P. R. Co. 4 Inters. Com. 
 
 Rep. 333. 
 
 * Lehmann v. Texas & P. R. Co. 3 Inters. Com. Rep. 706. 
 
 ^ Eaii Claire Board of Trade v. Chicago, M. & St. P. R. Co. 4 Inters. Com. 
 
 Rep. 65. 
 '' Coles V. Central R. & Bkg. Co. 86 Ga. 251, 45 Am. & Eng. R. Cas. 328. 
 
 * Coze V. Lehigh Valley R. Co. 3 Inters. Com. Rep. 460.
 
 728 UNJUST DISCRIMINATION. 
 
 "New York are substantially dissimilar at Boston and Readville, 
 an interior town about 8 miles from Boston, on the line of the all- 
 rail cari'iers, where no competition exists between the all-rail car- 
 riers and the water lines, and justifies the all-rail carriers in meet- 
 ing the water rate at Boston by a joint through rate which is less 
 from IS^ew York to Boston than the combined local rates to Read- 
 ville/ The "blanket rate," by which the same rate is charged 
 by all-rail lines from New York city and all points in the oil pro- 
 ducing regions in Pennsylvania, Ohio, and West Virginia, and all 
 the territory in the United States east of the 97th meridian of 
 longitude, in the carriage of petroleum and its products, to San 
 Francisco, Oakland, Sacramento, Stockton, Marysville, San Jose, 
 Los Angeles, and San Diego, in the state of California, is a rate 
 that has its origin in and is based upon actual competition for the 
 carriage of this large traffic, on the one side by the all-rail lines,, 
 and on the other side by the lines part rail and part water, and 
 also, in some instances, all water-lines, and also, in other instances, 
 part pipe lines and part water lines, and it is not a violation of 
 the Act to Regulate Commerce, § 4." A group rate for a partic- 
 ular distance, upon a commodity for which a large demand exists, 
 and intended to place producers in the district upon an equality 
 among themselves and with producers of the same commodity 
 from other districts, all competing in a common market, is not 
 unlawful merely on account of differences in the geographical lo- 
 cation of different producers and their respective distances from 
 the market.^ Actual undue prejudice or damage of which the 
 rate is the cause must result to the more favorably situated pro- 
 ducers, to render a group rate unlawful." 
 
 Under exceptional circumstances requiring through * rates -y^'tt 
 Chicago westward from points in a coal mining district extending 
 across the whole state of Illinois, which is properly treated as one 
 point in making rates, shippers locally, from Chicago, of Ohio 
 
 ' King v. Mw York, W. H. & H. R. Co. 3 Inters. Com. Rep, 272. 
 
 « Rice V. Atchison, T. & 8. F. R. Co. 3 Inters. Com. Rep. 263. 
 
 3 Imperial Coal Co. v. Pimbiirg & L. E. R. Co. 2 Inters. Com. Rep. 430; Hoioell 
 
 V. New York, L. E. & W. R. Co. 2 Inters. Com. Rep. 162. 
 *■ Imperial Coal Co. v. Pittsburg & L. E. R. Go. supra.
 
 BLANKET OK GKOUP KATE PKEFERENCE GIVEN, ETC. 72& 
 
 and Pennsylvania coal, cannot justly insist upon rates no higher 
 than the division of such through rates which ajDpertains to the 
 lines running northwest from that city, — the circumstances under 
 which the through rate is made being such that it cannot be dif- 
 ferently adjusted. A reduction of their rates on that basis would 
 involve either a general reduction from the entire group, under 
 the short haul clause of the Interstate Commerce Law, or an 
 abandonment by defendant of the through rates in question,, 
 neither of which would benefit complainant, while both would 
 do great injury to all other interests involved. Under such 
 circumstances the preference is not undue, nor is the advantage 
 complained of unreasonable. Group rates may be properly made 
 from a large number of mines practically composing a coal mining 
 district extending across the state of Illinois, to points in western 
 Wisconsin, Minnesota, and Dakota, the distance from each part 
 of the group by some route being substantially a fair equivalent 
 of the distance from other points, and the commercial necessities 
 being substantially the same for all. The group rate established 
 from a coal mining district extending across the whole state of 
 Illinois is properly extended to coal shipped to the same territory 
 locally from Chicago, or by way of Chicago from mines in the 
 eastern part of the group, on account of the operation of § 4 of 
 the Interstate Commerce Act, some of the lines passing through 
 the mining district en route from Chicago to the points of dis- 
 tribution.' 
 
 A uniform rate upon milk destined for New York city from 
 all stations within 200 miles upon railroads running through the 
 southern counties of New York, west of the Hudson river to Jer- 
 sey City, is not an unjust discrimination in favor of more distant 
 shipping points, as against those nearer the common terminus.'' 
 In the determination of a complaint of undue preference against 
 Lincoln, Nebraska, in favor of Omaha, in rates from St. Louis, 
 the comparative length of the two pieces of road, the grades, 
 crossings, and bridges, the interest upon the cost, and the facilities 
 with whicli trains may be handled, must be considered, besides 
 
 ' Eend v. Chicago & N. W. R. Go. 2 Inters. Com. Rep. 313. 
 
 « Howell V. New York, L. E. dc W. R. Co. 2 Inters. Com. Rep. 162.
 
 730 UNJUST DISCRIMINATION. 
 
 the mere volume of business.' There is no unjust discrimination 
 in charging more to Boston than to New York in rates from Chi- 
 cago,'^ The fact that a low rate from St, Louis is forced upon 
 the Missouri Pacific by competition at Omaha cannot be taken 
 advantage of to compel a corresponding reduction upon its Lincoln 
 branch.^ 
 
 The action of the Grand Trunk Railway Company of Canada 
 in transporting coal and coke under a schedule specifying a total 
 rate of $1 per ton from Buffalo, Black Rock, and Suspension 
 Bridge, in the United States, to Hamilton, Dundas, and several 
 other points in Canada, — the published tariff rate, — but accepting 
 a reduced charge, or allowing a rebate of 25 cents a ton, in favor 
 of certain consignees at Hamilton, Dundas, and other points in 
 Canada, — is in violation of the Act to Regulate Commerce, and 
 unlawful.'' And a higher rate on coal from Providence than from 
 East Providence is an unjust discrimination, and under the cir- 
 cumstances it is not permissible to make an additional charge be- 
 cause of inconvenience attending transaction of business at East 
 Providence.^ 
 
 The danger from transportation of oil to "Washington through 
 the city of Pittsburg is not sufficient to justify a rate of 50 cents 
 per barrel as against 40 cents for an equal distance to other 
 places. "^ Transportation charges are required to be relatively rea- 
 sonable as well as reasonable in themselves, to prevent unjust dis- 
 crimination between localities. A locality not widely dissimilar 
 in situation and in respect of the transportation service of the 
 same carrier to other localities where lower rates are given, is en- 
 titled to rates that bear a just relation to the lower charges made 
 Equality in charges is required under circumstances and condi- 
 tions substantially similar, and relative equality is necessary in 
 the degree of similarity. When a carrier engages in transporta- 
 
 ' Lincoln Board of Trade v. Missovri Pae. R. Co. 2 Inters. Com. Rep. 98. 
 
 * Boston Chamber of Commerce v. Lake Shore & M. 8. R. Co. 1 Inters. Com. 
 
 Rep. 754; Re Export Trade of Boston, 1 Inters. Com. Rep. 25. 
 ' Lincoln Board of Trade v. Missouri Pac. R. Co. 2 Inters. Com. Rep. 98. 
 " Re Grand Trunk R. Co. 2 Inters. Com. Rep. 496. 
 ^Providence Coal Co. v. Providence & W. R. Co. 1 Inters. Com. Rep. 363. 
 
 * Brady v. Pennsylvania B. Co. 2 Inters. Com. Rep. 78.
 
 BLANKET OR GKOUP KATE PKEFEKENCE GIVEN, ETC. 731 
 
 tion for which, by reason of competitive conditions, or for pur- 
 poses of its own, it receives low rates from some patrons and at 
 some localities, it accepts the legal obligation to give impartial 
 service to other patrons and at other localities that sustain similar 
 relations to the traffic. The generally recognized principle that 
 cost of carriage is in inverse ratio to distance, and that therefore 
 the charge per ton per mile should diminish with distance, is not 
 a rule required by the statute, and is subject to qualifications and 
 exceptions. Upon complaint by dealers at Mankato, Minn., that 
 rates from Chicago to Mankato should be no higher than to 
 Water ville, Minneapolis, and points allowed like i-ates, it was 
 held that in view of the circumstances and conditions existing, a 
 somewhat higher charge to Mankato is not unlawful, but that a 
 difference of twenty per cent or more on the respective classes, 
 charged when the complaint was filed, is excessive, and that a 
 difference of ten j^er cent on the several classes is reasonable and 
 should not be exceeded.' 
 
 No dissimilarity in circumstances or conditions justifying a dis- 
 crimination in rates exists between a shipment of cotton from 
 Mobile to New Orleans by a person who receives it by vessel 
 from Demopolis, Alabama, and a person who receives it from 
 anj other part of Alabama or by rail, where there is no question 
 of a proportion of rates under a joint traffic arrangement. An 
 agreement by a railroad company with other companies within a 
 sj)ecified territory, for the purpose of maintaining a uniform rate 
 upon all shipments of cotton from certain points in Alabama in 
 vessels plying the Alabama rivers and received at Mobile, to be 
 reshipped and transported to New Orleans, to charge a certain 
 sum per bale in excess of its regular rate from Mobile, is no jus- 
 tification of such discriminating charge, and contravenes the In- 
 terstate Commerce Act. A person who receives cotton at Mobile 
 from any particular point on the Alabama rivers, whether it comes 
 by boat or wagon or any other way, and desires to ship it from 
 Mobile to New Orleans by a railroad line, is entitled to have it 
 shipped at the Mobile rate, as much as any person who receives 
 
 ^ Mamifncturers & J. Union v . Minneapolis & St. L. R. Go. 3 laters. Com. 
 Rep. 115.
 
 732 UNJUST DISCKIMINATION. 
 
 his cotton from any other point or who may have bought it at 
 Mobile ; and it is no objection to such right that it would give 
 every town located on such rivers equal facilities and advantages 
 with those of Mobile, as that is the purpose of the Interstate Com- 
 merce Act.' 
 
 A railway company must give equal facilities and similar rates 
 to all persons in receiving and delivering goods.'* In McCoy v. 
 Cincinnati^ I. St. L. & C. R. Co., 13 Fed. Eep. 3, it was held that, 
 a railroad company was bound to transport over its road and de- 
 liver to all stockyards, at a certain point reached by its line, all 
 livestock consigned which shippers desired to consign to them,, 
 upon equal terms and in like manner, and it cannot bind itself to 
 perform this duty for one to the exclusion of another and com- 
 peting yard ; and in Hays v. Pennsylvania Co., 12 Fed. Rep. 
 309, it was held that a railroad, though owned by a corporation, 
 is, in a qualified sense, a public highway constructed for public 
 uses, and everybody constituting part of the public for whose 
 benefit it was authorized is entitled to an equal and impartial par- 
 ticipation in the use of the facilities it is capable of affording. A 
 discrimination in the rates of freight between the same points is 
 unreasonable and unjust. Special tariffs giving different rates to 
 ]3laces named and those not named, to manufactured articles 
 named and those not named, to jobbers at places named and those 
 not named, and to manufacturers and jobbers and other dealers, 
 discriminate and give undue advantages.* 
 
 That a refusal to give a through rate as for one shipment oper- 
 ates prejudicially to the town desiring that privilege does not make 
 the refusal an unjust discrimination, when the carrier applies the 
 same rule to all towns. Discrimination must consist of allowing 
 one party what is denied another. Carrier need not give the 
 mercliants of towns on its line the privilege of shipping their 
 goods from the point of purchase to their own locality and from 
 
 1 Bighee & W. R. Packet Co. v. MobUe & 0. B. Co. 4 Inters. Com. Rep. 829, 
 
 60 Fed. Rep. 545. 
 
 2 Cooper V. London & 8. W. R. Go. 4 C. B. N. S. 738, 27 L. J. C. P. 32i; Bell 
 
 V. London etc. R. Co. 2 Nev. & McN. 185. 
 
 ^ Re Tariffs of Transcontinental Lines, 2 Inters. Com. Rep. 203.
 
 BLANKET OK GKOUP EATE — PKEFERENCE GIVEN, ETC. 733 
 
 tliere to the place of sale of the goods, at the same rate as would 
 have been charged from the point of purchase to the point of 
 ultimate delivery/ The difference between proportions of through 
 rates along the same lines should be fairly reasonable in amount 
 and properly guarded in their application, and not such as to in- 
 jure or suppress business in one locality in order that it may be 
 stimulated and built up in another,'' 
 
 In determining the question of undue prejudice from a rate, 
 distance is only one of the factors, and other material facts — such 
 as character and quality of the commodity, cost of production, ex- 
 tent and nature of the competition in the business itself and by 
 other transportation lines, and the interests of the public in the 
 use of the commodity, and its market cost, — are to be considered.' 
 Under Illinois Statutes (2 Starr & C. p. 1962, § 3) it is not in- 
 cumbent to prove a personal discrimination and a personal injury, 
 as between individuals of a class ; but the offense is made out by 
 proof of a discrimination as between localities/ Rates must be 
 relatively fair and reasonable as between localities in essential re- 
 spects similarly situated, having regard to the geographical posi- 
 tion and relative positions of the localities, so that one will not be 
 favored to the prejudice of the other/ On the question of what 
 are just and fair rates to any particular locality, it is necessary to 
 see what other rates are given to other localities. Low rates to 
 one place may not be just if still lower rates are given to another/ 
 
 The relative reasonableness of rates from western points to 
 Atlantic seaboard is governed by circumstances and conditions 
 effecting traffic to points between which rates are given. The 
 length and character of the haul, the cost of the service, the 
 volume of the business, and the conditions of competition, etc., 
 
 » Crews V. Richmond & D. B. Oo. 1 Inters. Com. Rep. 703. 
 
 * Milwankee Chamber of Commerce v. Flint & P. M. B. Co. 2 Inters. Com. Rep. 
 
 393. 
 ' Imperial Coal Co. v. Pittsburg <& L. E. B. Co. 2 Inters. Com. Rep. 436. 
 
 * Illinois Cent. B. Co. v. People, 121 111. 304. 
 
 * Detroit B^ard of Trade v. Grand Trunk B. Co. 2 Inters. Com. Rep. 199; Mil- 
 
 waukee Chamber of Commerce v. Flint & P. K. B. Co. 2 Inters Com. Rep, 
 393; Be Tariffs of Transcontinental Lines, 2 Inters. Com. Rep. 203, 
 *Be Chicago, St. P. & K. C. B. Co. 2 Inters. Com. Rep. 137,
 
 73i UNJUST DISCKIMINATION. 
 
 are elements bearing upon such charges.' A system of rates made 
 by a number of carriers, covering a widely extended territory, and 
 relatively fair and reasonable in themselves, will not be ordered 
 by the Interstate Commerce Commission to be changed at one im- 
 portant point, thereby rendering other changes unavoidable at 
 other points and throwing the entire system into confusion, unless 
 this is necessary to be done in order to enforce compliance with 
 the law.^ 
 
 § 12 Jf. Discrimination between Shippers— Reh ate. 
 
 In some of the cases it is said that upon the question whether 
 the common law requires the common carrier to transport goods 
 upon equal terms to all, or whether it only requires that the rate 
 shall be reasonable but not necessarily equal to all, the courts of 
 England and America have decided differently/ The Supreme 
 Court of California has declared that at common law an action 
 will lie against a common carrier for an unreasonable and excess- 
 ive freight charge, but not for a mere discrimination in favor of 
 another shipper/ The same rule is declared in Avinger v. South 
 Carolina R. Co. 29 S. C. 265, although this was not necessary to 
 the decision, which was that a carrier cannot discriminate between 
 shippers in taking freight for transportation. In Fitchhurg R. 
 Co. V. Gage, 12 Gray, 393, it is said that the common law requires 
 equal justice to all but the equality is in a right to a reasonable 
 compensation, and that, "for specitied reasons in isolated cases" 
 the carrier may give lower rates to one than to another. So in 
 Sfofford V. Bodo7i & M. R. Co. 128 Mass. 320, substantially the 
 same doctrine is held under the Massachusetts statute requiring 
 " reasonable and equal terms," and it is held that one purchasing 
 a season ticket at an established and reasonable price cannot com- 
 
 ' BoKion Chamber of Commerce v. Lake Shore & M. S. R. Co. 1 Inters. Com. 
 
 Kep. 154. 
 2 Detroit Board of Trade v. Grand Trunk R. Co. 2 Inters. Com. Rep. 199. 
 2 Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684. 
 * Cowden v. Pacific Coast 88. Co. 18 L. R. A. 221, 94 Cal. 470. This right I^ 
 
 also alleged to exist in Johnson v. Pensacola & P. R. Co. 16 Fla. 623, 20 Am. 
 
 Rep. 731; Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684; Mcnacho v. Ward, 
 
 27 Fed. Rep. 529; Ex parte Benson, 18 S. C. 38, 44 Am. Rep. 564.
 
 DISCKIMINATION BETWEEN SHIPPERS REBATE. 735 
 
 plain because for special reasons not disclosed such tickets are sold 
 to certain persons at a less price. 
 
 The fact that a trader has access to a competing route for the 
 carriage of goods may be taken into consideration by the English 
 Railway Commissioners or the court, in determining whether 
 lower rates charged him by a railway company constitute an un- 
 due preference within the English Railway & Canal Traffic Acts 
 of 1854 and 1888, giving a right of action to one injured by such 
 preference.' Different rates may be charged where shippers 
 own private side ti*acks and return cars more promptly.' A dif- 
 ference in the cost of service will justify a carrier in making a 
 reasonable difference in its rates. ^ The difference in rates must 
 bear some proportion to the difference of the cost to carriers.* 
 Less rates may be charged for furnishing freight in fully loaded 
 trains at regular intervals.* A difference in charge is justified 
 where the transportation is over steep grades.^ A difference in 
 bulk will justify difference in rates.' Or difference in expense of 
 loadino; and unloading.* Or when return loads could not be had." 
 
 1 Phipps V. London S If.W. R. Co. [1892] 2 Q. B. 229. 
 
 ^ Denaby Main Colliery Co. v. Manchester, S. & L. B. Co. 11 App. Cas. 102, 
 L. R. 10 H. L. 97, 26 Am. & Eng. R. Cas. 293. 
 
 » Chicago & A. R. Co. v. People, 67 111. 11-24, 16 Am. Rep. 599; Denaby Main 
 Colliery Co. -f. Manchester, 8. & L. R. Co. supra; Nicholson v. Qreat West- 
 ern R. Co. 5 C. B. N. S. 366; Ransome v. Eastern Counties R. Co. 1 Nev. 
 & McN. 63, 1 C. B. N. S. 487, 2 Nev. & McN. 202; Girardotv. Midland 
 R. Co. 4 Ry. & Canal Traffic Cas. 291; Ransome v. Eastern Counties R. Co. 
 supra; Foreman \. Great Eastern R. Co. 2 Nev. & McN. 202; Nitshill etc. 
 Coal Co. V. Caledonian R. Co. 2 Nev. & McN. 39; Bellsdyke Coal Co. v. North 
 British R. Co. 2 Nev. & McN. 105; Bell v. London etc. R. Co. 2 Nev. & McN. 
 185; Holland etc. R. Co. v. Festiniog R. Co. 2 Nev. & McN. 287; Lotspeich 
 v. Central R. & Bkg. Co. 73 Ala. 306, 18 Am. & Eng. R. Cas. 490; Burton 
 Stock Car Co. v. Chicago, B. & Q. R. R. Co. 1 Inters. Com. Rep. 329 ; Provi- 
 dence Coal Co. V. Providence & W. R. Co. 1 Inters. Com. Rep. 363. 
 
 * Harris v. Cockermouth & W. R. Co. 1 Nev. & McN. 97-102, 3 C. B. N. S. 693; 
 Garton v. Bristol & E. R. Co. 1 Nev. & McN. 227, 6 C. B. N. S. 689-655; 
 Nicholson v. Great Western R. Co.l Nev. & McN. 185; Denaby Main Colliery 
 Co. V. Manchester, S. & L. R. Co. supra; Baxendale v. Bristol & E. li. Co. 1 
 Nev. & McN. 202; Ransome v. Eastern Counties R. Co. 1 Nev. & McN. 69. 
 
 » Nicholson v. Great Western R. Co. 5 C. B. N. S. 366. 
 
 ^Bellsdyke Coal Co. v. North British R. Co. 2 Nev. & McN. 105; Nitshill etc. 
 Coal Co. V. Caledonian R. Co. 2 Nev. & McN. 39. 
 
 "> Lotspeic7i\. Central R. & Bkg. Co. 73 Ala. 306, 18 Am. & Eng. R. Cas. 490. 
 
 8 Chicago & A. R. Co. v. People, 67 111. 26, 16 Am. Rep. 599. 
 
 » Chicago & A. R. Co. v. People, supra; Girardot v. Midland R. Co. 4 Ry. «& 
 Canal Traffic Cas. 291.
 
 736 UNJUST DISCRIMINATION. 
 
 Hailroads have a right to grant special privileges to religious 
 teachers.' Where a railway company, with a purpose of obtaining 
 a greater remunerative profit by the diminished cost of carriage, 
 transports for a lower rate in consideration of a guarantee of large 
 quantities, and full train loads at regular periods, the 2d section 
 of the English Railway & Canal Traffic Act is not contravened, 
 although the effect may be to exclude from the lower rates such 
 persons as cannot give such a guarantee.^ 
 
 A common carrier may discriminate in the rates of freight, be- 
 tween customers not in like conditions, if the discrimination be 
 fair and reasonable and not inconsistent with the public interest. 
 Discriminating in favor of persons living at a distance from the 
 end of the route, for the purpose of securing freight which would 
 otherwise pass over a different route, is permissible; and if the 
 charges made against other persons, not in like conditions, are 
 reasonable, they leave no cause of complaint for discrimination.* 
 Independent of statute, railway companies are held to a strict im- 
 partiality in the conduct of their business, in withholding all priv- 
 ileges or preferences from one customer, which are not extended 
 to all others. But, where the rate of freight is reasonable for all 
 customers, contracts for a less rate may be made in special cases, 
 when — under all the circumstances — the discrimination is reason- 
 able and just. The discrimination must not subject others to un- 
 reasonable disadvantages, nor must the purpose be to giv^e one 
 individual the preference to the disadvantage of another ; or to 
 give preference or advantage to one locality to the disadvantage 
 of another locality. The rule may be stated, that the mere dis- 
 crimination in favor of a customer, is not lawful unless it is an 
 unjust discrimination.* 
 
 The tendency and undoubted weight of authority is in favor of 
 the doctrine that a common carrier is charged with a quasi public 
 duty to transj^ort merchandise on equal terms for all parties, 
 where the carrying for some shippers at a lower price than for 
 
 ' Re Religious Teachers, 1 Inters. Com. Rep. 21. 
 
 » Nicholson v. Great Western R. Co. 1 Nev. & McN. 121. 
 
 » Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684. 
 
 * Houston & T. C. B. Co. v. Rust, 58 Tex. 98.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 737 
 
 others will create monopoly by injuring or destroying the busi- 
 ness of those less favored. " An agreement by a railroad com- 
 pany to carry goods for certain persons at a cheaper rate than 
 they will carry, under the same conditions for others, is void, as 
 creating an illegal preference." ' The Chief Justice, in the last 
 case cited, page 410, says : " It cannot be denied that at com- 
 mon law every person under identical conditions, had an equal 
 right to the services of these commercial agents. It was one of 
 the primary obligations of the common carrier, to receive and 
 carry all goods offered for transportation, upon receiving a rea- 
 sonable hire. If he refused the offer of such goods he was liable 
 to an action, unless he could show reasonable ground for his re- 
 fusal. Thus, in the very foundation and substance of the busi- 
 ness, there was an inherent rule which excluded a preference of 
 one consignor of goods over another. The duty to receive and 
 carry was due to every member of the community, an in an equal 
 measure to each. Recognizing this as the settled doctrine I am 
 not able to see how it can be admissible for a common carrier to 
 demand a different hire from various persons, for an identical 
 kind of service under identical conditions. Such partiality is 
 legitimate in private business, but how can it square with the 
 obligations of a public employment. A person having a public 
 duty to discharge, is undoubtedly bound to exercise such office 
 for the equal benefit of all ; and therefore to permit the common 
 carrier to charge various prices according to the person with 
 whom he deals, for the same services, is to forget that he owes a 
 duty to the community. The law that forbids him to make any 
 discrimination in favor of the goods of A, over the goods of B, 
 when the goods of both are tendered for carriage, must, as it 
 seems to me, necessarily forbid any discrimination with respect 
 to the rate of pay for carriage. The rule that the carrier shall 
 receive all the goods tendered, loses half its value as a politic 
 regulation, if the cost of transportation can be graduated by spe- 
 cial agreement so as to favor one party at the expense of the other." 
 The sa\ne questions came up on error after issue had been 
 
 ' Messenger v. Pennsylvania R. Co. 36 N. J. L. 407, 13 Am. Rep. 457. 
 47
 
 738 UNJUST DISCRIMINATION. 
 
 joined and a trial had below, and are rerjiorted in Messenger v. 
 Pennsylvania R. Co. 37 N. J. L. 531, 18 Am. Eep. 754. And 
 Judge Beadle, speaking for the court, says, on- p. 534 : " The 
 business of the coinnion carrier is for the public, and it is his 
 duty to serve the public indifferently. In the very nature then 
 of his duty, and of the public right, his conduct should be just 
 and equal to all. So also there is involved in the relationship of 
 his compensation the same principle. A want of uniformity in 
 price for the same kind of service under like circumstances, is 
 most unreasonable and unjust when the right to demand it is 
 common. A direct refusal to carry for a reasonable rate would 
 involve the carrier in damages ; and a refusal in effect could be 
 accomplished by unfair and unequal charges. A common car- 
 rier oM^es an equal duty to all, and it cannot be discharged if he 
 is allowed to make unequal preferences, and thereby prevent or 
 impair the enjoyment of the common right." In Chicago c& A. 
 E. Co. V. People, 67 111. 11, 16 Am. Eep. 599, Lawrence, Ch. J., 
 affirms : " Another perfectly well settled rule of the common 
 law in regard to common carriers is, that they shall not exercise 
 any unjust and injurious discrimination between individuals in 
 their rates of toll. Transportation to the public is necessarily 
 open upon equal and reasonable terms." ' 
 
 In discussing the English " equality statute " before adverted 
 to, Beasley, Ch. J., pronouncing the opinion of the supreme court 
 of New Jersey, says : " But the courts of Pennsylvania have re- 
 peatedly declared that this act was but declaratory of the doctrine 
 of the common law." And in a more recent decision Mr. Justice 
 Strong says that the special provisions which are sometimes in- 
 serted in railroad charters in restraint of undue preference are 
 " but declaratory of what the common law now is." This is the 
 view wliich, for reasons already given, seems correct." '^ 
 
 The supreme court of New Hampshire in McDvffee v. Port- 
 land & R. R. Co., 52 N. H. 447, 13 Am. Eep. 72, in an action 
 for damages for refusing to carry freight for the plaintiff at the 
 same rate and with like facilities granted to others, says : " A 
 
 ""Audenried v. Philadelphia & R. R. Co. 68 Pa. 370, 8 Am. Rep. 195. 
 
 2 See Slate v. Delaware, L. & W. R. Co. 48 N. J. L. 55. 57 Am. Rep. 513.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 739 
 
 common carrier is a public carrier. He engages in a public em- 
 ployment ; takes upon himself a public duty and exercises a sort 
 of public ofSce. His duty being public, the correlative right is 
 public. The public right is a common right, and a common right 
 signifies a reasonably equal right." Again, on page 450, the court 
 says : " Equality, in the sense of freedom from unreasonable dis- 
 crimination, being of the very substance of the common right, an 
 individual is deprived of his lawful enjoyment of the common 
 right when he is subjected to unreasonable and injurious discrim- 
 ination in respect to terms, facilities or accommodations." On 
 page 451, the court further says : " The common and equal right 
 is to reasonable transportation service for a reasonable compensa- 
 tion. Neither the service nor the price is necessarily unreason- 
 able because it is unequal in a narrow, strict and literal sense. 
 The question is not whether the service or price is absolutely un- 
 equal in the narrowest sense, but also whether the inequality is 
 unreasonable and injurious." On page 453, the court, in discuss- 
 ing the case of Garton v. Bristol cfe E. R. Co., 1 Best <fe S. 112, 
 et seq., where it was not found that any unreasonable inequality 
 had been made by the defendant to the detriment of the plain- 
 tiffs, says : "It was held that a reasonable price paid by them 
 was not made unreasonable by a less price paid by others," but 
 the court continues : " But before that conclusion is reached, it 
 may be necessary to determine whether the receipt of a less price 
 from another person was a matter of charity or an unreasonable 
 discrimination, and a violation of the common right. Charging 
 A less than B for the same service is not necessarily charging A 
 too little or charging B too much ; but it may be evidence tend- 
 ing to show that B is charged too much, either by being charged 
 more than the actual value of the service, or being made the vic- 
 tim of an unjustifiable discrimination. ... If an apparent 
 discrimination is found to have been a real one, the question is 
 whether it was reasonable ; and, if unreasonable, whether the 
 party complaining was injured by it." To similar efl:ect are cases 
 in other states.' 
 
 ^Neio England Exp. Co. v. Maine Cent. R. Co. 57 Me. 188, 2 Am. Rep. 31; 
 Shipper V. Pennsyhania R. Co. 47 Pa. 338; Fitchhurg R. Co. v. Oage, 12 
 Gray, 393; MenacU v. Ward, 27 Fed. Rep. 529.
 
 740 UNJUST DISCRIMINATION. 
 
 So, it is said that a railroad company is not obliged as a com- 
 mon carrier to transport goods and merchandise for all persons at 
 the same rates.' Mere inequality between the rate charged a 
 shipper and the published tariff rates does not constitute unjust 
 discrimination, within the meaning of Colo. Const, art. 15, § 6, 
 prohibiting "undue or unreasonable discrimination."" At com- 
 mon law. a carrier may contract to ship freight at a lower rate 
 than the published tariff, but not to deny the same reduced rate 
 to other shippers." Discrimination in freights, if fair and reason- 
 able, founded on grounds consistent with public interests, is allow- 
 able.* To cliarge one a rate less than the regular fixed rate is not 
 discrimination. To charge one a higher rate than the lowest rate 
 given to any one else, under certain circumstances, is discrimina- 
 tion.^ A contract to carry freight for a party at a specific rate, 
 being less than its published schedule, is not void as being an 
 unjust discrimination and against public policy, in the absence of 
 evidence that such special rate is not an exclusive privilege." A 
 contract in restraint of trade to the injury of others and tending 
 to monopoly, extortion and oppression, is void as against public 
 policy.' 
 
 Where a railroad corporation, as a common carrier of freight, 
 in consideration of the fact that the sliipper furnish a greater 
 quantity of freights than other shippers during a given term, 
 agrees to make rebate on the public tariff on such freights to 
 the prejudice of other shippers of like freights under the same 
 
 ' Fitcliburg R. Co. v. Oage, infra. 
 
 2 Bayles v. Kansas Pac. B. Co. 2 Inters. Com. Rep. 643, 5 L. R. A. 480, 13 
 
 Colo. 181. 
 
 3 Christie v. Missouri Pac. R. Co. 2 Inters. Com. Rep. 22, 94 Mo. 453. 
 *Schofield V. Lake Shore & M. S. R. Co. 43 Ohio St. 571, 54 Am. Rep. 846. 
 ^ McNees v. Missouri Pac. R. Co. 22 Mo. App. 224. 
 
 ^Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684; Ex parte Benson, 18 S. C. 39, 
 44 Am Rep. 564; Avinger v. South Carolina B. Co. 29 S. C. 265; Johnson 
 V Pemacola & P. R. Co. 16 Fla. G38, 26 Am. Rep. 731; Christie v. Missouri 
 Pac B Co. 2 Inters. Com. Rep. 22, 94 Mo. 453; Bayles v. Kansas Pac. R. 
 Co. 2 Inters. Com. Rep. 643, 5 L. R. A. 480, 13 Colo. 181. Upon the ques- 
 tion whether a railroad company may, in the absence of legislation, agree 
 upon different rates of compensation for similar services, for different per- 
 sons, examine Fitchhurg B. Co. v. Oage, 12 Gray, 393; Spofford v. Boston & 
 M. B. Co. 128 Mass. 326; Bagan v. Aiken^ supra. 
 
 ' Crawford v. Wick, 18 Ohio St. 190, 98 Am. Dec. 103.
 
 DISCRIMINATION BETWEEN SHIPPERS KEBATE. 741 
 
 circumstances, the contract is an unlawful discrimination in favor 
 of the larger shipper, and tends to create a monopoly, destroy 
 competition, injure, if not destroy, the business of smaller ope- 
 rators, and is, therefore, contrary to public policy.' The evi- 
 dence was in substance that one E. R. Clapp was an employe 
 of the defendant. He was located at Des Moines, and was 
 known among shippers of live stock as the Iowa stock agent 
 of the defendant. Clapp was frequently along the railroad in 
 conference with shippers of live stock. He held this position 
 during the time that the plaintiffs made the shipments set forth 
 in their petition. There were a number of shippers of live stock 
 in and about Newton, the principal station on the defendant's 
 road in Jasper county. During nearly the whole time covered 
 by this action, the tariff rate for shipment of live stock from New- 
 ton to Chicago was $60 per carload. It was practically the same 
 from the stations next east and west of Newton. There was at 
 times a slight difference, but not enough to be a material fact in 
 the case. The freight charges, as given by the defendant to its 
 station agents, were for the most of the time $60 per carload, and 
 this rate was given out by station agents to shippers as the charge 
 made by the defendant. All of the carloads sent forward by all 
 the shippers were billed by the agents at the full rate given out 
 by the company. The stock was shipped in the usual manner. 
 No part of the freight charges were in any case paid at the place 
 of shipment. The cars were billed to commission houses at the 
 Union Stock Yards. The stock was sold by the commission men, 
 and, after taking out their commission and paying the freight, 
 the balance of the proceeds of the sales was remitted to the ship- 
 per. This was the uniform manner of transacting the business. 
 All of the shippers were dealt with in exactly the same manner 
 until the stock was sold and the regular freight charges paid. 
 There was no difference in the manner of the service. All of the 
 shippers were given the same kind of cars, and the stock shipped 
 by the plaintiffs was conveyed in the same kind of trains, and on 
 the same time, and with the same privileges as to the free trans- 
 portation of one or more men to take care of the stock while in 
 
 ' Scofield V. Lake Shore & M. 8. R. Co. 43 Ohio St. 571, 54 Am. Rep. 846.
 
 742 UNJUST DISCKIMINATION. 
 
 transit. In short, the plaintiffs had no preference over other ship- 
 pers in any respect. It appears without conflict that at least 
 three other firms or individuals eneao-ed in the same business at 
 the same place, and in competition with the plaintiffs, had priv- 
 ate and secret agreements with Clapp, the said stock agent, by 
 which they were paid a rebate of from $3 to $20 on each carload 
 shipped. These agreements were not uniform at all times. The 
 amount to be paid varied just as the parties were able to agree 
 upon the terms. So far as appears, Clapp always performed the 
 contracts. He paid the rebates sometimes in currency ; at other 
 times by sending the money to the shippers by express. There 
 were short intervals during the time that no rebates were paid. 
 But these intervals were the exception and not the rule. And 
 Clapp always exacted a promise from the favored shippers that 
 the fact of the payment of rebates must be kept secret. No ex- 
 act estimate could be made from the evidence. It is shown, how- 
 ever, beyond all question, that not less than 1800 carloads, in the 
 aggregate, were shipped by the favored shippers. The plaintiffs 
 made application to Clapp for better terms, and were refused. 
 He invariably stated in most positive terms that no rebates nor 
 concessions were allowed to any of the plaintiffs' competitors. 
 The referee found that the plaintiffs were entitled to recover on 
 part of the shipments at the rate of $3 per car, and on others at 
 $5, and on the remainder at the rate of $10 per car. The ag- 
 gregate amount found to be due, including interest, was $2733.98. 
 If the plaintiffs are entitled to recover on the ground of unjust 
 discrimination, the evidence shows beyond all controversy that 
 the judgment is not excessive. The real question in the case is. 
 Do the facts above recited authorize a recovery on the part of 
 the plaintiffs? It is well to keep in mind the fact that the de- 
 fendant is a public common carrier. At common law a public or 
 common carrier is bound to accept and carry for all upon being 
 paid a reasonable compensation. The fact that the charge is less 
 for one than another is only evidence to show that a particular 
 charge is unreasonable. 
 
 In Story on Bailments, § 508, note 3, it is said : " There is 
 nothing in tlie common law to hinder a carrier from carrying for
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 743 
 
 favored individuals at an unreasonably low rate, or even gratis.''^ 
 And in 1 "Wood, Railway Law, 566, it is said : " A mere discrim- 
 ination in favor of a customer is not unlawful unless it is an un- 
 just discrimination." In volume 2, p. 95, Kedfield on Railroads, 
 the following language is used : " It has been held in this coun- 
 try, where there is no statutory regulation affecting the question, 
 that common carriers are not absolutely bound to charge all cus- 
 tomers the same price for the same service. But as the rule is 
 clearly established at common law that a carrier is bound by law 
 to carry everything wliich is brought to him, for a reasonable sum 
 to be paid to him for the same carriage, and not to extort what 
 he will, it would seem to follow that he is bound to carry for all 
 at the same price, unless there is some special reason for the dis- 
 tinction. For, unless this were so, the duty to carry for all would 
 not be of much value to the public, since it would be easy for the 
 carrier to select his own customers at will by the arbitrary dis- 
 crimination in his favor. Hence, it was held at an early day that 
 all that could be required on the part of the owner of the goods, 
 by way of compensation, was that he should be ready and willing 
 to pay a reasonable compensation, and to deposit the money in 
 advance, if required. Carrying for reasonable compensation must 
 imply that the same compensation is accepted always for the same 
 service, else it would not be reasonable, either absolutely or rela- 
 tively." 
 
 The court reached the conclusion from an examination of the 
 authorities that a common carrier has no right to make unreason- 
 able charges for his services, and that he cannot lawfully make 
 unjust discrimination between his customers. It is distinctly 
 averred in the counts that the rate charged the plaintiffs " was 
 unreasonable, and is and was an unjust discrimination." This 
 appears to be a sufficient answer to any claim that can be made 
 that the action is founded solely upon the fact of mere difference 
 in rates. It must be conceded that the defendant had no right 
 to exact unreasonable rates or to make unjust discriminations be- 
 tween shippers which in effect compels one shipper to pay an 
 unreasonable rate. This principle of law may be said to be fun- 
 damental, and it is only necessary to apply the facts to reach the
 
 744 UNJUST DISCRIMINATION. 
 
 conclusion that the rates paid by the plaintiffs were unreasonable 
 and unjust discrimination. It is not claimed that the favored 
 shippers were objects of the charity of the deseiidant. The pay- 
 ment of the rebates cannot be designated as " alms giving." It 
 does not appear that the concessions were made because the fav- 
 ored shippers furnished more shipments than the plaintiffs. The 
 fact is that some of the others sliipped less than the plaintiffs. In 
 short there is no reason for the discrimination. It is true that it 
 is claimed that the rebate shippers bought cattle and hogs from 
 territory in which shipments would ordinarily be made upon 
 other railroads, but the court lind that the evidence shows that 
 the plaintiffs' field of operation was about the same as the other 
 shippers'. It does not appear that the rebates were allowed 
 merely at times when there were cut rates or a war of rates be- 
 tween the defendant and rival railroad lines. The rebates were 
 paid regularly for years, with but short intervals. Under these 
 facts the question is suggested whether it is to be supposed that any 
 court or jury under this state of facts would find that, after paying 
 the rebate, the defendant did not have a reasonable compensation 
 for the service ? The only finding it is said that can in any fair- 
 ness be made is that, after deducting the rebate, the rate was rea- 
 sonable ; and that the exaction from the plaintiffs was unreason- 
 able, and the discrimination against them unjust. And the fact 
 that it was secretly done, and that it appeared to be necessary to 
 carry it on by lying and deceit, surely does not tend to commend 
 such a course of dealing to fair minded men.' 
 
 The cases of Johnson v. Pensacola & P. R. Co. 16 Fla. 623, 
 26 Am. Eep. 731, and Ex parte Benson, 18 S. C. 38, 44 Am. 
 Rep. 564, have often been relied on, together with the doctrine 
 so frequently found in the books, declaring that common carriers 
 are to be held to a reasonable compensation, but not necessarily 
 an equal compensation. In the latter case a petition was filed 
 against the receiver of a railroad to compel him to pay to a ship- 
 per out of the " receiver's fund," an amount that had been prom- 
 
 ' See, in support of this conclusion, Sharpless v. Philadelphia, 21 Pa. 147, 
 59 Am. Dec. 759; New England Eocp. Co. v. Maine Cent. R. Co. 57 Me. 188, 
 2 Am. Rep. 31; McDuffee w . Portland & R. R. Co. 53 N. H. 430, 13 Am. 
 Rep. 72; Messenger v. Pennsylvania B. Co. 36 N. J. L. 407, 13 Am. Rep. 457.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 745 
 
 ised as a drawback' to procure liis custom as a cotton shipper. 
 The receiver contested the claim on the ground that the discrim- 
 ination was unlawful ; but no person was shown to have been in- 
 jured by and no third person was complaining of the discrimina- 
 tion. Under that state of facts, the shipper had judgment for 
 his drawback. In the Florida case the discrimination was made 
 in favor of a shipper of lumber who, under peculiar circumstances, 
 had furnished the railroad company a sum of money to complete 
 its road, and was to have the loan repaid by freight at a reduced 
 rate. Complaints of loss and injury were made by another ship- 
 per, but there was no proof or no satisfactory evidence to show 
 the complaining shipper was injured in his business by the lower 
 rate given to the other shipper. In both these cases reliance is 
 placed on the doctrine that discrimination is not necessarily un- 
 lawful and all that the freighter is entitled to is a reasonable rate 
 not necessarily equal to all ; and in the absence of any statute to 
 the contrary, perhaps it is unnecessary to question the correctness 
 of these decisions. 
 
 It would seem, however, that all the cases that have been re- 
 ferred to, on their facts, might be harmonized by observing the 
 distinction so often alluded to, that is to say, that as between a 
 consignor and the common carrier, where no other reason inter- 
 venes to engraft an exception on the rule, all the consignor can 
 demand of the common carrier is that his goods shall be carried 
 at a reasonable rate, not necessarily at an equal rate with all 
 others. But when the reduced rate is either intended to or has a 
 iiatural tendency to injure the plaintiff in his business and destroy 
 his trade, then a necessary exception is engrafted on the more 
 general rule, and the plaintiff has then the right to insist that 
 rates to all be made the same for goods shipped " under like cir- 
 cumstances." Excessive charges do not constitute " undue or un- 
 reasonable preference or advantage " in favor of any particular 
 person, company, or traffic, within the meaning of the statutory 
 inhilntion. The words quoted refer exclusively to preference or 
 advantage as between competing parties.' Although the original 
 
 ^Reg. V. Railway Comrs. & D. Iron Co. L. R. 23 Q. B. Div. 642, 40 Am. & 
 Eng. R. Cas. 59.
 
 746 UNJUST DISCRIMINATION. 
 
 charge may have been a reasonable toll, it straightway became 
 unreasonable and an extortionate one when a less rate was granted 
 to the competitor for one and the like service under similar con- 
 ditions.' All special stipulations inserted in the charter of the 
 common carrier for the purpose of securing equal rights to all 
 shippers affirm nothing more than the common rights to equal 
 justice, which exist independently of such provisions." Carriers 
 cannot discriminate unjustly for the same service and under like 
 conditions between their local patrons.^ The common law pro- 
 hibits extortionate rates and unjust discriminations, and requires 
 that the carrier shall demand only a reasonable compensation and 
 treat competing shippers alike, and prevents their making unjust 
 discriminations ; and the fact that the high rate charged was not 
 unreasonable does not affect the discriminations." 
 
 Leaving out of view the question of favor shown to a competi- 
 tor, the proposition may be admitted that the important point to 
 every freighter is that the charge shall be reasonable, and a right 
 of action will not exist in favor of any one unless it be shown that 
 unreasonable inequality has been made to his detriment. In 
 Johnson v. Pensacola <& P. R. Co., 16 Fla. 623, 26 Am. Rep. 
 
 ^Messenger v. Pennsylvania R. Co. 36 N. J. L. 407, 13 Am. Rep. 457, 37 N. J. 
 L. 531, 18 Am. Rep. 754; Winona & St. P. R. Go. v. Blake, 94 U. S. 180, 24 
 L. ed. 99; Olcott v. Banfill. 4 N. H. 537; Story, Bailm. § 508; Holford. v. 
 Adams, 2 Duer, 471; New England Exp. Co. v. Maine Cent. B. Co. 57 Me. 
 188, 3 Am. Rep. 31; Vincent v. Chicago & A. R. Co. 49 111. 33; Shipper v. 
 Pennsylvania R. Co. 47 Pa. 338; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 
 77; SaiulfordY. Caflawissa,W. (& E. R. Co. 24 Pa. 378, 64 Am. Dec. 667; 
 Cumberland Valley R. Go's App. 62 Pa. 218; Ragan v. Aiken, 9 Lea, 609, 42 
 Am. Reo. 684; Houston & T. C. R. Co. v. Rust, 58 Tex. 98; Merriam v. 
 Hartford & N. H. R. Co. 20 Conn. 354, 52 Am. Dec. 344; Jordan v. Fall 
 River R. Co. 5 Cush. 69. 51 Am. Dec. 44; JVew Jersey Steam Nav. Co. v. 
 MercJiants Bank of Boston, 47 U. S. 6 How. 344, 12 L. ed. 465; McDuffee v. 
 Portland & R. R. Co. 52 N. H. 445, 13 Am. Rep. 72; Sloan v. Pacific R. Go. 
 61 Mo. 24, 21 Am. Rep. 397; Pierce, Railroads, 498; Cole v. Goodwin, 19 
 Wend. 261, 32 Am. Dec. 470; Chicago & A. R. Co. v. Erickson, 91 111. 613, 
 33 Am. Rep. 70; Denver & N. 0. R. Go. v. Atchison, T. & 8. F. R. Go. 15 
 Fed. Rep. 650, and note; Brown, Carr. 82. 
 
 ' Sandford v. Catawissa, W. & E. R. Co. supra; Sharpless v. Philadelphia, 21 
 Pa. 169, 59 Am. Dec. 759; New Jersey Steam Nav. Co. v. Merchants Bank 
 of Boston, Shipper v. Pennsylvania R. Co., Houston & T. C. R. Go. v. Rust, 
 New England Exp. Go. v. Maine Cent. R. Co., McDuffe 'V.Portland & R. R. 
 Co. and Messenger v. Pennsylvania R. Go. supra. 
 
 » 1 Wood, Railway Law, 565, 566. 
 
 * Samuels v. Louisville & N. R. Co. 4 Inters. Com. Rep. 420, 31 Fed. Rep. 57.
 
 DISCKIMINATION BETWEEN SHIPPERS REBATE. 747 
 
 731, the court says : " Most of the cases treat the common law 
 rule strictly as between the parties and without comparison as to 
 the charges against others." 
 
 In Cleveland^ C. C <& 1. R. Co. v. Closser, 3 Inters. Com. Rep. 
 387, 9 L. R. A. 754, 126 Ind. 348, the action was on contracts 
 made with the railroad company, wherein it undertook to trans- 
 port grain from Indianapolis to the seaboard ; and the charge is 
 that the carrier agreed to receive at the time of the shipments a 
 designated sum as compensation for the transportation of the 
 ^rain and to refund to the shippers a certain part of the sum re- 
 ceived. The demand is that the carrier be compelled to respond 
 in damages for a breach of the agreement to refund part of the 
 money paid to it as freight on the grain carried under the con- 
 tracts. As a first cause of action it is alleged that on the 15th 
 day of September, 1884, the railroad company made a contract 
 with Closser & Co. wherein it agreed to transport grain from In- 
 dianapolis to Philadelphia " at the price of 16-1^ cents per hundred 
 weight, at the same time stipulating that Closser & Co. should 
 pay the defendant at the rate of 21 cents per hundred weight, but 
 should be entitled to a rebate of 4^ cents per hundred, to be re- 
 paid to Closser & Co. promptly after such shipments." 
 
 The contract described is adjudged valid. It is not, it is said, 
 different in any material respect from the ordinary one in which 
 the carrier stipulates directly to carry goods at a fixed rate, for 
 the agreement to repay does not of itself change the legal effect 
 of the undertaking; to such an extent as to transform it into an 
 illegal contract. It is, in contemplation of law, nothing more 
 than an agreement to carry the grain at the compensation ulti- 
 mately agreed upon, inasmuch as the provision binding the car- 
 rier to pay back part of the nominal compensation simply fixes 
 the amount of the actual and final compensation, although it does 
 provide for a peculiar mode of payment. There is no element of 
 moral or legal wrong in an agreement to repay part of the com- 
 pensation received ; to give an illegal character to such an agree- 
 ment more must be shown than the mere fact that the parties 
 stipulated for a rebate. In simply making a rebate, and in provid- 
 ing for a drawback, parties violate no law and their contract must
 
 748 UNJUST DISCRIMINATION. 
 
 stand. It cannot be presumed that fraud was intended or prac- 
 ticed, nor can it be presumed that there was any wrongful com- 
 bination to secure an undue advantage over other shippers ; 
 neitlier can it be presumed that in stipulating for a rebate the 
 carrier intended to make in favor of the particular shipper a dis- 
 crimination forbidden by law.* The opinion is expressed that it 
 is not necessarily or j^er se a legal wrong for a carrier to give 
 better rates to one who ships many carloads of grain tlian to one 
 who ships a single carload or a single bushel. It is said to be a 
 matter of common knowledge, and therefore one of which judicial 
 notice is taken, that an increase in the volume of business is de- 
 sirable and advantageous, and in the rivalry of business competi- 
 tion it is lawful to favor those whose business is great rather than 
 those whose business is small or inconsiderable. In the case pf 
 Nicholson v. Great Western E. Co., 4 C. B. :N'. S. 366, 1 Kev. & 
 McN. 121, Erie, Ch. J., said : " I take the free power of making 
 contracts to be essential for the purpose of making commercial 
 profits. Railway companies have that power as free as any mer- 
 chant, subject only (as to this court) to the duty of acting impar- 
 tially, without respect of persons, and this duty is performed 
 when the offer to contract is made, to all who wish to adopt it. 
 Large contracts may be beyond the means of small capitalists ; 
 contracts for long distances may be beyond the needs of some 
 whose traffic is confined to a home district ; but the power of the 
 railway company to contract is not restricted by these considera- 
 tions." 
 
 It is obvious that whether the common carrier acts impartially 
 or not depends upon the circumstances of the particular case, for 
 regard must be had to such circumstances as quantity, distance 
 and kindred considerations. The hinge of the the question is not 
 
 * Note. — But it is by no means every favor sliown a particular shipper, 
 although it may constitute in some measure a discrimination favorable to him 
 and unfavorable to other shippers, that impresses upon a contract for the car- 
 riage of goods the seal of condemnation. The common law authorities fully 
 support the doctrine that a mere discrimination will not invalidate a contract. 
 To have that effect other elements must enter into the contract; but when such 
 elements are present in such force as to make the discrimination unjust or op- 
 pressive the contract will be illegal.
 
 DISCJaiMlNATION BETWEEN aHlPPEKS KEBATE. 749 
 
 found in the single fact of discrimination, for discrimination with- 
 out partiality is inoffensive and partiality exists only in cases 
 where advantages are equal and one party is unduly favored at 
 the expense of another who stands upon an equal footing. Many 
 English cases support this general doctrine.' The current of 
 judicial opinion in America it is said flows in the general channel 
 marked out and opened by the courts of England."* The cases of 
 State V. Cincitmati, W. dt B. R. Co. 7 L. R. A. 319, 47 Ohio St. 
 130; ScofieU v. Lake Shore da M. S. jR. Co. 43 Ohio St. 571, 54 
 Am. Rep. 846, and Messenger v. Pennsijlvania R. Co. 36 N. J. 
 L. 407, 13 Am. Rep. 457, are not entirely out of line on a care- 
 ful and critical examination of the opinion, with the decisions to 
 which reference has been made, although fragmentary expressions 
 found in some of the opinions seemingly pass the lines of princi- 
 ple. It is very doubtful indeed whether the reasoning in the 
 case of Burlington., C. R. da JV. R. Co. v. Northwestern Fuel Co. 
 31 Fed. Rep. 652, can be regarded as sound, or be made to har- 
 monize with the reasoning in what appears to be the much more 
 •carefully considered case of Interstate Commerce Com. v. Balti- 
 more (& 0. R. Co. 3 Inters. Com. Rep. 192; but, granting the 
 reasoning to be unimpeachable and the conclusion sound, the 
 decision cannot be regarded as of controlling influence in such a 
 ■case as the one then at bar. In that case, the recovery was 
 
 ' Oarton v. Bristol & E. R. Co. 1 Best & S. 112; Hazier v. Caledonian B. Co. 1 
 Nev. & McN. 29; Great Western R. Co. v. Sutlon, L. R. 4 11. L. 288; Ran- 
 some V. Enstern Counties R. Co 1 C. B. N. S. 437; Jones v. Eastern Couniiex 
 R. Co. 1 ISev. & McN. 45; Oxlade v. North Eastern R. Co. 1 C. B. N. S. 454; 
 Baxendale v. Oreat Western R. Co. 5 C. B. N. S. 336; Bellsdyke Coal Co. 
 V. North British R. Co. 2 Nev. & McN. 105. 
 
 2 Bayles v. Kansas Pac. R. Co. 2 Inters. Com. Rep. 643, 5 L. R. A. 480, 13 Colo 
 181; Spofford v. Boston <& M. R. Co. 128 Mass. 326; Fitchburg R. Co. v. Cage, 
 12 Gray, 393; Johnson v. Pensacola & P. R. Co. 16 Fla. 632, 26 Am. Rep. 731; 
 Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684; McDuffee v. Portland & R. R. 
 Co. 52 N. H. 430, 13 Am. Rep. 72; Hersh v. Northern Cent. R Co. 74 Pa. 181 ; 
 Christie v. Missouri Pac. R. Co. 2 Inters. Com. Rep. 22, 94 Mo. 453; Cldcago 
 & A. R. Co. V. People, 67 111. 11, 16 Am. Rep. 599; Toledo, W. & W. R. Co. 
 V. Elliott, 76 111. 67; Erie & P. Despatch v. Cecil, 112 111. 185; Root v. Long 
 Island R. Co 4 L. R. A. 331, 2 Inters. Com. Rep. 576, 114 N. Y. 300; Eill- 
 mer-v. New York Cent. & H. R. R. Co. 100 N. Y. 395, 53 Ana. Rep. 194; 
 Stewart v. Lehigh Valley R. Co. 38 N. J. L. 505 ; Union Pac. R. Co. v. United 
 States, 117 U. S. 355, 29 L. e<\. 920; Hays v. Pennsylvania Co. 12 Fed. Rep. 
 309; Interstate Commerce Com. v. Baltimore & 0. R. Co. 3 Inters. Com. 
 Rep. 193.
 
 750 UNJUST DISCEIMINATION. 
 
 adjudged on the ground that the difference in the rate 
 charged shippers of large quantities of goods and that charged 
 shippers of small quantities was so gross as to be against public 
 policy. This question did not arise in the Indiana case. So far 
 as concerns the question of the right to discriminate between 
 shippers the Indiana court concur with the general doctrine that 
 an unjust, unfair or oppressive discrimination is prohibited by the 
 soundest considerations of public policy, but, it denies that from 
 the sole fact that there is a discrimination a conclusion can be in- 
 ferred which invalidates the special contract between the carrier 
 and the shipper, on the ground that to warrant such a conclusion 
 the discrimination must be unjust or oppressive. 
 
 In the later case of Stewart v. Lehigh Valley R. Co. 38 N. J. 
 L. 505, the decision in Messenger v, Pennsylvania R. Co. 36 N. 
 J. L. 407, 13 Am. Rep. 457, is explained, and it was said: " The 
 contract held invalid in Messenger v. Pennsylvania R. Co. supra, 
 was indeed one inuring to the benefit of the individual and against 
 the corporation ; but its terms were such that it could not possibly 
 be effectuated without giving the plaintiff a preference over the 
 public ; it was, in effect, that whatever rate should be charged 
 against any one else, 20 per centum less should be charged against 
 the plaintiff. Plainly, such a contract was not consistent with the 
 company's duty of impartiality. As soon as the general rates 
 were reduced to the standard of the plaintiff's he was entitled to 
 have his rates reduced 20 per centum lower." It would seem to be 
 a fair conclusion from this that the courts of New Jersey did not 
 hold, or mean to hold, that a contract giving a special rate and 
 providing for a drawback was, in itself, illegal and void. The 
 decision in the case of Indianapolis^ D. dc S. R. Co. v. Ervin^ 
 118 111. 250, is founded upon an express statute and proceeds up- 
 on the assumption that the discrimination was an unjust one. 
 Whether that case does or does not overrule the earlier cases 
 decided by the same court, the reasoning in the earlier cases, it 
 appears, harmonizes with the doctrine of the standard authorities. 
 Those cases assert that a preferential rate, although made effective 
 by a provision for a drawback, does not, of its own force, destroy 
 the contract ; but, where a preferential rate is given, the fact that
 
 PISCEIMINATION BETWEEN SHIPPERS REBATE. 751 
 
 a drawback is provided for may exert an important influence up- 
 on the decision of the question whether the discrimination is or is 
 not an unjust one, and may be considered in connection with other 
 facts as tending to show an unjust discrimination. The conclu- 
 sion that common carriers may, wdthin the limits of fairness and 
 impartiality, consult their own interests, underlies the decisions 
 which have been cited.' Upon the question of the rio;ht 
 to regulate the rate of charges for carriage by the quantity of the 
 single or gross shipment, the American authorities do not fully 
 harmonize.' 
 
 In the case of Hays v. Pennsylvania Co., 12 Fed. Rep. 309, 
 decided by Baxter, J., in the Circuit Court of the United States 
 for the Northern District of Ohio, the judge on motion for a new 
 trial said : " The defendant is a common carrier by rail. Its 
 road, though owned by the corporation was nevertheless con- 
 structed for public uses, and is, in a qualified sense, a public high- 
 way. Hence, everybody constituting a part of the public for 
 whose benefit it was authorized is entitled to an equal and impar- 
 tial participation in the use of the facilities it is capable of afford- 
 ing. The discrimination complained of rested exclusively on the 
 amount of freight shipped by the respective shippers during the 
 year. Ought a discrimination resting exclusively on such a basis 
 to be sustained ? If so, then the business of the country is in 
 some degree, subject to the will of railroad officials ; for if one 
 man engaged in mining coal and dependent on the same railroad 
 for transportation to the same market, can obtain transportation 
 thereof at from 25 to 50 cents per ton less than another competing 
 with him in business, solely on the ground that he is able to fur- 
 nish and does furnish the larger quantity for shipment, the small 
 operator will sooner or later, be forced to abandon the unequal 
 contest and surrender to his more opulent rival. If the principle 
 is sound in its application to rival parties, engaged in mining 
 
 ^Louisville, N. A. & G. R. Co. v. Flanagan, 133 Ind. 488; Chicago, B. & Q. 
 
 R. Co. V. Cults, 94 U. S. 155, 24 L. ed. 94; Easton v. Houston & T. C. R. 
 
 Co. 32tFed. Rep. 893; Gla-'^gow & 8. W. R. Go. v. MacKinnon, L. R. 11 
 
 Apo. Cas. 386, 27 Am. & Eug. R. Cas. 1; Mogul 88. Go. v. McGregor, L. 
 
 R. 21 Q. B. Div. 544, 39 Alb. L. J. 50. 
 « Cleveland, C. C. & I. R. Go. v. Closser, 3 Inters. Com. Rep. 387, & L. R. A. 
 
 754, 126 Ind. 348.
 
 752 UNJUST DISCKIMINATION. 
 
 coal, it is equally applicable to merchants, millers, dealers in lum- 
 ber and grain, and to everybody else interested in any business 
 requiring any considerable amount of transportation by rail ; and 
 it follows that the success of all such enterprises would depend as 
 much on tiie favor of railroad officials as upon the energies and 
 capacities of the parties prosecuting the same. It is not difficult, 
 with such a ruling, to forecast the consequences. The men who 
 control railroads would be quick to appreciate the power with 
 which such a hold would invest them, and it may be, not slow to 
 make the most of their opportunities ; and perhaps tempted to 
 favor their friends to the detriment of their personal or political 
 opponents, or demand a division of the profits realized from such 
 collateral pursuits as could be favored or depressed by discrim- 
 inations for or against them ; or else, seeing the augmented power 
 of capital, organize into overshadowing combinations and extin- 
 guish all petty competition, monopolize business, and dictate the 
 price of coal and every other commodity to consumers. We say 
 these results might follow the exercise of such a right as is claimed 
 for railroads in this case. But we think no such power exists in 
 them ; they have been authorized for the common benefit of 
 everyone, and cannot lawfully be manipulated for the advantage 
 of any class at the expense of any others. Capital needs no such 
 extraneous aid. It possesses inherent advantages which cannot 
 be taken from it. But it has no just claims, by reason of its ac- 
 cumulated strength, to demand the use of the public highways 
 constructed for the common benefit of all on more favorable 
 terms than are accorded to the humblest of the land, and a dis- 
 crimination in favor of parties furnishing the largest quantity of 
 freight and solely on that ground, is a discrimination in favor of 
 capital, and is contrary to a sound public policy, violative of that 
 equality of right guaranteed to every citizen, and a wrong to the 
 disfavored party, for which the courts are competent to give re- 
 dress," 
 
 Where a fuel company, seeking to occupy undeveloped coal 
 fields, and to monopolize the market, agreed to furnish four hun- 
 dred cars to a railroad company seeking to increase its transpor- 
 tation business, and entered into a contract which provided that
 
 DISCRIMINATION BETWEEN SHIPPEKS — EEBATE. 753 
 
 the railroad company should maintain a rate of $2.40 per ton on 
 all coal shipped when the amount is less than 100,000 tons, and 
 that the rate for 100,000 tons or more shall be $1.60 in summer 
 and $1.65 in winter, it was held that, on the face of it, such a 
 discrimination was against public policy, the discrimination being 
 based, not upon the cost of transportation, and upon the time, 
 labor, and annoyance which may result to the railroad company, 
 but solely upon the amount of transportation.' The relative 
 quantity of freight shipped by different persons does not differen- 
 tiate the service performed by common carrier. And it is unjust 
 discrimination to base the rate of freight charges to several ship- 
 pers upon the quantity shipped by each/ 
 
 The difference in the quantity of shipments is an insufficient 
 and unwarrantable reason for discrimination in rates.^ Nov can 
 the carrier discriminate against small shippers in favor of larger 
 shippers of the same class of goods solely on the ground of the 
 difference in quantity." Unreasonable preference or advantage, 
 ■or undue or unreasonable prejudice or disadvantage, by a carrier, 
 involves the question whether the service was rendered under 
 substantially similar circumstances and conditions. More traffic 
 furnished by one than by the other does not render them dis- 
 similar ; and it is for the jury to say whether a difference of 12 
 -cents per 100 pounds between a local rate of a carrier and its 
 proportion of a through rate, including another road, was unrea- 
 sonable.^ 
 
 The allowance of a rebate by a common carrier to certain of 
 his customers from the tariff' rates charged other customers for 
 precisely similar services is sufficient of itself to show that the 
 rates charged the latter were unreasonable, and that there was 
 unjust discrimination against them, illegal by the common law, 
 ■which will give the latter a right to recover the amounts paid by 
 
 » Burlington, G. R. & N. R. Co. v. Northwestern Fuel Co. 31 Fed. Kep. 653. 
 ^Kinsley v. Buffalo, N. T. & P. R. Co. 3 Inters. Com. Rep. 318, 37 Fed. Rep. 
 
 181; Providence Goal Co. v. Providence & W. R. Co. 1 Inters. Com. Rep. 363. 
 ' United Slates v. Tozer, 2 Inters. Com. Rep. 540. 
 * Hays V. Pennsylvania Go. 12 Fed. Rep. ii09; Mcholson v. GreatWestern R. 
 
 Co. 4 C. B. N. S. 366; Com. v. Power, 7 Met. 596, 41 Am. Dec. 465. 
 •* United States v. I'ozer, supra, 
 48
 
 754 UNJUST DISCRIMINATION. 
 
 them in excess of the rates charged the former, after deducting 
 the rebates, under some authorities.' 
 
 A difference in rates upon carloads and less .than carloads of 
 the same merchandise between the same points of carriage, so 
 wide as to be destructive to competition between large and small 
 dealers, especially upon articles of general and necessary use, and 
 which, under existing conditions of trade, furnish a large volume 
 of business to carriers, — is unjust. A difference in rate for a. 
 solid carload of one kind of freight from one consignor to one 
 consignee, and a carload quantity from the same point of ship- 
 ment to the same destination, consisting of like freight, or freight 
 of like character, from more than one consignor to one consignee,, 
 or from one consignor to more than one consignee, — is not justi- 
 hed by the difference in cost of handling." 
 
 The double aspect in which a case of discrimination is to be 
 viewed in well stated in the case of St. Louis, A. & T. II. R. Co. 
 V. Hill, 14 111. App. 579, Baker, J., " The statement that one i& 
 a common carrier ex vi termini, imports a duty to the public and 
 a corresponding legal right in the public ; a right common to alL 
 One of the duties imposed upon a common carrier is that he is 
 bound to carry for a reasonable remuneration, and is not allowed 
 to make unreasonable and excessive charges. He cannot, like a 
 a merchant or mechanic, consult his pleasure or caprice in the 
 conduct of his business, and cannot, even by special agreement, 
 receive an excessive and extortionate price for his services. An- 
 other duty imposed on him is to make no unjust, injurious or ar- 
 bitrary discriminations between individuals in his dealings with 
 the public. The right to the transportation services of the carrier 
 is a common right belonging to every one alike." Of alike tenor 
 and effect is Ragan v. Aiken, 9 Lea, 609, 42 Am. Rep. 684, where 
 the question as to statutory regulation and the rules of the com- 
 mon law were before the court. The railroad company or its 
 manager, to induce parties doing business in a particular locality, 
 and who could send by a different route, offered to carry their 
 
 ' Cook V. Chicago, R. I. & P. R. Co. 9 L. R. A. 7G4, 2 Inters. Com. Rep. 383, 
 
 81 Iowa, 551. 
 « Thurber v. New York Cent. & H. R. R. Co. 2 Inters. Com. Rep. 742.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 755 
 
 goods for 15 cents per hundred. They accepted the proposition 
 and shipped accordingly. The complainants were charged more, 
 as were the balance of the public along the line of the road. They 
 charged that this discrimination was illegal, and, for their relief, 
 prayed an injunction. The court says (p. 617) " Railroad com- 
 panies, as quasi public corporations, exercising franchises in con- 
 sideration of accommodations afforded the public, are required, 
 and may be compelled by the courts to afford reasonable and im- 
 partial facilities for transportation. Their charges, when not 
 regulated by charter or by statute, must be reasonable, and the 
 courts will determine whether their charges are reasonable.' 
 
 If only a maximum limit of charges be fixed by charter, the 
 reasonableness of other charges within the limit may be tested in 
 the courts. If the charge for each service be fixed by law or, if 
 the intention of the legislature is clear, to allow only certain spe- 
 cified fares or tolls, leaving other cases unprovided for, the com- 
 pany must abide by its contract. The court further says : " The 
 question is whether defendant can make such contract under the 
 circumstances," and decide as follows : " The English authorities 
 hold that, at common law, the common carrier is not bound to 
 carry at equal rates for all customers in like condition." It is 
 competent for the carrier to make terms for its transportation.'' 
 The authorities are collected in McDuffee v. Portland <& It. R. 
 Co. 52 K. H. 430, 13 Am. Eep. 72, and in Dinsmore v. Missouri, 
 K. cfc T. R. Co. 3 Am. & Eng. R. Cas. 602. 
 
 In this country the courts have generally inclined to hold 
 that statutes prohibiting discrimination are merely declaratory of 
 the common law.' Discrimination in rates of freight, if fair and 
 reasonable, and founded on grounds consistent with public inter- 
 
 ^Munn V. Illinois, 94 U. S. 113, 133, 24 L. ed. 77, 86; CMcngo, B. & Q. R. Co. 
 V. Iowa, 94 U. S. 155, 24 L. ed. 94; Reg. v. Grand Junction R. Co. 4 Q. B. 16. 
 
 « Pardington v. South Wales R. Co. 1 Hurlst. & N. 396; McManus v. Lancashire 
 & T. R. Co. 4 Hurlst. & N. 347; Carr v. Lancashire & Y. R. Co.l Exch. 
 711. 
 
 » UnioTuPac. R. Co. v. United States, 99 U. S. 719, 25 L. ed. 501; Messenger v. 
 Pennsylvania R. Co. 36 N. J. L. 407, 13 Am. Rep. 457; Audenried v. Phila- 
 delphia & R. R. Co. 68 Pa. 370, 8 Am. Rep. 195; Chicago & A. R. Co. v. 
 People, 67 111. 11, 16 Am. Rep. 599; Shipj^en v, Pennsylvania R. Co. 47 Pa. 
 838.
 
 756 
 
 UNJUST DISCRIMINATION. 
 
 est, are allowable.' The important point to every freighter is 
 that the charge shall be reasonable, and a right of action will not 
 exist in favor of any one unless it be shown that unreasonable 
 inequality had been made to his detriment. A reasonable price 
 paid by such a party is not made unreasonable by a less price 
 paid by others. In determining whether a company has given 
 undue preference to a particular person, the court may look to 
 the interests of the company.'' 
 
 As a general proposition, where a railroad company is not re- 
 stricted or inhibited by its charter or the law of the land, it is not 
 unlawful for it to make an arrangement of rates for special pur- 
 poses, on a sufficient consideration and for the legitimate increase 
 of its business.' In other words, if the charge on the goods of 
 the person complaining is reasonable, and such as the company 
 would be required to adhere to, as to all persons in like condition, 
 it may, nevertheless, lower the charge to another person, if it be 
 to the advantage of the company, not inconsistent with the pub- 
 lic interest and based on a sufficient reason. 
 
 Common carriers, as one of their primary obligations, must re- 
 ceive and carry all goods offered for transportation, upon receiv- 
 ing a reasonable hire. If the carrier refuses the offer of such 
 goods, he is liable to an action unless he can show a reasonable 
 ground for his refusal. The duty to receive and carry is due to 
 each member of the community, and in an equal measure to each. 
 Nothing can be clearer than in giving effect to this principle, a 
 common carrier cannot agree to carry one man's goods in mere 
 preference to those of another.' A majority of the recent cases 
 hold that at common law a carrier cannot unjustly discriminate in 
 rates between persons in the same circumstances.^ 
 
 ^ Her^h V. Northern Cent. R. Co. 74 Pa. 181: Chicaqo & A. R. Co. v. People, 
 67 111. 11, 16 Am. Rep. 599; Filchburg R. Co. v. Oage, 12 Gray, ii93. 
 
 *Ransome v. Eastern R. Co. 1 C. B. N. S. 437. 
 
 ^ Missouri Pac. R. Co. v. Texas tfc P. R. Co. 4 Inters. Com. Rep. 428, 30 Fed. 
 Rep. 3. 
 
 ^Mesaenger v. Pennsylvania R. Co. 36 N. J. L. 407, 13 Am. Rep. 457. 
 
 *■ Lovisnlle, E. & St. L. Consol. R. Co. v. Wilson, 18 L. R. A. 106, 182 Ind. 
 517; Root V. Long Island R. Co. 2 Inters. Com. Rep. 576, 4 L. R. A. 831, 
 114 N. Y. 300; Cleveland, G. C. & I. R. Co. v. Closser, 3 Inters. Com. Rep. 
 387, 9 L. R. A. 754, 126 Ind. 848; Cook v. Chicago, R. I. & P. R. Co. 2
 
 DISCRIM [NATION BETWEEN SHIPPERS REBATE. 757 
 
 Statutes prohibiting discrimination between shippers or passen- 
 gers have been held to be merely declaratory of the common 
 law.' Some of the cases without positively limiting the extent 
 to which discrimination in rates is unlawful hold that it is so 
 where it is unjust and tends to build up the business of one ship- 
 per at the expense of another,'' In Chicago^ B. c& Q. R. Co. v. 
 Parks, 18 111. 460, 68 Am. Dec. 562, it is said, though not neces- 
 sarily decided, that rates charged by a carrier must be uniform 
 although special favor may be shown to individuals or classes by 
 carrying them free or for half price. So in Christie v. Missouri 
 Fac. E. Co., 2 Inters. Com. Kep. 22, 94 Mo. 453, it is held that 
 the illegality of rebates to shippers depends on the exclusiveness 
 of such privilege. A contract for the monopoly of transportation 
 of certain kinds of freight is illegal.' A carrier cannot arbitrarily 
 refuse to carry a passenger over a line in which it is transporting 
 other passengers as a common carrier.* And a carrier has no 
 right to discriminate by selling tickets to some persons and not 
 to others.* Neither can a railroad company refuse to sell to a 
 particular person a commutation ticket such as it sells to people 
 generally.^ Neither is discrimination allowed between shippers 
 to the prejudice of one as to forwarding their property.' It is 
 unlawful for a railroad company to discriminate unjustly Ijetween 
 two rival lines of steamboats.* It must be admitted, however, 
 
 Inters. Com. Rep. 383, 9 L. R. A. 764, 81 Iowa, 551; Fitzgerald v. Ornnd 
 
 Trunk R. Co. 3 Inters. Com. Rep. 633, 13 L. R. A. 70, 63 Vt. 169; Menmn- 
 
 ger v. Pennsylvania B. Co. 37 N. J. L. 531, 18 Am. Rep. 754, affirming 36 
 
 N. J. L. 407, 13 Am. Rep. 457; State v. Delaware, L. & W. R. Co. 48 N. J. 
 
 L. 55, 57 Am. Rep. 543; Hays v. Pennsylvania R. Co. 12 Fed. Rep. 309. 
 ' Shipper v. Pennsylvania R. Co. 47 Pa. 338; Houston & T. C. R. Co. v. Smith, 
 
 63 Tex. 322; Concord & P. R. Co. v. Forsaith, 59 N. H. 122, 47 Am. Rep. 
 
 181. 
 » Vincent v. Chicago & A. R. Co. 49 111. 33; State v. Cincinnati, W. &B. R. Co. 
 
 7 L. R. A. 319, 47 Ohio St. 130; Scojield v. Lake Shore & M. S. R. Co. 43 
 
 Ohio St. 571, 54 Am. Rep. 846. 
 s Union Locomotive & Exp. Co. v. Erie R. Co. 37 N. J. L. 23. 
 * ^Vl^eeUr v. San Francisco & A. R. Co. 31 Cal. 46, 89 Am. Dec. 147. 
 ^ Lidianapolis, P. & C. R. Co. v. Rinard, 46 Ind. 293. 
 ^StaU V. Delaware, L. & W. R. Co. 48 N. J. L. 55, 59 Am. Rep. 543. 
 "< Keeney v. Grand Trunk R. Co. 47 N.Y. 525, 59 Barb. 104; Avinger v. South 
 
 Carolina R. Co. 29 S. C. 265. 
 ^Samuels v. Louisville & N. R. Co. 4 Inters. Com. Rep. 420, 31 Fed. Rep. 67.
 
 758 UNJUST DISCRIMINATION. 
 
 that courts of law in England have recognized the rights of car- 
 riers to regulate their charges with reference to the quantity of 
 merchandise carried by the shipper, either at the beginning of 
 shipment or during a given period of time, although public senti- 
 ment in many communities is repugnant to such discriminations 
 and has crystallized into legislative condemnation of the practice. 
 By the English statute (17 & 18 Yict. chap. 31) railway and canal 
 carriers are prohibited from giving " any undue or unreasonable 
 preference or advantage to or in favor of any particular description 
 of traffic in any respect whatsoever," in the receiving, forward- 
 ing, and delivering of traffic ; but under these provisions of posi- 
 tive law the courts have held that it is not an undue preference 
 to give lower rates for larger quantities of freight.' These decis- 
 ions proceed upon the ground that the carrier is entitled to take 
 into consideration the question of his own profits and interests in 
 determining what charges are reasonable." In many cases it has 
 been held that the customer was only entitled to have his goods 
 shipped at a reasonable rate and not necessarily at ao equal rate 
 with others, and that he was not interested in the matter that 
 somebody else was charged less, or, in the incisive language of 
 Crompton, J., to counsel in the English case, " The charging an- 
 other person too little is not charging you too much." ' 
 
 As far as the common law is concerned, the question as to an 
 alleged discrimination by a carrier in rates is whether the rate to 
 the complaining party is reasonable or not.* But a railway com- 
 pany acting as a common carrier, and bound by statute to deal 
 equally with all persons, cannot make a regulation for the con- 
 veyance of goods which in practice affects one individual only.^ 
 The question, so far as it related to railroads, was settled by statute 
 
 ^ Bnnsome v. Eastern Counties R. Co. 1 Nev. & McN. 63; Nicholson v. Great 
 Western B. Co. 1 Nev. & McN. 121; Striek v. Swansea Canal Co. 16 C. B. 
 N. S. 245; Greenock v. Southeastern R. Co. 2 Nev. & McN. 319. 
 
 *Munn V. Illinois, 94 U. S. 113, 134, 24 L. ed. 77, 87. 
 
 'Garton v. Bristol & E. R. Co. 1 Best & S. 112, 154, 163; McDuffee v. Port- 
 land & R. R. Co. 52 N. H. 430, 13 Am. Rep. 72. 
 
 ♦ Missouri Pac. R. Co. v. Texas & P. R. Co. 4 Inters. Com. Rep. 428, 30 Fed. 
 Rep. 2. 
 
 » Crouch V. London & N. W. R. Co. 14 C. B. 255; Mm-gan v. Pike, 25 Eng. L. 
 & Eq. 287. See Crouch v. Great Northern R. Co. 34 Eng. L. & Eq. 572.
 
 DISCRIMINATION BETWEEN SHIPPEES EEBATE. 759 
 
 in England shortly after their introduction there under the " equal- 
 ity clause." By the English statute railroad companies were bound 
 to charge equally to all persons in respect to all goods under like 
 circumstances.* And by 17 & 18 Yict. chap. 31, §§ 2, 3, 6, the 
 court of common pleas was empowered to restrain by injunction 
 any railroad or canal company from giving undue or unreason- 
 able preference to any particular person, or description of traffic." 
 ■So for a long period of time, the English courts have had no oc- 
 casion to examine the condition of the common law upon the sub- 
 ject, independent of the statute.* In England the question of 
 discrimination by a raih'oad company between its patrons has 
 long been regulated by statute, which secures substantial equality 
 in the service.* 
 
 The recent decisions strongly tend to deny the right of a car- 
 rier to ruin or injure one man's business and build up that of his 
 rival by discrimination in rates, and to this extent it seems safe to 
 say the weight of authority restricts discrimination, but, on the 
 other hand, it seems to be a fair implication from a majority of 
 the decisions that a carrier may, in the absence of statutory re- 
 striction, show special favor to particular individuals by carrying 
 them or their goods free or for less than the usual reasonable rates, 
 so long as it is merely a matter of favor to those individuals and 
 works no injury to others. 
 
 Gamers are bound to carry indifferently within tlie usual range 
 of their business, for a reasonable consideration, all freight offered. 
 Eor similar equal services they are entitled to the same compen- 
 
 1 Pickford v. Qrand Junction B. Co. 10 Mees. & W. 399; Baxendale v. London 
 & 8. W. B. Co. L. R. 1 Exch. 137; London & N. W. B. Co. v. Ever shed, 26 
 Week. Rep. 863. 
 
 * See note to Coggs v. Bernard, 1 Smith, Lead. Cas. 369. 
 
 'For discrimination by a railroad company between express companies wish- 
 ing to do business over its line and in general for the right to compel serv- 
 ice by a carrier or other party whose business it is to serve the public, see 
 note to Bushville v, Bushville Nat. Oas. Co. (Ind.) 15 L. R. A. 321. 
 
 *Bansome v. Eastern Counties B. Co. 1 C. B. N. S. 437; Oxlade v. Northcnst- 
 ern^B. Co. 1 C. B. N. S. 454, 26 L. J. C. P. 129; Ba.rendale v. Eastern 
 Counties B. Co. 4 C. B. N. S. 61 ; NichoUoii v. Great WesUrn B. Co. 5 C. 
 B. N. S. 366; Carton v. Bristol & E. B. Co. 6 C. B. N. 8. &'i'd;.BranIey v. 
 Southeastern B. Co. 12 C. B. N. S. 63; London & N. W. B. Co. v. Evershed, 
 L. R. 3 App. Cas. 1029.
 
 760 UNJUST DISCKIMINATION. 
 
 sation, and no more, it is said, from one shipper than from an, 
 other, nor can they give any preference in the order of trans- 
 portation,' A common carrier cannot give any undue preference 
 or advantage to any particular person, company, firm, corporation 
 or locaKty, — or to any particular description of traffic in any 
 respect whatsoever. He must know no friends to whom he con- 
 cedes unequal and unjust favors. The opportunity for profit of 
 a stranger in a single and unusual transaction should be held a& 
 important by the carrier as the traffic of a constant shipper ; no 
 preference should be given to either. It is the duty of a common 
 carrier to provide adequate equipment for the business of his line ; 
 if in time of special pressure some one must wait, the annoyance 
 must be distributed with all possible equality. It is in contraven- 
 tion of the statute for a common carrier to refuse a shipment upon 
 the ground that regular patrons desire to use all the facilities at 
 hand and to appropriate to the use of the latter the entire avail- 
 able equipment. Such a carrier cannot unreasonably discriminate 
 as to whom it will serve." 
 
 A common carrier of livestock is under obligation to furnish 
 cars for such stock on reasonable notice, if with reasonable dili- 
 gence it can do so without jeopardizing its other business as 
 such common carrier.' A foreign as well as a domestic corpo- 
 ration is entitled to the protection of Me, Rev. Stat. chap. 51, 
 § 13-i, requiring it to extend equal facilities to all persons or com- 
 panies." It is no proper business of a common carrier to foster 
 particular enterprises, it is bound to deal fairly with the public, 
 to extend to them reasonable facilities for the transportation of 
 their persons and property, and to put all its patrons upon an ab- 
 solute equality.^ 
 
 ^New England Exp. Co. v. Maine Cent. R. Co. 57 Me, 188, 2 Am. Rep, 31; In- 
 ternational Erp. Co. V. Orand Trunk R. Co. 81 Me. 92; Houston & T. C. R. 
 Co. V. Smith, 63 Tex. 322. 
 
 * Bennett v. Button, 10 N. H. 486; Messenger v. Pennsylvania R. Co. 37 N. J. 
 
 L. 531, 18 Am. Rep. 754; Cumberland Valley R. Go's App. 62 Pa. 218; Gar- 
 ton V.Bristol & E. R. Co. 30 L. J. Q. B. 273; Crouch v. London cfc N. W. R, 
 Co. 23 L. J. C. P. 73; Crouch v. Great Nortliern R. Co. 11 Exch. 742. 
 3 Ayres v. Chicago & N. W. R. Co. 71 Wis. 372. 
 
 * International Exp. Co. v, Orand Trunk R. Co. 81 Me. 92. 
 
 « Union Pac. R. Co. v. Qoodridge, 149 U. S. 680, 37 L. ed. 896.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 761 
 
 Where the discrimination in the charges of freight to shippers 
 is based solely on the amount of freight shipped, without refer- 
 ence to conditions tending to decrease the cost of transportation,, 
 such discrimination was held contrary to sound public policy, 
 being in favor of capital.' In Illinois, the disposition in the rail- 
 roads to discriminate seems to have taken the type of charging 
 more to one warehouse than to another in the same city. And 
 in Yincejit v. Chicago <& A. R. Co. 49 111. 33, it was decided : 
 " A railroad will not be permitted to charge one rate of delivery 
 to one warehouse and a different rate to another." In Chicago & 
 N. ^Y. R. Co. V. People, 56 111. 365, 8 Am. Kep. 690, the appli- 
 cation below was for mandamus to compel delivery of grain to 
 the elevator to which it was consigned. On page 378 the court 
 says : " Regarded merely as a common carrier at common law, 
 and independently of any obligation imposed by the acceptance 
 of its charter, it would owe important duties to the public, from 
 which it could not release itself without the consent of every per- 
 son who might call on it to perform them. Among these duties 
 as well defined and settled as anything in the law, was the obliga- 
 tion to receive and carry goods for all persons alike without in. 
 jurious discrimination as to the terms." In Chicago <& A. R. 
 Co. V. People, 67 111. 11, 16 Am. Rep. 599, an information by 
 quo warranto was filed below by the railroad warehouse commis- 
 sioners against the railroad. On page 17 the court says : " An- 
 other perfectly well settled rule of the common law in regard to 
 common carriers is that they shall not exercise any unjust and in- 
 jurious discrimination between individuals in the rates of toll." 
 In that court it has been held that a railroad corporation, although 
 permitted to establish its rates for transportation, must do so 
 without injurious discrimination to individuals ; that its charges 
 must be reasonable.'' If it shall in good faith, from a pressing 
 cause, take grain from wagons or boats, while grain remains for 
 shipment in private warehouses, it will not thereby incur liability. 
 If by reason of bribes or other improper motives, railway em- 
 
 • Hays V. Pennsylvania Co. 12 Fed. Rep. 309. 
 
 2 Chicago <& A. B. Co. v. People, supra; Vincent v. Chicago & A. R. Co. 4£ 
 111. 33.
 
 762 UNJUST DISCRIMINATION. 
 
 ployes give preference to one person over another, tlie company 
 may be held liable for damages thereby sustained/ 
 
 A common carrier cannot, as a matter of discrimination in favor 
 of any shipper, delay the transportation of goods already received, 
 that he may accept and forward other goods." Where a railroad 
 company has iixed its rates for the transportation of grain, from 
 any given station on the line of its road, to Chicago, it will not be 
 permitted to charge one rate for delivery at the warehouse of one 
 person, and a different rate for delivery at that of another, both 
 houses being upon its line or side tracks/ Refusing to give one 
 shipper the benefit of an unexpired contract for transportation at 
 the old rates when advancing the rates for transportation on that 
 class of freight, although unexpired contracts of other shippers 
 are recognized and carried out, will render the carrier guilty of 
 the statutory offense of unjust discrimination." In Ohio, it was 
 held that where a railroad company gave a lower rate to a favored 
 shipper, with the intent to give such shipper an exclusive mo- 
 nopoly, thus affecting the business and destroying the trade of 
 other shippers, the latter have the right to require an equal rate 
 for all under like circumstances." 
 
 A contract by a carrier to carry for one shipper at half the rate 
 it agrees to charge all others for the same service, and to pay him 
 half the amount charged and collected from such others, in con- 
 sideration of his establishing a system of pipe lines to its road, is 
 against public policy and void." A corporation engaged in carry- 
 ing goods for hire as a common carrier has no franchise, privilege 
 or right to discriminate in its freight rates in favor of one ship- 
 per, even when it is necessary to do so to secure his custom, if the 
 discriminating rate will tend to create a monopoly by excluding 
 from their proper markets the products of the competitors of the 
 
 • Galena & C. U. R. Co. v. Bae, 18 111. 488, 68 Am. Dec. 574. 
 
 « Great Western R. Co. v. Burns, 60 111. 284; Chicago & A. B. Go. v. Peojile, 
 67 111. 11, 16 Am. Rep. 599; Keeney v. Grand Trunk B. Co. 47 N. Y. 525. 
 
 3 Vincent v. Chicago <& A. B. Co. 49 111. 33. See People v. Chicago & A. B. Co. 
 55 III. 95, 8 Am. Rep. 631. 
 
 * Louisville, E. & St. L. Consol. B. Co. v. Crown Goal Co. 43 111. App. 228. 
 ^Scofield V. Lake Shore & M. S. B. Co. 43 Ohio St. 571, 54 Am. Rep. 846. 
 ^Brundred v. Bice, 49 Ohio St. 640.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 763 
 
 favored shipper.' In 'New Hampshire it has been held that a 
 railroad is bound to carry at reasonable rates commodities for all 
 persons who offer them, as early as means will allow ; that it can- 
 not directly exercise unreasonable discrimination as to who and 
 what it will carry ; that it cannot impose unreasonable or unequal 
 terras, facilities or accommodations." To similar effect are cases 
 in other states.' In New York the authorities are exceedingly 
 meager. The question was considered to some extent in the case 
 of killmer v. New Torh Cent. o& H. R. R. Co. 100 N. Y. 395, 
 53 Am. Rep. 194:, in which it was held that the reservation in the 
 general act of the power of the legislature to regulate and reduce 
 charges, where the earnings exceeded ten per cent of the capital 
 actually expended, did not relieve the company from its common 
 law duty as a common carrier; that the question as to what was a 
 reasonable sum for the transportation of goods on the lines of a 
 railroad in a given case, is a complex question, into which enter 
 many elements for consideration. 
 
 In determining the duty of a common carrier, we must be rea- 
 sonable and just. The carrier should be permitted to charge 
 reasonable compensation for the goods transported. He should 
 not, however, be permitted to unreasonably or unjustly discrimi- 
 nate against other individuals, to the injury of their business, 
 where the conditions are equal. So far as is reasonable, all should 
 be treated alike ; but, absolute equality cannot, in all cases, be re- 
 quired, for circumstances or conditions may make it impossible or 
 unjust to the carrier. The carrier may be able to carry freight 
 over a long distance at a less sura than he could for a short 
 distance. He may be able to carry a large quantity at a less rate 
 than he could a smaller quantity. The facilities for loading and 
 unloading may be different in different places, and the expenses 
 may be greater in some places than in others. Numerous circum- 
 stances may intervene which bear upon the cost and expenses of 
 transportation, and it is but just to the carrier that he be permitted 
 
 » State \t Cincinnati, W. & B. R. Co. 7 L. R. A. 31J), 47 Ohio St. 130. 
 
 *McDuffee v. Portland & R. R. Co. 53 N. H. 430, 13 Am. Rep. 72. 
 
 *New England Exp. Co. v. Maine Cent. R. Co. 57 Me. 188, 2 Am.. Rep. 31; 
 
 Shipper v. Penmylmnia R. Co. 47 Pa. 338; Fitchburg R. Co. v. Gage, 12 
 
 Gray, 393; Menaclio v. Ward, 27 Fed. Rep. 529.
 
 764 UNJUST DISCRIMINATION. 
 
 to take these circumstances into consideration in determining the 
 rate or amount of his compensation. His charges niu&t tlierefore 
 be reasonable, and he must not unjustly discriminate against 
 others; and in determining what would amount to unjust dis- 
 crimination, all the facts and circumstances must })e taken into 
 consideration. This raises a question of fact which must ordinar- 
 ily be determined by the trial court. 
 
 A common carrier may attach to a special rate for carriage of 
 merchandise a condition that the consignor ship all his goods by 
 the carrier's line; and the shipper has no cause to complain of 
 discrimination if the same terms are offered to all shippers.' A 
 contract for rebate in freight charges is not necessarily void as an 
 unreasonable discrimination between 6hip})er8, as the same rebate 
 may be made to all shippers." A railway company is justified in 
 carrying goods for one person at a less rate than that at which it 
 carries goods for another only where there are circumstances 
 which make the cost of carrying the former less than the cost of 
 carrying the latter under some decisions." 
 
 The ditTcrence in rates must bear some proportion to the differ- 
 ence in the cost to the carriers.* A difference in bulk will not 
 justify difference in rates." Or difference in expense of loading 
 or unloading." An agreement by a railroad company to transport 
 coal at a specified rebate from regular tariff rates, in consideration 
 of the shipper's erecting a dock and coal pockets on the company's 
 land for use by both parties, is not, as matter of law, void because 
 of unjust discrimination against other shippers, — especially where 
 the shipper also agrees to do his own loading and to ship in large 
 
 ^ Lough V. Outerbridge, 68 Hun. 486; Nicholson -f . Great Western R. Co. 1 Nev. 
 
 & McN. 121. 5 C. B. N. S. 366, 7 C. B. N. S. 755. 
 ^Kansas Pac. R. Co. v. Bayks, 19 Colo. 348, Feb. 5, 1894. 
 3 Carton v. Bristol & E. R. Co. 6 C. B. N. S. 639, 28 L. J. C. P. 306. 1 Nev. 
 
 & McN. 218; Oxlade v. Noitheastern R. Co. 1 C. B. N. 8. 454, 26 L. J. C. 
 
 P. 129. See 1 Inters. Com. Rep. 862. 
 * Harris v. Cockerrnouth & W. R. Co. 1 Nev. & McN. 97-102, 3 C. B. N. S. 693; 
 
 Carton v. Bristol & E. R. Co. svpra; Nicholson v. Great Western R. Co. 1 
 
 Nev. & McN. 185; Denaby Main Colliery Co. v. Manchester, S. & L. R. Co. 
 
 L. R. 11 App. Cas. 122; Baxendale v. Great Western R. Co. 1 Nev. & McN. 
 
 202; Ransome v. Eastern Counties R. Co. 1 Nev. & McN. 69. 
 « Lotspeich v. Central R. & Bkg. Co. 73 Ala. 306. See 1 Inters. Com. Rep. 862. 
 « Chicago & A. R. Co. v. People, 67 111. 26, 16 Am. Rep. 599.
 
 DISCRIMLNATION BETWEEN SHIPPEE8 REBATE. 765 
 
 quantities. The question of unjust discrimination is one of fact." 
 But a charge by a railroad company to one shipper of a larger 
 amount than to another for the same service, under like circum- 
 stances, constitutes in Pennsylvania undue discrimination and 
 renders the charge unreasonable.' To entitle a shipper to recover 
 from a carrier for discrimination in rates, such discrimination must 
 be made in respect to like service and under like conditions in all 
 material respects.' 
 
 In Audenried v. Philadelphia cl' R. E. Co. GS Pa. 370, a bill 
 %vas brought to enjoin defendant from refusing to plaintiff priv- 
 ileges granted to others. The court says, on page 380, "Trans- 
 portation by a common carrier is necessarily open to the public on 
 equal and reasonable terms." A railroad conq)any may under Pa. 
 Act June 4, 1883, prohibiting undue or unreasonable discrimina- 
 tion by railroad companies between shippers for a like service 
 from the same place upon like condition and under similar 
 circumstances, charge a lower rate of freight for coal transported 
 to a factory from which it obtains manufactured products for 
 shipments, than to a coal dealer whose business with it is limited 
 to the transportation of the coal. The fact that a manufacturing 
 company given a reduced rate on its coal sells some of the coal to 
 its employes will not render the railroad company transporting the 
 coal liable for unlawful discrimination under Pa. Act June 4, 1883, 
 prohibiting undue or unreasonable discrimination for like services 
 from the same place, upon like condition and under similar cir- 
 cumstances, where the company has no knowledge of such sales; 
 but, upon being notified of such selling, the transporting company 
 must cease to carry coal to the manufacturing company at any less 
 rate than that charged to coal dealers or incur the penalties of 
 unjust discrimination.* The fact that boards shipped are beveled 
 on one edge and are prepared for being put together as troughs 
 and are denominated '' knock-down troughs " does not justify a 
 
 ' Root V. Long Island R. Co. 2 Inters. Com. Rep. 576, 4 L. R. A. Wdl, 114 N. 
 Y. 300. 
 
 * n<x>v^r V. Pennsylvania R. Co. 156 Pa. 220. 
 
 * Paine v. Pennsylvania R. Co. 7 Kulp. 187. 
 "* Hoover Y. Pennsylvania R. Co. supra.
 
 "HiQ UNJUST DISCRIMINATION. 
 
 railroad company in giving the shipper a freiglit rate less than that 
 charged the general public upon ordinary lumber.' 
 
 An alleged overcharge and discrimination on freight shipped 
 from a point in Missouri to its destination in Texas, on a through 
 bill of lading, is not within Tex. Rev. Stat. art. 4257, lixing a 
 maximum rate of freight, and forbidding unjust discrimination 
 and overcharge under penalty, although the entire haul of one of 
 the connecting roads is in Texas ; but the transaction constitutes 
 an interstate shipment within the Act of Congress to regulate 
 commerce." A railway company is liable in an action to recover 
 an excess of freight paid by a shipj)er, and for the statutory pen- 
 alty for freight discrimination, where it frequently, about the time 
 referred to, transported the same class of goods between the same 
 points for other persons for much less per hundred weight in less 
 than carloads than was charged plaintilf by the carload.' And it 
 is decided in Nebraska that a railroad company may impose rea- 
 sonable terms and conditions upon persons who erect elevators at 
 stations on its line of road, but such conditions and terms must be 
 the same to all such persons, and the State Board of Transporta- 
 tion, under the Nebraska act which took effect July 1, 1887, it is 
 declared, may institute an action in a proper case to require a rail- 
 road company to furnish like facilities to erect an elevator at one 
 of its stations to all persons engaged, or desiring in good faith to 
 engage, in the business of receiving, handling, and shipj)ing grain 
 over the railway. Facilities for the erection of an elevator at a 
 railway station need not necessarily be furnished by the carrier 
 upon the right of way, but may be along the side thereof ; but if 
 such facilities are granted to one or more on the right of way, the 
 same privilege upon like terms and conditions must be granted to 
 others who desire in good faith to engage in the business of 
 receiving, storing, and shipping produce at that point." 
 
 Discrimination in the making of contracts by a carrier for the 
 carriage of goods, without partiality, is inoffensive. Partiality 
 
 ^Mw York, T. & M. R. Co. v. Oallaher, 79 Tex. 685, 9 Ry. & Corp. L. J. 453. 
 ^ Texas & P. R. Co. v. Clark, 4 Tex. Civ. App. 611. 
 
 * Galveston, H. & 8. A. R. Co. v. Bowman (Tex. Civ. App.) 
 
 * Slate V. Missouri Pac. R. Co. 29 Neb. 550, 42 Am. & Eag. R. Gas. 661.
 
 DI80EIMINATI0N BETWEEN SHIPPERS REBATE. 767 
 
 exists only in cases where advantages are equal and one party is 
 unduly favored at the expense of another who stands upon an 
 equal footing.' A contract with a shipper, of such character as 
 to destroy the business of his rivals by giving him a monopoly, is 
 unjust without regard to the consideration upon which it is based. 
 A railroad company cannot, it is said, discriminate for a ship- 
 per who furnishes a large amount of freight, over one engaged 
 in the same business who is unable to furnish the same quantity — 
 at least where both ship in carload lots.* The Constitution of 
 Colorado, together with the corresponding statutes, prohibiting 
 railroads from discrimination in freights is as follows : Constitu- 
 tion, art. 15, sec. 6 : "All individuals, associations, and corpora- 
 tions shall have equal rights to have persons and property 
 transported over any railroad in this state, and no undue or 
 unreasonable discrimination shall be made in charges or in facili- 
 ties for transportation of freight or passengers within the state, 
 and no railroad company, nor any lessee, manager, or employe 
 thereof, shall give any preference to individuals, associations, or 
 corporations in furnishing cars or motive power." 
 
 Session Laws of Colorado, 18S5, page 309 : " Sec. 7. (Unjust 
 discrimination.) No railroad corporation shall, without the writ- 
 ten approval of said commissioner, charge, demand, or receive 
 from any person, company or corporation for the transportation 
 of persons or property, or for any other service, a greater sum 
 than it shall, while operating under the classification and schedule 
 then in force, demand or receive from any other person, company 
 or corporation for a like service from the same place, or upon 
 like conditions and under similar circumstances, and all conces- 
 sions of rates, drawbacks, and contracts for special rates shall be 
 open to, and allowed all persons, companies and corporations 
 alike, at the same rate per ton per mile, upon like conditions and 
 under similar circumstances, except in special cases designed to 
 promote the development of the resources of this state, when the 
 approval of said commissioner shall be obtained in writing," etc. 
 
 « Cleveland, C. C. & 1. B. Co. v. Closser, 3 Inters. Com. Rep. 387, 9 L. R. A. 
 
 754, 126 Ind. 348. 
 •Louisville, E. «fc St. L. Consol. R. Co. v. Wilson, 18 L. R. A. 105, 132 Ind. 517.
 
 768 UNJUST DISCRIMINATION. 
 
 "Sec. 8. (Extortion.) No railroad corporation shall charf^e, de- 
 mand or receive from any person, company or corporation an un- 
 reasonable price for tlie transportation of persons or property, or 
 for the handlinor or storing of freight, or for the use of its cars, 
 or for any privilege or service alforded by it in the transaction of 
 its business as a railroad corporation and not si)ecitied in the 
 classification and schedule prepared and published by such rail- 
 road corporation. The superintendent, or other cliief executive 
 othcer of each raih-oad in this state, shall cause to be kept posted 
 up, in a conspicuous place in the passenger depot in each station 
 where passenger tickets are kept for sale, a printed copy of the 
 classification and schedule of rates of freight charges then in force 
 on each railroad, for the use of the patrons of the road. Any 
 railroad company violating any of the provisions of this section 
 shall be deemed guilty of extortion and be subject to the penal- 
 ties hereinafter prescribed." 
 
 The Supreme Court of the United States has decided that this 
 law was intended to put all shippers on an absolute equality, sav- 
 ing only a power in the railroad commissioner in special cases. 
 That a particular company is allowed by a railroad less rates than 
 other shippers are required to pay, upon considerations which are 
 satisfactory to the railroad, is no answer to a complaint of unlaw- 
 ful discrimination. It is not a justification for a violation by a 
 railroad company of the law, by charging one coal company less 
 rates for transportation than it charged })laintiffs, that it was done 
 in consideration of the coal company selling coal to such railroad 
 for its own use at a certain price, and of the compromise and set- 
 tlement of a claim of the coal company against the railroad com- 
 pany. Under this law, the right of a railroad to charge a certain 
 sum for freight does not depend at all upon the fact whether its 
 customers are making or losing by their business.' 
 
 In Cook v. Chicago^ R. I. tfc P. R. Co., 2 Inters. Com. Rep. 
 383, 9 L. R. A. 764, 81 Iowa, 551, it is said that a common car- 
 rier cannot lawfully make unreasonable charges for his services, 
 
 » Union Pac. R. Co. v. Goodridge, 149 U. 8. 680, 37 L. ed. 896.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 769 
 
 or unjust discrimination between his customers.' The plaintiffs 
 claimed unlawful and unjust overcharges upon the shipment of 
 310 carloads. Each shipment was pleaded in a separate count as 
 a separate cause of action. All of the counts were alike except 
 iu dates of shipment, cars and kinds of stock shipped, and stations 
 from which the shipments were made. It is averred, in sub- 
 stance, that the pubUc tariff rates for shipment of livestock, from 
 any point in Jasper county during the time the plaintiffs made 
 such shipments, was $00 for one carload. That the plaintiffs paid 
 the full amount of said rates, and that certain other shippers (who 
 are named in the petition) also paid the full tariff rates ; but that 
 said other shippers were allowed and defendant paid to them a 
 rebate or drawback upon each carload shipped by them, which 
 rebate or drawback was paid by defendant to said shippers, under 
 a private and secret arrangement between the defendant company 
 and said shippers ; and that the knowledge of the payment of 
 such rebates was wrongfully and fraudulently concealed from 
 the plaintiffs by the defendant, and said other favored shippers. 
 That the agents of the defendant openly announced and declared 
 to the plaintiffs that the public and announced tariff paid by the 
 plaintiffs was correct, and tliat no cut, rebate or concession from 
 the same was allowed to any shipper, and that the plaintiffs, by 
 reason of said wrongful and fraudulent agreement, did not and 
 could not have discovered it, and they shipped their stock in the 
 belief that no unjust discrimination was made against them. It 
 is charged that the shipments made by the plaintiffs, and those 
 made by the said favored shippers, were for precisely the same 
 service, from the same places, upon like conditions and under pre- 
 •cisely the same circumstances, and that the rate charged by the 
 defendant and paid by the plaintiffs was unreasonable, extortion- 
 ate and unjust, and that it was an unjust discrimination between 
 shippers for the same service under like circumstances. 
 
 Equality in charges is required under circumstances and con- 
 
 ^See Sharpless V. Pfiilndelphia, 21 Pa. 147,59 Am. Dec. 759; New England 
 Expi C'u. V. Maine Cent. R. Co. 57 Me. 188, 2 Am. Rep. 31; McDnffee v. 
 Portland cfc R. R. Co. 52 N. H. 430. 13 Am. Kep. 72; Messenger y. Pennsyl- 
 vania R. Co. 36 N. J. L. 407, 13 Am. Rep. 457. 
 
 49
 
 770 UNJUST DISCRIMINATION. 
 
 ditions substantially similar, and relative equality is necessary in 
 the degree of similarity.' A contract of a railway company which 
 gives to certain persons an exclusive advantage or mont^poly over 
 all other transporters in the transportation of goods is unjust and 
 cannot be legally enforced.' Common carriers cannot make un- 
 reasonable discriminations or give undue preferL-nccs between 
 persons applying to them for carriage either of passengers or 
 goods, either in granting carriage to some and not to others, or in 
 carrying for some for less rates than for (ttiicrs.' Nor can they 
 discriminate against a local shipper by depriving liim of any ma- 
 terial advantage.* JSTor can rates be given to one shij)per and re- 
 fused to another on capricious, arbitrary and unreasonable grounds.' 
 The remedy against a railroad company for charging discrimina- 
 ting freights, where there is no adequate remedy at law, is by in- 
 junction.' A court of equity, to enforce statutes against discrim- 
 ination, must be fully satislied that its orders will not likewise 
 work a discrimination.' 
 
 In the English courts it is ruled that a hii^her rate of frei^rht 
 upon a cross line, than is charged on the main line of a railroad, is 
 not, under the English statute, an illegal discrimination." Where 
 three firms were connected with another railway, and in order to 
 secure a portion of their traffic, the defendant railway carted 
 goods to its own railway practically free of charge, but refused to 
 give such a privilege to the plaintiff engaged in the same business 
 
 ' Manufacturers & J. Union v. Minneapolis <& St. L. R. Co. 3 Inters. Com. 
 
 Rep. 115. 
 ^Messenger v. Pennsylvania R. Co. 37 N. .J. L. 531, 18 Am. Rep. 754; Union 
 
 Locomotive & Exp. Go. v. Erie R. Go. 37 N. J. L. 23. 
 ^McDuffee v. Portland & R. R. Go. 52 N. H. 430, 13 Am. Rpp. 72; Chicago, 
 
 B. & Q. R. Co. v.Park.1. 18 111. 460, 68 Am. Dec. 562; Indianapolis. P &' 
 
 C. R. Co. V. Rinard, 46 Ind. 293; MfMcuger v. Pennsylvania R. Co. 36 N. J. 
 L. 407, 13 Am. Rep. 457; Hays v. Pennsylvania Co. 12 Fed. Rep. 311; Com. 
 V. Power, 7 Met. 596, 41 Am. Dec. 465. 
 
 *Ramome v. Eastern Counties R. Go. 1 Nev. & McN. 109, 4 C. B. N. S. 135; 
 
 Denaby Main Colliery Co. v. Manchester, S. & L. R. Go. L. R. 11 App. Cas. 
 
 97. 
 ^Budd V. London & N. W. R. Go. 25 Week. Rep. 752. 
 « Scojield V. Lake Shore & M. S. R. Co. 43 Ohio St. 571, 54 Am. Rep. 846. 
 ' Chouteau v. Union R. & T. Co. 22 Mo. App. 286. 
 « Finnie v. Glasgow & 8. W. R. Co. 2 Macq. H. L. Cas. 177, 3 Macq. H. L. 
 
 Cas. 75, 1 Patterson, 520.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. iJi 
 
 as the three firms, — bnt who was not connected with either of 
 the railways, — this gratuitous cartini^, loading and unloading of 
 the goods for the three firms amounts to an inequality in favor 
 of them, and the undue preference granted them by the defend- 
 ant is in contravention of 8th & 9th Vict. chap. 20, § 90, and 
 17th & 18th Vict. chap. 31, § 2. And the plaintiff was entitled 
 to maintain an action to recover the amounts paid by him to the 
 defendant, which represented the cost of carting his goods be- 
 tween his premises and the station, and of loading and unloading 
 the same.* 
 
 It is an undue preference for a railway company to permit a 
 carrier, who also acts as superintendent of its freight transporta- 
 tion, to hold himself out as his agent for the receipt of goods to 
 be carried on its line and to receive such goods, by requiring the 
 shippers to sign conditions which are not exacted from other car- 
 riers bringing goods to its station.' A railway company must give 
 equal facilities and similar rates to all persons in receiving and 
 delivering goods.* Where the carrier is willing to afford the same 
 facilities to others upon the same terms, special agreements giving 
 such advantage in the transportation of goods are not illegal.* 
 That the party is a customer of the railway company also in goods 
 of a different kind, will not justify discrimination in his favor.* 
 The agreement of the shipper that he will use other lines of the 
 company, for the carriage of traftic distant and unconnecting with 
 the goods shipped, is not a legitimate ground for giving a pref- 
 i-rence to such customer. A charge cannot be affected by the 
 consent or declination of the shipper to bind himself to employ 
 the company in other and totally distant lines of transj)ortation.* 
 A railway company required to charge " equally to all persons, 
 
 ^Evershed v. London & N. W. R. Co. L. R. 3 Q. B. Div. 134, L. R. 2 Q. B. 
 
 Div. 254, L, R. 3 App. Cas. 1029. 
 *Baxendale v. Bristol & E. R. Co. 11 C. B. N. S. 787. 
 3 Cooper V. London & S. W. R. Co. 4 C. B. N. S. 738, 27 L. J. C. P. 324, 1 
 
 Nev. & McN. 185; BeU v. London etc. R. Co. 2 Nev. & McN. 185. 
 
 * Nicholson v. Great Western R. Co. 1 Nev. & McN. 121, 5 C. B. N. S. 366, 7 
 
 C. B. N. S. 755. See Lough v. Outerbridge, 68 Hun. 486; Kansas Pac. R. 
 Co. V. Bayles 19 Colo. 348 Feb. 5, 1894. 
 
 * BeUsdyke Coal Co. v. North British R. Co. 2 Nev. & McN. 105. 
 ^Baxendale v. Great Western R. Co. 5 C. B. N. S. 336.
 
 7Y2 UNJUST DlSClilMlNATlON. 
 
 etc., in all like circumstances," leasing another line not thus 
 restricted, bound by the terms of release to pay to the lessee, a 
 certain sum on all minerals carried by the latter, may charge for 
 goods taken up by the main line and forwarded by the other, and 
 goods carried entirely by the lessee according to different rates.' 
 The second section of the Interstate Commerce Act prohibits 
 unjust discrimination and declares that the common carrier charg- 
 ing a greater or less compensation for any service rendered in the 
 transportation of passengers or property than it charges any other 
 person for doing a like and contemporaneous service in the trans- 
 portation of a " like kind of tratHc under substantially simiUir cir- 
 cumstances and conditions," shall be deemed guilty of unjust dis- 
 crimination. The third section provides that it shall be unlawful 
 for the carrier to make or give any undue or unreasonable 
 preference or advantage to any particular person, locality, or 
 particular description of traffic in any respect whatsoever, or to 
 subject any particular person or locality or any particular descrip- 
 tion of traffic to any undue or unreasonable prejudice or disadvan- 
 tage in any respect whatsoever. The third section is substantially 
 taken from the second section of the English Act of Parliament 
 known as the Railway & Canal Traffic Act of 185-i. 
 
 Either section is sufficiently comprehensive in its terms to pro- 
 hibit an interstate carrier frem making an unfair discrimination 
 between different shippers in charges for a like and contempora- 
 neous service in the transportation of a like kind of traffic under 
 substantially similar circumstances and conditions. But neither 
 section is intended to prohibit all discriminations or preferences. 
 In considering whether an undue discrimination has been made, 
 the fair interests of the carrier are to be taken into account, and 
 although lower rates are given to one shipper or class of shijjpers 
 than to another for carrying the same kind of traffic, the latter 
 have no just ground of complaint of unjust discrimination if the 
 conditions of the service enable the carrier to take the traffic of 
 the former at a less cost ; nor is the discrimination unjust if made 
 conformably to some agreement by which the favored shipper 
 gives the carrier an adequate consideration for the reduced rates. 
 
 > Finnie v. Glasgow & S. W. B. Co. 2 Stuart, 195.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 773 
 
 Upon this principle it was decided not to be an unjust preference 
 under the Englisli Act for a railway company to carry at a lower 
 rate, in consideration of a guarantee of large quantities and full 
 train loads at regular periods, provided the real object of the 
 company was to obtain thereby a greater remunerative profit by 
 the diminished cost of carriage, althougli the effect might be to 
 exclude from the lower rate those shippers who could not give 
 such guarantee.' The discrimination between different shippers 
 is a lawful one if it is such as the carrier may fairly give because 
 of the difference in cost, expense or the exceptional character of 
 the service.^ 
 
 Prior to the enactment of the Interstate Commerce Act the 
 courts were of the opinion that discriminations by railway carriers 
 in the rates of freight charged to shippers based solely on the 
 ground of the quantity of freight shipped, without reference to 
 any conditions, tending to decrease the cost of transportation, 
 were contrary to sound public policy and inconsistent with the 
 obligations of such carriers to the public.^ It might well be that 
 shippers would be induced to increase their traffic with a carrier 
 by the offer of such discrimination, perhaps by withdrawing part 
 of it from a rival carrier, perhaps by stimulating the shipper to 
 enlarge his business operations and thus the discrimination might 
 be profitable to the carrier. The English courts, in cases arising 
 under the English Traffic Act, have held that preferences given 
 to particular shippers to induce them not to divert traffic from the 
 carrier or to induce them to transfer traffic to one carrier which 
 otherwise would go to another carrier, are unlawful and cannot be 
 justified on the ground of profit to the carrier allowing them.* 
 
 In the first of these cases the judges in opinion pointed out that 
 if they were to justify a discrimination upon such reasons a rail- 
 way company might in any case grant a preference to one person 
 
 « Nicholson v. Great Western R. Co. 5 C. B. N. S. 366. 
 
 * Morris v. Delaware, L. & W. B. Co. 2 Inters. Com. Rep. 617, 40 Fed. 
 
 Rep. 101. 
 *Eays V>. Pennsylvanca Co. 12 Fed. Rep. 309; Burlington, C. B. & N. B. Co. 
 V. Northicestern Fuel Co. 31 Fed. Rep. 652. 
 
 * Harris v. Cockermouth & W. R. Co. 3 C. B. N. S. 693; Ever shed t. London 
 
 & N. W. B. Co. L. R. 2 Q. B. Div. 254.
 
 774 UNJUST DISCRIMINATION. 
 
 over another, provided it acted bona fide in the behef that such a 
 course would be to its advantage. In the second case the court 
 in pronouncing against the validity of the justification used this 
 language : "We think that a railway company cannot, merely 
 for the sake of increasing their traffic, reduce their rates in favor 
 of individual customers, unless at all events there is a sufficient 
 consideration for the reduction which shall lessen the cost to the 
 company of the conveyance of their traffic or some other equiva- 
 lent or other services are rendered to them by such individual in 
 relation to such traffic." The Interstate Commerce Act would be 
 emasculated in its remedial efficacy, if not practically nullified, if 
 a carrier can justify a discriminatit^n in rates merely upon the 
 ground that unless it is given the traffic ol)tained by giving it 
 would go to the competing carrier. A shipper having a choice 
 between competing carriers would only have to refuse to send his 
 goods by one of them unless given exceptional rates to justify that 
 one in making the discrimination in his favor on the ground of 
 the necessity of the situation.' The purpose of the Interstate 
 Commerce Act requires, when circumstances will fairly admit of 
 it, charges to all points for like service shall be made relatively 
 equal. Discrimination must consist in allowing one party what 
 is denied another.' "Any undue or unreasonable preference or ad- 
 vantage," within the meaning of the Act to Regulate Commerce, 
 § 3, includes every form of unjust discrimination, not only in 
 rates, but also in the conveniences and facilities supplied to ship- 
 pers in any of the details of the carrying service.' The Interstate 
 Commerce Act was not designed to prevent competition between 
 different roads, nor to interfere with the customary arrangement 
 made by railway companies for reduced fares in consideration of 
 increased mileage, where such reduction does not operate as an 
 unjust discrimination against other persons traveling over the 
 road. In order to constitute an unjust discrimination under sec- 
 tion 2, of the Interstate Commerce Act, the carrier must charge 
 
 ^Interstate Commerce Com. v. Texas P. R. Co. 4 Inters. Com. Rep. 115. 
 " Creics V. Richmond & D. R. Co. 1 Inters. Com. Rep. 703. 
 * Morris v. Delaware, L. & W. R. Co. 2 Inters. Com. Rep. 617; United States 
 V. Tozer, 2 Inters. Com. Rep. 597.
 
 DISCKIMIXATION BETWEEN SBIPPEKS KEBATE. 775 
 
 or receive directly from one person a greater or less compensation 
 than from another, or must accomplish the same thing indirectly 
 by means of a special rate, rebate or other device ; but, in either 
 case, "it must be for a like and contemporaneous service in the 
 transportation of a like kind of traffic, under substantially similar 
 circumstances and conditions.' 
 
 An advantage resulting from just rates coupled with the enter- 
 prise and outlay necessary to utilize them is legitimate, and car- 
 riers should not undertake to deprive a shipper of this advantage 
 by a change of such rates." The purpose of the Interstate Com- 
 merce Act requires that when circumstances will fairly admit of 
 it, charges to all points for like service should be made relatively 
 equal. Discrimination must consist in the doing for or allowing 
 to one party or place what is denied to anotiier ; it cannot be 
 predicated of action which in itself is impartial.* Less desirable 
 traffic must be accepted upon reasonable terms, as well as that 
 which is more desirable.* " Goods of like description " and 
 ''goods of same description" refer not to tlie contents of the par- 
 cels, but to the parcels themselves — that is like or different for 
 the purpose of carriage.* To render a preference of one over an- 
 other unlawful, under the Act to Regulate Commerce, it is not 
 necessary that it should be accomplished by any " device ; " and it 
 is equally true that the ingenuity of man cannot invent a " de- 
 vice" for the perpetration of an unlawful preference on the part 
 of a carrier engaged in interstate commerce, without incurring 
 the penalties prescribed by the statute." The offense under the 
 second section of the Act consists in charging, demanding, col- 
 lecting or receiving by a common carrier to which the Act ap- 
 plies, from any person or persons, a greater or less compensation 
 for service rendered or to be rendered, in the transportation of 
 
 ' Interstate Commerce Com. v. Baltimore & 0. R. Co. 4 Inters. Com. Rep. 92. 
 
 ' Potter Mfg. Co. v. Chicago & Q. T. 11 Co. 4 Inters. Com. Rep. 223. 
 
 ^ Crews V. Richmond & D. R. Co. 1 Inters. Com. Rep. 703. 
 
 < Riddle v. New Toi-k, L. E. & W. R. Co. 1 Inters. Com. Rep. 787. 
 
 » Grih,t Western R. Co. v. Sutton, L. R. 4 H. L. 226; Nitahill, etc. Coal Co. v. 
 
 Caledonian R. Co. 2 Nev. & McN. 39; Merry v. Glangow R. Co. 4 Ry. & 
 
 Canal Tralfic Cas. 383. 
 * Scojield V. Lake Shore & M. S. R, Co. 2 Inters. Com. Rep. 67.
 
 776 UNJUST DI8CKIMINAT10N. 
 
 persons or property subject to the Act.' So, a discount allowed 
 by a railroad company where consignments of coal in one year 
 shall amount to 30,000 tons or upwards is an unjust discrimina- 
 tion.* 
 
 Violation by one carrier of principles governing relative rates 
 on competitive articles does not justify similar violations by its 
 competitors.' The fact that substantially dissimilar conditions 
 create dissimilarity in rates does not render tiie amount of dissim- 
 ilarity in the rates unimportant upon the question whether undue 
 discrimination is exercised by a carrier.* Railway companies are 
 only bound, under the Interstate Commerce Act, to give the same 
 terms to all persons alike under the same conditions and circinu- 
 stances; and any fact which produces an inequality of condition 
 and a change of circumstances justifies an ine([uality of charge,' 
 But the exercise by a railway company of the right to prepay- 
 ment or to retain a lien upon the goods until payment is made, or 
 to hold the consignee responsible in case of delivery before pay- 
 ment, or the waiver of some of such rights at different times, 
 cannot be construed to be a denial of equal facilities or a discrim- 
 ination.* 
 
 To constitute an unreasonable preference, there must be in- 
 equality in the charge for traveling over the same line, or the 
 same portion of the line.' No device, such as payment of unrea- 
 sonable rent for use of cars furnished by shippers, can be prac- 
 ticed to evade the duty of equal charges for equal service. And 
 when a carrier engages in transporting oil in tanks, and also in 
 barrels conveyed in box cars, in carloads, and charges for the 
 weight of the barrel as well as the oil carried by the box-car mode 
 
 > Oriffee v. Burlington & M. R. R. Co. 2 Inters. Com. Rep. 194. 
 
 * Providence Coal Co. v. Providence & W. R. Co. 1 Inters. Com. Rep. 363. 
 ^Squire v. Michigan Cent. R. Co. 3 Inters. Com. Rep. 515. 
 
 * Interstate Commerce Commission v. lexas & P. R. Co. 4 Inters. Com. Rep. 
 
 408, 57 Fed. Rep. 948. 
 ' Interstate Commerce Commission v. Baltimore & 0. R. Co. 145 U. S. 263, 36 L. 
 
 ed. 699, 4 Inters. Com. Rep. 92, 49 Am. & Eng. R. Cas. 243. 
 6 Little Rock & M. R. Co. v. St. Louis, L M. & 8. R. Co. 59 Fed. Rep. 400. 
 ^ Caterham R. Co. v. London, B. & 8. G. R. Co. 1 C. B. N. S. 410. 1 Nev. & 
 
 McN. 32; Finnie v. Glasgow & 8. W. R. Co. 2 Macq. H. L. Cas. 177, 26 L. 
 
 T. 11.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 777 
 
 of transportation, but for the weight of the oil only when carried 
 in tanks, it unjustly discriminates between shippers, and subjects 
 the traffic to undue prejudice and disadvantage.* It is the duty 
 of the carrier to equip its road with the means of transportation, 
 and, in the absence of exceptional conditions, those means must 
 be open impartially to all shippers of like traffic. Ownership of 
 a car rented to a carrier and for the use of which the carrier pays 
 a full consideration, does not of itself entitle the owner to the ex- 
 clusive use of such car, and, if the owner may in the contract of 
 hire to the carrier stipulate for the exclusive use of tlie car, it 
 must be upon such terms as shall not constitute an unjust dis- 
 crimination against shippers of like traffic in cars owned by the 
 carrier and who are excluded from the use of the car so hired. 
 
 Where oil is transported by the carrier both in barrels and in 
 tank cars and the use of the tank cars is not open to shippers im- 
 partially but is practically limited to one class of shippers, the 
 charge for the barrel package in barrel shipments in the absence 
 of a corresponding charge on tank shipments, resulting in a 
 greater cost of transportation to the shipper in barrels on like 
 quantities of oil between like points of shipment and destination 
 than to the tank ship])er, is a discrimination against the former in 
 favor of the latter and illegal unless legal justification is shown. 
 Two carloads of lumber need not be exactly of the same weight 
 or dimensions, in order to make a charge of one rate per 100 
 pounds to the shipper of one, and of another rate to the shipper 
 of the other an unjust freight discrimination, it being necessary 
 only that the quantities shall be "like."* 
 
 Upon complaint alleging unjust discrimination against carload 
 shippers of eggs in favor of shippers in less than carloads, it ap- 
 peared that under the "official classification" eggs take second 
 class rates for carload or less quantities ; that the commodity is 
 carried in refrigerator cars ; that for carload shipments ice to the 
 amount of 6000 pounds is furnished by the carrier without extra 
 charge ; that less than carload shipments are taken from local sta- 
 
 » 
 
 ' Independent Refiners Asso. v. Western Neio York & P. R. Co. 4 Inters. Com. 
 
 Rep. 163. 
 ' New York, T. & M. R. Co. v. Gallaher, 79 Tex. 685.
 
 778 UNJUST DISCRIMINATION. 
 
 tions in "pick-up" cars to distributing points and forwarded in 
 carloads to JNew York and other large markets ; tliat notwith- 
 standing the special facilities afforded to small shipments by the 
 carriers, the large dealers control 83 per cent of the traffic. Held, 
 upon all the facts in the case, that no unjust discrimination re- 
 sults to the carload shipper from the equal rating of carload and 
 less than carload lots and the special serrice rendered in gather- 
 ing and forwarding small shipments, and the complaint should 
 therefore be dismissed.' 
 
 The term " a like kind of traffic," as it occurs in the Act to 
 Regulate Commerce, § 2, in respect to discrimination by carriers, 
 does not mean trafiie that is identical, but it means traffic that is 
 of "a like kind" with other freight in the elements of a fair aud 
 just classification for the purpose of arriving at a just and reason- 
 able rate and a rate that will avoid unjust discrimination and un- 
 lawful preference.'' 
 
 If from peculiarity of traffic, carrier cannot supply stock, and 
 consignors supply it for themselves carriers must not allow its de- 
 ficiencies in this particular to be made means of putting at ad- 
 vantage those who make use in same traffic of facilities it sup- 
 plies. Charge of transportation of oil in tank cars should be 
 same as charged for transportation of barrel shipments of oil. 
 That there are greater risks to carrier's property from such ship- 
 ments does not justify greater charges therefor. Allowance can 
 be made to owners of tank cars for their use. A carrier is not 
 forbidden from obtaining cars from a shipper for the transporta- 
 tion of freight over its line, but in such case, after deducting rea- 
 sonable rent published in the tariff as part of the rate and paid 
 by the carrier to the shipper for the use of the cars, the rates 
 must be actually the same as upon freight transported in the 
 same service in the carrier's own cars. A carrier is not forbidden 
 by the law from obtaining cars from other carriers, but the rates 
 of freight must be exactly the same.* 
 
 > Brownell v. Columbus & C. M. R. Co. 4 Inters. Com. Kep. 285. 
 
 * New York Board of Trade & I'vansportation v. Pennsylvania R. Co. 3 Inters. 
 
 Com. Rep. 417. 
 *Scofield V. Lake Shore <& M. S. R. Co. 3 Inters. Com. Rep. 67.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 779 
 
 The fact that a carrier does not own tank cars, but accepts and 
 uses such cars supplied by some of its patrons for their own traffic, 
 is unimportant so far as rates are concerned. It is a carrier's duty 
 to equip its road with instrumentalities of carriage suitable for 
 the traffic it undertakes to carry, and to furnish them alike to all 
 who have occasion for their use, and its duty to furnish equip- 
 ment cannot be transferred to nor required of shippers. When 
 a carrier accepts and uses cars for transportation owned by ship- 
 pers or others, in legal contemplation it adopts them as its own 
 for purposes of rates and carriage, and neither the manner of 
 acquiring cars, nor inability to furnish its general patrons the 
 use of cars similar to those furnished by some shippers for their 
 own traffic, can excuse or justify a carrier for discrimination in 
 rates that may give one shipper advantages over another; nor 
 can any device, such as payment of unreasonable rent for use of 
 cars furnished by shippers, be practiced to evade the duty of 
 equal charges for equal service.' 
 
 A shipper is not entitled to have his cattle carried in cars of a 
 special construction, belonging to a third party, and superior to 
 ordinary cattle cars, by reason of the fact that the carrier trans- 
 ports some cattle in other cars available to all shippers equally, 
 which have some of the improvements of the former, but are 
 furnished by another party under a special contract, and which, 
 unlike the cars desired by the shipper by reason of their peculiar 
 ■construction, can be used in the chief business of the road, — that 
 of carrying coal, — when not in use for cattle. The refusal to use 
 the cars desired by the sliipper does not constitute unjust discrim- 
 ination.* 
 
 A shipper from whose mill flour is taken in cars cannot com- 
 plain that the carrier bears a portion of the cartage expenses of 
 other millers.' Carrier, charged with unjust discrimination, may 
 show that it made extra exertions in good faith to obtain cars for 
 shipper from connecting line to whom shipper had to look for 
 such cars. In absence of custom, carrier need not notify shipper 
 1 
 
 ' Eice V. Western New York & P. E. Go. 3 Inters. Com. Rep. 163. 
 
 *M<m-is V. Delaioure, L. & W. E. Co. 3 Inters. Com. Rep. 617. 
 
 * Bezel Mia Co. v. St. Louis, A. <& 1. H. E. Co. 3 Inters. Com. Rep. 701.
 
 780 UNJUST DISCRIMINATION. 
 
 that it cannot obtain cars for his freight ; it is the dntj of the 
 shipper to obtain this information for himself.' Carriers should 
 so adjust rates between those wlio can and those who cannot fur- 
 nish their own conveyance that there shall be no discrimination 
 against the dependent shipper in the charges. The practice of 
 allowing a tank shipper of oil an arl)itrary deduction of 42 gal- 
 lons per tank car is wholly indefensible, when no corresponding 
 allowance is made for leakage and evaporation from shipments in 
 barrels. An allegation of unjust discrimination resulting from 
 shipments of oil in tank cars owned by the shi[)[)er, and low 
 return rates on cotton-seed oil and turpentine in the same taidcs, 
 in connection with mileage paid for use of tank cars, cannot be 
 sustained without evidence showing mutuality of interest between 
 the two classes of shippers or the payment of excessive car mile- 
 age.' 
 
 A carrier that employs different methods for the transportation 
 of petroleum oil and its products, in carloads, — for example, tank 
 cars in which the oil is carried in bulk, and box cars in which the 
 oil is carried in barrels, — is not relieved from its duty in respect 
 to equality of rates by the difference it makes between its patrons 
 in the mode of carriage, but its charges for like quantities carried 
 between like points of shipment and destination must be equal 
 upon the commodity itself, irrespective of the mode of carriage 
 or the tank or barrel package in which it is contained. Differ- 
 ences in circumstances and conditions of traiisportation that are 
 of a carrier's own creation or connivance, or that by reasonable 
 effort on the part of a carrier might be avoided, cannot justify 
 exceptional rates. When a carrier engages in transporting oil in 
 tanks, and also in barrels conveyed in box cars, in carloads, and 
 charges for the weight of the barrel as well as the oil carried by 
 the box car mode of transportation, but for the weight of the oil 
 only when carried in tanks, it unjustly discriminates between 
 shippers, and subjects the traffic to undue prejudice and disad- 
 vantage.' 
 
 ' Riddle v. Baltimore & 0. B. Co. 1 Inters. Com. Rep. 778. 
 2 Rice V. Cincinnati, W. & B. R. Co. 3 Inters. Com. Rep. 841. 
 » Rice V. Western New York & P. R. Co. 3 Inters. Com. Rep. 163.
 
 DISCRIMINATION BETWEEN SHIPPERS REBATE. 781 
 
 The practice by a common carrier of arbitrarily determining 
 what persons should receive a so-called " manufacturer's rate " is 
 a violation of the Act to Regulate Commerce.' The provisions 
 of the Interstate Commerce Law against undue discriminations in 
 rates cannot be evaded by billing cars first to one point on the 
 line of a railroad, and rebilling them to another point thereon at 
 a different rate." Any benefit in relation to the shipment of 
 goods, having a definite money value, conferred gratis by the 
 carrier upon one shipper and not conferred upon another, is an 
 undue reduction in the price of carriage to the former, and is 
 illegal under the Interstate Commerce Act, where the service to * 
 each is admittedly under substantially similar circumstances and 
 conditions.' A carrier cannot pay the larger expense of the 
 transportation of a remote shipper's merchandise to the station, 
 and not pay the less expense of such transportation of the nearer 
 shipper's merchandise,* To render a preference in rates unlaw- 
 ful, it is not necessary that it should be accomplished by any 
 device,' A special tariff giving a class of persons from and to 
 the same points rates less than one half those charged the general 
 public in general tariffs, makes an unlawful discrimination." 
 
 In proceedings to determine whether there has been discrim- 
 ination in favor of a certain shipper, it is sufficient to show the 
 rates actually charged, as differing from the public schedule of 
 the rates charged to the public in general, for a reasonable length • 
 of time. Innumerable shipments in detail for many years are 
 immaterial.' When rates on the line of a carrier are on their 
 face disproportionate or relatively unequal, the burden is on the 
 carrier to justify them when challenged.* Underbilling weights 
 of freight, whereby one person pays less compensation for like 
 
 ' Re Louisville & N. R. Co. 4 Inters. Com. Rep. 157. 
 » Osborne v. Chicago (& N. W. R. Co. 48 Fed. Rep. 49. 
 ' Interstate Commerce Com. v. Detroit, G. H. <& M. R. Co. 4 Inters. Com. Rep. 
 
 722, 57 Fed. Rep. 1005. 
 * Ilezel Mill Co. v. St. Louis, A. & T. H. R. Co. 3 Inters. Com. Rep. 701. 
 'Scojield V. Lake Shore & M. S. R. Co. 2 Inters. Com. Rep. 67. 
 ^Eitey V. Illinois Cent. R. Co. 2 Inters. Com. Rep. 804. 
 ■• Rice V. Cincinnati, W. & B. R. Co. 2 Inters. Com. Rep. 584. 
 ^McMotran v. Grand Trunk R. Co. 2 Inters. Com. Rep. 604.
 
 782 UNJUST DISCRIMINATION. 
 
 services than another is within the inhibition of the Act.' Taking 
 and billing freight between two points at lower rates, if it is des- 
 tined to another point beyond the original destination, is giving 
 an illegal preference.' 
 
 Discrimination in freight rates from Chicago to New York can- 
 not be accomplished by a railroad company either (a) by applying 
 a twenty-two cent through rate to freight originating west of 
 Chicago on roads not in the arrangement and to which is paid 
 more than its pro rata share of such rate to New York, or (J) by 
 applying such i-ate to grain in store, by paying a "drawback" or 
 '"expense bill" based upon the fiction that the grain was still in 
 transit on the twenty-two cent rate, thus bringing the shippers 
 rate from Chicago to New York down to eighteen and two tenths 
 cents instead of the regular twenty cent rate.' Prescribing a 
 minimum weight for a carload, and then charging by the hun- 
 dred pounds in proportion to the car lot rate for any excess over 
 the minimum, is not unlawful.* 
 
 Two west bound carload rates from Mississippi river points to 
 Pacific coast terminals on goods termed " Emigrants Movables " 
 (including " household goods " ) — one a general class rate ; and the 
 other designated a " commodity " rate and less than the general 
 rate, being published as open to "intending settlers only," but in 
 practice given to shippers indiscriminately, and not apparently 
 unreasonable in itself — are improper, as their retention can only 
 serve to mislead the public and afford opportunity for the prac- 
 tice of favoritism and unjust discrimination as between shippers; 
 and the rate should not be in excess of the amount of said com- 
 modity rate." Carriers may lawfully accept the same aggregate, 
 though less profitable, rates for longer distances, provided they 
 do not " subject any particular person, company, firm, corpora- 
 tion, or locality, or any particular description of traffic, to any 
 undue or unreasonable prejudice or disadvantage." A rate on 
 
 'i2e JJnderUlling, 1 Inters. Com. Rep. 813. 
 
 ^lowa Grain S. S. Asso. v. Chicago <& W. W. B. Co. 2 Inters. Com. Rep. 431. 
 
 * United States v. Michigan Cent. B. Co. 3 Inters. Com. Rep. 287. 
 
 * Leonard v. Chicago & A. B. Co. 2 Inters. Com. Rep. 599. 
 
 * Duncan v. Atchison, T. & 8. F. B. Co. 4 Inters. Com. Rep. 385. 
 
 « Jam€s\& M. Buggy Co. v. Cincinnati, N. 0. & T. P. B. Co. 3 Inters. Com, 
 Rep. 682.
 
 DISCRIMINATION BETWJiitN SHIPPERS — REBATE. 783 
 
 wheat less than that on flour ifi anlawful if it works unjust dis- 
 crimination, but is not otherwise.' 
 
 That a raih-oad company charges a shipper a greater rate for 
 shipment from its terminal point to a point on its line than its 
 proportion of a joint tarilf on the same article under arrangement 
 with another company does not violate the provision of the In- 
 terstate Commerce Act against preferential rates.* A discrimina- 
 tion between the rate on corn and its direct products, which sub- 
 jected persons engaged in the business of manufacturing and 
 selling such products to unreasonable prejudice or disadvantage ; 
 and which is without necessity or advantage to the carrier, or any 
 reason founded on the character or condition of the traffic, — is in 
 violation of the Act to Ilegulate Commerce, § 3, notwithstanding 
 the rate on corn was o[)en to all persons equally and with equal 
 service.' Unlawful discrimination is not established by proof 
 that a rate of freight on cotton from Yicksburg, Mississippi, to 
 eastern points, is given to one different from that given to an- 
 other, when it also appears that such rate is only a part of a uni- 
 form through rate from a point beyond.* 
 
 The provision of the third section of the Act to Regulate Com- 
 merce prohibiting carriers from making or giving any undue or 
 unreasonable preference or advantage to any particular person, 
 firm, company, corporation or locality, or any particular descrip- 
 tion of traffic, in any respect whatsoever, not only applies to rela- 
 tive rates on one description of traffic shipped to or from compet- 
 ing localities, but also to relative rates on differently described 
 articles which are competitive in tlie same markets ; and when 
 carriers have established rates on articles of competitive traffic 
 which are relatively reasonable and fair, they cannot arbitrarily 
 select particular articles of such traffic and materially raise or 
 lower rates so established thereon without violating that provision 
 of the Statute. 
 
 The relation of rates ought to rest upon fixed and stable condi- 
 tions. The fluctuations of markets are so frequent , especially as 
 
 ' Kci'iiffman Mill Co. v. Missouri Pac. R. Co. 3 Inters. Com. Rep. 400. 
 « Tozer v. United States, 4 Inters. Com. Rep. 245, 52 Fed. Rep. 917. 
 ^ Bates -v. Pennsylvania B. Co. 2 Inters. Com. Rep. 715. 
 * Cowan V. Bond, 2 Inters. Com. Rep. 542.
 
 784 UNJUST DISCRIMINATION. 
 
 to competitive articles, and oftentimes unexpected, that commer- 
 cial considerations alone would not furnish a sufficiently stable 
 and fixed rule for guidance in making a rate that should remain 
 substantially permanent through all tiuctuations. The Interstate 
 Commerce Commission does not, by a fixing of rates, attempt to 
 overcome advantages which one producer or dealer may have in 
 his geographical location, and to produce equality between com- 
 petitors in all markets. It would be a useless task, even if it had 
 the power, to attempt to accomplish such a result. The proper 
 relation of rates for transportation of strictly competitive articles 
 over the same line should be determined by reference to respec- 
 tive costs of service ascertained with reasonable accuracy.' But 
 while the interests of the carrier may be looked to, they must never 
 be permitted to supersede or set aside the interest of the public 
 or release the carrier from any duty owing to the shipper. A 
 charter provision of a railroad, granting the power to take " tolls 
 from all persons, property, merchandise and other commodities 
 transported on their road, provided only the net profits of the 
 road shall never exceed twenty-five per cent per annum," does 
 not relieve the company from the obligation imposed upon a com- 
 mon carrier under the common law, as applied to common car- 
 riers by rail. The charter does not give the carrier an option to 
 discriminate at will, provided only the net })rofits of the road do 
 not exceed a certain limit." 
 
 A corporation engaged in carrying goods for hire as a common 
 carrier, has no franchise, privilege, or right to discriminate in its 
 freight rates in favor of one shipper, even when it is necessary to 
 do so to secure his custom, if the discriminating rate will tend to 
 create a monopoly by excluding from their proper markets the 
 products of the competitors of the favored shipper.* Railways 
 cannot discriminate in favor of or against the trafiic, because of 
 its ultimate use.* Carriers must respect the interests of those 
 who may have occasion to employ their services, and conform 
 
 ' Squire v. Micliigan Cent. B. Co. 3 Inters. Com. Rep. 515. 
 2 Samuels v. Louisville & N. R. Co. 4 Inters. Com. Rep. 420, 31 Fed. Rep. 57. 
 ^ State V. Cincinnati, W. & B. R. Co. 7 L. R. A. 319, 47 Ohio St. 130. 
 *J)enaby Main Colliery Co. v. Manchester, 8. cfe L. R. Co L. R. 11 App. Cas. 
 97; Oxlade v. Northeastern R. Co. 1 Nev. & McN. 72, 1 C. B. N. S. 454.
 
 DISORIinNATION BETWEEN SHIPPERS REBATE. 785 
 
 their charges to the rules of relative equality and justice.' Au 
 agreement by a railroad company to carry for one at a cheaper 
 rate than for another is void," and it is justified in carrying goods 
 for one person at a less rate than that at which it carries goods 
 for another, only where there are circumstances which make the 
 cost of carrying the former less than the cost of carrying the 
 latter.' Nor can it discriminate in favor of one local shipper and 
 against his competitors, unless there be some substantial differ- 
 ence in the cost of the service.* The attempts by a receiver to 
 accumulate money for the benefit of corporators or their cred- 
 itors, by making one shipper pay tril)ute to his rivals in business, 
 is a grossly illegal and inexcusable abuse of a public trust. "Where 
 the Standard Oil Company and one Rice, were competitors in the 
 business of refining oil, and each obtained supplies from the same 
 source, which were carried to Marietta or Cleveland, and both 
 ■were equally dependent on the railroad in the hands of a receiver, 
 and the Standard Oil Company, desiring to crush Hice, and under 
 a threat of building a pipe for the conveyance of its oil, and with- 
 drawing its patronage from the receiver, induced the latter to 
 carry its oil at ten cents per barrel, and charge Rice 35 cents per 
 barrel, and pay it 25 cents out of each 35 cents exacted from 
 Rice, . . . the court removed the receiver, rescinded the 
 contract, and directed proceedings to recover from the Standard 
 Oil Company the amount it had received which had been collected 
 from Rice.* A short road used by connecting interstate roads, 
 must be accessible to interstate shippers, on equal and reasonable 
 terms, and cannot be used to discriminate between mine owners 
 on its line.' 
 
 » Thurber v. New York Cent. <& H. R. R. Co. 2 Inters. Com. Rep. 742. 
 
 » Scojield V. Lake Shore & M. 8. R. Co. 43 Ohio St. 571, 54 Am. Rep. 846. 
 
 « Carton v. Bristol & E. R. Co. 6 C. B N. S. 639, 28 L. J. C. P. 306, 1 Nev. & 
 
 McN. 218; Oxlade v. Northeastern R. Co. 1 C. B. N. S. 454, 26 L. .J. C. P. 
 
 129, 1 Nev. & McN. 72; Nittshill, etc. Coal Co. v. Caledonian R. Co. 2 Nev. 
 
 & McN. 39. See 1 Inters. Com. Rep. 862. 
 
 * Carton v. Bristol & E. R. Co. supra; London & N. W. R. Co. v. Evershed, L. 
 
 R. 3 App. Cas. 1029; Strick v. Swansea Canal Co. 16 C. B. N. 8. 245; Ran- 
 sorn^v. Eastern Counties R. Co. 1 C. B. N. S. 437; Nicholson v. Great West- 
 em R. Co. 1 Nev. & McN. 121, 5 C. B. N. S. 366. 
 ^ Handy v. Cleveland & M. R. Co. 31 Fed. Rep. 689. 
 
 * Heck V. East Tennessee, V. & Q. R. Co. 1 Inters. Com. Rep. 775. 
 
 50
 
 CHAPTEE XIX. 
 UNJUST DISCRIMINATION,— Continued. 
 
 § 125. Carrier, as Shi2)per, Must not Favor Itself. 
 
 § l^S. Carrier, as Shipper, Must not Favor Itself^ 
 
 Where a railroad corporation is not only a carrier for all per- 
 sons who may offer, and is charged with duties of impartiality a& 
 such, but it is also itself a shipper over its own lines, and where 
 it may be said to offer to itself property for transportation, and 
 this not merely casually and for some temporary or special pur- 
 pose, but regularly and as a very large part of its business, and 
 where indeed, it is probably true that it became a carrier because 
 of having immense quantities of property to be carried, and that 
 its line was constructed mainly for its own purposes as owner and 
 shipper, the business of common carrier being added to that of 
 producer and dealer in coal with a view to an additional profit or 
 to lessen the cost of conducting the primary business, the situation 
 creates a difficulty in dealing with the case. It presents the ques- 
 tion of impartiality in such a manner that it may not be possible 
 to deal with it as it would in general be dealt with if it were to- 
 arise as a question affecting rights as between third parties who 
 were shippers only. It might be easy to apply the rule against 
 unjust discrimination in that case, while it might be difficult to 
 call it a rule against unjust discrimination in this case. The right 
 of the complaining party might be precisely the same in each 
 case, and yet the situation might make the method of enforce- 
 ment quite different, and might even require that a different term 
 should be applied to the wrong from which the complainant suf- 
 fered. But no matter what the situation is, the carrier must not 
 use its power and the means at its disposal as a carrier to avoid 
 performing the full measure of its duty. It must not use them 
 oppressively. It must, as far as possible, deal as between all ship- 
 pers, including itself as a shipper, in such a way that all shall 
 
 786
 
 CAKUIEfi, AS SHIPPER, MUST NOT FAVOK ITSELF. 787 
 
 have proportional benefit whenever demanding its service. Other- 
 wise the courts will find a method of reaching the wrong it in- 
 flicts upon the public' 
 
 The present condition of transportation, as affected by the price 
 of one important article of large consumption, and the combina- 
 tions among carriers, who are themselves producers of the article, 
 to reduce production and thereby enhance the market value, and 
 relatively increase the charges for transportation, has drawn 
 from the chief executive officer of one of the most important rail- 
 road companies in the country, an expression of his views on the 
 subject, which, by virtue of his experience, commend them to 
 careful consideration. He has been impressed with the fact, that 
 sooner or later the disparity between bituminous and anthracite 
 rates would cause trouble to the anthracite carriers, who are also 
 carriers of bituminous coal, and that sooner or later an equaliza- 
 tion of the rates on both classes of coal would be forced upon 
 them. The rates received for carrying bituminous coal are not 
 over two thirds of the rates per ton per mile anthracite coal is 
 paying, yet bituminous coal rates are considered fairly remunera- 
 tive. The conclusion reached by the Interstate Commerce Com- 
 mission in the case of CcKce v. Lehigh Valley R. Co. (3 Inters. 
 Com. Rep. 460) also seemed to indicate that the two rates must 
 be brought closer together. 
 
 Regarding the proposed advance in the price of anthracite coal 
 involving, naturally, an increase in the rates for carrying it, he 
 states that " it has always been the policy of our company as far as 
 possible to manage its traffic in harmony with its competitors, and 
 our recent action simply made our rates conform as nearly as pos- 
 sible to those which were then being charged by other lines. It 
 was made necessary by the new system established by our com- 
 petitors of making the rate bear a certain relative proportion to 
 the selling price of the coal and resulted in a reduction of the 
 nominal rates which have been prevailing, and it seemed to me 
 to tend toward a proportionate reduction in the cost of the coal 
 to the consumer. But if this is to be followed by an advance in 
 
 • Haddock v. Delaware, L. & W. E. Co. 3 Inters. Com. Rep. 302. ■
 
 788 UNJUST DISCKIMINATION. 
 
 the price of coal, forced by a curtailment of the production, i 
 fear it would be impracticable for our company to continue the 
 policy it has always heretofore deemed wise to adopt, as we have 
 never at any time been in harmony with the policy of restricting 
 production for the purpose of advancing the price of a commod- 
 ity, and the interests of our company are those of a transporter 
 whose object it is to stimulate the production of articles rather 
 than restrict them." 
 
 Speaking of the policy of restricting the production and ad- 
 vancing the price to the consumer for the purpose of getting a 
 better price for the coal at tlie pit's mouth and higher rates for 
 the transportation, he expresses the view that it is not to the in- 
 terest of the public, or of any railway company engaged in its 
 legitimate business as a transporter, to become owners of coal 
 property so as to bring them, as both transporters and producers, 
 into antagonism with the interests of the community. "xVt the 
 present time the manufacturing interests of the country as well 
 as the mining industries are in a very depressed condition, and it 
 seems to be a necessity in the bituminous traffic as well as in the 
 iron industries for the transporter to make concessions in a variety 
 of ways in the endeavor to keep these industries in a productive 
 condition. The policy now proposed, as I understand it, the 
 handling of the anthracite product is to be the reverse of this 
 and would mean an endeavor to secure higher prices for the an- 
 thracite coal which is so necessary to many of our industrial in- 
 terests, and also higher prices for the transportation thereof by 
 curtailing the product. This certainly seems to be a very unwise 
 policy to pursue." 
 
 Indeed, he is very clear in his conclusion, that it is neither to 
 the interest of the public or the shareholders in a railroad com- 
 pany to become a party to a combination which proj^oses to re- 
 strict the production of an article which is as necessary as anthra- 
 cite coal to the commercial prosperity of the country. Any such 
 policy must inevitably result in arraying the public and the con- 
 stituted authorities intrusted with the enforcement of the laws 
 against the companies which pursue such a policy and end in 
 disaster to all corporate interests. In the case above referred to
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 7S9 
 
 Coxe V. Lehigh Valley B. Co., 3 Inters. Com. Kep. 460, tlie ques- 
 tions presented for determination are the alleged undue prefer- 
 ences, unjust discriminations and unreasonable rates pertinent to 
 which the complainants submit for the consideration of the com- 
 mission proposed findings of fact in substance as follows : 1. That 
 the Lehigh Yalley Railroad Company carries anthracite and bi- 
 tuminous coals over the same distance in the same direction un- 
 der different classifications, that the tariff sheets and rates ap- 
 plicable to anthracite do not apply to bituminous and that the 
 two coals are a like kind of freight and should be classed together 
 as one class of freight. 2. That the acts done by the Lehigh 
 Yalley Coal Company connected with the buying and selling of 
 coal and the transportation of the same over the road of the 
 Lehigh Yalley Railroad Company are the same as if done by said 
 railroad company, and as done constitute illegal and unjust dis- 
 crimination against the complainants and the public generally ; 
 and that tlie proper rate to be paid by all shippers over said road 
 between the same points at the same time is ascertained by de- 
 ducting from the established rate the loss sustained by said coal 
 company as a buyer of coal for shipment over said railroad. 3. 
 That the average rates per ton per mile charged by the Lehigh 
 Yalley Railroad Company on anthracite coal are higlier than on 
 general freight, and that the rate of S1.80 per ton of 2240 pounds 
 to Perth Amboy from the Lehigh coal region, a distance of about 
 135 miles, is excessive and unreasonable, " and should be reduced 
 to what the commission may decide to be a reasonable rate." 
 It is conceded that the bituminous coal mines are twice or more 
 than twice as distant as the anthracite mines from New York 
 Harbor or Perth xVmboy, while the transportation charges on 
 bituminous were and are greater in the aggregate, but less in 
 proportion to distance, or per ton per mile ; it is shown that in the 
 last ten years the price of anthracite in eastern markets has been 
 maintained and the price of bituminous considerablv reduced • 
 and that many manufacturers and consumers discontinued the use 
 of anthracite and substituted bituminous while the complainant 
 and other producers failed to find profitable markets for anthra- 
 cite they produced and were prepared to produce.
 
 79U UNJUST DISCRIMINATION. 
 
 The complainants insist that the displacement of anthracite by 
 bitinniiious has deprived tliem and other miuLTs of hard coal of 
 profitable markets, and that this condition is the result of exces- 
 sive rates on anthracite and of inequality and discrimination in 
 favor of bituminous ; that a readjustment of rates on a basis of 
 the relative distances of the fields of production would reinstate 
 the anthracite in eastern markets ; and that the classification of 
 the two coals as one freight would remove the inequality and dis- 
 crimination in favor of bituminous and establish all coal charges 
 on a mileage basis, except to the extent that terminal expenses 
 might modify the rate per ton per mile for longer distances. 
 
 For convenience in making transportation rates and charges, 
 freight is arranged and put into different classes according to ex- 
 pense of carriage, bulk, value, risk, competition and other con- 
 siderations ati;ecting the cost and value of the transportation serv- 
 ice. Different classifications have been and are still maintained 
 in various sections of the country, and it frequently occurs that 
 articles classed together in one section of the country are placed 
 in separate classes in another section. The number of separate 
 classifications has been so reduced and such as are still in force so 
 revised in the past few years as to give assurance that one uni- 
 form classification applicable to all the roads of the country is 
 entirely practicable. By the arrangement of the various articles 
 or subjects of freight into classes many hundreds of such articles 
 are given one and the same rate. AYithout such arrangement 
 railroad companies would necessarily be required to fix a rate on 
 each one of the several thousands of articles carried by them. 
 
 What was known as the " OtHcial Classification " is in force in 
 a large part of Illinois and in all the district of country east of 
 that state and north of the Ohio and Potomac rivers, including 
 the anthracite coal fields. Under this classification, freight, with 
 few excepted articles, is collected, arranged and numbered into 
 six classes and given as many separate rates. The freight not in- 
 cluded in any of the six classes is mostly coal and other minerals, 
 and articles of great weight as compared with their value. These 
 are classed or rated by name as a commodity. Anthracite and 
 bituminous coals are so named and rated respectively as such, or
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 791 
 
 as hard and soft coal, and as a rule a higher rate is charged on the 
 hard or anthracite. Again, the anthracite is arranged, classed and 
 rated in more minute divisions, according to sizes, uses and the 
 different value resulting from such sizes and uses. One complaint 
 the commission is to consider and which it is asked to remedy is 
 this separate classification or rating of hard and soft or anthracite 
 and bituminous coals. It is asked to find that the two are the same 
 freight, a like kind of traffic, the result of which would be to 
 subject them to the same charge, when carried under like circum- 
 stances. 
 
 In the present state of the law classification or the arrangement 
 ■of articles together for convenience in rating them is not obliga- 
 tory on the roads. They might legally fix a rate on every article 
 of freight by name without other arrangement or classification. 
 Such a system has proven to be so cumbersome and inconvenient 
 that the arrangement of freight into classes is deemed by the roads 
 an essential part of rate making and it is so treated by the Act to 
 Regulate Commerce, which requires that the schedule of charges 
 which every common carrier must keep open to the ])ublic " shall 
 ■contain the classification in force." 
 
 Under the Official Classification the charge per hundred pounds 
 between New York and Chicago was : 
 
 Class 12 3 4 5 6 
 
 Cents 75 65 50 45 30 25 
 
 The charges on grain, salt or other freight in the sixth class was 
 25 cents. The rate may be douljled by changing the classification 
 from the sixth class to the third ; and classification may be used 
 as a device to effect unjust discrimination or as a means of violat- 
 ing the most essential provisions of the statute. When so used it 
 is the duty of the commission to so revise such arrangement as to 
 ■correct the abuse. 
 
 The grounds upon which it was asked to find these two coals to 
 be the same freight, a like kind of traffic, was that they are 
 loaded, unloaded and transported in the same way and substan- 
 tially at the same expense to the carrier, and are largely used for 
 the same purposes, though one half or more of the anthracite is
 
 792 UNJUST DISCRIMINATION. 
 
 used for domestic purposes. Ordinarily tliere is no better 
 criterion for reasonable charges than that which is in proportion 
 to the service rendered ; and if the cost and expense of the carrier 
 was the only test of a reasonable charge the claim niigiit well be 
 made that all coals should be classed together as one freight and 
 be subject to the same transportation charges. 
 
 Carriers in making separate classifications, or rates for different 
 coals, take into consideration, not only the expense of transporta- 
 tion, but the value of the freight and worth of the transportation 
 to the shipper ; the exceptional qualities which fit the more 
 valuable anthracite for domestic and special uses and cause its 
 large consumption in less distant markets ; the shorter distance 
 from the mines to the principal markets rendering the transpor- 
 tation proportionally more expensive, and the necessity for so 
 apportioning the transportation charges between the aiitiii-acite of 
 different sizes and values that the more valuable may bear the 
 greater charge. 
 
 Transportation is sought by the shipper for the profit it yields 
 and will cease when it becomes unprofitable. In the ordinary 
 course of business, income or profits are proportioned to the 
 investment and a carload of ten tons of anthracite coal worth fifty 
 dollars affords larger profits and can better bear full transportation 
 charges than a like quantity or carload of bituminous worth 
 twenty dollars, and the value of the freight with the worth of the 
 transportation service to the shipper are taken into account in 
 determining classification. 
 
 The rule insisted upon, and claimed to be especially applicable 
 to coal, that the cost of the service alone should determine freight 
 classification and freight charges, will apply as well to different 
 sizes and values of anthracite as to bituminous and anthracite. 
 Under such a rule the different sizes of anthracite now carried at 
 different rates would be one freight and take the same rate, while 
 a difference is now made of 30 to 50 cents per ton between the 
 larger and smaller sizes. Let it be assumed that 81-70, the 
 average anthracite rates to Perth Araboy complained of, was 30 
 cents too high, and that $1.40 was the reasonable rate for all 
 anthracite. This is now the rate on pea, the best of the lower
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 793 
 
 grades of anthracite, while on buckwheat and cuhn it is but $1.20. 
 Classification of anthracite in disregard of sizes and values would 
 add 20 cents per ton to the charges on some and reduce them on 
 none of these lower grades of coal. The undue preference com- 
 plained of is chiefly the alleged exclusion of these certain grades 
 of anthracite from market by discrimination in rates. The result 
 of classifying and rating all coal, including these lower grades or 
 smaller sizes, as one freight would be that the smaller anthracite 
 coals at the increased rate would be at still greater disadvantage 
 than they now are, and for ordinary steaming would be cut out by 
 bituminous, while for the uses in which anthracite is indispensable 
 the larger sizes at the same rate would disjjlace the smaller. The 
 consequence would be that 25 per cent in quantity, or about 16 
 per cent in present value, of all anthracite mined would be unable 
 to bear the burden of transportation and would be waste until 
 such time as it could be locally converted into power and the 
 power transmitted. There is therefore, the commission concluded, 
 for the present, no hardship, but economy, in making the best bear 
 some of the burden of the inferior, which is not a voluntary but 
 a resulting production. To determine otherwise and make waste 
 of lower grades is to impose on the higher grades the entire cost 
 of producing both. The result would be to largely increase the 
 cost of production and the price of merchantable anthracite, and 
 make waste of about one fourth of all that is mined. 
 
 Insisting that they were deprived of markets by charges which 
 are both excessive and disproportionate, the complainants asked 
 that the rates may be adjusted in proportion to distance, mak- 
 ing due allowance for difference in the cost of collecting, 
 loading, unloading and other terminal expenses. If com- 
 plainants were deprived of markets by excessive and dispropor- 
 tionate charges, and the adjustment of coal rates in propor- 
 tion to distance would remedy the evil, still it is said this could 
 not be accomplished by classifying hard and soft coal together. 
 Such classification would have some bearing on the general ques- 
 tion of relative rates on the two coals carried between the same 
 places, or between different places under similar circumstances, 
 but could not much affect the rates in question on anthracite
 
 TD-t UNJUST DISCKLMINATION. 
 
 carried 125 to 185 miles and bituminous carried all rail three 
 hundred to live hundred miles, nearly, and at ag<:!;ret^ate rates 55 
 cents to §1.05 per ton greater than the aggregate on anthracite. 
 
 The defendant company claims for terminal expenses, in taking 
 up coal at the Lehigh and Mahanoy region, and delivering it at 
 Perth Amboy, an average distance of one hundred and forty-nine 
 miles, 50 cents, or one third of a cent per ton per mile. Tiie same 
 terminal expenses on bituminous carried from the Snow Shoe to 
 Perth Amboy 300 miles would be but one sixtii of a cent per ton 
 per mile. But there are considerations apart from terminal 
 expenses which make transportation for long distances proportion- 
 ally less expensive and more advantageous to the roads than for 
 short distances. Many items of expense and much of the cost of 
 operating a road are the same whether the business of the road is 
 large or small, and therefore as the volume of business increases 
 the expense apportioned to it is less, and as the distance is extended 
 the volume is increased. The best managed roads do not always 
 have full trains and full cars, and are subject to expensive delays 
 and loss of time while securing freight. The opportunity for back 
 loading increases with the distance, while delays and losses are as 
 applicable to long as to short distance freight, and, as in case of 
 terminal expenses or other aggregate charges, the cost of such 
 delays and losses are less per mile when apportioned to longer 
 carriage and to increased volume of business. 
 
 There are several lines other than that of which the defendant's 
 line is part over which coal is carried from the Snow Shoe district 
 to New York harbor, and these lines are of different lengths. 
 On the basis of equal mileage there could be no competition be- 
 tween the roads. The shortest having the least mileage and low- 
 est rate would get the business.' 
 
 The undue preference of which complaint was made of the Le- 
 high Yalley Road in respect to the bituminous coal traffic is that 
 it participated in the carriage of coal as part of a through line, 
 and receives for the distance over its line, less in the aggregate 
 
 ' Wew Orleans Cotton Exch. v. Cincinnati, N. 0. & T. P. R. Co. 2 Inters. Com. 
 .Rep. 289.
 
 CARKIEK, AS SHIFPEK, MUST NOT FAVOK ITSELF. 795 
 
 and proportionally than it charges on anthracite carried over its 
 same line the same distance in the same direction. 
 
 What it accepts on freight received from another road may in- 
 dicate the rate at which coal may be profitably transported over 
 its road the same distance in the same direction. But the law 
 favors through carriage and treats the carriage by arrangement 
 over connecting lines the same as if done by a separate line. 
 The carriage in question was one through carriage from the Snow 
 Shoe to Perth Amboy at through rates and for reasons already 
 stated the defendant road gave no undue preference to the bitumi- 
 nous traffic by participating in carrying it lower proportionally for 
 the longer distance, except as its charges on anthracite may be ex- 
 cessive. 
 
 Havinw shown that bituminous coal is and for ten or more 
 years last past has been gradually supplanting and taking the 
 place of anthracite in Atlantic coast markets, that the price of 
 anthracite has been maintained and the price of bituminous has 
 declined one third, the complainants assume that this substitution 
 of bituminous for anthracite in other than domestic uses is " due 
 to the difference in freight rates." 
 
 It will hardly be questioned that the substitution of bituminous 
 for anthracite is dictated by reasons of economy effected through 
 the reduction in the price of soft coal. But it is not proven nor 
 does it otherwise appear that this reduction in the price has been 
 effected by or is the result of a like and contemporaneous reduc- 
 tion of freight rates, or that any change has occurred in the rela- 
 tive transportation charges on the two roads. 
 
 The traffic and business of the defendant road is mainly anthra- 
 cite coal. Its main line does not reach bituminous mines, but is 
 laid from tidewater to the anthracite regions, its several branches 
 extending to the different anthracite mines. It is a carrier of 
 bituminous coal incidentally and in connection with other roads 
 with lines extending from the bituminous to the anthracite re- 
 gion. The quantity of bitummous carried by it is so insignificant 
 in comparison with its anthracite business that the commission 
 declined to suppose it establishes or maintains rates on the two 
 coals for the purpose of depriving its customers of their markets
 
 796 UNJUST DISCRIMINATION. 
 
 for anthracite, which is its chief business and support. Nor would 
 it presume that by carrying in connection with other lines a few 
 thousand tons of coal which would find its way to the same mar- 
 kets at the same rates over other lines, some of which reach tide- 
 water in the same state where the coal is produced, the defendant 
 intended to or did deprive complainant of a market for their coal 
 of any sizes. 
 
 Eleven tons of anthracite no more than equal ten of bituminous 
 in heating and steam producing power and there is economy in 
 the use of the soft coal for all purppses to which it is suited. In 
 the last ten years new bituminous mines have been opened and 
 old ones largely extended in the territory from which Atlantic 
 coast markets are supplied. The discovery and use of gas as fuel 
 has to some extent superseded bituminous in markets further west 
 and increased competitors for the markets to the east. Multiply- 
 ing and increasing competitors and sources of supply compel ac- 
 ceptance of lower profits. Nothing connected with bituminous 
 coal mining has made it more expensive than it was formerly,, 
 while new inventions and improved appliances have all hecn 
 favorable to lower cost of bituminous coal producing. These and 
 possibly other causes have contributed to the reduction of the 
 price of bituminous coal in eastern seaboard markets. 
 
 While the tendency of railway transjDortation is towards lower 
 charges, it has not been very considerable anywhere east of the 
 Alleghanies in the past few years. Except in the increase of 
 business the change in 'the conditions on which railway charges 
 are based have not been so marked since 1880 as to justify the 
 assumption of any considerable reduction in rates which were 
 then reasonable. Still conceding that the use of anthracite for 
 steam and manufacturing purposes has given place to bituminous 
 in consequence of the difference in price, and assuming that the 
 decline in price is in some part the result of reduced rates on 
 bituminous coal, this would not justify any change in the classi- 
 fication or system of rating which would have the effect of rais- 
 ing the rates and increasing the price of bituminous coal to con- 
 sumers. The lower rates on grain from more distant fields have 
 compelled the acceptance of reduced prices by the grain growers
 
 CAEEIEE, AS SHIPPER, MUST NOT FAVOE ITSELF. 797 
 
 nearer the seaboard. They could retain their markets at a better 
 price if the roads would maintain the rates proportioned to dis- 
 tance, but this would turn fields of the west into waste lands and 
 deprive the east of some part of its daily bread. On grain, roads 
 accept higher aggregate rates, but, measured by distance or may 
 be by the service rendered, more moderate profits, and the wants 
 of one distant part of the country are thus supplied from the 
 abundance of another. The commission find nothing of injustice 
 or that is unlawful in this rule nor any reason why it should not 
 apply as well to the product of the mine as to the product of the 
 :field. 
 
 Tlie rate from the sources of supply to Perth Amboy being 
 $2.25 per ton on bituminous, the aggregate difference in the rates 
 on the two coals from the respective places of production to Perth 
 Araboy is 05 cents, taking tlie average on all sizes of anthracite, 
 tlie aggregate on bituminous being higher by 81-05 on buckwheat, 
 85 cents on pea, and 55 cents on large sizes. The complaint is 
 that this difference is too small ; that compared with the charges 
 on bituminous the anthracite charges are too high,^and what the 
 ■complainants seek in this branch of their case is to obtain such 
 an adjustment of the charges on the two coals as will leave these 
 aggregate differences greater than they are. 
 
 Supposing it to be legally determined that the defendant and 
 other carriers of the two descriptions of coals should carry them 
 at the equal rates for the same distances, or per ton per mile, 
 this would hardly accomplish the purpose aimed at by the com- 
 plainants. Some of these all-rail carriers of bituminous to east- 
 ern markets are not carriers of anthracite and their charges on 
 bituminous could be made without regard to the charges on 
 anthracite to the same markets. Then, again, these markets get 
 some coal through the port of Philadelphia, and are supplied 
 with bituminous through the ports of Maryland and Virginia in 
 sufficient quantities to determine the rates on bituminous to 
 Atlantic coast markets independent of the transportation charges 
 on anthracite over other routes. 
 
 The difference in the aggregate cost of transportation to Perth 
 Amboy and through that port to eastern markets as between the
 
 798 UNJUST DISOKIMINATION. 
 
 competin^^ coals might be increased through higher charges on 
 bituminous as readily as by means of lower charges on anthracite. 
 The complainants ask relief through lower charges on anthracite, 
 at the same time insisting that the charge on the two coals shall 
 be in proportion to the distance of carriage. 
 
 The effect of such a rule, as already shown, is to require in- 
 creased bituminous rates or to make them higher than they would 
 otherwise be over the longer distances, and thus shut the cheaper 
 coal out of New England and Athxntic coast markets. The effect 
 of any regulation resulting in the increase of rates on bituminous 
 is to close the markets further east against it and give them to 
 the more expensive anthracite, confined to the limited territory 
 of eastern Pennsylvania, already monopolized. An impost duty 
 has been laid on foreign coal, in part at least to the end that these 
 markets might be supplied from the abundance of Pennsylvania, 
 Maryland and the Virginias, and any regulation imposing addi- 
 tional transportation or other burdens on bituminous coal to keep 
 it out of eastern mai-kets would seem to challenge the wisdom 
 which deposited an abundance of cheap fuel in the east side of 
 the Alleghany mountains. 
 
 The ruling price of the steaming or smaller sizes of anthracite 
 is $1 per ton less than the price of bituminous at Perth Amboy 
 and in the markets from which complainants aver they have been 
 excluded. The charges over the Lehigh road in connection with 
 the Pennsylvania road from the Snow Shoe region to Perth 
 Amboy are as high either in the aggregate per ton per mile as 
 are paid on any bituminous coal mined east of the mountains and 
 carried b}' rail to New York harbor. They are duly authorized 
 and established, and the said Lehigh Yalley Railroad Company 
 by the charges aforesaid is giving no undue preference to the 
 bituminous coal traffic. Nor is the anthracite coal traffic sub- 
 jected to unreasonable disadvantage in respect to the transporta- 
 tion charges on bituminous from the Snow Shoe region or else- 
 where by the Lehigh road, except as its charges on anthracite 
 may be excessive and unreasonable. 
 
 In addition to the alleged undue preference in favor of the 
 bituminous coal traffic to the disadvantage of the traffic in an-
 
 CAKRIEK, AS SHIPPER, MUST NOT FAVOR ITSELF. 
 
 r99 
 
 thracite, the complainants aver that the defendant railroad com- 
 pany is giving undue preference to the Lehigh Yallej Coal 
 Company, by charging complainants more for the transportation 
 of anthracite coal than is charged to said company. 
 
 In support of this averment of illegal preference in favor of 
 the Lehigh Yalley Coal Company, it is shown that the railroad 
 company owns the capital stock, property and franchises of the 
 coal company. The same persons are officers of both companies. 
 The railroad company advances and furnishes to the coal com- 
 pany, without interest, large sums of money necessary to the 
 transaction of its business as a miner, purchaser, shipper and 
 seller of coal. The coal so mined or purchased by said coal com- 
 pany is shipped over said railroad. The complainants and the 
 said coal company send their coal to, and sell it in, the same mar- 
 kets. Some of the transactions of the said coal company as a 
 buyer, shipper and seller of coal are profitable, others unprofit- 
 able. 
 
 Both the Lehigh Yalley Eailroad Company and the Lehigh Yal- 
 ley Coal Company are corporations of the state of Pennsylvania, 
 the constitution of which state, adopted after the incorporation of 
 these companies, contains the following provision relating to com- 
 mon carriers engaging directly or indirectly in mining or manufac- 
 turing articles for transportation over their roads : " No incorpo- 
 rated company doing the business of a common carrier shall directly 
 or indirectly prosecute or engage in mining or manufacturing arti- 
 cles for transportation over its works ; nor shall such company, 
 directly or indirectly, engage in any other business than that of 
 common carriers, or hold or acquire lands, free land or leasehold, 
 directly or indirectly, except such as shall be necessary for carrying 
 on its business ; but any mining or manufacturing company may 
 carry the products of its mines and manufactories on its railroad 
 or canal not exceeding iifty miles in length." A provision in said 
 constitution in relation to officers and agents of roads being in- 
 terested as carriers over the roads of the companies represented 
 by such officers and agents is as follows : " No president, direc- 
 tor, officer, agent or employe of any railroad or canal company 
 shall be interested directly or indirectly in the furnishing of ma-
 
 800 UNJUST DISCEIMINATION. 
 
 terial or supplies to such company, or in the business of transpor- 
 tation as a common carrier of frei;i;ht or passengers over the works 
 owned, leased, controlled or worked by such company." 
 
 The tendency of all such interested management as is indicated 
 by the above constitutional provisions is towards the destruction 
 of legitimate competition, whether the interest is in the carrier 
 or in its officers and those who direct and control it. If railroad 
 companies and those who direct and control their roads were 
 limited to the business of transportation it would take away from 
 both the opportunity to unlawfully prefer themselves as shipi)ers. 
 Disinterested and impartial control is essential to prevent illegal 
 favoritism, and abuse of the privileges with which carriers are in- 
 vested for the beuetit of the public. 
 
 The railroad companies, including the defendant, produce or 
 control, directly or indirectly, three fourths of the coal carried 
 by them ; by agreement they fix the rate of transportation, and 
 by nominal association with the individual operators, who repre- 
 sent less than one fourth of the anthracite output, fix the selling 
 price in the principal market. In the eight years beginning 1880 
 the prices and rates of transportation of coal delivered free on 
 board in 'New York harbor have varied nearly in the same pro- 
 portion. In 1885 and 1886 the price was about $3.40 and the 
 rate §1.40 ; in 1880 and 1888 the price was about 83.90 and the 
 rate $1.90 and $1.80. For the most part the increased price to 
 the consumer has gone in payment of the increased rate to the 
 carrier, leaving to the operator about the same earnings whether 
 the price of coal is high or low. 
 
 Where the carrier is both carrier and producer or operator, as 
 is true of some of the railroad companies, which in their own cor- 
 porate name are miners, buyers and sellers as well as carriers of 
 anthracite, it matters little so far as relates to its gains and profits 
 how much such a carrier charges itself for carrying its own coal. 
 Nor is it essential to the pecuniary interest of the Lehigh Valley 
 Hailroad Company whether it charges its coal company as a miner 
 and shipper very high or very low transportation rates, entitled 
 as the railroad company is to the earnings of both. The case is 
 different with the complainants, who have only so much of the
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 801 
 
 market price as remains after pa3'ing for transportation, and suf- 
 fer the loss of any excessive charges. Besides being competitors, 
 as they are, for tlie same markets, any excessive charges made or 
 burdens imposed on complainants, and not made and imposed on 
 said coal company, give it unlawful preference and subject com- 
 plainants to the unreasonable disadvantage of paying more to 
 reach a common market from the same places of production. 
 
 It can hardly be questioned that the methods of business might 
 be such, transactions might be so conducted and charges made 
 excessive or otherwise, as between said railroad and said coal com- 
 pany, which would be immaterial to the actual revenues and in- 
 come of the railroad company, but which would unjustly dis- 
 criminate against complainants and other shippers. 
 
 Whatever opportunity for oppression and abuse may be af- 
 forded, or whatever possible injury might result to the public in- 
 terest, from the corporate ownership and control, or corporate re- 
 lations existing between the Lehigh Valley Railroad Company 
 and Lehigh Valley Coal Company, the authority of the Interstate 
 Commerce Commission extends to such al)uses only as are in con- 
 flict with the Act to Regulate Commerce, or some of its provis- 
 ions. The history of mining operations, and their relations to 
 transportation, in the anthracite regions, as disclosed in the testi- 
 mony, shows that the carriers, directly in their own corporate 
 names, or indirectly through other corporations, in wliich the 
 carriers owned the capital stock, became coal miners and dealers 
 as a means of securing the freight. Said Lehigh Valley Coal 
 Company was able to control for the railroad company the trans- 
 portation of the coal mined from the lands of the coal company 
 and lands leased to it whether such coal was mined by itself or 
 others, as well as large quantities of coal it purchased. That such 
 was the legitimate purpose for which the railroad company or- 
 ganized the coal company was confirmed by the exceptional readi- 
 ness of the railroad company to disclose the business transactions 
 and methods of the coal company as a miner, dealer and shipper. 
 But the legality of the acts of the railroad company is not deter- 
 mined by its purpose, but depends upon their effect. However 
 well intended the transactions may be, as between said railroad 
 51
 
 802 UNJUST DISCRIMINATION, 
 
 and said coal company, they are unlawful if they effect undue 
 preference or unjust discrimination. 
 
 The railroad company insisted that the coal company, in pursu- 
 ance of its chartered rights, may mine, buy, sell and ship coal over 
 said road, as complainants and others engaged in the coal business 
 may lawfully do, and upon tlie same equal terms and advantages, 
 and none other. The railroad company advances to the coal com- 
 pany nearly seven millions of dollars with which to transact its 
 business, and for the use of wliich the raih-oad company receives 
 no advantage other than such advantages as it gets from carrying 
 the freio-ht of the coal company. The value of the annual use of 
 such advances at live per cent interest amounts to three hundred 
 and fifty thousand dollars, nearly. This sum exceeds ten cents 
 per ton on all the coal shipi)ed by the coal company over the lines 
 of the railroad company, and is to that extent an undue prefer- 
 ence given to said coal company, to the disadvantage of Coxe 
 Brothers & Co. and other shippers who receive no advances. The 
 advantao-e of like advances if made to complainants, estimated on 
 their annual shipments, would exceed one hundred thousand dol- 
 lars. Had the Lehigh Valley road as a means of securing freight 
 made like advances to any other competitor of complainants, 
 whether an individual operator, or a coal company in which the 
 railroad company had no interest, it would hardly be contended 
 that such act did not amount to undue preference and unjust dis- 
 crimination. The fact that the road was interested in the coal 
 company, as the owner of its capital stock, does not make lawful 
 what would be unlawful without such interest. 
 
 The railroad company states its outlay, including funded debt,, 
 capital stock and other liabilities, at about $73,000,000, on which 
 it claims the right to earn a reasonable income. Conceding that 
 the amount lawfully and properly invested, fixed charges and op- 
 eratino" expenses, are important elements in determining the rea- 
 sonableness of rates, the large sums advanced to its coal company 
 by the railroad company, applied to the reduction of its bonded 
 debt, would so reduce the obligations of the road that lower rates 
 would provide for them. The cost of producing and delivering 
 coal at Kew York harbor includes the cost of production and
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 803 
 
 transportation. The cost to the dealer and shipper is the price 
 paid for the coal, and its transportation. Either miner or dealer, 
 who sells his coal for less than will pay the cost of the coal, after 
 deducting transportation charges, loses in the transaction. Should 
 a railroad company, to secure freight, or for any other purpose, 
 purchase coal at the anthracite mines, carry it to market and sell 
 it at such a price that, after deducting the price paid and expense 
 of selling, would leave the road, as a purchaser, less than would 
 pay its transportation charges, the result or effect of the transac- 
 tion would be that the road had given itself a lower rate as a 
 dealer than it gave to other dealers and shippers. The road would 
 be thus giving itself undue preference, and the legal effect must 
 be the same whether this is done directly by the road in its own 
 name, or indirectly in the name of another corporation, of which 
 this railroad company is proprietor. The transactions are fre- 
 quent in which the coal company, as buyer, shipper and seller of 
 coal, incurs losses after paying to the railroad company the pub- 
 lished rate. Every such transaction being in effect the same as if 
 done directly by the road in its own name, is an undue preference 
 to the disadvantage of its customers who sell in the same markets 
 in competition with the coal company. One such transaction was 
 the contract with the Manhattan Railroad Company, which was 
 to continue for two years, and might be and was renewed. By 
 this contract, the coal company was to and did deliver to the Man- 
 liattan Company at stated periods, in the years 1887 and 1888, 
 large quantities of coal, upon such terms and at such prices that, 
 after deducting the price paid and expense of marketing the coal, 
 there was left to the coal company a less gum than would pay the 
 published legal rates of transportation. 
 
 If the commission consider this Manhattan sale and delivery as 
 done by the railroad company, then it lost a part of its freight as 
 a rebate to the coal company. Considered as done by the coal 
 company, then the railroad company was a loser to the same ex- 
 tent as the sole stockliolder of the coal company. Viewed either 
 way, th^ railroad company realized less than the full transporta- 
 tion rates paid by the complainants. The dealer, whether the 
 coal or railroad company, that reached the market at the lower
 
 804 UNJUST DISCRIMINATION. 
 
 rates would have the advantage, and could take the market from, 
 and drive out those who were unjustly discriminated against, and 
 made to pay excessive or higher charges. 
 
 When it is made to appear on investigation that any common 
 carrier is unjustly discriminating against any person, company or 
 firm, subjecting them to unreasonable disadvantage, or doing any- 
 thing in violation of the Act to Regulate Commerce, the remedy 
 which the Act provides is that such carrier be required to cease 
 and desist from such violations. Is this remedy practicable in 
 the case under consideration ? 
 
 The legal right of the Lehigh Valley Railroad Company to take 
 and hold the capital stock of the Lehigh Valley Coal Company, 
 and the right of said coal company to mine, buy, ship and sell 
 coal, it is said, is not raised in this proceeding, and if such right 
 were raised and challenged the Interstate Commerce Commission 
 has no authority to determine it. While the coal comj3any may, 
 in the exercise of its chartered rights, buy and sell coal, certainly 
 the commission cannot determine the prices at which it may buy 
 and sell, so that the railroad company may realize its established 
 freight rates as carrier and suffer no loss as stockholder. The 
 Interstate Commerce Commission would be incapable of any such 
 determination if it had any authority to make it. With the mar- 
 ket fluctuations in coal as well as other products which may rise 
 and fall from day to day, it is not practicable to determine in ad- 
 vance at what price the coal company must buy that it may sell 
 at such profits as to pay full freight charges. 
 
 And while the coal company in the exercise of its chartered 
 rights may acquire and hold mineral and other lands, at its own 
 pleasure, mine or buy coal without restraint as to cost, and sell it 
 at whatever price it may be willing to accept, and is able to ob- 
 tain, it is impracticable, the commission conclude, to regulate or 
 cause the discontinuance of the conditions and methods of busi- 
 ness, which result in the undue preference and discriminations 
 complained of in this branch of the case. The commission state 
 that one allegation of the complainant is that the coal company so 
 conducted its operations as a miner and shipper that its net income 
 from a large mining business was not sufficient to pay freight
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 805 
 
 charges, and that as a result the raih'oad company, through the 
 operations of the coal company as miner, shipper and seller, as 
 well as through its transactions as dealer, was giving to the coal 
 company undue preference. The cost of mining anthi-acite coal 
 so varies with different conditions and is so difficult of ascertain- 
 ment under any conditions, that it is even more difficult to fix 
 and so adjust the operations of the coal company as miner, shipper 
 and seller than it is as buyer, shipper and seller without subject- 
 ing individual shippers to disadvantage, and this allegation of the 
 complainant was not insisted upon in the argument. 
 
 The relief asked by the complainant for the injustice alleged to 
 result from the relations of the railroad company to tlie coal com- 
 pany, and its method of business as buyer, seller and shipper of 
 coal, is not that defendants shall cease and desist from mining, 
 buying, shipping and selling coal, but that complainants, together 
 with others similarly situated, shall have the benefit of a rate 
 ascertained by deducting from the established rate the loss incurred 
 by said coal company in its transactions as a buyer and seller of coal 
 shipped to market over the Lehigh Valley Road. From the evi- 
 dence the commission find that from the time of the enactment 
 of the Act to Regulate Commerce, the business of the Lehigh Val- 
 ley Coal Company as a buyer, shipper and seller of anthracite coal 
 has been profitable as a whole, though said company has in that 
 time, on various and frequent occasions, suffered losses. Its busi- 
 ness is not limited to interstate traffic, but extends to other traffic 
 as well. No separate account is kept, and the business is not so 
 conducted as to render any reliable estimate of the loss on inter- 
 state business practicable. In every month some transactions are 
 profitable; others are not. In many months the losses exceed 
 profits, and the amount of loss is different in different months. 
 At times it is different from day to day. Conditions so variable 
 can form no basis for determining rates which must be reasonable, 
 and afford no standard by which to measure the extent to which 
 charges onay be excessive. Yet the fact that the railroad com- 
 pany, directly as a carrier and indirectly through its coal company 
 as an operator, so conducts the business of buying, shipping, car- 
 rying and selling coal that the road realizes less for transportation
 
 806 UNJUaX DISCRIMINATION. 
 
 than its established rates, affords evidence of the defendant's 
 readiness to take the freiglit at less than full charges, and justifies 
 the conclusion that the charges to others are to some extent 
 excessive. 
 
 In the progress of the investigation, the complaint as to the rate 
 from the anthracite regions west to Buffalo was abandoned, and 
 the reasonableness of the charges from complainant's mines east 
 to Perth Amboy is yet in dispute. These charges as com])lained 
 of were $1.80, $1.40 and $1.20, according to sizes, averaging on 
 all $1.70 per ton. As reduced, pending the investigation, they 
 are $1.70, $1.40 and $1.20, and tiie average is $1.60. It is the 
 question of the alleged unreasonableness of these lower rates that 
 the commission are to determine. 
 
 In the closing argument on behalf of the road, counsel said the 
 railroad companies, without the interference of the commission, 
 " will make a reduction in their rates of freight. Such a reduction 
 will show a rate per ton per mile which will compare favorably 
 with the lowest charged according to the tables the petitioners 
 have produced." Since this assurance was given, the railroad 
 companies, including the defendant, have made an average reduc- 
 tion of ten cents per ton. The tables produced in evidence by the 
 petitioners show that, as reduced, the rates are yet twenty-five 
 cents per ton on the larger sizes, and twenty cents per ton in the 
 average on all sizes, higher than the rates which were in force for 
 the two years and more next before the Act to Regulate Commerce 
 took effect, and that at various times previous to 1881 the rates 
 were lower than the average for the two years next before the 
 Act was in force. 
 
 In the last ten years, the market price of coal has not increased. 
 The cost of production has been maintained or increased, and the 
 cost of railroad service from the anthracite region to New York 
 harbor has declined, as the result of the increased volume of 
 business. The aggregate charges of the defendant company on 
 other heavy and low grade freight, including iron ore, pig and 
 other iron, of greater value, carried the same distances, and its 
 proportionate charges for such heavy and low grade freight, for 
 shorter distances, are less than its charges on coal. The Lehigh
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 807 
 
 company estimates and reports its expense, or cost of service, to 
 be eighty-eight cents for every dollar earned, in carrying all other 
 freight, and fifty-six cents expense per dollar earned in carrying 
 coal. Under the rules of classification generally prevailing 
 miscellaneous or general merchandise is rated considerably higher 
 than coal, — while the charges of the defendant are considerably 
 more on coal, the least expensive freight, than on its more costly 
 general freight. These facts lead the Interstate Commerce Com- 
 mission to the conclusion that the rates in question are unreason- 
 able. 
 
 After submitting the proposed findings of fact for the consid- 
 eration of the commission, counsel for complainants in his 
 concluding argument said : "As to the unreasonableness of the 
 charge, we ask the commission to find that the rate of SI. 80 is 
 unreasonable within the statute. AVe do not ask or care about 
 your Honors' establishing any particular rate." ..." There 
 are a great many ways in which these coal rates can be determined 
 without fixing any arbitrary or inflexible standard. It could be 
 by a sliding scale depending upon the price of coal. You could 
 determine first the cost of mining coal and then the cost of rail- 
 road transportation. . . . Another way to establish the rate 
 would be at some fixed proportion of the average of the selling 
 price of coal at tidewater. ... If they (the carriers) are 
 informed that their present rate is unreasonable they will then 
 meet the individual oj)erators of their districts in consultation and 
 I am sure some amicable arrangement will be reached by which 
 both parties can make money." 
 
 Complainants' counsel here expressed the belief that the coal 
 traffic afforded a fair profit to both producer and carrier ; that to 
 secure an equitable division of the profits it was only necessary to 
 declare the charge made to be unreasonable and the parties would 
 come together and fix the proper rate themselves. 
 
 Counsel for the road said in reply : " That will not do. If 
 this commission says that the present rates are unreasonable they 
 must say so because there is a different rate they have determined 
 to be a proper one. It will not do for you to make a general 
 finding and to say : ' The present rates are unreasonable, but we
 
 808 ' UNJUST DISCRIMINATION. 
 
 do not know what they oui^lit to be. "We cannot fix tliem for you. 
 Yon must agree npon them amongst yourselves.' If unreasonable, 
 say to what extent they are unreasonable ; whether to the extent 
 of a cent, or of many cents, or of a dollar, a ton. Would it be 
 proper for you to lay down an abstract principle that would lead 
 to endless confusion in the application ? That would put all at 
 chaos. For Heaven's sake do not ever make the matter of the 
 proper rates for carrying coal one to be regulated in a conference 
 between the carrier and the shipper. If you have been convinced 
 by these petitioners that the present rates are unreasonable and 
 unjust, then say what the rates ought to be. This will be your 
 duty. I do not wonder that Mr. Gowen shrinks from asking you, 
 with the imperfect materials he has presented, and with the 
 information he has failed to furnish, to say what these rates 
 shall be." 
 
 To this appeal to Heaven and the commission the latter 
 answered that having declared the rates in question to be unrea- 
 sonable, if it should act upon tiie suggestion of counsel for com- 
 plainants and fix upon none which may be properly charged, the 
 case before the commission would be at an end when the railroad 
 company was notified that its rates were found to be excessive 
 and must be modified. The commission having prescribed no 
 measure of reduction, any modification made in good faith would 
 be a compliance with the required modification, yet it might be 
 unsatisfactory to complainants and other operators and fall short 
 of what the law requires. Then the occasion would be presented 
 when the operators and carriers might meet and amicably arrange 
 what the charges should be in accordance with the suggestion of 
 complainants' counsel. 
 
 In such a meeting or conference of operators and carriers, 
 where possible conflict of interest and opinion could arise, it 
 might and most likely would occur that no satisfactory arrange- 
 ment would be reached, and another application to the com- 
 mission would be necessary to declare the reduced rates still un- 
 reasonable. This process would need to be repeated until the 
 legal rate was established by successive reductions, made in com- 
 pliance with a series of determinations of the commission that 
 the rates were unreasonable.
 
 CAKRIER, AS SHIl'l'ER, MUST NOT FAVOR ITSELF. 80& 
 
 In tlie case under consideration suppose the facts to be as 
 claimed, that the charges are excessive, as much or more than 50 
 cents. Under the rule suggested by complainants' counsel, when 
 the rate was ascertained to be unreasonable it would be so de- 
 clared and left with the shipper and carrier for amicable arrange- 
 ment. If for any reason no scale of charges M^as agreed upon 
 the rate would remain for determination by the carrier whose 
 rate is challenged. Under such a rule applied to the subject of 
 this complaint five several proceedings would be necessary to 
 establish the reasonable rate if in each proceeding the carrier 
 deemed a 10-cent reduction sufficient. If, impressed with the 
 belief that the existing rates were not exorbitant, the carrier 
 should attempt compliance with the commission's conclusion that 
 they were excessive by making the least possible reductions, re- 
 peated and continual applications would be necessary to correct a 
 single abuse. Certainly Congress intended no such absurdity as 
 this, but, as insisted upon by counsel for the road, when the 
 commission have been convinced that rates are unjust it will be 
 its duty to say what they ought to be, or at least to determine 
 upon some rate, any charge in excess of which would be unrea- 
 sonable. If the dnty of the commission in respect to unjust and 
 unlawful rates ends when it has been convinced that rates are 
 unreasonable, and so decided them to be, and for any reason the 
 commission may not determine what are, as well as what are not, 
 reasonable, the regulation provided by the statute, in the express- 
 ive language of Commissioner Morrison, begins with comjDlaint 
 and ends in confusion. 
 
 The Act to Regulate Commerce, which declares every unjust 
 and unreasonable charge to be unlawful, and requires its provis- 
 ion to be enforced by the commission, confers the power to de- 
 termine, and imposes on the commission the duty of determining, 
 what are the reasonable rates which the charges may not exceed, 
 as well as what are unreasonable. 
 
 Tliare is no unbending rule by which to determine what com- 
 mon carriers may reasonably charge for their services, and the 
 reasonable rate must be ascertained from the facts of the partic- 
 ular case. To be reasonable, rates must be just, both to the par-
 
 810 UNJUST DISCRIMINATION. 
 
 ties immediately interested and to the public. Concedinpj this 
 statement correctly indicates the object of railroad trattic to be tlie 
 profits derived from it, the lowest compensation of the road can- 
 not be less than will enable it to render the service ; otherwise 
 the freight will not and cannot be carried. The highest must 
 not be more than the shipper can afford to pay ; otherwise the 
 freight will not be shipped. Reasonable rates are within these 
 minimum and maximum limits, and must be determined upon 
 the circumstances in each particular case. 
 
 It has been insisted that they may be rightly determined 
 upon a sliding scale depending upon the price of coal, or estab- 
 lished at some fixed proportion of the average of the selling price 
 of coal at tidewater — the cost of mining coal having first been 
 determined and then the cost of railroad transportation. 
 
 The roads have the same anthracite rates eastward and own or 
 control much of the larger part of the coal they carry. The oper- 
 ators or their sales agents establish the same circular prices and 
 the roads having the majority interests represented by such oper- 
 ators or agents could establish the rates by determining the price 
 on which they were to be apportioned. 
 
 The suggestion often made that the cost of mining and of trans- 
 portation be separately ascertained, is based on the assumption 
 that the coal business is profitable, and is evidently made 
 with a view to an equitable division of the profits of the coal 
 traffic between the producer and carrier. It would seem that the 
 carrier road can ofiier no reasonable objection to such a divis- 
 ion, provided the share of profit apportioned to it added to the 
 expense of transportation affords a fair compensation for the 
 service rendered. The average price of coal delivered at New 
 York harbor for the years 1880 to 1888 inclusive was about 
 $3.86 per ton. The cost of mining including depreciation and 
 royalty was and is about $1.85. The cost of transporting coal 
 ascertained from the report of the defendant company for the 
 year 1887 was about eighty-five cents; the cost of selhng twelve 
 cents. Deducting these several items of cost amounting to $2.82 
 from the price, $3.86, and a profit is shown of $1.04 on the ton 
 to be apportioned between the miner or operator and the carrier.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 811 
 
 One half of this profit added to the cost of carriage would fix the 
 aggregate earnings at more than half as much more, or about 
 sixty per cent above the amount required to pay operating ex- 
 penses for coal carriage, and would establish the transportation 
 rate at $1.37 per ton, leaving to the miner a profit of fifty-two 
 cents on the basis of the average prices since 1880. This profit 
 of the miner is dependent upon, and will fall off with the market 
 price of the coal, which will decline with the reduction in rates, 
 a fact established by the testimony of the president of the Lehigh 
 Yalley Railroad Company and the president and general manager 
 of the Lehigh Valley Coal Company, and confirmed by the result 
 of previous changes in transportation rates. Such a division of 
 profits or proceeds, after deducting cost of mining, selling and 
 transportation, would be mainly arbitrary, and the rate thus estab- 
 lished would exceed the cost of transportation much more than 
 the average of such excess of transportation cost over all other 
 roads on all classes of business. But the rate, on whatever basis 
 determined, must be fairly remunerative to be lawful, and any 
 division of the profits or net proceeds of coal after deducting 
 costs including transportation, as a means of ascertaining reason- 
 able rates, needs the justification of supporting facts. 
 
 The net earnings of all the roads are from 30 to 35 per cent of 
 the gross earnings, that is to say, of all the earnings of all the 
 roads about $QQ of every $100 is required to pay the expenses of 
 earning it, and the average rates on all the roads are 50 per cent 
 higher than would be required to earn operating expenses only. 
 Why a rate of 50 per cent in excess of the requirements of oper- 
 ating expenses, the average for all other roads, is not sufficiently 
 compensatory for the Lehigh Yalley is not explained in the testi- 
 mony or argument. 
 
 The rate established on this basis of adding 50 per cent to 80 
 cents, the expense of carriage of coal, would be $1.28, and in 
 comparison with the rates made on this basis the rate of $1.37 
 established by adding one half of the coal profit to the cost of 
 servfce or operating expenses would still be above the reasonable 
 rate. The rate of $1.28 is estimated on the average for coal of 
 different sizes and values, while the rate of $1.37 is estimated on
 
 812 UNJUST DISCRIMINATION. 
 
 that which pays the highest rate and sells at the best market price. 
 If for any reason it be assumed tliat coal charges should be based 
 on the expense of transportation of all the business of said road, 
 which is 63 per cent of the earnings from such business, and not 
 on the expense of coal transportation, which is 56 per cent of 
 coal earnings, the rate would be about $1.40 per ton, or 93 cents 
 per ton expense and 47 profit on income on the investment. But 
 the fact is not overlooked that there are too many elements of 
 uncertainty in any estimate of the cost of service and of mining 
 to justify their unqualified use as controlling facts in determining 
 reasonable transportation charges. 
 
 One of the complainants, as a witness, said, in answer to ques- 
 tions : " I began going in the mines when I was nine years old, 
 and ever since that time I have given my attention to it. I 
 graduated in the University of Pennsylvania, and after that I 
 studied mineralogy, etc. I was six months with Professor Leslie, 
 State Geologist on the Geological Survey. I then spent between 
 four and five years in Europe, partly in the mining school at 
 Paris and partly in a mining school in Germany, and I visited all 
 the principal mines of Germany, France, Belgium and England, 
 and since my return I have been engaged in mining coal in and 
 around Drifton, Pa. . . . since 1865." "I was two years 
 President of that Society." (Mining Engineers). " I would like 
 to have the right to state before the commission that in giving 
 this, the cost of mining coal in the Lehigh regions I am under- 
 taking the most diflicult problem in the anthracite business. I 
 mean this question of determining the cost of coal, and if you 
 gentlemen will excuse me I would like to make a preliminary 
 statement. . . . For the last twenty years I have been try- 
 ing to find out, and I cannot honestly say to-day what it does 
 cost. ... 1 don't think you would get any two to agree." 
 (Of a dozen experts in coal mining put to calculate the cost per 
 ton at the breaker.) 
 
 This complainant, when testifying before a committee of Con- 
 gress as to a table giving details of the cost of coal mining, said : 
 " Now, while the above table gives an approximate idea of how 
 these costs are divided, it is probably not true of any one mine.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 
 
 813 
 
 I have endeavored to make out, as nearly as I could, a table giv- 
 ing an average for a number of mines with which I am familiar, 
 but you must understand that in no two mines would these two 
 items of expense agree. In some mines little pumping is re- 
 quired, and in others the cost of pumping is very great. In some 
 the cost of timbering is enormous ; in others it is very small. In 
 some mines the cost of preparation is very great, owing to the 
 impurities found in the vein ; so that, although it is probable that 
 there are some mines where the cost of producing is as low as $1 
 per ton, there are others where it costs over $2, and the increase 
 in cost may be in any one of the items mentioned above." ^ (In 
 the tables, about which the witness was testifying.) A trained, 
 educated and conscientious expert in railroad transportation, if 
 required to give the expense or cost of carrying coal or any single 
 article of freight over a road doing a general business, such as is 
 done by the Lehigh Valley Railroad, would find the same diffi- 
 culty as said complaiiumt did when asked to state the expense or 
 cost of mining a ton of coal. 
 
 That the operating expenses on all freight was 63 per cent of 
 the gross receipts, while the operating expense or cost of carrying 
 coal for 1887 was 56 per cent of the gross receipts from the coal 
 traffic, leaving to the road $44 of every $100 earned after deduct- 
 ing costs of carriage, appears from the annual report of defend- 
 ant railroad company to its board of directors for that year. That 
 the cost of carrying a ton of coal from the Lehigh and Mahanoy 
 regions was 85 cents, being 56 per cent of the average rate for 
 that year, is derived from the same report. The annual report 
 of said company for 1888, made since the commencement of this 
 proceeding, and which is in evidence, does not contain these facts 
 or the statement from which they may be derived for that year. 
 No testimony was offered modifying the annual report of 1887, 
 and it may fairly be assumed that, in respect to its earnings, ex- 
 penses and other matters pertaining to the subject of this com- 
 plaint, said report is as favorable to the railroad company as the 
 facts Vill reasonably justify. The lowest anthracite rate which 
 has prevailed in the last 15 years was in 1879, when it was for 
 seven months as low as $1 per ton on all sizes. For the next five
 
 814 UNJUST DISCRIMINATION. 
 
 years, it was for a short time as low as $1.40, and much of the 
 time as high as $1.90. 
 
 In the two and more years from February, 1885, to April 4, 
 1887, the day next before the Act to Regulate Commerce took 
 effect, the highest rate whicli was in force on the large sizes was 
 $1.57 per ton, and the lowest $1.37, which prevailed without 
 change a year and more. The average rate for this period, ex- 
 ceeding two years, on the highest and most valuable sizes, was 
 $1.45. On the lower grades the rate was for one half of the 
 time as low as $1.17, but part of the time as high as $1.37, and 
 the average rate on all sizes and descriptions during this period 
 of two years and more next before the Act took effect was $1.40 
 per ton. 
 
 The primary and legitimate purpose for which railroads are 
 constructed and operated by their proprietors is the profits and 
 gains of the business. When, therefore, the commission says, a 
 railroad compan}'- voluntarily accepts and carries freight upon 
 terms made by itself, it furnishes evidence tending to prove that 
 such terms are profitable. "When such terms or rates of charges 
 are of long continuance, or are recurred to and adopted as often 
 as necessary to secure business, the evidence is more convincing 
 that the business, at such rate of charges, is remunerative. The 
 rate of $1 per ton, which was maintained seven months of the 
 year 1879, on all anthracite from the Lehigh and Mahanoy re- 
 gions, had not been in force before that year, nor has it been 
 since. The coal is carried by the road at an expense of about 
 85 cents per ton, as ascertained from its own report, which is 
 nearly 6 mills (5.7) per ton per mile for 149 miles, the average or 
 group distance from the mining regions to the Jersey coast. 
 
 The full charges for operating expenses and profits or net earn- 
 ings made by the Lehigh road on ores and some iron, both 
 ordinarily more expensive freights than coal, is 6 mills per ton per 
 mile or less. Still, in view of the terminal costs included, the ex- 
 pense of transporting coal stated to be 85 cents per ton may be 
 accepted as approximately accurate. The rate in force in 1879 is 
 but 15 cents, or less than 18 per cent, in excess of this expense, as 
 compared with about 50 per cent, the average difference between
 
 CARRIEK, AS SHIPPER, MUST NOT FAVOR ITSELF. 815 
 
 tlie expenses and earnings for all the roads of the country. The 
 Commission do not believe that charges yielding but 15 cents a 
 ton, or less than 18 per cent, more than cost of moving the 
 freight, will yield a fair return on the amount of investment in 
 the road, or that the rate of $1 in the average or on all sizes which 
 prevailed in 1879 would be a reasonable rate under present con- 
 ditions. 
 
 A rate established on the basis of the average relation between 
 operating expenses, 66 per cent, and income, less operating 
 expenses, 33 per cent, of earnings, would be 85 cents for expenses 
 and 43 for income on capital invested, aggregating $1.28, which 
 is lower than any rate in force previous to or since 1879. The 
 rate for the year 1886 averaged on all descriptions of anthracite 
 $1.34 per ton, and the average for a period exceeding two years 
 immediately preceding the enactment of the Interstate Commerce 
 Law was $1.40. The acceptance of rates averaging for so long a 
 time $1.40, and even a lower rate for more than a year without 
 change, affords strong presumption that it is fair compensation for 
 the service rendered ; and when as in this case an average scale of 
 charges has prevailed more than two years and up to the day when 
 the law requiring rates to be reasonable became operative, and no 
 evidence is produced to show why such rates would not be just, 
 the only conclusion the commission can arrive at is that they 
 were, when in force, and still are, sufficient and reasonable. 
 
 This conclusion it is said is fully warranted by the annual bal- 
 ance sheets of the railroad company, which shows that in 1886, 
 with an average rate 6 cents per ton less, said company met all its 
 obligations, including interest on its bonded debt and "guaranteed 
 bonds and stocks," largely exceeding the whole cost of its road 
 and equipment, and paid $1,331,531 dividend on its capital stock, 
 which also largely exceeds the whole cost of the road and equip- 
 ment. In 1887, when its rates averaged $1.49 after meeting all 
 its obligations, said company made a dividend of five per cent on 
 its capital stock and could have increased its dividend to more than 
 6 per fent, but instead carried a surplus of $410,791 to the profit 
 and loss account. The coal tonnage of said railroad company in 
 1888 was more than a million of tons in excess of that of 1887.
 
 SIQ UNJUST DISCRIMINATION. 
 
 Its business and income were larger in 1888 tlian in any previous 
 year. The increasino^ population and growing industries on its 
 main line and branches and in the districts it serves secure to it a 
 constantly increasing traffic and revenue. The transportation 
 service is thus made less and less expensive and warrants more 
 moderate charges. 
 
 In the more than two years immediately preceding the enact- 
 ment of the Interstate Commerce Law, during which time the 
 average rate on all descriptions of anthracite was $1.40, it was on 
 the larger sizes $1.44r|, and on all the smaller sizes $1.24^. In 
 1888 the lower grades were divided and rated under two descrip- 
 tions, thus making three different classes of anthracite, the 
 prepared and sizes larger, the pea, and the buckwheat and culm. 
 When the arrangement was in two classes the difference in 
 charges on pea and lower grades was at times 15 cents, but usually 
 20 cents, less than on the grades above pea. After the division 
 into three grades or classes the charges were for a time on the 
 higher grades as much as 40 cents above pea, the best of the 
 smaller sizes. As arranged by the reduction made subsequent to 
 the hearing in the case the charges on pea are 30 cents less than 
 on the more valuable, and 20 cents more than on the sizes less 
 valuable, than pea, the difference between the highest and lowest 
 being 50 cents per ton. 
 
 It thus appears that as the price of bituminous coal has declined 
 and its use relatively increased in eastern markets, the carriers 
 have found it more and more necessary to so adjust their rates on 
 anthracite as to make them proportionally less on the steaming or 
 smaller sizes. In so adjusting the proposed reduction to the 
 average of $1.40 it is only prudent to maintain, as.far as may be, 
 the relations in the charges on the several sizes or qualities of coal 
 which the carriers with their growing experience found it neces- 
 sary to establish. To maintain these relations approximately with 
 the highest rate at about $1.45 as it was when the average was 
 $1.40, the lowest would be too nearly consumed in the expense to 
 afford any reasonable profit. Still with the increasing supply of 
 bituminous the smaller or ordinary steaming sizes of anthracite 
 must reach the market at the lowest possible cost. The practicable
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 817 
 
 and necessary adjustment of the rates on such east bound, short 
 distance traffic, which the commission determined upon as rea- 
 sonable per ton of 2240 pounds from the collieries of complain- 
 ants to Perth Amboy, is, on the prepared and larger sizes, $1.50 ; 
 on pea, $1.25 ; on buckwheat and culm, $1.05. 
 
 The charges so adjusted on the several grades or sizes of coal 
 and applicable to complainants' shipments to Perth Amboy are 
 not meant to affect or to establish the relation of the charges made 
 or to be made on Buffalo and longer distance shipments where 
 lower anthracite rates are maintained than are or may be in force 
 on tide shipments. 
 
 The rates now determined upon are believed, say the commission, 
 to be liberal for freight so inexpensive as coal, and if, after trial, 
 it is found that they are too high, it will not hesitate to require 
 further reductions ; but in view of interests so vast as the east 
 bound anthracite traffic which may be affected, it does not now 
 feel justified in determining upon a lower scale of charges. In 
 their petition and proposed findings complainants assume that the 
 charges they may be reasonably required to pay must be 
 based on the average distance from their several collieries to Perth 
 Amboy, 135 miles, and not on the average or group distance from 
 the Lehigh and Mahanoy anthracite fields, 149 miles, in accord- 
 ance with the practice long in use. But the commission say it is 
 often impracticable to establish different rates on the same 
 commodity from practically the same locality to the same market. 
 That under such circumstances some grouping is not unreason- 
 able, complainants concede by asking that they may be charged 
 on the average distance from their seven collieries, no two of 
 which are the same distance from Perth Amboy. One is as near 
 as 128 miles, while another is as far as 145 miles. The reasons 
 which make necessary and justify the same charges from the sev- 
 eral collieries of complainants would seem to justify like charges 
 from all the collieries in the same coal fields and practically the 
 same locality. The objection which is frequently urged against 
 the equal charges from collieries or places of production variously 
 distant is that such charges occasionally deprive producers of their 
 natural advantages resulting from proximity to markets. This 
 52
 
 818 UNJUST DISCRIMINATION. 
 
 objection, the commission assert, can have no application to ques- 
 tions to be determined in this proceeding. The complainants' 
 mines and collieries are situate in the Lehigh regions, the nearest 
 to eastern markets, and the charges are less to the east than the 
 charges from the more distant Wyoming region, though not ad- 
 justed in proportion to distance. On western shipments all the 
 anthracite fields are grouped together, and given the same rate, of 
 which the complainants get the advantage, their collieries or some 
 of them being among the most distant from western markets, and 
 they suffer no undue disadvantage from the system of groupiug in 
 use under which their charges east are based, on a distance 14 miles 
 in excess of the average from their collieries, while they have the 
 advantage of the same rates on western shipments paid by their 
 competitors located from 60 to 100 miles nearer to western markets. 
 Much stress was laid by defendant on the expense or cost of 
 terminal service, incident to the transportation, as a justification 
 of high rates. After most careful investigation the commission 
 found it to be about 30 cents, or two mills per ton per mile, on 
 shipments from the Lehigh and Mahanoy fields to Perth Amboy. 
 This would leave to the road for the additional expense of trans- 
 portation a trifle less than 4 mills per ton per mile if the entire 
 terminal expense was included in the cost of transportation, a 
 part of which terminal expense is included in the plant or invest- 
 ment. The charges of the Lehigh Valley Railroad Company un- 
 der its reduced rates on anthracite coal from the Lehigh region 
 to Buffalo are $2, or 6 mills per ton per mile, and include the 
 same terminal expenses at the mines as are incurred on Perth 
 Amboy shipments. Said Lehigh Valley Railroad Company 
 transports the coal carried by it to Buffalo over the lines and 
 tracks of the New York, Lake Erie & Western Railway Com- 
 pany, for which said Erie Company receives one half of the 
 freight charges. There is thus left to the defendant road but 
 three mills per ton per mile for its transportation services, in- 
 cluding terminal costs and profit or income on investment. When 
 the operating expenses, which include the cost of collecting, 
 weighing and making up into full train loads at Packerton, are 
 compensated for, the haul thence to Perth Amboy is but one
 
 CAKRIER, AS SHIPPER, MUST NOT FAVOR ITSELF, 819 
 
 hundred and twenty-five miles, and its cost is considerably re- 
 duced. The commission conclude that the scale of charges de- 
 termined upon as reasonable are sufficient to meet all the expenses 
 and obligations of the railroad company, including dividends on 
 the capital stock, or a reasonable rate of income on the alleged 
 investment. The terminal charges being thus provided for, their 
 exact sum and apportionment, as between the expense and net 
 profit account, is not essential to the ascertainment of the proper 
 aggregate rates. An order was issued requiring the Lehigh Yalley 
 Railroad Company to cease and desist from making any charges 
 after April 20, 1891, in excess of the rates determined upon. 
 
 In the case of Haddock v. Delaware^ L. & W. R. Co. 3 Inters. 
 Com. Rep. 302, the petition of the complainant shows : 
 
 First. That petitioner is and has been as hereinafter mentioned 
 an owner of anthracite coal mines in Plymouth and Luzerne in 
 the county of Luzerne, Pennsylvania, and an extensive miner and 
 shipper of anthracite coal therefrom. That petitioner's mines are 
 known as the Dodson and Black Diamond Mines, and have to- 
 gether a daily capacity of from 2200 to 2300 tons of coal. 
 
 Second. That defendant is a common carrier engaged in the 
 transportation of passengers and freight by railroad between 
 points in the state of Pennsylvania and points in the states of 
 New York and New Jersey, and as such is subject to the Act to 
 Regulate Commerce. 
 
 Third. That defendant is a corporation organized and existing 
 under the laws of Pennsylvania, and is largely engaged as com- 
 mon carrier in transporting coal as interstate commerce from the 
 Wj' oming and Lackawanna coal regions in Pennsylvania eastward 
 to tidewater at Hoboken, New Jersey, and westward to Buffalo, 
 New York, and to intermediate points between said east and west 
 termini, and to points beyond. That petitioner's mines aforesaid 
 are located immediately upon the Lackawanna & Bloomsburg 
 Railroad, which is a branch of defendant's railroad, that all or 
 nearly all of petitioner's coal has been shipped as interstate com- 
 merce over the defendant's lines of railroad, and that petitioner 
 has no other so convenient means of transport or carriage for his 
 coal to market as the lines of railroad of defendant.
 
 820 UNJUST DISCRIMINATION. 
 
 Fourth. That one of tlie principal markets for anthracite coal 
 is in the city of New York, and tliat coal for points eastward from 
 New York is delivered to vessels at some point in or about New 
 York liarl)or and thence shipped to its destination. That there 
 is nevertheless a valuable and growing market for anthracite coal 
 to the westward of the anthracite coal regions of Pennsylvania. 
 That the greater part of said westward traffic in anthracite coal 
 over defendant's line of railroad is by way of the city of Buffalo, 
 whence shipments are made by lake or transfer to other and con- 
 necting railroads. 
 
 Fifth. That in addition to petitioner there are other miners 
 and shippers of anthracite coal, including the defendant herein, 
 engaged in shipping anthracite coal as interstate traffic from said 
 Wyoming and Lackawanna coal regions to various points in the 
 states of New York and New Jersey and elsewhere over the line 
 of defendant's railroad. 
 
 Sixth. That defendant is itself one of the largest owners of 
 anthracite coal mines in the United States, its mines being located 
 on the line of its own railway and in the immediate neighborhood 
 of petitioner's mines, and it is the largest single shipper of coal 
 over its own lines to Hoboken, and either the sole or almost the 
 sole shipper over its lines westward. 
 
 Seventh. That petitioner's Dodson mines at Plymouth are 165 
 miles from tidewater at New York and 285 miles from Buffalo, 
 measured on the line of defendant's railroad. 
 
 That petitioner's Black Diamond mines at Luzei'iie are 163 
 miles from tidewater at New York and 283 miles from Buffalo, 
 measured on the line of defendant's railroad. 
 
 That defendant has a published rate or tariff of charges which 
 it charges private miners and shippers of coal, but that it gives 
 to itself as a miner and shipper of coal what is in effect an undue 
 and unreasonable preference and advantage in the matter of rates, 
 in that the said defendant in disposing of the product of its own 
 riUnes, or in selling the coal which it buys from other colleries, 
 does so at a price which will not cover the cost of mining coal 
 at its own colferies, or the price it pays other operators, adding 
 thereto a reasonable charge for selling expenses and the rate of
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 
 
 821 
 
 transportation it charges to other shippers and to petitioner. 
 That said pubhshed rate or tariff at the present time is $1.80 per 
 ton of 2210 pounds on all anthracite coal shipped to Hoboken 
 and delivered there free on board vessels, and $2.50 per ton on 
 all anthracite coal shipped to Buffalo, whether consigned to Buf- 
 falo or dehvered there free on board vessels. That the rate 
 charged by competing railroads for carriage of anthracite coal to 
 Buffalo from the same region for the same length of haul, and 
 under similar circumstances and conditions, is 25 and 50 cents a 
 ton less than is charged by defendant. 
 
 Eighth. That the charges made by defendant for the handling 
 and transportation of petitioner's coal to Hoboken, New Jersey, 
 and delivery there on board vessels are unreasonable and unjust. 
 That the charges made by defendant for the handling and trans- 
 portation of petitioner's coal to Buffalo, wl),ether consigned to 
 Buffalo or intermediate points, or for delivery there to the other 
 raih'oads or on board vessels, are unreasonable and unjust. 
 
 Ninth. That bituminous coal is like traffic with anthracite coal 
 within the meaning of the Act to Regulate Commerce ; that it 
 comes chiefly in competition with the smaller sizes of anthracite 
 coal, such as are commonly known as pea, buckwheat and culm, 
 the production of which is not a matter of choice with miners, 
 but such sizes result from the most careful manipulation of coal 
 in mining and preparing for domestic use. That in the trans- 
 portation of these smaller sizes of anthracite coal defendant dis- 
 crhiiinates in its own favor, and against complainant and other 
 shippers, and that its charges for transportation made to other 
 shippers than itself are excessive and unreasonable. That with 
 the use of ordinary care and diligence to prevent waste and small 
 sizes, there will result of culm and of pea and buckwheat each a 
 large percentage of the total output. That the percentage of 
 these smaller sizes now produced is greater than formerly, for 
 the reason that the carrying rates of anthracite coal being un- 
 justly higher than for the carrying of bituminous coal for a like 
 and contemporaneous service, the large sizes of anthracite for- 
 merly used in manufacturing have been largely driven out of the 
 market, and only the smaller sizes are shipped. In making such
 
 822 
 
 UNJUST DISCRIMINATION. 
 
 smaller sizes, the percentage of culm, pea and buckwheat is 
 greatly increased. 
 
 That were the prices charged for the transportation of culm, 
 pea and buck wheat no higher than the prices charged for the 
 transportation of bituminous coal, these products of the coal mines 
 of your petitioner could and would find their way to market, but 
 the price of transportation now ciiarged by defendant is the same 
 as for the lai-ger size of anthracite, and that such price is not 
 justified by the value of the article or the cost of transportation ; 
 that it is higher than the rate charged by other transportation 
 companies for carriage of the same products, and is unreasonable 
 iind unjust. That in consequence of such unreasonable and un- 
 just rate of transportation charged by the defendant, your peti- 
 tioner cannot realize more than, or as much as, the cost of the 
 transportation thereof as now charged, and these products there- 
 fore become waste. That the rates charged to petitioner for the 
 transportation of his anthracite pea, buckwheat and culm to 
 Hoboken and Buffalo and intermediate points are excessive and 
 unreasonable. 
 
 Tenth. That by reason of the unjust advantages secured to it- 
 self by such discriminations and by the unjust and excessive rates 
 charged to private miners, the property and power of defendant 
 have now become so preponderating that three fourths of all the 
 coal tonnage carried by defendant eastward is its own coal, and 
 all or nearly all of its westward coal tonnage is its own coal, either 
 mined or purchased by it, and that the same is true of all the 
 railroads carrying coal from the Wyoming and Lackawanna re- 
 gions. That the rates charged by defendant and other roads to 
 private shippers are for the most part uniform, and that by con- 
 spiracy and combination as to rates, and by a limitation of the 
 quantities shipped, defendant and other railroad companies are 
 able to and do control the market price of coal, and in effect un- 
 lawfully restrict the uses to which anthracite coal shall be put, 
 and in many instances compel the miners to sell their coal at the 
 mines to the railroad companies, at a price dictated by the latter, 
 to the great damage of petitioner and other miners of anthracite 
 coal.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 823 
 
 Eleventh. That the anthracite coal carriers, by charging a very 
 higli rate for carriage, make the market price so high that its sale 
 is cut off except for uses for which bituminous coal is not fitted. 
 By reason of the high tariff on anthracite and the low tariff on 
 bituminous coal, anthracite is largely displaced and driven out of 
 the market for use in manufacturing and making steam. That 
 the uses of anthracite coal are confined, by reason tliereof, mainly 
 to domestic use. That one result of this restriction of market is 
 that, when, as is usually the case at some time during the year, 
 the demand becomes sluggish and the market price is lowered, 
 and the rates of transportation being nevertheless maintained at a 
 point which makes it impossible to ship coal at a profit, the mines 
 are then shut down and the miners thrown out of employment 
 until the stock in market is reduced and prices are again advanced 
 and mining resumed. That the result is injurious and hurtful 
 alike to the private owners and to the miners. 
 
 Twelfth. That the rates charged as aforesaid to petitioner con- 
 stitute an unlawful and inequitable discrimination against him 
 and all others similarly situated as shippers, against his and their 
 business as interstate traffic, and against the region of country in 
 which he and they operate and conduct the business aforesaid. 
 
 Thirteenth. That it is contrary to public policy and to the con- 
 stitution of the state of Pennsylvania that the same person should 
 be a common carrier and a miner and shipper of coal. That such 
 double relation to the coal traffic inevitably results in unjust and 
 burdensome discriminations by the carrier against private miners 
 and shippers of coal and dealers therein. That defendant, in vio- 
 lation of said constitution and since its adoption in 1874, has ac- 
 quired and owns and operates coal mines in the state of Pennsyl- 
 vania and sells their products in competition with petitioner. 
 That such offense against public policy and the constitution of 
 Pennsylvania is equally contrary to the provisions of the Inter- 
 state Commerce Act. That defendant also, contrary to law and 
 public^ policy, purchases from other miners large quantities of 
 coal at the mines, not for its own use, but to be afterwards dealt 
 in and sold as merchandise in competition with petitioner's coal. 
 That the profits of carrying the coal are constantly and inevitably
 
 824 UNJLST DISCRIMINATION. 
 
 increased to a point which barel}' permits the private coal miner 
 to ship his coal without loss ; that he is often in effect compelled 
 to sell his product to the railroad company at its own price at the 
 colliery, or antagonize its power and encounter its arbitrary and 
 excessive transportation charges, its grudging, irregular and ca- 
 pricious supply of facilities and its competition as a dealer able to 
 dominate the market. That the holdings and ownership of coal 
 lands and coal mines in the anthracite region by railroad compa- 
 nies, including defendant, have constantly increased, both in ab- 
 solute quantity and in proportion to the whole, to such an extent 
 that now nearly or quite three fourths of the anthracite coal 
 mines and fields in the United States are owned directly or indi- 
 rectly by the defendant and the other railroad companies running 
 into that region. That such preponderance and power in the 
 hands of a few corporations place private and noncorporate own- 
 ers and miners at a great and dangerous disadvantage and leave 
 them at the mercy of their powerful rivals, unless the commis- 
 sion shall compel them to make such charges for transportation 
 as are just and reasonable, and to abstain from all unjust discrim- 
 inations. 
 
 Fourteenth. That petitioner is at a greater disadvantage in his 
 dealings with the defendant than are other miners and shippers of 
 coal over its lines, inasmuch as defendant is mortgagee of peti- 
 tioner's mines; and further because of contracts regarding the 
 transportation of his coal entered into by petitioner at or about 
 the dates of the said mortgages to defendant, and which at the 
 time he deemed it expedient and necessary for him to make, in 
 view of the dominating power of the defendant over his business. 
 That defendant, under such transportation contracts, claims that 
 petitioner is required to ship all his coal over defendant's 
 railroad ; that if such claim be well founded, it is of the greater 
 importance to petitioner that the said defendant shall be strictly 
 held to the requirement that its charges shall be reasonable and 
 just, and that there shall be no unjust discrimination in any form 
 against petitioner. That petitioner avers that there is nothing in 
 said mortgages or contracts which gives to defendant the right to 
 impose upon petitioner unjust or unreasonable charges for trans-
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 825 
 
 portation, or to discriminate af^aiiist him in any manner. Peti- 
 tioner prays that order be made commanding the defendant to 
 cease and desist from said violations of the Act to Regulate Com- 
 merce, and for such other and further order as the commission 
 may deem necessary in the premises. 
 
 Respondent filed answer to this petition, admitting ownership 
 of the mines known as the " Dodson " and " Black Diamond" 
 mines by the complainant ; admitting the ownership by itself of 
 railroad lines as stated, and that it is engaged, as charged, in the 
 transportation of anthracite coal })urchased and mined by itself in 
 pursuance of authority contained in its charter, and also of freight 
 for other corporations and persons; that it transports coal for 
 others, including complainant, as well as its own coal, from the 
 Wyoming and J^ackawanna coal regions in Pennsylvania eastward 
 to tide water at lloboken, New Jersey, and westward to Buffalo, 
 JSew York, and to intermediate points between such east and west 
 termini and to points beyond. It admits the allegations in the 
 4th, 5th, 6th and 7th paragraphs of the petition, and denies those 
 in the 8th, 11th and 12th paragraphs. It admits that it has a 
 published rate or tariff" of charges to shippers of coal of $1.80 per 
 ton of 221:0 pounds of anthracite coal to lloboken, delivered free 
 on board vessels, and S2.50 per ton on like coal shipped to 
 Buffalo, but denies that complainant was charged those rates 
 for reasons hereinafter stated ; admits that other carriers charge 
 less on coal to Buffalo by 25 to 50 cents a ton, but says their rates 
 are unreasonably low, and defendant is unwilling to accept the 
 same ; denies that bituminous coal is like trathc with anthracite 
 within the meaning of the Act to Regulate Commerce ; admits 
 that certain small sizes of coal, known as culm, pea and buck- 
 wheat, result from the manipulation of anthracite coal in mining 
 and preparing it for market, and that these small sizes are less 
 valuable than the larger sizes ; denies that any of its rates for 
 transporting any sizes of anthracite coal are unreasonable or 
 unjust: denies that bituminous and anthracite coal can properly 
 be compared as to cost of transportation ; admits that it carries 
 more coal for itself than for others, but denies that the prepon- 
 derance of its own tralHc is by reason of unjust advantages secui-ed
 
 826 UNJUST DISCRIMINATION. 
 
 to itself or of unjust or excessive rates charged to others ; admits 
 that the rates charged by it and other roads to private shippers are 
 for tlie most part uniform ; claims that having received its charter 
 before the present constitution of Pennsylvania was adopted it is 
 not subject to the provisions therein which might otherwise affect 
 its business. 
 
 The answer then proceeds to say that at the request of com- 
 plainant, and for the purpose of enabling him to purchase said 
 Dodson and Black Diamond mines, or an interest therein, or to 
 discharge liens thereon, and to enable him to operate said mines, 
 the defendant has from time to time advanced liiin large sums of 
 money and given him at his request contracts for the transporta- 
 tion of the products of his mines at favorable rates, and has at his 
 request entered into agreements for the re})ayment of said advances 
 in small installments, and proceeds to set forth contracts, agree- 
 ments, bonds and mortgages, marked, respectively. Exhibits from 
 1 to 13, inclusive, to show the facts ; all of which were entered 
 into previous to the passage of the Act to Regulate Commerce. 
 It avers that complainant, since the passage of that Act, has insisted 
 upon the continuous validity of the agreements for transportation, 
 and defendant has acquiesced ; asserts that the terms upon which 
 defendant must transport the coal of complainant are found in said 
 contracts ; that defendant has not deviated from the line of its 
 obligations and duties under the same, but if it has, the remedy of 
 complainant is in the courts ; and it therefore prays that the com- 
 plaint be dismissed. 
 
 To this answer were attached as exhibits copies of several 
 agreements which are referred to therein. Exhibits Nos. 1 and 2 
 are an agreement for a loan and a bond for the money loaned, 
 dated February 24, 1882. Exhibit No. 3 is the abstract of a mort- 
 gage deed for the loan. All these are between the defendant and 
 John C. Haddock and Charles F. Steel, who are the borrowing 
 parties. Exhibit No. 4 is a contract between the same parties for 
 the transportation of the coal of Haddock & Steel from their 
 colliery, located on the mortgaged lands and known as the "Black 
 Diamond" colliery, to Hoboken in the state of !New Jersey. The 
 provisions of this contract important for the purposes of this pro-
 
 CAKRIEK, AS SHIPPER, MUST NOT FAVOR ITSELF. 827 
 
 ceeding are that Haddock and Steel shall deliver to the railroad 
 coinpanv loaded in its ears at tlie said colliery for transportation 
 to Hoboken all the coal which they have a right to mine and re- 
 move from said lands at the rate of 150.000 tons of 224:0 pounds 
 of coal annnall}' till the whole is removed and deliv^ered, the same 
 to be in as nearlj equal daily deliveries as may be practicable, 
 Sundays and tlie usual holidays excepted, the railway agreeing to 
 furnish cars for the purpose. There are then the following agree- 
 ments : "And the said parties of the first part agree to pay the 
 said party of the second part for the coal transported as aforesaid 
 at the rate following, to wit : For the coal transported to 
 Hoboken, as aforesaid, and then by the said party of the second 
 part transferred from the cars into vessels provided by the said 
 parties of the first part, the rate shall be fifty per cent of the aver- 
 age price per ton at which the said party of the second part shall 
 have, during the month in which said coal is transported, sold and 
 delivered their own coal, delivered on board of vessels at Hoboken 
 aforesaid, in ascertaining which price no coal below the size known 
 as ' pea ' shall be taken into account, which payment shall be made 
 on tlie 'eighth,' 'fifteenth,' 'twenty-second' and last day of every 
 month at the office of the said party of the second part, in the city 
 of Kew York, in funds par in said city. And for the purpose of 
 ascertaining the amount to be paid on said days, it shall be 
 assumed that the average price at which the said party of the sec- 
 ond part sold and delivered their own coal on board of the vessel 
 at Hoboken during the preceding month was the same as the price 
 during the then present month, and payments shall be made upon 
 that assumption, subject to adjustment when the price for the 
 present month is ascertained. 
 
 " And the right of the said party of the second part, to be paid 
 for said transportation and handling, shall be held to have accrued 
 as soon as the coal arrives at Hoboken, or such point convenient 
 thereto as may be jDrovided for the standing of loaded cars, even 
 though the coal, for any reason, had not been transferred into 
 vessels. 
 
 " The said parties of the first part may send such" portion of 
 the said coal as they shall desire to such points and places north
 
 828 UNJUST DISCKIMINATION. 
 
 and west upon the same terms and conditions as the said party of 
 the second part for the time then being transports coal for other 
 parties over the raib'oad of the said party of the second part. 
 
 " And in case the said parties of the first part shall at any time 
 fail to pay the said party of the second part as hereinbefore pro- 
 vided, for the transportation or handling of any part or portion 
 of said coal, the said party of the second part shall, in addition to 
 all other legal remedies for securing and collecting the same, have 
 the right to take, and, in such way and manner as the said party 
 of the second part may deem proper, sell and dispose of any and 
 all of the coal of the said parties of the first part, which may be 
 in the cars of the said party of the second part, at the aforesaid 
 colliery or collieries, or at any other place, or in transit or in 
 stock, and to apply the proceeds in payment of the amount due 
 the said party of the second part, for transportation of said coal, 
 or due and unpaid for the transportation of any other coal, re 
 turning the excess, if any, to the said parties of the first part. 
 
 " And in case of the failure of the said parties of the first part 
 to furnish for transportation the coal as aforesaid, or to pay for 
 the transportation thereof, as the same may become due and pay- 
 able, the said party of the second part may take possession of the 
 mines and improvements of the said parties of the first part, in 
 the way and manner as hereinafter provided. 
 
 " The number of tons transported shall be ascertained by the 
 weights of said coal, as weighed in the cars of the said party of 
 the second part, at the colliery aforesaid, by a person to be ap- 
 proved by the general coal agent of the said party of the second 
 part, and paid by the said parties of the first part, upon a suitable 
 scale to be provided by the said parties of the first part, and in 
 weighing the same the usual allowance to compensate for snow 
 and ice that may be on the coal or cars, as is customary to be 
 made by the said party of the second part in weighing its coal, 
 and for dust and wastage in transportation, provided for in exist- 
 ing transportation agreements made by the said party of the sec- 
 ond part, shall be made. 
 
 " And the said parties of the first part further agree to furnish, 
 and have placed at such points as the said party of the second
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 829 
 
 part may direct at Hoboken, aforesaid, vessels for tlie reception 
 of at least eighty per cent of the said coal, so that the said party 
 of the second part can transfer the same directly from the cars 
 into vessels within twenty-four hours from the time of the arrival 
 of the cars containing said coal at Hoboken, or at such place con- 
 venient thereto as the said party of the second part may have or 
 provide for the standing of loaded cars. 
 
 " And the said party of the second part further agrees to pro- 
 vide stocking grounds at or near Hoboken, aforesaid, for the 
 storing of, and to unload and store so much of, said coal, not ex- 
 ceeding twenty per cent thereof, as is not transferred directly 
 from cars into vessels, and when vessels to receive the coal thus 
 stocked are furnished, shall load the same into vessels. Should 
 the said parties of the tirst part fail to furnish vessels so as to en- 
 able the said party of the second part to transfer at least eighty 
 per cent of said coal directly from the ears into vessels within 
 twenty-four hours, as aforesaid, the said party of the second part 
 may at their option discontinue furnishing cars for the reception 
 of coal at the said colliery until vessels are furnished as aforesaid, 
 — it being understood and agreed that the said party of the second 
 part shall not be bound to furnish stocking room for more than 
 six thousand tons at any one time. 
 
 "The average net price the said party of the second part shall 
 sell their coal on board vessels at Hoboken shall be determined 
 by a written statement made by the treasurer of the said party of 
 the second part. 
 
 " And the said party of the second part further agrees that if 
 at any time a general reduction in the rate hereinbefore provided 
 for transportation of coal to Hoboken is made to other shippers of 
 coal, the said parties of the first part shall be entitled to the ben- 
 efit of the same, while such reduced rate is in force. And the 
 said party of the second part shall have the right to the use of so 
 much land at or convenient to the said colliery as they may re- 
 quire for a car repair shop, with the right to remove the same at 
 their pleasure, prior to or upon the termination of this agree- 
 ment. 
 
 " If by reason of strikes among the emplo3'es of either party
 
 830 UNJUST DISCRIMINATION. 
 
 (even thoui^h such strikes should be caused by a reduction of 
 wattes) or by reason of injury to the works, buildini^s or fixtures 
 of either party, or delays, or obstructions to the mining or trans- 
 portation of said coal, either party should be temporarily disabled 
 from furnishing or transporting said coal as hereinbefore agreed, 
 neither party shall, for such temporary nonfulfillment of this 
 agreement, be liable to pay damages, if reasonable exertion is 
 made to remove such disabilities. 
 
 •' And it is further agreed, by and between the parties hereto, 
 that the said parties of the first part shall have the right, upon 
 giving three months' written notice to the general coal agent of 
 the said party of the second part of their intention so to do, to 
 increase the annual deliveries as aforesaid to three hundred thous- 
 and tons per year. And after having given such notice, they 
 shall thereafter be bound to deliver for transi)ortation as afore- 
 said, to the said party of the second part, such additional quantity 
 annually during the term of this agreement." 
 
 This agreement bears the same date with the other papers above 
 mentioned. Exhibit No. 5 is a similar agreement made between 
 the Plymouth Coal Company, by John C. Haddock, Chairman, 
 and the respondent company, for the transportation of coal from 
 the Dodson mine to Hoboken, aforesaid, and to Syracuse in the 
 state of New York, on substantially the same terms, the rate for . 
 transportation from Syracuse to " be such as the said railroad 
 company may from time to time fix, not exceeding the rates 
 charged other parties similarly situated, whose coal is destined to 
 the same market." This beai's date February 25, 1879. Exhibit 
 ISTo. 6 has no importance in this controversy. Exhibit No. 7 is 
 another agreement of complainant with respondent for the trans- 
 portation of coal from the Dodson colliery. Exhibits Nos. 8 to 
 13 inclusive all have reference to the same general subject of 
 loans from respondent to complainant, and of the transportation 
 by respondent of complainant's coal from the collieries mentioned. 
 The transportation agreement first mentioned sufficiently shows 
 the terms of all the agreements for transportation put in evidence, 
 and the subsequent agreements are therefore not further men- 
 tioned or given.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 831 
 
 The case being thus at issue complainant on affidavits filed 
 showing cause therefor made application for subpoenas dxices tecum 
 addressed to Samuel Sloan, President; E. E. Holden, Second 
 Vice President ; AVilliam E. Storrs, General Coal Agent, Fred- 
 erick H. Gibbens, Treasurer, of the respondent company, and 
 various other persons named, requiring the production of books, 
 accounts, pa]3ers, etc., and, among other things, calling for con- 
 tracts, agreements and documents in possession of the person 
 named, or under his control, " relating in any wise to the matters 
 hereinbefore specified, or to any other matter whatsoever in issue 
 in this proceeding as the same is disclosed by the pleadings here- 
 in." What was required of each person is specifically men- 
 tioned, but it is not deemed necessary to state in detail here. 
 
 "When this api^lication for subpoenas duces tecum was called 
 up, motion was at the same time made on behalf of the respond- 
 ent to dismiss the whole proceeding upon the ground that it pre- 
 sented only judicial questions, and did not, therefore, come within 
 the jurisdiction of the Interstate Commerce Commission. The 
 basis of the motion in general terms may be said to be this, that 
 the parties had by their contracts fixed for themselves definitely 
 and conclusively their rights in respect to the transportation of 
 complainant's coal, so that if the complainant was in any respect 
 wronged in regard to such transportation the wrong was one for 
 which he had ample redress in the courts. 
 
 The application of the complainant and this motion to dismiss 
 were taken up and argued before the commission by counsel at 
 the same time. Upon the argument neither party raised any 
 question of the original validity of the contracts for the transpor- 
 tation of the coal mentioned. Xor was it claimed that any sub- 
 sequent legislation, state or national, had in any manner had the 
 eftect to nullify or change the legal obligations of the parties 
 under them. The question was put distinctly by the commission 
 to the counsel of both parties, whether it was claimed that the 
 contracts in any respect had been changed or modified in their 
 legal operation or put an end to by the Act to Eegulate Com- 
 merce, and the reply was understood to be positive that such a 
 claim would not be advanced. The parties differed in their con-
 
 832 UNJUST DISCRIMINATION. 
 
 struction of the contracts, and in their nndcrstandincr of their 
 rights respectively under them, the complainant insistinj^ amon^ 
 other things that they were to be construed in liarmony with the 
 provisions of the constitution of Pennsylvania liereinafter referred 
 to, but the argument all proceeded upon the assumption that 
 when a correct understanding of the contracts was readied the 
 obligations of the parties must be determined thereby so far as 
 they were found to govern the case. The fact that respondent 
 is a large owner of coal lands upon which it is engaged exten- 
 sively in the mining of coal and transporting the same to market 
 over its own lines, and that it also })urchases and deals in coal 
 not mined by itself, and that tliis is done by authority of state 
 law, was taken on the argument as undisputed, and it was by the 
 commission assumed to be so. Inasmuch as the parties raised no 
 question of the validity of the contracts for transportation, or of 
 their having been affected by subsequent legislation, the Inter- 
 state Commerce Commission did not consider that question, as it 
 was not in fact involved under the presentation of the case. 
 
 On the argument counsel for complainant presented a state- 
 ment of facts expected to be proved on the hearing, prefacing it 
 Avith his view of the effect of the contracts upon the matters in 
 controversy, namely : " The contracts pleaded by the defendant 
 cover but two points on the subject of rates ; (first) they provide 
 that the whole product of complainant's mines shall be trans- 
 ported to market by defendant, and they provide a maximum 
 rate to Hoboken ; (second) they concede on behalf of the railroad, 
 as to west bound traffic, the common law obligation of a carrier 
 not to discriminate against the shipper, which is now, both in 
 Pennsylvania and under the Act to Regulate Commerce, a statu- 
 tory obligation." 
 
 The offer of proof covered all the facts set forth in the com- 
 plaint, and went further into detail as to the policy and practice 
 of the respondent whereby it succeeded in absorbing to itself and 
 absolutely owning and controlling five sixths of the total amount 
 of anthracite coal transported over its lines. The excessive rates 
 of the respondent, it was asserted, precluded complainant from 
 having more than a limited market for his small sizes of coal.
 
 CAKKIER, AS SHIPPEK, MUST NOT FAVOK ITSELF. 833 
 
 tliougli respondent transports and markets its own small sizes to 
 complainant's loss and damage. It was proposed to be shown 
 that the discriminations of defendant as a common carrier in 
 favor of itself as a miner, and against all other shippers of coal, 
 tends to create a monopoly in its favor in the anthracite coal busi- 
 ness along its lines; that such discrimination is destructive of the 
 rights of property of complainant ; also that there is a growing- 
 market for the smaller sizes of anthracite coal from which com- 
 plainant is wholly shut out by the practices and policy of the de- 
 fendant ; also that there is a growing market for what are known 
 as the commercial sizes of anthracite coal throughout the west 
 from which the practices and policy of the respondent shut out 
 the complainant ; also that the aggregate prices at which respond- 
 ent sells its coal at specified northern and western points is less 
 than the cost to complainant of mining his coal plus the open 
 rate which is charged him for transportation to those points, and 
 hence a most destructive competition is establislied against the 
 complainant. This brief statement will be sufficient for the pur- 
 pose of an understanding of what follows. 
 
 Upon this statement counsel for the complainant presented cer- 
 tain points which they argued with great force and earnestness. 
 
 First, it is said that so far as the complaint charges discrimina- 
 tion in rates upon shipments of small sizes, that is, upon buck- 
 wheat and culm, the matter is entirely outside of the contracts 
 put in by respondent, for the reason that those sizes as market- 
 able sizes of coal are products which, commercially speaking, 
 have originated since the contracts were entered into — the con- 
 tracts themselves being silent upon the rates for those sizes — and 
 for the further reason that for the existence of those sizes at pres- 
 ent in any considerable quantity, the recent policy and practices 
 of the respondent are chargeable. The matters of fact here 
 asserted the complainant proposes to establish, but for the pur- 
 poses of the case the commission did not consider them of legal 
 importance. The commission state that they have carefully 
 examineil the contracts attached to the answer, and are all of 
 opinion that they cover, and were evidently intended to cover, all 
 shipments of coal by the complainant. Whether he had in view 
 53
 
 834 UNJUST DISCKIMINATION. 
 
 at that time these small sizes of coal as a marketable commodity 
 which he raii^lit ship to Hoboken or other distant points, or 
 whether they were then produced as marketable commodities by 
 any one, are not questions that can affect the construction of the 
 contracts themselves. Their terms are as broad as tliey could 
 well be made. They are to cover " all the coal " which the con- 
 tracting parties of the first part were to mine and remove from 
 their lands, and are not limited to coal of any particular sizes or 
 to coal which was then marketable. If complainant relies upon 
 these contracts there is, in the opinion of the commission, no 
 escape from the conclusion that he has by their terms precluded 
 himself from raising the point which is presented. The contracts, 
 though they clearly imply both the existence of coal of smaller 
 sizes than pea coal and that they are marketable commodities at 
 Hoboken, make no distinction between them and coal of the 
 common sizes, except as it excludes them from being taken into 
 consideration when the price of transportation to Hoboken is to 
 be determined. But that price is a price for the transportation 
 " of all the coal" which complainant is to ship to that point, and 
 he undertakes to pay it. He cannot, the commission say, make 
 an exception to the contract now because of subsequent facts ren- 
 dering it important, nor because the facts are such that he would 
 unquestionably have insisted upon it at the time had he foreseen 
 what was to occur. Nor can the policy or the misconduct of the 
 respondent change the construction of the contracts. They may 
 perhaps be such as to give to the complainant a right of action at 
 law, but such an action would be founded on something outside 
 the contracts, and would not at all relieve the complainant from 
 the obligations he had assumed in entering into them. 
 
 This being the commissioners' view of the contracts, and it 
 appearing very clear that the complainant has thereby bound 
 himself as to what the prices for the transportation of the coal to 
 Hoboken shall be, and how determined, and that the reasons that 
 governed the parties in fixing the terms of their contracts are not 
 open to inquiry in this proceeding, which has not for its object 
 the avoidance of the contracts, it follows as a necessary conse- 
 quence that the complainant is not entitled to go into evidence
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 835 
 
 called for by his motion, by which he proposed to establish the 
 fact that for the transportation of these smaller sizes of coal to 
 Hoboken the price ought to be sometliinoj different than that 
 fixed by the terms of the contract. All the evidence called for 
 for that purpose, and all the witnesses proposed to be examined 
 to that end, are made by the contract itself entirely immaterial. 
 Nor do the commissioners reojard the suggestion that the respond- 
 ent may not have rendered true statements, or full statements, or 
 indeed any statements at all, for the purposes of fixing the prices 
 of transportation to Hoboken according to the terms of the con- 
 tracts, of any moment whatever. If the fact is so there may be 
 a remedy in the courts, but there is none before the Interstate 
 Commerce Commission. If the rate of transportation were not 
 fixed by contract it might have jurisdiction to determine what it 
 ought to be, but when the contracts made by the parties them- 
 selves have undertaken to determine how the rates shall be fixed 
 that matter is taken entirely out of its hands. This is said as- 
 suming that the contracts are valid, just as the parties assume 
 them to be. 
 
 Second, it is said that so far as the contracts pleaded by the 
 defendant assume to fix the rates upon shipments of coal north 
 and west, they were at the time the said contracts were made 
 merely declarative of a general rule of law which was then part 
 of the statutory law of the state of Pennsylvania, and has since 
 become part of the statutory law of the United States, and the 
 contracts can therefore in no wise affect the present controversy 
 so far as those rates are concerned. In support of this position 
 sections 3, 5 and 7 of article 18 of the Constitution of Pennsyl- 
 vania of 1874, and also the act of the legislature of that state of 
 June 4, 1883, forbidding unjust discriminations, are quoted ; also 
 the case of the Wahash, St. Louis db P. R. Co. v. Illinois, 118 U. 
 S. 557, 30 L. ed. 214:, 1 Inters. Com. Rep. 31, asserting the para- 
 mount authority of the United States government in matters of 
 interstate commerce ; also the cases of Shinninggrove Iron Co. 
 v. Ndrtheastern R. Co., 5 Ey. & Canal Traffic Cas. 244, decided 
 by the English Commissioners ; and of Poughkeepsie Iron Co. v. 
 New York Cent, tfc H. R. R. Co., 3 Inters. Com. Rep. 248, re-
 
 836 UNJUST DISCRIMINATION. 
 
 centlj decided by this commission, from which the conchision is 
 deduced that when the carrier is also a producer, and especially 
 on its own behalf, it is illegal for it to discriminate in its own 
 favor as against other shippers. 
 
 It is further said, thirdly, that so far as the contracts pleaded 
 by the respondent can in any respect be regarded as affecting this 
 controversy they are to be read herein only as a tariff or a maxi- 
 mum rate sheet — the wrongs complained of being wrongs sus- 
 tained by the complainant within and independently of such 
 maximum rates, and being entirely aside from the contracts them- 
 selves. The case of Aberdeen Commercial Co. v. Great North 
 of Scotland B. Co., 3 Ry. & Canal TrafKc Cas. 205, is supposed 
 to cover this contention. 
 
 It is invt\\QY, fourthly, said that the defendant can no more set 
 up these contracts as a defense, when it is itself, as a common 
 carrier, charged with wrong-doing, than the complainant could 
 plead the contracts for the purpose of enforcing as against the 
 respondent a discrimination in his favor, and to this Ilurlhurt v. 
 Lalie Shore & M. S. R. Co. 2 Inters. Com. Rep. 81, and Bullard 
 V. Northern Pac. R. Co. 3 Inters. Com. Rep. 576, 11 L. R. A. 
 24:6, 10 Mont. 168, are cited. 
 
 It is further Raid, ffthly, that the respondent, as a common 
 carrier of goods for hire, can no more discriminate against the 
 complainant in favor of itself as a producer and shipper of coal, 
 than in favor of any other shipper. Discrimination by a carrier 
 in its own favor is the worst form of discrimination, and is clearly 
 within the mischiefs intended to be prevented by the Interstate 
 Commerce Law.' 
 
 It is further contended, sixthly, that the defendant, being a 
 common carrier for hire, and enjoying franchises from the public 
 by reason thereof, cannot lawfully, under the peculiar circum- 
 stances and conditions under which the anthracite coal business 
 is carried on, do business, in its capacity as a miner and shipper 
 
 ' The case of Ba.vmdale v. Great Westej'n B. Co. 1 Nev. & McN. 202, is cited; 
 also Oarton v. Bristol & E. R. Co. 1 Nev. & McN. 218; Reynolds v. Western 
 Neio York <& P. R. Co. 1 Inters. Com. Rep. 685; Riddle v. Pittsburg & L. 
 E. R. Co. 1 Inters. Com. Rep. 688, 787; Heck v. East Tennessee, V. & O. B. 
 Co. 1 Inters. Com. Rep. 775, and others.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 837 
 
 of coal, at a loss, or in such a way that an apparent loss in mining 
 can result in an actual profit to the respondent only by the pros- 
 titution of its franchises as a common carrier. The case of Rice 
 V. Western New York (& P. R. Co., 3 Inters. Com. Kep. 1G2, re- 
 cently decided by the commission, is cited as bearing upon this 
 contention. 
 
 All these points, from the second to the sixth inclusive, it is 
 seen the commission elaborate and present in different forms the 
 one main contention as regards shipments to the west and north 
 under these contracts, that the respondent as a common carrier 
 of interstate traffic, being also a producer and purchaser and ship- 
 per on its own account, is by law precluded from unjust discrim- 
 ination in its own favor ; that any such unjust discrimination sub- 
 jects it to the discipline of the Act to Ilegulate Commerce, and 
 brings it within the regulating power of this commission. It is 
 to this general contention that we shall now direct what we have 
 to say. The commission in discussing this general contention, 
 assume that the underlying principle of the complainants' conten- 
 tion is sound and just. It is said, the respondent is a common 
 carrier, charged with duties to all who may present themselves 
 for carriage or offer their property for that pui'pose, and one of 
 the highest of these duties is that it shall not discriminate as be- 
 tween those thus offering. This is the obligation of the common 
 law, and of the constitutional and statutory law of Pennsylvania 
 as well. Whether by the contracts brought into the case there 
 was discrimination as between the complainant and other persons, 
 of which such other persons might find fault, is a question not in 
 any way involved in this proceeding. The assumption is that 
 the contracts were valid when made. 
 
 But the situation is peculiar, and elsewhere than in the coal 
 regions of the country would be regarded as extraordinary. Re- 
 spondent is not only a carrier for all other persons who may offer, 
 and charged with duties of impartiality as such, but it is also itself 
 a shipper over its own lines. It may be said to offer to itself 
 property for transportation, and this not merely casually and for 
 some temporary or special purpose, but regularly and as a very 
 large part of its busiuess. Indeed, it is probably true that
 
 838 UNJUST DISCRIMINATION. 
 
 respondent became a carrier because of having immense quantities 
 of property to be carried, and that its line was constructed mainly 
 for its own purposes as owner and shipper, the business of com- 
 mon carrier being added to that of producer and dealer in coal 
 with a view to an additional profit or to lessen the cost of conduct- 
 ing the primary business. The situation is what creates the diffi- 
 culty in dealing with the case. It presents the question of 
 impartiality in such a manner that it may not be possible, the 
 commission admit, to deal with it as it would in general be dealt 
 with if it were to arise as a question affecting rights as between 
 third parties who were shippers only. It might be easy to apply 
 the rule against unjust discrimination in that case, while it might 
 be ditiicult to call it a rule against unjust discrimination in this 
 case. The right of the complaining party might be precisely the 
 same in each case, and yet the situation might make the method 
 of enforcement quite different, and might even require that a 
 different term should be applied to the wrong from which the 
 complainant suffered. But the commission say no matter what 
 the situation is, the respondent must not use its power and the 
 means at its disposal as a carrier to avoid performing the full 
 measure of its duty. It must not use them oppressively. It 
 must, as far as possible, deal as between all shippers, including 
 itself as a shipper, in such a way that all shall have proportional 
 benefit whenever demanding its service. 
 
 But the inquiry arises how is it to be determined whether the 
 respondent discriminates as between itself as shipper and some 
 third party shipping coal over its line ? This is not the case of 
 two artificial bodies, the one a coal company and the other a rail- 
 road company, both composed of the same persons and in abso- 
 lutely the same interest, but it is the case of one artificial body 
 carrying on two kinds of business. Complainant insists that in 
 order to determine whether the respondent discriminates in its 
 own favor in the matter of transportation it is necessary that an 
 account should be kept as between itself as carrier and itself as a 
 shipper of coal. This will enable other shippers and the public 
 authorities to ascertain what the cost of transportation is, and 
 thereby the proper charge for transportation against the respond-
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 839 
 
 ent may be determined, which charge must not be exceeded for 
 the carriage of coal for others. The respondent insists, on the 
 other hand, that any such account would be mere bookkeeping ; 
 that the results would be of no interest and no importance to the 
 complainant ; that it would not measure the charge to be made to 
 him, for that is measured by the contract itself, which provides 
 that he is to be charged what others are charged on the sliipments 
 to the north and west. But this the complainant insists would 
 leave the respondent at liberty to discriminate at will as against 
 him and others, and in fact to shut him entirely out of northern 
 and western markets by the delivery at such markets of its own 
 coal for sale at prices ])elow its charge for carriage. 
 
 It was not understood to be claimed by complainant or admitted 
 by respondent at the argument that any account was now made by 
 respondent of the cost of transportation of its own coal. The un- 
 derstanding of the commission is that no such account is kept. 
 The keeping of it, so far as respondent is concerned, if no interest 
 of third parties were involved, would have no importance, except 
 as it might enable it to determine at what price it could afford to 
 offer its coal for sale in markets at a distance from the colliery ; 
 and the management might well suppose that for this purpose it 
 was needless to its interests. It can very well be understood that 
 they might not care to be at tlie trouble and expense of such an 
 accounting. 
 
 Can the commission oblige them to keep such an accounting if 
 they have none now? What authority can it exercise for that 
 purpose ? It is not suggested that it would fall within its province 
 to do so, except as it may be necessary to prevent unjust discrim- 
 ination. But would it have any value to that end. The cost of 
 the transportation of any one article of commerce over the line of 
 a public railway can never be arrived at with anything like accur- 
 acy. If the carrier did but one kind of business, it might at the 
 end of the year very easily average the cost as between the ship- 
 ments by quantity ; but this respondent carries persons, and it 
 carries^ an infinite variety of articles of property, — sometimes 
 thousands of these articles by a single train, sometimes only one 
 article by the same train, this last being generally true when coal
 
 840 UNJUST DISCRIMINATION. 
 
 is transported. It is not possible to apportion eitlier the interest, 
 if any, upon its indebtedness, or the cost of maintenance of road 
 and equipment, or the general cost of management, as between 
 various branches of its business as carrier, so as to reach the proper 
 proportion to bt; charged to each, with even an approach to 
 accuracy. Such carriers endeavor to apportion the cost of passen- 
 ger and freight service, but it is necessarily done very largely by 
 estimates, and in some particulars by arbitrary allotments of items 
 of expense, which may make an apportionment sutheient for its 
 own purposes and to give the public some general idea of what 
 the cost is of the two branches of the service. But that is all. 
 Should the attempt be made to make a similar apportionment as 
 between the various kinds of freight carried, the elements of un- 
 certainty that would necessarily be dealt with would increase and 
 multiply at every step. If the carrier desired to make the cost of 
 any particular traffic appear large or appear small, it M'ould not be 
 difficult to swell it or to lessen it by such figures as would appear 
 perhaps ecpially plausible in each case, but which, nevertheless, 
 would not be such in either case as ought to determine the rights 
 of third persons. 
 
 The commission felt compelled to say, therefore, that if this 
 carrier were required to keep such an account as the complainant 
 insists it ought to keep, it would necessarily be one that could not 
 be relied upon as absolutely or even approximately accurate, be- 
 cause accuracy is not predieable of it. If the account could be 
 once made out under the direction of the commission upon a 
 basis that would be satisfactory to both parties to this controversy, 
 it would still be necessary in order to keep it so that the com- 
 mission should assume and exercise continuous supervision there- 
 after of the making up of the subsequent accounts, determine the 
 items that should go into them, see to the apportionment of cost 
 as between all the various kinds of traffic. In short, to assume 
 general supervision of the respondent's books so far as they 
 showed its financial transactions, since nothing short of this could 
 render it impracticable for the respondent to so manage its 
 accounts and apportionments as to accomplish deception and effect 
 the very purpose which the making of the account is intended to 
 preclude.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. S41 
 
 The commission cannot, it is said, order any such account to 
 be kept. First, it has not the power. Second, if it had, it would 
 be impracticable when its own duties in other directions are con- 
 sidered. Third, it would be useless if done. It could form no 
 safe guide in determining whether the respondent did or did not 
 use its power as a carrier oppressively. 
 
 But, on the other hand, when the respondent says that the con- 
 tract fixes what should be paid by complainant for shipments to 
 the north and west, the statement is inaccurate. Complainant is 
 at liberty to ship his coal to such points and places north and west 
 as he shall desire, upon the same terms and conditions as resjDond- 
 ent for the time being transports coal for other parties. That is 
 his right. Kow, respondent says that it has certain definite rates 
 fixed and published for the transportation of coal north and west, 
 and, in substance, that it has a right to charge those rates for the 
 transportation of complainant's coal. Complainant says that 
 those rates are prohibitive ; that it is impossible that he should do 
 business under them ; and the intimation is that they are made 
 prohibitive purposely, that the respondent may transport its own 
 coal to the markets north and M-est and sell it below the published 
 rates of transportation ; and these rates are further asserted to be 
 unjust and unreasonable. 
 
 It is, the commission say, no answer for the respondent to say 
 that the rates as published are such as are charged to third per- 
 sons. Any third person has a right to complain of these rates as 
 unjust, oppressive and unreasonable, and if such a complaint were 
 to be brought to the attention of the commission, it must be in- 
 quired into, and if the rates were found to be as charged, it must 
 order that they be reduced. The complainant would have the 
 benefit of that reduction, just as much as the complaining party 
 would ; but complainant has the same right to arraign the rates as 
 being unreasonable that any other person has, and he would have 
 this right if there were no other shipper to the north and west 
 over respondent's road. The complainant makes that complaint 
 here, and he is entitled, the commission decide, to a hearing 
 upon it. 
 
 The question, then, as between the complainant and the re-
 
 842 UNJUST DISCRIMINATION. 
 
 spondent in this case should rather be called a question of reason- 
 able rates than a question of unjust discrimination, for the reason 
 that, as already shown, there is, from the very nature of the case 
 and because of the situation — the respondent being both carrier 
 and shipper — a situation that the commission must now assume 
 it can in no wise change or alter, an absolute impossibility of ap- 
 plying any definite rule whereby unjust discrimination can be de- 
 termined. Complainant is entitled to reasonable rates on all 
 shipments, where he has not agreed upon a rule for determining 
 the amount, as he has on those to Hoboken ; and what are reason- 
 able rates is to be determined in view of all the circumstances of 
 the case. The rule of evidence for this purpose ought to be an 
 exceedingly liberal one, and all those circumstances which the 
 carrier may properly take into account, in order to determine at 
 what it could afford to carry this species of traffic, or what it 
 would be politic to charge, ought to be considered. 
 
 It would be out of place for the commission, in these prelimi- 
 nary proceedings, to undertake to point out in detail what facts 
 might be shown wlien that question is gone into. Counsel un- 
 derstand very well what they are entitled to show upon a ques- 
 tion of this kind. It was not thought by the commission im- 
 proj)er to say that, among the facts to be taken into account, may 
 very well be the market value of the coal at the colliery, and the 
 market value, or at least what the coal is sold for, at the points to 
 which the complainant desires to ship — Syracuse, Buffalo, or any 
 other. And what respondent sells for at those points is clearly 
 admissible, when the question of value is under consideration, and 
 also as having some bearing upon the question of reasonable rates. 
 The transportation cost will be assumed to be the same whether 
 the coal carried be respondent's own coal or complainant's coal. 
 It is probable, at least, that respondent does not sell its coal in 
 distant markets without realizing some profit both upon the min- 
 ing and the transportation. If, in its capacity as dealer, it estab- 
 lished a price in some market, the question may at least be dis- 
 cussed whether it does not thereby furnish a basis by which a 
 reasonable rate for other dealers may be arrived at ; whether it 
 does not fix a maximum of the charo:e it can make to others.
 
 CARRIER, AS SHIPPER, MUST NOT FAVOR ITSELF. 843 
 
 However that may be, the extent of its own profits npon coal 
 marketed, compared with the rate it charges other dealers for 
 transportation, or whether it makes any profit at all, may well be 
 inquired into by any tribunal authorized to pass upon the reason- 
 ableness of rates. 
 
 By its motion for subpcenas duces tecum complainant is under- 
 stood by the commission to desire to obtain, as instruments of 
 evidence, among other things, certain contracts for the sale of 
 coal made between respondent and third parties. If such con- 
 tracts were put in evidence they might show, perhaps, what re- 
 spondent is receiving for its coal at some of the points of delivery. 
 But that is a fact that it is entirely competent to prove by any 
 person in respondent's service who knows the facts, and also by 
 any third party, purchaser or otherwise, who may know the facts. 
 But complainant is not entitled to call for the contracts them- 
 selves for this purpose. Third persons have rights in such con- 
 tracts. They would have a right to object to the contracts being 
 produced if they themselves were present at the hearing, but they 
 can certainly lose no rights by reason of being strangers to the 
 proceedings and not present. They may, for aught the commis- 
 sion know, be matters in their contracts by which neither this 
 complainant nor any other individual of the public has any con- 
 cern whatever or any business to inquire into. For the purpose 
 of ascertaining the selling price of coal it is not necessary that the 
 production of the contracts be required, and, as has been said, par. 
 ties interested in them, and who are not here to consent to their 
 being produced, might rightfully object if they were here. With- 
 out passing specifically upon the application for subpoenas duces 
 tecum, the commission think it advisable that no such subpoenas 
 should now be issued. Some that have been asked for could not 
 be issued for the reason above assigned. So far, also, as they 
 seek to obtain an accounting in respect to eastern shipments, the 
 subpoenas should not be granted for the reason that it must be 
 had, if at all, in the courts. In respect to the reasonableness of 
 rates upon shipments to the north and west, it is advisable that 
 the testimony be taken in the ordinary way, and when the time 
 comes for taking it the respondent will be expected to produce
 
 844 UNJUST DISCRIMINATION. 
 
 for the purposes of examination any books or papers of its own 
 that may seem to be relevant and that may properly be called 
 for, but it should not be required to make exhibit of any deal- 
 ings with third persons, unless their bearing upon the controversy 
 is manifest. If a long examination of books and papers is prob- 
 able, it might be well, the commission suggests, perhaps, if the 
 parties should agree upon the taking of the testimony before a 
 commissioner. It might prove a saving of time and labor to 
 them as well as to the commission. 
 
 The motion for the dismissal of the complaint was denied, as 
 the complainant sets forth sufficiently a good ground of complaint 
 in respect to northern and western shipments. The decision as 
 made will very much narrow the scope of future investigation, 
 since it will necessarily exclude whatever belongs under the con- 
 tracts to the judicial tribunals. 
 
 A carrier cannot rightfully establish rates in order to keep on 
 its own line material for which it has use, or to keep the price 
 low for its own advantage.' 
 
 ' Louisville, E. & St. L. Consol. R. Co. v. Wilxon, 18 L. R. A. 105, 132 Ind. 517.
 
 ClTAPTEPv XX. 
 
 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 § 126. Freight Charges. 
 
 § 127. Contract Rates on Freight. 
 
 § 128. Carrier's Lien for Cliarges. 
 
 § 129. Sale to Enforce Lien on from Necessity. 
 
 ^ 130. Lien of Contract of Affreightment. 
 
 § 131. Overcharge on Freight — Under billing. 
 
 § 132. Rate Sheets. 
 
 § 133. Rehate. 
 
 § 126. Freight Charges. 
 
 The law makes it the duty of every common carrier to receive 
 and carry all the goods seasonably offered for transportation and 
 authorizing a reasonable reward to be charged for services. The 
 amount to be paid is for the jury, subject to the agreement of 
 the parties, but when the amount is not fixed by contract, the law 
 implies that the carrier shall have a reasonable reward which is 
 to be ascertained by the amount commonly or customarily paid 
 for other like services.' The question of the payment of freight 
 is not affected by the "law of the Hag" under which the vessel 
 sails. The obligation of the shipper is to be determined by the 
 law of the place where the contract of affreightment was made.' 
 
 The word "freight" is the hire agreed upon for the carriage 
 of goods from one port to another. That hire, without a different 
 stipulation by the parties, is only payable when the merchandise 
 is in readiness to be delivered to the person having the right to 
 receive it. Then the freight must be paid before an actual de- 
 livery can be called for.' Expenses of surveying a cargo dam- 
 
 ^ Johnson v. Pensacola & P. B. Co. 16 Fla. 623, 26 Am. Rep. 731; Louisville, 
 E. & St. L. R. Co. V. Wihon, 4 L. R. A. 244, 119 Ind. 352; London &N 
 W. iJ.t Co. V. Evershed, L. R. 3 App. Cas. 1029. 
 
 * China M. Ins. Co. v. Force, 142 N. Y. 90. 
 
 'Brittan v. Barnaby, 62 U. S. 21 How. 527-538, 16 L. ed. 177-181. - 
 
 845
 
 846 fkektHt charges, affreightment and carrier's lien. 
 
 aged by the shipping of seas may be recovered in addition to 
 freight, where no person exliibiting authority was present at the 
 port of entry to act as agent of the charterers or consignee.' 
 
 Unless there be evidence to the contrary; the person receiving 
 the cargo from a vessel under a bill of lading, is liable for the 
 freight.^ The law does not absolutely depend on any covenant 
 to pay on delivery ; it exists if it does not appear that the deliv- 
 ery is to precede payment/ Unless there is an express contract, 
 the carrier is entitled only to what the carriage is worth.' And 
 in the absence of a statement of weight in the bill of lading the 
 ship is entitled to the freight only on the weight delivered.^ 
 Where a charter party contains no provision for payment of 
 ireight pro rata itineris, but simply provides for payment on de- 
 livery of the cargo at the port of discharge, freight is not earned 
 except by performance of the voyage and delivery as specified.' 
 If there is no express promise or condition for payment of freight 
 in a bill of lading, it is taken as evidence of property received to 
 be forwarded to the consignee.' Under an ordinary bill of lad- 
 ing, the assignee of a bill of lading is bound to pay the freight as 
 a condition of receiving the goods.* The owner of goods can 
 maintain no action against the carrier for refusal to deliver them 
 before payment or tender of the freight.' In the absence of any 
 stipulations, freight is payable only when the merchandise is in 
 readiness to be delivered to the person having the right to receive 
 it.'" 
 
 ' T/ie Adella 8. Hills, 47 Fed. Rep. 76. 
 
 '^ Philadelphia & B. B. Co. v. Barnard, 3 Ben. 39. 
 
 ^The Volunteer, 1 Sumo. 551; Grade v. Palmer, 21 U. S. 8 Wheat. 605, 5 L. 
 
 ed. 696; Saville v. Campion, 2 Barn. & Aid. 503; Christie v. Lewis, 2 Brod. 
 
 & B. 410; Tate v. Meek, 8 Taunt. 280. 
 
 * Simmes v. Marine Ins. Co. 2 Cranch, C. C. 618. 
 
 ^ Mne Thousand Six Hundred and Eighty-One Dry Ox Hides, 6 Ben. 200; Th^ 
 
 Andover, 3 Blatchf. 303. 
 « China M. Ins. Co. v. Force, 142 N. Y. 90. 
 ' Perkins v. Hill, 2 Woodb. & M. 158, 1 Sprague, 123. 
 
 * Trask v. Duvall, 4 Wash. C. C. 181, distinguishing Cock v. Taylor, 13 East, 
 
 399. 
 
 ' Henderson v. Three Hundred Tons of Iron Ore, 38 Fed. Rep. 36. 
 ^^Brittan v. Barnaby, 62 U. S. 21 How. 527, 16 L. ed. 177; Weston v. Minot, 3 
 Woodb. & M. 442; Penoyer v. Hallett, 15 Johns. 332.
 
 FKEIGHT CHARGES. 847 
 
 A ship owner who is prevented from performing the voyage 
 by a wrongful act of the charterer is prima facie entitled to the 
 freight that he would have earned, less what it would have cost 
 him to earn it.' A steamship company is not liable under a bill 
 of lading which exempts it from liability for loss or damage by 
 fire while goods are in transit or on deposit, to another carrier for 
 transportation charges upon merchandise delivered by the latter 
 upon its dock for shipment and there destroyed by fire, in the 
 absence of proof of any contract or custom of payment of such 
 charges before the goods are loaded upon its vessel.'* The con- 
 signee of a ship has no right to demand the freight upon the 
 whole shipment, when he is only ready to deliver ' a part of it. 
 Where the master of a vessel agreed to carry 707 bales of cotton 
 from Mobile to Boston, for certain freight mentioned in the bills 
 of lading, the vessel was bound for safe shi^^ment of the whole of 
 the 707 bales, from the time of their delivery by the shipper at 
 the city of Mobile, and acceptance by the master.' Where a ship, 
 master has a larger shipment under one bill of lading than he can 
 land in a day, he must do it in such quantities that he may be 
 able to have the pro rata freight ascertained ; and. until it shall 
 be done, he is not in readiness to deliver such part or to demand 
 the freight due upon it. Goods so landed will be under his care 
 and responsibility without additional expense to the consignee of 
 them, until they shall be ready for delivery." 
 
 The carrier may require the payment of his freight before be- 
 ginning transportation. While he must carry for all alike, he 
 may credit whom he pleases and exact payment in advance at his 
 pleasure." But the right of a common carrier to prepayment is 
 waived by the acceptance of goods for transportation without 
 such prepayment, as it is the usual custom to receive and collect 
 freight upon delivery to the consignee/ 
 
 > Memner v. Brnn, 128 U. S. 474, 32 L. ed. 496; Kleine v. Catara, 2 Gall, 61; 
 
 Aahburner v. Balchen, 7 N. Y. 262; Smith v. McGuiie, 27 L. J. Exch. 490. 
 « NetD York, L. E. & W. R. Co. v. National SS. Co. 37 N. Y. S. K. 731. 
 ^Bidkley v. Kaumkeag Co., 65 U. S. 386-394, 16 L. ed. 599. 
 *Brittan V. Barnaby, 62 U. S. 21 How. 527, 16 L. ed. 177. 
 '> Pick ford v. Grand Junction B. Co. 8 Mees. & W. 372; Central & M. R. Co. 
 
 V. Morris, 68 Tex. 49. 
 ^Evamville & T. H. R. Co. v. Keith (Ind. App.) Nov. 7, 1893.
 
 848 FEEIGHT CHARGES, AFFKIJIGHTMENT AND CARRIEk's LIEN. 
 
 § 127. Contract Rates on Freight. 
 
 An Act of Congress passed for the purpose of impairing the 
 obligation of a contract would be void ; but if the primary object 
 of the Act is within any of its granted powers it is valid." Con- 
 tracts concerning interstate transportation must be regarded as 
 made upon the basis and with the understanding that changes in 
 the law applicable to them may be made by Congress, and there 
 is no vested right in the law as it exists at the time they are 
 made." No right of action can spring out of an illegal contract ; 
 and this rule applies, not only when the contract is expressly ille- 
 gal, but whenever it is opposed to public policy." 
 
 Neither the Act to Kegulate Commerce, nor the Act of June 
 15, 1866 (U. S. Rev. Stat. § 5258) was ever intended to invade 
 the domain of private contracts between common carriers, which 
 were valid when made, and are not in conflict with the provisions 
 of the law. The observance of good faith between parties, the 
 upholding of private contracts, and enforcing their obligations, 
 are matters of higher moment and importance to the public wel- 
 fare, and far more reaching in their consequences, than the pub- 
 lic policy sought to be established in the facilitation of commer- 
 cial intercourse among the states, which the Act of June 15, 
 1866, aimed to promote. The Act of Congress to Eegulate Com- 
 merce was approved February 4, 1887, but the provisions took 
 effect sixty days thereafter. Contracts not excepted from the 
 operation of this law became invalid under the second section, 
 which is as follows : " That if any common carrier subject to 
 the provisions of this Act shall, directly or indirectly, by any 
 special rate, rebate, drawback or other device, charge, demand, 
 collect or receive from any person or persons a greater or less 
 compensation for any service rendered in the transportation of 
 
 • Emns V. Eaton, 16 U. S. 3 Wheat. 454, 4 L. ed. 433, 20 U. S. 7 Wheat 356 
 5 L. ed. 472, 1 Pet. C. C. 332; Knox v. Lee, 79 U. S. 12 Wall. 457 20 L 
 ed. 287; George v. Concord, 45 N. H. 434; MetropolUan Bank v. Van Duck 
 27 N. Y. 400; Shellenberger v. Brinton, 52 Pa. 9. 
 
 ' Fitzgerald v. Grand Trunk R. Co. 3 Inters. Com. Rep 633 13 L R A 70 
 63 Vt. 169. ' • • • . 
 
 3 Cleveland, C. C. & I. B. Co. v. Closser, 3 Inters. Com. Rep. 387, 9 L. R. A. 
 754, 126 Ind. 348.
 
 CONTKACT KATES ON FREIGHT. 849 
 
 passengers or property subject to the provisions of thiis Act than 
 it charges, demands, collects or receives from any other person or 
 persons for doing him or them a like or contemporaneous service 
 in the transportation of a like kind of traffic, under substantially 
 similar circumstances and conditions, such common carrier shall 
 be deemed guilty of unjust discrimination, which is hereby pro- 
 hibited and declared to be unlawful." Mr. Cooley, the learned 
 chairman of the Interstate Commerce Commission, delivering an 
 opinion, said : " But the Act to Regulate Commerce is a general 
 law, and contracts are always liable to be more or less affected by 
 general laws, even when in no way referred to. This is the case 
 with state laws, as well as with Federal. There probably was 
 never an act passed in restraint of the sale of intoxicating drinks 
 that did not affect some contracts, and render their literal enforce- 
 ment impossible. The same may be said of the Federal revenue 
 laws. Nothing is more likely than that a considerable change in 
 customs regulations or customs duties, or in the provisions made 
 for enforcement of excise laws, will deprive some party of a right 
 he supposed he had secured by contract. But this incidental 
 effect of the general law is not understood to make it a law im- 
 pairing the obligation of contracts. It is a necessary effect of 
 any considerable change in the public laws. If the legislature 
 had no power to alter its police laws when contracts would be 
 affected, then the most important and valuable reforms might be 
 precluded by the simple device of entering into contracts for the 
 purpose. No doctrine to that effect would be even plausible, 
 much less sound and tenable." The order of the Interstate Com- 
 merce Commission in this case was reversed by the United States 
 Circuit Court for the District of Kentucky, upon grounds which, 
 however, do not conflict with these views.' 
 
 Mr. Justice Jackson, in discussing the power of Congress over 
 the subject, says: " No court has attempted to define the extent, 
 limit or scope of the power conferred by the Constitution upon 
 Congress to regulate commerce among the states. The power is 
 undoubtedly sovereign and exclusive. Prior to the passage of 
 
 ' Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 3 L. R. A. 289, 2 Inters. 
 Com. Rep. 351, 37 Fed. Rep. 567. 
 
 64
 
 850 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIEIl's LIEN. 
 
 the Interstate Commerce Act, this power and exclusive authority 
 over the subject was only exercised — with the exception of regu- 
 lations for the protection of passengers upon navigable waters and 
 the transportation of livestock by railroads — through the judicial 
 department of the general government in the way of restraining 
 or annulling state legislation or action which undertook to inter- 
 fere with, obstruct or impose burdens or restrictions upon in- 
 terstate commerce." After citing the leading case of Gihhons v. 
 Ogden, 22 U. S. 9 Wheat. 1, 6 L. ed. 23, he concludes : "Pos- 
 sessing such sovereign and exclusive power over the subject of 
 commerce among the states, it is difficult to understand why Con- 
 gress may not legislate in respect thereto to the same extent, both 
 as to rates and all other matters of regulation, as the states may 
 in respect to purely local or internal commerce." Chief Justice 
 Marshall, in Gihhons v. Ogden, says : " We are now arrived at 
 the inquiry, What is this power ? It is the power to regulate ; 
 that is, to prescribe the rule by which commerce is to be gov- 
 erned. This power, like all others vested in Congress, is com- 
 plete in itself, may be exercised to its utmost extent and acknowl- 
 edges no limitations other than are prescribed in the Constitution. 
 . . . If, as has always been understood, the sovereignty of 
 Congress, though limited to specific objects, is plenary as to those 
 objects, the power over commerce with foreign nations and among 
 the several states is vested in Congress as absolutely as it would 
 be in a single government having in its Constitution the same 
 restrictions on the exercise of the power as are found in the Con- 
 stitution of the United States." 
 
 The doctrine of Gihhons v. Ogden, supra^ has been reiterated 
 in many cases, and the Act of Congress relating to the matter 
 under consideration is in accord with the authorities and the Con- 
 stitution.' It is not necessary to determine whether Congress 
 
 • Gloucester Ferry Co. v. Pennsylvania, 114 U S. 196, 29 L. ed. 158, 1 Inters. 
 Cora. Rep. 382; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257; New Or 
 leans Gas Light Go. v. Louisiana Light & H. P. & Mfg. Go. 115 U. S. 650, 
 29 L. ed. 516; Presser v. Illinois, 116 U. S. 252, 29 L. ed. Q15;WaUing v. 
 Michigan, 116 U. S. 446, 29 L. ed. 691; Morgan's Louisiana & T. R. & S. S. 
 Co. V. Louisiana Board of Health, 118 U. S. 455, 30 L. ed. 2-61\Wabash, St. 
 L. & P. B. Go. V. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 
 31; Bobbins V.Shelby County Taxing Dist. 120 U. S. 489, 30 L. ed. 694, 1
 
 CONTKACT RATES ON FREIGHT. 851 
 
 can pass a law wliich impairs the obligation of a contract, but it 
 is a sound proposition that its power to legislate on this matter is 
 at the least equal to that possessed by the legislatures of the states. 
 The rules which have been applied to local legislation of this na- 
 ture should be safe guides to follow in the adjustment of this 
 contention. 
 
 Existing contracts for special freight rates or rebates from 
 regular tariff rates, which had been made with railroad companies 
 subject to the Interstate Commerce Act, became illegal when 
 that Act took effect, and were after that time incapable of en- 
 forcement. But a contract with a carrier for rates less than those 
 on its schedule and which is therefore unlawful as to the carrier 
 because in violation of the Interstate Commerce Law, may never- 
 theless be enforced by the shipper if he had no knowledge that 
 the schedule rate was higher than that given him." Contracts and 
 arrangements, producing unjust discrimination among shippers 
 upon interstate railways, existing at the time of the enactment of 
 the Interstate Commerce Act, are invalid,' A contract binding 
 a carrier to transport as many carloads of grain as the shipper 
 may desire transported is valid as to acts done in performance of 
 it, and until revoked.* 
 
 It is within the power of the board of directors of a railway 
 corporation to make binding contracts for rates of carriage of 
 freights during a specified future time.^ While the carrier can- 
 not increase rates of freight so as to affect existing contracts, it 
 may charge so as to operate on future contracts.' The limit fixed 
 by charter for freight rates, only applies to the road constructed 
 under the charter, and a road owned and operated by the com- 
 
 Inters. Com. Rep. 45; Kidd v. Pearson, 128 U. S. 1, 33 L. ed. 346, 2 Inters. 
 
 Com. Rep. 232; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. 
 
 Com. Rep. 36. 
 ^Bullard v. Northern Pac. B. Co. 3 Inters. Com. Rep. 576, 11 L. R. A. 246, 
 
 10 Mont. 168. 
 « Mobile & 0. R. Co. v. Dlsmukes, 4 Inters. Com. Rep. 200, 17 L. R. A. 113, 
 
 94 Ala. 131. 
 ^ SoutkernWire Co. v. St. Louis Bridge <& T. R. Co. 38 Mo. App. 191. 
 * Cleveland, C. C. & I. R. Co. v. Closser, 3 Inters. Com. Rep. 387, 9 L. R. A. 
 
 754, 126 Ind. 348. 
 
 6 c. d M. R. Co. V. Himrod Furnace Co. 37 Ohio St. 434. 
 
 « ToUdo, W. & W. R. Co. V. Roberts, 71 111. 540.
 
 852 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 pany outside of the limits of the state which controls the charter, 
 is not controlled by the provision.' Where, under a statute au- 
 thorizing the purchase, one railway acquires possession of another, 
 the limitations fixed by law upon the road sold retain their opera- 
 tive force.'' Mere brokers employed by the charterer's agents to 
 sell a cargo are not liable for the freight to the master of the ves- 
 sel.' A shipper of grain has a right to rely upon the representa- 
 tions of a station agent as to rates, and the railroad company is 
 bound thereby.* Upon tender by the charterer's agent of the 
 balance due under the charter, the master of a vessel should sur- 
 render the bills of lading and authorize the agents to collect the 
 freight thereon.' 
 
 An application by the shipper to the local freight agent, for 
 the rates upon the proposed shipment of a specified amount of 
 freight to a given point, and the fixing of the rate and the secur- 
 ing by the shipper of the requisite number of cars per week for 
 the purpose of making such shipment, amounts to a contract to 
 furnish the cars and make such shipments at the rates named/ 
 A carrier whose waybill clerk, having misunderstood the name 
 of a station, the rate to which was asked by a shipper, and who 
 upon discovering the mistake was unable to find the shipper, but 
 forwarded the freight, is entitled to hold the goods at their desti- 
 nation until payment by the shipper, upon prompt and due no- 
 tice of the difference between the regular rate and the rate he 
 paid, as in such case there is no meeting of minds so as to consti- 
 tute a contract of shipment.^ 
 
 ISTo order of court is necessary to authoi'ize the making of a 
 contract by a freight agent with reference to freight rates, where 
 the railroad passes into the hands of receivers.* It cannot be as- 
 
 ' Knight v. Southern Pae. R. Co. 41 Tex. 406. 
 
 « Campbell v. Marietta <& C. R. Co. 23 Ohio St. 168; Moline & M. R. Co. v. 
 
 Sleiner, 61 Ala. 559; State v. Moline & M. R. Co. 59 Ala. 331. 
 3 Bamora v. Craig, 48 Fed. Rep. 736. 
 * Ohio & M. R. Co. V. Savage, 38 111. App. 148. 
 ' Bamora v. Craig, supra. 
 6 Toledo, W. & W. R. Co. v. Roberts, 71 111. 540. 
 ^Rowland v. New York, N. H. <& H. R. Co. 61 Conn. 103, 49 Am. & Eng. R. 
 
 Cas. 61. 
 « Kansas Pae. R. Co. v. Bayles, 19 Colo. 348.
 
 CONTRACT EATP.S ON FREIGHT. 853 
 
 sumed that a receiver operating a railroad had no power to make 
 a contract for rebate to a shipper, where his lack of authority is 
 not shown.' The master of a vessel having agreed, for a stipul- 
 ated price, to transport goods, no time of delivery being specified, 
 is entitled, where the close of navigation interrupts his voyage, 
 to hold the goods until the opening of navigation," and may re- 
 cover full freight, where the consignee forcibly takes the goods 
 from him when he is able and willing to complete the transpor- 
 tation/ A construction by the railroad commissioners, of the 
 term " carload," in a statute fixing the maximum freight rates at 
 so much per carload for each of the several classes of freight, as 
 meaning, in the light of existing usage, ten tons, and not all that 
 a car can safely carry, is reasonable and just and will be folloM^ed 
 by the courts where it has been acted upon long enough to be- 
 come a rule." The fact that under state regulations the shipper 
 may load a car at discretion, to any extent, without affecting the 
 carload rate, is no reason for adopting a like rule in traffic, if that 
 course is found not to be most just and politic. The substitution 
 by carriers of livestock, of a rule fixing carload rates, but pre- 
 scribing a minimum weight for a carload, charging by the hun- 
 dred pounds in proportion to the carload rate for excess over the 
 minimum, in place of a rule leaving the shipper to load into the 
 car as much livestock as he pleased, — is not unlawful.' 
 
 Where the contract stated " the rates on iron from Rising Fawn 
 to Chattanooga shall be $6 to Chattanooga, and $5 to any point 
 on or beyond the Nashville, C. & St. L. Railroad, per carload of 
 2268 lbs.," it should be construed as fixing the rate at $6 per car- 
 load when shipped from Rising Fawn only to Chattanooga, — and 
 
 » Bayles v. Kansas Pac. E. Co. 2 Inters. Com. Reo. 643, 5 L. R. A. 480, 13 
 
 Colo. 181. 
 'The Nathaniel Hooper, 3 Sumn. 542; Saltus v. Ocean Ins. Co. 12 Johns. 107, 
 
 7 Am. Dec. 390; Allen v. Mercantile Mut. Ins. Co. 44 N. Y. 487, 4 Am. 
 
 Rep. 700. 
 
 * Braithwaite v. Power, 1 N. D. 455; Luke v. 8yde, 2 Burr, 882; Hughes v. 
 
 Sun Mut. Ins. Co. 100 K Y. 58; Meissner v. Brun, 128 U. S. 474, 32 L. 
 ed. 496. 
 •Boss v! Kansas City, St. J. & C. B. R. Co. Ill Mo. 18, 49 Am. & Eng R. 
 Cas. 499. 
 
 * Leonard v. Chicago & A. R. Co. 2 Inters. Com. Rep. 599.
 
 854 FKEIGHT CHARGES, AFFKEIGHTMENT AND CARRIER'S LIEN. 
 
 $5 when shipped to any point beyond Chattanooga ; the low rate 
 should not apply to iron shipped at Chattanooga.' No deduction 
 from the freight can be made for the expense of piling a cargo of 
 laths, on which the consignee refuses to pay the freight, but 
 receives in his carts and piles them about 300 feet from the vessel, 
 where by the bill of lading the master is bound to unload the 
 cargo, unless the consignee elects to do it, for 20 cents per thous- 
 and, but not to pile the laths.* Freight is not collectible upon 
 packages not delivered, unless the contract expresses a different 
 intent with reasonable certainty. On a bill of lading for consign- 
 ments of cocoanut oil in casks, stipulating for freight at a certain 
 rate per ton, " to be paid on right delivery," no freight can be 
 charged for casks lost by sea perils. But where an allowance for 
 freight on portions of a cargo that was lost has been made to the 
 owner in general average adjustment, he may be compelled to pay 
 the freight so allowed him to the shipper.' Shippers of cattle who 
 sign a general contract stipulating that freight is payable thereon 
 on the number shipped, whether delivered alive or not delivered 
 at all, and is payable in Liverpool on the arrival of the vessel, and 
 that the freight shall be paid by the consignees, are, upon the loss 
 of the vessel and cattle before arrival, liable for the full amount 
 of freight.* 
 
 Under a charter party for the full capacity of a vessel, provid- 
 ing that the freight shall be paid on the unloading and right 
 delivery of the cargo, at a certain rate per ton on intake weight, in 
 which the printed word " delivered " has been stricken out, and 
 the words "on intake weight" inserted, freight is payable on the 
 whole cargo, although a portion of it is lost in transit upon 
 delivery of the undamaged portion.* Where the charter party 
 entitles the ship to her whole freight " upon the true delivery " of 
 the whole cargo, and a part of the cargo is delivered in a damaged 
 condition, the ship is entitled to the whole freight less the damages 
 
 » Alabama G. S. B. Co. v. Cureton, 68 Ga. 824. 
 
 * Costello V. 734,700 LatJis, 44 Fed. Rep. 105. 
 
 ' Oibson V. Brown, 44 Fed. Rep. 98. 
 
 *The Queensmore, 53 Fed. Rep. 1022, affirming 51 Fed. Rep. 250. 
 
 ' One Thousand Bags of Sugar v. Harrison, 53 Fed. Rep. 838.
 
 CONTKACT RATES ON FREIGHT. 855 
 
 for the loss on the cargo.' Under a charter party providing that 
 freight shall be paid on right delivery of cargo if discharged in 
 the United Kingdom, in cash as customary, and if on the Conti- 
 nent, in cash at the exchange of the day of final discharge without 
 discount, the ship is not entitled to freight upon a portion of the 
 cargo condemned on survey and sold in a port of distress before 
 reaching the port of discharge." 
 
 A clause of a charter party providing that cash for steamer's 
 ordinary disbursements at port or ports of lading, not exceeding 
 a specified sum, shall be advanced at a specified exchange on 
 account of freight, is optional, and not obligatory on the owners 
 of the vessel, so that if they provide their master with money to 
 disburse the ship, he is not bound to apply to the charterers for 
 cash up to the amount limited, by way of advance freight, so as 
 to entitle the latter to recover the profits which they would have 
 made by difference of exchange on such sum if they had advanced 
 it.' Under a charter party calling for " one third freight, if re- 
 quired to be advanced," a requirement of the advance made with- 
 in the usual time is not too late, although the vessel has already 
 been wrecked and the cargo lost.* 
 
 The owner's of a vessel chartered by a charter party, having 
 collected the entire freight from the consignee, are liable to the 
 inland carrier who delivered the goods to the owner's vessel, for 
 the freight money due such inland cari-ier. They are not entitled 
 to retain the entire freight money, both sea and inland, for satis- 
 faction of their lien and claim for charter money.' Loss of cargo 
 by the sinking of a vessel after the commencement of the voyage 
 and before bills of lading are signed, under a charter party pro- 
 viding that one third the freight is to be paid on signing bills of 
 lading and the remainder on unloading, and that bills of lading 
 shall be signed within twenty-four hours after the cargo is on 
 board, does not relieve the charterers from their Kability to present 
 
 > T?ie Tangier, 32 Fed. Rep. 230. 
 
 » The Industrie [1894] Prob. 58. 
 
 « T?ie himula [1894] Prob. 128. 
 
 * Smith V. Pyman [1891] 1 Q. B. 742, reversing [1891] 1 Q. B. 43. 
 
 ^ Fargo v. Milburn, 100 N. Y. 94.
 
 856 FREIGHT CHARGES, AFFKKIGHTMENT AND CARRIEK's LIEN. 
 
 bills of lading for signature, and upon their refusal so to do the 
 ship owner is entitled to recover damages equal to the amount of 
 the advance freight.' 
 
 Under a bill of lading for the delivery on the payment of 
 " freight and charges," where the carrier pays for the recovery of 
 the sunken cargo, the salvage paid is a charge for which the car- 
 rier holds a lien upon the recovered propert3^* 
 
 Where the freight was to be paid on delivery of the goods at 
 the place to which they were sliipped, and the carrier was released 
 by a stipulation from claims for loss by lire, no freight can be re- 
 covered where the property is destroyed by lire in transitu* 
 The shipper has the right to change the address upon or to claim 
 the delivery of his goods at any point before they reach their des- 
 tination, where the goods are shipped subject to his order, or he 
 has retained proj)erty in them, and holds the bill of lading, if the 
 goods are in such a situation that they can be reached by the car- 
 rier and delivered without special inconvenience, but if there has 
 been no delay in the transportation the carrier is entitled to claim 
 freight for the full distance for which they were accepted.* An 
 order to a carrier by a shipper to pay to a third person all rebates 
 due, and to become due, on freight charges on goods " sliipped " 
 by its route, is improperly construed to cover shipments made 
 after the date of the order." 
 
 § 128. Carrier's Lien for Charges. 
 
 The carrier is entitled to his lien althoue^h he does not charsre 
 directly for the carriage and he will be liable for a loss occurring 
 though its carriage is only paid for in indirect benefit to the car- 
 rier. Thus, an agreement to return the sacks free, in which 
 the carrier has transported grain to market, will render the 
 carrier responsible as carrier for the loss of the sacks.^ The lien 
 
 ' Oriental SS. Co. v. Tylor [1893] 2 Q. B. 518. 
 
 * Chicago & 8. W. R. Co. v. Northwestern U. Packet Co. 38 Iowa, 377. 
 3 New York Cent. & H. R. R. Co. v. Standard Oil Co. 87 N. Y. 486. 
 
 •* Scothorn v. South Staffordshire R. Co. 8 Exch. 341. 
 6 Chicago <& N. W. R. Co. v. Becker, 33 111. App. 290. 
 
 * Pierce v. Milwaukee & St. P. R. Co. 23 U. S. 387; Aldridge v. Great Western 
 
 R. Co. 15 C. B. N. S. 582.
 
 carrier's likn for chakges. 857 
 
 of a carrier and warehouseman for the keeping of property after 
 a completion of the transportation tliereof is siijserior to that of a 
 pledgee who procured the property to be transported and stored 
 by it.' A statutory provision affording an adequate remedy at 
 law to enforce a carrier's lien by providing for a sale of freight 
 to pay the charges thereon does not take away any previously 
 existing equitable remedy, in the absence of an express provision 
 to that effect/ The master is bound to deliver the goods in a 
 reasonable time. When the shipment can not be landed in a day, 
 if he lands a part of it, liis lien upon the whole gives him the 
 power to ask from the consignee security for the payment of the 
 entire freight as called for by the bill of lading. But, a security 
 or arransrement is all that he can ask. He can not demand that 
 the frei^rht of the whole shipment should be paid before the con- 
 signee has the opportunity to examine the goods. "When landings 
 of the same shipment are made on different days, if the shipper 
 shall not be present to receive the goods and has not made an 
 arrangement to secure the payment of the freight, they may be 
 stored for safe keeping at the consignee's expense and risk, in the 
 shipowner's name, to preserve his lien for the freight.' A clause 
 in a bill of lading empowering the master to put the cargo ashore 
 at the consignee's risk if not applied for within twenty-four hours 
 after notice of its arrival, and giving him a lien thereon for all 
 money payable to the shipowner, does not apply so as to relieve 
 the consignee, who applied for the cargo within the stipulated 
 time, from liability for default in unloading the ship, caused by 
 a strike of the lightermen." 
 
 A ship owner has an independent right of action against the 
 consignee who receives the goods, for the full amount of the 
 freight under the bill of lading, notwithstanding a deposit by the 
 consignee under the English Merchant's Shipping Act 1862, 
 §§ 66-72, empowering the ship oM-ner to place the goods in the 
 
 * Cooley V. Minnesota Tran»fer R. Go. 53 Minn. 327. 
 « Crass V. Memphis & G. R. Co. 96 Ala. 447. 
 ^Britton v. Barnaby, 63 U. S. 527-538, 16 L. ed. 177. 
 
 *Hick V. Rodocanachi (Ea^. Ct. App.) 65 L. T. Rep. N. S. 300, 44 Alb. L. 
 J. 462.
 
 858 FKEIGHT CHAKGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 custody of a warehouse owner subject to the lien for freight, and 
 allowing the owner of the goods to deposit money equal to the 
 amount claimed by the ship owner, upon which the lien shall be 
 discharged without prejudice to any other remedy the ship owner 
 may have for the recovery of freight, and providing that, in the 
 event of dispute as to the amount payable for freight, the ship 
 owner shall be paid so much of the deposit as is admitted to he 
 due, and the balance be returned to the owner of the goods, un- 
 less the ship owner takes proceedings to recover it/ 
 
 The rates which carriers are required by the sixth section of 
 the statute to publish, file, and adhere to without deviation cover 
 not merely the carriage, but services rendered in receiving and 
 delivering property as well. The lien of carriers upon freight 
 for charges earned is satisfied by the payment of rates for their 
 services which they are lawfully entitled to demand, and a guar- 
 anty executed to a carrier by consignees or third parties, which 
 might be construed to enable the carrier, in consideration of 
 freight delivery before settlement of transportation charges, to 
 exact for services rendered in moving and delivering the freight 
 whatever it chooses to demand, cannot be used by tlie carrier to 
 force payment of charges in excess of those it would be entitled 
 to collect or receive if previous freight delivery had not been 
 made. The Interstate Commerce Act does not recognize indefi- 
 nite or uncertain transportation charges, the idea of unequal com- 
 pensation for like service, or discrimination in the treatment of 
 persons similarly situated, is repugnant to every requirement of 
 that law, and a party to an interstate shipment cannot be excluded 
 by the carrier from privileges afforded to other patrons in the 
 same locality because of his refusal to pay excessive freight 
 charges, even though an agreement to subsequently refund the 
 excess should accompany the demand. But when actual weights 
 of cotton shipments cannot be ascertained without great incon- 
 venience to the shipper or carrier, and when transportation charges 
 are promptly adjusted by the carrier upon the basis of actual 
 weights furnished by the consignee, a practice of billing the cot- 
 
 ' Furness v. White [1894] 1 Q. B. 483.
 
 carrier's liex for charges. 859 
 
 ton at a proper estimated weight per bale should not be deemed 
 unlawful.' 
 
 A carrier acquires no right by virtue of his employment as 
 such to hold goods delivered to him by a wrongdoer, to whom 
 they do not belong, until his charges are paid, against the claim 
 of the owner, and therefore has no lien upon them.' The uni- 
 versal and fundamental principle of the law of personal property 
 is that no man can be devested of his property without his own 
 consent ; and that even an honest purchaser under a defective 
 title cannot hold against the true proprietor. The only exception 
 to this rule in ancient English jurisprudence was that of sales in 
 markets overt ; but in this country the law of markets overt has 
 not been adopted.* If a carrier gets property from a person not 
 authorized to direct its shipment, it has no lien for its services, 
 and no right to retain the property." A carrier which receives 
 goods from another carrier, with the knowledge that the shipper 
 has directed shipment by the first carrier over a different con- 
 necting route, has no carrier's lien upon the goods, either for its 
 own charges or for charges advanced to the first carrier ; and 
 proof of a contract between the two carriers to systematically dis- 
 regard shipping directions obviates the necessity of specific proof 
 of different shipping directions in the case in suit.* 
 
 The rule that, to entitle the consignee to the possession of the 
 goods, he must pay or tender to the carrier the legal charges for 
 their carriage, has no aj^plication in an action against the carrier 
 for the convei-oion of the goods.' The declaration of the court in 
 the above case that the general rule requiring payment of legal 
 
 ' PMps V. Texas & P. R. Co. 4 Inters. Com. Rep. 363. 
 
 * Van Buskirk v. Purinton, 2 Hall, 561; Collman v. Collins, 2 Hall, 569; 
 
 Stevens v. Boston <& W. R. Corp. 8 Gray, 262; Clark v. Lowell & L. R. Co. 9 
 Gray, 231; (iiUon v. Owinn, 107 Mass. 126, 9 Am. Rep. 13; Travis v. 
 Thompson, 37 Barb. 236. 
 •2 Kent, Com. 324; Dame v. Baldwin, 8 Mass. 518; Wfieelwright v. Bepeyst&r, 
 
 1 Johns. 480; Hosack v. Weaver, 1 Yeates, 478; Boston t. Wo-rtliington, 5 
 Ser^. & R. 130; Browning v. Magill, 2 Har. & .J. 308; McOrew y. Brotcder, 
 
 2 Mart. N. S. 17; Roland v. Gundy, 5 Ohio. 202; Lance v. Cowan, 1 Dana. 
 195; Vmiress v. Smith, 35 U. S. 10 Pet. 161, 9 L. ed. 382; Hoffman v. 
 Carow, 22 Wend. 285; Saltus v. Everett, 20 Wend. 276, 32 Am. Dec. 541. 
 
 *Pingree v. Detroit, L. & N. R. Co. 66 Mich. 143. 
 
 » Hill v. Denver & R. G. R. Co. 4 L. R. A. 376, 13 Colo. 35. 
 
 * Baltimore & 0. R. Co. v. O'Donnell, 49 Ohio St. 489.
 
 860 FKKIUHT OHARGKS, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 charges for the transportation of goods before the consignee is 
 entitled to their possession has no application in an action for 
 their conversion, is made without discussion or citation of aiitlior- 
 ities. In this case it appears that the goods ■ were beyond the 
 power of the carrier to deliver. In harmony with this doctrine 
 is the decision in Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 
 541, that no tender of freight is necessary before bringing an ac- 
 tion where a carrier has actually converted the goods by selling 
 them. The same doctrine is implied in decisions that damages 
 for a carrier's conversion of goods by selling them for freight 
 should be diminished by subtracting the amount of the freight 
 charges.' But where an action of trover is brought for goods 
 which the carrier refuses to deliver without payment of freight 
 and for which the plaintiff refuses to pay freight because the 
 goods have been damaged, it is held in Miami Powder Co. v. 
 Port Royal & W. C. R. Co. 38 S. C. 78, that the action can be 
 maintained without payment of the freight, if at all, only where 
 the damages equal or exceed the amount of the freight. The 
 court makes some question whether in any such case an action for 
 the conversion of damaged goods which the carrier is ready to 
 deliver on pa3^ment of the freight can be brought without first 
 paying the freight. The case of Etoart v. Kerr., 2 McMull. L. 
 141, affirming the same point in Rice, L. 203, held that an action 
 of trover would lie without first paying freight on damaged goods 
 which were detained under the carrier's lien where the injury to 
 the goods exceeded the freight. 
 
 A railroad company receiving horses from a connecting line, 
 with notice that the shipper has attempted to prepay the freight 
 for the whole transportation, but has not paid it in full at the reg. 
 ular rates, and also that he contemplates a continuous and speedy 
 passage, has the right to carry the horses through to their desti- 
 nation, and claim a lion on them for the balance of the freight. 
 An unforeseen case had arisen, and the receiving railroad was 
 called on by the plaintiffs agent to act, in some way." The ship- 
 
 ' Briggs v. Boston & L. R. Go. 6 Allen, 246. 83 Am. Dec. 626; Cottingham v, 
 
 Qrand Trunk R. Co. 7 Mont. L. Rep. (Sup. Ct.) 385. 
 » Potts V. New York d N. E. R. Oo. 131 Mass. 455, 41 Am. Rep. 247.
 
 carrier's i.ien for ciiargks. 861 
 
 per was not present and it mi<^lit take time and cost money to 
 communicate with liim. 
 
 The subsequent cases referred to by tlie court in Miami 
 Powder Co. v. Port Royal cfe W. C. R. Co. 38 S. C. 78, as tlirow- 
 ing doubt upon the decision in Ewart v. Kerr, supra, do not seem 
 to be inconsistent with that case as no claim of a hen on the goods 
 is involved, but in each of these cases the carrier offered to deliver 
 the goods, and the owner refused to accept them without payment 
 of the damage which had been done to them. The cases in this 
 country seem to be uniform in liolding that no payment or tender 
 of freight charges by tlie riglitful owner of the goods is necessary 
 to give him a right of action against the carrier where the latter 
 refuses to deliver them without such payment, if they wero 
 delivered to the carrier by one who had stolen or otherwise 
 wrongfully obtained possession of the goods, and who had no 
 authority from the owner to put them in the carrier's custody.' 
 
 These are not all cases of trover but the doctrine established by 
 them is clearly applicable in trover. The contrary doctrine is 
 recited in Yorlce v. G renangh, 2 Ld. Raym. 8G7, in which a 
 decision in the case of the Exeter carrier, which does not seem to 
 have been otherwise reported, is referred to as holding that a car- 
 rier could hold for his charges even as against the true ownei- 
 goods wliich liad been stolen from him and placed without right 
 in the carrier's custody. Where a carrier claims payment in addi- 
 tion to freight as a condition of surrendering the goods no tender 
 or payment of the freight is necessary before bringing an action 
 of trover." The cases of Van Busldvh v. Purimjton, 2 Tlall, 561, 
 and Collman v. Collins, 2 Hall, 569, have been cited on the 
 question of a carrier's right to hold under his lien goods delivered 
 to the carrier without right. But those cases are hardly in point. 
 The goods in those cases had been placed on a ship by a person 
 who had bought them under a conditional sale, and had not 
 
 ^ Fitch V. Newberry, 1 Dougl. (Mich.) 1, 40 Am. Dec. 33; RobinHon v. Baker, 
 
 5 Cash. 137. 51 Am. Dec. 54; .Stevenn v. Boston dc W. R. Corp. 8 Gray, 206; 
 
 Clark V. Lowell & L. R. Co. 9 Gray, 231; Uilaon v. Owinn, 107 Mass. 120, 
 
 9 Am. Rep. 13. 
 *lsham v! OreenlMm, 1 Handy (Ohio) 357; Adams v. Clark, 9 Cush. 215, 57 
 
 Am. Dec. 41.
 
 862 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 obtained title by paying for them, and it was held that they could 
 not be retained under a lien given by a charter party, but there 
 had been no transportation of the goods, and the owner offered to 
 pay for the lading and unlading. But the cases so far as they go 
 are in harmony with the other American cases which deny a car- 
 rier's lien as against a true owner for goods obtained from a thief 
 or wrongdoer. Where the attempt was to prepay the entire 
 freight, the horses were perishable, and their keep would probably 
 have cost more than their unpaid freight if they had been delayed. 
 If the delivering road had a contract with the sliipper it could be 
 made to indemnify the shipper in the place where the contract 
 was made. Under such circumstances, there can be no doubt what 
 course was most for the advantage of the owner, or what directions 
 a prudent owner, if present, would give ; and the analogies of the 
 law would imply a corresponding authority in the defendant.* If 
 the effect of the plaintiff's instructions were doubtful, the law 
 would give the defendant the benefit of the interpretation adopted 
 by it in good faith," and would consider the question of an imme- 
 diate decision,' But the shipper knew that the receiving road 
 was not bound by his contract of shipment, and therefore knew 
 that a higher rate might be demanded, beyond the line of the road 
 to which he had made the delivery, than had been paid. And the 
 receiving road was justified in giving preponderance to the 
 requirement of continuous and speedy carriage and in assuming 
 that the authority of the railroad which offered the horses was not 
 conditional upon the payment of freiglit, by the shipper, turning 
 out to be full payment of all that the defendant could demand,* 
 It is to be observed that the principle that no man's property 
 can be taken from him without his consent, express or implied, 
 has not prevented the last of a line of carriers from maintaining 
 its lien when the first carrier has forwarded the goods to a wrong 
 
 ^RnigM v. Providence & W. R. Co. 13 R. I. 572, 43 Am. Rep. 46; Pierce v. 
 
 Gulumbiaii Ins. Co. 14 Allen, 330. 
 ^ Ireland y. Livingstone, L. R. 5 H. L. 395. 
 ^ Hawks V. Locke, 139 Mass. 205, 52 Am. Rep. 702. 
 4 See WolfY. Hough, 22 Kan. 659; Wells v. Thomas, 27 Mo. 17, 73 Am. Dec». 
 
 228; Vaughan v. Providence & W. R. Co. 13 R. I, 578-581; Schneider v. 
 
 Evans, 25 Wis. 341, 3 Am. Rep 56, et m/.
 
 carkier's lien for charges. 86S 
 
 place.' Tet in that case the last carrier may be said to have had 
 notice that the forwarding agent's authority was limited to send- 
 ing the goods to the place directed by the shipper." The master 
 of a vessel having a lien for freight is authorized to refuse 
 delivery of cargo until the freight is paid or secured.* A pledgee 
 of a vessel and freight which is wrecked before the destination is 
 reached is not entitled to a lien upon the cargo for proportional 
 freight, where the charter party provided for the payment of 
 freight upon delivery of cargo at port of discharge.* A lien for 
 freight is not waived by delivery of the cargo, where the master 
 demands the freight before the unloading is completed, and stops 
 the delivery upon its nonpayment, and makes special delivery of 
 the remainder subject to the lien.* 
 
 The lien for freight on a cargo of laths is not abandoned by 
 permitting the consignee, who refuses to pay the freight, to take 
 them from the vessel in his carts and cart them about 300 feet and 
 pile them, where they w'ere piled as he claims, for the benefit of 
 the vessel." But an unconditional delivery of the entire cargo of 
 a canal boat to the purchaser of the cargo from the consignee, 
 without any notice to such purchaser of any lien or claim for 
 freight or demurrage destroys the lien.' Parties may, however, 
 agree that goods shall be deposited in the warehouse of the con- 
 signee or owner and that their transfer and deposit shall not be 
 regarded as a waiver of the lien.* A common carrier waives his 
 right to detain goods for the freight, if he puts his refusal to 
 deliver them to the owner upon the ground that they are not in 
 his possession at the place where a demand is duly made.* If the 
 
 ' Briggs v. Boston & L. R. Co. 6 Allen, 246, 83 Am. Dec. 626, distinguishing 
 Robinson v. Baker, 5 Cush. 137, 51 Am. Dec. 54'; Whitney v. Beckford, 105 
 Mass. 267; Patten v. Union Pac. R. Co. 29 Fed. Rep. 590, disapproving 
 Fitch V. Newberry, 1 Dougl. (Mich.) 1, 40 Am. Dec. 33; Vaughan v. Provi- 
 dence & W. R. Co. supra. 
 
 « Crossan v. Nexo York <& N. E. R. Co. 3 L. R. A. 766, 149 Mass. 196. 
 
 3 The Ira B. EUems, 48 Fed. Rep. 591. 
 
 * China Mut. Ins. Co. v. Force, 142 N. Y. 90. 
 
 * Cuff V. 95 Tons of Coal, 46 Fed. Rep. 670. 
 e Costello V. 734,700 Laths, 44 Fed. Rep. 105. 
 
 '' Eyan v. Cargo of Spruce Laths. 43 Fed. Rep. 480. 
 
 ^Mordecaiv. Lindsay {"The Eddy"), 72 U. S. 5 Wall. 481, 18 L. ed. 486. 
 
 ^Adains Exp. Co. v. Harris, 7 L. R. A. 214, 120 lad. 73.
 
 SGtt FKEIGHT CHAROKS, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 failure to deliver the goods, on demand of the consignee, is not 
 placed upon the ground of a lien for charges, or the nonpayment 
 thereof, the carrier cannot set up such lieu or nonpayment in de- 
 fense of a subsequent action for the loss of the goods.' A carrier 
 cannot hold goods to which the title has passed upon delivery to 
 the carrier, subject to a lien for prior freights due from the con- 
 signor on other consignments.'' 
 
 Where a consignee of a safe in a carrier's warehouse, placing 
 his hand upon it, said to the carrier's agent, " 1 place this safe in 
 your hands as security for what I owe," the carrier already having 
 a lien upon it for the freight on that as well as on other goods ; 
 and the agent made no response, even if it is conceded that his 
 silence constituted an acceptance of the offer, — the transaction 
 does not amount to such a delivery of the goods as will defeat the 
 right of stoppage in transitu. A stipulation in a bill of lading, 
 that the carrier shall have a lien upon the goods shipped for all 
 arrearages of freight and charges due by the consignees on other 
 goods, is subordinate to the right of stoppage in transitu.^ A 
 carrier, having elected to detain bees to enforce its lien for freight, 
 is bound to take all reasonable measures to prevent injury to them 
 while so detained ; and its failure to unload the bees within a rea- 
 sonable time is negligence making it liable for the damages caused 
 thereby." 
 
 A railroad company receiving freight from a connecting road 
 is under no obligation to advance to the latter the charges due 
 the latter for transportation, although if it does so it has a lien 
 for payment on the goods.* A railway company has a lien on 
 freight for its own charges and those of former carriers paid or 
 advanced by it, though such charges exceed the rate guaranteed 
 in the bill of lading made by another company, and not author- 
 ized or adopted by it. The Arkansas act of Feb. 27, 1885, requir- 
 ing the surrender of freight on the payment of the charges speci- 
 
 ' Louuville & N. R. Co. v. McGuire, 79 Ala. 395. 
 ^ Bacharach v. Chester Freight Line, 133 Pa. 414. 
 3 Farrell v. Richmond & D. R. Co. 3 L. R. A. 647, 102 N. C. 390. 
 *SL Louis. A. & T. H. R. Co. v. Flanymgan, 23 111. App. 489. 
 6 Oregon Short Line & JJ. N. R. Co. v. Northern Pac. R. Co. 4 Inters. Com. 
 Rep. 249, 51 Fed. Rep. 465.
 
 SALE TO ENFOKCE LIEN ON FKOM NECESSITY. 865 
 
 fled in the bill of lading, applies only to bills of lading by which 
 the company is bound as having made, authorized, or adopted 
 them, especially where the excess is due to misrouting by one of 
 the other carriers.* 
 
 A clause of a charter party, that the liabilities of the charterers 
 shall cease on the vessel being loaded, the master and owners hav- 
 ing a lien on the cargo for all freight and demurrage, relieves the 
 charterers only from liability to the extent to which the ship 
 owner obtains a lien for the freight upon the cargo ; and the char- 
 terers are liable for a difference between the amount due for lump 
 freight under the charter party and that for which the ship owner 
 has a lien, where by reason of a diminution in weight of the cargo 
 during the voyage the amount of the bill of lading freight does 
 not wholly cover the amount due for lump freight.' The fact 
 that the whole amount demanded in a libel for unpaid freight and 
 for charges on the cargo is sufficient to give jurisdiction on ap- 
 peal to the United States Supreme Court will not prevent split- 
 ting the claims by a decree for the amount of the freight, which 
 is undisputed, leaving the other item in dispute, although the 
 amount of this is not sufficient to give an appeal.^ 
 
 § 129. Sale to Enforce Lien on From J^ecessity. 
 
 As it is the duty of a carrier — on failure of the consignee to 
 pay his charges — to store the goods subject to his lien, with some 
 responsible warehouseman, he is authorized, after a reasonable 
 time, to take such legal proceedings as will authorize a sale to en- 
 force the lien/ When the goods, for the purpose of protecting 
 the carrier's lien, are in the hands of the warehouseman, the lat- 
 ter holds them subject to his own lien and as the representative 
 of the carrier." "Where the goods, however, are of a perishable 
 
 ' Fordyce v. Johnson, 56 Ark. 430; Loewenberg v. Arkansas & L. R. Go. 56 
 
 Ark. 439. 
 « Hansen v. Earrold [1894] 1 Q. B. 612. 
 
 * Larrinaga v. 2000 Bags of Sugar, 40 Fed. Rep. 507. 
 
 * Indianapolis & St. L. R. Co. v. Herndon, 81 111. 143 ; Briggs v. Boston <& L. 
 
 R. Co. ^ Allen, 246, 83 Am. Dec. 626; Coggill v. Hartford & N. H. R. Co. 3 
 Gray, 545; SaltusM. E-cerett, 20 Wend. 269, 32 Am. Dec. 541; Rankin v. 
 Memphis & C. Packet Co. 9 Heisk. 564, 24 Am. Rep. 339. 
 
 * Western Transp. Co. v. Barber, 56 N. Y. 544. 
 
 55
 
 866 FKEIGHT CHARGES, AFFREIGHTMENT AND CARKIER's LIEN. 
 
 character and the consignee will not receive them, the carrier is 
 not only justified, but required to sell them in discharge of his 
 lien.' The same rule applies in cases of necessity, from accident 
 to the vessel on which they are carried — or any other cause pre- 
 venting the completion of the voyage, where the forwarding of 
 the goods is rendered impossible and exceedingly hazardous.* 
 But, such a sale can only be made under the highest degree of 
 necessity, there being no other possible manner of preserving the 
 goods. Otherwise, the sale would charge the carrier with con- 
 version.' 
 
 The possession by the carrier of goods is of such a character as 
 to put the public upon its guard when the carrier offers the goods 
 for sale, and a title which rests for its validity upon its unauthor- 
 ized and illegal sale by the carrier, — although for full value — can- 
 not be asserted against the owner.* If the owner may be con- 
 sulted without peril to the cargo from the delay, it is an absolute 
 duty of the carrier to do so before making a disposition of the 
 cargo.' Where such a sale is made, the most available market 
 must be sought by the carrier and the highest price obtainable 
 secured.* 
 
 > Rankin v. Memphis & C. Packet Co. 9 Heisk. 564, 24 Am. Rep. 339. 
 
 ' Notara v. Henderson, L. R. 5 Q. B. 346; Freeman v. East India Co. 5 Barn. 
 & Aid. 617; Cannan V. Meaburn, ] Bing. 243; Pope v. Nickerson, S Slorj, 
 465; Arthur -v. The Cassius, 2 Story, 81; The Gratiiudine, 8 C. Rob. Adtn. 
 259; Cammell v. Seicell, 3 Hurlst. & N. 617; Butler v. Murray, 30 N. Y. 88, 
 86 Am. Dec. 355; Barrell^. The Mohawk, 75 U. 8. 8 Wall. 153, 19 L. ed. 
 ^<i)Q;Vlierboon v. Chapman, 13 Mees. & W. 230. 
 
 ' Myers v. Baymore, 10 Pa. 114, 49 Am. Dec. 5^Q\Wilson v. Dickson, 2 Barn. 
 & Aid. 2; Australian Steam Nav. Co. v. Morse, L. R. 4 P. C. 222; Ewbank 
 V. Nutting, 7 C. B. 797; New England Ins. Co. v. Tfie Sarah Ann, 38 U. S. 
 13 Pet. 387, 10 L. ed. 213; Acatos v. Burns, L. R. 3 Exch. Div. 282; Smith 
 V. Martin, 6 Binn. 262; Atlantic Mut. M. Ins. Co. v. Euth, L. R. 16 Ch. 
 Div. 474; Cannan v. Meaburn, 1 Bing. 243; Hall v. Ocean Ins. Co. 37 Fed. 
 Rep. 371. 
 
 * Kitcftell v.Vanadar, 1 Blackf. 356, 12 Am. Dec. 249; Lickbarrow v. Mason, 
 
 6 East, 21; McCombie v. Davies, 6 East, 538; Hunt v. Haskell, 24 Me. 339, 
 41 Am. Dec. 387; Doane v. Russell, 3 Gray, 382; Rankin v. Memphis <& 
 C. Packet Co. 9 Heisk. 564, 24 Am. Rep. 339; Powell v. Buck, 4 Strobh. L. 
 427. 
 ^American Ins. Co. v. Centre, 4 Wend. 45; Astrup v. Leioy, 19 Fed. Rep. 536; 
 Moored. Hill, 38 Fed. Rep. 330; Hall v. Franklin Ins. Co. 9 Pick. 466; 
 Myers T. Baymore, 10 Pa. 114, 49 Am. Dec. 586; Bank of St. Tlwmas v. 
 Th^ Julia Blake, 107 U. S. 418, 27 L. ed. 595. 
 
 • Post V. Jonti, 60 U. S. 19 How. 150, 15 L. ed. 618.
 
 SALE TO ENFOKCE LIEN ON FKOM NECESSITY. 867 
 
 If the voyage is broken up in the course of it, by ungovern- 
 able circumstances, the master may, in that case, even sell the 
 ship or cargo, provided he act in good faith, for the good of all 
 concerned, and in case of supreme necessity, which sweeps all 
 ordinary rules before it.' The necessity is not physical but moral, 
 amounting to strong and vehement exigency. It may be prop- 
 erly determined by considering whether, under like circumstances, 
 a sale would have been made by a considerate owner, for his own 
 interest, and that of all concerned," as when nothing better can 
 be done for the owner, or those concerned in the venture ; ^ when 
 vessel is total wreck ;^ and if the expense of repairs would exceed 
 the value of the vessel when repaired/ There must be a moral 
 necessity. The captain is an agent from necessity, and his con- 
 duct will be closely scanned/ If the master can consult the 
 owner within a reasonable time, he is bound to do so.' So the 
 sale by the master of such part of the vessel as belong to part 
 owners who were not, but might have been notified by telegraph 
 in season to act in the premises before the sale, is void." In the 
 sale of a stranded vessel by the master, there is no implied war- 
 ranty of his right to sell, if the purchaser has every opportunity 
 of examining her and ascertaining whether she is in such a state 
 as to give the master authority to sell her as a wreck." Though 
 the master may sacrifice his cargo in order to save his ship, he 
 
 • Cannan v. Meabtirn, 1 Bing. 243; The Fanny & Elmira, Edw. Adm. 117; 
 
 Bead v. Bonham, 3 Brod. & B. 147; Scull v. Briddle, 2 Wash. C. C. 150; 
 TJie Tilton, 5 Alason, 47G; Hayman v. Moulton, 5 Esp. 65; Milks v. Fletcher, 
 1 Dougl. 231; Idle v. BoyaL Exch. Assur. Co. 8 Taunt. 755; Freeman v. East 
 India Co. 5 Barn. & Aid. 617; Robertson v. Clarke, 1 Bing. 446. 
 
 ^ Robinson v. Commonwealth Ins. Co. 3 Sumn. 220; Pope v. Nickerson, 3 Story, 
 465. See also, American Ins. Co. v. Ogden, 15 Wend. 532; The Lord Coch- 
 rane, 8 Jur. 716. 
 
 « Fitz V. The Amelie, 73 U. S. 6 Wall. 18, 18 L. ed. 806, 2 Cliff. 440; Chambers 
 V. Granizon, 7 Bosw. 414; Cambridge v. Anderton, 2 Barn. & C. 693. 
 
 * Cambridge v. Anderton, supra; Ireland v. Thomson, 4 C. B. 149. 
 '" Cordon v. Massachusetts, F. <& M. Ins. Co. 2 Pick. 249. 
 ^Eartman v. The Will, 4 Pa. L. J. Rep. 350. 
 
 ' Fitz V. The Amelie, 73 U. S. 6 Wall. 18. 18 L. ed. 806; Gates v. Thompson, 57 
 Me. 442, 99 Am. Dec. 782; Mw England Ins. Co. v. The Sarah Ann, 38 U. 
 S. l^Pet. 387, 10 L. ed. 213; Pierce v. Ocean Ins. Co. 18 Pick. 83. 
 
 8 Miller v. Thompson, 60 Me. 322. See Pike v. Batch, 38 Me. 302, 61 Am. 
 Dec. 248. 
 
 » Page v. Cowasjee Eduljee, L. R. 1 P. C. 127.
 
 868 FREIGHT CHARGES, AFFKEIGHTMENT AND CAKRIER's LIEN. 
 
 cannot pass any title to a voluntary donee which can be asserted 
 against the owner, even though it be shown that the goods would 
 otherwise have been lost.' 
 
 § 130. Lien of Contract of Affreightment. 
 
 Ship owners, as carriers of merchandise, contract for the safe 
 custody, due transport and right delivery of goods ; and the ship- 
 per, consignee or owner of the cargo contracts to pay the freight 
 and charges ; and by maritime law, the obligations of the ship 
 owner are reciprocal, and it is equally well settled that the mai i- 
 time law creates reciprocal liens for the enforcement of those obli- 
 gations, unless the lien is waived by some express stipulation, or 
 is displaced by one inconsistent and irreconcilable provision in 
 the charter party or bill of lading." A ship cannot by contract 
 exempt itself from liability for general average contribution while 
 the cargo remains subject.^ By the general maritime law the ves- 
 sel is bound to the shipper for performance of the contract made 
 M'ith the master, whether by charter party or bill of lading, or by 
 parol." But the master of the vessel cannot subject the ship in 
 rem, or his co-owners, to a responsibility for safe carriage, or de- 
 livery of the cargo, not actually laden on board of the vessel for 
 transportation in her lawful employment," for the law creates no 
 lien on a vessel for performance of a contract to transfer the 
 cargo till a contract of affreightment is made, and the cargo is 
 delivered to the master.* 
 
 ' The Albany, 44 Fed. Rep. 431. 
 
 "■Mordecai v, Lindsay {"The Eddy") 72 U. S. 5 Wall. 494, 18 L. ed. 488; 
 
 The Bird of Paradise v. Heyneman, 72 U. S. 5 Wall. 555, 18 L. ed. 664; 
 
 Sears v. Wills, 66 U. S. 1 Black, 112, 17 L. ed. 35; Tlie Delaware v. Oregon 
 
 Irjn Go. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 
 3 The Roanoke, 53 Fed. Rep. 270. 
 " The Flash, Abb. Adrn. 67; The Rebecca, Ware, 188; The Phosbe, Ware, 263; 
 
 The Paragon, Ware, 822; The Morewood v. Enequist, 64 U. S. 23 How. 491, 
 
 16 L. ed. 516. 
 
 * Vandewater v. Mills, 60 U. S. 19 How. 82, 15 L. ed. 554; East Ayiglian R. 
 
 Co. V. Lythgoe, 2 Eug. L. & Eq. 333; Coleman v. Riches, 29 Eng, L. & Eq. 
 323; Montell v. TJie Wm. H. Rutati, 1 Int. Rev. Rec. 125. 
 
 * Tlie Keokuk v. Home Ins. Co. (''The Northern Belle") 76 U. S. 9 Wall. 526, 
 
 19 L. ed. 746.
 
 LIEN OF CONTRACT OF AFFREIGHTMENT. 8t)9 
 
 Bills of lading do not create a maritime lien against a vessel 
 for the cargo therein mentioned, where the cargo is stored upon a 
 wharf not belonging to the vessel, and in charge of a person not its 
 agent who receives it in storage to hold until the coming of the 
 vessel, and is destroyed by fire before the arrival of the vessel, 
 which is not hailed and does not stop at the landing where the 
 property is stored.' The owner of the cargo has a lien npon the 
 ship for the safe custody, transportation and delivery of the cargo." 
 A vessel is liable for the value of a cargo, less only the freight 
 charges, where, upon an ordinary contract of affreightment, the 
 master refuses to deliver the cargo except upon payment of an 
 extortionate demand for demurrage, and the consignee has aban- 
 doned it to the ship, although a tender of the amount actually due 
 is not made until some time after the arrival of the vessel.^ The 
 obligation to unload of charterers under a charter-party by which 
 the vessel is to deliver cargo at any safe birth, as ordered on 
 arrival in dock, does not begin until the vessel is berthed, although 
 a berth is ordered upon her arrival in dock, and she is prevented 
 for some time from getting into it by the crowded state of the 
 dock.* A ship which fails to give notice to the consignee of the 
 principal portion of its cargo of tea, of its inabibity to find a berth 
 for the discharge of cargo in the district in which teas are by long 
 established custom to be delivered, when upon giving such notice 
 a berth might have been found within a reasonable time, is liable 
 to such consignee for the additional expense incurred by him in 
 transporting the cargo from the place where it is delivered.* A 
 provision of a charter-party, that cargo shall be taken from along- 
 side the ship where she can lie always afloat, at the charterer's 
 cost and expense, is not inconsistent with a further clause that she 
 shall be discharged according to she custom of the port, so that 
 the latter, being in writing, will prevail over the former, which 
 is printed, and render the ship liable for the increased cost of dis- 
 
 ' The Guiding Star. 53 Fed. Rep. 936. 
 
 ' The Maggie Hammond v. Moiiand {"The Maggie Hammond ") 76 U. S. 9 Wall. 
 
 435, 19 L. ed. 772. 
 3 The Emhen Bond (D. C. E. D. Mich.) 46 Fed. Rep. 800. 
 *Tharm Sulphur & C. Co. v. M(yrel Bros. & Co. (C. A.) [1891] 2 Q. B. 647. 
 * The Mascotte (D. C. S. D. N. Y.) 48 Fed. Rep. 119.
 
 870 FKEIGHT CHAKUKS, AFFKEIGHTMENT AND CARRIER'S LIEN. 
 
 charge from the fact that she cannot moor alongside the pier, by 
 a custom of the port that cargo shall be discharged on the quay.' 
 The custom of a port, of selling fruit by a single firm of auction- 
 eers in restricted quantities, is not imported into a contract of 
 affreightment by the use of the phrase " customary despatch in 
 discharging," since such custom is concerned, not with the busi- 
 ness of discharging, but with that of selling, and does not create 
 any impediment to a discharge with despatch which the charterer 
 cannot overcome by ordinary diligence." In computing despatch 
 money under provision of a charter-party that a steamer shall be 
 discharged at a specified rate " per day, weather permitting (Sun- 
 days Sindyete days excepted) according to the custom of the port 
 of discharge," and if sooner discharged to pay at a specified rate 
 for every hour saved, Sundays and fete days must be excluded, 
 although the vessel is enabled to sail so much earlier than the 
 time specified in the charter as the hours covered by such days.' 
 A provision of a charter-party that the vessel is to be reported at 
 the custom-house at the port of destination by a named firm, char- 
 terer's agents, or by whom they may appoint, or pay a certain 
 sum as liquidated damages, does not constitute a consignment to 
 such firm, but merely provides for compliance with U. S. Rev. 
 Stat. 2774, requiring the master of a vessel to report arrival and 
 file a manifest, — especially where the charter provides that the 
 vessel is to be consigned to charterers' agents at her port of 
 loading.^ A limitation in a shipping receipt, providing that 
 all claims against the steamship company or any of its stock- 
 holders, and all suits therefor, shall be barred after thirty days 
 from the date of the receipt, does not apply to the vessel so 
 as to prevent a suit in admiralty for such loss.^ A limitation 
 in a shipping receipt issued by a vessel, requiring all claims for 
 damages to or loss of goods to be presented within thirty days 
 from its date, and prohibiting any suit after thirty days from 
 
 ' The Nifa (Div. Ct.) [1892] P. 411. 
 
 '^Milburn v. 35,000 Boxes of Oranges & Lemons (C. C. App. 2d C.) 57 Fed. 
 
 Rep. 236. 
 "Re Glendevon (Div. Ct.) [1893] P. 269. 
 
 *Mignano v. McAndrews (C. C. App. 2d C.) 53 Fed. Rep. 958. 
 * The Queen of the Pacific (D. C. N. D. Cal.) 61 Fed. Red. 213.
 
 LIEN OF CONTRACT OF AFFKEIGHTMENT. 871 
 
 tlie date of any such damage or loss, is unreasonable and void.' 
 The master may act in good faith and, within the scope of hi^ 
 apparent authority, make a contract of affreightment for the ves- 
 sel, and, if he neglect to perform such contract, the vessel will be 
 bound in in rem.'^ If goods are damaged through fault or neglect 
 of the master or fault of the crew in respect to their storage, the 
 party has a remedy against the vessel as well as against the per- 
 sons in charge/ The ship is hypothecated by marine law, in 
 every contract of affreightment whether by charter party or bill 
 of lading to the shipper for any damage his goods may sustain 
 from the insufficiency of the vessel or the fault of the master or 
 crew.* A claim for damages caused by a failure to furnish safe 
 unloading machinery, constitutes a lien on the vessel.' The ves- 
 sel is also liable for damages to goods, partly attributable to bad 
 storage." Also for damages caused by the goods of one shipper 
 to those of another.' Claim of sliippers of cargo for damage for 
 breach of contract of affreightment is a lien on a vessel, next after 
 that of seamen's wages and before that of materialmen.* Where 
 there is no contract or agreement of affreightment, between par- 
 ties, the vessel is not subject to a maritime lien as security for 
 performance of contract, to transport the cargo.' The owner of 
 a cargo has a lien on the vessel for any injury arising from the 
 fault of the vessel or master. When the lien arises from torts 
 committed at sea, it travels with the thing to which it is attached, 
 wherever that goes, and into whosesoever hands they may pass.'" 
 
 ' T?ie Queen of the Pacific (D. C. N. D. Cal.) 61 Fed. Rep. 213. 
 
 ^ Jackaon v. The Julia Smith, 6 McLean, 484, Newb. Adm. 61; The Hendrick 
 
 Hudson, 3 Ben. 419, 7 Law Rep. N. S. 98. 
 ' The Waldo, 2 Ware, 161. 
 •» The Casco, 2 Ware, 188; The Sarah, 2 Sprague, 30; Talbot v. Wakeman, 19 
 
 How. Pr. 36. 
 ' The Carolina, 30 Fed. Rep. 199. 
 ^Brower v. The Water Witch, 19 How. Pr. 241. 
 ' The Cheshire, 2 Sprague, 28. 
 
 * The Cheshire, supra; Hatton v. The Melita, 3 Hughes, 494. 
 » The Keokuk v. Robson, 76 U. S. 9 Wall. 517. 19 L. ed. 744. As to procedure 
 
 to ectlorce shipper's lien upon vessel, see The Belfast v. Boon, 74 U. S. 7 
 
 Wall. 624, 19 L. ed. 266. 
 '■*• Galena D. D. & M. Packet Co. v. Rock Island R. Bridge {"The Rock Island 
 
 Bridge") 73 U. S. 6 Wall. 213, 18 L. ed. 753.
 
 872 FBEIGHT CUAKGKS, AFFKEIGUTMENT AND CARKIEr's LIEN. 
 
 A steamship company has no right to confiscate property shipped 
 by it on the ground of a violation of one of its rules or an attempt 
 to defraud it of its freight, or of a supposed attempt to violate 
 the laws of the United States by shipping the goods as baggage.' 
 
 If the shipper of goods voluntarily accepts the goods at the 
 place of disaster to the vessel, such acceptance terminates the 
 voyage and all responsibility of the carrier, and the master is en- 
 titled to freight pro 7'ata itineris. This rule applies in case the 
 ship is disabled or prevented from forwarding them to the port 
 of destination, by a peril or accident not within the exception in 
 the bill of lading. The proofs of the acceptance of the goods at 
 the intermediate port, in order to operate as a discharge of the 
 vessel, should be clear and satisfactory. It should appear that 
 the acceptance was intended as a discharge of the vessel and 
 owner from any further responsibility, by which the original con- 
 tract in the bill of lading was rescinded. The above rules apply 
 to an insurance company to which property damaged has been 
 abandoned, after disaster to the vessel.* 
 
 In cases where the disaster happens in consequence of one of 
 the perils within the exception in the bill of lading, or charter 
 party, the only responsibility of the vessel is to refit, and forward 
 the cargo, or the portion saved ; or if that is impracticable, to 
 forward it in another vessel, and the owner is then entitled to 
 freight. If part of the cargo is so far damaged as to be unfit to 
 be carried on, the master may sell it at tlie intermediate port, as 
 the agent of the shipper, for whom it may concern, and carry on 
 the remainder. In this class of cases the vessel is only responsi- 
 ble for carrying on the cargo, being exempt from any damage by 
 the exception in the contract of affreightment.' The same rule, 
 as it respects the effect of the voluntary acceptance of the goods 
 at the place of the disaster, or intermediate port, applies in case 
 the ship is disabled or prevented from forwarding them to the 
 
 ' Tanco v. Booth, 39 N. Y. S. R. 82. 
 
 « Barrett v. Tlte Mohawk, 75 U. S. 8 Wall. 153, 19 L. ed. 406. 
 
 ^Barrett v. The Mohawk, su-pra; Welch v. Hicks, 6 Cow. 504, 16 Am. Dec. 
 443; Abbott, Ship. 554, 555, and note: 1 Parsons, Ship. 239, note 2; 1 Par- 
 sons, Ship. 273; Maade & Pollock, Ship. 221, 239.
 
 LIEN OF CONTRACT OF AFFREIGHTMENT. 873 
 
 port of destination by a peril or accident not within the excep- 
 tion in the bill of lading.' 
 
 The only difference between the cases is, that inasinnch as, in 
 tlie latter case, the vessel is responsible for all the damages that 
 have resulted from the misfortune of the cargo, the proofs of the 
 acceptance of the goods at the intermediate port, in order to 
 operate as a discharge of the vessel, should be clear and satisfac- 
 tory. The mere acceptance in such cases, and nothing else pass- 
 ing between the parties, ought not to preclude the shipper of his 
 remedy. It should appear from the evidence and circumstances 
 attending the transaction that the acceptance was intended as a 
 discharge of the vessel and owner from any further responsibility 
 — what would be equivalent to a mutual arrangement, express or 
 implied, by which the original contract in the bill of lading was 
 rescinded. The ground of the exemption from responsibility of 
 the vessel, in both cases, is the voluntary acceptance of the goods 
 at the intermediate port." 
 
 Freight jpro rata itineris is not due unless the owner of the 
 cargo voluntarily agrees to receive it at a place short of its ulti- 
 mate destination.' The admiralty courts of this country admin- 
 ister foreio;n law and the liling: of a libel in the district court here 
 secures the same lien on the ship as if the libel were filed in the 
 foreign jurisdiction." Wherever a maritime lien arises on a con- 
 tract or claim, as in controversies respecting the repairs made or 
 supplies furnished to a ship, or in case of collision, the injured 
 party may pursue liis remedy whether it be for breach of mari- 
 
 ' Osgood V. Oroning, 2 Campb. 471 ; Liddard v. Lopesi, 10 East. 526; The New- 
 port, Swab. Adm. 335, 342; Hadley v. Clarke, 8 T. R. 259; Silence v. Chod- 
 wick, 10 Q. B. 517; Abbott, Ship. 452-455. 
 
 ^Braithwaite v. Poicer, 1 N. D. 455; Barrell v. The Mohawk, 75 U. S. 8 Wall. 
 153. 19 L. ed. 406; Columbian Ins. Co. v. Catlett, 25 U. S. 12 Wheat. 383, 
 6 L. ed. 664; Western Tramp. Co. v. Hoyt, 69 N. Y. 230, 25 Am. Rep. 175; 
 Bork V. Norton, 2 McLean, 422; McGaw v. Ocean Ins. Co. 23 Pick. 405; 
 Welch V. Hicks, 6 Cow. 504. 16 Am. Dec. 443. 
 
 » Gaze V. Baltimore Ins. Co. 11 U. S. 7 Oranch, 359, 3 L. ed. 370; Merchants 
 Mui. Ifis. Co. V. Butler, 20 Md. 41; Richardson v. Young, 38 Pa. 169; Eos- 
 sitery. Chester, 1 Dougl. (Mich.) 154; The Teutonia, L. R. 3 Adm. 394; Cal- 
 lender v. Insurance Co. of North America, 5 Binn. 525. 
 
 * The Maggie Hammond v. Morland (" The Maggie Hammond ") 76 U. S. 9 
 Wall. 435, 19 L. ed. 772.
 
 874 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER S LIEN. 
 
 time law or for a marine tort, by a suit in rem. against the vessel, 
 or by a suit in personam^ at his election, against the owner, or 
 against the master and owner in cases wliere they are jointly lia- 
 ble for the alleged default.' 
 
 %131. Overcharge on Fi^eight—TInderhilling. 
 
 The fact that the shipper luis paid the rates illegally charged 
 by the carrier, rather than not have his goods shipped, does not 
 prevent his maintaining an action for money had and received, to 
 recover back the illegal charge.* But, if the charges are actually 
 voluntarily paid, there can be no action for their recovery.' The 
 recovery for illegal charges, is the excessive rate charges with in- 
 terest thereon, at least, from the commencement of the action.* 
 In an action against a railroad company under the Colorado law 
 to recover the amount paid defendant for freight on coal over and 
 above what it charged another for the like service, plaintiffs are 
 entitled to recover as damages, the amount to which such other 
 was given the preference ; whether plaintiffs lost profits upon the 
 sale of their coal by reason of the non-allowance of such rebates 
 as were given to another on freight, is too remote to be made an 
 element of their damages." The common law remedy against 
 carriers for overcharges beyond reasonable compensation is abro- 
 gated b y Kan. Gen. Stat. 1889, H 1333, 1331, 1312, giving a 
 full remedy to the shipper for recovering back any such excess, 
 and allowing three times the excess, with attorneys' fees and 
 costs." 
 
 A notice of an overcharge on freight shipped, presented to the 
 railway company's local agent, who succeeded the agent who re- 
 ceived the overcharge, which fails to give sufficient data to enable 
 him to find the record of the shipment in the company's books, is 
 
 ^Pendergast v. The Kalorama (" The Ealorama") 77 U. S. 10 Wall. 204, 19 
 
 L. ed. 941; The Belfast v. Boon, 74 U. S. 7 Wall. 624, 19 L. ed. 266. 
 2 Mobile & M. R. Co. v. Steiner, 61 Ala. 559. 
 2 Arnold v. Georgia R. & Bkg. Co. 50 Ga. 304. 
 * Oraham v. Chicago, M. & St. P. E. Co. 53 Wis. 472. 
 ^ Union Pac. B. Go. v. Goodridge, 149 U. S. 680, 37 L. ed. 896. 
 « Beadle v. Kansas City, Ft. S. & M. R. Co. 51 Kan. 248.
 
 OVERCHARGE ON FREIGHT UNDERBILLING. 875 
 
 insufficient under Sayles's Tex. Civ. Stat. art. 4258/>, § 10, provid- 
 ing that penalties for such overcharges shall not be recoverable 
 unless the party aggrieved shall give notice thereof in writing to 
 the railway conipan}^ or to the agent demanding or receiving the 
 same.' The retention of an overcharge has all the effect of ex- 
 tortion and unjust discrimination against the person from whom 
 its payment has been required, and when the refund of an exces- 
 sive charge has been unnecessarily delayed for a considerable 
 period the officials responsible therefor become fairly chargeable 
 with willful intention to violate the law." A person, whether a 
 shipper or consignee, who pays excessive rates to a carrier, is en- 
 titled to recover back the excess.' 
 
 If a common carrier makes a special contract to repay part of 
 the sum received from the shipper, he must perform his part of 
 the contract unless he overthrows the presumption of fairness and 
 right by countervailing facts.* It may be true that the money 
 was paid without duress of person or goods, but if it was paid, 
 not only without knowledge that it was a wrongful exaction, but 
 in the belief of the truth of the positive assertions of the carrier 
 that no shipper was allowed any rebate, such a payment is not vol- 
 untary.* 
 
 A carrier is liable for loss upon nursery stock by its freezing 
 while it is withheld from the consignee under an unjustifiable 
 claim for freight in excess of that specified in the bill of lading 
 issued by a connecting carrier having a right to make a through 
 rate, and which is exhibited to its agent, although no tender or 
 demand is made by the consignee.' Damages suffered by goods 
 passing over a continuous line of transportation, the freight being 
 
 * Sabine & E. T. B. Co. v. Cruse, 83 Tex. 460. 
 
 » PMvs V. Texas & P. B. Co. 4 Inters. Com. Rep. 363. 
 
 ^ Mount Pleasant Mfg. Co. v. Cape Fear & T. V. B. Co. 106 N. C. 207, 42 
 Am. & Eng. R. Cas. 498. 
 
 * Cleveland, C. C. & I. B. Go. v. Closser, 3 Inters. Com. Rep. 387, 9 L. R. A. 
 
 754, 126 Ind. 348. 
 
 *See 1 Paifsons, Cont. 466, and Heiserman v. Burlington, C. B. & N. B. Co. 63 
 Iowa, 732; Cook v. Chicago, B. 1. & P. B. Co. 2 Inters. Com. Rep. 383, 9L. 
 R. A. 764, 81 Iowa, 551. 
 
 * Milton V. Denver & B. G. B. Co. 1 Colo. App. 307.
 
 870 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 divided among the different carriers in fixed proportions, may be 
 set off in an action by one of the railroad companies to recover 
 the freight, although the injury happened on another section of 
 the Hne.' 
 
 Where an individual becomes the assignee of the purchaser un- 
 der proceedings instituted by the state against delinquent rail- 
 roads, and continues to operate under the charter of the original 
 corporation, collecting excessive freights, — the individual will be 
 treated, not as the corporation, but is liable as an individual, for 
 his excessive charges." In the case of Shipper v. Pennsylvania 
 R Co., 47 Pa. 338, the action was brought to recover an over- 
 charge of freight. The court, speaking of defendant's charter, 
 says, on page 340 : " There is no expressed stipulation that the 
 rates shall be equal to all who may offer goods for transportation 
 over the road ; such stipulations are common in English charters. 
 They are however, declaratory of what the common law is." 
 
 A shij)per cannot recover a rebate which a carrier verbally 
 agreed to give when a bill of lading containing no such provision 
 was afterwards given, except where there has been published and 
 posted in the carrier's office an order allowing authorized special 
 rates for certain classes of freight, and directing the freight to be 
 paid at the regular tariff rates, the overcharge to be refunded 
 upon application.' A shipper cannot recoup damages done by 
 one connecting carrier against a subsequent carrier's claim for 
 freight, where he was present when it received the property and 
 made no objection, though he informed it of the damage and in- 
 timated his intention to demand compensation from the previous 
 carrier.* A shipper cannot recover the value of goods sold for 
 freight and storage charges, which he has refused to accept from 
 a railroad company because one of a number of boxes was miss- 
 ing.* In an action against a railroad company to recover back 
 freight paid in excess of that charged to other shippers, in ab- 
 
 ' Fitchburg & W. R. Co. v. Hanna, 6 Gray, 539, 66 Am. Dec. 427. 
 
 « Ragan v. Aiken, 9 Leti, 609, 42 Am. Rep. 684. 
 
 2 Louisville & N. R. Go. v. Fulgham, 91 Ala. 555, 9 Ry. & Corp. L. J, 451. 
 
 ^ St. Louis, L M. & 8. R. Co. v. Lear, 54 Ark. 399. 
 
 « Oulf, G. cfc 8. F. R. Co. V. Booton (Tex. App.) March 15, 1890.
 
 OVERCHAKGE ON FREIGHT UNDERBILLING. 877 
 
 sence of evidence that defendant corporation was a party to dis- 
 criminating arrangements, plaintiff cannot recover.' 
 
 Where a carrier not subject to the Act to Regulate Commerce, 
 for example, a steamboat plying the Tennessee river between 
 Decatur, Alabama, and Bridgeport, in the same state, has applied 
 to rail carriers engaged in interstate commerce for through rates 
 and through billing of freight and has been refused these, and 
 during a period of several years has paid these rail carriers their 
 local published tariff rates on freight, and now sues to recover the 
 difference between the amount so paid on the local rates and the 
 proportion of the through rate between the same points covered 
 by the local rates, no recovery can be had in such a proceeding 
 before the Interstate Commerce Commission." The fact that a 
 railway company falsely represents to a shipper that the rate 
 charo-ed him is the through rate over the connecting^ lines will not 
 entitle the shipper to recover the difference between the rate 
 charged him and the smaller rate agreed upon by the connecting 
 companies, on the ground of extortion, unless the rate charged 
 him is unreasonable, or he was induced by the fraud to ship over 
 that line instead of some other which would have carried the 
 goods for less.' An action for a rebate on freight bills cannot be 
 maintained where the arrangement for the lower rate was 
 obtained by a suppression of the truth in regard to a competing 
 rate." Where a suit was brought against a railroad company on 
 account of alleged overcharges beyond a reasonable rate, but the 
 declaration did not allege either that no rates had been fixed for 
 the defendant's road or that the charges were beyond the rates so 
 fixed, it was demurrable.* A person who has received the benefit 
 of a special rate which unlawfully discriminates in his favor can- 
 not comj^lain because, for the return shipment, he is charged the 
 same as the general public.' Where the purchaser of grain, under 
 
 ' BothcMd V. Wabash, St. L. & P. R. Co. 92 Mo. 91. 
 « Capehart v. Louisville <& N. R. Co. 3 Inters. Com. Rep. 378. 
 ^Arkansas & L. B. Co. v. Smith, 4 Inters. Com. Rep. 415, 42 Am. & Eng. R. 
 Cas. 34^. 
 
 * Jacksonville S. E. B. Co. v. Babbit, 29 111. App. 288. 
 ^Sorrell v. Central B. Co. 75 Ga. 509. 
 
 * Elvey V. Illinois Cent. B. Co. 2 Inters. Com. Rep. 804.
 
 878 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 the terms of his contract, paid the freij^ht but refused to receive 
 the grain, and the contract of sale was rescinded, there can be no 
 recovery from the carrier of the freight paid.' Where the carrier 
 is charged with conversion of goods shipped as first class, and it 
 is proved that they were in fact double first class, the carrier is 
 entitled to the latter rate." 
 
 Tlie statute of limitations does not begin to run against the 
 claim of a shipper to recover back excessive payments of freight 
 charges so long as he has no knowledge of his rights, owing to- 
 the fraudulent concealment of the cause of action by the carrier.^ 
 A carrier is not restricted as to the amount it may recover for the 
 transportation of freight, by the rate stated in the bill of lading, 
 where the rate was obtained by a misrepresentation of the 
 shipper's agent as to the class to which the freight belonged, 
 whether made innocently or not, but may recover the rate for the 
 class to which it belongs where the mistake is discovered before 
 delivery." A consignee, though a factor only, is liable for any 
 balance of freight due, according to the statements of the bill of 
 lading, on account of the excess of the real value of the goods 
 over that named in the bill of lading, which was known to him 
 but concealed from the carrier, although on delivery of the goods 
 he paid all the freight which the carrier then supposed to be due.^ 
 
 § 132. Rate Sheets. 
 
 Common carriers engaged in the transportation of passengers 
 or property, for a continuous carriage or shipment from a place 
 in the United States to a place in an adjacent foreign country, are 
 subject to the provisions of the Act in respect to the printing of 
 schedules of rates, fares, and charges for the traffic they carry, the 
 posting and filing with the Interstate Commerce Commission of 
 copies of such schedules, the notices of advances and reductions, 
 and the maintenance of the rules, fares, and charges established 
 
 ' Jack V. Des Moines & Ft. D. B. Co. 53 Iowa, 399. 
 
 " Rice V. Indianapolis & St. L. R. Co. 3 Mo. App. 27. 
 
 3 Carrier v. Chicago, R. I. <& P. R. Co. 6 L. R. A. 799, 79 Iowa, 80. 
 
 "• Missouri, E. & T. R. Co. v. Trinity County Lumber Co. 1 Tev. Civ. App. 553. 
 
 ''North German Lloyd v. Henle, 10 L. R. A. 814, 44 Fed. Rep. 100.
 
 KATE SHEETS. 879 
 
 and published and in force at the time ; also to the provisions in 
 respect to joint tariffs of rates, fares, and charges for continuous 
 lines or routes,' And of the law regarding the posting of the 
 shipping rules and regulations, the plaintiff is conclusively pre- 
 sumed to have had knowledge.^ 
 
 But it is said by the supreme court of Connecticut that a pamphlet 
 hanging in a railroad company's office, containing rules and rates? 
 is not, of itself, constructive notice of its contents. Nor is this a 
 case for the application of the ordinary, but not universal, rule 
 that full and adequate means of knowledge are equivalent to 
 knowledge itself. It will not do to hold that, where a shipper 
 and common can-ier contract about the carrying of freight and the 
 rate to be paid, without reference to the fact that there are printed 
 rules upon the subject, and of the existence of which the shipper 
 is ignorant, he shall be held to have constructive knowledge of the 
 rules, even though the interstate commerce acts required them to 
 be posted.^ 
 
 The rates which carriers are required by the Act to Regulate 
 Commerce, § 6, to pubhsh, file, and adhere to without deviation, 
 cover not merely the carriage, but services rendered in receiving 
 and delivering property as well.* A joint tariff of rates or 
 charges must show on its face what carriers will unite in estab- 
 lishing it.' Methods generallj^ adopted by carriers in the prepa- 
 ration and publication of rate checks, if in substantial compliance 
 with the law and sufficient for purposes of public information, 
 while not necessarily to be accepted by the commission as a 
 standard, may be acquiesced in until a better mode can be substi- 
 tuted." 
 
 Common carriers are required to post in their depots, stations, 
 and offices, schedules showing the rates and charges for transpor- 
 tation in force on their routes, as well on freight which is for 
 
 ^Be Grand Trunk E. Co. 2 Inters. Com. Rep. 496. 
 
 ^East Hartford v. American Nat. Bank, 49 Conn. 539; Upton v. Tribilcock, 91 
 
 U. S. 50, 51, 23 L. ed. 205, 206. 
 2 Coppland v. Housatonic B. Co. 15 L. R. A. 534, 61 Conn. 531. 
 * Phelps V. Texas & P. B. Co. 4 Inters. Com. Rep. 363. 
 ''Lehman v. Texas & P. B. Co. 3 Inters. Com. Rep. 706. 
 ^Be Passenger Tariffs, 2 Inters. Com. Rep. 445.
 
 880 FKEIGHT CHARGES, AFFKEIGHTMENT AND CARRIER'S LIEN. 
 
 export as on that which is not.' The publication of inland joint 
 tariffs for the transportation of foreign merchandise, and of ad- 
 vances and reductions, should be made by posting in a public 
 place at the depot of the carrier where the freight is received in 
 the port of entiy, and also where it is delivered at the place of 
 destination in the United States." When an export tarilf is es- 
 tablished, and ocean rates not specified, the tariff as filed should 
 show the rate charged by the inland carrier to the point of ex- 
 port, including terminal charges and expenses, and should also 
 show in what manner the through rate to the point of ultimate 
 destination is to be determined. 
 
 Under the amendments of March 2, 1889, to the Interstate 
 Commerce Act, requiring ten days' previous notice of advances 
 and three days' previous notice of reductions in rates, they can- 
 not be varied from day to day, or oftener, to meet fiuctuations in 
 ocean rates. ^ A railroad company is not exempted from liability 
 for establishing a tariff in violation of the provisions of the In- 
 terstate Commerce Law, by the fact that such tariff was estab- 
 lished by a joint arrangement between it and other lines connect- 
 ing with it." The publication of inland joint tariffs for the 
 transportation of foreign merchandise, and of advances and re- 
 ductions, should be made by posting in a public place at the 
 depot of the carrier where the freight is received in the port of 
 entry, and also where it is delivered at the place of destination in 
 the United States.* Common carriers are required to post in 
 their depots, stations, and offices, schedules showing the rates and 
 charges for transportation in force on their routes, as well on 
 freight which is for export as on that which is not.* The filing 
 of schedules of rates with the commission as required by statute 
 
 ' New Orleans Cotton Exch. v. Louisville, N. 0. & T. B. Co. 3 Inters. Com. 
 Rep. 523. 
 
 * New York Board of Trade <& Transportation v. Pennsylvania R. Co. 3 Inters. 
 
 Com. Rep. 417. 
 
 ^ New York Produce Exch. v. New York Cent. & H. B. B. Co. 3 Inters. Com. 
 Rep. 553. 
 
 * Junod V. Chicago & N. W. B. Co. 3 Inters. Com. Rep. 663, 47 Fed. Rep. 290. 
 
 ' New York Board of Trade & Transjjortation v. Pennsylvania B. Co. supra. 
 
 ^ New Orleans Cotton Exch. v. Louisville, N. 0. <& T. B. Co. Sinters. Com 
 Rep. 523.
 
 KATE SHEETS. 881 
 
 raises no presumption as to the legality of such rates, and no 
 omission or failure to challenge or disapprove the schedules of 
 rates so filed can have the effect of making rates lawful which 
 are unreasonable.' 
 
 When the purposes of the Act seem to be fully accomplished by 
 rate sheets as printed, and no one complains, the commission may 
 not feel inclined to interfere on its own motion where sheets are 
 printed in smaller type than prescribed by Act." Any one member 
 of a joint combination may file copies of joint tariff for all the mem- 
 bers.' ^Neglect to publish rates for milage tickets is violation of 
 Act.* Joint tariffs should be printed in ordinary type, and copies 
 kept at every depot or station upon the line of the carriers unit- 
 ing therein.' Common carriers must take all descriptions of all 
 ordinary traffic from all points, and the rates should be known 
 and announced publicly in advance of the offering of traffic. Un- 
 der the Act to Regulate Commerce shippers are entitled to equal 
 and open rates at all times, and are not to be required to ask for 
 rates. ° 
 
 Under the provisions of the Act to Kegulate Commerce, the 
 Grand Trunk Railwa3^ Company of Canada is required to print, 
 post, and file its schedule of rates and charges for the transporta- 
 tion of property from points in the United States to points in 
 Canada, and cannot lawfully charge, demand, collect, or receive 
 from any person or persons a greater or less compensation there- 
 for, or for any services in connection therewith, than is specified 
 in such published schedule as may at tlie time be in force.' Terms 
 for rolling stock for transportation of petroleum oil should be 
 uniform and published with rate sheets.' Under the amendments 
 of March 2, 1889, to the Act to Eegulate Commerce, requiring 
 
 • San Bernardino Board of Trade v. Atchison, T. & S. F. R. Co. 3 Inters. Com. 
 
 Rep. 138. 
 "* Re Rate Sheets, 1 Inters. Com. Rep. 316. 
 
 * Re Filing Copies of Joint Tariff, 1 Inters. Com. Rep. 76. 
 *Larrison v. Chicago & G. T. R. Co. 1 Inters. Com. Rep. 369. 
 
 ' Order as to Publication of Joint Tariffs, 1 Inters Com. Rep. 598. 
 ^ Re Tariff s of Transcontinental Lines, 2 Inters. Com. Rep. 203. 
 ' Re Grand Trunk R. Co. 2 Inters. Com. Rep. 496. 
 « Rice V. Louisville & N. R. Co. 1 Inters. Com. Rep. 723. 
 56
 
 882 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 ten days' previous notice of reductions in rates, they cannot be 
 varied from day to day, or oftener, to meet fluctuations in ocean 
 rates. Whenever a tariflE is established for merchandise billed or 
 intended for export by sea, and ocean rates are not specified, 
 either because of fluctuations or for any other reason, so that only 
 the charge for inland transportation is definitely fixed, the tariff 
 as filed and made public should show the rate charged by the in- 
 land carrier or carriers to the point of export, including all term- 
 inal charges and expenses, and should also show in w^liat manner 
 the through rate to the point of ultimate destination is to be de- 
 termined, whether by the addition of the ocean rate from time 
 to time prevailing, or how otherwise.' 
 
 In ruling upon a violation of the law the commission says that 
 it appears that the Southern Pacific Company and the Atchison, 
 Topeka & Santa Fe Railroad Company each has several stations 
 on their lines at which no publication is made in their tariffs of 
 the rates at these stations, — and this they admit ; and the com- 
 mission finds that this conduct on their part has been owing to a 
 misapprehension and misconstruction of the law and in accord- 
 ance with a usage and practice long existing among railroads ; 
 the commission therefore orders them to make publication of the 
 rates they charge at these stations in their tariffs,'' and that where a. 
 carrier corrects the inequality of rates complained of and thus makes 
 all the reparation asked in the complaint, or that the commission 
 could afford, no order is required, and none will be issued.^ Un- 
 der state statute it has been ruled that it is the duty of railroad 
 companies to post and keep continuously posted as provided by 
 General Rule 4 of the Florida Railroad Commission, whatever 
 falls within its provisions, it being insufficient to furnish posters 
 to agents, with instructions to post them, and that nailing up hy 
 one corner in a conspicuous place in a railroad station, in such 
 manner as to be accessible to every one, a pamphlet of several 
 pages containing transportation rules and regulations or classifica- 
 
 ' J!few York Produce Excli. v. New York Cent. & H. R. R. Co. 2 Inters. Com. 
 
 Rep. 553. 
 2 Rice V. Atchison, T. & 8. F. R. Co. 3 Inters. Com. Rep. 263. 
 ^ New Orleans Cotton Exch. v. Louisville, N. 0. <& T. R. Co. 3 Inters. Com. Rep. 
 
 523.
 
 REBATE. 883 
 
 tions ; or the binding together of such pamphlets and schedules, 
 and placing them consjoicuously upon a shelf desk in the agent's 
 office — is not a compliance with Florida Railroad Commission Rule 
 4, requiring a schedule of rates, etc., to be conspicuously posted 
 in each station. 
 
 A railroad company having, under Freight Rule 3 of the Flor- 
 ida Railroad Commission, the right to make at its discretion 
 special rates reduced below commission rates for particular per- 
 sons and places, for temporary use, need not post such special 
 rates, under the requirements of General Rule 4. A table which 
 does not give the distance between any two railroad stations is 
 not a table of distances, within the Florida Railroad Commission 
 Rule 4. It is not sufficient for the schedule merely to supply 
 data for computing the distances. Passenger Rule 6 and Freight 
 Rules 3 and 11 of the Floi'ida Railroad Commission are applica- 
 ble to the Pensacola & Atlantic Railroad Company, and should 
 be posted like other rules applicable to it. The fact that a passen- 
 ger rate schedule is in two parts or on two cards, instead of one, 
 is not, where the two cards may be posted together and read as 
 one, of itself a violation of the rule of the Florida Railroad Com- 
 mission requiring the schedule to be posted.* 
 
 %133. Rebate. 
 
 For the carrier to pay the larger expense of the transportation 
 of a remote shipper's merchandise to the station, and not to pay 
 the less expense of such transportation of the nearer shipper's 
 merchandise, would be the equivalent of a rebate to the former, 
 the railroad service proper being the same to each and at the 
 same rate ; nor would it be treating all patrons with statutable 
 equality to bear a part of the cartage expense for one shipper and 
 not bear a part of it for another. 
 
 In the case of Hezel Milling Co. v. St. Louis, A. & T. H. R. 
 Co., 3 Inters. Com. Rep. 701,the rates for the transportation of 
 flour originating at St. Louis or East St. Louis and shipped over 
 
 > &Late V. Pensacola & A. R. Co. 27 Fla. 403, 46 Am. & Eng. R. Cas. 704.
 
 884 FREIGHT CHAKGES, AFFREIGHTMENT AND CAERIEr's LIEN. 
 
 defendants' lines are the same, and such flour is forwarded by the 
 first named defendant from its receiving station in East St. Louis. 
 Shippers in St. Louis deliver flour to rail or wagon transfer com- 
 panies at their stations in St. Louis and defendants bear the cost 
 of transfer to said receiving station, the average being about six 
 cents per barrel, or St. Louis shippers sometimes deliver to the 
 wagon transfer company at their mill doors and then bear half 
 of the cartage expense by wagon, the defendants the other half. 
 Petitioner, who is a manufacturer and shipper of flour over de- 
 fendants' lines in competition with St. Louis millers, teams flour 
 from its mill about one half a mile to said receiving station at 
 East St. Louis at a cost of six cents a barrel, or loads it on cars 
 furnished by the defendants on a side track contiguous to said 
 mill at a cost of about three cents a barrel, being required to so 
 load such cars that the lot for the nearest station is placed in the 
 forward part of the train and lots for other stations are arranged 
 consecutively, according to distance, and also being required to 
 clean and repair such cars before using. The commission held 
 that on flour destined to points outside the state which the initial 
 carrier requests petitioner to haul to its station, or which peti- 
 tioner is compelled to haul there by reason of proper cars not 
 being furnished on said side track for loading, petitioner is enti- 
 tled to a reduction of six cents a barrel from rates in force as lono; 
 as defendants bear that amount of the cost of cartage for other 
 shijDpers, and that defendants' rule requiring petitioner to clean 
 and repair cars furnished on said side track is unreasonable, but 
 the requirement that petitioner shall load such cars according to 
 stations is, in view of counter advantages, not unreasonable, and 
 rates on flour loaded by petitioner in properly cleansed and re- 
 paired cars so furnished are, upon the facts, properly the same as 
 rates in force on shipments of flour originating in St. Louis. "With 
 reference to the transportation of flour it is said defendants seem to 
 treat St. Louis and East St. Louis as a single business community; 
 therefore, they cannot complain if this case is determined upon 
 that theory. Taking j)etitioner's flour in cars from its mill is pre- 
 sumably equal in value to its expense of hauling by team ; there- 
 fore, petitioner cannot complain that the carriers bear a portion
 
 REBATE. 885 
 
 of the cartage expense of the St. Louis millers equal to the benefit 
 it receives from being able to deliver on the side track at its mill, 
 and the commission says questions arising under a practice of 
 partial or absolute free cartage, or growing out of the existence 
 of side tracks to shippers' doors, must depend largely for solution 
 on the particular circumstances of each case.* 
 
 A sliipper from whose mill flour is taken in cars cannot com- 
 plain that the carrier bears a portion of the cartage expenses of 
 other millers.* A rebate in freight not in itself constituting an 
 unlawful discrimination by a carrier is not made such by the fact 
 that it is kept secret between the parties.^ There is nothing in 
 the Interstate Commerce Law which vitiates bills of lading, or 
 which, by reason of an allowance of a rebate to the agents of the 
 owners or consignees of goods, if actually made, would invalidate 
 tlie contract of affreightment or exempt a railroad company from 
 liability on its bills of lading." But an agreement between a ship- 
 per of merchandise and a favored customer of a carrier to whom 
 the latter allows a rebate on the freight, by which such shipper 
 ships under such customer's name and the latter receives a rebate 
 thereon, is illegal and contrary to public policy; and such rebate 
 cannot be recovered from such customer by the shipper.* Many 
 cases might be cited to show that, at common law, all such special 
 terms and favoritism are illegal." 
 
 Arrangements by which shippers are allowed to furnish im- 
 proved stock cars, receive extraordinary mileage upon them 
 amounting to large rebates on their rates, and determine whetlier 
 other competitive shippers shall forward freight in them or not, 
 
 ^Eezel Milling Co. v. St. Louis, A. & T. H. R. Co. 3 Inters. Com. Rep. 701. 
 
 *Madooii V. Chicago & N. W. R. Co. 3 Inters. Com. Rep. 711. 
 
 '^Hoover v. Pennsylvania R. Co. 156 Pa. 220. 
 
 * Merchants Cotton Press & 8. Co. v. Insurance Co. of North America, 151 U. 
 S. 368, 38 L. ed.l95. 
 
 ^Haidey v. Kansas & T. Goal Co. 48 Kan. 593. 
 
 ^Messenger v. Pennsylvania R. Co. 36 N. J. L. 407, 18 Am. Rep. 457, is a 
 representative case in wtiich Beasley, Ch. J., states the doctrine of the 
 common law with great clearness and force. See also Audenried v. Phila- 
 delphia^& R. R. Co. 68 Pa. 370, 8 Am. Rep. 195; McDuffee v. Portland & 
 R. R. Co. 52 N. H. 430, 13 Am. Rep. 72; Kew England Exp. Co. v. Maine 
 Ceni. R. Co. 57 Me. 188, 2 Am. Rep. 31 ; Pierce, Railroads, 498.
 
 886 FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
 
 — are unlawful.' A promise bj a carrier's agent to give a rebate 
 on freight charges, thereby discriminating against other shippers, 
 is void.'^ Such an agreement is illegal at coinmon law.^ The al- 
 lowance of a rebate by a common carrier to certain of his custom- 
 ers from the tariff rates charged other customers for precisely 
 similar services is sufficient of itself to show that the rates charged 
 the latter were unreasonable, and that there was unjust discrim- 
 ination against them, illegal by the common law, which will give 
 the latter a right to recover tlie amounts paid by them in excess 
 of the rates charged the former after deducting the rebates.* 
 
 Where a carrier agrees that he will carry goods at a certain 
 rate, and that after the shipment he will repay the shipper a re- 
 bate of part of such rate, this is only an agreement to carry the 
 goods at a compensation ultimately agreed upon, and is not ille- 
 gal.^ Existing contracts for special freight rates, or rebates from 
 regular tariff rates, which had been made with railroad companies 
 subject to the Interstate Commerce Act, became illegal when the 
 Act took effect, and were after that time incapable of enforce- 
 ment.* An agreement between a carrier and a miller to give the 
 latter a rebate on coal shipped to him, used in the manufacture 
 of corn into meal, is valid under Alabama Code 1886, § 1161, 
 where public notice by the general freight agent authorized such 
 rebate on coal used in manufacturing.' 
 
 ' Shamberg v. Delmcare, L. & W. R. Co. 3 Inters. Com. Rep. 503. 
 ^Indianapolis, D. & 8. B. Co. v. Davis, 32 111. App. 67. 
 
 3 Fitzgerald v. Orand Trunk R. Co. 13 L. R. A. 70, 3 Inters. Com. Rep. 633 
 
 63 Vt. 169. 
 
 4 Cook V. Chicago, R. I. & P. R. Co. 9 L. R. A. 764, 3 Inters. Com. Rep. 383, 
 
 81 Iowa, 551. 
 
 « Cleveland, C. C. & 1. R. Co. v. Closser, 9 L. R. A. 754, 3 Inters. Com. Rep. 
 387, 126 Ind. 348. 
 
 ^Bullardv. NortJiern Pac. R. Co. 11 L. R. A. 246, 3 Inters. Com. Rep. 530, 
 10 Mont. 168. 
 
 ''Louisville & N. R. Co. v. Falgham, 91 Ala. 555, 9 Ry. & Corp. L. J. 451.
 
 CHAPTER XXL 
 
 DELIVERY OF GOODS. 
 
 § 134. Place of Deliverii hy Carrier on Land. 
 
 § 135. Time and Manner of Delivery — Custom, see ante § 33 — Law 
 
 of Contract, see ante § 19. 
 § 136. Delivery to Proper Person — Bill of Lading — Draft. See 
 
 §§ 25, 29-81. 
 § 137. Notice to Consignee of Arrival of Goods. 
 § 138. Collections hy Carrier — Sale of Goods. See a7ite, §§ la, 82. 
 § 139. Delivery to Wrong Person — Conversion. 
 § 140. Delivery in Bad Condition — Shortage. See ante, § J^O. 
 % 141. Failure to Deliver. 
 § 142. Statutory Penalties for Non-Delivery. 
 § 143. What will Excuse Non-Delivery of Goods. 
 
 § 134" Place of Delivery hy Carrier on Land. 
 
 The duty of a common carrier is not merely to carry safely the 
 goods entrusted to him, but also to deliver them to the party des- 
 ignated by the terms of the shipment, or to his order. They are 
 to be delivered at the place and destination, to the party desig- 
 nated to receive them, if he presents himself, or can with reason- 
 able elforts be found, or to his order, No obligation of the car- 
 rier is more strictly enforced.' The duty of the carrier extends 
 to all that relates to loading, safe keeping and transportation, and 
 right delivery ; and for all these he is liable.'' He is chargeable 
 with damages occasioned by the delay in delivering the goods ; 
 
 ' Forbes v, Boston & L. R. Co. 133 Mass. 154; McEniee v. New Jersey S. B. Co. 
 
 45 N. Y. 34, 6 Am. Rep. 28; North Pennsylvania R. Co. v. Commercial Nat. 
 
 Bank of Chicago, 123 U. S. 727, 31 L. ed. 287. 
 « Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985; Oermania Ins. Co. 
 
 V. The^ Lady Pike, 88 U. S. 21 Wall. 15, 22 L. ed. 503; The Niagara v. 
 
 Cordes, 62 U. S. 21 How. 27, 6 L. ed. 47; Laveroni v. Drury, 8 Exch. 166; 
 
 La Tourette v. Burton (" The Commander-in-Chief") 68 U. S. 1 Wall. 51, 17 
 
 L. ed. 611; Richardson v. Winsor, 3 Cliff. 402. 
 
 887
 
 DELIVERY OF GOODS. 
 
 and diminntion in value is properly chargeable as an item.' The 
 destination of goods is a railroad station, and not a village of the 
 same name several miles away in which the consignee had his 
 place of business ; and a baggage room at the station is a ware- 
 house, within the meaning of a bill of lading fixing the time wheii 
 the carrier's liability should cease.' 
 
 "Where the contract of carriage requires that the goods shall be 
 personally delivered by the carrier, due diligence must be used to 
 ascertain the proper address and make tender of the goods to the 
 person at his place of business. If there be a particular address, 
 by street and number, the tender must be made there.' As a gen- 
 eral rule, common carriers by wagons are required to deliver the 
 goods to the consignee at his house or place of business and their 
 liability as such continues until such delivery. But, this rule does 
 not apply to vessels on the seas, lakes or navigable rivers, or to 
 railroads. A warehouse or depot, at the town or station to which 
 goods are to be shipped by railroad, is the proper place of deliv 
 ery to the consignee. When they are discharged from the cars, 
 and in the absence of the consignee, are safely stored in the com- 
 pany's warehouse, the liability of the railroad as common carrier 
 has terminated with notice to the consignee of the arrival of the 
 goods.* But transportation by steamboats and railroads is neces- 
 sarily such that the wharves of the former and the depots of the 
 latter are their places of delivery.^ Still, if streetage, or charges 
 for transportation to a locality on a street distant from the car- 
 rier's depot or wharf, has been charged in addition to the freight, 
 it imposes a duty of delivery at the point for which the additional 
 charges have been made.' If the carrier, having no warehouse, 
 
 1 Wilson V. LancasMre & Y. B. Co. 9 C. B. N. S. 632; Kent v. Hudson River 
 
 B. Co. 22 Barb. 278; Bowe v. The City of Dublin, 1 Ben. 56. But consult 
 Jones V. New York & E. B. Co. 29 Barb. 633. 
 ^ Bichardson v, Canadian Pac. B. Co. 19 Ont. Rep. 869, 45 Am. & Eng. R. 
 Cas. 413. 
 
 2 Bchroeder v. Hudson Biver B. Co. 5 Duer, 55; Witbeck v. Holland, 45 N. Y. 
 
 130. 
 ^Bansemer v. Toledo &W. B. Co. 23 Ind. 434, 87 Am. Dec. 367. 
 
 ^ Jeffersonville B. Co. v. Cleveland, 2 Bush, 468. 
 « Baltimore & 0. B. Co. v. Green, 25 Md. 72.
 
 PLACE OF DELIVERY BY CARRIER ON LAND. 889 
 
 is directed by the shipper to leave the goods at a particular place, 
 the liability of carrier terminates with the deposit.' 
 
 A railway company, having put loaded cars upon a side track 
 to be unloaded by the owners of the freight, has no right, 
 without special notice or warning, to run or back a train upon 
 such side track while the cars are being unloaded, and if it does 
 so is liable for injuries thereby caused to the persons unloading.* 
 On a consignment of a carload of brick to a person at a point 
 where there was no depot, warehouse, agent, or even side track, 
 it is the duty of the carrier, in case the consignee is not present to 
 receive the brick, to unload them and leave them there on the 
 ground ; and the carrier has no riglit, because the consignee is not 
 present, to cany them on to the next station and leave them on a 
 side track.' A contract of affreiglitment for transportation to and 
 delivery at a certain point to the consignees imposes on a con- 
 tracting company only the duty of affording the consignees an 
 opportunity to receive and take away their property, and involves 
 no duty, in the absence of any custom or usage, to deliver the 
 car to another company for ultimate delivery at a more convenient 
 place.* 
 
 Although the consignee of goods may change his instructions 
 as to their destination in the hands of any carrier, where no bill 
 of lading lias been delivered, which cannot be recalled,^ and sub- 
 stitute a different place of delivery, he must do so during the 
 transit, and not after their destination has been reached and the 
 carrier's obligation fulfilled. In the absence of a custom author- 
 izing the agent of a carrier, at the request of the consignee, to 
 
 J Rowe V. Piekf<yrd, 8 Taunt. 83, 1 Moore, 526; Allan v. Gripper, 2 Cromp. & J. 
 218, 2 Tyrw. 217; Richardson v. Goss, 3 Bos. & P. 119; Scott v. Pettit, 3 Bos. 
 & P. 472; Dixon v. Baldwin, 5 East, 181. 
 
 * Gessley v. Missouri Pae. R. Co. 32 Mo. App. 413. 
 
 * Louisville & N. R. Go. v. Gilmer, 89 Ala. 534, 42 Am. «S;Eng. R. Cas. 450. 
 
 * Melbourne v. Louisville & JSF. R. Co. 88 Ala. 443. 
 
 * Blanchard v. Page, 8 Gray, 281 ; Sutherland v. Second Nat. Bank of Peoria, 
 
 78 Ky. 250; Hubbersty v. Ward, 8 Exch. 330; Ohaffee v. Mississippi & T. R. 
 Co. 59 Miss. 182; Philadelphia & R. R. Go. v. Wire Man, 88 Pa. 264; Mitchel 
 V. Ede, ^1 Ad. & El. 888; Waldron v. Romaiiie, 22 N. Y. 368; Cross v. 
 O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Bushel v. Wheeler, 15 Q. B. 442; 
 BaUel^ V. Hudson River R. Co. 49 N. Y. 70; Hartwell v. Louisville tfc N. R. 
 Co. 15 Ky. L. Rep. 778.
 
 890 DELIVERY OF GOODS. 
 
 undertake, after the car has reached its destination, a delivery 
 thereof at another place and to another party than the consii^nee, 
 an arranojement between the latter and the ag:ent cannot iix any 
 liability on the company on account of the negligence of the agent 
 in carrying it out.' 
 
 A carrier cannot relieve itself from liability for conversion of 
 goods wliich it has unjustifiably transported to another place than 
 their destination for the purpose of preventing their coming to 
 the possession of the consignee and depriving him of their con- 
 trol and disposition, by tendering him the goods after he has com- 
 menced an action for their conversion.' And the same result 
 follows where the goods are carried to a different station from the 
 one designated, and there stored.' 
 
 A common carrier who, having received goods to be carried to 
 a designated place, transports them to another place, to prevent 
 their coming to the possession of the consignee and deprive him 
 of their use and disposition, is liable for conversion of the goods. 
 After such conversion, the consignee is under no obligation to 
 receive the goods ; and it is no defense to his action for their 
 value that they w^ere tendered to him after the conversion, and 
 then stolen without the negligence of the carrier. The motive 
 by which a party was controlled in the conversion of property is 
 of no avail as a defense, though it may be shown when exemplary 
 damages are claimed.* Where goods are shipped, with freight 
 prepaid, to a former station agent at a prepaid station, and upon 
 arrival of the train the conductor informs him that he has freight 
 for him, but he answers that he cannot receive it as he has been 
 removed as agent, upon which the conductor carries the goods to 
 the next station, where they perish, the company is liable for their 
 value.^ An effort to deliver the goods to the consignee must be 
 
 ' Melbourne v. Louisville & N. R. Co. 88 Ala. 443. 
 
 ^Baltimore & 0. R Co. v. O'Donnell, 49 Ohio St. 489. 
 
 2 ToUdo, W. & W. R. Co. V. Hammond, 33 lad. 379, 5 Am. Rep. 231. 
 
 * Baltimore & 0. R. Co. v. O'Donnell, supra. 
 
 * Edwards v. Cheraw & D. R. Co. 33 S. C. 117.
 
 TIME AND MANNER OF DELIVERY. 891 
 
 made at a proper place, at a proper time and in a proper manner/ 
 and the hours in which the delivery can be tendered are regulated 
 by the custom of business in the particular line in which the con- 
 signee is engaged.' 
 
 § 185. Time and Mctnizp.r of Delivery— Cast oin, 
 see ante, § 33 — Law of Contract, see ante, § 19. 
 
 Delivery at the proper time excludes holidays ; — and in certain 
 classes of goods a delivery during a storm is not permissible.' 
 Custom is often an important element in determining the proper 
 time and place of delivery.* A custom at a port of delivery be- 
 comes part of the contract.^ The delivery of goods at the port of 
 destination is governed by the particular usages of trade/ as to 
 time and mode.^ The carrier has the right to discharge cargo on 
 a voluntary holiday, — such as a day appointed by the governor for 
 fasting and prayer, and demand the acceptance of his freight on 
 that day, by the consignee, where there is no law of the state 
 which forbids the transaction of business on that day. "Where 
 there is no special custom of the port which forbids the car- 
 rier from unlading his vessel on such days, and as there is no 
 general custom or usage which forbids the unlading of vessels and 
 a tender of freight to the consignee, on a day set apart for a 
 church festival, fast or holiday, a tender may be made at such 
 
 1 Eagle v. White, 6 Whart. 505, 37 Am. Dec. 434; Hill v. Humphreys, 5 Watts 
 & S. 123, 39 Am. Dec. 117; Norway Plains Co. v. Boston & M. R. Co. 1 
 Gray, 271, 61 Am. Dec. 423; Cope v. Cordova, 1 Rawle, 203; Hyde v. Trent 
 & M. Nav. Co. 5 T. R. 389; Ooold v.Chapin, 10 Barb. 612; Garsid^ v. Trent 
 & M. Nav. Proprs. 4 T. R. 581; Tliomas v. Boston & P. R. Corp. 10 Met. 
 472, 43 Am. Dec. 444; Fisk v. Newton, 1 Denio, 45, 43 Am. Dec. 649; 
 Powell V. Myers, 26 Wend. 591; Richardson v. Ooddard, 64 U. S. 23 How. 
 28, 16 L. ed. 412. 
 
 ^ Merwin v. Butler, 17 Conn. 138; ManhaU v. American Exp. Co. 7 Wis. 1, 
 73 Am. Dec. 381; Toung v. Smith, 3 Dana, 92, 28 Am, Dlc. 57. 
 
 ^Ely V. New Haven S. B. Co. 53 Barb. 207; The Grafton, 1 Blatchf, 173. 
 
 * Shelton v. Merchants Dispatch Transp. Co. 59 N. Y. 258; Sleade v. Payne, 14 
 La. Ann. 453. 
 
 *The Glover, 1 Brown, Adm. 166; Richardson v. Goddard, 64 U. S. 23 How. 
 
 28, 16 L. ed. 412. 
 ^Blossoniv. Smith, 3 Blatchf. 316; Gibson v. Stevens, 3 McLean, 563; Chaplin 
 
 V. Rogers, 1 East, 192; Atkinson v. Maling, 2 T. R. 462; Higgins v. United 
 
 States Mail SS. Co. 3 Blatchf. 282. 
 ' Higgins v. United States Mail SS. Co. supra.
 
 892 DELIVERY OF GOODS. 
 
 time. Bj the Canon Law, the observance of these days did not 
 extend "to those who sold provisions;" "to posts or public con- 
 veyances ; " " to travelers ; " " to carriers by land or water ; " " to 
 the lading and unlading of ships engaged in maritime commerce." 
 
 In England and other Protestant countries, while a more strict 
 observance of the Lord's Day is enforced by statute, the other 
 fasts and festivals enjoined by the English Church, have never 
 been treated as coming within the category of compulsory holi- 
 days. Formerly, courts sat even on Sunday ; nor were contracts 
 made on that day considered illegal or void, "till the statute of 
 29 Charles II. chap, 27, was enacted, — whereby " no person what- 
 ever is allowed to do or exercise any worldly labor or work of 
 their callings on the Lord's Day." But this prohibition was never 
 extended, either by statute or usage, to their church fasts, festivals 
 or holidays.' 
 
 There must be a reasonable time during which, M-ithout other 
 clue than the presentation of an order for the goods, the carrier 
 shall be required to search his books to ascertain the disposition of 
 a particular shipment.'' The carrier is bound to make a delivery 
 of the goods within a reasonable time.' What is a " reasonable 
 opportunity " for receiving and removing freight after its arrival, 
 will depend upon the peculiar circumstances of each case, — 
 whether the freight arrived at its destination at the time, etc.* 
 
 Where goods arrived at eleven o'clock and were unloaded into 
 the carrier's depot between three and four p. m., and were ready 
 for delivery to the consignee by four o'clock, and the depot was 
 closed, as usual, at six p. m., and was destroyed, with the goods 
 by fire, before the next business day, the finding of the jury that 
 a reasonable time had not elapsed within which the consignee 
 could remove the goods and charging their loss upon the carrier, 
 
 1 Figgins v. Willie, 2 W. Bl. 1186; Bichardson v. Goddard, 64 U. S. 23 How. 28, 
 16 L. ed. 412. 
 
 "^Woodward v. Illinois Cent. B. Co. 33 111. App. 433. 
 
 ^Copev. Cordova, 1 Rawle, 203; C kicker ing y. Foioler, 4 Pick. 371; Ostrander 
 V. Brown, 15 Johns. 39, 8 Am. Dec. 211; Pickett v. Downer, 4 Vt. 21; May- 
 ell V. Potter, 2 Johns. Cas. 371; Stephenson v. Hart, 4 Biug. 476; Kohn v. 
 Pickard, 3 La. 225, 23 Am. Dec. 453; Gatliffe v. Bourne. 4 Bing. N. C. 
 314, 332. 
 
 * Jeffersonville B. Co. v. Cleveland, 2 Bush, 468.
 
 TIME AND MANNER OF DELIVERY. 893 
 
 •was sustained.' "WTiere the consignee's cartman called for the 
 •goods on Saturday afternoon and was told that it would be late 
 when goods arrived, and he need not call again before Monday, 
 and the goods arrived about sundown — of which the carrier was 
 advised, his place of business being nearly a mile distant — but he 
 did not call for them, and the goods were burned with the ware- 
 house, — the carrier was held liable." 
 
 In the absence of special contract, local custom, or usage of 
 trade on the subject-matter will control as an implied term in 
 the contract.' The construction and validity of a contract are to 
 be governed by the law of the place where the contract is made 
 and where it is to be performed.* The principle has been di- 
 rectly applied in many cases to contracts made by conmion car- 
 riers." In England the same result has been reached. ° A con- 
 tract of affreightment, made in one country between citizens or 
 residents thereof, and the performance of which begins there, 
 must be governed by the law of that country unless the parties, 
 when entering into the contract, clearly manifested a mutual in- 
 tention that it shall be governed by the law of some other coun- 
 
 ' Park&r v. Milwaukee & St. P. R. Co. 30 Wis. 689. 
 
 ' Wood V. Crocker, 18 Wis. 345, 86 Am. Dec. 773. See Moses v. Boston & M. 
 R. Co. 32 N. H. 523, 64 Am. Dec. 381. But, see also, Frances v. Dubuque 
 & S. C. E. Co. 25 Iowa, 60, 95 Am. Dec. 769. 
 
 »WardeU v. MourUli/an, 2 Esp. 693; Gatliffe v. Bourne, 4 Bing. N. C. 314-329; 
 Cope Y. Cordova, 1 Rawle, 203; Ostrander v. Brown, 15 Johns. 39; Gibson 
 V. Culver, 17 Wend. 305, 311, 31 Am. Dec. 297; Hyde v. Trent d M. Nav. 
 Co. 5 T. R. 889; Catley v. WintHngham, Peake, 150; Golden v. Manning, 3 
 Willes, 420. 
 
 'Story, Conf. L. ^ 242; Addison, Cont. § 195; Wharton. Conf. L. §§ 471 et 
 seq.; Miller V. Tiffany. 68 U. S. 1 Wall. 310, 17 L. ed. 543; Scudder v. 
 Union Nat. Bank, 91 U. S. 406, 23 L. ed. 245. 
 
 ^ Hazel V. Chicago. M. & St. P. R. Co. 82 Iowa, 477; Brown v. Camden & A. 
 R. Co. 83 Pa. 316; Brooke v. New York. L. E. & W. R. Co. 108 Pa. 529. 56 
 Am. Rep. 235; Fonseca v. Canard SS. Co. 12 L. R. A. 340. 153 Mass. 553; 
 Knowlton v. Erie R. Co. 19 Ohio St. 260, 2 Am. Rep. 395; Talhott v. Mer- 
 chants Despatch Transp. Co. 41 Iowa. 247, 20 Am. Rep. 589; Robinson v. 
 Merchants Despatch Transp. Co. 45 Iowa, 470; Hale v. New Jersey Steam 
 Nav. Co. 15 Conn. 539, 39 Am. Dec. 398; Pennsylvania Co. v. Fairchild, 69 
 III. 260; Gray v. Jackson. 51 N. H. 9, 12 Am. Rep. 1; Cantu v. Bennett, 89 
 Tex. 303; Ryan v. Missouri, E. <& T. R. Co. 65 Tex. 13, 57 Am. Rep. 589. 
 See also First Nat. Bank of Toledo v. Shaw, 61 N. Y. 283; McDaniel v. 
 Chicago & N. W. R. Co. 24 Iowa, 412. 
 
 '* Peninsular & 0. Steam Nav. Co. v. Shand, 11 Jiir. N. S. 771; Jacobs v. Credit 
 Lyannais. L. R. 12 Q. B. Div. 589, 53 L. J. Q. B. N. S. 156; Re Missouri 
 SS. Co. L. R. 42 Ch. Div. 321.
 
 894 DELIVERY OF GOODS. 
 
 try. The fact that the goods were to be delivered at Liverpool, 
 and the freight and primage were payable there in sterling cur- 
 rency does not make the contract an English 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. 
 Each of the bills of lading in such a case, is an American and not 
 an English contract, and so far as concerns the obligation to carry 
 the goods in safety, is to be governed by the American law, and 
 not by the law, municipal or maritime, of any other country. 
 That the vessel was stranded off the coast of Great Britain was 
 immaterial.' 
 
 It is generally agreed that the law of the place where the con- 
 tract is made is prima facie that which the parties intended, or 
 ought to be presumed to have ado^^ted as the footing upon which 
 they dealt, and that such law ought therefore to prevail in the 
 absence of circumstances indicating a different intention, as, for 
 instance, that the contract was to be entirely performed else- 
 where, or that the subject-matter is in movable property situated 
 in another country and so forth ; which latter, though sometimes 
 treated as distinct rules, appear more properly to be classed as 
 exceptions to the more general ones, by reason of the circum- 
 stances indicating an intention to be bound by a law different 
 from that of the place where the contract is made ; which inten- 
 tion is inferred from the subject-matter and from the surrounding 
 circumstances, so far as they are relevant to construe and deter- 
 mine the character of the contract.^ But, where the vessel and 
 her owners were English, and the bill of lading was made in the 
 English form and the goods were destined for Eno-land and the 
 contract was valid only under the English law, these facts were 
 held conclusive proof that the contracting parties had the Eng- 
 lish law in view, although the shipment was made from Boston.* 
 
 1 Liverpool & W. Steam Co. v. Phenixins. Co. {"The Montana") 129 U. S. 397, 
 
 32 L. ed. 788. 
 « Lloyd V. Ouihert, L. R. 1 Q. B. 123, 6 Best & S. 133; Canter v. Bennett, 39 
 
 Tex. 303; Talbott v. Merchants Bei^pateh Transp. Co. 41 Iowa, 247, 20 Am. 
 
 Rep. 589; Brooke -v. Neio York, L. E. & W.R. Co. 108 Pa. 529, 56 Am. 
 
 Rep. 235; Dyke v. Erie R. Co. 45 N. Y. 113, 6 Am. Rep. 43. 
 ^ Re Missouri SS. Co. L. R. 42 Ch, Div. 321. See sXso Browne. Camden & 
 
 A. R. Co. 83 Pa. 316.
 
 TIME AND MANNER OF DELIVERY. 895 
 
 A contract of carriage exempting the carrier from liability for 
 negligence, which is valid under the law of the state where it is 
 made, and is to be wholly performed, and in which the alleged 
 breach occurs, is enforceable in another state, although such a 
 contract would be invalid under the law of the latter.' 
 
 The Supreme Court of the United States follows the decisions 
 of the state courts only to a certain extent. "Where private rights 
 are determined by common law rules alone, that court does not 
 feel bound by the decisions of the state courts." Decisions in- 
 volving only general principles of equity, and not controlled by 
 local law or usage, are not binding on that court.' United States 
 courts are not controlled by decisions of state courts on questions 
 of general commercial law,* Upon a New York contract ex- 
 empting a carrier from liability for negligence, the circuit court 
 of the United States for the jSTew York district is not bound to 
 hold the exemption valid because of the decisions of the JS^ew 
 York courts.* 
 
 The Federal courts having, as is said in JSfeio YorTc Cent. R. 
 Co. V. Lockioood, 84 U. S. 17 Wall. 357, 21 L. ed. 627, and Bur- 
 gess V. Seligman, 107 U. S. 20, 27 L. ed. 359, "equal and co-or- 
 dinate jurisdiction with the courts of the state," their competence 
 to pass independently upon general questions of commercial law 
 may, upon this ground, with some show of reason, be sustained. 
 But the courts of other states have no such " equal and co-ordi- 
 nate jurisdiction." The obligation of comity as to the unwritten 
 law in the contract of carriers is upheld in Milwaukee da St. P. 
 R. Co. V. Smith., 74 111. 197. But the court of another state, 
 where an action is pending, may adhere to its own rules and dis- 
 regard the decisions of the state which overrule a great principle. 
 The decisions of a state court should not be followed to such an 
 
 ^Forepaugh v. Delaware, L. & W. R. Co. 5 L. R. A. 50S, 128 Pa. 217. 
 
 ^Chicago v. Bobbins, 67 U. S. 2 Black, 418, 17 L. ed. 298. 
 
 ^Eussell V. Southard, 53 U. S. 12 How. 139, 13 L. ed. 937; Neves v. Scott 54 
 
 U. S. 13 How. 268, 14 L. ed. 140. 
 * Swift V. Tyson, 41 U. S. 16 Pet. 1, 10 L. ed. 865; Oates v. First Nat. Bank 
 
 of Montgomery, 100 U. S. 239, 25 L. ed. 580; Brooklyn City & N. R. Co. v. 
 
 National Bank of the Republic, 102 U. S. 14, 26 L. ed. 61. 
 *New York Cent. R. Co. v. Lockmod, 84 U. S. 17 Wall. 357, 21 L. ed. .627.
 
 ,896 DELIVERY OF GOODS. 
 
 •extent as to make a sacrifice of truth, justice and law.' ^o state 
 will enforce a contract injurious to good morals or public safety.' 
 In an action for loss of baggage delivered at Scranton, Pa., to 
 be transported to New York City, the New York court held that 
 the contract was not controlled by a statute of Pennsylvania limit- 
 ing and defining the liability of railroad corporations for bag- 
 gage ; but that the rights of the parties were to be determined by 
 the laws of the state where the deUvery was to be made.' 
 
 %136. Belive'ry bo Proper Person— Bill of Lading 
 —Draft. See ante §§ 25, 29-31. 
 
 The responsibility of a common carrier continues till there has 
 heen a due delivery by him or a discharge of himself from the 
 custody of the goods in his character as common carrier." The 
 consignee named in a bill of lading is the presumptive owner of 
 the goods, and must be treated by the carrier as absolute owner 
 until notice to the contrary ; and delivery to him without such 
 notice will dischai-ge the carrier.' The carrier should ascertain 
 whether a bill of lading was delivered to the shipper, and if so, 
 he should retain the property until demanded by one claiming 
 under that title.' 
 
 Where a statute forbids a common carrier to deliver goods 
 transported, unless the bill of lading thereof is delivered up and 
 canceled, — a delivery to the consignee will not protect the carrier 
 from the demand made for the goods, by one to whom the bills 
 
 1 FauUcner v. Hart, 82 N. Y. 416, 37 Am. Rep. 574; Gelpcke v. Dubuque, 68 
 U. S. 1 Wall. 175, 205, 17 L. ed. 520, 525; Olcott v. Fond du Lac County 
 Suprs. 83 U. S. 16 Wall. 678, 21 L. ed. 383. 
 
 « Wharton, Conf. L. p. 388, § 490; Story, Conf. L. p. 371, § 244; Bank of 
 Augusta v. Earle, 38 U. S. 13 Pet. 519, 10 L. ed. 274; Hope v. Hope, 8 DeG., 
 M. & G. 731; RousUlon v. Rousillon, L. R. 14 Ch. Div. 351; Oscanyan v. 
 Wincheder Repeating Arms Co. 103 U. S. 276, 26 L. ed. 545; Flagg Y.Bald- 
 win, 38 N. J. Eq. 319, 48 Am. Rep. 308. 
 
 ^Curtis V. Delaware, L. & W. R. Co. 74 N. T. 116, 30 Am. Rep. 271. 
 
 ■• Gnrside v. Trent & M. Nav. Proprs. 4 T. R. 581; Hyde v. Trent & M. Nav. 
 Co. 5 T. R. 389. 
 
 ^Hartwell v. Louisville & N. R. Co. 15 Ky. L. Rep. 778. 
 
 ^ Fur man v. Union Fac. R. Co. 106 N. Y. 579; City Bank v. Rome. W. & 0. R. 
 Co. 44 N. Y. 136; Howard v. Shepherd, 9 C. B. 296; Ti7idal v. Taylor. 4 El. 
 & Bl. 319; First Mat. Bank of Feoria v. Northern R. Co. 58 N. H. 303.
 
 DELIVERY TO PROPER PERSON BILL OF LADING. 897 
 
 of lading have been assigned and who produces them.* But unless 
 authorized by statute, a railway company cannot, as a condition 
 precedent to the delivery of freight to the consignee and owner, 
 exact from him a delivery to it of the bill of lading ; nor can it 
 require him to give an indemnity bond upon his failure or refusal 
 to surrender up the bill of lading." Guaranty executed to a car- 
 rier by consignees or third parties, which might be construed to 
 enable the carrier, in consideration of freight delivery before 
 settlement of transportation charges, to exact for services rendered 
 in moving and delivering the freight whatever it chooses to 
 demand, cannot be used by the carrier to force payment of charges 
 in excess of those it would be entitled to collect or receive if pre- 
 vious freight delivery had not been made.' A railroad company 
 with knowledge of the fact, is not exempt from liability for dam- 
 ages for failure to deliver freight, for the reason that the freight 
 is to be used for an illegal purpose at the point of destination, 
 unless that illegal purpose was the consideration of the contract." 
 Where the information which the earlier procured as to the 
 consignee was of a doubtful nature, so far as the transfer sheet to 
 it was concerned, it Avas a negligent act of the carrier to deliver 
 the goods to persons named in the transfer sheet, who did not 
 plainly appear to be the consignees. A direction in a bill of lad- 
 ing to notify certain persons, is notice that they are not con- 
 signees, and does not qualify the carrier's duty to deliver to the 
 consignee.^ Where no one is named as consignee in a bill of lad- 
 ing, no delivery should be made to any one who does not produce 
 it.* The fact that an indorser of a bill of lading was unknown 
 does not excuse a misdelivery.' A carrier which, in violation of 
 a notification by the consignor — to whom it delivered the bill of 
 
 ' Colgate v. Pennsylvania Co. 102 N. Y. 120. 
 
 2 Qulf, C. & 8. F. R. Co. V. McCown (Tex. Civ. App.) 25 S. W. 435, but see 
 
 same case, 26 S. W. 745. 
 
 3 Phelps V. Texas & P. R. Go. 4 Inters. Com. Rep. 363. 
 
 * Waters v. Richmond & D. R. Co. 16 L. R. A. 834, 110 N. C. 338. 
 
 * Furman v. Union Pac. R. Co. 106 N. Y. 579 ; North Pennsylvania R. Co. v. 
 
 Commercial Nat. Bank, 123 U. S. 727, 31 L. ed. 287. 
 « Furman v. Union Pac. R. Co. supra. 
 •> The Tltomes v. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804, 7 Blatchf. 326, 
 
 3 Ben. 279. 
 
 57
 
 898 DELIVERY OF GOODS. 
 
 lading of goods shipped — not to deliver the goods to the 
 consignees except npon production of the bill of lading and pay- 
 ment of the draft drawn upon them by the consignor, delivers the 
 goods to the consignees without production of the bill of lading 
 and before pa3Mnent of the draft, is liable to the consignor.' 
 Where a bill of lading is attached to a draft upon the consignee, 
 the carrier who delivers the goods while in transitu to the shipper 
 is liable to the consignee who has duly taken up the draft." An 
 indorsement by the shipper of receipts taken on shipment of 
 cattle, will give the indorsee the right to their possession, and if 
 necessary, to sell them for payment of drafts taken by him against 
 the shipper, and the custom of the company of delivering the 
 cattle, without requiring the production of the bill of lading or 
 authority of the shipper, does not relieve it from liability for cattle 
 wrongfully delivered.' 
 
 If a carrier gives a bill of lading which makes the goods 
 deliverable upon the order of the consignor, delivers them without 
 production of the bill, it does so at its peril. A secret agreement 
 between the consignor and consignee that the goods are to be 
 delivered by the carrier without the production of the bills of 
 lading, by which goods are deliverable upon the order of the con- 
 signor, is fraudulent as to one discounting drafts against the 
 consignment, and void.* The filing of a note or other contract 
 evidencing a conditional sale, as provided- by Minn. Gen. Stat, 
 1878, chap. 39, § 15, does not constitute notice to a carrier to 
 whom it is delivered for a consignee, that title to the property is 
 retained by the consignor ; and it may settle with the consignee 
 for loss or destruction of the property, relying upon the legal 
 presumption that title vests in the consignee upon delivery to the 
 carrier.* A carrier may be justified in delivering goods to a 
 person named by the consignor's agent as well as by the consignee, 
 although orders bad previously been given by the consignor not 
 
 ' HartweU v. Louisville & N. R. Co. 15 Ky. L. Rep. 778. 
 
 » Wells, Fargo <& Co. v. Oregon B. & JSTnv. Co. 32 Fed. Rep. 51. 
 
 ^ North Pennsylvania R. Co. v. Commercial Nat Bank, 123 U. S. 727, 31 L. 
 
 ed. 287. 
 " ChesUr Nat. Bank v. Atlanta & C. A. L. R. Co. 25 S. C. 216. 
 '■' Dyer v. Great Northern R. Co. 51 Minn. 345.
 
 DELIYEEY TO PROPER PERSON BILL OF LADING. 899 
 
 to deliver to anyone except the agent, where the reason for such 
 orders was a dispute as to the hability of the consignee in whose 
 name the goods were shipped to another person.' 
 
 A delivered to a railroad company at a station on its road a 
 quantity of flour owned by him, which was there placed on the 
 cars of said company, to be shipped to B at another station on said 
 road, in pursuance of a contract between A and B for the sale of 
 said flour by the former to the latter, to be so delivered at cars at 
 said former station, and to be paid for on receipt of the bills of 
 lading. At the time of the delivery B was insolvent, and A 
 received from the station agent of said company, authorized to 
 receive and forward freights and furnished with blank bills of 
 lading at the station where the flour was so delivered, a bill of 
 lading, containing, besides the usual clauses, a provision, inserted 
 at the request of A that said flour should be delivered to B upon 
 the presentation of a duplicate of said bill of lading, and received 
 also a second bill of lading in usual form marked " duplicate " 
 across the face thereof, in which the clause in relation to presen- 
 tation of duplicate was omitted by mistake of the agent. A made 
 his draft on B for the pui-chase money of the flour, and attached 
 said duplicate thereto, and negotiated said draft to C, who, in good 
 faith, paid value therefor, knowing the form, character and con- 
 tents of said original bill of lading, which was then indorsed and 
 delivered by A to C as collateral security for the payment of said 
 draft ; and C deposited said draft, with said duplicate attached, at 
 the bank at which it was made payable, and the cashier of said 
 bank presented the same to B before the delivery of the flour to 
 him, who failed and refused to pay said draft or any part of it, 
 but accepted it by indorsement across the face thereof ; and, three 
 days of grace having been granted, said draft was protested for 
 nonpayment, and the next day C produced said original bill of 
 lading and said duplicate at the ofiice of the said railroad com- 
 pany, at the station to which said flour was to be shipped as 
 aforesaid, and demanded said flour thereon ; but said company 
 failed and refused to deliver the flour, having delivered it to B 
 who was insolvent, and so continued to be, and now had shipped 
 
 • Brasher v. Denzer & R. G. R. Co. 12 Colo. 384.
 
 900 DELIVERY OF GOODS. 
 
 the flour out of the state. It was here held that the raih-oad 
 company was liable to C for the loss occasioned him by the 
 delivery of the flour to B.' 
 
 In a late case ^ the facts were that one Evans, ordered of a can- 
 ning company certain goods. Not being acquainted with Evans, 
 and not wishing to sell the goods on credit, it delivered them 
 marked and consigned to itself at Pueblo, to a railway company at 
 Elgin, Iowa. From that company the canning company took two 
 receipts or bills of lading which were in fact duplicates, but 
 neither showed that another had been issued. The canning com- 
 pany drew a draft on Evans, through a bank in Pueblo, for the 
 price of the goods, and sent to the bank an order on defendant to 
 deliver the goods to Evans. The draft and order were sent to- 
 gether to the bank with instructions to deliver the order to Ev^ ans 
 upon payment by him of the draft. At the same time the can- 
 ning company sent to Evans one of the bills of lading, instructing 
 him that the goods had been shipped, and that he was to pay the 
 draft and obtain the order. The bill of lading sent to Evans was 
 not signed or indorsed by the canning company. In due time the 
 goods were transferred by the railway company which first re- 
 ceived them, to defendant, and were by it transferred to Pueblo. 
 Evans never paid the draft or obtained the order, but within 
 twenty-four hours after the arrival of the goods in Pueblo he pre- 
 sented the bill of lading which he had received, to defendant, and 
 without other authority obtained the goods. At that time Evans 
 was insolvent, but defendant had no knowledge of that fact, nor 
 that the goods had not been paid for, nor that a draft and order 
 had been sent or instructions given in regard to the goods, but 
 delivered them in good faith. The canning company commenced 
 an action to recover of the carrier the value of the goods in ques- 
 tion. 
 
 The carrier in its defense insists that it was not in fault in de- 
 livering the goods to Evans for the reason that the delivery to him 
 of the bill of lading was in effect an assignment of the goods and 
 invested him with a right to demand and receive them. It refers 
 
 ' McEwen v. Jeffersonville & I. R. Co. 23 Ind. 368, 5 Am. Rep. 216. 
 « Weyand v. Atchison, T. & 8. F. R. Co. 1 L. R. A. 650, 75 Iowa, 573.
 
 DELIVERY TO PROPER PERSON BILL OF LADING. DOl 
 
 to a case in New York.' x\n examination of that case and of the 
 cases therein cited will show that what the court really decided 
 was that a delivery of the forwarder's receipt without assignment, 
 but with intent that the title to the goods for which it was given 
 or an interest therein should be thereby transferred, would be 
 effectual to accomplish the transfer intended. Other authorities 
 are to the same effect. In this case it was the intention of the 
 canning company to retain the title and right of possession in it- 
 self until the price of the goods should be paid. The +)ill of lad- 
 ing required the delivery of the goods to the consignor. It did 
 not provide for delivery to bearer or order, but to the Elgin Can- 
 ning Company. Therefore it is clear that the forwarding of the 
 bill of lading to Evans with directions to pay the draft and obtain 
 the order for the goods did not invest him with any right to the 
 goods as against the consignor. But it is said that defendant was 
 justified in delivering the goods to Evans because of his possession 
 of the bill of lading.' It is true that statements were made in 
 some, if not all, of those cases which, considered apart from the 
 connection in which they are fo\ind, might seem to sustain the 
 claim ; but when they are considered in connection with the facts 
 of the cases wdiere found, and the general conclusions of the court 
 which made them, it appears they go no further than to hold that 
 the delivery of an unindorsed bill of lading would be a good sym- 
 bolical delivery of the goods it represented, where such was the 
 intent and purpose of the parties. 
 
 In Fearon v. Bowers^ reported in 1 Smith, Lead. Cas. *864, 
 a well considered case, the consignor had sent two bills of lading, 
 one of which was indorsed to one person and the other to another, 
 and the court held that a delivery might be made to the holder 
 of either bill. That case has but little relation to the principle 
 involved in this. The carrier insists that the bill of lading is like 
 a promissory note, in that possession is prima facie evidence of 
 ownership ; but it does not seem that such is the ease. A bill of 
 
 > MereMUs Bank of Canada v. Union B. & Transp. Co. 69 N. Y. 374. 
 
 'The cases of Lickbarrow v. Mason, 1 Smith, Lead. Cas. *848, with annota- 
 tions; Dows V, Greene, 24 N. Y. 638; Allen v. Williams, 12 Pick. 297, and 
 others, are cited in support of this claim.
 
 902 DELIVERY OF GOODS. 
 
 lading is a non-negotiable instrument,' The following language 
 is pertinent : " Bills of lading are regarded as so much cotton, 
 grain, iron, or other articles of merchandise. . . . They are 
 in commerce a very different thing from bills of exchange and 
 promissory notes, answering a different purpose and performing a 
 difftrjiit function." Also: "It is not a representative of money, 
 used for transmission of money or for the payment of debts or 
 for purchases. It does not pass from hand to hand, as bank notes 
 or coin. It is a contract for the performance of a certain duty. 
 True, it is a symbol of ownership of the goods covered by it — a 
 representative of those goods ; but if the goods themselves be lost 
 or stolen, no sale of them by the finder or thief, though to a bona 
 fide purchaser for value, will divest the ownership of the person 
 who lost them, or from whom they were stolen," ^ 
 
 In 2 Parsons on Contracts, 292, it is said : " The consignor fre- 
 quently sends to a consignee a bill not indorsed, and then sends 
 to his own agent in or within reach of the same port an indorsed 
 bill — it may be indorsed in blank, or to the agent, or to the part}- 
 ordering the goods — and the consignor sends to his agent with 
 the bill orders to deliver the bill to the party ordering the goods, 
 or to receive the goods and deliver them to him, provided pay- 
 ment be made or secured, or such other terms as the consignor 
 prescribes are complied with. This course secures to the con- 
 signor, beyond all question, the right and power of retaining the 
 goods until the ])rice for them is paid or secured to him." 
 
 This is not only in point, but seems to be sound in principle. 
 The fact that Evans presented the bill of lading in this case was 
 not suflicient to overcome the presumption which the terms of the 
 bill raised, that the consignee was the owner of the goods. That 
 such is the presumption is well established.' The contract with 
 the canning company required the defendant to deliver the goods 
 
 * Garden Grove Bank v. Humeston & 8. E. Co. 67 Iowa, 534. 
 •^ Shaw V. Merchants Nat. Bank, 101 U. S. 557, 25 L. ed. 892. 
 3 Congar v. Galena & C. U. R. Co. 17 Wis. 485; Erulder v. EUison, 47 N. Y. 
 
 37, 7 Am. Rep. 402; Lawrence v. Minturn, 58 U. S. 17 How. 100, 15 L. ed. 
 
 58; Alderman v. Eastern R. Co. 115 Mass. 234. See also Tuttle v. Becker, 
 
 47 Iowa, 486; 1 Beni. Sales, §§ 577, 579 ; 2 Am. & Ens. Enc. Law, 
 
 242. 243.
 
 DELIVEKY TO PROPER PERSON- — BILL OF LADING. 903 
 
 to the consignor. The unindorsed bill of lading presented bj 
 EA^ans was evidence that the contract was still in force, and that 
 the canning company was then the owner of the goods. The de- 
 livery to Evans was not authorized, and was made by defendant 
 at its own risk. But it is said that the canning company clothed 
 Evans with the apparent right to demand the goods, and that 
 since " one of two innocent parties must suffer a loss from the 
 wrong of another, the loss should fall upon the party who put it 
 in the power of that other to perpetrate the wrong." This case 
 does not fall within that rule, for as we have seen, the possession 
 of the bill of lading, without indorsement or other evidence of as- 
 signment, did not vest Evans with any apparent right to the prop- 
 erty. The loss resulted from the negligence of defendant in not 
 insisting upon proper evidence of an assignment before it surren- 
 dered the goods. 
 
 It is insisted by the carrier that the delivery to Evans was made 
 in accordance with the custom at Pueblo, and that the contract of 
 shipment must have been made with reference to that custom- 
 The superior court found that by a local custom at Pueblo goods 
 shipped over railway lines to that place were delivered to the per- 
 sons who held the bills of lading, but that the custom was not 
 general, and plaintiff had no knowledge of it. The contract of 
 shipment required defendant to deliver the goods to the canning 
 company ; and we question the right of defendant to vary this by 
 showing a custom in conflict with it. The contract was not am- 
 biguous, and required no explanation. But where a custom may 
 be shown it must appear that it was so general that the parties to 
 the contract will be presumed to have contracted with reference 
 to it.' 
 
 Thus a custom at the place of consignment, to deliver goods 
 consigned to the purchaser directly, without the bill of lading 
 being shown, will relieve the carrier, although a draft was at- 
 tached to the bill of lading, if held by a resident of the place of 
 delivery.* The court not only found that the custom pleaded 
 
 > Couch V. Watson Coal Co. 46 Iowa, 20; Berkshire Woolen Co. v. Proctor, 7 
 Cush. 422; Fay v. Alliance Ins. Co. 16 Gray, 461; Wilson v. Bauman, 80 
 111. 494; 2 Greenl. Ev. § 251. 
 
 * Forbes v. Boston <& L. R. Co. 133 Mass. 154.
 
 904 DELIVERY OF GOODS. 
 
 was local, but that plaintiff had no knowledge of it' How the 
 knowledge of plaintiff would affect the contract does not appear ; 
 but knowledge on the part of the canning company when the 
 shipping receipt was taken is not pleaded nor is it shown. There- 
 fore this defense is not maintained.'* Where one, personally act- 
 ing as master and believed to be such by the consignor, signs a 
 bill of lading which the consignor indorsed and sent to the con- 
 signee, and procured a policy of insurance on the goods payable 
 to the consignee, this fact will warrant a finding of delivery to 
 the consignee, who has made advances on the goods, — although 
 the bill of lading was in fact signed by one who had no author- 
 ity." 
 
 % 137. JVotice to Consignee of Arrival of Goods. 
 
 A carrier is only bound to deliver goods at its usual freight 
 depot, not at consignee's place of business, and is not always held 
 bound to notify consignee.* No notice to a consigneee of the 
 arrival of goods is necessary, to relieve the carrier from liability 
 except as warehouseman, after a reasonable time in some courts.* 
 
 In other courts, it has been held that while generally, it is the 
 duty of the carrier to give notice of the arrival of goods, to the 
 consignee, yet the uniform usage or custom to leave them at a 
 particular place of deposit, where the carrier is accustomed to 
 stop at the risk of the owner of the goods, without giving him 
 any notice, will exonerate the carrier." In New York and some 
 other states, the rule requires that the carrier should ascertain 
 whether a bill of lading was delivered to the shipper, and if so, 
 should retain the property till demanded by one claiming under 
 that title. It is the duty of the carrier to notify the consignee of 
 
 I Weyand v. Atchison, T. & 8. F. B. Co. 1 L.R. A. 650, 75 Iowa, 573. 
 
 » Walls V. Bailey, 49 N. Y. 473, 10 Am. Rep. 407; Biggins v. Moore, 34 N. Y 
 425; North Pennsylvania B. Go. v. (Joinmercial Nat. Bank, 133 U. S. 727, 
 31 L. ed. 287; Clarke's Browne, Usages & Customs, 134, note 4. 
 
 ^Prince v. Boston <& L. B. Co. 101 Mass. 542, 100 Am. Dec. 129. 
 
 ^ Buddy V. Wabash, St. L. & P. B. Co. 20 Mo. App. 206. 
 
 » Columbus & W. B. Co. v. Ludden, 89 Ala. 612, 42 Am. & Eng. R. Cas. 404. 
 
 « Qatliffe v. Bourne. 4 Bing. N. C. 314; Gibson v. Culver, 17 Wend. 305, 31 
 Am. Dec. 297.
 
 NOTICE TO CONSIGNEE OF ARRIVAL OF GOODS. 905 
 
 the arrival of the goods.' A carrier is not only liable while prop- 
 erty may be in the course of its transit or carriage, but it con- 
 tinues liable for such a reasonable period of time as will enable 
 the consignee after notice of the arrival of the goods, with rea- 
 sonable diligence to effect their removal." A carrier's liability in 
 Ohio courts continues in the absence of any statutory provision 
 on the subject, after the goods have reached their destination 
 until the consignee has been notified of their arrival and has had 
 reasonable time to remove them.' The liabiHty of a common 
 carrier of freight as such ceases in Illinois upon the arrival of the 
 cars at tlie place of destination, and the notification of the con- 
 signee of their arrival, in accordance with instructions given to 
 such carrier.'' 
 
 Wliere, upon the arrival of goods, they are placed upon the 
 depot platform — tlie usual place of delivery — and the consignee 
 is notified of their arrival and pays the freight, the liability of 
 the company as a carrier is at an end.* A railroad company 
 which deposits a carload of wheat at a place where it has been 
 agreed between it and the consignees all carload consignments 
 shall be placed, and notifies the consignees of its arrival and that 
 it has been so placed, is exonerated from its liability as a common 
 carrier for its destruction by fire without negligence on its part, 
 whether the place where the wheat was left was reasonably safe 
 or not." The consignee of goods shipped by a carrier is entitled 
 to a reasonable time within usual business hours to inspect the 
 goods to ascertain whether they correspond with the invoice, and 
 to receive and remove them ; and during that time the carrier's 
 liability remains undischarged.' Notice of the arrival of goods, 
 given by the carrier to the consignee after dark, during one of 
 the winter months, will not require him to call for them before 
 business hours on the following day.' Failure of a common car- 
 
 ' Furman v. Union Pae. B. Co. 106 N. Y. 579. 
 
 ^Dunham v. Boston & A. E. Co. 46 Hun, 245. 
 
 » Lake Erie & W. R. Co. v. Hatch, 6 Ohio C. C. 230. 
 
 * Qregg v. Illinois Cent. R. Co. 147 111. 550, affirming 47 111. App. 590. 
 
 « New AlSany & S. R. Co. v. Campbell, 12 Ind. 55. 
 
 ^Pindell v. St. Louis & H. B. Co. 41 Mo. App. 84. 
 
 "> McNeal v. Braun, 53 N. J. L. 617. 
 
 ^Lake Eriedt W. R. Co. v. Eatc7i, 6 Ohio C. C. 230.
 
 906 DELIVERY OF GOODS. 
 
 rier to notify the consignor of the faihire of the consignee to take 
 goods sent him does not render the carrier liable for any damages 
 resulting therefrom, where the consignor knows of such failure 
 and makes other arrangements with the consignee.' Where the 
 carrier undertakes to hold goods until called for, his liability as a 
 carrier will continue for a reasonable time under his liability as 
 carrier, after which he will only be held as a warehouseman." 
 
 § 138. Collections hy Carrier— Sale of Goods. See 
 ante, §§ la and 32. 
 
 Where a master is employed in the river transportation busi- 
 ness and by usage it becomes his dutj'^ to sell, as well as to carry 
 the money received from the sale ; such proceeds, while in the 
 possession of the carrier, subject him to the same lial)ility as a 
 common carrier of goods.^ The carrier may also take upon itself 
 the duty of collecting the price of the goods — in which case it 
 assumes to act as agent of the shipper, and is bound under the 
 law of agency.* A reasonable time must be permitted for in- 
 spection of the goods, and if the carrier is to collect their cost a 
 reasonable time must be allowed for the purchaser to obtain the 
 money, and a refusal of such time for such declared purpose, may 
 render the carrier liable. And it has been held that even for 
 freight charges while the carrier may relieve himself of his res- 
 ponsibility as carrier, by a demand and tender, he must hold them 
 a reasonable time, upon request, as warehouseman.^ 
 
 A carrier's contract to collect the money on goods shipped, be- 
 fore delivering to the consignee, is not broken, in tlie absence of 
 express prohibition, by allowing the consignee to inspect the 
 
 > Gregg v. Illinois Cent. R. Co. 147 111. 550, affirming 47 111. App. 590. 
 
 2 Cliajman v. QieatWestern B. Co. 42 L. T. N. S. 252; Bickford v. Metropoli- 
 tan SS. Co. 109 Mass. 151. 
 
 ^ Kemp V. Coughtry, 11 Johns. 107. 
 
 * Meyer Y.Lemcke, 31 Ind. 208; Old Colong R. Co. v. Wilder, 137 Mass. 536; 
 Murray y. Warner, 55 N. H. 546, 20 Am. Rep. 227; Union R. & Transp. 
 Co. V. Riegel, 73 Pa. 72; American Exp. Co. v. Lesem, 39 111. 812; Gi-eat 
 Western R. Co. v. Crouch,'^ Hurlst. & N. 183. 
 
 ^ Great Western R. Co. v. Crouch, supra; Herrickv. Gallaglier, 60 Barb. 566; 
 Lyons v. Hill, 46 N. H. 49; Marshall v. American Exp. Co. 7 Wis. 1, 73 
 Am. Dec. 381.
 
 DELIVERY TO WKONG PERSON — CONVERSION. 907 
 
 goods before acceptance ; and the consignee's refusal upon inspec. 
 tion to accept goods, will not render the carrier liable to the 
 shipper.' To an action against a carrier for delivery, without 
 payment of the price, of goods alleged to have been deliverable, 
 by the bills of lading, to the order of plaintiff, who indorsed and 
 delivered the bills to the carrier, with the agreement that upon 
 payment of the price they were to be delivered to a third person, 
 — it is a good defense that the agreement was made with the car- 
 rier's agent, and that he acted beyond his authority and as plain- 
 tiff's agent in delivering the goods, and not as the carrier's agent.^ 
 
 § 139. Delivery to Wrong Person— Conversion. 
 
 A carrier delivering the goods to other than the holder of the 
 bill of lading, is defenseless/ By issuing bills of lading stipulat- 
 ing for a delivery to order, a carrier becomes bound to deliver the 
 goods to no one who has not the order of the shipper, and it is 
 not excused for the delivery to the wrong person, by the plea 
 that the indorsee of the bills of lading was unknown and that the 
 notice of the arrival of the goods could not be given. Diligent 
 inquiry for the consignee, at least, is a duty. Want of notice is 
 excused when the consignee is unknown or is absent, or cannot 
 be found after diligent search. And, if after inquiry, the consig- 
 nee or indorsee of the bill of lading for delivery to order, cannot 
 be found, the duty of the carrier is to retain the goods until they 
 are claimed, or to store them prudently for and on account of, 
 their owner. He may thus relieve liimself of the carrier's respon- 
 sibility, lie has no right under any circumstances to deliver to 
 a stranger." A carrier is not justified in making delivery of a 
 shipment except in accordance with the bill of lading.* 
 
 A conversion is an unauthorized assumption and exercise of the 
 right of ownership over goods or personal chattels belonging to 
 
 ' Aaron v. Adams Exp. Co. 27 Ohio L. J. 183. 
 
 » Cox V. Columbus & W. R. Co. 91 Ala. 392. 
 
 ^Dows V. National Exch. Bank, 91 U. S. 618, 23 L. ed. 214; Farmers & M. 
 
 Nat. B^nk v. Logan, 74 N. Y. 568. 
 * The Thames v. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804; N<yrth Pennsyl- 
 
 mnia R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 31 L. ed. 287. 
 ^Pennsylvania R. Co. v. Stern, 119 Pa. 24.
 
 908 DELIVERY OF GOODS. 
 
 another to tlie alteration of their condition or the exclusion of 
 the owner's rights.' A carrier who receives goods to deliver to a 
 person designated by the shipper becomes liable as for a conver- 
 sion the moment he makes an unauthorized delivery to another 
 than the person designated; and upon his admitting such misde- 
 livery, but insisting that it is rightful, no demand is necessary 
 before suit brought.'' The risk of a wrong delivery rests upon 
 the carrier,' nor can it excuse itself from liability for a wrongful 
 delivery of goods on the ground that such delivery was made 
 through a mistake.* A carrier which delivers to a shipper goods 
 of which the bill of lading has been transferred to a bona fide 
 holder by the consignee, to whom it was delivered by the ship- 
 per, is liable to the holder for a conversion of the goods." 
 
 A common carrier is liable, in an action of trover, for the value 
 of goods delivered to a person other than the one descril)ed in the 
 bill of lading, upon his presentation of it without indorsement^ 
 notwithstanding the existence of a custom to deliver goods to 
 anyone in possession of the bill of lading." A consignor of goods 
 may recover their value less freight and storage, from a carrier 
 which, upon the refusal of the consignee to accept them, has sold 
 them at private sale without notice to either consignor or con- 
 signee, although the latter authorized the sale.'' A wrongful 
 delivery of goods by the carrier is treated at common law as a 
 conversion of the property." A carrier is liable in trover for 
 goods delivered to the consignee in violation of instructions from 
 the shipper not to deliver them without a bill of lading." It is a 
 conversion, rendering the carrier liable for the goods where it 
 delivers them to the wrong person, and fails to deliver to the 
 
 • Stickney v. Munroe, 44 Me. 197; Oilman v. Hill, 36 N. H. 311. 
 « Fulton V. Lydecker, 41 N". Y. S. R. 457. 
 
 3 Wernwag v. Philadelphia, W. & B. B. Co. 117 Pa. 46. 
 
 * Clement v. ]\^ew York Cent. & H. R. R. Co. 80 N. Y. S. R. 713. 
 ''Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195. 
 
 ^ Loimville & N. R. Co. v, Barkhouse, 100 Ala, 548. 
 
 ' Cottingham v. Orand Trunk R. Go. 7 Mont. L. Rep. (Super. Ct.) 385. 
 
 ^Devereux v. Barclay, 2 Barn. & Aid. 702; Stephens v. Mwall, 4 Maule & S. 
 
 259; Buffv. Budd, 3 Biod. & B. 177; Youl v. Harbottle, Peake, 68. 
 » Foggan v. Lake SJiore & M. S. B. Co. 40 N. Y. S. R. 718.
 
 DELIVEKY TO WKONG PEKSON CONVEKSION. 909 
 
 owner on demand.' A carrier is guilty of conversion where it 
 negligently delivers goods to a person not entitled to them," and 
 thereafter contracts with him to sell them and hold the proceeds 
 for its account.' 
 
 No subsequent actual " delivery " will relieve from liability for 
 delivering goods to a person not then entitled to them/ But it has 
 been held that if the property came lawfully into defendant's 
 possession, and the conversion was only technical, and the prop- 
 erty is in the same condition, the plaintiff will be compelled to 
 take it back in mitigation of damages/ 
 
 A carrier desiring to limit its responsibility on bills of lading 
 to a delivery to the named consignee alone, must stamp its bills 
 •* non-negotiable." ' JNo demand is necessary before suit against 
 a carrier for failure to deliver freight, where it has already deliv- 
 ered it to one not entitled thereto.' If there has been a conver- 
 sion of them by the carrier, and the consignee has not thereafter 
 accepted them, he is entitled to recover the value of the goods at 
 the time they should have been delivered to him. Such demand 
 and refusal may aiford satisfactory evidence of a conversion, but 
 is not the only evidence by which it may be proven. Any 
 wrono-f ul exercise of dominion over chattels to the exclusion of 
 the rights of the owner, or withholding of them from his posses- 
 sion under a claim inconsistent with his rights, constitutes a con- 
 version.* If, through the carrier's negligence, after goods have 
 been stored they are delivered to the wrong person, the carrier 
 will be liable to the owner, as for the conversion of the goods.' 
 
 Where the consignor ships goods to himself and the invoice shows 
 they were to be delivered only upon the production of the bill of 
 
 ' Furman v. Union Pac. R. Co. 106 N. Y. 579. 
 
 « Viiier V. Weto York, A. O. & W. SS. Co. 50 N. Y. 24. 
 
 'Bj'ie Dispatch v. Johnson, 87 Tenn. 490. 
 
 * Nickey v. St. Louis, I. M. & 8. B. Co. 35 Mo. App. 79. 
 
 ^ Early. Holder ness, 4 Bing. 462; Churchill y. Welsh, 47 Wis. 39; Bucklin v. 
 Beats, 38 Vt. 653; Rutland & W. R. Co. v. Bank of Middlebury, 83 Vl. 639; 
 Tracey v. Good, 1 Pa. L. J. 472; Cook v. Loomis, 26 Conn. 483. 
 
 •^Bank of Batavia v. New York, L. E. & W. R. Co. 106 N. Y. 195. 
 
 ■> Missouri^Pac. R Co. v. Heidenheimer , 82 Tex. 195. 
 
 « Baltimore & 0. R. Co. v. O'Donnell. 49 Ohio St. 489. 
 
 * Merchants Despatch & T. Co. v. Merriam, 111 Ind. 5.
 
 910 DELIVERY OF GOODS. 
 
 lading, the carrier is liable for delivei'ing them to a third party 
 (the holder of the invoice) without compliance with the terms.' 
 That tlie carrier had, on prior occasions, delivered the goods to 
 such third person without the production of the bill of lading, of 
 which fact the shipper had no knowledge, will not relieve it from 
 such liability.* Where parties made a contract in their own 
 names with a carrier for the delivery of goods to themselves, any 
 delivery by the carrier to a purchaser, before the shippers have 
 parted with the right of possession, is at the carrier's own risk ; 
 and it does not devolve upon the cari'ier to decide whether by 
 the contract of purchase the purchaser was entitled to the deliv- 
 ery, or not.' The carrier must deliver to the actual party desig- 
 nated by the terms of shipment, or to his order at the place of 
 destination ; and where it delivers them to one not entitled to 
 receive them it is accountable." One who receives goods from a 
 person in actual wrongful possession and restores the goods to 
 such person is not liable to the owner for conversion," even 
 though the goods were received from and restored to the wrong- 
 ful possession with notice of the claim of the true owner." A 
 carrier is not guilty of conversion where he in good faith takes 
 goods from the possession of the owner, by direction of another 
 having the apparent control of the goods, and the present capac- 
 ity of investing himself with actual possession, and delivers them 
 to such other person in another place. 
 
 The defendant, Armstead, who was a job teamster, removed 
 the goods alleged to have been by him converted, from a room in 
 Whittier's house to the store of one Davis, and there delivered 
 them to Whittier, by whose direction he had acted. Although 
 
 ' Furman v. Union Pac. B. Co. 106 N. Y. 579; North Pennsylvania R. Co. v. 
 
 Commercial Nat. Bank, 133 U. S. 727, 31 L. ed. 287. 
 ^ Pennsyluania B. Co. v. Sterii, 119 Pa. 24. 
 8 Wo'fe V. Missouri Pac. B. Co. 8 L. R. A. 539, 97 Mo. 473. 
 * North Pennsylvania B. Co. v. Commercial Nat. Bank, 123 U. S. 727, 31 L. ed. 
 
 287. 
 
 ' Strickland V. Barrett, 20 Pick. 415; Leonard v. Tidd, 3 Met. 6; National Mer- 
 cantile Bank v. Rymill, 44 L. T. N. S. 767; Burditt v. Hunt, 25 Me. 419, 43 
 Am. Dec. 289. 
 
 ^ Loring v. Midcahy, 3 Allen, 575; Metcalfv. McLaughlin. 122 Mass, 84; Nel- 
 son V. Iverson, 17 Ala. 216.
 
 DELIVERY TO WKONG PERSON — CONVERSION. 911 
 
 the goods were in the house of "Whittier, they were in a room hired 
 by the plaintiff, Gurley, from him. The contract between them 
 was one for rent, and not of storage, Whittier reserving no control 
 over the room. It was, however, neither locked nor fastened, 
 although no goods were in it except those of the plaintiff. In all 
 that he did the defendant acted in good faith without any inten- 
 tion of depriving the rightful owner of her property and in 
 ignorance of the fact that plaintiff was such owner, neither assert- 
 ing title in himself, nor denying title to any other, nor exercising 
 any act of ownership except by the removal above stated. The 
 legal possession of the goods was under these circumstances 
 undoubtedly in the plaintiff ; and as they were in the room hired 
 by her the actual possession was also hers. The apparent control 
 of them was, however, in Whittier — as they were in his house and 
 he had, further, the present capacity to take actual physical pos- 
 session, as the room in which they were was neither locked nor 
 fastened. It is conceded that whoever receives goods from one in 
 actual, although illegal, possession thereof, and who restores the 
 goods to such person, is not liable for a conversion by reason of 
 having transported tliem' and this would be so, apparently, even 
 if the goods thus received were restored to the wrongful possessor 
 after notice of the claim of the true owner.'' The principle on 
 which the decisions above cited rest is not unreasonably extended 
 when it is applied to the circumstances of this case. The act of 
 removing goods by direction of the wrongful possessor of them is 
 an act in derogation of the title of the rightful owner, but the 
 party doing this honestly is protected because from such actual 
 possession he is justified in believing the possessor to be the true 
 owner. He does no more than such possessor might himself have 
 done by virtue of his wrongful possession. The defendant was a 
 job teamster and thus in a small way a common carrier of such 
 wares and merchandise as could appropriately be transported with 
 his team or wagon. He exercised an employment of such a char- 
 acter that he could not legally refuse to transport property such as 
 he usuall;5j carried, which was tendered to him at a suitable time 
 
 ' Strickland v. Barrett and Leonard v. Tidd, siipra. 
 ^ Loring v. Mulcahy and Metcalfv. McLaughlin, supra.
 
 912 DELIVERY OF GOODS. 
 
 and place with the offer of a reasonable compensation. If he holds 
 himself out as a common carrier he must exercise his calling upon 
 proper request and under proper circumstances.' His means of 
 ascertaining the true title of the freight confided to him are of 
 necessity limited. He must judge of this as it is fairly made to 
 appear. As, if Whittier had actually gone into the room, as he 
 might readily have done, and taken physical possession of the 
 goods, the defendant upon well established authority would have 
 been justified in obeying the order and transporting the goods to 
 "Whittier at another place, he should not be the less justified where 
 "Whittier, in apparent control of the goods in his own house and 
 capable of immediately taking them into his actual custody by 
 entering the room in which they were, through the unlocked 
 door, directs the removal. If a person standing near and in sight 
 of a bale of goods lying on the sidewalk belonging to another, and 
 thus in the legal possession of such other, is able at once to 
 possess himself of it actually although illegally, and directs a 
 carrier to remove it and deliver it to him at another place, com- 
 pliance with this order in good faith cannot be treated as a con- 
 version. Apparent control accompanied with the then present 
 capacity of investing himself with actual physical possession, must 
 be equivalent to illegal possession in protecting a carrier who 
 obeys the order of one having such control.* 
 
 Where a carrier by whom goods sold are shipped to be delivered 
 to the vendee upon the payment of the purchase money negli- 
 gently delivers the goods before such payment, neither the car- 
 rier nor the vendor can recover the goods from a bona tide 
 purchaser from the vendee. 
 
 A sells goods to B, and ships them by a common carrier, to be 
 delivered to B upon the payment of the purchase money. By 
 the negligence of the carrier B obtains possession of the goods 
 without paying the money, and sells them to C, a bona fide pur- 
 chaser for value, and without notice. Can A or his bailee, the 
 carrier, recover the goods from C ? If the carrier was holding 
 
 ^BucJdand v. Adams Exp. Co. 97 Mass. 134, 93 Am. Dec. 68; Judson v. West- 
 ern R. Corp. 6 Allen, 486, 83 Am. Dec. 646. 
 ' Qiirley v. Armstead, 2 L. R. A. 80, 148 Mass. 267.
 
 DELIVERY TO WRONG PERSON — CONVERSIOlJl . 913 
 
 the goods only for the payment of its freight charges, its lien 
 could not be enforced against the innocent purchaser. As soon 
 as the goods were delivered to the carrier the right of property 
 passed to the vendee, but the right of possession remained in the 
 vendor until the price was paid/ This possession he loses by the 
 negligence of his agent, and he should not be permitted to recover 
 against a defendant, who bought of the vendee in possession, for 
 value, and without notice. Of course, if the vendor could not re- 
 cover, his negligent agent, the carrier, can have no cause of action. 
 This case falls within the principle declared in Dear doff v. 
 Foresman, 24 Ind. 481, — " that where one of two persons must 
 suiler loss by the fraud or misconduct of a third person, he who 
 first reposes the confidence, or by his negligent conduct made 
 it possible for the loss to occur, mast bear the loss."'' Had this 
 been a conditional sale, an executory contract to sell, an ordinary 
 bailment, or any other transaction which failed to pass the title, 
 the innocent purchaser, however much he may have been misled 
 by the possession and apparent ownership of his vendor, would not 
 be protected.^ 
 
 The case of Millhiser v. Erdmann, 103 IST. C. 27, does not con 
 flict with this view, as it was there held that by the terms of the 
 agreement the title was not to pass until certain conditions were 
 performed. Here the title passed, and a delivery having been 
 made by the negligence of the vendor's agent, the plainest prin- 
 ciples of justice forbid a recovery. As to the innocent purchaser 
 the right of property and the right of possession are united, and 
 his title is therefore complete.* But to an action against a carrier 
 for delivery, without payment of the price, of goods alleged to 
 have been deliverable, by the bills of lading, to the order of 
 plaintiff, who indorsed and delivered the bills to the carrier, with 
 the agreement that upon payment of the price they were to be 
 delivered to a third person, — it is a good defense that the agree- 
 
 ' Ober V. Smith, 78 N. C. 313; Benjamin, Sales, 260. 
 
 »This doctrine is recognized in State v. Lewis, 73 N. C. 138, 21 Am. Rep. 461; 
 
 VaHft V. Riddick, ,89 N. C. 6; State v. Peck, 53 Me. 284, and in Hern v. 
 
 NichoU, 1 Salk. 2s9. Wilmington & W. R. Co. v. Eitchin, 91 N. C. 39. 
 » Ballard v. Burgett, Langd. Cas. Sales, 730, 40 N. Y. 314. 
 -*■ Norfolk Soutliern R. Co. v. Barnes, 5 L. R. A. 611, 104 N. C. 25. 
 58
 
 914 DELIVERY OF GOODS. 
 
 ment was made with the carrier's agent, and that he acted beyond 
 his authority and as plaintiff's agent in delivering the goods, and 
 not as the carrier's agent.* 
 
 Where goods shipped over a railroad are permitted by the 
 owner to remain at the depot of their destination until the rail- 
 road company becomes liable therefor only as warehouseman, and 
 afterwards, on demanding them, the owner is informed by the 
 agent in charge of the depot that the goods have not yet arrived 
 — the failure to deliver the goods on demand will render it liable 
 for conversion,'' and is such negligence as will render the com- 
 pany liable for their loss by the subsequent burning of the depot.' 
 A common carrier's unauthorized delivery of goods may be rati- 
 fied by the owner or consignee.* While the carrier is not bound 
 to accept goods from anyone but the owner, and his legal repre- 
 sentative,^ yet if, without fraud, he receives goods for shipment 
 from one having apparent authority and actual control over them, 
 and delivers them on their arrival to the consignee designated by 
 the shipper, the carrier is not liable.' 
 
 Where a misdelivery of the goods is caused by the negligence 
 or fraud of the consignor, or by his innocent mistake, the carrier 
 will not be charged with liability, — unless the carrier, being ad- 
 vised of the error, by the use of ordinary diligence could have, 
 made the proper delivery.' 
 
 The carrier must, at his peril, make the delivery to the one-. 
 
 ' Cox V. Columbus & W. R. Co. 91 Ala. 392. 
 
 ^ Louisville & N. R. Co. v. Lawson, 11 Ky. L. Rep. 38. 
 
 2 Union Pac. R. Co. v. Moyer, 40 Kan. 184. 
 
 ■* Converse v. Boston & 31. R. Co. 58 N. H. 521 ; Dobbins v. 3fichigan Cent. R. 
 
 Co. 56 Mich. 522; Cieveland & P. R. Co. v. Sargent, 19 Ohio St. 438. 
 ^ Fitch V. Newberry, 1 DougL (Mich.) 1, 40 Am. Dec. 33. 
 ^Strickland v. Barrett, 20 Pick. 415; Metcalf v. MacLaughlin, 123 Mass. 84; 
 
 Gurley v. Armstead, 2 L. R. A. 80, 148 Mass. 267; Buckland v. Adams Exp^ 
 
 Co. 97 Mass. 124, 93 Am. Dec. 68. 
 "> Dobbins v. Micliigan Cent. R. Co. 56 Mich. 522; Erie R. Go. v. Wilcox, 84 111. 
 
 239, 25 Am. Rep. 451; Lake Shore & M. S. R. Co. v. Hodapp, 83 Pa. 22; 
 
 Guillaume v. General Transp. Co. 100 N. Y. 491 ; O'Rourke v. Chicago, B. 
 
 & Q. R. Co. 44 Iowa, 526; Brasher v. Denmr & R. G. R. Co. 12 Colo. 384; 
 
 3Iahon v. Blake, 125 Mass. 477; Wernwagv. Philadelphia, W. & B. R. Co. 117 
 
 Pa. 46; Southern Exp. Go. v. Kaufman, 12 Heisk. 161; Congarv. Chicngo 
 
 & N. W. R. Co. 24 Wis. 157, 1 Am. Rep. 164; Stimson v. Jackson, 58 N. H. 
 
 138.
 
 DELIVERY TO WRONG PERSON CONVERSION. 915 
 
 who is clothed with the legal evidence of title, or who is in fact 
 entitled to receive the goods. He must keep in view simply the 
 duty to make proper deliver}'' and must be free from any charge 
 of bad faith. If the deliveiy be improperly made, the question 
 of his release for any cause, outside of misconduct through bad 
 faith, is for the jury, unless upon a question of estoppel upon fapts 
 they may find.' Whenever a delivery to the consignee in person 
 is required to be made by the carrier, it is the duty of the carrier 
 to seek him and make tender of the goods.'' A misdelivery by a 
 carrier is treated as a conversion of the goods by him.^ The car- 
 rier will be liable to the shipper for the value of goods delivered 
 to a third person on the order of the consignee at the place of 
 shipment.* But where the carrier delivered to the person to 
 whom they are sent, although by false and fraudulent devices, 
 that person personates another, to whom the consignor believed 
 he was sending the goods, the carrier, if acting in good faith and 
 with due diligence, is not liable.^ 
 
 "Where two men of the same name live in the same town, and 
 one of them orders goods from a merchant at a distance, the car- 
 rier, on delivering the goods to the man who ordered them, is not 
 responsible, simply because the consignor thought his order was 
 from the other of the two men. But in the absence of either, the 
 right of a shipper to recover from the carrier for delivering goods 
 
 > Forbes \. Boston & L. R. Co. 133 Mass. 154; Duffy. Budd, L. R. 5 Exch. 50; 
 American Exp. Co. v. Fletcher, 25 Ind. 492; American Exp. Co. v. Stack', 
 29 Ind. 27; Southern Exp. Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; 
 Price V. Osicego & 8. R. Co. 50 N. Y. 215, 10 Am. Rep. 475; Sword v.' 
 Young, 89 Tenn. 126, 129; Winsloio v. Vermont & M. R. Co. 42 Vt. 700; Mc- 
 Entee v. JSfew Jersey S. B. Co. 45 N. Y. 34, 6 Am. Rep. 28; Houston '& T. 
 C. R. Co. V. Adams, 49 Tex. 748, 30 Am. Rep. 116; St. Louis & 1. M. R 
 Co. V. Lamed, 103 111. 293; Powell v. Myers, 26 Wend. 591; Little Rock, M 
 R. & T. R. Co. V. Glidewell, 39 Ark. 487; Rogers v. Weir, 34 N. Y. 463; Alex- 
 ander V. Southey, 5 Barn. & Aid. 247; Ball v. Liney, 48 N. Y. 6. 8 Am. Ren 
 511. 
 
 * Schroeder v. Hudson River R. Co. 5 Duer, 55. 
 
 » Claflin V. Boston & L. R. Co. 7 Allen, 341; Viner y.New York, A. O. & W. 
 SS. Co. 50 N. Y. 23; 3 Woods. Railway Law, 1594. 
 
 * Southern Exp. Co. v. Dickson, 94 U. S. 549, 24 L. ed. 285. 
 
 ^Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467; Dunbar v. Boston & P. 
 R. Corp. 110 Mass. 26, 14 Am. Rep. 576; McKean v. Mclver, L. R. 6 Exch. 
 36; Norwalk Bank v. Adams Exp. Co. 4 Blatchf. 455; Wilson v. Addvis Exp. 
 Co. 27 Mo. App. 360; Bush v. St. Louis, K. C. d; If. R. Co. 3 Mo. App. 62.
 
 916 DELIVERY OF GOODS. 
 
 to a swindler who ordered them in the name of a responsible per- 
 son, is not dependent upon the shipper's discovering the fraud 
 and stopping the goods in transitu.^ A carrier who delivers 
 goods ordered in a fictitious name, upon the presentation of an 
 unindorsed bill of lading made out in an assumed name, and with- 
 out requiring any identification, is liable to the consignor for the 
 price of the goods. Subsequent purchasers in good faith from 
 one to whom goods shipped to a person who ordered them in a 
 fictitious name were delivered by the carrier upon the presenta- 
 tion of an unindorsed bill of lading made out in an assumed name, 
 and without requiring any identification, are not liable for the 
 goods.* Carriers and express companies are liable for money sent 
 to a fictitious person by the fraud of their agent, on a bill of lad- 
 ing executed by such agent in favor of such fictitious person, and 
 converted and embezzled by the agent.* 
 
 An action was brought against an express company for the fail- 
 ure to deliver a package of money consigned by the plaintiff to 
 one A. The receipt given for the package stipulated that it was 
 to be delivered to A in person. The express company answered 
 that the express agent at the place to which the package was ad- 
 dressed, was also the telegraph operator at that place ; that a per- 
 son pretending to be said A came to the agent and sent a tele- 
 gram through him to plaintiff, requesting that the money for 
 which the action was brought, should be sent ; that in answer to 
 said telegram, said money was sent by plaintiff, addressed to A, 
 and that the same person who had sent said telegram called for 
 and demanded said package, representing himself to be the per- 
 son to whom the money was addressed, and the money was there- 
 fore delivered to him by the defendant. It was held, however, 
 that the answer did not show such a degree of care and caution as 
 would relieve the defendant from liability — even if charged as a 
 forwarder only.* 
 
 > Wilson V. Adams Exp. Co. 27 Mo. App. 360, 43 Mo. App. 659. 
 
 * Sword V. Young, 89 Tenn. 126, 129. 
 
 * Jasper Trust Co. v. Kansas City, M. & B. R. Co. 99 Ala. 416. 
 
 * American Exp. Co. v. Fletcher, 25 Ind. 492.
 
 DELIVERY IN BAD CONDITION SHORTAGE. 917 
 
 § 140. Delivery in Bad Condition— Shortage. See 
 
 ante, § 40. 
 
 Where the master correctly designates the consignee on deliv- 
 ery to the cars, shortage in quantity delivered, caused by for- 
 warding one carload thereof to the wrong consignee through 
 mistake, in which the consignee's agent participated, cannot be 
 offset to the demand for freight, as it was not the master's duty 
 to act as forwarder. Consignees whose agents assist in selecting 
 what is delivered, and accept it as what they are entitled to by 
 their bill of lading, and cause it to be sent away, must show satis- 
 factorily that what was thus accepted was less tiian should have 
 been delivered, and that their failure to receive all they should 
 have received is attributable to some default on the part of the 
 ship, in order to hold the latter liable for a deficiency under a 
 bill of lading stating that the vessel is not accountable for the 
 number of pieces or weight/ Although two lots of which the 
 bills of lading state that the master does not know the weight, 
 are not kept distinct, in the absence of any proof that the consig- 
 nee of one lot received more than belonged to him, or that the 
 whole amount received by the carrier has not been delivered, the 
 other consignee cannot recover from the carrier for a deficiency 
 in quantity."^ 
 
 Where kegs and casks unloaded from a vessel by lighters are 
 damaged and partially empty when delivered, and there is proof 
 that they were selected as especially strong and good ones for the 
 purpose, and the ship fails to call any of the lightermen to prove 
 whether they were delivered from the lighter in the same condi- 
 tion that they were in when received, and the proof of the in- 
 sufficiency of the casks is not satisfactory, — the vessel will be held 
 liable.' Where the shortage in weight of a cargo of sugar is not 
 one per cent of the amount stated in the bill of lading, but there 
 is a shortage of a few bags, the vessel cannot be held liable, on 
 evidence that her hatches were kept battened down until the un- 
 
 ^ Eaton Y.Neumark, 33 Fed. Rep. 891, 37 Fed. Rep. 375. 
 
 » Schultz V. Tlce Pietro Q. 40 Fed. Rep. 497. 
 
 * CariDidng v. The Barracouta, 40 Fed. Rep. 498.
 
 918 DELIVERY OF GOODS. 
 
 lading was taken charge of by the charterer, and that all the 
 sugar received was delivered, although an interrogatory, answered 
 on the part of the ship, states a number of bags marked as de- 
 scribed in the bill of lading which were delivered, to be a few less 
 than the number stated in the bill, but another answer states the 
 total number of bags delivered to be more than that stated in 
 the bill, while there is proof of very rough handling of the bags 
 in unloading them, against the protest of the ship's officei-s, and 
 that tliere was an unusual quantity of sweepings, which were 
 placed in new bags/ A canal boat hired at a daily rate for use 
 in storing grain about the harbor, to be subject wholly to the con- 
 trol of the hirer in respect to loading, unloading, navigation, and 
 delivery of cargo, is not a carrier or a warehouse, and is not lia- 
 ble for a shortage in cargo by a sale thereof by a man whose serv- 
 ices in taking care of the boat were included in its hire, but who, 
 though called " captain," had nothing to do with the cargo or 
 navigation.* That a carrier who has agreed to take at cost a car- 
 load of fruit arriving in damaged condition, and turn it over to 
 the consignees to sell on its account, to apply on its liability for 
 the goods, did so under the mistaken belief that the car was dam- 
 ao-ed by a wreck, when it was in fact only delayed thereby, — will 
 not affect its liability.^ 
 
 A railroad company is not liable for injury to freight resulting 
 from exposure to mud and rain in consequence of the company's 
 violation of its contract with the road over which the freight was 
 shipped, to maintain a narrow gauge track for the benefit of that 
 road, as the exposure and not the failure to maintain the track is 
 the proximate cause of injury." Under an act prescribing a pen- 
 alty against railroad companies which refuse to deliver goods and 
 merchandise upon payment or tender of the freight charges due 
 by the bill of lading, a consignee of goods can put the railway in 
 default and recover the penalty only upon a tender of the amount 
 due as freight under the bill of lading, and not where he refuses 
 
 ^Kerbuish v. Havermeyefs & E. Sugar Ref. Co. 43 Fed. Rep. 511. 
 
 2 The Daniel Burns, 52 Fed. Rep. 159. 
 
 ^ Orinnell v. Wisconsin Cent. R. Co. 47 Minn. 569. 
 
 *St. Louis, A. <& T. R. Go. v. Mel, 56 Ark. 279, 13 Ry. & Corp. L. J. 110.
 
 DELIVEBY IN BAD CONDITION SHORTAGE. 
 
 919 
 
 to receive a portion of the goods or to pay a proportion of the 
 freight charges, on the ground that they were damaged in the 
 trans'^ortation, 
 
 Tiie carrier is not liable for damage to goods arising without his 
 fault from the nature of the articles themselves, as decay of fruit, 
 or working of hquors that have a tendency to ferment or leak.' 
 Where potatoes were shipped at Hamburg, unsound and unfit to 
 ship and were lost by decay on the voyage, the vessel is not liable 
 for such loss, as it is occasioned by the negligence of the shipper.^ 
 The fact that part of a cask of brandy is lost by leakage, in the 
 absence of proof that the remaining portion is rendered of less 
 value per gallon, will not excuse the consignee from receiving it 
 and holding the carrier liable only for the lost portion." 
 
 %lJfl. Failure to Deliver. 
 
 Although it is the duty of the carrier upon the arrival of goods, 
 to deliver them with reasonable promptness, yet a mere delay in 
 the delivery is not a conversion of the property, and it will not 
 entitle the owner to recover the value thereof." But where the 
 carrier has retained the goods after proper demand or for an un- 
 reasonable time after arrival without proper justification their 
 destruction in his hands will not be excused by any exception in 
 Ms bill of lading, nor even by the act of God.° A carrier is liable 
 for nondelivery of goods delivered to it for transportation from 
 Alabama to JSIew York, where they do not reach the place of 
 destination until the lapse of two to five months after the ship- 
 ment.' A contract by a carrier exempting it from liability from 
 -wrong carriage or wrong delivery of goods marked with initials 
 
 > St. Loxiis, A. & T. B. Co. v. Johnson, 53 Ark. 282, 
 
 * Brown v. Clayton, 12 Ga. 564; Clark v. Barnwell. 53 U. S. 12 How. 282, 13 
 
 L. ed. 989; The Howard v. Wissrnan, 59 U. S. 18 How. 231, 15 L. ed. 363; 
 
 Lawrence v. Denbreens, 66 U. S. 1 Black, 170, 17 L. ed. 89; McEinlay v. 
 
 Morrish, 62 U. S. 21 How. 343, 16 L. ed. 100; Nelson v. Woodruff, 66 U. S. 
 
 1 Black, 156, 17 L. ed. 97. 
 ' The Howard v. Wissman, supra. 
 *Howe V. 0»wego & 8. R. Co. 56 Barb. 121. 
 ^Briggii v. New York Cent. R. Co. 28 Barb. 515. 
 
 • Richmond & D. R. Co. v. Benson, 86 Ga. 203. 
 ''Alabama G. S. R. Co. v. Eichofer lt)0 Ala. 224.
 
 920 DELIVERY OF GOODS. 
 
 or numbers, or imperfectly marked, does not apply so as to ex- 
 empt it from liability, where the goods are not delivered at all, 
 but delivery is refused when demanded.' An owner of a cargo 
 cannot dispute its delivery when he has taken it from the store 
 into which it was put by the master of the vessel, subject to 
 freight, and has given security for the freight." 
 
 Where wheat reached the depot and was landed on the plat- 
 form in the evening on the arrival of a train, and when demanded 
 by the consignee next morning, could not be found — the carrier 
 was held answerable for its value.^ Property which has not been 
 the subject of traffic and has no fixed value at the place of des- 
 tination, is to be valued by the market value of property at or 
 near the place of its destruction," Where goods are lost, interest 
 must be allowed as damages upon the value of the goods.* The 
 value of goods at their place of destination — with interest — de- 
 ducting freight charges, where they have not been paid, is the 
 rule where the goods have been lost.' 
 
 %lJf^. Statutory Penalties for Kon-Delivery. 
 
 In many of the states statutes have been passed imposing pen- 
 alties upon railroads for refusing to deliver freight on payment of 
 the stipulated charges, as shown by the way bill. Such a state 
 statute prohibiting a greater charge by a carrier for transportation 
 of freight than specified in the bill of lading, and imposing a pen- 
 alty for refusal to deliver on payment of agreed charges, as shown 
 in such bill, is not a regulation upon interstate commerce, but is 
 within the police power of the state.'' No penalty can be charged 
 under a state statute providing against overcharges and discrirai- 
 
 1 Richmond <& D. B. Co. v. Benson, 86 Ga. 203. 
 
 • The Adella 8. Hills, 7 Fed. Rep. 76. 
 
 2 Milwaukee & M. B. Co. v. Fair child, 6 Wis, 403. 
 
 * Aarris v. Panama R. Co. 3 Bosw. 7. 
 
 ''Kyle V. Lawrens B. Co. 10 Rich. L. 382, 70 Am. Dec. 231, 
 ^Bhimenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 350; Borne B. Co. v. Sloan, 
 39 Ga. 636. 
 
 '' Qulf, C. & 8. F. B. Co. V. Nelson, 4 Tex. Civ. App. 345; Qulf, C & 8. F. 
 B. Co. V. McCoion (Tex. Civ. App.) Feb. 28, 1894; Little Bock & Ft. 8. B. 
 Co. V, Hanniford, 1 Inters. Com. Rep. 580, 49 Ark. 291.
 
 STATUTORY PENALTIES FOE NON-DELIVEKY. 921 
 
 nations in the shipment of freight by railway companies, where 
 the contract is one for interstate shipment.' 
 
 Code, § 1967, imposing a penalty on railroad companies for the 
 detention of freight more than five days after delivery for shipment 
 without the consent of the shipper, as regards freight to be shipped 
 to another state does not conflict with TJ. S. Const, art. 1, § 8, cl. 3, 
 delegating the power to regulate interstate commerce to the federal 
 government, since its enforcement would expedite, and not obstruct 
 interstate traffic* Under an act imposing a penalty upon a car- 
 rier violating either or several of its provisions, a carrier is liable 
 to the penalty upon violation of any one of such provisions.^ A 
 statute prescribing a penalty for refusing to deliver goods upon 
 the payment or tender of payment of the freight charges due, as 
 shown by the bill of lading, is not repealed by a later act prescrib- 
 ing a penalty for a failure to deliver property at the regular or 
 appointed time, without reference to the payment or tender of 
 payment of the freight charges." 
 
 A bill of lading for through shipment of goods to a designated 
 point, " subject to the published tariff of the compan_y and its con- 
 nections," makes a published local tariff rate for an intermediate 
 point a part of the contract ; and the company cannot, without 
 rendering itself liable for the penalty prescribed for every day's 
 detention, refuse to deliver the goods at such intermediate point on 
 a tender of a local rate, on the ground that the bill of lading is 
 controlled by the through tariff schedule.* A bill of lading suffi- 
 ciently shows the amount of freight charges due as required by 
 Tex. Rev. Civ. Stat. art. 425 8«, imposing a penalty upon any rail- 
 way company refusing to deliver freight upon the payment or 
 tender of the freight charges due as shown by the bill of lading, 
 where it states the freight to be 25 cents per hundred weight, so 
 tliat the amount of freight is ascertainable at any time.* An ex- 
 
 » Wright v. Hmce (Tex. Civ. App.) Dec. 7, 1893. 
 
 ^McGwigan v. Wilmington & W. R. Co. 95 N. C. 432; Bagg Y.Wilmington, a 
 
 & A. B. Co. 14 L. R. A. 596, 109 N. C. 279, 11 Rep. & Corp. L. J. 78. 
 ^Little Bock & Ft. S. B. Co. v. Bruce, 55 Ark. 65. 
 *St. Louis] A. & T. R. Co. v. McKee (Tex.) Oct. 26, 1889. 
 » Atchison, T. & S. F. B. Co. v. Boberts, 3 Tex. Civ. App. 370. 
 • Oulf, C. & S. F. B. Co. V. McCown (Tex. Civ. App.) Feb. 28, 1894. '
 
 922 DELIVEEY OF GOODS. 
 
 pense account of a railway company showing the amount of freight 
 charges due on goods shipped, is not a part of the bill of lading 
 within the meaning of an act imposing a penalty upon railroad 
 companies for refusal to deliver goods sliipped by them " on pay- 
 ment of the freight charges as shown by the bill of lading." 
 
 Refusal by a railroad company to deliver goods shipped, on 
 tender of the freight charges, when the amount is not shown by 
 the bill of lading, is not a violation subjecting railroad companies 
 to a penalty for the detention of goods shipped by them, for re- 
 fusing to deliver them '' on payment of the freight charges due as 
 shown by the bill of lading," as such statute is penal, and one 
 enforcing the penalty must bring himself strictly within its pro- 
 visions.' An action to recover a statutory penalty from a carrier 
 for retaining goods after the amount of freight has been tendered 
 cannot be maintained under an act providing for such penalty, and 
 basing the amount to be recovered on the amount of freight des- 
 ignated in the bill of lading, where the bill of lading does not give 
 sufficient data from which the amount of freight can be ascer- 
 tained ; nor can an expense account showing the amount of 
 freight be resorted to, \vhere it is not referred to in the bill of 
 lading.' Under a statute providing for the prompt delivery of 
 freight by railroad companies upon paj^ment of the freight rate 
 prescribed by the bill of lading, where the bill of lading fails to 
 specify the weight of the goods, it is the company's duty to weigh 
 them without unreasonable delay, and ascertain the amount of 
 freight due ; and a failure so to do will make it liable, according 
 to the measure of damages prescribed, for a refusal to deliver 
 upon payment of the prescribed rate.^ 
 
 That a bill of lading does not show the freight rate over a por- 
 tion of the route is no defense to an action to recover the statu- 
 tory penalty for a railway company's refusal to deliver the freight 
 to the owner and consignee, where such rate is disclosed by the 
 petition, together with the bill of lading attached thereto. It is 
 no defense to an action against a railway company to recover the 
 
 » Schloss V. Atchison, T. & 8. F. R. Co. 85 Tex. 601. 
 « Texas & P. R. Co. V. "iVood (Tex. Civ. App.) Nov. 1, 1893. 
 ^ Liltle Rock & Ft. S. R. Co. v. Hanniford, 1 Inters. Com. Rep. 580, 49 Ark. 
 291.
 
 STATUTORY PENALTIES FOR NON-DELIVERY. 923 
 
 penalty imposed by Tex. Rev. Civ. Stat. art. 4258(^, §§ 1-3, for its 
 failure or refusal to deliver freight to the owner, that the ship- 
 ment was made to the shipper's order, and that plaintiff was not 
 the consignee named in the bill of lading, where such bill was 
 indorsed by the shippers to plaintiff. A custom of railroad com- 
 panies in the United States for the delivering carrier to take up 
 bills of lading before delivering freight to the consignee and 
 owner, for the purpose of holding such bills as evidence of having 
 delivered the freight to the right party, is unenforceable.* A 
 railway company which refuses to deliver goods upon tender of 
 the amount of freight charged, to be paid by the consignee, as 
 shown by the bill of lading, on the ground that such tender was 
 made under protest, is liable for the penalty j)rescribed by a state 
 statute for every day's detention of the goods.' 
 
 It is not necessary for the owner of freight to give the carrier 
 notice, at tiie time of shipment, that loss of wages jjaid the owner's 
 employees will result from delay in delivering the same, in order 
 to recover the amounts so paid, in an action to recover the statu- 
 tory penalty for withholding the delivery of such freight on pay- 
 ment of the freight charges shown by the bill of lading." The 
 liability of a railway company for the statutory penalty imj^osed 
 for demanding more freight than that named in the bill of lading 
 and refusing to deliver to the consignee upon the tender of the 
 freignt named therein, cannot be avoided or reduced by proof of 
 the willingness of the seller or shipper of the goods to pay the 
 ■excess demanded.* Where a railroad company has no depot or 
 station agent at a certain station, and is accustomed to deliver 
 goods destined to that place at another station, a demand for goods 
 destined to such first station, made at the other station, where 
 they were being detained, is sufficient to subject the company to 
 a penalty for their nondelivery, under Sayles's (Tex.) Civ. Stat. 
 art. 4258a.'' Delay of a railroad company in producing upon 
 
 ' Oulf, C. & S. F. R. Co. V. McOoicn (Tex. Civ. App.) Feb. 28, 1894. 
 
 ^ Atclmon,^T. & S. F. R. Co. v. Roberts, 3 Tex. Civ. App. 370. 
 
 « Gulf, C. & S. F. R. Co. v. Loouie, 84 Tex. 259. 
 
 * Dillingham v. Fischl, 1 Tex. Civ. App. 546. 
 
 "St. Louis, A. <& T. R. Co. v. McKee Tex. Oct. 26, 1889.
 
 924: DELIVERY OF GOODS. 
 
 request a receipt for lost goods from a steamship company to which: 
 it was the company's duty to deliver them, caused by mistake in. 
 producing the receipt of the first railroad company beyond it in 
 the line of transportation, is not such " willful failure and refusal" 
 to deliver the receipt as will deprive the company of the benefit, 
 of a statutory provision permitting the initial carrier to relieve 
 itself from liability for loss by the production of such receipt,, 
 where from the terms of the Act it was very doubtful whether 
 or not the receipt of the steamship company would sufiice and the 
 Act had never been judicially construed.' The penalty provided 
 by a state statute for the refusal of a railroad company to deliver 
 freight on payment or tender of the charges due as shown by the 
 bill of lading applies only to a company which has itself executed,, 
 authorized, or ratified the execution of the bill of lading. A car- 
 rier cannot be considered as ratifying the original contract of 
 shipment for goods which it receives from another company and 
 transports, when it is bound by statute to perform such service. 
 
 The exhibition of the bill of lading at the time of the tender 
 of the charges and demand of the goods is not a condition prece- 
 dent to a recovery, under a statute, for refusal to deliver goods^ 
 although such penalty should be inflicted only for a willful disre- 
 gard of the law.^ A railway company which voluntarily afiirms 
 and ratifies a through freight rate established by the Interstate 
 Commerce Commission, and provided for in a bill of lading 
 issued by the initial carrier, by offering to accept such rate upon 
 the surrender of the bill of lading, cannot defend an action 
 against it to recover the statutory penalty for refusing to deliver 
 the freight, on the ground that the initial carrier had no author- 
 ity to bind it by the freight rate specified in the bill of lading.^ 
 An initial railroad company which delivers a through bill of lad- 
 ing to a shipper is not liable to a penalty of $500 imposed by a 
 local statute, for exacting more than the maximum freight rates, 
 where it delivered the goods to a connecting carrier by which the 
 
 ' Miller v. South Carolina R. Co. 9 L. R. A. 833, 33 S. C. 359. 
 
 « Diryer v. Oxdf, C. & S. F. E. Go. 7 L. R. A. 478, 75 Tex. 573. 
 
 » Oulf, C. & S. F. R. Co. V. McCoion (Tex. Civ. App.) Feb. 28. 1894.
 
 STATUTOKY PENALTIES FOB NON-DELIVERY. y25 
 
 •overcharge was exacted.' A defendant carrier who refuses to 
 deliver goods on tender of the charges shown by the bill of lad- 
 ing, claiming that he had paid to another carrier the charges 
 shown by the waybill, which exceeded those in the bill of lading, 
 is not liable to the statutory penalty where the evidence shows 
 that the bill was executed by another carrier and has not been 
 ratified by the defendant,* 
 
 The statutory penalty for refusing to deliver freight on tender 
 of the charges due as shown by the bill of lading cannot be re- 
 covered against a railroad which, on receiving the freight from a 
 connecting line, paid the charges as shown on the waybill and in 
 excess of those specified in the bill of lading, where the company 
 by which the freight was shipped and which executed the bill of 
 lading had no authority to bind the connecting line or the last 
 company to carry at the specified rate ; nor if, while shipped at an 
 authorized rate, it was misrouted by a preceding carrier for whose 
 acts the company is not responsible, and came to the company 
 bound by the charges of the connecting line/ A railroad company 
 while in the hands of receivers is not subject to a penalty for de- 
 tention of stock after tender of the amount of freight due under 
 a statute imposing a penalty upon railroads for the acts of their 
 otiicers, agents, or employes, and not upon carriers generally." 
 A carrier is relieved from the duty to unload freight prescribed 
 by a statute, by a voluntary express or implied agreement by the 
 consignee to unload it.' A constitutional provision against special 
 legislation is not violated by prohibiting the charge or collection 
 by railroad companies of a greater rate of freight than the bill of 
 lading specifies, and prescribing a measure of damages for refusal 
 to deliver freight upon payment or tender of such specified rate, 
 — that Act being general and uniform in its operation upon all 
 persons coming within the class to which it applies.' 
 
 ' Gulf, C. & S. F. R. Co. V. Adair (Tex.) Dec. 7, 1889. 
 « Oulf C. & S. F. R. Co. V. Dwyer, 84 Tex. 194. 
 ^Fordyce v. Johnson, 56 Ark. 430. 
 
 * Missouri, K. & T. R. Co. v. Stoner, 5 Tex. Civ. App. 50. 
 » Little Rod & Ft. S. R. Co. v. Bruce, 55 Ark. 65. 
 
 ■« Little Rock & Ft. S. R. Co. v. Hanniford, 1 Inters. Com. Rep. 580, 49 Ark: 
 291.
 
 926 DELIVERY OF GOODS. 
 
 § 14s. What will Excuse J\^on- Delivery of Goods. 
 
 The carrier will be excused from delivery where it is })revented 
 by the act of the consignor.' As wliere the consignor exercises 
 his right of stoppage in transitu.^ But a vendors right of stop- 
 page in transitu is defeated by the transfer, by the consignee, of 
 the bill of lading as security for a loan to a bona fide holder, 
 although the consignee is insolvent, and the bill of lading trans- 
 ferred is marked "Duplicate," and that stamped "Original" is 
 retained by the vendor.* This right of stoppage in transitu, can- 
 not be defeated, however, after refusal by the insolvent purchaser 
 to receive the goods, in order that the seller might reclaim them, 
 by his acceptance of the goods from the carrier or the insolvent 
 messenger, before appointment of an assignee.* So the carrier 
 will be excused from delivery to the consignee or the indorsee of 
 a bill of lading, when the goods are demanded or taken from the 
 ])ossession of the carrier, by some person having a superior title 
 to the property.* In general, the carrier is not permitted to dis- 
 pute the title of the person who delivers the goods or to set up 
 an adverse title, or to defeat his action of title according to his 
 contract. But, when the adverse title is made known to the car- 
 rier, if he is forbidden to deliver the goods to any other person, 
 he acts at his peril, — and if the adverse title is well founded and 
 he resists it, he is liable to an action for the recovery of the goods 
 by the person setting up such adverse title.' 
 
 A common carrier may show, as an excuse for non-delivery, 
 pursuant to his bill of lading, that he has delivered the goods, 
 upon demand, to the true owner. "While the bailee cannot avail 
 himself of the title of a third person — for the purpose of keeping 
 
 ^Boyce V.Anderson, 27 U. S. 2 Pet. 150, 7 L. ed. 379; Boicmanv. Teall, 23 
 ^Ve>ld. 3U6, 35 Am. Dec. 562; St. Louis cfc T. H. R. Co. v. Montgomery, 39 
 111. 335; Hastings v. Peppier, 11 Pick. 41; Southern E.rp. Co. v. Kaufman, 
 12 Heisk. 161; Bmh v. St. Louis, K. G. & N. R. Co. 3 Mo. App. 62. 
 
 ^ sales V. Ilowland, 32 N. Y. 309; Oppenheim v. Russell, 3 Bos. & P. 42. 
 
 ^ Missouri Pac. R. Co. v. HeidenJieimer, 82 Tex. 195. 
 
 ■» Tufts V. Sylvester, 72 Me. 213. 
 
 ^National Bank of Commerce v. Chicago, B. & N. R. Co. 9 L. R A. 2G3. 44 
 Miuu. 221. 
 
 ^Sheridan v. New Quay Co. 4 C. B. N. S. 618.
 
 WHAT WILL EXCUSE KON-DELIVEBY OF GOODS. 927 
 
 the property for himself — yet, if he has delivered the property 
 to its true owner on his demand, he is not answerable to the 
 bailor.* The carrier, under such circumstances, is undoubtedly 
 entitled to a reasonable time, taken in good faith, to examine into 
 the adverse title of the claimants, and he may protect himself 
 either by bill of interpleader, or by requiring an indemnifying 
 bond; — but he must not — pending such delay — assert title in 
 himself, but assign true reason for his action." 
 
 If the o-oods have passed out of the carrier's possession, before 
 the assertion of the adverse title, he is, of course, protected, hav- 
 ing complied with his contract of shipment.' After goods in the 
 possession of a carrier have been seized by a sheriff under attach- 
 ment, they are in the custody of the law, and the carrier is not 
 permitted to surrender them to the owner, although they may re- 
 main in his actual possession. The owner's remedy is against the 
 officer who seized the goods, or against the plaintiff in the attach- 
 ment suit.* A common carrier in whose hands goods shipped are 
 attached discharges its duty to the consignor by giving notice of 
 the attachment ' to the latter s husband, liaving the bill of lading 
 in his possession, since the carrier has the right to presume from 
 such possession that the husband is the agent of the consignor, 
 without further inquiry as to how or by what means he acquired 
 such possession.' Where an attachment was levied by a sheriff, 
 under a state statute, on property in course of transportation by 
 ship to a consignee who had made advances upon bills of lading 
 to the value of the goods, and the carrier failed to give notice of 
 
 > Eentz V The Idaho, 93 U. S. 575, 23 L. ed. 978; King v. Richards, 6 Whart 
 
 418 37 Am Dec 420; Ilardman v . Willcock, 9 B'mg. d82; Batesv. Hunton,! 
 
 Duer 79- Buidle v. Bond, 6 Best«& S. 225; Cheeseman v. Exall, 6 Exch. 341; 
 
 Eoxenfield v. Erpress Co. 1 Woods, 131; Wells v. ^^^"^J^f^P- £^- ^^ J^^- 
 
 23 43 Am Rep. 695; Ayneriean Exp. Co. v. Qreenhalgh. 80 111. 68; WolSe v. 
 
 M'issonn Pac. R. Co. 3 L. R. A. 539, 97 Mo. 473; Ifeto Trnmp. Co. v. 
 
 Barber, 56 N. Y. 544; Toung v. EaHt Alabama R. Co. 80 Ala. 100. 
 « Rogers v. Weir, 34 N. Y. 463; Solomons v. Dawes, 1 Esp. 83; Green v. Dunn, 
 
 3 Campb. 215. 
 « SJieridan v. iVew Quay Co. 4 C. B. N. S. 618. 
 
 * Stiles V. Davis, 66 U. S. 1 Black, 101, 17 L. ed. 33. 
 
 » Jewett V. Olsen, 18 Or. 419, 42 Am. & Eng. R. Gas. 435. 
 
 • Furinan v. Chicago, R. I. & P. R. Co. 81 Iowa, 540, 45 Am. & Eng. R. Cas. 
 
 385.
 
 028 DELIVERY OF GOODS. 
 
 the levy until the third day afterwards, while prompt notice would 
 have prevented the acceptance of a draft on the consignee, and 
 utterly failed to give written notice of the lien of the consignee 
 •on the goods, as required by the statute of the state in order to 
 preserve the consignee's rights, — the carrier must be held liable 
 to the consignee for the damage sustained.' Where goods are at- 
 tached by due process of law the carrier unist obey the attiich- 
 ment process." 
 
 Seizure, by judicial process, of property in transportation, not 
 l^rought about by any laches or connivance of the carrier, and of 
 which prompt notice is given, is one of the implied exceptions in 
 the carrier's contract as to liabiHty for nondelivery.* Property in 
 transit seized upon legal process sued out against the owner is in 
 the custody of tlie law, and tlie carrier is excused from liability 
 for not delivering it.* A carrier which does not know the owner- 
 ship of property has the right to assume that the consignee is the 
 owner, where the consignment is unqualified.' A carrier is not 
 liable for goods sold under an attachment after it notified the 
 owner thereof." If seized at intermediate point, it excuses deliv- 
 ery at destination.' But tlie attachment proceedings must be 
 valid against the owner in order to furnish a defense to the car- 
 rier.* 
 
 Seizure of goods by customs officers, resulting from the act of 
 a mere intruder before the owner had a reasonable time to find 
 and take possession, is no defense to a carrier, if they contain 
 nothing dutiable.* In a case decided in England at nisi prius, 
 by Lord Ellenborough, in ISOS," a vessel had been detained and 
 
 ' The M. M. Chase, 37 Fed. "Rep. 708. 
 
 « Ohio <fc M. R. Co. V. Yoke, 51 Ind. 181, 19 Am. Rep. 727; ITnyden v. Dntis, 9 
 
 Cal. 573; Barnard v. Kobbe, 54 N. Y. 51G; Savannah, O. d- N. A. li. Co. v. 
 
 Wilcox, 48 Ga. 433; Wilson v. Anderton, 1 Barn. & Ad. 450, 
 ' The M. M. Chase, supra. 
 
 *Jeicett V. Olsen, 18 Or. 419, 42 Am. & Eng. R. Cas. 435. 
 ^Scammon v. Wells, Fargo & Co. 84 Cal. 311, 43 Am. & Eng. R. Cas. 400. 
 « Baltimore & 0. R. Co. v. Davis, 20 W. N. C. 504. 
 ' Pingree v. Detroit, L. <& N. R. Co. 66 Mich. 143. 
 ^ Edtcards v. White Line Transit Co. 104 Mass. 1.59, 6 Am. Rep. 213. 
 ^Hamburg-American Packet Co. v. Gattman, 27 III. App. 182. affirmed in 127 
 
 111. 598. 
 
 " Gosling v. Eiggins, 1 Campb. 451.
 
 WHAT WILL EXCUSE NON-DELIVERY OF GOODS. 929 
 
 condemned in Jamaica for a breach of Keveniie Laws ; but on ap- 
 peal the condemnation was reversed. It was held that the master 
 was liable for a loss caused by the delay, the court saying : " You 
 have an action against the officers. The shipper can only look to 
 the owner or master of a ship." This last proposition is clearly 
 wrong. We do not find the case cited in any late English work 
 on carriers, and it is no doubt regarded as bad law. But in a 
 late case in Massachusetts it was held that, in a suit against a com- 
 mon carrier for nondelivery of goods, it is no defense to say that 
 they were taken from the carrier by an officer under an attach- 
 ment against any one who was not their owner.' It is settled that 
 the bailee may defend against the claim of the bailor, by showing 
 that the goods have been taken from him by legal process. And 
 in a note he adds : " If this defense were not valid, it might com- 
 pel the party to resist the acts of a public officer in the discharge 
 of his duty, which the law will never do." ' 
 
 In Kew York, where the property was forcibly seized by a con- 
 stable, on a complaint that the property had been stolen, the court 
 said: "But my associates not passing upon the question whether 
 the property was delivered to the true owners, desire to put this 
 case upon the doctrine that the common carrier is exonerated 
 from his obligation to his bailor, where the property of the latter 
 is taken from him by due legal process, provided the bailor is 
 promptly notified of such taking. . . , The judgment of the 
 supreme court should therefore be affirmed." All affirm on the 
 ground that when the property is taken from the carrier by legal 
 process and he gives notice thereof, he is discharged.' In this 
 same case in the supreme court, it was held that " the bailee must 
 assure himself, and show the court that the proceedings are regu- 
 lar and valid, but he is not bound to litigate for his bailor, or to 
 show that the judgment or decision of the tribunal issuing the 
 process, or seizing the goods, was correct in law or in fact. This 
 is the rule as to bailees in general, and it includes the case of 
 common carriers." * The decision that a demand by virtue of a 
 
 ^Edwards v. White Line Transit Co. 104 Mass. 159, 6 Am. Rep. 213. 
 
 »2 Redf. Railways. 158. 
 
 » Bliten v. Hudson River R. Co. 36 N. Y. 403. 
 
 * Bliten v. Hudson River B. Co. 35 Barb. 191. 
 
 ,59
 
 930 DELIVERY OF GOODS. 
 
 chattel mortgage after default is not such that a carrier must 
 yield to as in case of a demand under legal process seems to be 
 entirely new. 
 
 In a late case in South Carolina the plaintiffs bring the action 
 to recover damages for the conversion of certain personal prop- 
 erty alleged to belong to plaintiffs. The facts may be bricliy 
 stated as follows : On the 13tli of October, 1887, one Clendenning 
 delivered to the agent of defendant company at Prosperity the 
 property in question, consisting of a lot of household goods, to 
 be shipped by defendant's train to Laurens. After said agent 
 had received and receipted for said goods, defendant's agent was 
 notified by an agent of plaintiffs not to ship said goods, as they 
 belonged to plaintiffs under a mortgage given b}' Clendenning to 
 plaintiffs, the condition of which had been broken. The goods 
 were, however, placed on the cars, and the cars sealed. Soon 
 after this, and just before the arrival of the train for Laurens, one 
 Hair, a constable, appeared at the depot with the mortgage, upon 
 which an indorsement had been made by a trial justice, purport- 
 ing to authorize said Hair to take possession of the goods, and 
 demanded them from defendant's agent, who refused to deliver 
 them, upon the ground that the paper was not sufheient ; " that 
 1 ought to have had a distress Avarrant." Clendenning was pres- 
 ent at the time, but, so far as appears from the evidence, neither 
 said nor did anything. The goods remained at the depot, in the 
 car in which they had been placed the evening before, until 1 
 o'clock the next day, when they were sent on to Laurens ; no fur- 
 ther steps having in the meantime been taken by plaintiffs to ob- 
 tain possession of said goods. The mortgage above spoken of 
 was given by Clendenning to the plaintiffs to secure the payment 
 of a note which fell due on the 1st of May, 1887. 
 
 The plaintiffs having obtained judgment for the value of the 
 goods, defendant appeals upon several grounds which need 
 not be specifically stated, as the case turns upon the single ques- 
 tion whether a common carrier who has received goods for trans- 
 portation from one person, and given him a bill of lading there- 
 for, is bound to surrender them upon demand to a third person, 
 who claims to be the true owner thereof, under pain of being lia-
 
 WHAT WILL EXCUSE NON-DELIVERY OF GOODS. 931 
 
 ble to an action for the conversion of said goods at the suit of 
 such tliird person. It is conceded that under the stringent rule 
 of the common law a common carrier is liable as an insurer for 
 goods committed to his charge for transportation, and nothing 
 but the act of God or the public enemies will excuse him for 
 failure to deliver the goods at their destination to the person to 
 whom he has contracted to deliver them, — the consignee. Un- 
 der this rule it is very obvious that the carrier would be liable to 
 his bailor even if the goods were taken from his possession by 
 process of law, and much more so if he voluntarily delivered 
 them to the true owner, for this would not be either the act of 
 (iod or of the public enemy. But it is claimed, justly, that this 
 stringent rule has been modified so as to excuse the carrier from 
 liability where the goods have been taken from his possession by 
 process of law, provided the carrier gives prompt notice of sucli 
 seizure to his bailor ; for, as it is well put by Campbell, Ch. J., in 
 Pingree v. Detroit, L. c& xY. li. Co. Qe Mich. 143 : " If he is 
 excusable for yielding to a public enemy, he cannot be at fault 
 for yielding to actual autliority wluit he may yield to usurped 
 authority.'" And the same doctrine is, at least impliedly, recog- 
 nized, though the point was not distinctly raised, in Faust v. 
 South Carolina R. Co. 8 S. C. 118. It is also contended that 
 the rule is still further modified so as to excuse the carrier from 
 liability to his bailor for the nondelivery of goods intrusted to 
 him for transportation if he can show that he has delivered the 
 goods to a third person, who was the true owner, and entitled to 
 the possession thereof, and the case mainly relied upon to estab- 
 lish this proposition is Ilentz v. T/ie Idaho, 93 U. S. 575, 23 L. 
 ed. 978, though there are cases which have been decided in sev- 
 eral states recognizing the same doctrine. The case of Rohertson 
 V. Woodward, 3 Rich. L. 251, seems to recognize the doctrine that 
 an ordinary bailee — not a common carrier — may dispute the title 
 of his bailor in an action of trover brought by the latter by show- 
 ing that his bailor had sold the subject of the bailment before the 
 bailment arose, and that defendant was authorized to defend the 
 action, for the benefit of the purchaser. Assuming, that the 
 
 • See also Stiles v. Davis, 66 U. S. 1 Black, 101, 17 L. ed. 33.
 
 932 DELIVERY OF GOODS. 
 
 stringent rule of the common law as to a carrier's liability has 
 been thus further modified, the question remains whether thus 
 modified it applies to the South Carolina case. It will be observed 
 that the cases which establish or recognize this modification of 
 the rule only go to the extent of holding that a common carrier 
 may deliver the goods intrusted to him for transportation to the 
 rightful owner upon his demand, and, if he does, he may defend 
 himself against an action brought by his bailor to recover dam- 
 aires for the nondelivery according to the contract of bailment by 
 showing that he has delivered the goods to the rightful owner ; 
 but none of them go to the extent of holding that he is bound to 
 deliver them to one who demands them as rightful owner, unless 
 it be the case of Wells v. American Exp. Co., 55 Wis. 23, 42 Am. 
 Rep. 695. In that case a package of money was intrusted to the 
 carrier to be delivered to Wells & Cartwright. When the pack- 
 age addressed to Wells & Cartwright reached its destination, the 
 money was demanded by Wells alone, he claiming to be the sole 
 owner, and that Cartwright had no interest in it, to which Cart- 
 wright, being present, assented verbally, though " there was no 
 assignment by Cartwright of his apparent interest in the package 
 to Wells, and no written order by Cartwright to deliver to Wells, 
 and no offer of any receipt or acquittance from both." The de- 
 fendant refused to deliver the money to Wells alone, and insisted 
 also that the money had been subjected to garnishee proceedings 
 against Cartwright. Wells then brought his action, not upon the 
 bill of lading or express receipt, but for money had and received, 
 and the court held that, " irrespective of the garnishment," the 
 plaintiff, having established his individual right to the money, 
 was entitled to recover. The authorities cited by the learned 
 judge, while they do establish the doctrine that a common carrier 
 may, with safety, deliver to the rightful owner, do not establish 
 the doctrine that he is bound to do so ; and his assumption that 
 the one follows from the other is not well founded. In addition 
 to this, the action in that case was for money had and received, 
 which does not necessarily imply a tort on the part of defendant; 
 while here the action is for the conversion of the goods, which 
 does involve the idea of tort. Again, in that case it appeared
 
 WHAT WILL EXCUSE NON-DELIVERY OF GOODS. 933 
 
 that Cartwriglit, one of the persons named as consignee, was not 
 only present when Wells, the other consignee, demanded the 
 money, claiming it as his individual property, but actually as- 
 sented to such claim, and hence the carrier had no excuse for 
 refusing to comply with the demand. 
 
 It seems that the whole case turns upon the question whether 
 a carrier, resting under very stringent obligations to his bailor, is 
 bound to assume the burden, where a third person makes a de- 
 mand upon him for goods intrusted to him for transportation, 
 not enforced by legal process, of showing not only that such third 
 person is the rightful owner, but is also entitled to the immediate 
 possession of the goods. It seems that common justice would 
 require that such burden should be assumed by the claimant, who 
 is most likely to have the means of meeting it, and not upon the 
 carrier, who cannot be supposed to know anything about the real 
 ownership of the goods, and has a right to assume that the person 
 from whom he received possession of the goods was such rightful 
 owner ; possession of personal property being evidence of title. 
 The most that could be properly required of the carrier would be 
 to hold the goods, notifying his bailor of the demand which had 
 been made upon him, and let the claimant contest with the bailor 
 the question of ownership. Under these views, the judgment 
 below was not sustained. The goods were not seized or de- 
 n landed under any legal process. The fact that the person se- 
 lected as the agent of plaintiffs to enforce their mortgage claimed 
 to be a constable did not affect the question, for, even where a 
 mortgage of personal property is placed in the hands of the sher- 
 iff, with instructions from the mortgagee to seize and sell the 
 mortgaged property, the sheriff does not act officially, but merely 
 as the private agent of the mortgagee.' It is claimed, however, 
 that the bailor, Clendenning, being present when the goods were 
 demanded of the defendant's agent by the agent of the plaintiffs, 
 and saying nothing, was an admission that plaintiffs were the 
 rightful owners, and entitled to the immediate possession of the 
 goods, and therefore defendant had no excuse for refusing to 
 
 '• Robins v. Euff, 2 Hill, L. 406.
 
 934 DELIVERY OF GOODS. 
 
 comply with the demand. But what obligation rested upon him 
 to interpose in the colloquy between the agents of plaintiffs and 
 defendant. lie delivered the goods for shipment to the defend- 
 ant, and held its bill of lading obligating defendant to deliver 
 them according to its terms, and there was no occasion for him to 
 speak. If he had stood silently by and allowed the defendant 
 to deliver the goods to plaintiffs, claiming to be the rightful own- 
 ers, without protest or objection, he might have been estopped 
 from subsequently claiming them from defendant ; but his silence 
 when plaintiffs were making an unsuccessful demand on defend- 
 ant could not possibly affect the question involved here. Tlie 
 judgment was reversed. 
 
 McGowan, J., in concurring stated that " after careful considera- 
 tion, it seems to me that, when a cominon carrier is intrusted 
 with property for transportation, his iirst resjionsibility is to the 
 person who has intrusted him with the property, and, upon claim 
 of the property by a third party, that he should not be required, 
 at his risk, to judge between the parties as to the ownership of 
 the property. He should, however, always and at once yield to 
 the force of legal process, which intervenes and takes the prop- 
 erty, thus relieving the carrier from the responsibility of being 
 judge in the matter. I have not been able to satisfy myself that 
 the paper presented to the official of the railroad in this case was 
 in the proper sense legal process. It seems to have been a 
 simple mortgage of personal property, after condition broken, but 
 there was about it none of the usual indicia of legal process, such 
 as a summons, warrant, writ, or seal of the court. It did not ap- 
 pear that there had been any judicial determination of the mat- 
 ter, and tlie paper was in the hands of one who, on the occasion, 
 was acting merely as the agent of the mortgagees. For this rea- 
 son I concur in the opinion of the chief justice." 
 
 In a case where goods were seized on attachment, the court 
 held : " If goods are taken from a bailee or carrier by authority 
 of law, in any case coming within these exceptions, there is no 
 doubt that it is a good defense to an action by the bailor or ship- 
 per, for a nondelivery."* In Vermont, where goods in the hands 
 
 ' Van Winkle v. United States Mail SS. Co. 37 Barb. 122.
 
 WHAT WILL EXCUSE NON-DELIVERY OF GOODS. 935 
 
 of a wlmrfing-er were seized under legal process, the court held 
 that if they were taken from the wharfinger or warehouseman, by 
 lawful process, the wharfinger or warehouseman can protect him- 
 self in a suit brought against him by the owner.' In order, how- 
 ever, that such seizure may be a legal excuse for the non-delivery 
 of the goods, it must be shown that the proceedings or process 
 under which it was made by the oflicer was legal and valid, and 
 that it empowered him to make it ; for if it was void because issu- 
 ing from a court having no jurisdiction, or for any other reason, 
 and conferred no such authority, he would be a mere trespasser, 
 and the carrier would be no more obliged to submit to his acts 
 under it than to any other wrong-doer.' 
 
 Common carriers are not included in the provision of Rev. Stat., 
 chap. 30, § 12, imposing a penalty on "whoever . . . has in 
 possession" between October 1 and January 1, more than the 
 number therein specified of the carcasses of certain wild animals. 
 A shipper's knowledge of directions to the carrier's agent not to 
 receive certain articles for transportation will not relieve the car- 
 rier from liability for their loss if their transportation is actually 
 undertaken. The game laws of a state can give no authority to 
 take carcasses of animals, or parts thereof, while in the course of 
 interstate transportation, away from a conunon carrier on the 
 ground that the animals have been killed in violation of such 
 laws. Seizure of property in the course of transportation, by an 
 officer, without a warrant or other legal process, does not excuse 
 the carrier for nondelivery.* 
 
 Where the property of the plaintiff, while in the hands of the 
 defendant as common carrier, in tran.iitu, was seized by an officer 
 without any warrant or other legal process, and none was ever 
 obtained, the officer was a mere trespasser, and the carrier was 
 liable, under the rule of the common law, in the same manner as 
 if it had allowed any other trespasser to take the property out of 
 
 ' Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145. 
 
 ''Savannah, G. & N. A. R. Co. v. Wilcox, 48 Ga. 432; Bliven v. Undnon River 
 R. Co. 36 N. Y. 403; Edwards v. White Line Transit Co. 104 Mass. 159, 6 
 Am. Rep. 213. 
 
 'Bennett v. American Exp. Co. 13 L. R. A. 33, 83 Me. 236.
 
 936 DELIVERY OF GOODS. 
 
 its custody.' As against the consignor the seizure was of no more 
 validity than a trespass by an unofficial person. "Where there has 
 never been any adjudication from any tribunal that the proj)erty 
 seized was contraband, or other than the lawful property of the 
 plaintiff, the common carrier is not relieved from the fulfillment 
 of his contract, or his liability as such carrier, any more than if 
 the loss had occurred from fire, theft, robbery or accident. He 
 stands in the relation of insurer, where no special contract is 
 shown, and upon grounds of public policy is liable for all losses 
 resulting from accident, trespass, theft or any kind of unlawful 
 disposition of the property intrusted to him to carry, excepting 
 only such as arise b}-^ the act of God or public enemies.' 
 
 In the case of Edwards v. White Line Transit Co. 104 Mass. 
 163, 6 Am. Rep. 213, it was held that, while the carrier was not 
 liable in trover for conversion of the property, he was nevertheless 
 liable on his contract or obligations as common carrier, where the 
 officer seizing the property was a trespasser. " The owner may, 
 it is true," says the court, " maintain trover against the officer who 
 took the property from the carrier ; but he is not obliged to resort 
 to him for his remedy. He may proceed directly against the car- 
 rier upon his contract, and leave the carrier to pursue the property 
 in the hands of those who have wrongfully taken it from him." 
 As a general rule, a common carrier is not liable for the loss of 
 goods, if they be taken from his possession by legal process against 
 the owner, or if, without his fault, they have become obnoxious 
 to the police regulations of the state, and are seized and destroyed 
 under their authority ; but, to protect the carrier in such cases, it 
 is necessary that the seizure be made without his procurement or 
 connivance, that the proceeding or process under which it is made 
 appear to be valid, and that the carrier give prompt notice of the 
 seizure to the owner.' 
 
 "Where, without the negligence of the carrier, the goods he is 
 
 ^Edwards v. White Line Transit Co. 104 Mass. 163, 6 Am. Rep. 213. 
 
 * Adams v. Scott, 104 Mass. 166; Kiffv. Old Colony & N. R. Co. 117 Mass. 593, 
 
 19 Am. Rep. 439; FUlebrown v. Oraiid Trunk B. Co. 55 Me. 462, 92 Am. 
 
 Dec. 606. 
 
 *BaUimo7-e & 0. R. Co. v. O'Donnell, 49 Ohio St. 489; Miami Powder Co. v. 
 Poo-t Royal & W. C. R. Co. 21 L. R. A. 123, 38 S. C. 78.
 
 WHAT WILL EXCUSE NON-DELI VEKY OF GOODS. 937 
 
 transporting become infected so as to endanger public liealth, and 
 they are taken possession of and destroyed by the public autliori- 
 ties — and where the goods in themselves are under the local law 
 subject to confiscation, the legal enforcement of the penalty will 
 discharge the carrier/ A railroad company with knowledge of 
 the fact is not exempt from liability for damages for failure to 
 deliver freight for the reason that the freight is to be used for an 
 illegal purpose at the point of destination, unless that illegal pur- 
 pose was the consideration of the contract,' 
 
 A railroad company is not liable for damages for refusing to 
 deliver goods shipped to one w' ho does not produce a bill of lading 
 or sufficiently identify himself as the owner, although he offers 
 security.' The holder of a bill of lading cannot recover against 
 the carrier for refusal to deliver the goods, when it appears that 
 before he purchased such bill the consignor had consented to a 
 delivery by the carrier to the consignee, and had received payment 
 by the consignee for the goods.* So the carrier may excuse 
 delivery, on the ground that in order to save the vessel and pre- 
 serve life he was compelled to east the goods overboard.* 
 
 ^Kidd V. Pearson, 128 U. 8. 1, 32 L. ed. 346. 2 Inters. Com. Rep. 232; Wells 
 V. Maine SS. Co. 4 Cliff. 228; Pierce v. New Hampshire, 46 U. S. 5 How. 
 504, 12 L. ed. 256; Mugler v. Kansas, 123 U. 8. 623, 31 L. ed. 205; Hanni- 
 bal & St. J. E. Co. V. HiLsen. 95 U. S. 465, 24 L. ed. 5^7; Bliven v. Hudson 
 River R. Co. 31 Barb. 191, But see Leim/ v. Hardin, 135 U. 8. 100, 34 L. ed. 
 128, 3 Inters. Com. Rep. 36. 
 
 ''Waters v. Richmond & D. R. Co. 16 L. R. A. 834. 110 N. C. 338. 
 
 » Qulf, C. & 8. F. R. Co. V. Freeman (Tex. App.) 9 Ry. & Corp. L. J. 497. 
 
 * Alabama Nat. Bank v. Mobile & 0. R. Co. 42 Mo. App. 284. 
 
 ''Smith V. Wright, 1 Cai. 43, 2 Am. Dec. 162.
 
 CHArXEli XXll. 
 
 DELIVERY OF GOODS,— Continued. 
 
 § 144. Delivery hy Carrier by Water. 
 
 § 145. Demurrage. 
 
 § 146. When Liable only as Warehouseman. 
 
 § 144' Delivery hy Carrier hy Water. 
 
 A carrier by water must convey goods from port to port, or 
 from wharf to wharf. An actual or manual transfer of the goods 
 into the possession of the consignee, or at his warehouse, is not 
 required in order to discharge tlie carrier from his liability as 
 such.' A delivery must be made at a safe and proper place. 
 Landing heavy goods upon an insufficient wharf renders the car- 
 rier liable if it breaks." He is not bound to deliver at the ware- 
 house of the consignee ; it is the duty of the consignee to receive 
 the goods out of the ship or on the wharf. The mere landing 
 goods on a wharf is not sufficient.' But a delivery on the usual 
 wharf will discharge the master, provided he gives notice to the 
 consignee that he may come and take them.* 
 
 To constitute a valid delivery t)n the wharf, the carrier was re- 
 quired by the common law of the state to give due and reasonable 
 notice to the consignee,^ so as to afford him a fair opportunity of 
 
 ' Richardson v. Goddard, 64 CJ. S. 23 How. 28, 16 L. ed. 412. 
 
 « The Majestic, 12 N. Y. Leg. Obs. 100. 
 
 '^Salmon Falls Mfg. Co. v. Tlie Tangier, 6 Am. L. Reg. 504; The Mary Wash- 
 ington V. Ayres, 5 Am. L. Reg. N. S. 692; Mordecai v. Lindsay ("The 
 Eddy") 72 U. S. 5 Wall. 481, 18 L. ed. 486. 
 
 ^Ryde v. Trent & M. Nav. Co. 5 T. R. 397; Chickering v. Fowler, 4 Pick. 371; 
 Cope V. Cordova, 1 Rawle, 203; Ostrander v. Brown, 15 Johns. 39, 8 Am. 
 Dec. 211; Dibble y. Morgan, 1 Woods, 406; The Tybee, 1 Woods, 358; Gib- 
 son V. Culver, 17 Wend. 305, 31 Am. Dec. 297; Shenk v. PhiladeliMa Steam 
 Propeller Co. 60 Pa. 109, 100 Am. Dec. 541; Western Transp. Co. v. HaiD- 
 ley, 1 Daly, 327; Solomon v. Philadelphia & N. T. Exp. S. B. Co. 2 Daly, 
 
 * The Ville Be Paris, 3 Ben. 277. 
 
 938
 
 DELlVEfty BY CAKKIER BY WATKR. 939 
 
 providing suitable means to remove the goods, or put them under 
 proper care and custody, but changes in navigation and rapid 
 transportation and a reasonably ascertainable time of arrival has 
 modified this requirement of notice to the consignee.' Such a de- 
 livery to be effectual, should not only be at the proper place, 
 which is usually the wharf, but at the proper time. Where the 
 goods were deposited for the consignees in proper order and con- 
 dition, at midday, on a week day in good weather, this consti- 
 tuted a good delivery.' This is the general commercial usage. 
 The consignee must receive the goods at the wharf or from the 
 ship.' He must deliver, within a reasonable time after the arrival 
 ■of the ship. The circumstances of each case determine what is a 
 reasonable time.* 
 
 But goods landed at a wharf before delivery to the consignee 
 will be under the master's care and responsibility without addi- 
 tional expense to the consignee of them till they shall be ready 
 for delivery.' Delivery after business hours is not good, nor is 
 the consignee obliged to receive goods on a stormy day when they 
 would be injured thereby." But the consignee cannot object that 
 goods were placed on wharf at the usual dinner hour of the truck- 
 men.' The master of the ship has a reasonable time to find out 
 the freight due, but he has no right meantime to store the goods 
 at the owner's expense.* If the goods, on the arrival of the ship, 
 are put on board a lighter, and the owner takes the custody of 
 them before they are landed, the master is discharged.' An 
 
 > Constable v. National SS. Co. 154 U. 8. 51, 38 L. ed. 903. 
 
 ^Richardson v. Goddard, 64 U. S. 23 How. 28, 16 L. ed. 412. 
 
 * Richardson v. Ooddard, supra; Mordecai v. Lindsay (" The Eddy ") 72 U. S. 
 
 5 Wall. 481, 18 L. ed. 486. 
 
 *Hand v. Baynes, 4 Whart. 204, 33 Am. Dec. 54; Broadwell v. Butler, 6 Mc- 
 Lean, 296, 1 Newb. Adm. 171; Gerhard v. Neese. 36 Tex. 685; Favor v. 
 PhiLbrick, 5 N. H. 358; Nudd v. WeUs, 11 Wis. 408; Ward v. Xew York 
 Cent. R. Co. 47 N. Y. 29, 7 Am. Rep. 405; Pardons v. Hardy, 14 Wend. 215, 
 28 Am. Dec. 521; Gatliffe v. Bourne, 4 Bing. N. C. 314. 
 
 ^Brittan v. Barnaby, 62 U. S. 21 How. 527, 16 L. ed. 177; Richardson v. 
 Goddard, 64 U. S. 23 How. 28, 16 L. ed. 412. 
 
 « Eagle v. White, 6 Whart. 505, 37 Am. Dec. 434; Hill v. Humphreys, 5 Watts 
 
 6 S. 123, 39 Am. Dec. 117; The Grafton, 1 Blatchf. 173; Olcolt, Adm. 43. 
 ' Salmon Falls Mfg. Co. v. The Tangier, 1 Cliflf. 396. 
 
 « The Diadem, 4 Ben. 247. 
 ^Strong v. Natally, 4 Bos. & P. 16.
 
 940 DELIVERY OF GOODS. 
 
 owner of a cargo cannot dispute its delivery wlicn he has taken it 
 from the store into wliich it was put by tlie master of the vessel, 
 subject to freight, and has given security for the freight.' Goods 
 cannot be abandoned upon the wharf. If this is done, the car- 
 rier is responsible to the owner for their less or injury.^ The 
 consignments must be separated.' 
 
 Delivery on a wharf is sufficient if due notice be given to the 
 consignees, and the different consignments be properly separated 
 so as to be open to inspection and contents easily accessible to 
 their respective owners.* But where the consignee alone has the 
 right to select the wharf and neglects or omits to do so, a vessel 
 can refuse to discharge and can charge demurrage.* Where the 
 delivery contemplated by the contract was a transfer of property 
 into the power and possession of the consignees, the surrender of 
 possession by the master must be attended with no fact to impair 
 the title, or affect the peaceful enjoyment of the property. The 
 delivery of the cargo into the customhouse, and demand of 
 duties of the consignee is not a right delivery, and the consignees 
 are not responsible for its safety afterwards.' The liability of a 
 ship as a common carrier continues for a reasonable time to enable 
 the shipper to claim and take possession of goods, although he 
 is a passenger on the same ship and not entitled to notice/ 
 
 A carrier is not liable on his contract of affreightment for the 
 loss by fire of goods where he delivered the goods at the place 
 designated by the consignee, and where he received a large por- 
 
 1 The Adella 8. mils, 47 Fed. Rep. 76. 
 
 * Roland v. Miln, 2 Hilt. 150; McAndrew v. Whitlock, 52 N. Y. 40, 11 Am. 
 
 Rep. 657, affirming 2 Sweeny, 623. 
 8 The Middlesex, 11 Law Rep. N. 8. 14. 
 
 * Richardson v. Ooddard, 64 U. S. 23 How. 28, 16 L. ed. 412; 3fordecai v. 
 
 Lindsay (" The Eddy") 72 U. S. 5 Wall. 481, 18 L. ed. 486; Byde v. Trent 
 & M. Nav. Co. 5 T. R. 397; Chickering v. Fowler, 4 Pick. 371; Cope v. Cor- 
 dova, 1 Rawle, 203; Ostrander \. Brown, 15 Johns. 39, 8 Am. Dec. 211; 
 Dibble v. Morgan, 1 Woods. 406; The Tybee, 1 Woods, 358; Gibson v. Cul- 
 ver, 17 Wend. 305, 31 Am. Dec. 297; Shenk v. Philadelphia Steam Propeller 
 Co. 60 Pa. 109, 100 Am. Dec. 541; Western Tran.ip. Co. v. Hawley, 1 Daly, 
 327; Solomon v. Philadelphia & N. T. Exp. S. B. Co. 2 Daly, 104. 
 » The Dictator, 30 Fed. Rep. 637. 
 
 * Eowland v. Oreenway, 63 T. S. 12 How. 491, 16 L. ed. 391. 
 
 "* Hamburg -American Packet Co. v. Qattman, 27 111. App 182 affirmed in 
 127 111. 598.
 
 DELIVERY BY CARKIEK BY WATER. 941 
 
 tion of them after full and fair notice. Where the goods were 
 deposited for the consignee in proper condition at midday, in good 
 weather, this constituted a good delivery.' But proof of the ac- 
 ceptance of goods at a place of disaster, should be clear and satis- 
 factory in order to operate as a discharge of the vessel. It should 
 appear that acceptance was intended as a discharge of the vessel 
 and the owner, from any further responsibility by which the con- 
 tract in the bill of lading was rescinded." When unable to carry 
 the goods to their place of destination from causes over which he 
 has no control — as by the stranding of a vessel — the master is still 
 bound to take all possible care of the goods, and is responsible for 
 every loss or injury which might have been prevented by human 
 foresight, skill and prudence.* 
 
 In the absence of any custom or express contract, it is the busi- 
 ness of the ship to find a berth in the port of discharge.* An 
 ocean vessel, reaching the port of delivery with a cargo consigned 
 to several different parties, may generally select any suitable, 
 proper wharf for the delivery. Any other mode of delivery may 
 be impractical, and hence usage and custom sanction such a deliv- 
 ery ; but, a usage may obtain which may make a different deliv- 
 ery obligatory. Thus, if the entire cargo was consigned to one 
 person, unless there is a different usage, — the place of delivery 
 being immaterial to the carrier — the consignee would have a right 
 to designate the place of delivery.* Of course, wliere the wharf 
 is specified, this will control the delivery ;' otherwise, the prevail- 
 ing custom at the port, or of tlie parties, will control the place of 
 delivery.' The fact that a carrier usually discharges goods at his 
 
 ■ Richardson v. Ooddard, .mpi'a. 
 
 ^Barren v. The Mohawk (" The Mohawk") 75 U. S. 8 Wall. 153, 19 L. ed. 
 
 406. 
 « The Niagara v. Cordes, 62 U. S. 21 How. 7, 16 L. ed. 41. 
 * Smith V. New York & N. Granite Pav. Block Co. 56 Fed. Rep. 527, affirming 
 
 56 Fed. Rep. 525. 
 ^Richmond v. Union 8. B. Co. 87 N.Y. 240; The Sultana v. Chapman, 5 Wis. 
 
 454; The E. H. Fittler, 1 Low. Dec. 114; Dixon v. Dunham, 14 111. 324. 
 *McCullough v. Hellweg, 66 Md. 269. 
 ' Richmond v. Union S. B. Co. nupra; Salmon Falls Mfg. Co. v. The Tangier, 
 
 1 Cliff. 396; Montgomery v. Tlie Port Adelaide, 38 Fed. Rep. 753; Dixon v. 
 
 Dunham, nupra.
 
 9412 DELIVERY OF GOODS. 
 
 own wharf does not imply a contract to do so, when there is j^ood 
 reason for not doing so, — as, for instance, that its own wharf is 
 full.' 
 
 Under what may be termed the common law of the sea, a de- 
 livery of the cargo to discharge the carrier from his liability, must 
 be made upon the usual wharf of the vessel and actual notice be 
 given to the consignee, if he be known. Tliis was the ruling in 
 the case of Richardson v. Goddard, 04 U. S. 23 How. 28, 39, 16 
 L. ed. 412, 416, and Mordecai v. Lindmy {''The Eddy'') 72 U. 
 S. 5 Wall. 481, 18 L. ed. 486, and is in conformity with the great 
 weight of English and American authority.* This rule, however, 
 originated prior to the era of steam navigation, when a voyage 
 from Liverpool to New York rarely consumed less than three 
 weeks ; when the time of the arrival of the vessel could not be 
 forecast with any accuracy ; when crews were discharged immedi- 
 ately upon her arrival; and the vessel was usually detained sev- 
 eral weeks in the slow and laborious process of unloading, taking 
 on cargo, and refitting before setting out upon another voyage. 
 Such methods of delivery were found wholly inadequate to the 
 necessities of modern commerce, and particularly to the compara- 
 tively short voyages of the large transatlantic passenger steamers, 
 which are kept permanently equipped with large and expensive 
 crews, at a cost of several hundred dollars per day, and in order 
 to be profitably employed must be kept in almost constant motion. 
 In such cases the consignees of the cargo may be numbered by 
 the hundreds, and a requirement that each consignee shall have a 
 personal notice of the unloading of the cargo, in order to relieve 
 the carrier from responsibility, would necessitate delays which 
 might consume the entire profits of the voyage. It is of the 
 utmost importance that the discharge of the cargo shall begin as 
 soon as possible after the vessel arrives at her wliarf, and if the 
 consignee may sometimes be spurred to greater diligence, or put 
 to some inconvenience in removing his consignments, he receives 
 
 ' Arnold v. National SS. Co. 29 Fed, Rep. 184. 
 
 ''Epde V. Treiit & M. Nav. Co. 5 T. R. 389; Qibson v. Cu'ver, 17 Wend. 305. 
 31 Am. Dec. 297; 1 Parsons, Ship. 222.
 
 DELIVERY BY CARRIER BY WATER. 9i3 
 
 a compensation in the lower rate of freight the vessel is thereby 
 enabled to charge. 
 
 To obviate the difficulties attendant upon the ancient method 
 of discharging, the regular steamship lines are in the habit of 
 providing themselves with wharves having covered warehouses, 
 into which the cargo is discharged, and of inserting in their bills 
 of lading stipulations that the responsibility of the vessel shall 
 cease after the goods are discharged, and thus of extending their 
 statutory exemption from fire to such as may occur before load- 
 ing or after unloading. In view of the fact tliat the piers of the 
 regular steamship lines are well known to every importer, and 
 the day of arrival of each steamer may be predicted almost to a 
 certainty, there is nothing unreasonable in this stipulation. An 
 importer, having reason to anticipate the arrival of goods by a 
 certain steamer, by putting himself in communication with the 
 office of the company, may usually secure a notice of several 
 hours of the actual arrival of the vessel at her wharf. It is also 
 well known that, in lieu of a personal notice to each consignee or 
 of publication through the papers a custom has grown up in the 
 port of New York of posting on a bulletin board in the custom 
 house a notice of the time aud place of discharge. Taking all 
 these facts into consideration, there is no impropriety in the com- 
 pany limiting itself to the liability of a warehouseman with respect 
 to the goods so discharged into his own warehouse.' 
 
 It is true that it has been decided that a fire originating upon 
 the dock could not be said to have " happened to the ship" within 
 the meaning of section 4282 of the Limited Liability Act, even 
 though the tire extended to and did some damage to the vessel," 
 but no good reason is perceived why, if a wise policy requires the 
 exemption of the carrier from a fire occuring without his fault, 
 such exemption should not extend to any such fire while the 
 goods are in his possession and under his control, or at any time 
 before actual delivery to the consignee. But, however this may 
 be, there can be no question of the power of the carrier to extend 
 his statutory exemption from fire to such as occur after the dis- 
 
 1 Constable v. National SS. Co. 154 U. S. 51, 38 L. ed. 903. 
 « MorevH^d v. Pollok, 1 El. & Bl. 743.
 
 94:4 DELIVEKY OF GOODS. 
 
 cliarge of tlie cargo, l)y special stipulation to that effect in the bill 
 of lading. Ante, § 45. Thus in York ^Ifg. Co. v. JlUnoin Cent. 
 R. Co., 10 U. S. 3 Wall. 107, 18 L. ed. 170, it was held that the 
 common law liability of a carrier might be limited by special con- 
 tract with the owner, and that the exemption in a bill of lading 
 from losses by fire was sufficient to protect the carrier, if the fire 
 were not occasioned by any want of due care on his part.' In- 
 deed, a general exemption from the consequences of fire has been 
 held to extend not only to fires happening on board the vessel, 
 but to fires occurring to the goods while on the wharf awaiting 
 transportation.' 
 
 No rule is better settled than that the delivery must be accord- 
 ing to the custom and nsage of the port, and such delivery will 
 discharge the carrier of his responsibiUty. Thus in Dicoii v. 
 Dunham, 14 111. 324, it was said that " it was competent for the 
 defendant," the carrier, " to set up a custom or usage in the port 
 of Chicago, that goods should be delivered at the wharf selected 
 by the master of the vessel, and that consignees should receive 
 their goods there, with the averment of knowledge of such a cus- 
 tom in the plaintiff, and that this contract was made in accord- 
 ance with it." So also in GutUffe v. Bourne, 4 Bing. N. C. 314, 
 Chief Justice Tindall said : " We know of no general rule of law 
 which governs the delivery of a bill of goods under a bill of lad- 
 ing, where such delivery is not expressly according to the terms 
 of the bill of lading, except that it must be a delivery according 
 to the practice and custom usually observed in the port or place 
 of delivery." ' In The Sultana v. Chapman, 5 Wis. 454, there 
 was a delivery at a place where the court held the boat had no 
 right to leave the goods, and they were there destroyed. Under 
 such circumstances, notwithstanding the exception in the bill of 
 
 ' See also New Jersey Steam Nav. Go. v. Merchantu Bank of Boston, 47 U. S. 6 
 How. 344, 383, 12 L. ed. 465, 482; Michigan Gent. R. Go. v. Mineral Springs 
 Mfg. Go. 83 U. S. 16 Wall. 318. 21 L. ed. 297; Pho&nix Ins. Go. v. Erie & 
 W. Transp. Go. 117 U. S. 312, 29 L. ed. 873. 
 
 » Scotl V. Baltimore, G. & R. S. B. Go. 19 Fed. Rep. 56. 
 
 * See also Farmers & M. Bank v. Ghamplain Transp. Go. 33 Vt. 186, 56 Am. 
 Dec. 68; Salmon Falls Mfg. Go. v. The Tangier, 1 Cliflf. 396; Richmond v. 
 Union S. B. Go. 87 N. Y. 240; Gibson v. Culver, 17 Wend. 305, 31 Am. 
 Dec. 297; The Boston, 1 Low. Dec. 464.
 
 DELIVERY BY CAKRIER BY WATER. 945 
 
 lading, the carrier was held not to be exempted from liability for 
 the loss. " He had no right," said the court, " to place these 
 goods where he did ; and having done so, and a loss having en- 
 sued, he must be held responsible for it, as being occasioned by 
 his own negligence or misconduct." 
 
 In the case of The Santee, 1 Blatchf. 186, a bill of lading cov- 
 ering a shipment of cotton, contained a clause that the cotton 
 should be at the risk of the consignee as soon as delivered from 
 the tackles of the vessel at the port of destination. It appeared 
 that the consignee had proper notice of the arrival of the vessel, 
 and of her discharge, and an oppoi'tunity by reasonable diligence 
 to identify his cotton and receive it. The cotton was placed 
 safely on the wharf, when discharged, and a portion of it, belong- 
 ing to the libelants, was removed by some other person, but was 
 not actually delivered by the agents of the vessel to such other 
 party. It was held that the vessel was not liable for the loss. It 
 is true that, in delivering the opinion, it was said the carrier was 
 still bound to give suitable information to the consignees, to enaljle 
 them to attend and receive the goods, and themselves assume and 
 exercise that care and responsibility of which the carrier was to 
 be relieved. But notice in this case was admitted to have been 
 given, and the only question was whether under the bill of lading 
 the carrier was liable after the cotton was discharged, and it was 
 held that he was not, JNor was he " bound to watch the property 
 after it passed beyond the vessel's tackles, to see that it was kept 
 safe or protected from removal through mistake or design, by third 
 persons." 
 
 In Collins v. Burns^ 63 >'. Y. 1, it was held that the clause 
 providing for immediate discharge in the warehouse at the risk of 
 the consignee of fire, loss, or injury, did not exonerate the carrier 
 for delivering goods to the wrong party, or to a draj^man who was 
 not authorized to receive them. The court of appeals, however, 
 held expressly that the liability of defendants was that of ware- 
 houseman, and, therefore, that they were responsible only for neg- 
 ligence. 
 
 So in Tarhell v. Royal Exch. Shipping Co. 110 N. Y. 170, the 
 goods were discharged from the ship and deposited on a proper 
 6Q
 
 946 DELIVERY OF GOODS. 
 
 wharf, and after the consignee had had three full days to remove 
 them, it was discovered that a part had heen removed from the 
 wharf by some one without the authority of the consij^nees. It 
 was held that, as the loss occurred after the lapse of a reasonable 
 time for removal of the goods by the consignees, after notice of 
 arrival, defendant was not liable as a common carrier, but that the 
 defendant was negligent in omitting to take ordinary care of the 
 goods, and allowing them to be removed without taking receipts. 
 It was expressly held, however, that the liability of defendant as 
 carrier terminated with the delivery of the goods upon the wliarf, 
 and that its liability arose from its negligence in delivering them 
 to the wrong person. 
 
 It has been claimed that the berthing of a ship at a pier other 
 than her own was in legal eifect a deviation, which rendered the 
 company an insurer of the cargo discharged at such pier without 
 notice, until its actual delivery to the consignee. In the law mari- 
 time a deviation is defined as a " voluntary departure without 
 necessity, or any reasonable cause, from the regular and usual 
 course of the ship insured.'" As for instance, where a ship bound 
 from New York to Norwich, Conn., went outside of Long Island, 
 and lost her cargo in a storm' or where a carrier is guilty of un- 
 necessary delay in pursuing a voyage, or in the transportation of 
 goods by rail.' But, if such deviation be a customary incident of 
 the voyage, and according to the known usage of trade, it neither 
 avoids a policy of insurance, nor subjects the carrier to the 
 responsibility of an insurer.* In Ilostetter v. Park, 137 U. S. 30, 
 34 L. ed. 568, it was held to be no deviation, in the Pittsburg and 
 New Orleans barge trade, to land and tie up a tow of barges, and 
 detach from the tow such barge or barges as were desig- 
 nated to take on cargo en route, and to tow the same to the sev- 
 eral points where the cargo might be stored, it having been shown 
 
 •Bouvier, Law Diet. 417; Hostetter v. Park. 137 U. S. 30, 40. 34 L. ed. 568. 
 572; Davis v. Garrett, 6 Bing. 716; WUliauis v. Grant, 1 Conn. 487, 7 Am 
 Dec. 235. 
 
 * Crosby v. Fitch, 12 Conn. 410. 31 Am. Dec. 745. 
 
 * Michaels v. New Yoi-k Cent. R. Co. 30 N. Y. 564, 86 Am. Dec. 415. 
 
 * Oliver v. Maryland Ins. Co. 11 U. S. 7 Cranch, 487, 3 L. ed. 414; Columbian 
 
 Ins. Co. V. Catlett, 25 U. S. 12 Wheat. 383, 6 L. ed. 664.
 
 DELIVERY BY CARRIER BY WATER. 947 
 
 that snch delays were within the general and established usage of 
 the trade. So, in Grade v. Marine Ins. Co. 19 U. S. 8 Cranch, 
 75, 3 L. ed. 492, it was held to be no deviation to land goods at a 
 lazaretto or quarantine station, if the usage of the trade permitted 
 it, though by the bill of lading the goods were " to be safely 
 landed at Leghorn.'" 
 
 In Gleadeu v. Thomson, 56 K Y. 194, it was said of a similar 
 stipulation in a bill of lading, that the goods should be taken from 
 alongside by the consignee, immediately the vessel is ready to 
 discharge: "The landing of the goods upon the pier of the 
 plaintiff, under the circumstances of this case, did not, we think, 
 change his relation to the goods, and divest him of his custody of 
 them as a carrier. The privilege to make this disposition of them 
 was secured to him by the bill of lading, unless the consignee was 
 ready to take the goods from the ship M'henever it was ready to 
 discharge. It was not incumbent upon the plaintiff to give notice 
 of a readiness to discharge the goods as a condition of his exercis- 
 ing the privilege of depositing them upon the pier. They, how 
 ever, remained after such deposit in his custody as carrier, subject 
 to the modified responsibility created by the contract, until after 
 notice had been given to the consignees of their arrival, and a 
 reasonable time had elapsed for their removal. Meanwhile the 
 defendants assumed the risk of ' fire, loss or injuiy ' to the goods, 
 according to the contract, but the language used did not exempt 
 the plaintiff from liability for an injury resulting from his own 
 negligence." In a recent case the bill of lading read as follows : 
 
 National Steamship Company, Limited. 
 Head Office, 21 Water street, Liverpool ; New York Office, 69 
 
 Broadway. 
 Liverpool to New York every Wednesday. 
 [Stamp, six pence.] 
 Shipped in good order and well conditioned, by Moore & 
 Pringle, in and upon the steamship called the Egypt, whereof 
 
 is master for the present voyage, or whoever else may 
 
 go as master in the said ship, and now lying in the port of Liver- 
 
 ' See also Phelps v. Hill [1891] 1 Q. B. 605. 
 t
 
 948 DELIVERY OF GOODS. 
 
 pool and bound for New York via Qiieenstown, with liberty to 
 sail with or without pilots, and to tow and assist vessels in all 
 situations and to all ports. 
 
 Forty-three cases merchandise (linens and cottons) three cases 
 and five bales (carpets and Dundees) beinjy marked and numbered 
 as in the margin, and to be delivered subject to the following 
 exceptions and conditions, viz : The act of God, the Queen's 
 enemies, pirates, robbers, thieves by land or at sea, l)arratry of 
 master or mariners, restraint of princes, rulers, or peoples, loss or 
 damage resulting from vermin, rust, sweating, wastage, leakage, 
 breakage, or from rain, spray, coal, or coal dust, insufficiency of 
 strength of packages, inaccuracy, indistinctness, illegibility, or 
 obliteration of marks, numbers, brands, or addresses, or descrip- 
 tions of goods, injury to wrappers, however caused, or from cor- 
 ruption, frost, decay, stowage, or contact with or smell or evapo- 
 ration from other goods, or from loss or damage caused by heavy 
 weather or pitching or rolling of the vessel, or from inherent de- 
 terioration, risk of lighterage to or from the vessel, transshipment, 
 jettison, explosion, spontaneous combustion, fire before loading 
 in the ship or after unloading, heat, boilers, steam, or steam ma- 
 chinery, including consequences of defects therein or damages 
 thereto, collision, stranding, straining, or other perils of the seas, 
 rivers, steam and steam navigation or land transit of whatsoever 
 nature or kind, and all damage, loss, or injury arising from the 
 perils or matters above mentioned, and whether such perils or 
 matters arise from negligence, default, or error in judginent of 
 the pilot, master, mariners, engineers, stevedores, or other persons 
 in the service of the shipowner. Not accountable for weight, 
 contents, value, length, measure, or quantities or condition of 
 contents, nor for money, documents, gold, silver, bullion, specie, 
 precious metals, jewelry, precious stones, or other highly valued 
 goods, or beyond the amount of one hundred pounds sterling for 
 any one package, unless bills of lading are signed therefor and 
 the value therein expressed and freight paid accordingly. The 
 ISTational Steamship Company (Limited) or its agents or any of its 
 servants are not to be liable for any damage to any goods which 
 is capable of being covered by insurance, nor for any claim, no-
 
 DELIVERY BY CARRIER BY WATER. 949 
 
 tice of which is not given before the removal of the goods, nor 
 for any claims for loss, damage, or detention to goods under 
 through bill of lading where the loss or detention occurs or dam- 
 age is done whilst the goods are not actually in the possession of 
 the National Steamship Company (Limited) or shipped on board 
 the National Steamship Company's (Limited) steamer, nor in any 
 case for more than known or invoiced value of the goods, which- 
 ever shall be least. Goods of an inflammable, explosive, or other- 
 wise dangerous character, shipped without permission of full dis- 
 closure of their nature and contents, may be seized and confiscated 
 or destroyed by the shipowner at any time before delivery without 
 any compensation to the shipper or consignee. In case any pai-t 
 of the within goods cannot be found for delivery during the ves- 
 sel's stay at the port of destination they are, when found, to be 
 sent back by first steamer at ship's expense, the steamer not to 
 be held liable for any claim for delay or sea risk. The only con- 
 dition upon which glass will be carried is that the shipowner shall 
 not be held liable for any breakage which may occur from negli- 
 gence or any other cause whatever. The goods to be taken from 
 alongside by the consignee innnediately the vessel is ready to 
 discharge or otherwise they will be landed by the master and de- 
 posited at the expense of the consignee and at his risk of fire, 
 loss, or injury in the warehouse provided for that purpose or in 
 the public store, as the collector of tlie port of New York shall 
 direct, and when deposited in the warehouse or store to be sub- 
 ject to storage, the collector of the port being hereby authorized 
 to grant a general order for discharge immediately after entry of 
 the ship. The United States Treasury having given permission 
 for goods to remain forty-eight hours on wharf at New York, any 
 goods so left by consignee will be at his or their risk of fire, loss, 
 or injury. In the event of the said steamer being prevented from 
 any cause from commencing or pursuing this voyage or putting 
 back to Liverpool or into any port, or otherwise being prevented 
 from any cause from proceeding in the ordinary course of her 
 voyage, to have liberty to transship the goods by any other 
 steamer to call at any port or ports. All fines, expenses, losses, 
 or damage which the ship or cargo may incur or suflier on account 
 
 '.1
 
 950 DELIVERY OF GOODS. 
 
 of incorrect or insufficient marking of the packages or description 
 of their contents shall be paid by the shippers or consignee, as 
 may be required, and the shipowner shall have a lien upon the 
 goods for the payment hereof. In the case of all goods at through 
 rates to the interior of the United States or Canada the shipper 
 or consignee engages to supply the agent of the steamer at New- 
 York (F. W. J. Hurst) with the necessary papers for passing the 
 goods through the customhouse by the time of steamer's arrival 
 or to i)ay all extra expense incurred in default thereof. Should 
 any existing or future order or restriction of the English emigra- 
 tion commissioners or of the English board of trade authorities 
 prevent the above goods from being conveyed in any passenger 
 vessel the National Steamship Company (Limited) or any of its 
 servants or agents are to be free of any liability for nonfulfillment 
 of their portion of this contract. In accepting this bill of lading 
 the shipper or other agent of the owner of the property carried 
 expressly accepts and agrees to all its stipulations, exceptions, and 
 conditions (whether written or printed) in the like good order 
 and well conditioned, from the ship's tackle (where the ship's 
 responsibility shall cease) at the aforesaid port of New York, unto 
 Messrs. Arnold, Constable & Co. or to his or their assigns. Freight 
 and primage for the said goods to be paid at New York as per 
 margin. General average, if any, payable according to New Yoi"k 
 and Antwerp rules. Freight if payable in Liverpool, to be paid 
 on delivery of the bills of lading in cash, without deduction, ves- 
 sels lost or not lost. Freight, if payable abroad, to be paid in 
 currency or gold (at the current rate of exchange for banker s 
 sight bills on the day of the steamer's arrival) at consignee's op- 
 tion and before delivery of any portion of the goods specified. 
 In witness whereof the master or agent of the said ship hath af- 
 firmed to two bills of lading, exclusive of the master's copy, all 
 of this tenor and date, one of which bills being accomplished, the 
 other to stand void. A. Titherington. 
 
 Dated in Liverpool, 18 January, 1883. 
 
 (In the margin of the bill of lading appear the numbers of the 
 various packages of merchandise). 
 
 The findings were (3) That the regular English steamship lines
 
 DELIVERY BY CARRIER BY WATER. 951 
 
 usually dock at their own piers, but not always, and in case of 
 any emergency dock elsewhere, and permit each other, when the 
 necessity arises, to use the exclusive dock of each. (7) That for 
 a month or more before January 31, 18S3, respondent had been 
 blocked up at its own pier. No. 39, in consequence of heavy 
 cargoes, delays of its vessels by westerly winds and ice in the 
 slips, and had, in consequence, been obliged to discharge two of 
 its vessels at outside uncovered piers. (9) That steamers of reg- 
 ular lines, on their arrival at the port of Xew York, if their docks 
 are blocked, are not kept in the stream longer than to enable them 
 to berth elsewhere. If kept in the stream consignors make great 
 complaint. It was more costly to dock the Egypt at pier No. 
 36, but it was done to secure to the consignees a more prompt 
 discharge and delivery of their goods. (26) That pier No. 36 
 North river, was a fit and proper place to discharge the steamship 
 Egypt at the time in question and to discharge from the libel- 
 ants' goods. 
 
 The Supreme Court of the United States says, in deciding the 
 questions presented, that there is no express provision in the bill 
 of lading dispensing with notice to the consignee; a provision that 
 the goods shall be taken from alongside by the consignee imme- 
 diately the vessel is ready to discharge is inconsistent with the 
 idea of personal notice, since such a notice would necessitate a 
 delay of one or two days in the discliarge of the cargo, while the 
 notices were being given, where if the goods were not taken by 
 the consignee, the carrier was authorized to deposit them at the 
 risk of the consignee " in the warehouse provided for the purpose," 
 meaning, of course, the warehouse upon the pier. Its obligation 
 to give notice, if any such existed, must under the terms of the 
 bill of lading, allowing an immediate discharge of the cargo, be 
 contemporaneous with such discharge, and too late to be of any 
 avail to the consignee. If it be true that the pier of the respond- 
 ent company was so blocked that the Egypt could not obtain access 
 to it to discharge her cargo it was, so far from being a deviation, 
 a matter of ordinary prudence to select a neighboring pier for that 
 purpose. Had this cargo been discharged at a remote, unusual, 
 or inaccessible spot, or upon an uncovered pier, so that it was
 
 952 DELIVERY OF GOODS. 
 
 exposed to the weather or to any unusual hazard, and a loss had 
 been incurred, the carrier would have been liable, notwithstanding 
 the stipulation against the consequence of negligence in its bill of 
 lading.' But no such question is presented. While the libel 
 alleges that the loss occurred through the negligence of the 
 respondent, no effort was made to prove this, and there is no find- 
 ing that such was the case. Indeed, there was nothing to indicate 
 that the Inman pier was not a perfectly proper place to discharge 
 a cargo, or that it was not equipped with the usual appliances for 
 the extinguishment of fires. 
 
 It was also insisted, that libelants had a right to suppose that the 
 Egypt would discharge her cargo at her regular pier, and that, 
 while they might be bound to take notice of that fact, they were 
 entitled, if she selected another i)ier, to a personal notice of the 
 time and place of delivery, that an opportunity might be given 
 them to be present and receive their consignments. But the court 
 said, that if, under the usages of trade or the necessities of the 
 particular case, it was allowable and proper for the respondent to 
 select another pier for the discharge of its cargo, we do not un- 
 derstand that its obligation to its consignees was thereby increased 
 or modified, at least unless the libelants can show that they were 
 actually prejudiced by such change. Practically the same ques- 
 tions are involved, viz: whether if she had discharged at her own 
 wharf, the comjjany was bound to give notice before it could 
 relieve itself of its responsibility. The real question still is 
 whether, if she had gone to her own wharf, and the fire had 
 occurred under the same circumstances, the vessel would have 
 been liable for the loss. It was for the mutual advantafje of the 
 ship and the consignees that the cargo should be unloaded at the 
 earliest possible moment — the ship, that she might discharge her- 
 self of responsibility and take on her return cargo — the con- 
 signees, that they might secure their goods as soon as possible. 
 The North river piers in that neighborhood were all used by 
 steamers engaged in the Liverpool trade. The pier selected was 
 only six hundred feet from the regular pier of the line, and inquiry 
 
 ^New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 359, 21 L. ed. 634; 
 Tlie Aline, 19 Fed. Rep. 875; The Boskenna Bay, 22 Fed. Rep. 662.
 
 DELIVEKY BY CARRIER BY WATER. 953 
 
 at that pier would doubtless have apprised libelants, or their agent, 
 where the Egypt was actually discharging her cargo. 
 
 In addition to this there is a finding that, upon obtaining the 
 permits for the immediate unloading of the cargo, the respond- 
 ent's customhouse broker caused a notice of the time and place of 
 discharge to be posted on a bulletin board in the customhouse; 
 that it is usual to post such notice, and is not usual to publish them 
 in the newspapers. It is true tliere was an exception taken to 
 this finding upon the ground that there was no evidence in sup- 
 port of it. The testimony, however, of the witness, the custom- 
 house broker, was to the effect that he attended to getting out the 
 usual papers for the respondent company to allow the discharge 
 and to passing all their steamers through the customhouse ; that, 
 on the arrival of the Egypt, the captain brought the manifest, 
 took the usual oath, and made out appHcations for the usual per- 
 mits to land goods, discharge at night, and to allow the goods to 
 remain on the wharf. " We get the permit taken out, signed by 
 the naval officer and collector, and after the permits are all taken 
 out, we usually post a notice where the vessel will discharge (giv- 
 ing copy of notice). I have no reason to suppose the notice was 
 not posted in this case. It is done in every case. I am not posi- 
 tive whether it was done in this case, but it is a part of the routine 
 of entering; a vessel to do so. I have no doubt it was done." The 
 witness evidently had no definite recollection of this particular 
 notice, but he had no doubt that he pursued his usual course in 
 posting it. Respondent's agent also testifies that it was always 
 usual to put up such notice at the customhouse. The custom- 
 liouse broker for the libelants, Arnold, Constable & Company, 
 testified in this connection that the invoice and bills of lading of 
 the Egypt were sent down to him on January 31 ; that the entries 
 were made and lodged in the customhouse at twenty -five minutes 
 past two. "I knew where the board is where they put up notices 
 of arrivals and the steamer's discharge. . . . That is around 
 the corner going into the cashiers office. ... It isn't any 
 great distance. ... I never look at that unless I want to find 
 out where a vessel was discharged, a strange vessel ; possibly I 
 might look then ; I have not looked there for years." While this
 
 954 DELIVERY OF GOODS. 
 
 testimony, it is said, is not direct and positive to the fact soiifjht 
 to be proven, it creates, when aided by the ordinary presumption 
 arising from the course of business, a strong probability that the 
 notice was posted. The practice, even of a private office, if well 
 established, is presumed to have been followed in individual 
 cases, and is accepted as sufficient proof of the fact in question 
 when primary evidence of such fact is wanting.' The conclusion 
 of the court was justified by the evidence in this particular. 
 
 But, even supposing that actual notice had been given, it could 
 not have been given before the arrival of the ship, and the names 
 of the consignees were known, and it would then have been too 
 late for the libelants to take their goods away. The findings are 
 that the Egypt was entered at the customhouse at forty-five min- 
 ntes past one in the afternoon ; that she began to discharge her 
 cargo at half-past four, and that libelants' merchandise was 
 discharged prior to the fire. And that between the time of 
 the arrival of the steamer and the destruction of the merchandise, 
 there was not sufficient time in which to enter the libelants' goods 
 at the customhouse, pay the duties thereon, and obtain the requi- 
 site permits for the removal of the same. If, then, it be true that 
 libelants could not have removed their goods before the fire, it is 
 difficult to see how the want of a notice could have contributed 
 to the loss. The court is clearly of the opinion that, under the 
 custom of the port and exigencies of the service, there wjis no ob- 
 ligation to delay the discharge of the cargo until notice could be 
 given, and a reasonable time had elapsed before the goods could 
 be taken away. While the nineteenth finding is to the effect that 
 libelants had, before this consignment, received from the respond- 
 ent company six other consignments under bills of lading in the 
 same form, all of which were landed and discharged on their own 
 pier, there is nothing to indicate that liljclants took any steps 
 whatever upon the faith of such previous practice, made any 
 inquiries as to when the Egypt was expected, or at what pier she 
 
 '1 Greenl. Ev. § 40; Mcholls v. Webb, 21 U. S. 8 Wheat. 326, 5 L. ed. 628; 
 Price V. Torrington, 1 Salk. 285; Champneys v. Peck, 1 Stark. 404; Priit v. 
 Fairclough, 3 Campb. 305; Doe v. Turf&rd, 3 Barn. & Ad. 890, 895; Dana 
 V. KemUe, 19 Pick. 112.
 
 DELIVERY BY CARRIER BY WATER. 955 
 
 would discharge her cargo. Indeed, wliile their own broker was 
 at the customhouse attending to the entry of these goods, he did 
 not even take the trouble to look at the bulletin to see where the 
 Egypt was being discharged. If libelants had shown that, relying 
 upon the previous practice, they were ready at pier No. 36 to 
 receive the cargo, or were misled by the discharge at pier Xo. 39, 
 they would have shown a much stronger title to recover. The 
 inference is irresistible that, even if the Egypt had discharged at 
 her own wharf, they would not have been there to receive, and 
 could not have received their consignments, which would have 
 been stored in the company's warehouse, and exposed to the same 
 danger of fire — in other words, the delivery at the Inman did not 
 in any legal sense contribute to the loss. There was no stipula- 
 tion in tlie bill of lading that the Egypt would unload at No. 36, 
 from which a duty to give notice, might be implied, if she were 
 compelled to select another pier. 
 
 And the court conclude, that upon the facts of the case exhib- 
 iting a necessity for a discharge elsewhere than at her own pier, 
 and in the absence of any evidence that libelants were prejudiced 
 by the failure of the Egypt to discharge at her usual wharf, there 
 was no breach of duty on the part of respondent in this particu- 
 lar. Another serious question, however, in that case was pre- 
 sented by the proviso in the application to allow the unpermitted 
 cargo to remain upon the wharf, viz, that it should remain "at 
 the sole risk of owners of said steamer, who will pay the consignee 
 or owner the value of such cargo respectively as may be stolen, 
 burned or otherwise lost, and who will also pay all duties on cargo 
 which may be in any way lost by so remaining." It seems that 
 upon the arrival of a transatlantic steamer, it is usual to apply for 
 and obtain a general order to allow to be landed and sent to the 
 public store (not the warehouse on the wharf) all packages for 
 which no special permit or order shall have been received ; also, 
 a permit to allow such portion of the cargo as is unladen, but not 
 permitted, to remain upon the wharf for forty-eight hours from 
 the time of the granting of the above general order, at the expira- 
 tion of which time they are sent to the proper general order store ; 
 and also a special license to permit the cargo to be unladen at
 
 956 DELIVERY OF GOODS. 
 
 ni^ht. These orders, licenses, and permits are granted in pursu- 
 ance of the general regulations of the Treasury Department. 
 Granting that the request made by the company is, upon its face, 
 broad enough to impose upon the company the responsibility for 
 goods lost by fire, it must be construed in connection with the 
 following stipulation upon the same subject in the bill of lading, 
 viz : " The goods to be taken from alongside by the consignee 
 immediately the vessel is ready to discharge. . . . The col- 
 lector of the port being hereby authorized to grant a general order 
 for discharge immediately after entry of the ship. The United 
 States Treasury having given permission for goods to remain 
 forty-eiglit hours on wharf at New York, any goods so left by 
 consignee will be at his or their risk of fire, loss or injury." 
 
 Some criticism is made upon the words "so left by consignee," 
 libelants insisting that the word "left" implies a voluntary leav- 
 ing of the cargo upon the wharf after notice of the discharge of 
 the same has been received by the consignee. The court are not 
 inclined, however, to affix to it such a technical meaning. In 
 view of the fact that the object of the stipulation was evidently to 
 exempt the carrier from responsibility for fire occurring at any 
 time after the discharge of the cargo, and particularly during the 
 forty -eight hours they were permitted to remain upon the wharf, 
 which forty-eight hours, under the terms of the permit, began to 
 run from the time of the general order to unload was granted, it 
 is thought clear that it was intended to apply during this time, 
 whether the goods were technically "left" by the consignee or 
 not, and that the proviso should be interpreted as if it read : 
 " The United States Treasury having given permission for goods 
 to remain forty-eight hours on wharf at New York, any goods so 
 remaining will be at consignee's risk of fire, loss or injury." This 
 permission, though granted at the request of the ship owner and 
 primarily for his benefit, is really in the view of the court of 
 more value to the consignees, since a convenient opportunity is 
 there afforded them to examine their goods, and they are saved 
 the expense of cartage to a bonded warehouse and storage 
 therein. 
 
 The court regard the question presented as substantially this :
 
 DELIVERY BY CARRIER BY WATER. 957 
 
 A and B agree that in a certain contingency A shall assume the 
 risk of the loss of his goods bj fire. Subsequently B agrees with 
 C, that, in precisely the same contingency, he shall be responsible 
 to A for the loss of the same goods, and it disposes of it thus : 
 waiving the question whether this means any more than that he 
 shall be responsible so far as C is concerned, does the latter con- 
 tract supersede the earlier ? Unquestionably it would, if it were 
 between the same parties. In this case, however, the first con- 
 tract was made by B (the respondent) in full contemplation of 
 the fact that it would be obliged to enter into the second, and for 
 the special purpose of providing against it. Now, to say that, 
 having entered into the first contract, knowing that it would have 
 to enter into a second one wholly inconsistent with the first and 
 intending to be bound by it, is scarcely creditable to the intelli- 
 gence of its agent. Libelants, too, though parties, or rather 
 privies to the first contract, were not parties to the second, and so 
 far as it appears did not even know that it was or would be en- 
 tered into, except as they may have known a general usage to 
 protect officers in this manner. The position of the parties had 
 not changed in the interval ; no new consideration moved from 
 the libelants; and while the contract was nominally made for 
 their benefit, this gift of the collector was purely a voluntary 
 one. Indeed, the contract seems really to have been for the pro- 
 tection of the collector himself. Under these circumstance it is 
 clearly the duty of the court to harmonize these contracts, if it 
 be possible to do so. It is by no means a universal rule that a 
 person may sue upon a contract made for his benefit, to which he 
 was not a party.' No case has gone so far as to hold that, where 
 the person for whose benefit the contract is made, has himself or 
 by his privy in estate entered into a contract inconsistent with 
 this, he may repudiate such prior contract, and claim the benefit 
 of the second simply because it has become for his interest to do 
 60. There is no principle which authorizes one party to an agree- 
 
 ^ Hendricks v. Lindsay, 93 U. S. 143, 23 L. ed. 855; Second Nat. Bank of St. 
 Louis V. Grand IMge F. <& A. M. 98 U. S. 123, 25 L. ed. 75; Keller v. 
 Ashford. 133 U. S. 610, 33 I,, ed. 667; Cragin v. Locell, 109 U. S. 194, 27 
 L. ed. 903; Willard v. Wood. 135 U. S. 309, 34 L. ed. 210.
 
 958 DELIVERY OF G00D8. 
 
 raent to vary it, even against his own interest withont the consent 
 of the other. As observed by the court of appeals of New York, 
 in Simson v. Brown, 68 N. Y. 355 : " It is not every promise 
 made by one to another, from the performance of which a benefit 
 may inure to a third, which gives a right of action to such third 
 person, he being neither privy to the contract nor to the consid- 
 eration. The contract must be made for his benefit as its object 
 and he must be the party intended to be benefited." ' 
 
 The principle above announced was still further limited by the 
 court of appeals in Vrooman v. Turner, 69 N. Y. 280, 25 Am. 
 Rep. 195, in which it is said that, to give a third party, who may 
 derive a benefit from the performance of a })romise an action^ 
 there must be — first, an intent by the promisor to secure some 
 benefit to the third party ; and, second, some privity between the 
 two, the promisor and the party to be benefited, and some obli- 
 gation or duty owing from the promisor to the latter, which would 
 give him a legal or equitable claim to the benefit of the promise, 
 or an equivalent to him personally." It is necessary to a correct 
 understanding of this contract to examine somewhat in detail the 
 circumstances under which it was entered into, and the authority 
 under which the collector acted in prescribing its terms. By Re- 
 vised Statutes, sections 2867 and 2869, general authority is given 
 to the collector to authorize the unloading of vessels arriving 
 within the limits of their collection districts, and to grant a per- 
 mit to land the merchandise. By section 2966 the collector is 
 authorized to take possession of such merchandise, and deposit the 
 same in bonded warehouses, and by section 2969 all merchandise 
 of which the collector shall take possession under these provisions 
 shall be kept with due and reasonable care at the charge and risk 
 of the owner. By section 2871 the collector " upon or after the 
 issuing of a general order" (for the unloading of the cargo) 
 " shall grant, upon proper application therefor, a special license to 
 unlade the cargo of said vessel at night, that is to say, between 
 sunset and sunrise," upon a bond of indemnity being given, etc., 
 " and any liability of the master or owner of any such steamship 
 
 • See also Second Nat. Bank of St. Louis v. Grand TjOdge F. <& A. M. supra; 
 Oarnsey v. Rogers, 47 N. Y. 233, 7 Am. Rep. 440.
 
 DELIVER/ BY CARRIER BY WATER. 959 
 
 to the owner or consignee of any merchandise landed from her 
 shall not be affected by the granting of such special license or of 
 any general order, but such liability shall continue until the mer- 
 chandise is properly removed from the dock whereon the same 
 may be landed." There is certainly nothing here which contem- 
 plates that the owner of the vessel shall enter into any independ- 
 ent obligation, assuming new liabilities or expanding in any way 
 existing liabilities, to the consignee. The object of the statute is 
 clearly to preserve the status quo ; to continue such liability as 
 already exists and to preclude tiie ship owner from claiming that, 
 by the action of the collector, his liability to the owner of the 
 merchandise is impaired or restricted. In the language of the 
 statute, any previous liability "shall not be affected," "but such 
 lability shall continue until the merchandise is properly removed 
 from the dock whereon the same may be landed." It is true that 
 no mention is here made of the power of the collector to allow 
 tlie unpermitted cargo to remain forty-eight hours upon the wharf, 
 and no such power is expressly given ; but by section 29S9 " the 
 Secretary of the Treasury may from time to time establish such 
 rules and regulations, not inconsistent with law, for the due exe- 
 cution of the provisions of this chapter, and to secure a just ac- 
 countability under the same as he may deem to be expedient and 
 necessary." While there is nothing in the statute allowing any 
 fixed time to elapse between the unlading of the goods and their 
 removal to a bonded warehouse, the statute does not prohibit such 
 time being allowed, and as some interval must necessarily elapse 
 for the examination and appraisement of the goods designed for 
 immediate delivery to the importer — duties which can most readily 
 be performed while the goods are yet upon the wharf — and it is 
 for the mutual benefit of the government and consignee to allow 
 some such interval of time to elapse, the Secretary of the Treas- 
 ury is doubtless vested with a certain discretion in that particular, 
 under the power given him by section 2989, and also by section 
 251, which authorizes him to make rules and regulations not in- 
 consistent with law in carrying out the provisions of law relating 
 to raising revenue from imports. 
 
 In pursuance of this authority the Secretary of the Treasury, 
 A
 
 960 DELIVERY OF OOODS. 
 
 on May 5, 1877, adopted certain regulations concerniiii? the dis- 
 charge of steamships, of which the followincr only is material : 
 " Goods will be delivered from the docks by the inspector as fast 
 as permits therefor are presented, and such as are discharged for 
 which no permit has been received will be sent to the general or- 
 der store. The collector may, at the request of the master, agent, 
 or owner of the vessel, allow goods landed, but not ' permitted ' 
 to remain on the docks, at the sole risk of the owner of the ves- 
 sel, not longer than forty-eight hours from the time of their dis- 
 charge, upon the production of evidence that the owner of the 
 vessel assumes the risk of the goods allowed to remain and agrees 
 to pay the duties on any goods whicli niay be lost by so remain- 
 ing. This request must be made in writing to the collector, and 
 must state that if the permission is granted the goods will be at 
 the risk of the owner of the vessel ; that he will pay all duties on 
 goods that may be lost, and must be signed by the owner of the 
 vessel or his agent duly authorized. The consent of the collector 
 thereto must also be granted in writing. At the expirati<jn of 
 the forty-eight hours, no permit having been received for their 
 delivery by the inspector, the collector shall send the goods to the 
 general order store to have the same weighed or gauged, if re- 
 quired." 
 
 In this connection it must be borne in mind that the Secretary 
 of the Treasury is an officer of the government ; that his powers 
 are limited by law ; that his duty is to protect the revenues of the 
 government and to prevent smuggling or other illegal practices, 
 whereby the government may be defrauded of its revenue ; and 
 that he owes no duty to individuals beyond seeing that their 
 rights are not prejudiced any further than is necessary by the 
 action of the customs officers. He is neither the a^ent of the ves- 
 sel nor of the importer, but stands between them, representing- 
 only the government and charged only with the collection of its 
 revenue. The above regulation, when carefully examined, is 
 consistent with this view. It requires the collector to allow the 
 goods to remain upon the docks " at the sole risk of the owner of 
 the vessel," and requires the latter to assume "the risk of the 
 goods allowed to remain," and to agree " to pay the duty on any
 
 DELIVERY BY CAKKIKK BY WATER. 9H1 
 
 goods which may be lost by so remaining." It is obvious from 
 the context that the risk referred to is the risk as between the 
 owner of the vessel and the government, viz, the risk of paying 
 duties upon such goods as may be lost during the forty-eight 
 hours. The permit is granted primarily for the benefit and at 
 the request of the vessel, which retains its lien for freight for 
 the goods so long as they remain on the dock. The govei-nment 
 has as yet no claim for duties against the consignee of the goods, 
 and it is just that the owner of the vessel should assume the lia- 
 bility for duties. There is nothing liere indicating an intention 
 of imposing any liability upon the siiipowner for the goods them- 
 selves, except so far as to protect the government from loss. The 
 loss referred to is probal)ly a loss by theft, to which these ware- 
 houses are peculiarly subject, since, if the goods were destroyed 
 by fire, the consignee would, under section 2984, be entitled to 
 an abatement or refund of duties. This construction of the ship 
 owner's obligation is rather emphasized than otherwise by the 
 subsequent clause of the regulation : "This request must be made 
 in writing to the collector, and must state that if the permission 
 is granted the goods will be at the risk of the owner of the ves- 
 sel ; that he will pay all duties on goods which may be lost, etc." 
 The risk he thus assumes is the risk of paying the duties upon 
 goods which may be lost. The court conclude that there is no- 
 thing in these instructions, interpreted in the light of the statute 
 and of the powers of the collector, to justify the inference that 
 it was intended to impose any new or different obligation upon 
 the owner of the vessel, with respect to the consignee of the 
 merchandise. 
 
 In the forms prescribed, probably by the department, to carry 
 out these regulations, however, there is an apparent departure 
 both from the language of the statute and the Treasury regula- 
 tions, in the obligation the owner of the vessel is required to as- 
 sume, " to pay to the consignee or owner the value of such cargo 
 respectively as may be stolen, burned, or otherwise lost, and also 
 pay all duties on cargo which may be in any way lost by so re- 
 maining." Here the obligation to indemnify the consignee first 
 appears and occupies the most prominent place, and is extended 
 01
 
 90^ DELIVERY OF GOODS. 
 
 to goods stolen, burned, or otherwise lost, while the obligation to 
 pay duties is mentioned rather incidentally than otherwise. 
 Wherever, or b whomsoever these forms were prepared, the 
 court say. it must, for the purposes of this case, treat them as 
 the act of the collector, who if this contract be construed as in- 
 tended for the protection of any one but the collector himself, 
 clearly exceeded his authority in requiring the owner of the ves- 
 sel to assume, as against the consignee, the risk of their being 
 burned while upon the wharf. As the circuit court linds that 
 "such application was in the form recjuii-ed by said collector, 
 without which permit would not be granted, and the entire cargo 
 would be sent to the public store," it cannot be treated as the 
 Noluiitary act of the shipowner any further than the contract or 
 obligation conformed to the recpiirements of the statute or Treas- 
 ury regulations, which were designed, as has been already stated, 
 only to preserve the previous rights of the consignee against the 
 owner of the steamship unimpaired by the action of the collec- 
 tor. Beyond this it must be treated either as obtained by duress, 
 or so plainly inconsistent with the previous agreement of the 
 l)arties inter sese as to be of no avail to the consignee. 
 
 It is a familiar doctrine in the United States Supreme Court 
 that a bond or other obligation extorted by a public officer, under 
 color of this office, cannot be enforced, and the remarks of that 
 court in the case of United States v. Tingey, 30 U. S. 5 Pet. 115, 
 8 L. ed. Q'6, are pertinent in this connection. In that case the 
 Navy Department caused a form of bond, not prescribed by law, 
 to be prepared and transmitted to one Deblois, a person to whom 
 the disbursement of public moneys was intrusted as purser, to 
 secure fidelity in his official duties, with a condition that it should 
 be executed by him with sufficient sureties before he should be 
 permitted to remain in office, or to receive the pay or emoluments 
 attached to the office. " The substance of this plea," said the 
 court, " is, that the bond, with the above condition, variant from 
 that prescribed by law, was under color of office extorted from 
 Deblois and his sureties, contrary to the statute, by the then Se- 
 cretary of the Navy, as the condition of his remaining in the 
 office of purser, and receiving its emoluments. There is no pre-
 
 DELIVERY BY CAKRIER BY WATER. 963 
 
 tense then to say that it was a bond vohintarily given, or that 
 though different from the form prescribed by statute, it was re- 
 ceived and executed without objection. It was demanded of the 
 party, upon the peril of losing his office ; it was extorted under 
 color of office, against the requisitions of the statute. It was 
 plainly then an illegal bond ; for no officer of the government 
 has a right, by color of his office, to require from any subordinate 
 officer, as a condition of holding office, that he should execute a 
 bond with a condition different from that pi'cscribed by law. 
 That would be, not to execute, but to supersede the requisitions 
 of law." 
 
 A distinction is drawn in this class of cases between a bond 
 compulsorily executed, as in the case under consideration, and a 
 bond or other obligation voluntarily given to the government for 
 which there is no statutory authority. In this latter case the 
 bond has been held to be valid.' 
 
 Upon the whole case the court states as its opinion : 1. That 
 the stipulation in the bill of lading that respondent should not be 
 liable for a tire happening after unloading the cargo was reason- 
 able and valid. 2. That the discharge of the cargo at the Inman 
 pier was not in the eye of the law a deviation such as to render 
 the carrier an insurer of the goods so unladen. 3. That if any 
 notice of such unloading was required at all, the bulletin posted 
 in the customhouse was sufficient under the practice and usages 
 of the port of New York. 4. The libelants, having taken no 
 steps upon the faith of the cargo being unladen at respondent's 
 pier, was not prejudiced by the chaTige. 5. That the agreement 
 of the respondent with the collector of customs to pay the con- 
 sicrnee the value of the goods was not one of which the libelants 
 could avail themselves as adding to the obligations of their con- 
 tract with respondent." 
 
 The facts that a vessel could not obtain a berth for the dis- 
 charge of tea within the usual tea district in New York immedi- 
 ately upon arrival, and that she was also in need of certain repairs 
 
 > United States* v. Bradley, 35 U. S. 10 Pet. 343, 358. 9 L. ed. 448, 454; United 
 
 States V. Hod^on, 77 U. S. 10 Wall. 395. 19 L. ed. 937. 
 « Constable v. National SS. Co. 154 U. S. 51. 38 L. ed. 903.
 
 964 DKI.IVEKV OF GOODS. 
 
 which made berthing in Brooklyn more desirable, do not justify 
 her in departinf]^ from the establislied usatje of unloading in New 
 York, so as to throw upon the consignees the burden of extra 
 expense caused by delivery in Brooklyn. Three or four instances 
 of the delivery of cargoes of a certain character for the port of 
 New York, in Brooklyn, up(jn arrangements for indemnifying 
 the vessel for disregard of the long established custom to deliver 
 in New York, do not show any such change of usage as to war- 
 rant delivery in Brooklyn except by consent.' The custom of 
 the port, brought to the knowledge of the parties, may, in the 
 absence of a special contract, vary the rule as to delivery on the 
 wharf.' Where goods are delivered to a carrier marked for a 
 particular place, without any directions as to their transportation 
 or delivery, except such as may be inferred from the marks them- 
 selves, the carrier is only bound to transport and deliver them 
 according to the established usage of the business in which he is 
 engaged, — whether the consignor knew of such usage or not.' 
 But any practice at a ])articular locality, however general it may 
 have become, has not the force of custom to release its merchants 
 from the obligation of an ortlinary bill of lading.' 
 
 Where there is an established custom to deliver at the wharf, 
 with notice to owner of time and place of unloading, it is suf- 
 ficient.' If there be no particular custom, the general usage of 
 commerce applies.' Custom cannot alter a written agreement;' 
 or change a contract which is clear and explicit." A custom can- 
 
 ' Montgomery v. The Port Adelaide, 38 Fed. Rep. 753. 
 
 « The Tybee, 1 Woods, 358. 
 
 ^Farmers & M. Bunk. v. Champlain Transp. Co. 23 Vt. 186, 56 Am. Dec. 68. 
 18 Vt. 131, 16 Vt. 53, 42 Am. Dec. 491: Van Santroord v. St. John, 6 Hill, 
 157; McMasters v. Pennsylvania R. Co. 69 Pa. 374. 8 Am. Rep. 264. 
 
 *Brittan v. Barnaby, 62 U. S. 21 IIow. 527-538, 16 L. ed. 177-181. 
 
 * The Grafton, Olcott, 43, Abb. Adm. 552, ?iote; Ostrander v. Brown, 15 Johns. 
 
 39, 8 Am. Dec. 211; Kohn v. Packard, 3 La. 224, 23 Am. Dec. 453. 
 « Richardson v. Goddard, 64 U. S. 23 How. 28, 16 L. ed. 412; Gibson v. Ste- 
 vens, 3 McLean, 563; Chaplin v. Rogers, 1 East, 192; Atkinson v. Mating, 2 
 
 T. R. 462. 
 ■> Powell V. Thompson, 80 Ala. 51. 
 
 * Harrell v. Zirnpleman, 66 Tex. 292; Larrowe v. Lewis, 44 Hun, 226; Lamb v. 
 
 Henderson, 63 Mich. 302.
 
 DELIVERY BY CARRIER BY WATER. 965 
 
 not prevail asjainst a legal right.' The custom or usage which 
 will control the interpretation of a contract must be one which is 
 of general acceptance and prevalence.'' The liability of a com- 
 mon carrier cannot be limited by a custom not brought to the 
 notice of the party dealing with the carrier.' Under a charter 
 party providing that cargo is to be discharged as fast as the vessel 
 can deliver, she is entitled to discharge from two hatches in 
 accordance with the practice of vessels of her size, witiiout 
 regard to a contrary custom of the port liaving reference to 
 smaller vessels and smaller cargoes ; and such right is not lost by 
 not breasting out, where she is attended by lighters which could 
 have taken from two hatches on the same side at the same time 
 had they come together.* 
 
 The duty of the master of a vessel is to acquaint himself with 
 the laws and customs of a country with which he was trading, and 
 to conform his conduct to those laws and customs. He cannot de- 
 fend himself under asserted ignorance, or erroneous information 
 on the subject. Carriers are not liable, on their contracts of 
 affreightment, for the loss by tire of goods, where they delivered 
 the goods at the place chosen by the consignee, and where he 
 agreed to receive them, and did receive a large portion of them, 
 after full and fair notice. It is the habit of every nation to con- 
 strue and apply its revenue and navigation laws with exactness, 
 and every shi|)master engaged in a foreign trade must take notice 
 of them. Where the master was informed of his duties upon his 
 arrival and neglected to discharge them, suffering loss thereby, 
 his loss can be attributed to nothing but inattention. 
 
 A delivery to a cartman without the orders of the consignee of 
 goods or the delivery upon the wharf of goods carried coastwise 
 has been held not to discharge the carrier even in a case of usage 
 so to deliver.* If delivery by a common carrier is made to a 
 
 ' Sullivan v. Jernigan, 21 Fla. 264. 
 
 2 Duling v. Philadelphia, W. <fe B. R. Co. 66 Md. 120. 
 
 * Liltle V. Fargo, 43 Hun, 233; Nicholas v. Neio York Cent. & H. R. R. Co. 89 
 
 N.Y. 870. 
 
 * The Olenfinlas, 1 U. S. App. 22, 48 Fed. Rep. 758. 
 
 » Ostrander v. Brown, 15 Johns. 39, 8 Am. Dec. 211 ; Mayell v. Potter, 2 Johns. 
 Cas. 371. 
 t
 
 966 DELIVERY OF GOODS. 
 
 drayman, cartman or any other person not authorized by the con- 
 signee to receive it, it is at the risk of the carrier.' 
 
 Carriers, owners of the vessel, or charterers are responsible for 
 the miscarriage of their muster and agent. Their contract is an 
 absolute one to deliver the cargo safely, the perils of the sea only 
 excepted. Under such a contract, nothing will excuse them for 
 a non-performance, except they have been prevented by some 
 one of those perils, the act of libelants, or the law of the country. 
 No exception of a private nature, not contained in the contract 
 itself, can be an excuse for its non-performance.' A common 
 carrier by water who receipts for goods marked for delivery at a 
 private landing, cannot, without excuse or justification, deliver 
 them at another landing without liability for damages so occa- 
 sioned. And if such delivery is made with a willful purpose to 
 harrass and injure the owner, punitive damages may be recov- 
 •ered.' A memorandum or stamp upon the back of a bill of lad- 
 ino- is insufficient to explain or to change it though the shipowner 
 may have made it.* It is for the carrier to furnish the evidence 
 to discharge itself for the failure to perform its contract.* 
 
 Where the consignee refuses to receive the cargo at the port of 
 destination, the master is bound to land it at the phxce designated, 
 and store it for the benefit of the shippers, it not being of a per- 
 ishable nature, and cannot carry it to another port, nor sell it. 
 The same is true if the consignee is dead, absent, or cannot be 
 found.' When the goods, after being discharged upon the wharf 
 and the diiferent consignments properly placed, are not accepted 
 by the consignee or owner of the cargo, the carrier should not 
 
 1 Dean v. Vaccaro, 2 Head, 488, 75 Am. Dec. 744; The Sultana v. Chapman, 
 5 Wis. 454; Williams v. Holland, 22 How. Pr. 137; Bartlett v. The Philadel- 
 phia, 32 Mo. 256; The Peytonia, 2 Curt. 21; Alabama & T. R. Co. v. Kidd, 
 35 Ala. 209; Hermann v. Ooodrich, 21 Wis. 548, 94 Am. Dec. 562. 
 
 ^Howland v. Oreenway, 63 U. S. 22 How. 491-503, 16 L. ed. 891-394. 
 
 ^Strieker v. Leathers, 13 L. R. A. 600, 68 Miss. 803. 
 
 ^Brittan v. Barnahy, 62 U. S. 21 How. 527, 16 L. ed. 177. 
 
 ^Howland v. Gteenway, 63 U. S. 22 How. 491-503, 16 L. ed. 891-394. 
 
 ^Arthur v. The Cassius, 2 Story, 81; Illinois Cent. R. Co. v. Friend, 64 111. 303; 
 Fenner v. Buffalo & 8. L. R. Co. 44 N. Y. 505, 4 Am. Rep. 709; Mayell v. 
 Potter, 2 Johns. Cas. 371; Cope v. Cordova, 1 Rawle, 203; Stephenson v. Hart. 
 4 Bing. 476; Mordecai v. Lindsay {''The Eddy") 72 U. S. 5 Wall. 481, 18 
 L. ed."486.
 
 DELIVERY BY CARRIER BY WATER. 967 
 
 leave them exposed on the wliarf, but store them in a place of 
 safety, and notify the consignee or owner that they are so stored 
 subject to the lien of the ship for the freight and charges, and 
 when he has done so, he is no longer liable.' It is the duty of a 
 carrier, when the consignee is not ready to accept the freight, to 
 unload and store it subject to his lien for freight charges, and not 
 to subject him to a charge for demurrage by holding the vessel or 
 cars in which it was transported for an unnecessary time.' When 
 goods are not accepted by the consignee, the carrier should put 
 them in a place of safety ; and when he has done so, he is no 
 lonscer liable on his contract of affreijrhtment. 
 
 The duty of reasonable care for the preservation of property 
 from loss, arises in all situations and in all emergencies.' It is in 
 accordance with this general obligation that, in the absence of any 
 special stipulation in the bill of lading, if a cargo be duly landed, 
 on notice to the consignee at the port of destination, and the con- 
 signee fails to appear, or refuses to take the goods, the master can 
 not abandon them, but is responsible for reasonable care of the 
 goods, and must either hold them as bailee or store them on the 
 shipper's account.* "Where the stipulations of the bill of lading 
 require the consignee to be present and receive the goods as soon 
 as the vessel is ready to unload, and that they shall be at the con- 
 signee's risk as soon as landed on the dock, and the consignee is 
 duly notified, and attends in order to accept the goods as landed^ 
 and takes more or less charge of them, the stipulation is held to 
 exempt the ship from subsequent loss or damage.' In such cases, 
 as the consignee has due notice of the discharge and accepts the 
 goods, the duty of protecting the property is cast by the contract 
 upon him, and the ship is relieved. Although goods may have 
 
 ^ Mordecai v. Lindmy ("The Eddy") supra; Richardson v. Qoddard, 64 U. 8 
 
 23 How. 28, 16 L. ed. 412. 
 2 The Reuben Doud. 46 Fed. Rep. 800. 
 
 2 Oaudet v. Brown, L. R. 5 P. C. 135; The Spartan, 25 Fed. Rep. 44. 
 * Richardson v. Goddard, 64 U. S. 23 How. 39, 16 L. ed. 416; The Grafton, 1 
 
 Blalchf. 173, 175; Redmond v. Liverpool, N. 7. & P. 8. B. Co. 46 N. Y. 578. 
 
 7 Am. Rep. 390; McAndrew v. Whitlock, 52 N. Y. 40, 46, 11 Am. Rep. 657; 
 
 The City of Lincoln, 25 Fed. Rep. 839. 
 ' The Santee, 2 Ben. 519, 7 Blalchf. 186; Willis v. The City of Austin, 2 Fed 
 
 Rep. 412; The Kate, 12 Fed. Rep. 881. 
 
 1
 
 90S DKLIVERY OK (iOODS. 
 
 been delayed unnecessarily in their carriage and their market 
 value may have l)een inij)aire(l, the consignee cannot refuse to 
 receive them, unless a previous demand and refusal by the carrier 
 to deliver them has been made; — but the shipper may have his 
 action for the loss sustained through the delay.' The consignee 
 cannot, after notice of the arrival of proj)erty for him, defer tak- 
 ing it away because he has other business engagements to which 
 he gives a preference.' The delay of the consignee in receiving 
 the goods or his refusal, within the time ti.xed, will not excuse the 
 carrier from injury to them, if he casts them away and leaves 
 them where they will be open and expensed to injury from the 
 elements." Nor will refusal of a consignee, under a mistake, to 
 receive goods from a carrier, prejudice its right to claim them 
 from the carrier, if no intervening rights have accrued.' 
 
 If the owner accepts the goods in a bill of lading he is presumed 
 to pay for the sti[)ulated freight and receive the goods within a 
 reasonable time, or within the agreed time, or else pay what the 
 bill of lading requires for the delay. To avoid responsibility for 
 any unreasonable delay in the acce})tance of goods, the owner ami 
 holder of the bill of lading must either refuse acceptance or find 
 some other person who both as vendee of the goods and as assignee 
 and holder of the bill of lading becomes substituted in his place 
 and to his rights and liabilities, through direct relations to the 
 representative under and by virtue of the bill of lading.' The 
 peculiar circumstances and enviioumcnt of a consignee, and the 
 distance of his residence from a railroad depot, cannot be consid- 
 ered in determining what is a reasonable time for him to take 
 away goods. Three days is a reasonable time for a consignee to 
 take a piano and stool away from a depot, where it has been 
 shipped by one continuous line a comparatively short distance.* 
 
 ' Cincinnati, 1. St. L. & G. R. Co. v. Case, 122 Ind. 310; Davis v. Om-rett, 6 
 Bing. 716; Hawkins v. Hoffman, 6 Hill. 586. 41 Am. Dec. 767; ScovUl v. 
 Griffith, 12 N. Y. 509; Black v. Ba.ren(lale, 1 Excb. 410; Bodley v. Reynolds 
 8 Q. B. 779; Beckwith v. Frisbie. 32 Vt. 559. 
 
 2 Hedges v. Hudwn River R. Co. 49 N. Y. 223. 
 
 ^Scheu V. Benedict, 116 N. Y. 510; Cook v. Erie R. Co. 58 Barb. 313. 
 
 ^Badiarach v. Chester Freight Line, 133 Pa. 414. 
 
 ''Neilsen v. Jesup, 30 Fed. Rep. 138. 
 
 « Columbus & W. R. Co. v. Ludden, 89 Ala. 612, 42 Am. & Eng. R. Can. 404.
 
 DELIVERY BY CAKRIER BY WATER. 969 
 
 But a railroad company was acquitted of negligence contributing 
 to an accident to its train from lumber blown upon a track from 
 a car which it had left the day l)ef()re upon a side track to be un- 
 loaded by the consignee, and which was left in a dangerous con- 
 dition through the negligence of the latter, in failing to superin- 
 tend the unloading or to watch the car or its track at night.' 
 Where ice dealers in Baltimore purchased ice to be delivered on 
 board "The Kennebec Kiver" the sellers agreeing to procure the 
 vessel and the purchasers to pay the freight, the latter were liable 
 in an action in personam for damages for unreasonable detention 
 of the vessel on arrival in Baltimore, before the discharge of the 
 ice was commenced.' 
 
 A condition in a bill of lading by which the consignee agrees 
 to be ready to receive his goods when the ship is ready to unload, 
 that in default thereof the ship may land, warehouse, or place 
 them in a lighter without notice, immediately, at his risk and 
 expense, after the goods leave the deck of the ship, exempts the 
 ship from the duty of giving him any notice, but not from the 
 duty of exercising reasonable care to discharge them at a suitable 
 place. 
 
 It is not unlawful to stipulate, in a bill of lading which requires 
 a ship to use reasonable care in discharging goods at a proper time 
 and place, that no notice of discharge need be given to the con- 
 signee.' Consignees of a cargo of rags under a bill of lading 
 allowing the master to discharge into lighters or warehouse them 
 in case such consignees are not ready to receive them cannot be 
 i-elieved from the expense of lighterage for a time during which 
 the rags remained upon the lighters, pending preliminary actions 
 to obtain permits from the proper otKcials to effect the removal 
 and storage of the rags. Under a bill of lading of rags providing 
 that the consignee is bound to be ready to receive them, and in 
 default the master or agent may enter the goods at the custom- 
 house, and "land, warehouse, or place them in lighter without 
 
 > I^e^c York, L. E. & W. R. Co. v. Atlantic Ref. Co. 129 N. Y. 597, 49 Am. & 
 
 Eng. R. Cas. 131. 
 « TJie Wm. Marshall, 29 Fed. Rep. 328. 
 » Rolfe V. The Boskenna Bay, 6 L. R. A. 172, 40 Fed. Rep. 91.
 
 970 DELIVERY OF GOODS. 
 
 notice to, and at tlie risk and expense of, the said consin^nee ' after 
 they leave the dock of the ship, and giving a lien for any charges 
 stipulated to be borne by the owners of the gof»ds, — the master is 
 justified in discharging the goods into lighters, where the health 
 regulations at the port of discharge forbid unloading upon the 
 dock with tlie rest of the cargo; and such discharge constitutes 
 legitimate delivery entitling the siiip to recover the expenses of 
 lighterage, which cannot be reduced on the ground that the rags 
 should have been immediately forwarded to a warehouse 6o as to 
 reduce the expense to a minimum.' 
 
 %145. Demurrage. 
 
 Demurrage, technically, so called, is founded npon some con- 
 tract entered into between the consignor or freighter, and ship 
 owner, which, under certain circumstances, is held assumed by 
 the consignee. A delay beyond the time designated in the con- 
 tract gives a cause of action in favor of the ship owner. Although 
 it is said to be a claim in the nature of freight, yet it is pei'fectly 
 distinct and separate therefrom. While a consignee, by accepting 
 the goods consigned to him under a bill of lading, by which the 
 person receiving the goods is to pay freight, is held bound by an 
 implied contract to pay the freight ; yet, unless the bill of lading, 
 either by itself or by reference to another instrument, contains an 
 express condition providing for the payment of demurrage, the 
 consignee in simply accepting the goods will not be liable for the 
 payment thereof." At the same time, while not strictly liable for 
 demurrage,' yet a consignee of the cargo who is also the owner 
 thereof may be liable for damages in the nature of demurrage 
 when the vessel is detained through the fault of the consignee 
 an unreasonable length of time at the port of discharge.* 
 
 ' Enott V. 100 Bales of Rags, 60 Fed. Rep. 634. 
 
 ^lesson V. Solly, 4 Taunt. 52; Brmncker v. Scott, Id. 1; Ecans v. Foster, 1 B. 
 
 & Ad. 118, 20 E. C. L. 420; Van Etten v. Newton, 134 N. Y. 143. 
 ^But see ante, section 54, page 218, note 1. 
 ^Dayton v. Parke, 142 N. Y. 391; Ford v. Cotesworth. L. R. 4 Q. B. 127; 
 
 Scholl V. Albany Iron Co. 101 N. Y. 602.
 
 DEMURRAGE. 971 
 
 It is the undoubted right of a common carrier to adopt and en- 
 force, as between itself and its customers, any reasonable regula- 
 tion for the conduct of its business, the purpose and effect of 
 which are the protection of the carrier and the benefit of the pub- 
 lic. A regulation as to the time within which vehicles may be 
 unloaded free of any expense for storage, and fixing a reasonable 
 rate per day at which storage will thereafter be charged for the 
 use of such vehicles so long as they remain unloaded falls clearly 
 within the scope of this power. It seeks to prevent the diversion 
 and detention of cars from the legitimate work of transportation, 
 as well as to secure compensation for service not otherwise paid 
 for, by prescribing, in cases where by contract or custom the car- 
 rier is under no duty to unload the cars, but they are to be un- 
 loaded by the customer, a rate per diem in the nature of a charge 
 for storage, to begin at a certain time after the cars have been 
 delivered to the custijmor or placed at his disposal for unloading. 
 Such regulation cannot be regarded as unreasonaljle so long as a 
 reasonable time is allowed for unloading, and so long as the charge 
 for the use of the cars beyond that time is not excessive. The 
 law compels the carrier to receive the goods of the public, and to 
 transport and deliver them within a reasonable time. To do this 
 it is necessary that the means of transportation shall be under 
 the carrier's control, and that, after the duty of carriage has been 
 performed, its vehicles shall not be converted into storehouses, at 
 the will of consignees, to remain such indefinitely, and without 
 compensation. If no check could be placed upon such deten- 
 tion, it is plain that the business of transportation would be at 
 the mercy of private interest or caprice, and that carriers thus 
 hampered in their facilities, and unable to foresee the time or 
 extent to which their vehicles would be diverted from the work 
 of carriage, could not provide properly for the demands of traffic, 
 or perform with dispatch their legitimate function. It would 
 place upon the carrier the burden and expense of supplying num- 
 erous vehicles not needed for the hauling of freights, thus requir- 
 ing it to provide extra facilities, as well as to render extra service, 
 without compensation beyond that received for transportation. 
 It would result in the accumulation of cars on the carrier's tracks, 
 1
 
 972 DELIVERY OF GOODS. 
 
 and the obstruction in a greater or less degree of the movement 
 and unloading of trains. Not only would loss ensue to the car- 
 rier, but consignees and shippers in general and the people at 
 large must suffer seriously from this hindrance to the due and 
 regular course of transportation. In this matter the public have 
 rights paramount to those of any individual or class of indivi- 
 duals, and the business of the common carrier must be so con- 
 ducted as to subserve the general interest and convenience. Es- 
 pecially is this true as to railroad companies, in view of the 
 important franchises granted them by the public, and the use and 
 control thus acquired of highways upon wdiich the commerce of 
 the country is so largely dependent. 
 
 The carrier, in addition to its compensation for carriage of 
 goods, has the right to charge for their storage and keeping, as a 
 warehouseman, after reasonable opportunity has been afEorded 
 the owner to remove them,' And, where the carrier's duty ends 
 with the transportation of the car and its delivery to the cus- 
 tomer, and no further service is embraced in the contract, the 
 carrier, after a reasonable time has been allowed for unloading, is 
 as much entitled to charge for the further use of its car as it 
 would be for the use of its warehouse. There is no law which 
 inhibits the use of cars for this purpose, or which requires un- 
 loading and removal of the goods to some other structure before 
 any charge for storage can attach. This method of storage may 
 in many cases be as effectual as any other. Indeed, it may serve 
 the customer's interest and convenience much better to have, the 
 car placed at his own place of business, where he may unload it 
 himself, or where it may be unloaded by purchasers as the goods 
 are sold, thus saving drayage and other expenses, than to have it 
 unloaded by the carrier, and the goods stored elsewhere at the 
 customer's expense. And a customer whose duty it is to unload, 
 and who, failing to do so within a reasonable time, accepts the 
 benefit of storage in a car, by requesting or permitting the carrier 
 to continue holding it unloaded in his service, and subject to his 
 will and convenience as to the time of unloading, cannot be heard 
 
 » Southwestern R. Co. v. Felder, 46 6a. 433.
 
 DEMURRAGE. 973 
 
 to complain of the method of storage, and to deny the right to 
 any compensation at all for this service, on the ground that some 
 other method was not resorted to. He may insist that the rate 
 fixed shall not be unreasonable or excessive, but the law cannot 
 be invoked to declare that no compensation whatever shall be 
 charged for such extra service. 
 
 It has been contended that " demurrage " is allowed only in 
 maritime law, and cannot be demanded by a railroad company in 
 the absence of a stipulation therefor in the bill of lading ; and 
 in support of this view the cases of Chicago & N. W. R. Co. v. 
 Jenkins^ 103 111. 588, and Burlington da If. M. Co. v. Chicago 
 Luinber Co.., 15 Neb. 391, are cited. In the former of these 
 cases it is said : " The right to demurrage, if it exists as a legal 
 right, is confined to the maritime law, and only exists as to car- 
 riers by seagoing vessels. But it is believed to exist alone by 
 force of contract. All such contracts of affreightment contain 
 an agreement for demurrage in case of delay beyond the period 
 allowed by the agreement, or the custom of the port allowed the 
 consignee to receive and remove the goods. But the mode of 
 doing business by the two kinds of carriers is essentially different. 
 Railroad companies have warehouses in which to store freights ; 
 owners of vessels have none. Railroads discharge cargoes car- 
 ried by them ; carriers by ship do not, but it is done by the con- 
 signee. The masters of vessels provide in the contract for de- 
 murrage, while railroads do not ; and it is seen that these essential 
 differences are, under the rules of the maritime law, wholly inap- 
 plicable to railroad carriers." The decision in the Nebraska case 
 does not go into any discussion of the question, but merely cites 
 and follows the holding of the Illinois court. But the reasoning 
 is inconclusive. There is no satisfactory reason why carriers by 
 railroads should not be entitled to compensation for the unrea- 
 sonable delay or detention of their vehicles as well as carriers by 
 sea. What has been already said, is a sufficient answer to the 
 reason assigned, that railroads have warehouses in which to store 
 freights. And the reason that " railroads discharge cargoes car- 
 ried by them," and " carriers by ship do not, but it is done by the 
 consigiiee," of course cannot operate as to the cases provided for
 
 97i DELIVERY OK GOODS. 
 
 by a rule, which by its terms applies only where the unluadin«^ is 
 to be done by the owners of the property. Nor is it settled that 
 the right to demurrage in maritime law exists otdy by express 
 contract. In this country the courts have repeatedly declined to 
 follow the rulings of the English common law courts on this sub- 
 ject, and have held that the shipowner has a lien upon the cargo 
 for demurrage, notwithstanding the absence of any stipulation 
 therefor in the bill of lading,' 
 
 But the adoption by a railroad company of the terra " demur- 
 rage" as a designation for this charge does not recpiire a resort to 
 that law as a standard for testing the validity of the rule. It is 
 proper to look to the real substance and effect of the rule, rather 
 than to analogies suggested by the technical desigiuitiou whicii 
 the carrier may see lit to adopt. To conclude that, because the 
 conditions of carriage by sea are different, no charge under this 
 uame can be enforced by a carrier by land, or that, if allowed, it 
 must be governed by the rules of the marine law, would be to 
 adopt a narrow and merely technical view, ignoring well recog- 
 nized grounds of public policy and the right of the carrier to pre- 
 scribe reasonable rules and regulations for its own safety and the 
 benefit of the i)ublic. The instances are few in which reguhitions 
 similar to the one in question have been passed upon by the 
 courts. The only cases found in which the right of a railroad 
 company to make a charge of this kind is denied are the ones 
 above referred to. On the other hand, the right is sustained by 
 the supreme court of Massachusetts.' See also a full and able 
 discussion of the question by Toney, J., of the law and equity 
 court of Louisville, Ky.' 
 
 It cannot, as matter of law, be said that the rate of one dollar 
 per day for each car is unreasonable. It is not necessarily unrea- 
 sonable because the cars vary in capacity, nor because a part of a 
 day is charged for as a whole day. Nor are the customary rates 
 
 '5 Am. & Eng. Enc. Law, title, Demurrage, p. 546; Port. Bills of Lading, 
 § 856. See also Huntley v. Dows, 55 Barb. 310, and Hawgood v. ISIO Ton* 
 of Coal, 21 Fed. Rep. 681, and cases there cited. 
 
 ^Miller v. Mansfield, 112 Mass. 260. 
 
 ^ Kentucky Wagon Mfg. Co. v. Louisville <& N. B. Co. (Ky.) 11 Ry. & Corp. L. 
 J. 49, note.
 
 DEMURRAGE. 975 
 
 for storage in warehouses and elevators the measure of compensa- 
 tion where the storage is in the cars on the tracks of a raih'oad. 
 Indeed, if it be a legitimate object of such a rule to prevent the 
 diversion of cars from the work of carriage, it would seem but 
 proper that the charge for their use when detained as a means of 
 storage should not be such as to encourage customers to adopt 
 that means, instead of the more regular and usual methods. As 
 between the carrier and customers who have notice of the regula- 
 tion before shipments are made, the regulation is operative, 
 whether indicated upon bills of lading or not, and whether the 
 shipments are made to the order of tlie consignor, witli tlie cus- 
 ';omary direction to notify the customer, or directly to the cus- 
 tomer himself. In construing tlie. phraseology of a regulatii)n 
 expressed in this language : '' It being understood that said car 
 or cars are to be placed and remain accessible to the consignee 
 for the purpose of unloading during the period in wliich held 
 free of demurrage, and that, when the period for such dennirrage 
 charge commences, they are to remain accessible to the consignee 
 for unloading purposes,'' — the course and exigencies of business 
 are necessarily to be regarded ; and hence the cars, after their ar- 
 rival at destination, though not kept accessible at every moment 
 of time, are to be treated as being and remaining accessible if the 
 carrier is always ready to render them so within the shortest prac- 
 ticable time — not lonjrer than a few hours — after beincr uotilied 
 that the customer is ready to unload.' 
 
 A reasonable charge for imj)roper delay in unloading cars is not 
 one for transportation, storage, or delivery of freight within Va. 
 Code 1887, §§ 1202, 1203, which provide that no charge other 
 than that provided by law shall be made. A charge to a con- 
 signee of $1 per day after three days, for every car remaining 
 unloaded after notice of arrival, is not unreasonable.' The refusal 
 of a carrier after payment of freight and offer of customary 
 switching charges, to switch cars to a connecting line for delivery 
 at the coal yard of the consignee, whose financial responsibility ia 
 
 ' Miller v. Georgia R. & Bkg. Co. 18 L. R. A. 323, 88 Ga. 563. 
 « Norfolk & W. R. Co. v. Adams (Va.) 22 L. R. A. 530. 
 t
 
 976 DELIVERY OK GOODS. 
 
 not questioned, unless he promises in advance to pay any deniur- 
 rao-e charges tliat may be made, regardless of their unreasonable- 
 ness, will render the carrier liable for damages to him, although 
 he had previously refused to pay such charges on other cars.' 
 
 It is the duty of a carrier, when the consignee is not ready to 
 accept the freight, to unload and store it subject to his lien for 
 freight charges, and not to subject him to a ciiarge for denuirrage 
 by holding the vessel of carrier in which it was transported for an 
 unnecessary time." A vessel delivering her cargo is not bound to 
 look beyond the owner and holder of the bill of lading for demur- 
 rage, because he has the right to control the delivery and accept- 
 ance of the goods under it.' The control of the discharging of a 
 vessel is given the consignee so as to render him liable fcjr damage 
 for delay in furnishing a berth, under a bill of lading providing 
 that there shall be allowed one day for every 75 tons of cargo 
 forty-eight hours after arrival and notice to the consignee, after 
 which demurrage shall be payable; and that after arrival and 
 notice the vessel shall have precedence in discharging over all 
 vessels arriving and giving notice after her arrival.* After de- 
 murrage begins to run, under and pursuant to the terms of a 
 charter party, Sundays are not to be deducted.'' 
 
 Consignees who by the terms of the charter party are to pay 
 the freight are liable for demurrage for failure to have ready 
 for discharge a particular dock at which the charter party pro- 
 vides the cargo shall be unloaded with customary despatch, — 
 especially where they are the real owners.' In the absence of 
 any provision in a bill of lading fixing a time for unloading, 
 the merchant's or consignee's obligation to unload is to use all 
 reasonable diligence under the circumstances; and demurrage 
 will not run during a delay for which he was in no way respon- 
 
 ' Macloon v. Chicago & N. W. R. Co. 3 Inters. Com. Rep. 711. 
 
 ' The Rueben Doud, 46 Fed. Rep. 800. 
 
 » Milsen v. Jesup, 30 Fed. Rep. 138. 
 
 * Smith V. N'ew Yark <& M. Granite Pav. Block Co. 56 Fed. Rep, 527, affirming 
 56 Fed. Rep. 525. 
 
 ^Baldwin v. Sullivan Timber Co. 142 N. Y. 279. 
 
 « Dayton v. Parke, 67 Hun, 137.
 
 DEMURRAGE. 977 
 
 sible, caused by a general strike of lightermen.' A charterer 
 is not liable for demurrage for delay in delivering the cargo at 
 the port of loading, owing to an extraordinary drought affecting 
 the rivers and streams from which it was to be obtained, where 
 he had purchased the cargo, and the charter party provides that a 
 certain number of working days are allowed him for actual deliv- 
 ery of cargo alongside, and that in the computation of the days 
 for delivering the cargo time lost by reason of drought shall be 
 excluded.* A vessel which is to wait her turn with other vessels 
 coming to the same consignee, who, upon arrival, asks if there is 
 any chance for a berth, and is informed that the consignee will 
 give information when there is, is justitied in waiting for a berth 
 until such information is received.' Demurrage for a vessel dis- 
 abled by a collision at a time wlien she was chartered for all but 
 one day of the time she was disabled is to be computed at the net 
 value of her charter parties, where other vessels of the same 
 owner took her place, and not at the fair market value of her use 
 (luring such time.* A consignee of goods who refuses to receive 
 them because of the carrier's delay in transporting them cannot 
 be charged with demurrage and storage fixed by a rule of whicli 
 he has no notice and which relates to cases of prompt delivery 
 and failure of the consignee to unload the car.' A vessel is liable 
 for the value of a cargo, less only the freight charges, where, 
 upon an ordinary contract of affreightment, the master refuses to 
 deliver the cargo except upon payment of an extortionate demand 
 for demurrage, and the consignee has abandoned it to the shij). 
 although a tender of the amount actually due is not made until 
 some time after the arrival of the vessel.' 
 
 In order to hold bona fide indorsees of bills of lading liable for 
 the rates contracted by the charter, the master, when he signs the 
 bills presented by the charterer, making the goods deliverable to 
 
 ^Hick V. RodocanacU, 65 L. T. N. S. 300. 44 Alb. L. J. 462. 
 
 * Sorensin v. Eeyser, 48 Fed Rep. 117. 
 
 * Smith V. New York <& M. Granite Pav. Block Co. supra. 
 
 * The Emma Kate Rons, 46 Fed. Rep. 873. 
 ^Baumbach v. Gulf, C. & S. F. R. Co. 4 Tex. Civ. App. 650. 
 
 * The Reuben Doud, 46 Fed. Rep. 800. 
 
 62t
 
 978 DELIVERY OF GOODS. 
 
 order, must insert either the charter rates of deinurra<^e, or some 
 clause adopting the charter's provisions. AVhere the hill of lading 
 makes no reference to any charter, and the indorsee has no notice 
 of it, the bill is the only contract which the sliipper can legally 
 set up against him, whether he sues for demurrage in 2)€)'sonaut 
 or in rem. So far as respects demurrage, the iiulorsee and pur- 
 chaser of goods has a right to rely on the bill of lading as the 
 only contract between him and tlie sliip, and cannot be held to the 
 terms of a charter of which he had no notice.' 
 
 The ship's responsibility for demurrage claimed on the alleged 
 transfer of the cargo, must be brought home to the libelant where 
 the respondents were dealt with as owners in authority.'' In cases 
 of collision demurrage wnll be allowed for detention of the in- 
 jured boat while undergoing repairs.' Demurrage will not be 
 allowed on account of the position in which a vessel was placed 
 at the wharf — although it seriously retarded work, — where it 
 was not in accordance with the custom of the port.* AYliere a 
 consignee who has to provide a wharf is not given reasonable no- 
 tice of the time when a vessel will unload, demurrage is allowed 
 only after the lapse of a reasonable time after notice was actually 
 given.* A libel having been filed, claiming freight and demur- 
 rage under a charter party, the libelant thereafter filed a supple- 
 mental libel setting up the same and additional facts and claiming 
 the same freight and demurrage and additional demurrage. It 
 was ruled that as this additional demurrage arose from the breach 
 of the charter party, set up in the original libel, there was uo rea- 
 son why such demurrage should not be recoverable in this action, 
 although such demurrage occurred after the filing of the original 
 libel, and that the course pursued in this case, if not strictly reg- 
 ular, tended to save trouble aud expense." 
 
 ' The Pietro O. 39 Fed. Rep. 366. 
 
 2 The Elida, 31 Fed. Rep. 420. 
 
 8 The Fawrita v. Union Fen-y Co. 85 U. S. 18 Wall. 598, 21 L. ed. 856; WiU 
 
 liamson v. Barrett, 54 U. S. 13 How. 101, 14 L. ed. 68; The Cayuga v. Ho. 
 
 boken Land & Imp. Co. 81 U. S 14 Wall. 270, 20 L. ed. 828; Tlie Potomac 
 
 V. Cannon, 105 U. S. 630, 26 L. ed. 1194. 
 * The Elida, supra. 
 >> The Bockey City, 33 Fed. Rep. 556. 
 « Weil V. Calhoun, 23 Fed. Rep. 872.
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 979 
 
 § 146. When Liable only as Warehouseman. 
 
 While goods are in course of transportation, and necessarily de- 
 posited in a warehouse as an incident to their forwarding, they 
 are held under the responsibility of the common carrier, and not 
 under that of the warehouseman. This distinction is to be borne 
 in mind, that while en route — though deposited in a warehouse — 
 goods are held under the responsibility of the carrier ; but, when 
 they arrive at their destination, and a reasonable time has been 
 afforded the consignee to remove them, on his failure to do so, 
 their deposit in a warehouse carries with it only the obligation 
 resting upon the warehousemen.' 
 
 If the carrier act as warehouseman, forwarder or wharfinger, 
 for promoting his regular and chief business as carrier, he is liable 
 in the latter capacity from the moment he receives goods for trans- 
 portation. It is a delivery to him as carrier, and not as warehouse- 
 man, wharfinger or forwarder. If the carrier really combines the 
 two independent employments and the one is not incident to the 
 other, the question as to which character the goods were received 
 in is one of fact.' 
 
 Where personal property in transit is by express direction of 
 the consignee stored in a warehouse of the carrier subject to the 
 call of a transfer company, the liability of the carrier is reduced 
 to that of an ordinary bailee.' A railway company to which 
 goods are delivered for transportation, without more, assumes the 
 liability of a carrier ; but, if the delivery is for storage for a cer- 
 tain or indefinite time, the carrier becomes a mere depositary or 
 bailee until the appointed time has expired.* A railway com- 
 
 » Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 327, 21 
 L. ed. 302. 
 
 « Kansax Pac. R. Co. v. Nichols, 9 Kan. 252, 12 Am. Rep, 494; Sehlossv. Wood, 
 11 Oolo. 287; Wack v. WJieeler, 3 Lans. 201; Briggs v. Boston & L. R. Co. 6 
 Allen, 246. 83 Am. Dec. 626; Stannard v. Prince, 64 N. Y. 300; Michigan 
 S. & N. 1. R. Co. V. Shurtz, 7 Mich. 515; Barron v. Eldredge, 100 Mass. 
 4.55. 1 Am. Rep. 126: Moses v. Boston tfe M. R. Co. 24 N. H. 71, 55 Am. 
 Dec. 222: Rogers v. Wheeler, 52 N. Y. 262; Fitchburg & W. R. Co. v. JIanna, 
 6 Gray, 539, 66 Am. Dec. 427; Ackky v. Kellogg, 8 Cow. 223; Piatt v. Eib- 
 bard, 7 Cow. 497; Brown v. Dennison, 2 Wend. 593. 
 
 ^ Hartman v. Louisville & N. R. Co. 39 Mo. App. 88. 
 
 * Oregory v. Wabash R. Co. 46 Mo. App. 574.
 
 080 DELIVERY OF GOODS. 
 
 pany's liability for a carload of lumber burned on one of its side 
 tracks is that of a warehouseman or bailee, and not of a common 
 carrier, where the intending sliippcr, after loading the lumber on 
 the car, which was pointed out to him by a freight agent, did not 
 notify tlie company of its readiness for transportation or of tlie 
 consignee.' Where goods are deposited with the carrier, subject 
 to the future orders of the owners, the liability assumed is that 
 only of a warehouseman.'' Ordinarily a common carrier accept- 
 ing goods to be carried beyond his line by a distinct conveyance, 
 will lose his character as a common carrier when he deposits them 
 in his warehouse. He then becomes a mere warehouseman under- 
 taking for their future transportation.' If the goods are detained 
 at the request of the shipper, pending such detention the liability 
 is that of a warehouseman only.* But it has been held tiiat it is 
 within the apparent scope of of an express agent's authority to 
 make an arrangement with tlie consignee of a trunk, before the 
 payment of charges and the signing of the receipt therefor, to 
 leave it in the express ofhce until the next day, with a view to 
 giving him a reasonable time to send for the trunk ; and such 
 arrangement will bind the company in the absence of notice to 
 the consignee of any restriction on the agent's authority.* 
 
 After goods have arrived at their destination, the carrier is lia- 
 ble onl}'^ where negligence is shown." Warehousemen are only 
 bound for reasonable care.^ On the other hand a presumption of 
 
 'Basnight v. Atlantic & N. G. R. Go. Ill N. C. 592. 
 
 '^Michigan S. dc N. I. R. Co. v. Shurtz, 7 Mich. 515; Judson v. Western R. 
 
 Corp. 4 Allen, 530, 81 Am. Doc. 718; Barron v. Eldredcje, 100 Mass. 455, 1 
 
 Am. Rep. 126; Pittsburg, G. & St. L. R. Go. v. Barrett, 36 Ohio St. 448. 
 ^ Ackley v. Kellogg, 8 Cow. 223; Oarside v. Trent & M. Nav. Proprs. 4 T. R. 
 
 581. 
 *8t. Louis, A. & T. H. R. Go. v. Montgomery, 39 HI. 335; see Watts v. Boston 
 
 & L. R. Corp. 106 Mass. 466. 
 ' Oderkirk v. Fargo, 61 Hun. 418. 
 ^Mitchell V. Lancashire & Y. R. Go. L. R. 10 Q. B. 356, 44 L. J. Q. B. 107; 
 
 Bourne v. Oatliffe, 7 Man. & G. 850, 11 Clark & F. 45; Chapman v. Gi-eat 
 
 Western R. Go. 49 L. J. Q. B. 420, L. R. 5 Q. B. Div. 278; Re McLaren, 
 
 48 L. J. Bk. 49; Oarside v. Trent & M. Nav. Proprs. supra; Grouch v. 
 
 Great Western R. Go. 27 L. J. Exch. 345; Reugh v. London & N.W. R. Co. 
 
 L. R. 5 Exch. 51. 
 '' Searle v. Laverick, L. R. 9 Q. B. 122; Abbott v. Freeman, 35 L. T. N. S. 
 
 783.
 
 WHEN LIABLE ONLY AS WAKEHOUSEMAN. 081 
 
 negligence will exist where the usual course has been changed 
 and injury results, or a change in the condition of the premises 
 has occurred.' Although the liability of a transportation com- 
 pany as an insurer ceases upon arrival of the freight at the depot, 
 it becomes responsible thenceforward under its contract as ware- 
 houseman, for a want of proper care in the delivery of the 
 freight/ 
 
 A carrier is a servant of commerce, and is protected under con- 
 stitutional provisions for the regulation of commerce in the 
 discharge of all the duties of a carrier recognized by the law. 
 Kegulations of commerce reach him while he is in the discharge 
 of duties pertaining to commerce. When he ceases to be a car- 
 rier he is beyond the protection provided by regulations for com- 
 merce. If he ceases to be a carrier and becomes a warehouseman, 
 he cannot be protected as a carrier. In State v. Creedeii, 7 L. R. 
 A. 298, 78 Iowa, 556, the shipment of liquor had been received 
 at the place of destination from six to fifteen days prior to the 
 seizure, and was kept in the railroad freight house, or warehouse 
 used for storing freight transported or for transportation upon the 
 railroad. It was said it is a familiar rule of the law that upon 
 the arrival of freight at the place of destination, and its deposit 
 in the carrier's warehouse, his responsibility as carrier ceases. 
 He becomes, as to the freight and the consignor and consignee, a 
 warehouseman.' If, after inquiry, the consignee or indorsee of 
 a bill of lading for delivery to order, cannot be found, the carrier 
 must retain the goods till claimed or store them on account of 
 the owner, and he will not be excused for delivery to the wrong 
 person.* The legal duty of carriers is not fully discharged by 
 
 ' Byrne v. Boadle, 2 Hurlst. & C. 722, 33 L. J. Exch. 18; SMpherd v. Midland 
 R. Co. 25 L. T. 879, 20 Week. Rep. 705; Kearney v. London, B. & 8. C. R. 
 Co. L. R. 6 Q. B. 759; Nicholson v. Lancashire & Y. R. Co. 34 L. J. Exch. 
 84, 3 Hurlst. & C. 534; Scolt v. London Dock Co. 34 L. J. Exch. 220, 3 
 Hurlst. & C. 596; Crafter v. Metropolitan R. Co. L. R. 1 C. P. 300, 35 L. J. 
 C. P. 132; McMahon v. Davidson, 12 Minn. 357. 
 
 * Merchants Despatch & T. Co. v. Merriam, 111 Ind. 5; Independence Mills Co. 
 
 V. Burlington, C. R. & N. R. Co. 72 Iowa, 535. 
 
 * Francis v. Dubuque & S. C. R. Co. 25 Iowa, 60, 95 Am. Dec. 769; Mohr v. 
 
 Chicago & N. W. R. Co. 40 Iowa, 597, 2 Am. & Eng. Enc. Law, 881; An- 
 gel 1, Carriers (5th ed.) § 304. 
 « The TJmr^es v. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804.
 
 982 DELIVERY OF GOODS. 
 
 receiving on and discharging from tlieir cars, livestock at a depot, 
 a'^cess to which must be purcliased. Carriers cannot make the 
 yards of a certain company their exchisive stock depot at a cer- 
 tain place, there being other stockyards near by, and cliarging 
 lower rates.' If the connecting line will not receive them, the 
 carrier may, after a reasonable time, store them, and then l)e lia- 
 ble only as warehouseman.' 
 
 Where a railway company engaged in carrying cars from the 
 tracks of railroad companies to elevators and other places of busi- 
 ness, and returning the cars to the proper company, received two 
 flat cars loaded with coal to deliver to the consignee over whose 
 private track it had no control, when it had run the cars upon 
 such private track, its liability as an insurer ceased, and it is not 
 liable for the accidental burniu": of the cars before their return.' 
 
 A carrier is liable for goods lost by misdelivery, and it is unim- 
 portant, as affecting his liabilit3% whether the misdelivery occurs 
 through mistake, fraud, or imposition practiced upon the carrier 
 — such misdelivery amounting to conversion.* Where goods are 
 consigned to a firm which has no existence, so that delivery can'- 
 not be made to the consignees, it is the duty of the carrier to 
 warehouse the goods for the owner, to whom the carrier is liable 
 for the goods if it delivers them to a stranger without making 
 any inquiry as to his identity and authority.* But, where the 
 character of carrier had ceased, by reason of their inal)ility as 
 carriers to deliver the goods — without their fault — and the rela- 
 tion imposed upon them by law is that of a warehouseman having 
 the goods in their hands as involuntary bailees — without their 
 own default — a misdelivery will not amount to conversion as a 
 
 ' Keith V. Kentucky Cent. R. Co. 1 Inters. Com. Rep. 601. 
 
 ^Nutting v. Connecticut Rive?- R. Co. 1 Gray, 502; Rawson v. Holland, 59 N. 
 Y. 611, 18 Am. Rep. 394. 
 
 3 East St. Louis & C. R. Co. v. Wabash, St. L. & P. R. Co. 123 111. 594. 
 
 * Little Rock, M. R. <& T. R. Co. v. Olidewell, 39 Ark. 487; Scheu v. Erie R. 
 Co. 10 Hun, 498; Houston & T. C R. Co. v. Adams. 49 Tex. 748, 30 Am. 
 Rep. 116; Nebemahl v. Fargo, 15 Dalv, 130; McCuUoch v. McDonald, 91 
 Ind. 240; Forbes v. Fiichburg R. Co. 133 Mass. 154; St. Louis & L M. R. 
 Co. V. Lamed, 103 111. 293; Devereux v. Barclay, 2 Barn. & Aid. 702; Hawk- 
 ins V. Hoffman, 6 Hill, 586, 41 Am. Dec. 767; Duff v. Budd, 3 Brod. & B. 
 177; Clafiin v. Boston & L. R. Co. 7 Allen, 341. 
 
 ' Sword V. Toung, 89 Tenn. 126, 129.
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 983 
 
 matter of law ; but the question will be one for the jury, whether 
 as warehousemen, they have exercised reasonable and proper cau- 
 tion and care, the responsibility for misdelivery being no longer 
 that of an insurer, but that of an ordinary bailee, bound to exer- 
 cise reasonable care and caution.* In its character as such bailee, 
 where its relation of carrier has ceased, no liability will be incur- 
 red where — without its fault — goods are lost through any defect 
 in the package or casing of the goods ;' or from the dangerous 
 quality of the goods ;' or through robbery or theft ;* nor for the 
 loss of goods,' or other damage ;' or where they are destroyed by 
 an accidental fire, while detained, awaiting the action of custom- 
 house officers ;^ or in storage.* 
 
 A railroad corporation is not chargeable, as warehouseman, 
 with the loss of goods deposited in its depot, which are destroyed 
 by fire, in the absence of evidence as to the company's negligence 
 or want of ordinary care, or some wrong or dereliction of duty 
 on its part.* But where goods shipped by railroad were detained 
 several days, after arrival at the place of destination, in the com- 
 pany's depot, and were then transferred to the store of careful 
 and responsible warehousemen and no notice was received by the 
 consignee of the transfer to the warehouse, and after such trans- 
 fer, the consignee was informed, upon inquiry at the railroad 
 office, that the goods had not arrived, and sul)sequently, the goods 
 were destroyed by the burning of the warehouse, it was thereupon 
 held, that the carrier was responsible for the direct results of the 
 false information given by its employe, and the jury having found 
 
 ^Rome R. Go. v. Sullivan, 14 Ga. 277; Bush v. St. Louu, K. G. & N. R. Co. 
 3 Mo. App. 62; StepJienson v. Ilnrt, 4 Bing. 476; Duff v. Budd, 3 Brod. & 
 B. in-, HevgJi v. London & N. W. R. Co. L. R. 5 Exch. 50; Rooke v. Mid- 
 land R. Co. 14 Eng. L. & Eq. 175; First Nat. Bank of Peoria v . Nortliern 
 R. Co. 58 N. H. 203. 
 
 * Hudson V. Baxendale, 2 Hurlst. & N. 575. 
 
 » Weed V. Barney, 45 N. Y. 344, 6 Am. Rep. 96. 
 
 * Mai V. Wilmington & W. R. Co. 8 Jones L. 482. 
 ^ Lane v. Boston & A. R. Co. 112 Mass. 455. 
 
 « Stotoe V. New York, B. & P. R. Co. 113 Mass. 521. 
 
 ' Milligan v. Grand Trunk R. Co. 17 U. C. C. P. 115. 
 
 ^Fenner v. Buffalo & S. L. R. Go. 44 N. Y. 505, 4 Am. Rep. 709. 
 
 * Galveston. H. & S. A. R. Co. v. Smith (Tex. Civ. App.) Dec. 6, 1893.
 
 984 DELIVERY OF (iOODS. 
 
 that the destruction of tlie goods was the direct result tliereof, 
 tlie court refused to disturb the finding.' While a railroad com- 
 pany is not liable as a common carrier for goods destroyed by tire 
 after they are unloaded and stored in its depot, although the con- 
 signee had repeatedly called for them and been told that they 
 were not there, yet as the carrier's neglect and WTongful detention 
 of the goods in its depot after the consignee has come after them 
 and been told that they have not arrived is the proximate cause 
 of their subsequent loss by fire, it makes the carrier lial)le for the 
 loss as warehouseman, although the fire was not caused by its 
 negligence.' 
 
 A carrier is liable for the loss of goods by fire while stored in 
 a warehouse at the place of destination because not called for by 
 the owner, where the carrier, after receiving tlie goods, had re- 
 fused to ship them without prepayment of freight, and then 
 promised to hokl them during the detention of the owner, but 
 afterwards shipped them without notice to the owner, who did 
 not know of the shipment until after the fire.' A railroad com- 
 pany which upon the arrival of a carload of wheat notifies the 
 consignees of its arrival, and thereupon places it in a reasonably 
 safe place to await their action, is not liable for its accidental de- 
 struction by fire without negligence on its part.' When the con- 
 signee has notice of the arrival of his goods, and agrees with the 
 carrier — for their mutual convenience — that the goods be left 
 over night in the freight house, the liability as a common carrier 
 has ceased, and the goods being destroyed by fire during the 
 night, the carrier cannot be held as an insurer.' 
 
 In a suit to recover the value of goods shipped by railroad from 
 Cincinnati to Kokomo, the goods were safely carried to Kokomo, 
 and the consignee not being present to receive them, were there 
 stored in the company's warehouse, which was reasonably secure. 
 During the night, the goods were destroyed by some unknown 
 
 ^ Jeffersonville B. Co. v. Cotton, 29 Ind. 498, 95 Am. Dec. 656. 
 
 ^East Tennessee, V. <fc G. R. Co. v. Kelly, 17 L. R. A. 691, 91 Tenn. 699. 
 
 ^ Campion v. Canadian Pac. R. Co. 11 L. R. A. 128, 43 Fed. Rep. 775. 
 
 *Pindell v. St. Louis & H. R. Co. 41 Mo. App. 84. 
 
 ' Fenner v. Buffalo & 8. L. R. Co. 44 N. Y. 505, 4 Am. Rep. 709.
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 985 
 
 person, who entered the warehouse through a grain shoot. It was 
 held, in this case, that the liability of the railroad company as a 
 common carrier was terminated when the goods were discharged 
 from the cars and stored in the warehouse ; and, that as ordinary 
 care was exercised in the keeping of the goods, the company was 
 not liable for the loss.' The absence or failure of the consignee 
 to remove the goods, will not absolve the carrier from responsi- 
 bility. He must make reasonable efforts to place them in proper 
 hands, and if this cannot be done, he must take care of the goods 
 by holding them himself, or, in the absence of special circum- 
 stances or rules, he may lodge them with suitable persons for the 
 owner, and when held or thus lodged, the duties of the carrier 
 there cease ; — but, if, according to the uniform course of businesss 
 goods not demanded within the specitied time, are disposed of and 
 kept in a particular manner, or in a designated building, the car- 
 rier cannot terminate his liability by lodging them with some third 
 person not authorized to receive them. If he deliver the goods 
 to a person as the agent of the owner, he must show the fact of 
 such agency, or circumstances which, in the opinion of the jury, 
 would justify such delivery. 
 
 Where one of the rules of the carrier requires that goods should 
 be taken away within twenty-four hours after their arrival, from 
 the cars at their destination, and if not thus removed, they should 
 be placed in store and storage charge thereon, — it was held that, 
 if placed in store after twenty-four hours, the liability of the car- 
 rier would be changed to that of a warehouseman ; but, that the 
 delivery of the goods within twenty-four hours, to a person who 
 had no authority to receive them, did not change the liability of 
 the carrier, notwithstanding that the owner did not make demand 
 for them until after the expiration of the time mentioned.* As a 
 general rule, common carriers by land are bound to deliver the 
 goods to the consignee at his residence or his place of business 
 where, from the nature of the parcels, this is the more appropriate 
 place for their delivery ; nor is it sufficient that they are left at the 
 
 ' Cincinnati & C. A. L. R. Co. v. McCool, 26 Ind. 140. 
 ' Angle v. Missouri & M. R. Co. 18 Iowa, 551.
 
 986 DELIVERY OF GOODS. 
 
 public office of the carrier, unless by express permission, or a 
 usaeje so estal)lished and well known as to be e<iuivalent to sucli 
 permission. In Union K.cp. Co. v. Ohlernan^ 92 Pa. 323, it was 
 held that express companies, as common carriers, are bound to 
 deliver personally to the consii;nee. But if the consit^nee la 
 absent and the carrier, after diliijent inquiry, cannot find him or 
 ascertain the place of his residence or business, then the liability 
 as a carrier is deemed at an end. But it is the duty of the carrier 
 to take care of the pjoods, by holding them hiitisclf or depositing 
 them with some suitable person for the consignee, and, in sucli 
 case, the person holding the goods becomes the bailee of the 
 owner or consignee, and is only bound to reasonable diligence.' 
 
 Where the delivery cannot be made at the end of the carrier's 
 route to the consignee, by reason of his absence without any des- 
 ignated agent, the carrier may ternuTuite its liability by depositing 
 the goods in a warehouse." It is the duty of the consignee to in- 
 form the carrier before the arrival of the goods, so that the latter 
 may know where to give notice to the consignee. If such 
 information is not given, the carrier may be exonerated by storing 
 the goods after having first made due inquiries to ascertain the 
 residence of the consignee.' AVhere goods have been carried to 
 their place of destination, and there deposited in the carrier's 
 warehouse, awaiting the owner's convenience in taking tliein 
 away, carriers are only subject, in respect to such goods, to the 
 responsibility of warehouseman. The consignee must take notice 
 of the usage of the railway company, to store the goods on their 
 arrival at the depot.* 
 
 In Massachusetts it is said that, although the consignee has had 
 no opportunity to remove the goods before they have been 
 destroyed by fire, yet the carrier is not liable, if he has stored 
 them, using proper care.' Another class of cases, however, hold 
 
 ^American Exp. Co. v. Eockett, 30 lud. 250, 95 Am. Dec. 691, ante, § 1, a. 
 
 ^Northrop v. Syracuse & B. R. Co. 5 Abb. P. R. N. S. 425. 
 
 ^Pelton V. Rensselaer & 8. R. Co. 54 N. Y. 214, 13 Am. Rep. 568. 
 
 *McCarty v. Wew York & E. R. Go. 30 Pa. 247. 
 
 * Norway Plains Co. v. Boston & M. R. Co. 1 Gray, 263, 61 Am. Dec. 423; Rice 
 
 V. Hart. 118 Mass. 201, 19 Am. Rep. 438; Stowe v. New York, B. & P. R. 
 
 Co. 113 Mass. 521; Barron v. Eldiedge, 100 Mass. 455, 1 Am. Rep. 126. To
 
 WHEN LIABLE ONLY AS WAREI10USEMA^ . *J87 
 
 that the storage by a railway company as carrier is for its own 
 convenience, and tliat its liabihty continues until the consionee, 
 exercising due diligence, has had a reasonable time to remove 
 them. Until such opportunity is afforded, the carrier remains 
 under his common law liability as carrier and not as warehouse- 
 man.' 
 
 An attempt has been made to state two rules as to the termi- 
 nation of liability as carrier. The Massachusetts rule is that when 
 the transit is ended, and the carrier has placed the goods in his 
 warehouse to await delivery to the consignee, his liability as 
 carrier is ended also, and he is responsible as warehouseman only 
 after a reasonable time has elapsed for their removal.' But in 
 IS'ew Jersey the rule has been stated, as it has in Indiana, without 
 the qualification. After the goods are safely stored and protected 
 from the weather and thieves and are ready for delivery, it is said 
 that the railroad company becomes a warehouseman, liable only 
 for ordinary care.* Inasmuch as the consignee is usually advised 
 of the time of the arrival of his goods at the station, and is 
 usually represented at the depot by a truckman, instructed to re- 
 ceive the shipment, the general rule is that the warehouse or depot 
 at the town or station to which the goods are shipped by the rail- 
 road, is the proper place of delivery to the consignee. Where 
 they are discharged from the cars, and in the absence of the con- 
 signee, are safely stored in the company's warehouse, the liability 
 of the railroad company as a common carrier has terminated, with- 
 out notice to the consignee of the arrival of the goods.* 
 
 the same effect are, National Line SS. Co. v. Smart, 107 Pa. 492; Pindell v. 
 St. Louis & H. R. Co. 34 Mo. App. 675; Gashweiler v. Wabash, St. L. & P. 
 B. Co. 83 Mo. 112, 53 Am. Rep. 558; Cincinnati & C. A. L. R. Co. v. Mc- 
 Cool, 26 lud. 140; Southwestern R. Co. v. Felder. 46 Ga. 433: RAhscfdld v. 
 Michigan Cent. R. Co. 69 111. 164; Merchants Dispatch cfc T. Co. v. Hal- 
 lock, 64 111. 284; Mohr v. Chicapo & N. W. R. Co. 40 Iowa, 579; Spears v. 
 Spartanburg, U. & C. R. Co. 11 S. C. 158; Jackson v. Sacramento Valley R. 
 Co. 23 Cal. 268; Louisville & N. R. Co. v. Oden, 80 Ala. 39. 
 
 ^ Moses V. Bo.fton & M. R. Co. 32 N. H. 523. 64 Am. Dec. 381: Winslow v. 
 Vermont R Co. 42 Vt. 700, 1 Am. Rep. 365; L. L. & O. R. Co. v. Maris, 
 16 Kan. 333; Lemke v. Chicago, M. & St. P. R. Co. 39 Wis. 449; Hirsch v. 
 The Quaker City, 2 Disney, 144; Jeffersonville R. Co. v. Cleveland, 2 Bush, 
 468; Maigjian v. JSfeio Orleans, J. & O. N. R. Co. 24 La. Ann. 333. 
 
 « Thomas v. Boston & P. R. Co. 10 Met. 472, 43 Am. Dec. 444. 
 
 i Morris & E. R. Co. v. Ayres, 29 N. J. L. 393, 80 Am. Dec. 215. 
 
 * Bansemer v. ToUdo <St W. R. Co. 25 Ind. 434. 87 Am. Dec. 367.
 
 988 DKLIVKKY OF GOODS. 
 
 What, with equal propriety, has been called the New Hampshire 
 rule, is that merely placing the goods in the warehouse does not 
 discharge the carrier, but he remains liable as such until the con- 
 signee has had a reasonable time after their arrival to inspect and 
 take them away in the common course of business. The doctrine 
 of the Massachusetts cases was first propounded in Thomas v. 
 Boston <if P. B. Corp. 10 Met. 472, 43 Am. Dec. 444, and was 
 approved in Norway Plains Co. v. Boston cfc M. R. Co. 1 Gray, 
 263, 01 Am. Dec. 423. In the latter case Chief Justice Shaw, 
 delivering the opinion, said : "Although there is no separate 
 charge for storage, yet the freight to be })aid, fixed by the com- 
 pany, as a compensation for the whole service, is paid as well for 
 the temporary storage, as for the carriage. This renders both the 
 services, as well the absolute undertaking for the carriage, as the 
 contingent undertaking for the storage, to be services undertaken 
 to be done for hire and reward. From this view of the duty and 
 implied contract of the carriers by railroad, we think there result 
 two distinct liabilities : first, that of common carriers, and after- 
 wards that of keepers for hire, or warehouse keepers. . . . 
 We may then say, in the case of goods transported by railroad, 
 either that it is not the duty of the company as common carriers 
 to deliver the goods to the consignee, which is more strictly con- 
 formable to the truth of the facts ; or, in analogy to the old rule, 
 that delivery is necessary, it may be said that the delivery by 
 themselves as common carriers to themselves as keepers for hire, 
 conformably to the agreement of both parties, is a delivery which 
 discharges their responsibility as common carriers. If they are 
 chargeable after the goods have been landed and stored, the 
 liability is one of a very different character, one which binds them 
 only to stand to losses occasioned by their fault or negligence." 
 
 In Sessions v. Western P. Corp. 16 Gray, 132, a part of the 
 goods had been removed by the consignee. The balance was 
 afterwards lost from the company's warehouse. The court ap- 
 proved the rule laid down by Chief Justice Shaw, and said that 
 a storage by the company in its warehouse M^as a constructive de- 
 livery. Freight to be ultimately paid is a sufliicient consideration 
 for a promise to keep safely, and the carrier becomes a bailee for
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 989 
 
 hire.' A railroad company was held liable for discharging a 
 cargo of assorted coal on the ground at the place of consignment, 
 so that it could not be carried away without mixing the different 
 kinds of coal and gathering up soil. The contract of a common 
 carrier includes not only the transportation of merchandise to a 
 particular point, but also its delivery there to the consignee, or 
 the putting it into a suitable place where it can be received by 
 him. A railroad corporation does not discharge itself of its duty 
 as a carrier by merely bringing goods to the terminus of its road ; 
 it is bound also to unload them with due care, and put them in a 
 place where they will be reasonably safe and free from injury." 
 A railroad corporation ceases to be a common carrier and becomes 
 a warehouseman, as matter of law, when it has completed the 
 duty of transportation and assumed the position of warehouse- 
 man, as matter of fact, and according to the usages and necessities 
 of the business in which it is engaged.' And it is liable for the 
 custody of the goods as a warehouseman.* Under a contract for 
 carriao-e a common carrier is an insurer until the transit is ended, 
 and then liable only as warehouseman during such reasonable 
 time as the goods are in its custody awaiting the call of the con- 
 signee.' The rule laid down by the courts of New Jersey, In- 
 diana and Massachusetts prevails also in Georgia, Illinois, Iowa, 
 Missouri, North Carolina and Pennsylvania. In Soxthwestern 
 R. Co. V. Felder, 46 Ga. 433, it was held under Ga. Code, § 2044, 
 the railway was relieved of liability as a common carrier after 
 transportation of the freight within the accustomed time, a de- 
 posit of it in a place of safety, and the holding of it there ready 
 for delivery on demand, unless a dilferent custom as to delivery 
 be shown. It was said that no notice to the consignee was neces- 
 sary unless the goods arrive out of time, when a reasonable time 
 also for removal must be allowed. And it was said that the re- 
 
 ' Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 136. 
 « Rice V. Boston <& W. R. Corp. 98 Mass. 212. 
 ^Rice V. Hart, 118 Mass. 201, 19 Am. Rep. 433. 
 
 * Miller v. Mansfield, 112 Mass. 260, cited in Barker v. Brown, 138 Mass. 340. 
 ^Bassett v. Connecticut River B. Co. 145 Mass. 129; Blaisdell v. Connecticut 
 ^iver B. Co. 145 Mass. 132.
 
 OiiO DELIVEKV OF CJOUDS. 
 
 marks of Judge Lumpkin, in Rome R. Co. v. Sullivan, 14 Ga. 
 277, as to tlie necessity of notice, were merely incidental, the 
 question of notice not being in the case. Tlie rule laid down in 
 SouthioeMeni R. Co. v. Felder, supra, was approved in Western 
 cfc A. R. Co. V. Camp, 53 Ga. 596. In this case the agent of the 
 consignee of goods which had remained an unreasonable time in 
 the company's depot was told by the agent of the company on 
 Saturday that the goods could remain in the depot till Monday 
 without further cost. It was held that the liability of the com- 
 pany as warehousemen was not changed. 
 
 Where a railroad company, instead of delivering baggage to 
 the owner, delivered it to its own agent for deposit in its ware- 
 house, its liability is that of a warehouseman ; and it is bound to 
 use ordinary diligence in taking care of it.' In Illinois it is held 
 that neither delivery to the consignee personally nor notice is 
 necessary to exonerate a railroad of its liability as carrier.' But 
 the liability as carrier does not cease until the goods are unloaded 
 from the car.^ A connnon carrier may discharge itself from fur- 
 ther liability as such, upon the failure of the consignee to receive 
 grain transported by it, by selecting, in the exercise of ordinary 
 and reasonable care, a responsible and safe depository, and storing 
 the grain therein at the expense and risk of the owner, although 
 owing to an unprecedented and extra<jrdinary flood, the grain is 
 subsequently injured. A common carrier is not liable as a ware- 
 houseman for an injury to grain transported by it, after it has de- 
 livered it to an agent of the consignor, although it arranges with 
 such agent for the preservation of its lien for charges for trans- 
 portation/ 
 
 Before the introduction of railroads, nothing save the act of 
 
 ' Georgia R. cfc Bkg. Co. v. Thompson, 86 Ga. 327. 
 
 ^ Davis V. Michigan S. & N. I. R. Co. 20 111. 412; Richards v. Michigan S. d 
 
 N. I. R. Co. 20 111. 404; Porter v. Chicago & R. 1. R. Co. 20 111. 407, 71 
 
 Am. Dec. 286; Chicago & A. R. Co. v. Scott, 42 111. lS2;Vi'icent v. Chicago 
 
 & A. R. Co. 49 111. 33; Merchants Dispatch & T. Co. v. Hallock. 64 III. 
 
 284; Rothschild v. Michigan Cent. R. Co. 69 III. 164; Chicago & N. W. R. 
 
 Co. V. Sawyer, 69 111. 285, 18 Am. Rep. 613; Merchants Dispatch & T. Go. 
 
 V. Moore, 88 111. 138, 30 Am. Rep. 541; Chicago & N. W. B. Co. v. Jenkins 
 
 103 111. 599. 
 
 3 Chicago <& N. W. R. Co. v. Bensley, 69 111. 630. 
 
 * Gregg v. Illinois Cent. R. Co. 147 111. 550, affirming 47 111. App. 530.
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 901 
 
 God or the public enemy could discharge a carrier by land from 
 his liability before delivery to the consignee in person.' When 
 the goods have arrived at the depot it is the carrier's duty to un- 
 load them and place them in a convenient place for delivery, and, 
 if the consignee is then ready to receive them, to deliver them to 
 him, but if he is not, the carrier must safely store them under the 
 charge of competent servants, ready to be delivered when called 
 for by those entitled to receive them. When this is done the car- 
 rier's duty is discharged. Whether the goods are unloaded 
 directly into a warehouse or placed on a platform can make no 
 difference to the rights of the parties.' In Cincinnati <& 0. A. 
 L. R. Co. V. McCool, 26 Ind. 140, goods had arrived at the place 
 of destination and been stored in a warehouse which was reason- 
 ably secure and safe. No notice was given to the consignee. 
 During the night the warehouse was entered and the goods were 
 destroyed. The company was not liable, they being warehouse- 
 men. The Iowa courts hold that failure to give notice does not 
 continue the carrier's liability as such.' 
 
 In Independence Mills Co. v. Burlington, C. R. db N. R. Co. 
 72 Iowa, 535, Rothrock, J., said : " The principle upon which 
 these cases {^Mohr v. Chicago <& N. W. R. Co. and Francis v. 
 Duhnque & S. C. R. Co. supra'] were determined is that, when 
 a common carrier has transported the property to its destination, 
 and done all of the acts pertaining to the carriage of the goods, 
 his liability as such carrier ceases. There can, however, be no 
 uniform rule as to what acts are necessary to be done to fulfill the 
 carrier's contract. His duties must vary according to the nature 
 of the consignment. In the cited cases the property was such 
 that it could be removed from the cars and placed in an ordinary 
 depot warehouse. But in the case at bar the grain was in bulk. 
 It was not expected by the parties that it would be removed 
 from the car by the railroad company and carried into its ware- 
 
 1 Merchants Dispatch <& T. Co. v. HaVork, 64 111. 286; Bansemer v. Toledo & 
 W. R. Co. 25 Ind. 437. 87 Am. Dec. 307. 
 
 » Cahn V. Michigan Cent. R. Co. 71 111. 96. 
 
 ^Mohr V. Chicago & N. W. R. Co. 40 Inwa, 579; Francis v. Dubuque & 8 
 C. R. Co. 25 iowa, 60, 95 Am. Dec. 769.
 
 092 DELIVERY OF GOODS 
 
 house. It was its duty to place it in such a position on its track 
 that it could be safely, and with a reasonable degree of conveni- 
 ence, unloaded by the plaintiff; and it was the right of the plain- 
 tiflE to refuse to unload the car until it was so placed ; and as long 
 as the defendant, in obedience to its obligation as a common car- 
 rier, was required to move the car upon the track, its liability as 
 such common carrier did not cease." On the arrival of goods at 
 their destination and their discharge from the cars, the liability of 
 the company ceases as carrier and it becomes a bailee for hire.' 
 A railroad company which, upon the arrival of a carload of wheat, 
 notifies the consignees of its arrival, and thereupon places it in a 
 safe place to await their action, is not liable for its accidental de- 
 struction by tire without negligence on its part.' The rule in 
 North Carolina is tha same as that laid down by the Indiana 
 court.* Woodward, J., in McCarty v. New York cfe E. R. Co. 
 30 Pa. 247, quoting Angell on Carriers, § 302, and Story on Bail- 
 ments, § 448, lays down the rule as declared by Chief Justice 
 Shaw.'' In Butler v. East Tennessee dj V. R. Co. 8 Lea, 32, it 
 was held that the liability of the company ceased when the goods 
 were deposited in the wareliouse, and that the liability was not ex- 
 tended by the Act of 1870, chap. 17,' requiring carriers to give 
 notice of the arrival of goods. In Shepherd v. Bristol & E. R. 
 Co. L. K. 3 Exch. 189, the rule as declared by the Massachusetts 
 court was adopted. 
 
 But, on the other hand, in Moses v. Boston & M. R. Co., 32 
 N. H. 523, 64 Am. Dec. 381, Sawyer, J., commenting on the rule 
 laid down in Norway Plains Co. v. Boston <& M. R. Co., 1 Gray, 
 263, 61 Am. Dec. 423, said that it was of a " plain, precise and 
 practical character ; " but that " by it the salutary and approved 
 
 ' Buddy V. Wabash St. L. & P. R. Co, 20 Mo. App. 206; Holtzclaw v. Duff, 27 
 Mo. 395; Cramer v. American Merchants JJ. Exp. Co. 56 Mo. 524; Goi-h- 
 weiler v. Wabash, St. L. & P. B. Co. 83 Mo. 112. 53 Am. Rep. 558. 
 
 " Pindell V. St. Louis & H. B. Co. 41 Mo. App. 84. 
 
 ^Mal V. Wilmington & W. B. Co. 53 N. C. 482; Turrentine v. Wilmington & W. 
 B. Co. 100 N. C. 375. 
 
 ■*See also Shenk v. Philadelphia Steam Propeller Co. 60 Pa. 109, 100 Am. 
 Dec. 541. 
 
 « Rev. Stat. § 1993.
 
 WHEN LIABLE ONLY AS WAKEHOUSEMAN. 993 
 
 principles of the common law are sacrificed to considerations of 
 convenience and expediency." Tliis decision in New Hampshire 
 is in accord with the rulings by the courts of Alabama, Califor- 
 nia, Connecticut, Kansas, Kentucky, Louisiana, Michigan, Min- 
 nesota, Nebraska, New York, Ohio, Texas, Vermont and "Wis- 
 consin. The rule is unsettled in South Carolina.' It is the set- 
 tled rule in Alabama that the railroad company continues respon- 
 sible as a common carrier after the goods have been transported 
 to their place of destination and stored in the depot, until the 
 consignee or owner has had a reasonable opportunity to remove 
 them ; but that when a reasonable time has elapsed they become 
 by operation of law warehousemen. The law by its operation 
 passes the goods from them as carrier to them as warehousemen.* 
 In Alahama <& T. R. R. Co. v. Kidd, 35 Ala. 209, the question 
 of the precise point of time when the company ceases to be car- 
 rier and begins to be warehouseman was not discussed. In Mo- 
 bile <& G. R. Co. V. Prewltt, 46 Ala. 63, 7 Am. Rep. 586, goods 
 liad been consigned to the owner, "Care M. & G. R. R.," and a 
 place was appointed for their delivery. Peters, J., in delivering 
 the opinion, said : " When the railroad company thus undertakes 
 to receive and keep tiie goods for the owner, it is an assumption 
 of control that cannot be treated as a mere bailment without hire. 
 For it cannot in justice be said that such a bailment is without 
 hire, though no charges for storage are demanded. The accom- 
 modation itself is one that has a, strong tendency to bring business 
 to the company, because goods transported by them thus find a 
 safe deposit until they can be removed by the owner. Thus, too, 
 the company is paid for the use of its depots by the increase of 
 its business. And when they assume thus to act as warehouse- 
 men for their customers, they must be treated as warehousemen 
 for hire. And as the warehouse system, in connection with the 
 great business of transportation, is a powerful inducement to in- 
 crease the amount and value of the transportation itself, they 
 must be regarded as warehousemen, demanding and receiving a 
 
 ^Spears v. Spartanburg, JJ. & 0. R. Co. 11 S. C, 158. 
 
 ^Western R. Co. v. Little, 86 Ala. 159; Alabama G. 8. R. Co. v. Grab/elder, 83 
 Ala. 200; Kennedy v Mobile d G. R. Co. 74 Ala. 430. 
 
 63 
 t
 
 994 DEI.IVKUY OF GOODS. 
 
 very liberal reward. They are therefore bound to use ordinary 
 dilio-ence in keeping the goods deposited in their stationhonses or 
 depots, and also to act without fraud or bad faith." Where 
 goods were destroyed by fire the same night of their arrival, the 
 company was held as a carrier, reasonable time for removal not 
 having elapsed. As to other goods, notice ha\ing been given to 
 the consignee, and reasonable time having elapsed after their arri- 
 val, the company was held liable as a warehouseman, its agent 
 having failed to deliver the goods, on demand, to drayman of the 
 consignee.' 
 
 in Columbus db W. R. Co. v. Ludden, 89 Ala. 612, 42 Am. & 
 Eng. R. Cas. 404, McClellan, J., said : " It has been supposed by 
 some text-writers and annotators that this court, following that 
 line of authority on the subject of which Norway Plains Co. v. 
 Boston cfc M. h. Co., 1 Gray, 263, 61 Am. Dec. 423, is the lead- 
 ing case, has adopted the rule, that the extraordinary liability of 
 a railway company, as a comiuou carrier of goods, ceases when 
 the consignment arrives at its destination, is unloaded from the 
 cars, and notliing further, so far as the transit is concerned, re- 
 mains to be done by the carrier ; and that thereafter the liability 
 of the carrier is that only of a warehouseman for hire. This sup- 
 position is based on an interpretation of the opinion in the case 
 of Alabama db T. R. R. Co. v. Kidd, 35 Ala. 209, which has 
 never obtained in this court, or been entertained by the profes- 
 sion here. That case has always "been construed by this court to 
 sustain the rule which extends the liability, as such, for a reason- 
 able time, after the transit has been completed, for delivery of 
 goods to consignees.' And our later decisions fully support the 
 rule, first announced by the supreme court of New Hampshire 
 in the case of Moses v. Boston cfc M. R. Co., 32 N. H. 523, 64 
 Am. Dec. 381, . . . that the liability of a common carrier 
 by rail, as an insurer of the consignment continues throughout 
 the transit, and until the goods have been unloaded from the 
 cars, and deposited in the depot or warehouse of the carrier, or 
 otherwise made ready for delivery, and a reasonable time there- 
 
 > Louisville & N. B. Co. v. McGuire, 79 Ala. 397
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 995 
 
 after has elapsed to afford the consignee an opportunity to come 
 and take them away, and that only after the lapse of a reason- 
 able time, beginning when the transit is complete, and the ship- 
 ment is ready for delivery, will the liability, in the absence of 
 special stipulation, of the carrier as such, be converted into the 
 less rigid and exacting liability of a warehouseman for reward." 
 And a late decision declares that after a reasonable time for a con- 
 signee to take goods from a carrier is liable only as warehouse- 
 man.' 
 
 In Jaclvson \. Sacramento Valley R. Co., 23 Cal. 268, the Mas- 
 sachusetts rule was followed. But is a very late case it has been 
 held that notice must be given a consignee upon arrival and stor- 
 age of goods, in order to reduce the degree of care required of 
 the carrier to that of warehousemen under California Civil Code, 
 § 2120, providing that if for any reason a carrier does not deliver 
 freight to the consignee or his agent personally he must give no- 
 tice to the consignee of its arrival, and keep the same in safety 
 on his responsibility as a warehouseman until the consignee has 
 had a reasonable time to remove it."" In Graves v. Hartford cfe 
 ]Sr. Y. S. B. Co., 38 Conn. 143, 9 Am. Rep. 369, the agent of 
 the consignee called for cotton at the wharf of the defendant and 
 was told that it was not yet off the boat. The cotton was subse- 
 quently unloaded and placed on the wharf, where it was shortly 
 after destroyed by fire which had started without fault of the de- 
 fendants. The company was held liable as a carrier. Seymour, 
 J., said ; " Whatever reasons there are for imposing a strict rule 
 of responsibility during the transit exist and continue in full 
 force until the consignee has reasonable time to take the goods 
 into his own care and custody. The rule adopted in Massachu- 
 setts has the merit of being definite and of easy application, and 
 may, in many cases, avoid a painful controversy as to what, under 
 the circumstances, is a reasonable time with which the consignee 
 must appear and take his goods. But, on the other hand, that 
 rule puts an end to the carrier's responsibility as such, just where 
 
 ' Columbus & W. R. Co. v. Ludden, 89 Ala. 612, 42 Am. & Eng. R. Cas. 404. 
 ^Wihon V. California Cent. R. Co. 94 Cal. 1(36. See also Hirschfield v. Central 
 Pac. B. Co. 56 Cal. 484. 
 1
 
 Uyti UELIVEKV OF GOODS. 
 
 that responsibility is of the hit^host vuhie to the shipper. Be- 
 tween the deposit of the goods on the phitforni and tlieir delivery 
 to the consignee, they are exposed to theft, depredation, and in- 
 jury by strangers, and by the carrier's employes. In making de- 
 livery care is needed to avoid mistakes, and attention required to 
 see if tlie goods are uninjured. During the whole process of de- 
 livery, until fully completed, the goods should remain in the care 
 of the carrier upon the full res])onsil»ility pertaining to him as 
 such, and he ought not to be allowed to lay aside that responsibil- 
 ity until the owner of the goods has had a fair and reasonable 
 time and opportunity to receive them.'" Where goods shipped 
 over a railroad are permitted by the owner to remain at the depot 
 of their destination until the railroad company becomes liable 
 therefor only as warehousemen, and afterwards, on demanding 
 them, he is informed by the agent in charge of such depot that 
 the goods have not yet arrived, the failure to deliver the goods 
 on demand is such negligence as will render the company liable 
 for their loss by the subsequent burning of the depot." 
 
 The earliest case in Michigan in which this question was dis- 
 cussed was that of 3fcMlllan v. 2[l<-higan, S. ct' N. I. li. Co., 16 
 Mich. 79, 93 Am. Dec. 208, in which the court was equally di- 
 vided. In this case Cooley, J., said : " The rule that the liabil- 
 ity of the carrier shall continue until the consignee has had rea- 
 sonable tune after notification to take away his goods, is traceable 
 to certain English decisions having reference to carriers by water, 
 whose mode of doing business resembles that of railroad compa- 
 nies in the inability to proceed with their vehicles to every man's 
 door, and there deliver his goods. It is a moditication in favor 
 of the carrier by land of the obligation formerly resting upon 
 him, and which required, in the absence of special contract, an 
 actual delivery to the consignee of the goods carried. The modern 
 modes of transportation render this impracticable, unless the car- 
 rier shall add to his business that of drayman also, which is geu- 
 
 ' As supporting this rule, see also : L. L. & O. R. Go. v. Maria, 16 Kan. 333; 
 
 Jeffersotiville R. Co. v. Cleveland, 2 Bush, 473; Maignan v. Neio Orleans, J. 
 
 & O. iV. R. Co. 24 La. Ann. 3:^:\ 
 * Union Pac. R. Co. v. Moyer, 40 Kan. 184.
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. 997 
 
 erallj a distinct employment. In lieu of delivery, therefore, the 
 carrier is allowed to discharge himself of his extraordinary liabil- 
 ity by notifying the consignee of the receipt of the goods, who 
 is then expected, in accordance with what is an almost universal 
 custom, to remove them himself. It is insisted, however, that 
 this rule, so far as it can be considered established by authority, 
 is applicable only to carriers who have no warehouses of their 
 own, but make the wharf or platform their place of delivery, and 
 who therefore never become warehousemen, and are held to a 
 continued liability as carriers, as the only mode of insuring watch 
 and protection over the goods, until the owner can have opportunity 
 to receive them. This distinction would not be entirely without 
 force, and would seem to be acted upon in one state at least,' — 
 where a railroad comi)any was held to the same measure of res- 
 ponsibility as a carrier by water, where the property carried, in- 
 stead of being placed in their warehouse, was left outside. . . . 
 The owner wants storage only until he can have time to remove 
 the goods ; and the warehousing is only incidental to the carry- 
 ing. Payment for the transportation is payment also for inci- 
 dental storage. The owner has been willing to trust the com- 
 pany as carriers because the law makes them insurers ; but he 
 mio-ht not be wilUng to trust them as warehousemen under a lia- 
 bility so greatly qualified, and in a trust which implies generally 
 a considerable degree of personal confidence. As what he desires 
 is not to have the goods remain in store, but to receive them per- 
 sonally as soon as tliey can be carried, and as the railroad com- 
 pany, if they had no warehouse, would continue to be liable as 
 carriers until tlie lapse of a reasonable time after notification, it 
 would seem that if the company can claim any exemption from 
 their liability as insurers, it must be upon the ground that the 
 erection of warehouses is for the benefit, not of the company, but 
 of the public doing business with them, and to facilitate delivery. 
 But this, as appears to me, would be taking a very partial and 
 one-sided view of the purpose of these structures. ... A 
 
 ' Compare Scholes v. Ackerland, 13 111. 650; Crawford v. Clark \5 111. 561; 
 RkLrds V. Michigan, S. & N. I. R. Co. 20 111. 404; Porte?- v Chicago & B. 
 J B Co 20 111. 407, 71 Am. Dec. 286. See also Chicago & U. 1. K. Lo. v. 
 iVarren, 16 111. 502, 63 Am. Dec. 317.
 
 yyS DELIVERY OF GOODS. 
 
 critical examination of the cases on tliis subject would scarcel}- 
 be useful. As they cannot be reconciled the court must follow 
 its own reasons. I am unable to discover any ground which to 
 me is satisfactory, on which a common carrier of goods can ex- 
 cuse himself from personal delivery to the consignee, except by 
 that which usage has made a substitute. To re(piire him to give 
 notice wiien the goods are received, so that the consignee may 
 know when to call for them, imposes upon him no unreasonable 
 burden. If, by understanding with the consignee, the goods were 
 to remain in store for a definite period, or until he should give 
 directions concerning them, the rule would be dilTerent, because 
 the relation of warehouseman would then be established by con- 
 sent. In the absence of such understanding, sound policy, I 
 think, requires the carrier to be held liable as such until he has 
 notified the consignee that the goods are received. If the nature 
 of the bailment then becomes changed through the neglect of the 
 consignee to remove the goods, it will be by his implied assent. 
 Such a rule is just to both parties and burdensome to neither, and 
 it will tend to promptness on the part of carriers in giving the 
 notices, which, whether compulsory or not, are generally expected 
 from them," 
 
 Shortly after this, in Buckley v. Great Western R. Co. 18 
 Mich. 121, a majority of the court held that, in the absence of 
 usage, or any circumstance, which would justify the conclusion 
 that the agreement to carry included one for storage also, the lia- 
 bility of a carrier for goods stored in its warehouse remains that 
 of a common carrier. In the absence of an express contract or 
 one fairly inferable from the nature of the business, the known 
 necessities under which it is carried on, and the established usage 
 upon the subject, a railway company cannot shift its responsibil- 
 ity as a common carrier to that of a warehouseman by depositing 
 the goods in the warehouse at the end of the route.' But it was 
 held that a carrier cannot be held liable for safe keeping of goods 
 which it has delivered to a warehouseman, in accordance with its 
 custom, long acquiesced in by the consignee.* 
 
 ' Fiege v. Michigan Cent. JR. Co. 62 Mich. 1. 
 
 « Black V. Ashley, 80 Mich. 90, 42 Am. & Eng. R. Cas. 428.
 
 WHEN LIABLE ONLY AS WAREHODSEMAN. 999 
 
 A carrier's liability terminates whenever the care and custody 
 of the property has passed from the carrier to the owner or some 
 bailee of his own choosing, or whenever the owner has, after its 
 arrival at its destination, had a reasonal)le opportunity of taking 
 the property into his own charge.' In Bu/iington Jj M. R. Co. 
 v. Arms, 15 Neb. 69, it was said that the railway was liable until 
 notice had been given of the arrival of the goods and a reasonable 
 time for their removal had intervened. A railway company re- 
 mains liable in the absence of special contract, or proven custom, 
 as common carrier until the consignee has reasonable time, after 
 notice of arrival, to remove the goods.' In Fenner v, Buf- 
 falo (& S. L. R. Co. supra, Earl, C, thus summarized the result 
 of the decisions in New York : " If the consignee is present 
 upon the arrival of the goods, he must take them without unrea- 
 sonable delay. If he is not present, but lives at or in the imme- 
 diate vicinity of the place of delivery, the carrier must notify 
 him of the arrival of the goods, and then he has a reasonable 
 time to take and remove them. If he is absent, unknown, or 
 cannot be found, then the carrier can place the goods in its 
 freight house, and, after keei)ing them a reasonable time, if the 
 consignee does not call for them, its liability as a common carrier 
 ceases." In Faulkner v. Hart, 82 N. Y. 413, 37 Am. Eep. 574, 
 the Massachusetts rule was expressly condemned. In this case 
 goods were shipped from New York to Boston. Upon arrival of 
 goods at the place of destination the consignee called for them 
 but was refused delivery until the next day. During the same 
 afternoon they were unloaded and placed in the defendant's 
 warehouse and during the succeeding night were destroyed by 
 fire. The plaintiff recovered. Under a bill of lading providing 
 that the carrier shall be liable as a warehouseman, and not as a 
 carrier after the goods had arrived at their destination, and been 
 " placed on the platform or in the storeroom of the company or 
 to be taken from the car by the consignee," without specifying 
 
 > Arthur v. St. Paul & D. R. Co. 33 Minn. 95. 
 
 * Hedges v. Hudson River R. Co. 49 N. Y. 223; Fenner v. Buffalo & 8. L. R. 
 Co. 44 N. Y. 505, 4 Am. Rep. 709; Zinn v. New Jersey S. B. Co. 49 N. Y 
 442. 10 Am. Rep. 402; McAndrew v. Whitlock, 53 N. Y. 40; McRinney v. 
 Jeiceit. 90 N. Y. 267, 9 Am. & Eng. R. Cas. 209. 
 !
 
 1000 DELIVERY OF GOODS. 
 
 what shall be done with them upon their arrival at the carrier's 
 warehouse, such carrier has its option to retain tliem in the car to 
 be taken from it by the consignee, or to place them in tlie store- 
 house, and in either case liability as a common carrier ceases, 
 after a reasonable time given to the consignee to remove them.' 
 A carrier's liability continues, in the absence of any statutory pro- 
 vision on the subject, after the goods have re?iched their destina- 
 tion, until the consignee has been notified of their arrival and 
 has had reasonable time to call for and remove them.' Under 
 Tex. Rev. Stat. arts. 2S1, 282, the liability of the carrier of 
 freight, as such, continues until the thing carried is actually 
 delivered to the owner or consignee, unless due diligence has 
 been used to give notice to such persons of the arrival at desti- 
 nation.' 
 
 But where goods reached the depot of the carrier, aiid the 
 owner, being present, is advised that they cannot be stored for 
 want of room and he leaves them — if the carrier assumes the 
 care of the goods by putting them in its warehouse, it may be 
 liable as a depositary ; but, if it refuse to store them and do noth- 
 ing with them, or merely puts them off its premises without 
 damage, it will not be chargeable. If, however, after such re- 
 fusal, the carrier takes care of the goods, the jury may infer a 
 waiver of the refusal and an assumption of the duty as deposit- 
 ary.* A common carrier which undertakes to transport property 
 without requiring the prepayment of freight is bound to use the 
 same care in transporting, storing, and holding it that it should 
 use had the freight been prepaid.* 
 
 > Draper v. Belmoare & H. Canal Co. 118 N. Y. 110. 
 
 ■^Lake Erie & W. R. Co. v. Hatch, 6 Ohio, C. C. 230. 
 
 ^Missouri Pac. R. Co. v. Hayius, 73 Tex. 175; Hotiston & T. C. R. Co. v. 
 Adams, 49 Tex. 748, 30 Am. Rep. 116. The cases of Blumenthal v. Brain- 
 ard, 38 Vt. 403, 91 Am. Dec. 350; Winslow v. Vermont R. Co. 43 Vt. 700, 1 
 Am. Rep. 365: Wood v. Crocker, 18 Wis. 345, 86 Am. Dec. 773; Wood v. 
 Milwaukee & St. P. R. Co. 27 Wis. 541, 9 Am. Dec. 465; Parker v. Milicau- 
 kee & St. P. R. Co. 30 Wis. 689; Lemke v. Chicago, M. & St. P. R. Co. 
 89 Wis. 449, — also supports the doctrine declared in the majority of the 
 states. 
 
 * Smith V. Nashua & L. R. Co. 27 N. H. 86, 59 Am. Dec. 364. 
 
 * St. Louis, A. & T. H. R. Co. v. Flannagan, 23 111. App. 489
 
 WHEN LIABLE ONLY AS WAREHOUSEMAN. lUOl 
 
 What a reasonable time, under the rule continuing the car- 
 rier's liability as carrier, after his duty as such has been fully dis- 
 chari^ed, which must be allowed to the consignee, should be, 
 must, in the nature of the case, when not provided for by express 
 contract, depend upon those circumstances which would tend to 
 notify the consignee of the probable time of arrival.' It is not a 
 time varying with the distance, convenience, or necessities of the 
 consignee, but it is such time as will enable one living in the 
 vicinity of the place of delivery, in the ordinary course of busi- 
 ness, and in the usual hours of business, to inspect and remove 
 the goods." Notice of the arrival of goods given by the carrier 
 to tlie consignee after dark, during one of the winter months, will 
 not require him to call for them before business hours on the fol- 
 lowing day.' Upon failure of a consignee to remove goods ship- 
 ped, three days after notice of their arrival and request to remove, 
 the carrier is responsible only as a warehouseman.* 
 
 A reasonable time within which to remove from the depot 
 liousehold goods shipped from Indiana to California is not, as 
 matter of law, limited to three months whei'e the owner wrote 
 to the freight agent a letter received two days after the arrival of 
 the goods, notifying him that she was sick and asking him to 
 store the goods in a fire-proof warehouse, and the only attempt 
 at giving her notice of their arrival was a letter so defectively 
 addressed that it never reached her, and possibly a postal card 
 addressed to her at the point of destination.* An action cannot 
 be sustained where the proof shows that, at the time of the loss 
 or injury, the liability as carrier had terminated and the company 
 held the goods merely as warehousemen.' A carrier is not liable 
 to the consignor for property seized under legal process while 
 held by him as a warehouseman, although he may have failed to 
 forward it promptly on notice to do so. Notice to the owner of 
 goods held by a carrier as a warehouseman, of the fact of their 
 
 ' Jeffersonville R. Co. v. Cleveland, 2 Bush, 473. 
 
 ^ L. L.& G. R. Co. V. Maris, 16 Kan. 333; Derosia v. Winona & St. P. R. 
 
 Co. 18 Minn. 133; Kinney v. First Bio. St. Paul & P. R. Co. 19 Minn. 251; 
 
 Wood V. Crocker, 18 Wis. 345, 86 Am. Dec. 773. 
 8 Lake Erie <& W. R. Co. v. Hatch, 6 Ohio, C. C. 230. 
 *Anniston & A. R. Co. v. Ledbetter, 92 Ala. 326. 
 « Wihon V. California Cent. R. Co. 17 L. R. A. 685, 94 Cal. 166. 
 « Alabama O. S. R. Co. v. Grabfelder, 83 Ala. 200.
 
 1002 DELIVEKY OF GOODS. 
 
 seizure on legal process, which gives him timely knowledge of 
 the situation of the goods, is sufficient to relieve the carrier.' A 
 condition of a contract of shipment of horses, that no claim for 
 loss or damage to the stock shall be valid unless made in writing 
 within thirty days after the same occurs, applies to the carriers 
 conduct as a warehouseman, since such relation is properly inci- 
 dent to that of carrier.^ Fuihire of a carrier to deliver goods on 
 demand, after storage, witliout lawful excuse, is a breach of the 
 carrier's original contract for which suit may be brought on that 
 contract.' 
 
 A warehouseman who pays a bank which discounts a draft 
 secured by a warehouse receipt of a cargo of i>cas, which has been 
 accepted by the consignee, upon the claim that the consignee 
 after accepting the draft had without authority taken possession 
 of the peas, and o1)tains a transfer from the bank, together with 
 the warehouse receipt, may bring an action on the draft against 
 the consignee, and the defense that plaintiff has wrongfully de- 
 livered up the cargo of peas to defendant in violation of N. Y. 
 Penal Code, § 633, is unavailable.* A warehouseman who has 
 given a receipt for eggs in cases without any distinguishing 
 marks, but which he can identify, and which are stated in tiie 
 receipt to be subject to the order of a third person, who has 
 made advances on them, as the warehouseman knows from the 
 course of business, is liable to the third person in case he delivers 
 them to the depositor without an order from such person, al- 
 though he retains other eggs belonging to the depositor to answer 
 the receipt.* The burden is on the carrier in an action for fail- 
 ure to deliver goods, to prove its alleged freedom from fault or 
 negligence, where it admits the contract, and then alleges that 
 the goods were safely carried and stored in its warehouse at their 
 destination under circumstances that reduced its obligation to 
 that of warehouseman, and while so stored were destroyed by fire 
 without fault or negligence on its part.* 
 
 ^MeVeagh v. Atchison, T. <& S. F. B. Co. 3 N. M. 205. 
 
 ^Armstrong v. Chicago, M. & St. P. R. Co. 53 Minn. 183. 
 
 3 Wilson V. California Cent. R. Co. 17 L. R. A. 685, 94 Cal. 166. 
 
 ^ Burnham v. Cape Vincent Seed Co. 142 N. Y. 169. 
 
 « Fifth Nat. Bank v. Providence Warehouse Co. 9 L. R. A. 260, 17 R. I. 112. 
 
 « Wilson V. California Cent. R. Co. 17 L. R. A. 685. 94 Cal. 166.
 
 CHAPTER XXIII. 
 
 ACTION AGAINST CARRIER OF GOODS-INSURANCE-PRESUMP- 
 TION—STATUTORY LIMITATION OF LIABILITY. 
 
 § 147. TiUe in Goods Shipped— Who may Sue for Loss. 
 
 § 148. Insurance on Goods by Carrier. 
 
 § 149. Liability of Carrier of Goods. 
 
 § 150. Presumption from Loss of Goods— Burden of Proof. 
 
 § 151. Damages for Loss, Injury or Delay of Goods. 
 
 § 152. Limitation of Right of Action. 
 
 § 153. Claim of Limit of Liability under Revised Statutes of the 
 
 United States. 
 
 § 154. When the United States Courts Have Jurisdiction. 
 
 § 155. Proceedings against Violators of the Interstate Commerce Act. 
 
 %147. Title ill Goods Shipped— Who niaij Sue for 
 
 Loss. 
 
 A common carrier lias a special title in property shipped which 
 gives it a legal right to its custody before delivery to the consignee 
 as against one having no right.' The owner of a vessel is the 
 bailee of the cargo and may maintain an action for its destruction." 
 To produce a change of property from the shipper to the consignee 
 it is essentially necessary that the goods should have been sent in 
 consequence of some contract between the parties, by which the 
 one agreed to sell and the other agreed to buy.' Where goods are 
 sent by vendor to vendee, the delivery of them to the carrier 
 usually vests the property in the latter, and he is the person to sue 
 the carrier for them.' i3ut if, by the terms of dealing between 
 
 ^ State V. Intoxicating Liquors. 3 Inters. Com. Rep. 581, 83 Me. 158. 
 
 ^Aewell V ^'arion, 70 U. S. 3 Wall. 257. 18 L. ed. 271; La Tourette v. Burton 
 
 {''The Commanderin-Cluef") G8 U. S. 1 Wall. 43, 17 L. ed. 609. 
 3 Tlie Frances, 12 U. S. 8 Cranch, 359. 3 L. ed. 589, 13 U. 8. 9 Cranch, 183, 3 
 
 L ed. 698; The Francis, 2 Gall. 391; Wilmshurst v. Bowher, 5 Biug. N. C. 
 
 541, 7 Scott, 561, 2 Man. & G. 792. 
 *Fragano v. Long, 4 Barn. & C. 219: Stanton v. Eager, 16 Pick. 467; Dawes 
 
 V. Peck, 8 T. R. 380; Button v. Solomonson. 3 Bos. & P. 584; Brown v. 
 
 Hodgson, 2 Campb. 36; Abbott, Shipping, 326. 
 t 1003
 
 1004 ACTION AGAINST CAKKIKR OF GOODS. 
 
 the consignor and consignee, the latter is not to acquire the })n»])- 
 erty in the goods, or if the consignee procured the goods to be 
 consigned to him by fraud, so tliat no projierty in tliein passed to 
 him, the consignor may sue.' So, if the goods were sent merely 
 for approval or the carrier has contracted to be liable to the con- 
 signor." 
 
 If the consignor i)nrcliases the goods merely as agent of the- 
 consignee by delivery of the same to the carrier, the property of 
 the consignor is divested and he cannot bring an action against 
 the carrier. And the fact that the bill of lading states the goods 
 to be on account and risk of the consigiu'c is prima facie evidence 
 of the consignee's ownership.* But, notwithstanding the freight 
 is payable by the consignee, if the goods are at the risk of the 
 consignor during their transportation, the property remains in the 
 consignor till delivery.* The mere shipment of the goods does 
 not always vest the property of them in the consignee though he 
 be the purchaser, yet where the bills of lading were made for 
 
 delivery to the shipper's own order, or to or order or 
 
 assigns, or give notice to the carrier that they are shipped on some 
 condition, in such case the carrier can only safely deliver to the 
 holder of the bill of lading indorsed by the shipper, to whose order 
 they are thereby to be delivered.' 
 
 A carrier which delivers to a shipper goods of which the bill of 
 lading has been transferred to a bona fide holder by the consignee, 
 
 ^Freeman v. BircJi, 1 Nev. & M. 420; Stephenson v. Hart, 4 Bing. 476; Duff 
 
 V. Budd, 3 Brod. & B. 177. 
 *Stoain v. Shepherd, Mood. & R. 224; Moore v. Wilson. 1 T. R. 659. 
 » The Mary & Susan, 14 U. 8. 1 Wheat. 25, 4 L. ed. 27; Potter v. Lansing, 1 
 
 Johns. 215, 3 Am. Dec. 210. 
 * Mclntyre v. Bowne, 1 Johns. 229; Ludlow v.Bowne, 1 Johns. 1, 3 Am. Dec. 
 
 277; De Wolf v. New York Firemen Ins. Co. 20 Johns. 214; The Venus, 12 
 
 U. S. 8 Cranch. 253. 3 L. ed. 553; The Merrimack, 12 U. S. 8 Cranch, 317, 
 
 327, 328, 3 L. ed. 575, 578, 579; The Frances. 13 U. S. 9 Cranch, 183, 3 L. 
 
 ed. 698; Tlie Mary & Susan, 14 U. S. 1 Wheat. 25, 4 L. ed. 27; The St. 
 
 Jozc Indiana, 14 U. S. 1 Wheat. 208, 212. 4 L. ed.'73, 74; Ihley v. Stubhs, 9 
 
 Mass. 65, 6 Am. Dec. 29; Chandler v. Sprague, 5 Met. 306, 38 Am. Dec. 404. 
 
 See Griffith v. Ingledew, 5 Serg. & R. 429, 9 Am. Dec. 444. 
 » Brandt v. Boiolby, 2 Barn. & Ad. 932; Mitchel v. Ede, 3 Perry & D. 513, 11 
 
 Ad. & El. 888; Abbott, Shipping. 327-330. See OgU v. Atkinson, 1 Marsh. 
 
 323, 5 Taunt. 759; Coxe v. Harden, 4 East, 211; Nichols v. Clent, 3 Price, 
 
 547.
 
 TITLE IN GOODS SHIPPED WHO MAY SUE FOR I-OSS. 1005 
 
 to wliorrl it was delivered by the shipper, is liable to the holder for 
 a conversion of the goods.' Where bills of lading to shipper's 
 
 order are to or order indorsed, or by which the goods 
 
 are made deliverable to the consignee by name or transmitted to 
 the consignee as security for advances or to indemnify him from 
 liability on account of a particular consignment wliich they repre- 
 sent, they are evidence of such appropriation to him of the goods 
 as will vest in him the property absolute, or specially in them, and 
 render the carrier responsible for their loss or injury." If delivery 
 is ordered to a mere agent of the shipper, he has no property in 
 the goods and cannot bring an action in his own name for non-de- 
 livery.* So if goods are consigned to A, for the use of B, B ought 
 to bring the action.* Persons paying for goods on the faith of 
 bills of lading issued by a carrier to their agents occupy towards 
 such carrier the position of bona fide purchasers.* Where there 
 is an agreement between the consignor and consignee that the 
 consignee shall make advances on the credit of the goods 
 consigned and disposed of them on commission, for his reimburse- 
 ment, or where he has made advances on them, the consignee 
 acquires a vested interest in the goods, which will entitle him to 
 bring an action against the carrier for loss, waste, or wrongful 
 conversion thereof." 
 
 AVhere a party in control of merchandise contracts with a com- 
 mon carrier for its transportation, and is both consignor and con- 
 signee, it must, in the absence of proof to the contrary, be assumed 
 that he had sufficient title and right to maintain an action for 
 
 ^ MiKsouri Pae. R. Co. v. HeidenJieimer, 82 Tex. 195. 
 
 ^Walley v. Montgomery, 3 East, 585; Uaille v. Smith, 1 Bos. & P. 563; Ander- 
 son V. Clark, 2 Bing. 20; Bryam v. Nix, 4 Mees. & W. 902; Patten v. 
 Thompson, 5 Maule & S. 356; Vertue v. Jewell, 4 Campb. 31 ; Evans y. Nic/iol, 
 4 Scott, N. R. 43; Bruce v. Watt. 3 Mees. & W. 15; Abbott, Shipping, 333; 
 Bows V. Cobb, 12 Barb. 310, 10 N. Y. Leg. Obs. 161. 
 
 * Waring v. Cox, 1 Campb. 369; Coxe v. Harden, 4 East, 211. But see Mor- 
 rison V. Orny, 2 Bing. 260; Story, Agency, 349, 356. 
 
 *Emn^ V. Marlett, 1 Ld. Raym. 271; Sargent v. Morris, 3 Barn. & Aid. 273. 
 
 ' The H. G. Johnson, 48 Fed. Rep. 696. 
 
 *Grosvenor v. Phillips, 2 Hill, 147; Adams v. Bissell, 28 Barb. 382; Dows v. 
 Greene, 32 Barb. 490; Wihon v. Nasaii, 4 Bosw. 155; Alvord v. Ijatham, 31 
 Barb. 294; Milliken v. Dehon, 27 N. Y. 364; Rawls v. Deshler, 3 Keyes. 572; 
 Williams v. Tilt, 36 N. Y. 319; Bat^s v. Cunningham, 12 Hun, 21; Brown 
 V. Ctftnbs, 63 N. Y. 598.
 
 10V»G ACTION AGAINST CARRIER OF GOODS. 
 
 damages for negligence of the carriers in the transportation of snch 
 merchandise, and to enforce the contract.' Where a right of 
 action, although connected witli the existence of a statute, whether 
 sounding in tort or in contract, is not granted by the statute, but 
 results from the applications of common law principles, it is not 
 lost by the repeal of the statute.' An action against the common 
 carrier upon a custom is founded upon a tort, and arises ex delicto, 
 and it is unnecessary to join as defendants, all the owners of the 
 vehicle employed in the conveyance.^ "Where there is a special 
 contract varying the liability of a carrier, an action against it is 
 properly brought thereon, instead of on its general liability.* 
 Where the contract creates different obligations from those arising 
 from a mere delivery of goods to a common carrier, in that it bars 
 a recovery for certain acts of negligence, whether by the defend- 
 ant, or by other connecting roads, and fixes a value on the stock 
 and the plaintiff has designedly omitted to plead this contract, 
 because he thought he would stand better on his rights at com- 
 mon law, the variance is a material and fatal one.^ If there be an 
 express contract contained in the bill, a suit founded thereon 
 should generally be brought by the shipper or by the owner where 
 the 8hipj)er acted as his agent.' 
 
 Yet no general rule can be laid down, as the rights of the con- 
 signee will depend on the circumstances of each case, and the 
 carrier will be liable to the consignor or consignee according to 
 the right of the property as between them.' The consignee is 
 presumed to be the owner, and if the goods are lost or diverted 
 
 ' Sicift V. Pacific Mail S8. Co. 106 N. Y. 206. 
 
 5 Oraham v. Chicago, M. & St. P. E. Co. 53 Wis. 473. 
 
 3 Orange County Bank v. Brown, 3 Wend. 158. 
 
 *Boaz V. Central R. Co. 87 Ga. 463. 
 
 5 Camp V. Hartford & N. T. S. B. Co. 43 Conn. 335, 340, 341 ; Rusnell v. South 
 
 Britain Soc. 9 Conn. 523; Lake Shore <& M. S. P. Co. v. Bennett. 89 Ind. 457, 
 
 469; Snoio v. Indiana, B. & W. R. Co. 109 Ind. 423; Boylan v. Hot Springs 
 
 R. Co. 132 U. S. 146, 33 L. ed. 390; Austin v. Manchester. S. & L. R. Co. 
 
 16 Q. B. 600. 
 ^Sargent v. Morris, 3 Barn. & Aid. 277; Berkley v. Watling, 7 Ad. & El. 29; 
 
 Ihompson v. Doming, 14 Mees. & W. 403; Anderson v. Clark, 2 Bing, 20; 
 
 Abbott, Shipping, 337. 
 ''Bows V. Cobb, 12 Barb. 310, 10 N. Y. Leg. Obs. 161; Bows v. Oreene, 16 
 
 Barb 72; Patterson v. Perry, 5 Bosw. 518, 10 Abb. Pa. 83.
 
 TITLE IN GOODS SHIPPED WHO MAY SUE FOR LOSS. 1007 
 
 in transitu, suit may be brought, either in his name or that of 
 the owner.' But this presumption may be rebutted.'' A con- 
 signee who is not the managing owner, may sustain libel against 
 the ship for non-delivery of the goods.' The consignee may file 
 a libel in a court of admiralty of the United States for injuries to 
 tl>e cargo caused by a collision.* The owners.of vessels and ships 
 cargo and all other persons affected by the injury may be made 
 parties to a suit for collision or it may be prosecuted by the mas- 
 ter, as the agent of all concerned. Where the owners of a ship 
 or vessel damaged by a collision are cf^rriers of the cargo, they 
 may recover for its loss or injury in a suit for the collision, and 
 where the suit is commenced by the owners of the injured vessel, 
 the owners of the cargo may petition to intervene for the protec- 
 tion of their interests at any time, before the fund is actually dis- 
 tributed." The original owners of property entrusted to express- 
 men may maintain an action for its loss against the common 
 carrier employed by the expressman to transfer it. An action by 
 the owners of goods may be maintained directly upon a separate 
 contract for their conveyance made by the first with the second 
 carrier in whose hands they are lost." 
 
 The party to a contract of carriage could maintain an action 
 for its breach at common law, whether he was the owner or not.' 
 This rule has not been altered in states proceeding under a code." 
 This rule is not changed by the fact that the plaintiffs may be ac- 
 
 I Fitzhugh v. Wiman, 9 N. Y. 559; Sheets v. Wilgm, 56 Barb. 663. 
 
 » Sweet V. Barney, 23 K Y. 335. 
 
 ^Lawrence v. Minturn, 58 U. S. 17 How. 100, 15 L. ed. 58. 
 
 *The Telegraph v. Gordon (" TJce Vaughan & Telegraph") 81 U. S. 14 Wall. 
 258, 20 L. ed. 807. 
 
 *La Tourette v. Barton (" The Commander-in-Chief") 68 U. S. 1 Wall. 43, 
 17 L. ed. 609. 
 
 * New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 U. S. 6 How. 
 
 344, 12 L. ed. 465. 
 
 ''Sargent v. Morris, 3 Barn. & Aid. 283; Dunlop v. Lambert, 6 Clark & F. 
 600; Blanchard v. Page, 8 Gray, 281; Finn v. Western R. Corp. 113 Mass. 
 534, 17 Am. Rep. 133; Nortloern Line Packet Co. v. Sltearer, 61 111. 263; 
 Hutchinson, Carriers, § 733. 
 
 * Consider ant v. Brisbane, 22 N. Y. 389; Sargent v. Morris, 3 Barn. & Aid. 
 
 283; Bliss, Code Pi. §59.
 
 1008 ACTION AGAINST CARKIEK OF GOODS. 
 
 countable to others for a part of the recovery.' It is undoubtedly 
 the general rule that an action as^ainst a common carrier for tlie 
 breach of his contract, or of his duty to carry, must be brought in 
 the name of the owner of the goods, although the contract may 
 have been made or the goods shipped by another.' The rule has, 
 however, been much questioned and has some exceptions.* "Where 
 the consignor, altliough not the general owner, has a lien upon or 
 a special interest in, the goods, and makes the contract and pays 
 the consideration for their carriage, he may bring an action for 
 the breach of the contract in his own name, in order tliat he may 
 protect his rights.* 
 
 "Where the evidence does not show that the seamen were joint 
 .owners with the plaintiffs of the cargo, and it was simply testified 
 tliat " they were interested in the oil," and that evidence was not 
 sufficient to establish tliat they were either partners or joint own- 
 ers with the plaintiffs ; it is more reasonable to suppose from such 
 evidence that they were simply interested in the proceeds of the 
 oil; and such is believed to be the common arrangement between 
 the owners of whaling vessels and their seamen, when the latter 
 have an interest in the product of the whaling voyage.' In the 
 case of Wald)'on v. Willard, 17 N. Y. 46 B, it was held that a 
 cause of action against a common carrier to recover damages sus- 
 tained by the plaintiff to his goods shipped upon the defendant's 
 boats, and which were sunk in the Hudson river on their passage 
 up, was assignable. The same is affirmed in the case of Merrill 
 V. Grinnell^ 30 JS[. Y. 594, where the general principle is re- 
 affirmed that a right of action against a common carrier to recover 
 the value of property entrusted to him, is assignable. 
 
 ^ Allen V. Brown, 44 N. Y. 228; Meeker v. Glaglwrn, 44 N. Y. 349; Noe v. 
 Christie, 51 N. Y. 270, 274. 
 
 ' Green v. Clarke, 12 N. Y. 343; Krudler v. Ellison. 47 N. Y. 36. 7 Am. Rep. 
 402; Swift V. Pacific Mail SS. Co. 106 N. Y. 206. 
 
 ^Blanchard v. Page. 8 Gray, 281; Finn v. Western R. Corp. 112 Mass. 524, 17 
 Am. Rep. 128; Arbuckle v. Thompson, 37 Pa. 170. 
 
 ■« Swift V. Pacific Mail SS. Co. 106 N. Y. 206. 
 
 P Baxter v. Rodman, 3 Pick. 485; Orozier v. Atwood, 4 Pick. 234; Bishop v 
 Shepherd, 23 Pick. 492; Swift v. Pacific Mail SS. Co. supra.
 
 INSD RANGE ON GOODS BY CARRIER. 1009 
 
 § 148. Insurance on Goods by Carrier. 
 
 A common carrier, a warehouseman, or a wharfinger, whether 
 liable by law or custom to the same extent as an insurer, or only 
 for his own negligence, may, in order to protect himself against 
 his own responsibility, as well as to secure his lien, cause the 
 goods in his custody to be insured for their full value, and the 
 policy need not specify the nature of his interest.' 
 
 No rule of law or of public policy is violated by allowing a 
 conmion carrier, like any other person having the personal prop- 
 erty or a peculiar interest in the goods, to have them insured 
 against the usual perils, and to recover for any loss from such 
 perils, — although occasioned by the negligence of its own serv- 
 ants. By obtaining insurance, it does not diminish its own re- 
 sponsilnlity to the owner of the goods, but rather increases its 
 means of meeting that responsibility. If it were true that a ship 
 owner, obtaining insurance by general description on his ship and 
 the goods carried by her, could, in case of the loss of both ship 
 and goods, by perils insured against, and through the negligence 
 of the master and crew, recover of the insurers for the loss of the 
 ship only, and not for tlie loss of the goods, some trace of the dis- 
 tinction would be found in the books. But, research has failed 
 to furnish any such precedent. Collision or stranding is, doubt- 
 less, a peril of the seas ; and a policy of insurance against perils of 
 the seas covers a loss by stranding or collision, although arising 
 from the negligence of the master or crew, because the insurer 
 assumes to indemnify the assured against losses from particular 
 perils, and the assured does not warrant that his servants shall 
 use due care to avoid them." But a provision in a shipping con- 
 tract, that the carrier in case of loss shall have the benefit of any 
 
 > Ci-Oicley V. Cohen, 3 Barn. & Ad. 478; DeForest v. FuUon F. Im. Co. 1 Hall. 
 84, 110; Waters v. Monarch L. & F. Ins. Co. 51 El. & Bl. 870; London & 
 N. W. R. Co. V. Glyn, 1 El. & El. 652 ; Savaqe v. Corn Exchange F. & I. 
 Ins. Co. 36 N. Y. 655; Joyce v. Kennard, L. R. 7 Q. B. 78; Com. v. Shoe & 
 L. Dealers F. & M. Ins. Co. 112 Ma^s. 131; Home Ins. Co. v. Baltiniore 
 Warehouse Co. 93 U. 8. 527, 23 L. ed. 868; North British & M. Ins. Co. v. 
 London, L. & Q. Ins. Co. L. R. 5 Ch. Div. 569. 
 
 » General Mut. Ins. Co. v. Sherwood, 55 U. S. 14 How. 352, 364, 365, 14 L. ed. 
 452, 457; Orient Mut. Ins. Co. v. Adam.s, 123 U. S. 67, 73, 31 L. ed. 63, 66; 
 Copeland v. Neic England M. Ins. Co. 2 Met. 432, 448-450.
 
 lOlO ACTION AGAINST CAKRIEK OF GO«^U8. 
 
 insurance effected by the shipper does not apply to a loss from 
 the carrier's iieiili«z:ence, where the policy expressly provides that 
 it shall not cover the carrier's cuinnion law liability, althuiii^h it 
 provides for advancino; to the shipper the insured value of the 
 goods, to be repaid upon a recovery against the carrier.' 
 
 In one of the earliest cases in which the rule was judicially 
 affirmed that a policy of insurance covers losses by perils insured 
 against, though occasioned by the negligence of the servants of 
 the insured, the assured being the owner of a ship, had chartered 
 her for a West Indies voyage, and by the usages of trade bore 
 the risk of bringing the cargo from the shore to the ship ; the 
 policy was upon the boats of the ship, and upon goods in them ; 
 and the amount recovered of the insurer was for goods being car- 
 ried from the shore to the ship in her boats, and lost by the wreck- 
 inw of the boats, in consequence of the misconduct and negligence 
 of some of the ship's crew. Such was the state of facts to which 
 Lord Chief Justice Abbott applied the language, cited and ap- 
 proved by Mr. Justice Story in Waters v. Jlerc/iant^- Louisville 
 Ins. Co. 36 U. S. 11 Pet. 222, 9 L. ed. 695, and by Chief Justice 
 Shaw, in Copeland v. New England M. Ins. Co. 2 Met. 442 : 
 " In this case, the immediate cause of the loss was the violence 
 of the wind and waves. No decision can be cited where, in such 
 a case, the underwriters have been held to be excused in conse- 
 quence of the loss having been remotely occasioned by the negli- 
 gence of the crew. I am afraid of laying down any such rule ; 
 it will introduce an infinite number of questions as to the quaii- 
 tiim of care, which, if used, might have prevented the loss. Sup- 
 pose, for instance, the master were to send a man to the masthead 
 to look out, and he falls asleep, in consequence of which the ves- 
 sel runs upon a rock or is taken by the enemy ; in that case it 
 might be argued, as here, that the loss was imputable to the neg- 
 ligence of one of the crew, and that the underwriters were not 
 liable. These and a variety of other such questions would be in- 
 troduced, in case our opinion were in favor of the underwriters."* 
 
 ' Qulf, G. & S. F. B. Co. V. Zimmerman, 81 Tex. 605. 
 ^Walker v. Maitland, 5 Barn. & Aid. 171, 174, 175.
 
 INSDRANCE ON GOODS BY CARRIER. 1011 
 
 So, in the recent case of North British M. Ins. Co. v. London, 
 L. (& G. Ins. Co. it was assumed, as unquestionable, that insur- 
 ance obtained by a wharfinger would cover a loss by his own 
 negligence.' That a policy of marine insurance excepts negli- 
 gence in navigation, is not available to the owners of a tug through 
 whose negligence the vessel carrying the insured cargo was lost, 
 in defense to a claim by the insurance company as subrogated to 
 the rights of the insured.' As the carrier might lawfully himself 
 obtain insurance against the loss of the goods by the usual perils, 
 although occasioned by his own negligence, he may lawfully 
 stipulate with the owner to be allowed the benefit of insurance 
 voluntarily obtained by the latter. This stipulation does not, in 
 terms or in effect, prevent the owner from being reimbursed the 
 full value of the goods ; but, being valid as between the owner 
 and the carrier, it does prevent either the owner himself or the 
 insurer, who can only sue in his right, from maintaining an 
 action against the carrier upon any terms inconsistent with 
 this stipulation. Xor does this conclusion impair any lawful 
 i-ights of the insurer. His right of subrogation, arising out of 
 the contract of insurance and payment of the loss, is only to such 
 rights as the assured has, by law or contract, against third per- 
 sons. The policy containing no express stipulation on the sub- 
 ject, and there being no evidence of any fraudulent concealment 
 or misrepresentation by the owner in obtaining the insurance, the 
 existence of the stipulation between the owner and the carrier 
 would have afforded no defense to an action on the policy, ac- 
 cording to two careful judgments rendered independently of 
 each other, the one by the English court of appeal, and the other 
 by the supreme judicial court of Massachusetts.' 
 
 In Tate v. Hyslop, owners of goods, insured against risks in 
 rafts or lighters, had previously agreed with a lighterman that 
 he should not be liable for any loss in crafts except loss caused by 
 liis own negligence, and did not disclose this agreement to the 
 
 ' L. R. 5 Ch. Div. 584. 
 
 * Re Harris, 57 Fed. Rep. 243. 
 
 2 Tate V. Hyslop, 15 Q. B. Div. 368; Jackson Co. v. Boylston Mut. Ins. Co. 139 
 Mass. 508, 52 Am. Rep. 728. 
 1
 
 1012 ACTION AGAINST CARKIER OF GOODS. 
 
 underwriters at the time of procurinf^ the insurance. The sole 
 ground upon which it was lield that the owners could not recover 
 ou the policy was that this agreement was material to the risk, 
 because the underwriters, as the assured knew, had previously 
 estal)lished two rates of premium, depending on the question 
 whether they would have recourse over against the lighterman. 
 Lord Justice Brett observed that, but for the two rates established 
 by the underwriters and known to the assured, the omission of 
 the assured to disclose their agreement with the lighterman, could 
 only have affected the amount of salvage which the underwriters 
 might have, and would have been immaterial to the risk, and 
 consequently to the insurance.' 1\\ Jackson Co. v. Boijhtoii Mat. 
 Ins. Co. supra., it was adjudged that, in the absence of any fraud 
 or intentional concealment, the undisclosed existence of a stipula- 
 tion between the assured and the carrier afforded no defense t(j 
 an action on the policy.' It must not be held that so much of a 
 
 ' L. R. 15 Q. B. Div. 375, 376. 
 
 ^Phcenixlm. Co. v. Erie & W. Tramp. Co. 117 U. S. 312. 29 L. ed. 873; 
 Cantnirs v. MechanicH & T. Im. Co. 18 Fed. Rep. 473; The Sidney, 23 Fed. 
 Rep 88; Mercantile Mat. Ins. Co. v. Calebs, 20 N. Y. ir3;\Vitting v. 8t. 
 Louis & 8. F. R. Co. 10 L. R. A. 602, 101 Mo. 631; Bartlett v. Pittsburg, C. 
 &St. L. R. Co. 94 Ind. 281; Evdmoille & C. R. Co. v. Young, 28 Ind. 516; 
 Ohio & M. R. Co. V. Selbi/, 47 Ind. 471, 17 Am. Rep. 719; Boscowitz v. 
 Adams Exp. Co. 93 111. 523, 34 Am. R.^p. 191; Toledo,W. & W. R. Co. v. 
 Beggs, 85 111. 80. 28 Am. Rep. 613; Hart v. Chicago & N. W. R. Co. 69 
 Iowa 485; Orogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360; Oulf. 
 C. & S. F. R. Co. V. Levi, 8 L. R. A. 323, 76 Tex. 337; Oulf, G. <& 8. F. 
 R. Co. V. Oatewood. 10 L. R. A. 419, 79 Tex. 89; Oeorrjia R. Co. v. Oann, 
 68 Ga. 350; Carroll v. Missouri Pac. R. Co. 88 ]VIo. 289, 57 Am. Rep. 382; 
 School Dist. in Medfield v. Boston, H. & E. R. Co. 102 Mass. 552, 3 Am. 
 Rep. 502; Squire v. New York Cent. R. Co. 98 Mass. 239, 93 Am. Dec. 162; 
 Lawrence v. New Yoi-k, P. & B. R. Co. 36 Conn. 63; St. Louis, E. C. & N. 
 R. Co. V. Piper, 13 Kan. 505; Shriller v. Sioux City & St. P. R. Co. 24 Minn. 
 506, 31 Am. Rep. 353; Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1, 
 2 Am. Rep. 362; Louisville & N. R. Co. v. Brownlee. 14 Bush, 590; Southern 
 Exp. Co. V. Moon, 39 Miss. 822; Richmond & D. R. Co. Y.Payne, 6 L. R. 
 A. 849, 86 Va. 481 ; Hull v. Chicago, Si. P. M. & 0. R. Co. 5 L. R. A. 587, 
 41 Minn. 510; Hartioell v. Northern Pac. Exp. Co. 3 L. R. A. 342, 5 Dak. 463; 
 Insurance Co. of N A. v. Efiston, 3 L. R. A. 424, 73 Tex. 167; Missouri Pac. 
 R. Co. V. Ivey, 1 L. R. A. 500, 71 Tev. 409; Sager v. Portsmouth, 8. & P. & 
 E. R. Co. 31 Me. 228, 50 Am. Rep. 659; Missouri Pac. R. Co. v. Vandevent- 
 er, 3 L. R. A. 129, 26 Neb. 222; Merchants Despatch Transp. Co. v. Bloch, 
 86 Tenn. 392; Durgin v. American Exp. Co. (N. H.) 9 L. R. A. 453; Annas 
 V. Milwaukee & N. R. Co. 67 Wis. 46; Branch v. Wilmington & W. R. Go. 
 88 N. C. 573; F linn v. Philadelphia, W. & B. R. Co. 1 Houst. (Del.) 469; 
 Little Rock, M. R. & T R. Go. v. Talbot, 39 Ark. 523; Seller v. T/ie Pacific. 
 1 Or. i09;Virgi?iia <& T. R. Go. v.Sayers. 26 Gratt. 328; Kimball v. Rutland 
 &B. R. Go. 26 Vt. 256, 62 Am. Dec. mi;Wallac6 v. Matthews, 39 Ga. 617,
 
 INSURANCE ON GOODS BY CAKRIKK. 1U13 
 
 clause in the bill of lading as provided that " the carrier so liable 
 shall have full benefit of any insurance that may have been ef- 
 fected upon or on account of said cotton" — is not invalid by rea^ 
 son of its contravening any rule based on public policy.' 
 
 In the case first referred to the bill of lading was prior in point 
 of time to the policy, which recited the fact of shipment, and it 
 was held that this was sufficient evidence that the poHcy was is- 
 sued with notice of the right secured by the carrier by contract, 
 and in subordination to that right. The same ruling was made 
 in the second case cited, in which it is assumed that the contracts 
 of carriage and insurance were made simultaneously, the insurer 
 being ignorant of the clause in the bill of lading which subrogated 
 the carrier to the rights of shipper under the policy. In dispos- 
 ing of the case the court said : "The policy contained no express 
 stipulation upon the subject, and there being no evidence of any 
 fraudulent conceahnent or misrepresentation by the owner in ob- 
 taining the insurance, the existence of the stipulation between 
 the owner and the carrier would have afforded no defense to an 
 action on the policy." ' 
 
 In Inman v. South Carolina R. Co. supra, it appeared that the 
 policy issued some time before the shipment was made, and while 
 recognizing the validity of a contract between the sliipper and 
 carrier, whereby the latter should become entitled to the benefit 
 of insurance made by the former in a proper case, the court said : 
 " The policies were all taken out some weeks before the shipments 
 
 99 Am. Dec. 473; Reno v. Hogan, 12 B. Mon. 63, 54 Am. Rep. 518; Roberta 
 V. Riley, 15 La. Ann. 103, 77 Am. Dec. 183; Mobile & 0. R. Co. v. Weiner, 
 49 Miss. 725; Merrill v. American Exp. Co. 62 N. H. 514; Bethea v. North- 
 eastern R. Co. 26 S. C. 91; Southern Exp. Go. y.ikide, 67 Miss. 609, 8 Ry. 
 & Corp. L. J. loS-.Weiller v. Pennsylcania R. Co. 134 Pa. 310, 42 Am. & 
 Eng. R. Cas. 390; Duntley v. Boi<ton & M. R. Co. (N. H.) 9 L. R. A. 449; 
 Lawton v. Comer, 7 L. R. A. 55, 40 Fed. Rep. 480; Adams Exp. Co. v. Har- 
 ris, 7 L. R. A. 214, 120 Ind. 73, substantially like the one in Insurance Co. 
 of N. A. V. Easton, 3 L. R. A. 424, 73 Tex. 167. 
 
 ' British & F. M. Ins. Co. v. Gulf, C. & 8. F. R. Co. 63 Tex. 475, 51 Am. Rep. 
 661; Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 29 L. ed. 873; 
 Inman v. South Carolina R. Co. 129 U. S. 128. 32 L. ed. 612: Rinioul v. 
 New York Cent. & H. R. R. Co. 21 Blatchf. 439; Piatt v. Richmond, T. R. 
 & C. R. Co. 108 N. Y. 358; Jackson Co. v.Boylston Mut. Ins. Co. 139 Mass. 
 508, 52 Am. Rep. 728. 
 
 » Tate V. Hyslop, L. R. 15 Q. B. Div. 368; Jackson Co. v. BoyUton Mut. Ins. 
 Co. supra. 
 t
 
 lUii ACTION AGAINST OAKUIKK UK OOUDS. 
 
 were made, although, of course, tliey did not attach until then, 
 and recovery upon neither of theui could have l»cen had, e.\cei>t 
 upon condition of resort over against the carrier, any act of the 
 owners to defeat which operated to cancel the lial)ility of the 
 insurers. They could not, therefore, be made available for the 
 benefit of the carrier." 
 
 In Jacl'son Co. v. Boylston Mut. Ins. Co. it was assumed that 
 the carrier might contract for the benefit of insurance secured by 
 the shipper ; and the inference to be drawn from the rejwrt of the 
 case is that the policy made the basis of the action was issued after 
 the riiiht of the carrier to the bciu'tit of insurance had attached. 
 The shipper bought through a broker, who it seems did not read 
 the receipts securing to the carrier the benefit of insurance. The 
 railroad's receipts with draft attached were forwarded l)y the 
 broker to the shipper, the draft cashed, notice given to the insur- 
 ance company of the shipments and the policy presented, that the 
 shipment might be evidenced thereon, which was done. This 
 seems to have been the act which applied the insurance to the 
 cotton destroj^ed while in transit, and no in(|uiry was made as to 
 the terms of shipment when insurance was thus obtained. In 
 disposing of the case the court said : " The contract between 
 the plaintiff and the carrier was binding being conceded, we are 
 brought to the conclusion expressed in the ruling of the judge 
 who presided at the trial, ' that in a case where there was no inten- 
 tion to deprive the insurance company of its rights, and no 
 intentional fraud or concealment, and where the plaintiff itself 
 [shipper] was actually ignorant of the stipulation relied on at the 
 time it made the insurance or obtained the indorsement on the 
 policy, and was ignorant when it ordered the cotton that any such 
 stipulation would be made, and there was no actual misrepresen- 
 tation, an insurance company insuring property in transitu, mak- 
 ing no provision in regard to the nature of the contract of 
 carriage, and not requesting to see the bill of lading or receipt, 
 and making no inquiries about them, must be held to have 
 insured it under and subject to the actual contract of carriage so 
 far as it was a lawful contract.' " 
 
 Under this state of facts it was held that the carrier by virtue
 
 INSURANCE ON GOODS BY CAKKIEK. lUl5 
 
 of its contract became subrogated to all ri(xlits held by the ship- 
 per against the insurer; and that thus was defeated the rii^ht cf 
 the insurer to be subrogated, on payment of the loss, to the right 
 against the carrier, to which, but for the contract of shipment, the 
 insurer, under the settled principles of law, would hav^e been 
 entitled. This case (while holding that the right of the insured, 
 when dependent only on his relation to the carrier, to modify by 
 contract the rule of subrogation, cannot be questioned) concedes 
 that no contract made between the insured and the insurer where- 
 by the right to modify the general rule of subrogation is with- 
 drawn from the insured can be controlled by a contract between 
 the insured and the carrier. 
 
 In Mercantile Mut. Ins. Co. v. Calebs^ 20 N, Y. 175, it was held 
 that a contract between a carrier and a 8hi})per was valid ; and on 
 payment of a loss under a i)<>licy issued after the contract for car- 
 riage was made, the right of subrogation was denied to the 
 insurer. In disposing of the case the court said : " It is argued 
 that this clause in the contract did not exempt the carriers from 
 liability to the plaintiffs, because it was made without their knowl- 
 edge or consent and was an attem})ted fraud upon their rights. 
 But this is not so in point of fact, so far as the defendants are 
 concerned. The contract between them and the insured was 
 made before any insurance was obtained, and though it sought to 
 secure a right to the defendants in case policies were procured, 
 yet on their part no fraud was contemplated on the plaintiffs ; 
 none is found by the court. It is true the case states that the 
 plaintiffs did not know of the contract when they issued their 
 policies ; that was a matter between them and the insured. If 
 there was any fraudulent concealment of facts on the part 
 of the latter, at the time they ol)tained their insurances, it 
 would have avoided the policies and they would not have been 
 bound to pay the loss. If they paid it voluntarily they are not 
 entitled to be subrogated. In this case, as in the others, but one, 
 considered, there was no contract between the insured and 
 insurer, at the time the contract between the carrier and the 
 insured was made, which restrained them from modifying or 
 entirely annulling the ordinary rule of subrogation if they saw 
 proper ^o do so by contract.
 
 1016 ACTION AGAINST CARKIEK OF GOODS. 
 
 The cases referred to hold : 1. That contracts, such as contained 
 in the carrier's contract,' are valid as between the carrier and 
 shipper. 2. That a policy issued with knowledge that the 
 insured property is in transit, in the absence of inquiry as to the 
 terms of shipment, misrepresentation as to this or other matter 
 material to the risk, or fraud, will be deemed to have been issued 
 in subordination to the contract of shipment which may control 
 the right of the insurer to subrogation. None of them, however, 
 hold that a contract of insurance, existing when a contract of car- 
 riage is made, whether the carrier have knowledge of the insur- 
 ance contract or not, can be controlled by a sul>sequent contract 
 between the insured and the carrier; and the insurer's right to 
 subrogation thus be destroyed, even when there is no express pro- 
 vision in the policy which forbids this. 
 
 It must be that, in the absence of stipulation in a policy to the 
 contrary, the insured may, without invalidating his policy, make 
 such contracts with a carrier, limiting the liability of tlie latter, as 
 may be lawful under the laws in force at the place of shipment or 
 such other laws as may be applicable ; for the parties ought to be 
 presumed to contract with reference to the right of the carrier to 
 refuse to receive and transport freight without contract limiting 
 his liability, in so far as this may lawfully be done under the law 
 governing the shipment. With the carrier's liability lawfully 
 restricted by contract, a loss resulting from a cause within the 
 restriction, would not give right of action in favor of the insured 
 shipper against the carrier ; and where this is the case there can 
 be no subrogation under the general principles applicable to the 
 subject. 
 
 The contract relied on by the carrier, in Insurance Co. of N. 
 A. V. Easton, supra, was not one it had the right to have made, 
 or, otherwise, the right to refuse to receive the cotton for trans- 
 portation," and it ought not to be presumed that the parties to the 
 
 ' Imurance Co. of N. A. v. Easton, 3 L. R. A. 424, 73 Tex. 167. 
 
 ''Note.— -A stipulation in a bill of lading that a carrier, wlien liable for a loss 
 of the goods, shall have the benefit of any insurance that may have been effected 
 upon them, is valid and limits the right of an insurer of the goods, upon paying 
 the loss, to recover over against the carrier; but a carrier setting up such a
 
 INSURANCE ON GOODS BY CARRIER. lUl7 
 
 insurance contract contemplated tliat tlie affreightment would be 
 made practically at the entire ri.sk of the insurer when the carrier 
 had no right to insist that this should be so, and wlien the general 
 rules of the law, with reference to which they ought to be pre- 
 sumed to have contracted, fix on the carrier the ultimate liability 
 for a loss occurring; while the freight is in his hands, unless the 
 loss arises from a cause that relieves the carrier from liability. 
 The carrier's liability is held to be the ultimate liability, simply 
 because the loss of property, while in his custody as carrier, 
 results, in fact or in legal contemplation, from his failure of duty, 
 while that of the insurer is held to be that only of an indemnitor, 
 in all cases in which the insurance contract does not stipulate to 
 the contrary, or in which a contrary construction may not fairly be 
 inferred from the time and circumstances of the contract. It 
 seems, under the facts of that case, leaving out of consideration 
 the warranty contained in the contract of insurance, that the right 
 of the insurer to subrogation on payment of the loss is as well 
 secured when there is not, as when there is, an express contract 
 that the right to subrogation shall exist ; and, that a contract be- 
 tween the insured and the carrier which defeats this rio-ht would 
 defeat the right of the insured or the carrier to recover at all ui^on 
 the contract of insurance. 
 
 It has been held that where a policy expressly gives the insurer 
 the right to subrogation against the carrier, that a subsequent 
 agreement between the insured and the carrier that the latter 
 shall be subrogated to the right of the insured avoids the policy.' 
 The correctness of this ruling was recognized in Jackson Co. v. 
 Boyston Mut. Ins. Co. 139 Mass. 411, 52 Am. Rep. 728. If the 
 insured wishes insurance that will place the ultimate liability on 
 
 defense must show clearly that the insurance on the goods is one to the benefit 
 of -which by the terms of his contract he is entitled. Liverpool & O. W. Steam 
 Co. V. Phenix Ins. Co. {''Tlie Montana ") 29 U. S. 397, 32 L. ed. 788. By the 
 contract the owner agrees that as between him and the carrier, the latter when 
 he has paid for the loss, may have the benefit of the insurance. Rintoul v. New 
 York Cent. O; H. R B. Co. 17 Fed. Rep. 905; Inman v. South Carolina R. Co. 
 129 U. S. 128, 32 L. ed. 612; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173. 
 Carstain v. Mechanics & T. Ins. Co. 18 Fed. Rep. 473, 16 Am. & Eng R 
 Cas. 142.
 
 1018 ACTION AGAINST CAIiKlER OF GOODS. 
 
 the insurer let him so make his contract as to protect the carrier 
 afterwards to be selected by him; compensate the insurer fur the 
 increased risk of ultimate loss, and be in position to contract with 
 the carrier for reduction in freight, such as may be proper by 
 reason of this shiftinor of the ultimate risk of loss from the carrier 
 to the insurer. 
 
 Passing from this, however, it is certainly true that the insured 
 cannot confer on the carrier a right they do not possess. The 
 warranty which an insurance company must seek to assert to 
 avoid liability to the carrier is one promissory in character, in 
 which the parties contract "that this insurance shall not inure to 
 the benefit of any carrier." This, if a valid provision, cuts off 
 any construction of the policy whereby it could possibly be held 
 to confer any right to benefit under it on a carrier of the property 
 insured, and it deprives the insured of the })ower to confer on 
 such carrier any right to benefit under the policy by contract or 
 otherwise. By the warranty the parties have contracted that the 
 contract of insurance should be avoided, should cease to be oper- 
 ative — if, during the time specified for its continuance, the in- 
 sured should so contract with a carrier of the property insured, as, 
 between themselves, to give to the carrier any right to benefit un- 
 der the policy. The purpose of this provision evidently was to 
 deny, in terms, to the insured, the right of power to confer on 
 the cari-ier any right to benefit through the policy, such as the 
 cases referred to hold maybe conferred on the carrier by contract 
 with the shipper, made before insurance is obtained. 
 
 The insurer, in effect, says in the face of the policy, and to this 
 the insured assents : " This contract shall be binding on me only 
 so long as you refrain from contracting with any carrier you may 
 employ to transport the insured property, that he shall have right 
 to any indemnity from me, for loss occurring while the property 
 is in his possession as carrier, from a cause which under the rules 
 of law applicable to the contract of carriage would give you cause 
 of action against such carrier; and I will not be longer bound, by 
 this contract, if you in any manner release such carrier from that 
 full liability to you and to me which will exist under a lawful 
 contract of affreightment for loss of the insured property while
 
 INSURANCE ON GOODS BY CARRIER. 1019 
 
 in his hands as carrier." By requiring the carrier's liability to 
 continue the ultimate liability, tlie insurer doubtless intended to 
 make the carrier's own interest some guaranty against its own 
 negligence or misconduct. In the very act of making the con- 
 tract, through which the carrier claims, the policy ceased to be of 
 any effect whatever, as to the particular cotton at least; and from 
 that time forward neither the insured nor the carrier could assert 
 right under it based on the particular loss, if the warranty was 
 valid. An insurance company is under no legal obligation to 
 issue a policy at all, but if it does it has the right to place a pro- 
 vision in the policy such as it did ; and in so doing it neither con- 
 travened any public policy nor restrained trade. 
 
 If it is said that the carrier may have had no notice of the 
 clause in the policy, and that for this reason it would be contrary 
 to public policy to permit it now to rely upon the warranty, the 
 sufficient answer is that the law does not require that notice shall 
 be given to third persons of contracts of insurance, nor does it 
 provide a mode in which such notice may be given whereby all 
 persons will be bound. If the want of notice of a contract be- 
 come important in a contest between a party to it and a third per- 
 son, who has sought to acquire by contract an interest or right 
 antagonistic to the right the former contract gives, it is not be- 
 cause the former contract was illegal, but because some equitable 
 consideration has arisen on account of which the person who has 
 kept secret his right ought not to be permitted to assert it against 
 one whom he has misled by his silence. If the mere want of no- 
 tice of contracts would place them on the list of contracts con- 
 demned because contrary to public policy, then there would be a 
 long list of condemned contracts, not heretofore even suspected 
 of illegality. The carrier knows that no right can be acquired 
 against the insurer through a contract with the insured other than 
 the latter possessed and has power to convey, and if it desires to 
 know the extent of that right it is its duty to inquire. Neither 
 the knowledge of nor privity of the carrier to the insurance con- 
 tract is necessary to its legality. The carrier has no legal right, 
 recognized or unrecognized, to have the insurance company or the 
 insured to make any contract of insurance whatever, much less to
 
 1020 ACTION AGAIM8T CAKUIEU OF GOODS. 
 
 make one the insurance company is under no oblif^ation to make, 
 and has refused to make. The terms of the policy neither re- 
 strains this carrier nor any other carrier from making lawful con- 
 tracts for carriage at any place, nor from carrying them out any- 
 where; they simply deny to the insured the right to make a 
 contract which will bind the insurer as the carrier desires it to 
 be bound. 
 
 It is too well settled by the authorities to admit of question 
 that, as between a common carrier of goods and an underwriter 
 under them, the liability to the owner for their loss or destruction 
 is primarily upon the carrier, while the liability of the insurer is 
 only secondary.' The contract of the carrier may not be first in 
 order of time, but it is first and principal in ultimate liability. In 
 respect to the ownership of the goods, and the will incident thereto 
 the owner and the insurer are considered but one person, having 
 together the beneficial right to the indemnity due from the car- 
 rier for a breach of his contract or for non-performance of his 
 legal duty. Standing thus, as the insurer does, practically, in the 
 position of a surety stipulating that the goods shall not be lost or 
 injured in consequence of the peril insured against, whenever he 
 has indemnified the owner for the loss he is entitled to all the 
 means of indemnity which the satisfied owner held against the 
 party primarily liable. His right rests upon familiar principles 
 of equity. It is the right of subrogation, dependent not at all 
 upon privity of contract, but worked out through the right of the 
 creditor or owner.' 
 
 ' Hall V. Nashville & C. R. Co. 80 U. S. 13 Wall. 369, 20 L. ed. 594. 
 
 ''Note. — Where an owner insured, and damaged by perils insured against, 
 abandons all " spes rec^iperandi " to the underwriter, the latter on paying the 
 loss is entitled to be subrogated to all the rights of the insured to recover 
 against third parties who caused the damage. Home Ins. Go. v. Western 
 Transp. Co. 4 Robt. 267; Atlantic Ins. Co. v. Storrow, 1 Edw. Ch. 621, 5 Paige, 
 285; New York L. Ins. Co. v. Boulet, 24 Wend. 513; Rogers v. Hosach, 18 Wend. 
 319; ^tna F. Ins. Co. v. Tyler, 16 Wend. 385, 30 Am. Dec. 90; Hart v. West- 
 ern R. Corp. 13 Met. 99, 46 Am. Dec. 719; Inman v. South Carolina R. Co. 
 129 U. S. 128, 32 L. ed. 612. The entire destruction of the subject of insur- 
 ance or the payment of the loss has been considered equipollent with an aban- 
 donment in giving the insurer such right of subrogation. New York v. Pentz,
 
 INSURANCE ON GOODS BY CARRIER. 1021 
 
 Hence, it has often been ruled that an insurer, who has paid a 
 loss, may use the name of the assured in an action to obtain re- 
 dress from the carrier whose failure of duty caused the loss.' 
 But it is equally well settled that the right by way of subrogation 
 of an insurer upon paying for a total loss of the goods insured to 
 recover over against the carrier, is only that right which the 
 assured has, and that accordingly when a bill of lading provides 
 that the carrier, when liable for the loss shall have the full bene- 
 fit of any insurance that may have been eifected upon the goods, 
 this provision is valid, as between the carrier and the shipper ; 
 and that, therefore, such provision limits the right of subrogation 
 of the insurer, upon paying the shipper the loss, to recover over 
 against the cai-rier.'' 
 
 If a valid claim by the underwriter to be subrogated to the 
 rights of the owner will not arise where the carrier has contracted 
 with the owner that he, the carrier, shall have the benefit of any 
 insui-ance, it would seem to be clear that where the carrier is 
 actually and in terms the party insured, the underwriter can have 
 no right to recover over against the carrier, even if the amount 
 of the policy has been paid by the insurance company to the 
 owner on the order of the carrier.' The owner of a cargo de- 
 stroyed by fire through the negligence of a vessel to which it has 
 l)een delivered is not divested of title so as to prevent his recov- 
 ery for the loss, by an arrangement under which the. insurer of 
 the cargo advances him its value as a loan without interest, upon 
 
 24 Wend. 668; New York L. Ins. Co. v. Roulet, supra. The insurers are sub- 
 rogated to the rights of the insured against the carrier for the loss and damage 
 to the cargo insured by them. Phillips, Ins. 1723; Home Inn. Co. v. Western 
 Transp. Co. 4 Robt. 257; Hall v. Nashville & C. R. Co. 80 U. S. 13 Wall. 367, 
 370, 373, 20 L. ed. 594-597; The Potomac v. Cannon, 105 U. S. 630, 36 L. ed. 
 1194; Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527; Phcenix Ins. 
 Co. V. Erie & W. Transp. Co. 117 U. S. 312, 320, 29 L. ed. 873, 878; Liverpool 
 & a. W. Steam Co. v. Phenix Ins. Co. (" Tfte Montana ") 129 U. S. 397, 32 L. 
 ed. 788. 
 
 ' Hall V. Nashville & C. R. Co. 80 U. S. 13 Wall. 369, 20 L. ed. 594. 
 ^Phoenix Ins. Co. v. Erie t£- W. Transp. Co. 117 U. S. 312, 29 L. ed. 873; St. 
 
 Louis, I M. & S. R. Co. v. Commercial U. Ins. Co. 139 U. S. 223, 35 L. 
 
 ed. 154. 
 
 ^Providence Ins. Co. v. Morse, 150 U. S. 99, 37 L. ed. 1013. 
 t
 
 1022 ACTION AGAINST CAURIER OF GOODS. 
 
 the understanding that lie shall prosecnte the claim and, if suc- 
 cessful, pay the loan, but, if unsuccessful, the loan shall be con- 
 sidered payment of the insurance.' An advance of the insured 
 value by an insurer to a shipper of goods, pending the determina- 
 tion of the carrier's liability for their loss, is not a payment of 
 the insurance which can be pleaded in avoidance of such liability, 
 where the policy stipulates that it shall not cover the carrier's 
 common law liability, and that the insured shall be reimbursed 
 out of the recovery, if any, against the carrier.' 
 
 A stamp upon a bill of lading, stating that the property is in- 
 sured between certain ports in a certain amount, nj^on which the 
 premium is paid, is not a contract of insurance constituting a val- 
 ued policy, but an agreement to effect insurance, which is com- 
 plied with by procuring proper insurance in any proper comjmny, 
 where it is customary for carriers to make the latter undertaking, 
 and there is nothing to indicate that either party expected that 
 anything more should be done.' No rights of a shipper growing 
 out of a contract between the carrier and its agents that the latter 
 shall procure insurance on the shipper's property while in its 
 possession as such agent, can be adjusted, as between the shipper 
 and agent, in case of the loss of tlie property by fire, unless the 
 carrier has been sued and its liability for the loss established.* 
 
 Where an action is bronght by the owner of goods against the 
 carrier for the loss of the goods by lire, for the use of the insurer, 
 who has paid the insurance money to the owner, the recovery is 
 not limited to the amount of the policy, but will be for the entire 
 loss sustained by the nominal plaintiffs without regard to the 
 amount of insurance paid. A payment by the insurer to the in- 
 sured of property lost while in the possession of a common car- 
 rier does not discharge the liability of the common carrier.* 
 Satisfaction received from the insurer for a sunken vessel is no 
 
 ' The Guiding Star, 53 Fed. Rep. 936. 
 
 ■•' Gtdf, C. & S. F. R. Co. V. Zimmerman, 81 Tex. 605. 
 
 ^Marquardt v. French, 53 Fed. Rep. 603. 
 
 *Deming v. Merchants Cotton Press & S. Co. 13 L. R. A. 518, 90 Tenn. 306. 
 
 ^Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527.
 
 LIABILITY OF CARRIER OF GOODS. 1023 
 
 defense in initii:;ation of damages for the collision.' Under a bill 
 of lading entitling the carrier to insurance, the payment of the 
 insurance to the owner of the property discharges the carrier 
 from all liability, and the insurance company can have no action 
 against the carrier.' "Where, by a collision between two vessels 
 by their mutual fault, a third vessel was injured or her cargo lost, 
 on a libel by the insurer of the cargo against one of the offending 
 vessels she is liable for the whole damage. The rule of the divis- 
 ion of damages does not apply. It is a marine tort, and each is 
 jointly and severally liable/ ' 
 
 § 149. LiahiUty of Carrier of Goods. 
 
 The liability of the carrier of goods has been pointed out in 
 the preceding sections and it is only necessary to refer to a few 
 general principles at this time. Thus, the general rule is that 
 a carrier cannot by agreement escape liability for loss from negli- 
 gence or malfeasance of himself or his employes.* And even 
 where this is permitted, a shipping contract, though made at a 
 reduced rate and providing for the exemption of the carrier from 
 liability for its negligence, will not exempt it from any kind or 
 sort of negligence not specifically and expressly stated in the 
 contract." A foreign vessel shipping a cargo in the United States 
 for transportation to a foreign port cannot make a provision of 
 the bill of lading exempting her from liability for her own negli- 
 gence operative by a further provision that all questions arising 
 under the contract shall be decided according to the laws of the 
 country to which she belongs, by which such a stipulation is 
 vahd." 
 
 A carrier is not relieved from liability for loss of freight by its 
 negligence by the fact that the freight was shipped under a con- 
 
 ' The Monticello v. Mollison, 58 U. S. 17 How. 153, 15 L. ed. 68. 
 » Piatt V. Richmond, Y. R. & C. R. Co. 108 X. Y. 358. 
 
 ^Phcenix Ins. Co. v. The Atlas, 93 U. S. 302, 23 L. ed. 863; United States v. 
 The Juniata {"The Juniata") 93 U. S. 337, 23 L. ed. 930. 
 
 * Milton V. Denver & R. G. R. Co. 1 Colo. App. 307. 
 
 6 Zimmer v. New York Cent. & H. R. R. Co. 42 N. Y. S. R. 63. 
 
 • The Iowa, 50 Fed. Rep. 561. 
 
 1
 
 1024 ACTION AGAINST CAKRIEU OF GOODS. 
 
 tract for a special rate and rebate in violation of the Interstate 
 Commerce Law.' A carrier is liable in trover for goods deliv- 
 ered to the consignee in violation of instructions from the ship- 
 per not to deliver them without a bill of lading." Payment of an 
 overcharge of freight to a railroad company engaged as a com- 
 mon carrier of goods is not voluntary so as to prevent recovering 
 it.' 
 
 Damages for breach by the carrier of a written contract under 
 which cattle were shipped, cannot be recovered in an action for 
 breach of a prior oral contract to transport them at a certain 
 time.* A common carrier wrongfully refusing to receive freight 
 is not liable for damage resulting from the ravages of the weather, 
 as it is the duty of the shipper to protect it properly, the carrier 
 being liable for the reasonable expense therefor.' Damages can- 
 not be recovered in an action for breach of a contract to furnish 
 on a certain day a car for the shipment of cattle, for negligent 
 shipment under a contract thereafter entered into.* A railroad 
 company is not liable for injury to freight resulting from expos- 
 ure to mud and rain in consequence of the company's violation 
 of its contract with the road over which the freight was shipped, 
 to maintain a narrow-gauge track for the benefit of that road, as 
 the exposure and not the failure to maintain the track is the 
 proximate cause of injury.' 
 
 The liability of the Crown for loss of or injury to goods carried 
 by a government railway, through the negligence of the persons 
 in charge of the train, is purely statutory ; but under 50 & 51 
 Yict. chap. 16, a petition of right will lie therefor.* Where a 
 railway company agreed with a compress company to receive and 
 transport all cotton brought by its owners to the compress com- 
 
 ' Insurance Co. of N. A, v. Delmcare Mut. 8. Ins. Co. 91 Tenn. 537. 
 " Foggan v. Lake Shore & M. S. R. Co. 40 N. Y. S. R. 718. 
 ^Louisville, E. & St. L. Consol. R. Co. v. Wilson, 18 L. R. A. 105, 132 Ind. 
 517. 
 
 * Waters v. Richmond & D. R. Go. 16 L. R. A. 834, 110 N. C. 338. 
 
 ^St. Louis, A. <& T. R. Co. v. Neel, 56 Ark. 379, 12 Ry. & Corp. L. J. 110. 
 ^ Waters v. Richmond & D. R. Co. supra. 
 ' St. Louis, A. & T. R. Co. v. Neel, supra. 
 
 * Lavoie v. Reg. 3 Can. Exch. 96.
 
 LIABILITY OF CARRIEK OB" GOODS. lU25 
 
 pany, tlie railway coinjmny is not liable to the owners or insurers 
 of such cotton for its destruction by tire, during its delay to 
 furnish the transportation, such delay not being the direct and 
 proximate cause of the loss by tire.' A shipo%vner who, to exon- 
 erate himself, has, as bailee of the cargo, recovered and received 
 from the owner of another vessel, in a suit in admiralty for dam- 
 ages for a collision, the value of the cargo, as well as damages for 
 injury to his ship, is answerable to the owner of the cargo, or to 
 the insurer subrogated to such owner's right, for the whole value 
 thereof so received, without deduction for the expenses of the 
 litigation in which it was obtained.'' 
 
 In a recent case, the appellant brought suit to recover of the 
 appellees, as receivers of the International Great Northern Rail- 
 road Company, damages for a failure to deliver promptly the 
 body of her deceased husband under a contract with her for its 
 carriage from San Antonio to Jefferson, She alleged in her 
 petition, in substance, that her husband died at Boerne ; that at 
 the time they were sojoui-ning at that place on account of his 
 health, but that their home was in Jefferson ; that she caused his 
 body to be inclosed in a metallic casket, and conveyed to San 
 Antonio, where she immediately entered into contract with the 
 agent of defendants for its carriage to Jefferson, by paying for 
 and procuring a tirst class passenger ticket to that place, known 
 and marked as a " corpse" ticket ; and that at the same time she 
 procured tickets for herself and attendants over the same line to 
 the same place. It was also alleged that on the 12th day of the 
 same month the body was delivered to the agents of the defend- 
 ants, and placed on board the train ; that she took the same train, 
 and arrived at an early hour the next morning at the depot at 
 Jefferson, where her relatives and many friends were in waiting 
 to accompany her dead husband to her home ; but that, to hei- 
 great mortitication and distress of mind, she then ascertained 
 that the casket containing the body had not arrived. It was 
 further averred that, as she subsequently ascertained, the body, 
 
 *St. Louis. 1. M. & S. R. Co. v. Commercial U. Ins. Co. 139 U. S. 223, 35 L. 
 
 ed. 154. 
 * Hardman v. Brett, 2 L. R. A. 173, 37 Fed. Rep. 803 
 65
 
 1026 ACTION AGAINST CAKRIER OF GO »Dt<. 
 
 instead of having been sent forward by tlie train upon which she 
 was carried, as slionld have beeii done, was, through tlie negli- 
 gence of the defendants' agents or servants, phieed in a box car, 
 and left upon the side track at Palestine, an intermediate station, 
 that did not reach Jefferson until the 14th of the month ; and 
 that on account of its advanced state of decomposition, resulting 
 from the delay, " it was with great difficulty and much additional 
 pain and distress of mind, that her and his friends could decently 
 inter the said remains.'' The petition claims damages for mental 
 distress and prayed also for a recovery of exemplary damages. 
 A demurrer to the petition was sustained by the court, and the 
 plaintiff haviiig declined to amend, her suit was dismissed. On 
 appeal she complains of the ruling of the court upon the de- 
 nmrrer and asks a reversal of the judgment. The court is unable 
 to distinguish in principle this case from tliose in which recover- 
 ies against telegraph companies have been allowed for failure to 
 deliver with promptness messages announcing the death or mor- 
 tal illness of near relatives. Such cases are exceptional. As a 
 rule, mental suffering is not an element of the damages which 
 are recoverable for breach of a contract, or, in an action for tort, 
 founded upon a right growing out of a contract. Ordinarily, 
 the object of sending a telegraphic message announcing the death 
 or sickness of a relative is to afford the person to be beneffted 
 the solace that may result from being present during the last ill- 
 ness of the relative, or attending his obsequies, as the case may 
 be. The direct result of the failure to perform the duty of de- 
 livering the message being to deprive the person addressed of 
 this solace, and to cause distress of mind, it is not unreasonable 
 that he should have his compensation therefor. It is upon this 
 principle that the decisions of courts in the telegraphic cases are 
 to be maintained. The same principle, it is said, applies in this 
 case. But, however that may be, there is no valid reason why, if 
 a recovery can be had for mental suffering resulting from the 
 failure to deliver a telegraph message announcing the death, like 
 damages should be denied in this. In the case of Wester7i U. 
 Teleg. Co. v. /Si?7ipso)i, 73 Tex. 422, the resulting injury was 
 somewhat similar to that in the present case. But it is insisted
 
 PKESUMPTION FKOM LOSS OF GOODS BURDEN OF PEOOF. 1027 
 
 that the mental suffering for which a recovery was sustained in 
 that case was the immediate result of the delay in securing the 
 money which the company had contracted to deliv^er. Some dis- 
 agreeable mental emotion is the ordinai-y result of the failure to 
 pay or deliver money according to promise. But the measure of 
 damages for the bi'each of the contract is the money to be paid 
 or delivered with the interest. It was the fact that the plaintiff 
 was detained in a distant state, watching over the body pf her 
 deceased husband, which sustained the recovery in that case.' 
 
 § 150. Presuinption from Loss of Goods— Burden 
 
 of Proof. 
 
 The question on whom rests the burden of proof where articles 
 are damaged or lost by a carrier from a cause excepted in its bill 
 of lading, has been already considered in § 49, ante. The plain- 
 tiff's ownership of the property, its delivery to the defendant for 
 transportation, and its acceptance for that purpose, and its non- 
 delivery to the consignees, are prima facie evidence of negligence. 
 The burden is therefore upon the defendant to show tacts ex- 
 empting it from lialjility." If property has been delivered to the 
 carrier or his duly authorized agents, and it has not been deliv- 
 ered hy him to the consignee, this is prima facie evidence of 
 negligence and liability,' It is not enough to show the loss might 
 have been occasioned by an excepted peril. It must be shown 
 prima facie that it was so caused.* 
 
 The nondelivery by a carrier of goods which it has undertaken 
 to transport is presumptive evidence of negligence on its part, in 
 
 ' Eale V. Bonner, 14 L. R. A. 836, 82 Tex. 33. 
 
 ^LiUle V. Boston & M. R. Co. 66 Me. 241; Murphy v. Staton, 3 Munf. 239; 
 
 Forward v. Pettard, 1 Term Rep. 33. 
 3 Witting V. St. Louis & S. F. R. Co. 10 L. R. A. 602, 101 Mo. 631; Qrogan 
 
 V. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360; Rich v. Lambert, 53 U. 
 
 S. 12 How. 347, 13 L. ed. 1017; Clark v. Barnwell, 53 U. S. 12 How. 272, 
 
 13 L. ed. 985; Read v. St. Louis, K. C. & N. R. Co. 60 Mo. 199; Arend v. 
 
 Liverpool, N. Y. & P. SS. Co. 6 Lans. 457: The Emma Johnson, 1 Sprague, 
 
 527; Ti/gert Co. v. The diaries P. Sinnickson, 24 Fed. Rep. 304; Bunty. 
 
 The Cleveland, 6 McLean, 76; Ewart v. Street, 2 Bail. L. 157; 23 Am. Dec. 
 
 131; The Compta, 4 Sawy. 375; Kirby v. Adams Exp. Co. 2 Mo. App. 369; 
 
 The Lite Yankee, Deady, 420. 
 * The Cmnpta and The Live Yankee, supra; The Juniata Baton, 1 Biss. 15,
 
 1028 ACTION AGAINST CAKUIEK OF GOODS. 
 
 the absence of any evidence showiiii; the cii'cuinstances of tlie 
 loss.' Where goods are lost or injured wliile in the custody of a 
 common carrier a presumption of nei^lit^ence on liis part arises, 
 in the absence of evidence accountin<^ for the loss in such a way 
 that his negUgence cannot be inferred.^ In case of loss of goods 
 during transportation, the presumption as to liability is against 
 the can-ier." In claiming exemption from liability for an admitterl 
 loss, a shipowner who pleads peril of the sea has the burden of 
 proof to bi'ing the loss within the exemption/ It is fre(pientl\ 
 difficult to show cause of the loss or damage done in order to fix 
 the liability of the carrier," and the burden of proof is cast upon 
 him to show that the loss resulted from such causes as will exempt 
 him from responsibility.' If it is satisfactorily shown that the 
 loss arose from one of the excepted causes, such as flood or fire, 
 the carrier is relieved of liability without proving affirmatively 
 that he was guilty of no negligence.' The proof of such negli- 
 gence, if the negligence is alleged to exist, rests on the party 
 asserting it.* The jury is entitled to infer negligence on the part 
 
 ' Broicning v. Goodrich Tramp. Co. 10 L. R. A. 415, 78 Wis. 391. 
 
 2 Grogan v. Adnm>< Exp. Co. 114 Pa. 523, 60 Am. Rep. 360. 
 
 ^Inman v. South Carolina R. Co. 129 U. S. 128, 32 L. ed. 612. 
 
 *The Charles J. Willard, 38 Fed. Rep. 759; The Mollie Mohler v . Home In.i. 
 Co. {"The Mohler'"^ 88 U. S. 21 Wall. 230. 22 L. ed. 485; ffoirlnnd v. Green- 
 way, 63 U. S. 22 How. 491. 16 L. ed. 39l■,^Vhi(eside.i v. Russell, 8 Watts & 
 S. ^'^•.VanWinkle v. Soiitit Carolina R. Co. 38 Ga. 32; Davidson v. Graham, 
 2 Ohio Si. 141; Peck v. Weeks, 34 Conn. 152; Stokes v. SaltonstaU, 38 U. S. 
 13 Pet. 181, 10 L. ed. 115; Hastings v. Pepper, 11 Pick. 41. 
 
 ' See Ringgold v. Haven, 1 Cal. 108; Midland R. Co. v. Bromley, 17 C. B. 376; 
 Woodbui-y v. Frink, 14 111. 279. 
 
 •* Chapman v. New Orleans, J. & G. N. R. Co. 21 La. Ann. 224, 99 Am. Dec. 
 722; Levering v. Union Transp. & Ins. Co. 42 Mo. 88, 97 Am. Dec. 320; 
 Turney v. Wilson, 7 Yerg. 340, 27 Am. Dec. 515; Baltimore & 0. R. Co. v. 
 Morehead, 5 W. Va. 293; Ewart v. Street. 2 Bail. L. 161, 23 Am. Dec. 131; 
 King V. Shepherd, 3 Story, 356; Winne v. Illinois Cent. R. Co. 31 Iowa, 583; 
 Hall V. Cheney, 36 N. H. 27: Agnew v. Steamer Contra Costa. 27 Cal. 425, 
 87 Am. Dec. 87; Tarbox v. Eastern S. B. Co. 50 Me. 339; Cameron v. Rich, 
 4 Strobh. L. 168, 53 Am. Dec. 670; Bazin v. The Steamship Co. 3 Wall. 
 Jr. 229. 
 
 •> Memphis & C. R. Co. v. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909. 
 
 ^ Farnham v. Camden & A. R. Co. 55 Pa. 59; Western Transp. Go. v. Downer, 
 78 U. S. 11 Wall. 129, 20 L. ed. 160; Colton v. Cleveland & P. R. Co. 67 Pa. 
 211. 5 Am. Rep. 424; Patterson v. Clyde, 67 Pa. .500; Kansas Pac. R. Co. 
 V. Reynolds, 8 Kan. 623; Childs v. Little Miami R. Co. 1 Cin. S. C. (Ohio) 
 480; Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed 985; Lamb v.
 
 PliESUMPTION FROM LOSS OF GOODS BURDEN OF PROOF. 1029 
 
 of a carrier whose contract provides exemption from liability, not 
 for loss or damage from any particular cause, but as to amount of 
 loss only, where lie does not attempt to account for the failure to 
 deliver the property.' 
 
 But even when prima facie pro(jf has becTi thus made, it has 
 been held that, when the common can-ier relies upon a contract 
 exemption, he must bring himself within the exemption, and that 
 he does not do this by simply showing that the goods were lost, 
 or destroyed, or injured, by the excepted peril or accident, but 
 rhat he must go further, and show that he was free from any 
 negligence contributing to the loss or injury. The strict rule 
 of liability of the common carrier exacted by the common law, 
 was imposed largely as the result of experience and from con- 
 siderations of sound public policy. A common carrier is en- 
 gaged in a public empluyinent and is privileged and protected 
 therein. Ordinarily one who delivers to him goods, parts en- 
 tirely, where the rigid rule is enforced, with his possession and 
 control of them, and can know nothing of what takes place during 
 the carriage, while the carrier lias possession and control over 
 them, and is supposed to know, because he has the means of know- 
 ing, what happens to them, and if they are lost or injured, how 
 it occurred. The common law recognized the danger of negli- 
 gence in case of collusion and fraud between the carrier and his 
 servants or others, which might leave the owner practically de- 
 pendent upon the good faith of the carrier when he was required 
 to prove such absolute want of good faith and actual negligence 
 or fraud. To make such proof he would ordinarily have to rely 
 upon the evidence of the very men whose negligence or criminal- 
 ity caused the injury. To prevent this failure of proof and of 
 justice the law excused the carrier only upon his proving that the 
 loss or damage occurred from the act of God or the public enemy, 
 — causes for which he could not be supposed to be responsible. 
 The reasons which require the carrier to excuse himself for his 
 
 Camden d: A. R. & Tramp. Co. 46 N. Y. 271, 7 Am. Rep. 337, reversing 
 2 Daly, 454. See Westcott v. Fargo, 63 Barb. 349, 6 Laos. 319. affirmed 61 
 N. Y! 542, 19 Am. Rep. 300; Leioin v. Smith, 107 Mass. 334. 
 ' Louisville, N. A. & C. R. Co. v. Niclwlai, 4 Ind. App. 119, 45 Alb. L. J. 412.
 
 1030 ACTION AGAINST CARKIEK OF GOODS. 
 
 failure would seem to apply with as much lurce to a case of 
 full common law liability.' 
 
 In an action to recover from a carrier damafjes for the loss of 
 a package for which it has given a bill of lading which exempts 
 it from liability for the dangers of navigation, fire, collision or 
 delivery, except to land goods on dock or pier, the burden is up- 
 on the company to show tliat the package was so landed.' Inas- 
 much as the facts are peculiarly within the carrier's knowledge, 
 it is urged that proof should come primarily from him. In an 
 action for damages for injury to goods, the owner must show that 
 they were delivered to the carrier in good condition, in order to 
 •establish the fact of injury.' This being shown, the better rule 
 holds it sufficient for the carrier to show tliat the loss was oc- 
 casioned by some accident or peril, from liability for which he is 
 exempted, either by his contract or by law ; and that he is not re- 
 quired to go further and show, in addition, that he was free from 
 negligence contributing to the loss or damage.* By this rule 
 
 ' The following are some of the cases which support this doctrine : Bro-wn 
 V. Adams Exp. Co. 15 W. Va. 812; Ri/an v. Missouri, K. d- T. R. Co. 65 
 Tex. 13, 57 Am. Rep 589; Tarney v. Wilson, 7 Yerg. 340. 27 Am. Dec. 515; 
 Baker v. Brinson, 9 Rich. L. 201, 67 Am. Dec. 548; Alabama O. S. R. Co. 
 V. Little, 71 Ala. 611. 
 
 « Browning v. Goodrich Transp. Co. 10 L. R. A. 415, 78 Wis. 391 ; Berry v. 
 Cooper, '^S Ga. 543; Uiicago, St. L. & N. 0. R. Co. v. Mo>is, 60 Miss. 1003, 
 45 Am. Rep. 428; Graliam \. Davis, 4 Ohio St. 363, 62 Am. Dec. 285; 
 Union Exp. Co. v. Qraham, 26 Obio St. 595; United States Exp. Co. v. 
 Backman, 28 Ohio St. 144; Orey v. Mobile Trade Co. 55 Ala. 387, 28 Am. 
 Rep. 729; Afobile tt- 0. R. Co. v. Jarboe, 41 Ala. 644; Chicago, B. & Q. R. 
 Co. V. Manning, 23 Neb. 552. 
 
 » Smith V. New York Cent. R. Co. 43 Barb. 255. 
 
 *The following are some of the cases which assert this doctrine : Witting v. 
 St. Louis &S F. R. Co. 10 L. R. A. 602. 101 Mo. 631; Read v. St. Louis, 
 K. C. & N. R. Co. 60 Mo. 199 (overruling Lenering v. Union Transp. de 
 Ins. Co. 42 Mo. 88, 97 Am. Dec. 320, and Ketchum v. American Merchants 
 Union Exp. Co. 52 Mo. 390); Lamb v. Camden <& A. R. & Transp. Co. 46 
 :N. Y. 271, 7 Am. Rep. Z'H^WhitiDorth v. Erie R. Co. 87 N. Y. 413; Canfield 
 V. Baltimore & 0. R. Co. 93 N. Y. 532, 45 Am. Rep. 268; Bankard v. Bal- 
 timore c£- 0. R. Co. 34 Md. 197; Farnham v. Camden & A. R. Co. 55 Pa. 
 53; Patterson v. Clyde, 67 Pa. 500; Little Rock, M. R. db T. R. Co. v. Talbot, 
 39 Ark. 526; Little Rock, M. R. & T. R. Co. v. Corcoran, 40 Ark. Z"!^; Mem- 
 phis & C. R. Co. V. Reeves, 77 U. S. 10 Wall. 176, 19 L. ed. 9m;Western 
 Transp. Co. v. Downer, 78 U. S. 11 Wall. 129, 20 L. ed. 160; Marx v. The 
 Britannia, 34 Fed. Rep. 906; French v. Buffalo & E. R. Co. 2 Abb. App. 
 Dec. 196; Sager v. Portsmouth, S. & P. & E. R. Co. 31 Me. 228, 50 Am. 
 Dec. 659; Kansas Pac. R. Co. v. Reynolds, 8 Kan. 623; The Adriatic, 16 
 Blatchf. 424; The Barracouta, 39 Fed. Rep. 288; Price v. The Uriel, 10 
 La. Ann. 413; Read v. St. Louis, E. C. & N. R. Co. 60 Mo. 199; Davis v. 
 Wabash, St. L. & P. R. Co. 89 Mo. 340.
 
 I'KE.SL'MPTIOX FROM LOSS OF UOODS — JiLKDEX OF TROOF. 1031 
 
 a peril of navio;ation having caused the loss, the defendant is 
 prima facie relieved from liability. There is no presumption 
 from a loss occurring in this way that tliere has been negligence 
 on the part of the defendant.' Wiiere goods are shipped under 
 a contract exempting the carrier from liability for the breakage 
 of certain kinds of goods, and are delivered to the consignee in a 
 broken condition, if the carrier shows that the broken articles are 
 within the exception of the contract, the owner, to recover for 
 their loss, must show that the carriers negligence was the sole or 
 an active co-operating cause in producing the damage. The law 
 does not, in such cases, j)resume negligence from the fact of the 
 breakage so as to cast the burden of proving its absence on the 
 carrier." If plaintiff shows delivery of his goods to a carrier, and 
 a subsequent loss thereof, it is sufficient to make out a prima facie 
 case ; and the burden of proof is then upon the carrier to bring 
 the case within one of the exceptions to its lial)ility ; and having 
 done so, the burden is then on the plaintiff to show that some 
 specific negligence with reference to the goods, on the [)art of 
 the defendant, actively co-operated with the "act of God" to 
 produce the injury.* A carrier's negligence will not be pre- 
 sumed, except upon proof of the happening of an injury which 
 the exercise of proper care by the carrier could have prevented.' 
 The weight of authority and perhaps principle seems to sustain 
 the proposition that when the loss occurs from any of the causes 
 excepted in the undertaking, the exception must be the proximate 
 cause of the loss, and the sole cause. And where the loss is 
 attributable to such cause, still, if the negligence of the carrier 
 mingles with it as an active and co-operating cause, he is respon- 
 sible. When the loss of the goods is established, the burden of 
 proof devolves upon the carrier to show that it was occasioned by 
 some act which is recognized as an exception. This shown, it is 
 
 ' Clark V. Barnwell, 53 U. S. 12 How. 272, 18 L. ed. 985;Western Iransp. Go. 
 
 V. Downer, 78 U. S. 11 Wall. 129, 20 L. ed. 160. 
 nrttti7i(/ V. St. Louis & S. F. R. Co. 10 L. R. A. 602, 101 Mo. 631, 42 Alb. L. 
 
 .J. 511, note. 
 
 * Davis V. Wabash, St. L. & P. R. Co. 89 Mo. 340; Ryan v. Missouri, K. & T, 
 
 R. Co. 65 Tex. 13, 57 Am. Rep. 589. 
 
 * Pennsylvania R. Co. v. Riiiordan, 119 Pa. 577.
 
 1032 ACTION AGAINST CAKKIKK OF (iOODS. 
 
 prima facie an exoncratiuii, aiul lie is not reqiiiivd to fjo furtlirr 
 and prove aftirmatively tliat he was gjuilty of no nes^ligence. The 
 proof of such nei<ligence, if necrligenee is asserted to exist, rests 
 on the other party. In a suit to recover daniaf>;es for the break- 
 age of an article while in a carriers possession for transportation, 
 tiie success of wliich depends upon showing negligence on the part 
 of the carrier, a demurrer to the evidence is properly overruled if 
 it tends to show that the article was delivered to the carrier in 
 o-ood condition properly packed, and that it reached its destination 
 badly broken, the crate in which it was packed being broken on 
 one side whih* oiio of the inside stays was broken and others out 
 of place.' 
 
 Frequently the proof of the loss may show a condition of the 
 means of transportation which creates a presumption of negligence 
 on the part of tlie carrier. The fact of a breakage or leakage of 
 casks of wine shipped by a vessel ci-eates no presumption of negli- 
 gence on the part of the carrier, in the absence of proof that the 
 casks were of requisite strength to resist the ordinary handling 
 upon the ship." A wet cargo without storms may indicate prima 
 facie an unseaworthy vessel.' Or rough weather may require the 
 proof of negligence in stowage to create a presumption of negli- 
 gence.^ 
 
 In an action against a common carrier for the loss of goods, his 
 receipt of the goods may be proved, without producing a bill of 
 lading or accounting for the failure to produce it.' An unauthen- 
 ticated bill of lading signed only by the master, containing the 
 words " weight and contents unknown," is not, where the master 
 
 iWittiriQ V St. Louis <fe S. F. B. Co. 10 L. R. A. 602, 101 Mo. 631; Head v. 
 St. Louis, K. C. & N. R. Co. 60 Mo. 199. 
 
 « Roth V. Hamburgh American Packet Co. 27 .Jones & S. 49. 
 
 3 Cameron v. Rich, 4 Strobh. L. 168, 53 Am. Dec. 670. See Blanchard v. 
 Western U. Teleg. Co. 60 N. Y. 510; Caldwell v. New Jersey S. B. Co. 47 N. 
 y. 282. 
 
 * The Wilhelmina, 3 Ben. 110. See, as to such conditions, The Polynesia, 30 
 Fed. Rep. 210; llie Vivid, 4 Ben. 319; The Delhi, 4 B«n. 345; The Bellona, 
 4 Benn. 503; Six Hundred and Thirty Quarter Casks of Sherry Wine, 14 
 Blatchf. 517; The Adriatic, 16 Blatchf. 424; Ketchum v. American Merchant 
 Union Exp. Co. 52 Mo. 390; Western Iransp. Co. v. Downer, 78 U. S. 11 
 Wall. 129, 20 L. ed. 160. 
 
 f'Lmisville & N. R. Co. v. McGuire, 79 Ala. 395.
 
 PKKSU.MI'TION KUOM I.USS OF (.t»(tl)S BUKDEN Ol>" PKOOF. 1u3.j 
 
 is alive at tlie trial of tlie action, competent evidence, as against 
 the iiisui'cr, of tlie kind or (piantity of the cargo or the amonnt of 
 freight due upon its (lt'li\ery to the consignee.' The admission of 
 evidence for the piii-i)o.se of pi-oviiig the identity of goods deliv- 
 ered to, and lost by, a connuoii carrier, in an action brought to 
 recover damages for snch loss, will not, although improperly 
 admitted, cause a reversal of a judgment against the carrier, if the 
 identity of the goods was suthciently established by other testi- 
 mony in the case." Where the action is against the carrier for 
 refusal to furnish means for transportation, and his defense is the 
 special hazard existing along the line, or an unusual pressure of 
 Inisiness which has exhausted his means, the burden of establish- 
 ing such facts is upon the carrier, and it will also be necessary for 
 him — where he has had sufficient notice of the demand — to offer 
 [•roof that he made proper efforts to comply with fhe notices and 
 gave the shipper reasonabk' information of his anticipated failure.^ 
 A carrier sued for failure to dehver fi-eight in ])roper ti;ne 
 according to contract may show as a defense an im])ossibility to 
 deliver tiie freight before it did so, because of a strike on the road 
 and a conse(pient interference with its operation.* 
 
 A statute, requiring a railroad company, in order to relieve itself 
 from liability for loss of goods, delivered to it for transportation 
 over its own and connecting roads, to produce a receipt therefor 
 from the corporation to whom it was its duty to deliver the goods 
 in the regular course of transportation, includes a steamship com- 
 pany among the corporations from whom receipts must be pro- 
 duced, when such company happens to form one of the common 
 carriers in a through line of transportation agreed on by the par- 
 ties, although the statute does not in terms mention steamship 
 lines. But delay of a railroad company in producing upon request 
 a receipt for lost goods from a steamship company to which it was 
 the company's duty to deliver them, caused by mistake in 
 producing the receipt of the first railroad company beyond it in 
 
 ' Palmer v. Great Western Ins. Co. 116 N. Y. 599. 
 
 » Browning v. Goodrich Transp. Co. 10 L. R. A. 415, 78 Wis. 391, 
 
 *Ayres v. Chicago & N. W. R. Co. 71 Wis. 373. 
 
 * International & G. N. B. Co. v. Tisdale, 4 L. R. A. 545, 74 Tex. 8.
 
 1U34 ACTION AGAKNST (JAKinKK oK »JOt>liS. 
 
 the line of transportation, is not sucli " willful failure and refusal " 
 to deliver the receipt as will deprive the romjjan}' of the benetit 
 of a statutory provision perinittiiii; the initial carrier to relieve 
 itself from lialjility for loss by the production of such receipt, 
 where from the terms of the Act it was vei-y doubtful whetiier or 
 not tlic receipt of the steanisliip company would sutHce aiul the 
 Act had never been judicially construed.' Where a connuo?i 
 carrier sued for failure to deliver oroods fails to deny under oath 
 allegations by plaintiff that a written contract set up by plaintiff 
 was made with him by a railroad agent of a company which is not 
 a defendant, and that he was acting as agent also for defendant, 
 and that defendant was connecting carrier with the contracting 
 company, each acting for the other in contracting for transporta- 
 tion, no evidence is necessary on that issue for ])laiutiff.* 
 
 § 157. Damages for Loss, Injiivij, or JioJay of 
 
 Goods. 
 
 A party suffering damage from the negligence of the carrier, 
 should make a reasonable effort to reduce the damages as much as 
 possible.' A carrier is liable for damages to goods from the time 
 they are received, not merely from the date of the bill of lading.* 
 For goods not delivered, the rule of damages is the value of the 
 goods at the place to which they were to be carried, at the time 
 they should have reached there — less the freight.* In an action 
 against a carrier for the loss of goods, the measure of damages is 
 the value of the goods in the place where they were to have been 
 delivered, with interest.' A carrier's liability for the value, at the 
 place of destination, of goods lost in transportation, cannot under 
 
 ' Miller v South Carolina R. Co. 9 L. R. A. 833, 33 S. C. 359. 
 
 2 International & G. N. B. Co. v. Tisdale, 4 L. R. A. 545, 74 Tex. 8. 
 
 ^ Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458. 
 
 *St. Louis, A. d- T. R. Co. v. Neel, 56 Ark. 279, 12 Ry. & Corp. L. J. 110. 
 
 * Michigan 8. & N. I. R. Co. v. Custer, 13 Ind. 167; Holden v. New York Cent. 
 
 R. Co. 54 N. Y. 663; Illinois Cent. R. Co. v. McCtellan, 54 111. 58, 5 Am. 
 
 Rep. 83; Medbury v. Neic Toi-k & E. R. Co. 26 Barb. 564. 
 « Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527; The Telegraph v. 
 
 Cordon C'The Vaughan & The Telegraph") 81 U. S. 14 WaU. 258, 20 L. ed 
 
 807.
 
 DAMAGES FOK LOSS, INJURY, OR DELAV OF GOODS. 1035 
 
 the Texas statute be limited by a clause in the bill of lading that 
 such value shall be estimated as at the place of shipment.' A 
 vessel owner who has received in England the proceeds of a carg(^ 
 shipped from the United States and sold after collision is account- 
 able only for their value in American money at the date of 
 receipt, and his liability cannot be either increased or diminished 
 by subsequent variation in the rate of exchange.' 
 
 The statute of a state, prohibiting a class of goods from being- 
 shipped therein, will not excuse a carrier having no knowledge of 
 the statute, for negligence in transporting the goods ; but the stat- 
 ute may be considered in placing the value upon the goods at the 
 place of destination.' The value agreed upon in consideration of 
 tlie reduced rate fixes the rule of damages.* Evidence of con- 
 versations and conduct may be introduced to show an agreement 
 as to value, and may operate as an estoppel.' Silence may form 
 an estoppel as well as speech.' There are exceptions to the gen- 
 eral rule that the injury to goods is to be compensated by the dif- 
 ference between the market value as delivered and the value if 
 they had been delivered uninjured, and it will be permitted to 
 allow only the cost of putting the goods in salable condition 
 where this will enable the consignee to recover the value as mer- 
 chantable goods and he pursues this method. Where the goods 
 have only suffered such injury on their arrival at the place of des- 
 tination, as will require some expense in putting them into mar- 
 ketable condition, the rule of damages is the cost so incurred ; — 
 the evidence being that such expenditure would reduce the dam- 
 
 ' Onlf, C. <fc S. F. R. Co. v. Booton (Tex. A pp.) March 18. 1891; 7>^iy/or, B. 
 
 & il. R Co. V. Montqomery (Tex. Apn ) April 29, 1891; Taylor, B. it H. R. 
 
 Co. V. Suhlett (Tex. App.) April 29, 1891. 
 ' The Weatherby, 48 Fed. Rep. 734. 
 » Mann v. Birchard, 40 Vt. 336. 
 * Squire v. New York Cent. R. Co. 98 :\Iass. 243, 93 Am. Dec. 162; Hart v. 
 
 Pennsylvania R. Co. 112 U. S. 331. 28 L. ed. 717; Lawrence v. New York, 
 
 P. & B. R. Co. 36 Conn. 63. See ante, ?^ 50, 52. 
 » Graves v. Lake SJcore & M. S. R. Co. 137 Mass. 33, 50 Am. Rep. 282; Mag 
 
 nin V. Dinsmore, 62 N. Y. 35, 44, 20 Am. Rep. 442, 70 N. Y. 410, 26 Am. 
 
 Rep. 608; Laiwence v. New York, P. d: B. R. Co. 36 Conn. 63, 74; Duntley 
 
 V. Boston & M. R. Co. (N. H.) 9 L. R. A. 449. 
 ^ Roe V. Jerome, 18 Conn. 153; Ihylor v. Ely, 25 Conn. 258; Mhgnin v. Dins- 
 more, supra.
 
 1U36 ACTION AGAINST CAKKIEU UF (.OODS. 
 
 aoje, and thus be bt'iieficial to the carrier.' The rule is, tliat a 
 common carrier is not liable for the entire value of property in- 
 jured, unless the character of the property is essentially changed 
 by the injury, so that it can no longer be applied to the ordinary 
 uses of such property; — but its liability will be for its decreased 
 value, by reason of being rendered unlit for some particular use.' 
 
 If goods are shipped to be sold, the enhanced price at the place 
 of delivery is to be considered in estimating the damages.' Where 
 the carrier accepts goods which he knows are to be sold, if they 
 reach the market in reasonable time, the measure of damages for 
 breach, by which the consignor loses the sale, is the ditfrrence be- 
 tween the contract price and the value of the goods when actually 
 delivered/ Where there has been delay in the transportation of 
 goods, when they might have arrived by the exercise of proper 
 diligence, the decline of the goods in their market value between 
 the time when they actually arrived at the place of destination 
 and when they should have arrived, is a material element proper 
 to consider in ascertaining the actual damages.' But such delay 
 in the transportation of goods, will not authorize a recovery for 
 the time and expenses of an agent and team while waiting for the 
 goods at the place of destination, unless the carrier had notice 
 that there would be such expense incurred.* 
 
 The rent of a house and the expenses of an agent in gathering 
 a cargo of dates lost in a collision are allowable as part of the 
 damages sustained by the collision, where it is necessary, to ob- 
 tain the dates, to send an expedition in charge of such agent into 
 a country where there are no accommodations, and the house is 
 made necessary for the business, although it is rented for a term 
 
 ' Winne v. Illinois Cent. R. Co. 31 Iowa, 583. 
 
 •' Eackett v. Boston, C. <t M. R. Co. 35 N. H. 390. 
 
 ^Vicksburg & M. R. Co. v. Ragsdale. 46 Miss. 458. 
 
 ^ Beming v. Grand Trunk R. Co. 48 N. H. 455, 2 Am. Rep. 267. 
 
 ^Weston V. Grand Trunk R. Co. 54 Me. 376, 92 Am. Dec. 552; Peet v. Chicago 
 
 & N. W. R. Co. 20 Wis. 594, 97 Am. Dec. 446; Galena & C. U. R. Co. v. 
 
 Rae, 18 111. 488, 68 Am. Dec. 574; Faulkner v. South Pacific R. Co. 51 Mo. 
 
 311; Cutting v. Grand Trunk R. Co. 13 Allen, 381; Ward v. New York 
 
 Cent. R. Co. 47 N. Y. 29, 7 Am. Rep. 405; Sisson v. Cleveland & T. U. Co. 
 
 14 Mich. 489, 90 Am. Dec. 252. 
 « Briggs v. New York Cent. R. Co. 28 Barb. 515.
 
 DAMAi.iES KOK LOSS, l^'JLliV, UK DELAY OF GOUDs. 10o7 
 
 of years, and is used onlj' for the time of gathering.' Where, out 
 of thirty-three bales of cotton, nineteen were lost, the witness was 
 produced to state the average weight of the entire lot and then 
 tix the rate of the nineteen bales by approximation." Where 
 goods are not shipped seeking a market, the same rules of com- 
 pensation cannot be. applied to all cases; but, in estimating dam- 
 ages, the actual consequences of the breach must always be con- 
 sidered. So also, such consequences as the parties are presumed 
 to have contemplated. But damages not the direct and natural 
 consequences of the breach, will not be considered unless the 
 terms of the agreement include them. Loss of profit in business 
 cannot be allowed, unless the data of estimation are so definite 
 and certain, that they can be fixed reasonably by calculation ; and 
 then only when the party in fault must have had notice — eithei- 
 from the nature of the contract itself, or otherwise — that such 
 damages would ensue from non-performance. Purely speculative 
 profits cannot be taken into account. Where machinery is trans- 
 ported, the rule permits its rental price and expenses of idle iiauds 
 to be taken into the estimate.' 
 
 For the failure of a carrier to deliver machinery in a reasonable 
 time, the damages are measured by the value of the use of the 
 machinery during the period of improper detention.* But, where 
 only a portion of the machinery was forwarded in due time, and 
 that portion detained by the negligence of the carrier prevented 
 tiie use of the whole, it was held that the measure of damages was 
 not what might have been made of the machinery while it was 
 idle, but the legal interest on the capital invested, the expense of 
 the employment of hands necessarily idle during that time, the 
 actual cost of the sending for the missing machinery, and such 
 other damages as resulted necessarily from the carrier's negli- 
 gence.* But, where the machinery was consigned to the agent of 
 the railroad company, to be forwarded, it was held that the de- 
 
 ' The Umbria, 46 Fed. Rep. 927. 
 
 ^ Smith V. Worth Carolina R. Co. 68 N. C. 107. 
 
 ^Vicksbui'g & M. R. Co. v. Ragsdale, 46 Miss. 458. 
 
 « Priestley v. Northern I. <fe C. R. Co. 36 111. 205. 
 
 « Foard v. Atlantic & N. 0. R. Co. 53 N. C. 235, 58 Am. Dec. 277.
 
 1088 ACTION AUAJNfeT CAKKIKK «JF GOODS. 
 
 feridant was not liable as a common carrier for its negligent de- 
 tention, but only as bailee.' Where the carrier failed to deliver, 
 within the proper time, a boiler constructed for a steam saw mill, 
 the recovery should be for the actual expenses incurred, as well 
 as for a reasonable amount of time and trouble in traveling to 
 ascertain wliat had become of the boiler — if this was necessary, — 
 of the expense incurred for preparations for connecting the boiler 
 with the fixtures and machinery of the saw mill, and interest on 
 the value of the property during the time of detention.* 
 
 Where large sums of money have been expended in the manu- 
 facture of a plant, under an agreement with the railroad company 
 to furnish transportation for a fixed amount per week, in an ac- 
 tion for the violation of the contract, the damages are not neces- 
 sarily the difference between the expenses with interest, less the 
 receipts and value of the property deducted therefrom, — because 
 tlie plaintiff may have made unusually large investments unneces- 
 sarily.* 
 
 § lo2. Limitation of Right of Action. 
 
 This subject has been already treated in § 70 a and h in the 
 matter of the shipments of livestock where the restriction most 
 frequently occurs and the rules tliere stated apply equally to all 
 other classes of consignments. In addition to what is there said 
 it may be here added tliat the court sliould be well satisfied before 
 liolding void as being unreasonable, clauses of a bill of lading in 
 printed form and apparently in common use, limiting the time for 
 suit for loss or damage, where no suggestion is made that they 
 are not in such use or that there has been any public or private 
 complaint touching them. A limitation of the time of suit for 
 loss or damage to goods transj^orted, contained in a bill of lading, 
 is not invalid on the mere ground that it contravenes the statute 
 of limitations. 
 
 A provision of a bill of lading for the shipment of goods from 
 
 1 Foard v. Atlantic & N. C. B. Co. 53 N. C. 235, 58 Am. Dec. 277. 
 
 ' Davis V. Cincinnati, H. & B. R. Co. 1 Disney (Ohio) 23. 
 
 * Harrison v. New Orleans, J. & G. N. R. Co. 28 La. Ann. 777.
 
 CLAIM OF LIMIT OF LlABiLITi' UNDER KEVISKD STATUTKS. 10/>Vt 
 
 Chicago to Boston, with tlie right to hold at Ogdensburg for or- 
 ders, tliat any company or carrier concerned in the transportation 
 shall not be responsible as a common carrier for the grain while 
 at any station awaiting delivery, but as warehouseman only, and 
 tliat they shall not be liable in any case or event unless written 
 claim for the loss or damage shall be made within thirty days, and 
 the action to enforce such claim be brought within three months 
 after such loss or damage occurs,— is unreasonable and void as to 
 the time within whicli claim is required to be made.' 
 
 § 153. Claim of Limit of Liahility under Revised 
 Statutes of the United States. See Section 88. 
 " NeglUjence of Imposed Duties— Passenger Carriers:' 
 
 Some new and important provisions have been introduced into 
 the law of carriers by water, by the Act of 3d of March, 1851, 
 entitled "An Act to Limit the Liability of Ship Owners." Own- 
 ers of ships under that Act, are not held for loss or damage to 
 the cargo by reason of fire happening to or on board the vessel, 
 unless the fire was caused by the design or neglect of such owner, 
 except in cases where there is a special contract between the 
 owner and the shipper, whereby the former assumes that risk. 
 They are declared not liable as earners for precious metals, 
 precious stones, or jewels, or for the bills of any bank or public 
 body, unless at the time of their lading a note in writing of their 
 true character and value be given to the owner or his agent, and 
 the same be entered on the bill of lading ; and in no case, where 
 that applies, will the owner be liable for the articles therein 
 enumerated beyond the amount so notified and entered. It con- 
 tains other provisions also of very great importance, and among 
 the number, the following : that for embezzlement, loss, damage 
 or injury by collision, or 'for any act, matter or thing, loss, dam- 
 age, or forfeiture done, occasioned or incurred, without the 
 privity or knowledge of the owner, his liability shall in no case 
 exceed the amount' or value of his interest in the vessel and the 
 
 » Central Vermont R. Co. v. Soper, 59 Fed. Kep. 879. 
 1
 
 1040 
 
 ACTION AGAINST CAUUIKK OK (iOODS. 
 
 frei«>lit tlieii peiuliiiii,-. No part of the Act, liowevcr, iH)[)li('s to 
 the owner of any canal boat, barege, or lighter. <>r to any vessel of 
 any description whatever used in rivers or inhmd naviiration.' 
 
 A carrier by ship may extend his statutory exemption from fire, 
 under U. S. Rev. Stat. § 4282, to such loss by fire as occurs after 
 the discharge of the cargo, by special stijjnlation to that effect in 
 the bill of lading." A steamship company rclease<l fnun liability 
 as a carrier, under the provisions of U. S. Uev. Stat. <^ 4281, that 
 a carrier shall not be liable ''in any form or manner" for certain 
 goods specified, shipped as freight or baggage, without notice of 
 its character and value and the entry of the same upon the bill of 
 lading, is nevertheless still liable for such goods as bailee for hire.' 
 The sixth section of the Act is for such remedy to which any 
 party may be entitled against the master, officers or mariners ot 
 such vessel for negligence, fraud or other malversation. Any 
 special contract sought to be founded on usage, will not take the 
 case out of the Act.' 
 
 Owners of vessels are not liable for damages from collision 
 occasioned without their knowledge, beyoiul the amount of their 
 interest in the ship and her freight.' A vessel injured by a col- 
 lision has no lien on the cargo of the other vessel. In cases of 
 collision, the cargo cannot be appropriated to help equalize the 
 loss between the two vessels, although it may belong to the owner 
 of one of them. If the owner is his own freighter, he must 
 abandon the amount of the freight which he would have paid 
 upon another vessel, according to the price current, but he is not 
 liable if the abandoned cargo belonged to himself." Limited 
 liability under Rev. Stat. §§ 4282, 4287, may be claimed ; first, 
 merely by way of defense to an action ; or second, surrendering 
 
 ' The Niagara v. Cordes, 62 U. S. 7, 16 L. ed. 41. 
 
 2 Constable v. National SS. Co. 154 U. S. 51, 38 L. ed. 903. 
 
 3 Wheeler v. Oceanic Steam Nat. Co. 135 N. Y. 155. 
 
 * Providence & N. Y. SS. Co. v. Hill Mfg. Go. 109 U. S. 578, 37 L. ed. 1038. 
 
 ' The Cayuga v. Hobokeu Land & Imp. Co. 81 U. S. 14 Wall. 270, 20 L. ed, 
 828; The Baltimore v. Rowland (" The Baltimore'') 75 U. S. 8 Wall. 377, 19 
 L. ed. 463; Norwich <£ N. T. Transp. Co. v. Wright, 80 U. S. 13 Wall. 104, 
 20 L. ed. 585. 
 
 • The Bristol, 29 Fed. Rep. 867,
 
 CLAIM OF LIMIT OF LIABILITY UXDEK KEVISED STATUTES. l041 
 
 the sliip or paying her vaUie into court. The latter method is 
 only necessary when the ship owner desires to bring all the cred- 
 itors claiming damages into concourse for distribution.' Ship 
 owners may avail themselves of the defense of limited liability 
 responsibility by answer or plea, if they comply with the statute. 
 The decree made may be limited, they to pay into court the lim- 
 ited sum for which they are liable, and distributing said amount 
 j>ro rata among the parties claiming damages.'' 
 
 The owner of a vessel may institute proceedings to obtain the 
 benefit of the limit of liability provided for by Rev. Stat. §§ 42S4. 
 4285, witliout waiting for a suit to be begun against him or his 
 vessel, for the loss out of which the liability arises.' This liabil- 
 itv of ship owners may be discharged by their surrendering and 
 assigning to a trustee the vessel and freight for the benefit of the 
 parties injured, in pursuance of section 4 of the Act, although 
 these may have been diminished in value by the collision, or 
 other casualty during the voyage, and it seems that if they are 
 totally lost, the owners will be entirely discharged.' A petition 
 in a district court under the 54th Rule in demurrage, claiming 
 the benefit of limitation of liability provided for in Rev. Stat. 
 ^ 4283, may be filed after the trial of a cause of collision, upon 
 its merits, and a final decree therein, entered. But the question 
 of fault or general lial)ility, although open to contest in proceed- 
 ings to obtain limitation of liability, cannot be contested if it ha> 
 already been decided in such former suit. The provisions for 
 limitation of liability are inelfectual as to any specific contract, if 
 not undertaken till after such party has obtained satisfaction on 
 his demand. Motion to claim the limitation as to one party, 
 does not preclude claiming it against another/ 
 
 > Thorn i)ie.s.sen v. Whitwill (" The Great Westtru") 118 U. S. 520, 30 L. ed. 156; 
 
 NaHonal Steam Nav. Co. v. Dyer (" IVie Scotland") 105 U. S. 24, 26 L. ed. 
 
 1001. 
 » National Steam Nav. Co. v. Dyer (" The Scotland") supra. 
 ^ Ex- parte Slayton, 105 U. S. 451, 26 L. ed. 1066. 
 *Norioich & N. 7. IVansp. Co. v. Wright, 80 U. S. 13 Wall. 104, 20 L. ed. 
 
 584. 
 ^New York d- W. SS. Co. v. Mount (" The Benefactor") 103 U. S. 239, 26 L. 
 
 ed. 351. 
 
 66
 
 1042 ACTION AGAINST CAKRIKR OK (.<»(>I)S. 
 
 The right of tlie owner of a vessel nixh-r Kcv. Stut. ^'^ 4"28*2, 
 4287, to proceed for a hniitation of liability is not lost or waived 
 by a surrender of the ship to underwriters. In such rase. althou<::h 
 the application for the limitation of lialiiiity under Kev. Stat. 
 §§ 4282, 4287, has been jointly overruled by the district court and 
 an interlocutory decree has been rendered in favor of the libel- 
 lants for their entire damages, with reference for proofs, and a 
 report by the master, yet the court, after the decision of the Su- 
 preme Court in Noruyich cfc iV". Y. Tranaj). Co. v. W/-/>//if, 80 U. 
 S. 13 Wall. 104, 20 L. ed. 585, relatina; to the same collision and 
 the promulgation of additional rules adopted by that court, re- 
 ceived a new petition and ordered a new appraisement to ascer- 
 tain the value of the ship whilst lying sunk, and made a decree 
 limiting the Hability of the owner to the value at that time, and 
 it was decided that the district court liad a right to receive such 
 new petition, and to take such proceedings.' 
 
 Proceedings of the district court under Tnited States Supreme 
 Court Admiralty Kule 54, and U. S. Rev. Stat. §§ 4283-4285 
 (Act of Congress of June 26, 1884) and U. S. "Rev. Stat. § 4289. 
 as amended by Act of June 19, 1886, to limit the liability of 
 shipowners for loss or damage to persons or goods, supersede all 
 other actions and suits for the same damages in the state or na- 
 tional courts, upon the matters being properly presented therein." 
 But an injunction will not be granted to stay proceedings in an 
 action in a district court, to recover for a collision, during the 
 pendency of an appeal in a suit brought by the owners of a vessel 
 to obtain the benefit of a limitation of liability provided for by 
 the Revised Statutes simply because of the expense that will be 
 consequent upon the trials pending the appeal after two judg- 
 ments below denying the relief asked for in such suit. In a suit 
 by the owners of a vessel to obtain the benefit of the x\ct of Con- 
 gress, limiting the liability of vessel owners, the value of the 
 matter in dispute, is the value of the amount of all the claims 
 
 ' Place V. Norwich & K T. Transp. Co. ("TIte City of Norwich") 118 U. S. 468, 
 
 30 L. ed. 134. 
 '^ Black V. Southern P. R. Co. 39 Fed. Rep. 565; Providence & N Y. S8. Co. v. 
 
 Hill Mfg. Co. 109 U. S. 578, 27 L. ed. 1038.
 
 AVHEN THE UNITED STATES COURTS HAVE JURISDICTION, 1043 
 
 against tlie owners, and if such amount is over five tliousand dol- 
 lars, the supreme court has jurisdiction in an appeal, although 
 the value of the vessel is less than five thousand dollars.' 
 
 The appraisement of the value of a ship made at the time she 
 was libeled, is sufficient for the purposes of a proceeding to ob- 
 tain limitation of liability. Our law, following the admiralty 
 rule, limits the liability to the value of the ship and freight after 
 the injury had occurred.'' Tlie owners of a steamship who com- 
 ply with the requirements of the English Merchant Shipping Act 
 18G7, § 9, authorizing in proceedings to limit liability a deduction 
 from the registered tonnage of every place in any ship occupied 
 by seamen or apprentices and appi'opriated to their use, are en- 
 titled to deduct from the total gross tonnage as registered the 
 space occupied by the crew.' 
 
 § 154. WVien the TJnitecl States Courts Have Jur- 
 
 isdiction. 
 
 It is now firmly settled that when a corporation created by the 
 laws of one state voluntarily comes, by its officers or agents, with- 
 in the jurisdiction of another state, and there engages in business, 
 it becomes amenable to the process of the courts of the latter 
 state, if the laws thereof make provision to that effect. In one 
 of the cases/ it was declared by the court of appeals of Virginia 
 that the corporation, for the purpose of being sued, is to be con- 
 sidered as having a domicil in the state where it has thus volun- 
 tarily located ; and in the case of Neio England Mut. L. Ins. Co. 
 V. Woodccorth. Ill U. S. 138, 115, 117, 28 L. ed. 379, 381, 382, the 
 Supreme Court of the United States did distinctly hold that a 
 company incorporated in one state, by doing business and having 
 an agent upon whom service may be made in another state, may 
 there acquire another domicil, so as to give locality there to a 
 
 ^Parcher v. Cuddy {"The Mamie") 105 U. S. 773, 26 L. ed. 937. 
 
 ^Neic York & W. SS. Co. v. Mount {"The Benefactor") 103 U. S. 239, 26 L. 
 
 ed. 351. 
 8 The Petrel [1893] L. R. 3 Prob. Div. 320. 
 * Connecticut Mut. L. Ins. Co. v. Duerson, 28 Gratt. 630.
 
 1044 ACTION AGAINST CAUUIKR OK GOODS. 
 
 debt on a policy of insurance as the foundation of administration 
 in the latter state. Where the defendant corporation is suable 
 in the courts of a state, and that such service would be a good 
 service in the courts of the state,' what good reason, is there 
 for exempting the company from suit in a Federal court sitting 
 in the same state? Can it be suj)pt)sed that such was the inten- 
 tion of Congi'ess ? Under piwiuus laws a person was suable in 
 any district in which he might be found. Although he might 
 have been a mere sojourner in, or was simi)ly passing through, 
 the district, he was liable to be served therein with process from 
 a Federal court. This was the mischief which Congress intended 
 to remedy by omitting from the Act of 1887 the words " or in 
 which he shall be found." But, clearly, under the provisions of 
 the Act of 1887, if a citizen of a state, without changing, or in- 
 tending to change, his citizenship, becomes an inhabitant of an- 
 other state, or, in othei- words, has his domicil or fixed residence 
 therein, he is suable in the latter sttite by original process from a 
 Federal court.'' Certainly it was not the intention of the Act to 
 make any distinction in respect to liability to suit between na- 
 tural persons and corporations. As a corporation is a " person " 
 within the meaning of the Act, so, also, may it be an "inhabi- 
 tant."' 
 
 In a suit by a railroad company for injunction to restrain a 
 shipper from prosecuting in a state court a multi})licity of suits 
 for overcharge in freight, the maintenance of the scheduled rate 
 under which the charges were made is the real subject of dis- 
 pute, and the value of such maintenance determines the jurisdic- 
 tional amount of the controversy. Where such value is not 
 liquidated or lixed by law, the alleged value is conclusive on de- 
 murrer to the bill. A Federal court is not prohibited by Rev. 
 Stat. § 720, from issuing an injunction to restrain the prosecution 
 
 ^Hagerman v. Empire Slate Co. 97 Pa. 534; Act March 21, 1849 (Purd. Dig. 
 
 355). 
 
 5 Parker v. Overman, 59 U. S. 18 How. 137, 15 L. ed. 318. 
 
 ^This conclusion is at variance with that in Filli v. Delaware, L. & W. R. Go. 
 37 Fed. Rep. 65, but in accord with the decision in Zambrino v. Galve4on, 
 H. & S. A. R. Co. 38 Fed. Rep. 449, and authorities there cited. Riddle 
 V. NeiD York, L. E. <St W. R. Co. 3 Inters. Com. Rep. 230, 39 Fed. Rep. 230.
 
 WHEN THE L'MTED STATES COURTS HAVE J UKISDIOTIOX. 1045 
 
 in a state court of a multiplicity of tiireateued suits which have 
 not been actually begun.' 
 
 The jurisdiction of admiralty extends to all cases of tort com- 
 mitted on the high seas, and in navigal)le waters in this country. ° 
 Tlie jurisdiction of courts of admiralty in matters of contract de- 
 pends upon the nature of the contract, but in torts and collisions 
 it depends entirely on the locality.' Ordinarily, resort is had to 
 the rules of common law to determine what acts are marine torts.* 
 Wiiere damage arises from two vessels meeting on the sea called 
 technically a collision, courts of admiralty have a general juris- 
 diction.^ 
 
 A tort is deemed marine when the injury is sustained by a ves- 
 sel afloat, although the negligence which caused it was failure to 
 perform a duty upon land.' In cases of tort locality is the test 
 of jurisdiction to the admiralty. The ultimate judicial authority 
 has deterrtiined the principle that tlie true meaning of the rule of 
 locality is that, although the origin of the wrong is on the water, 
 yet, if the consunnnation and substance of the injury are on the 
 land, a court of admiralty has not jurisdiction ; that the place or 
 locality of the injury is the place or locality of the thing injured, 
 and not of the agent causing the injury.' AYithin this settled 
 principle a tort is maritime, and witiiin the jurisdiction of the 
 admiralty, when the injury is to a vessel afloat, although the neg- 
 ligence causing the injury originated on land.* 
 
 > Texas & P. R. Co. v. Kuleman, 54 Fed. Rep. 547. 
 
 ^ PhiladelpMa,W. & B. R. Co. v. Philadelphia <& Havre de Grace Steam Tow 
 Boat Co. 64 U. S. 23 How. 209. 16 L. eti. 433; Lmt/ieris v. Blessing, 105 U. 
 S 626 26 L. ed. 1192; Galena, D. D. & M. Packet Co. v. Rack Island R. 
 Bridge Co. 73 U. S. 6 Wall. 213, 18 L. ed. 753; Jackson v. The Magnolia, 61 
 U. S. 20 How. 296, 15 L. ed. 909. 
 
 ^Waring v. Clarke, 46 U. S. 5 How. 441, 12 L. ed. 226; Philadelphia, W. & B. 
 R. Co. V. Philadelphia & Havre de Grace Stmm Tow Boat Co. supra; Com- 
 mercial Transp. Co. v. Fitzhugh, 66 U. S. 1 Black, 574, 17 L. ed. 107. 
 
 * Peterson v. Watson, Blatclif. & H. 487. 
 
 ' The Dundee, 1 Hagg. Adtn. 109; Clay v. Willis. 1 Barn. & C. 156; Tlie Pub- 
 lic Opinion, 2 Hagg. Adm. 398; Tlie Thames, 5 C. Rep. Adm. 308. 
 
 * Leonard v. Decker, 22 Fed. Rep. 741. 
 
 'Hough V. Western Transp. Co. {"The Plymouth") 70 U. S. 3 Wall. 20, 18 L. 
 
 ed. 125; Ex parte Phenix Ins. Co. of Brooklyn, 118 U. S. 610, 30 L. ed. 274. 
 ^Galena D. D. <& M. Packet Co. v. Rock Island R. Bridge {"The Rock Bland 
 
 Bridge") 73 U. S. 6 Wall. 213, 18 L. ed. 753; Leonard v. Decker, 22 Fed. 
 
 Rep. T41.
 
 1046 AUTIO.N AoAiNbT CAKKIEK OK GOODS. 
 
 In the former case it was ruled tliat an action in persona}ii 
 would lie against the owners of the bridi^e, because the injury 
 A\'as consummate upon navi<j;able waters, beiuj^ inflicted upon a 
 movable tiling- engat^ed in navigation ; but that a proceeding in 
 rem against the bridge was not maintainable, because a maritime 
 lien can only exist upon movable things engaged in navigation, 
 or upon things which are the subjects of commerce on the higli 
 seas or navigable waters. And so an injury happening through 
 default of the master to one upon a vessel discharging cargo at a 
 wharf to which she was securely mot»red, is within the admiralty 
 jurisdiction,' but otherwise, if the injury occurred to one upon 
 the wharf." In the latter case there is an inadvertent remark to 
 the effect that both the wrong and the injury must occur ui)oii 
 the water — a proposition not sustained by authority. It suttices 
 if the damage — the substantial cause of action arising out of the 
 wrong — is complete upon navigal)le waters.' It has been insisted 
 that where an injury happened in the midst of, or in space above, 
 the water, it must be held to have occurred upon the water, and a 
 bridge must be held to be personal property on navigable waters. 
 
 But this contention cannot be upheld. In legal signitication land 
 includes not only the surface of the earth, but all under it or over 
 it. It is otherwise with respect to the sea. A suspension bridge 
 is not upon the water, because sustained in space above the water. 
 Nor in any juster sense is a bridge upon the water, because sup- 
 ported upon masonry resting upon the bed of a river. Bridges 
 are only prolongations over waters of highways upon land. They 
 are not afloat. Like wharves and piers, they are connected with 
 the shore. Unlike wharves and piers, they are obstructions, not 
 aids, to navigation. They concern commerce upon land, not up- 
 on the sea. Within the intendment of the maritime law they 
 are — equally with wharves and piers — structures upon or con- 
 nected with the shore. They pertain to the land not to the sta; 
 and so are without the cognizance of the admiralty jurisdiction. 
 An injury thereto cannot be said to have occurred upon water, 
 
 ' Leathers v. Blessing, 105 U. S. 626, 26 L. ed. 1192. 
 2 The Mary Stewart, 10 Fed. Rep. 137. 
 
 -Hovgh V. Western Traiisp. Co. {"The Plymouth") 70 U. S. 3 Wall. 20, 18 L. 
 ed. 125.
 
 WHEN THE UNITED STATES COURTS HAVE JUKISDIUTION. lOiT 
 
 where the cause of the injury is a movable thing navigatino- the 
 waters; but tlie consuiiiination of tlie wrong is upon an immov- 
 able structure above the waters, attached to the land, and not 
 afloat. The absence of admiralty jurisdiction over injuries to such 
 structures is sustained by an overwliehiiing weight of authority.' 
 To deny jurisdiction for injuries to such structures by vessels, 
 while asserting it with respect to injuries to vessels by such struc- 
 tures,' may seem a narrow construction of the admiralty juris- 
 diction. It is likened to the refusal of the admiralty at one time 
 to assert jurisdiction of contracts of maritime insurance made on 
 land and to be performed on land, but touching the perils of the 
 sea, now held to be within the jurisdiction of tlie admiralty," or 
 of contracts of affreightment, made on land, but to be performed 
 upon water, now of undoubted admiralty jurisdiction.^ The dis- 
 tinction grows out of the peculiar and restricted nature of the 
 admii-alty jurisdiction as touching things "pertaining to the sea." 
 In The Arl-ansas, 17 Fed. Rep. 383, 386, it is asserted that an 
 injury to a bridge would be a marine tort, and that a proceeding 
 in rem would lie against a boat causing the injury. ]S'o authoritv 
 is cited in support. The remark itself is ohlter dictum; and 
 although in Cartier v. Flint (& P. M. JSfo. ^, 33 Fed. Ptep. 511, 
 515, there is another ohiter indorsing the dictum in The ArJcan- 
 
 ' NoTB.— As to a bridge : Tlie NeU, Cochran, 1 Brown, Adm. 163; Tlie Savan- 
 H<ih([J. S. D. C. Pa.) Cadwallader, ,/., not reported, but referred to in 1 
 Parsons. Shipp. & Adm. 532. As to a wharf : Hough v. WeMern Tramn 
 Go. {"The Plymouth") HO U. S. 3 Wall. 20. 18 L. ed. 125; The Ottawa, 1 
 Brown, Adm. 356, Tlie 0. Accame, 20 Fed. Rep. 642. As to a derrick 
 resting on the soil at the bottom, and in the midst of the water : The Maud 
 'Webater, 8 Ben. 547. As to a marine railway : The Professor Morse, 23 
 Fed. Rep. 803. As to a boom of logs, anchored or fastened to the shore : 
 The ''City of Erie" v. Canfield, 27 Mich. 479. The latter is perhaps an ex- 
 treme case, and seems opposed upon principle to the case of Tlie Ceres, 7 W. 
 N. C. 576, to the effect that the admiralty has jurisdiction of an injury by 
 a tug boat to a dry dock floating on a navigable river and moored to a 
 wharf. 
 
 '^Galena, D. D. & M. Packet Co. v. Rock Isl/ind R. Bridge ("The Rock Island 
 Bridge:') 73 U. S. 6 Wall. 213, 18 L. ed. 753; Etheridge v. Philadelphia, 26 
 Fed. Rep. 43; Atlee v. Northwestern V. Packet Co. 88 U. 8. 21 Wall. 389 22 
 L. ed. 619. 
 
 *Keio England M. Ins. Co. v. Dunham, 78 U. S. 11 Wall. 1, 20 L. ed. 90. 
 
 * New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 U. S. 6 How 
 344, 12 L. ed. 465; Morewood v. Enequist, 64 U. S. 23 How. 493 16 L ed 
 516.
 
 1048 ACTION AGAINST CAKUIKK OF GOODS. 
 
 sas, both ai'e contrary to tlie autlioi'ity of Ilovtj/i v. We-sfem 
 Tramp. Co. {"The Plymouth'') 70 U. S. 3 Wall. 20, 18 L. ed. 125. 
 If it be expedient to clothe the adniii'alty with jurisdiction of all 
 torts eonnnitted by vessels, whether the resulting- daniat^e occur 
 upon land or water, as now it lias jurisdiction over damage to 
 vessels whether the wrongful act causing damage originate on land 
 or water, the object must be promoted — as it has come to pass in 
 England — through the legislative, not the judicial, power. Courts 
 sit dicere et non dare legem. Settled principles of jurisdiction 
 may not be changed to meet individual notions of right. Nor can 
 the jurisdiction be aided by the statute of the state creating a lien 
 for all injuries done by vessels to persons or property. A state 
 statute cannot confer jurisdiction upon courts of admiralty. It is 
 only when the subject is maritime, and so within the jurisdiction 
 of the admiralty, that a lien granted by local law will be recog- 
 nized.' 
 
 Locality is the leading test of jurisdiotion in torts. And where 
 a vessel took tire at a wharf, alleged to be from the negligence of 
 the officers, and the fire spread and consumed certain storehouses 
 on the wharf, it was held not to be a case for admiralty proceed- 
 ings, because the injury complained of occurred on the land and 
 not on the water.^ To be within the admiralty jurisdiction it is 
 not sufficient that the wrong originated on the high seas or on 
 navigable waters;* but that the act was consummated upon such 
 waters.* So the adniiralty jurisdiction of United States courts 
 does not extend to seizures made upon land." Admiralty has 
 jurisdiction over damages done to a vessel in navigable water by 
 a bridge or permanent structure. The test of jurisdiction is the 
 
 1 The Curtis, The Camden and The Welcome, The City of Milwaukee, Libelant, 
 
 3 L. R. A. 711, 37 Fed. Rep. 705. 
 •'Hovgh V. Western Transp. Co. {''TJie Plymouth") 70 U. S. 3 Wall. 33, 18 L. 
 
 ed. 127; Wells, Jur. of Courts, 275. 
 5 Thomas v. Lane, 2 Sumn. 9; Steele v. Thacher, 1 Ware, 93; Commercial 
 
 Transp. Co. v. Fitzhugh, 66 U. S. 1 Black, 579, 17 L. ed. 109. 
 *United !>tates v. Magill, 1 Wash, C. C. 463; United States v. Davis, 2 Sumn. 
 
 482; 2 Hale, P. C. 17; 1 Hawk. P. C. chap. 37, § 17. 
 ''United States v. Winchester, 99 U. S. 372, 25 L. ed. 479. See, as to admiralty 
 
 jurisdiction generally, Allen v. Newberry. 62 U. S. 21 How. 244, 16 L. ed. 
 
 110.
 
 AVJ1H^' THE UXITED STATES COURTS HAVE JURISDICTION. 1049 
 
 locality of the thing injured, and not of the thing inflicting the 
 injury.' 
 
 Neglect to repair a wharf in consequence of which the merchan- 
 dise breaks through and is injured, may constitiUe a tort of which 
 admiralty has jurisdiction.' The petition or libel in a suit for loss 
 <jr damage to persons or goods may be filed in the district court 
 before, as well as after, suit commenced to recover damages. 
 Jurisdiction of the district court, when once acquired, of an action 
 for loss or damages to persons or goods, is exclusive ; and it is the 
 duty of all other courts to suspend proceedings, dismiss the suit, 
 and refer the whole matter to the district court.' The joinder of 
 causes of suit not enumerated in Admii-alty Rules 12 to 20 inclu- 
 sive are not governed thereby, but by Rule 46 ; and where the 
 facts in a case establish a liability against the master and a lien on 
 the ship for the same claim, such liability and lien may be 
 enforced in one libel." In achuiralty cases where the libel contains 
 only a general charge of negligence, and the parties go to trial 
 without any other specification, assent to proof of any kind of 
 negligence may be inferred/ The courts of the United States in 
 the absence of legislation U[)on the sul)ject by Congress, recognize 
 the statutes of limitation of the several states, and give them the 
 same construction and efl:"ect which are given by the local 
 tribunals. If the highest judicial tribunal of a state adopt new 
 \'iews as to the proper construction of a statute of the state and 
 reverse its former decisions, the Supreme Court of the United 
 States courts will follow the latest settled adjudications.* 
 
 A legal or equitable right under state laws may be prosecuted 
 before state courts, and, when the parties reside in different states, 
 before federal courts, subject to this c]ualification, that, when a 
 right arises under a law of the United States, Congress may give 
 Federal coui'ts exclusive jurisdiction. If an Act of Congress gives 
 
 ' Boston V. Crorcley, 38 Fed. Rep. 202. 
 
 ' The City of Lincoln, 25 Fed. Rep. 835. 
 
 ^ Block V. Southern Pac. R. Co. 39 Fed. Rep. 5G5. 
 
 * The City of Carlisle, 5 L. R. A. 52, 39 Fed. Rep. 807. 
 
 = The Thomaa Melville, 31 Fed. Rep. 4«6. 
 
 ^Bauserman v. Blunt, 147 U. S. 647, 37 L. ed. 316
 
 1050 ACTION AGAINST CAKKIER Ot (JOODS. 
 
 a penalty to a party aggrieved, without spocityiiig a reined}' there- 
 for, it may be enforced in a state court : l)nt if a right is conferred 
 by statute, or a specific remedy is provided, or a new power ami 
 means of execution are granted, the right can l)e enforced only in 
 the mode prescribed by the Act. A party who seeks damages, 
 alleged to have been sustained in consequence of the vi(»lation by 
 a common carrier of the Interstate Commerce Law, as the Act 
 provides for redress by procedure either before the Commission, or 
 by suit before the Federal court, cannot bring suit before the state 
 court, which is without jurisdiction to enforce the right, but is 
 relegated exchisively to the Connnission or the Federal court; 
 otherwise the party would have a third alternative or mode of 
 redress, not contemplated by the Act by which he is restricted to 
 one of two remedies.' 
 
 A suit against the railroad commissioners of a state and the 
 attorney general, to restrain the former from enforci:ig the rates 
 established by them on the railroads in the state, and to restrain 
 the latter from instituting any suits to recover penalties for fail- 
 ing to conform to such rules, is not a suit against the state. 
 Whenever a citizen of a state can go into the courts of the state, 
 to defend his property against the illegal acts of its officers, a 
 citizen of another state may invoke the jurisdiction of the Fedei'al 
 courts to maintain a like defense. A state has general power to 
 regulate the fares and freights which may be charged and received 
 by railroad or other carriers, and this regulation can be carried on 
 by means of a commission. No legislation of a state, as to the 
 mode of proceeding in its own courts, can abridge or modify the 
 powers existing in the Federal courts, sitting as courts of equity. 
 One section or part of an act may be invalid without affecting the 
 validity of the remaining portion of the statute. The courts have 
 the power and it is their duty to inquire whether a body of rates 
 prescribed by a legislature or a commission is unjust and unrea- 
 sonable, and such as so work a practical destruction to rights of 
 property, and if found so to be, to restrain its operation. It is 
 within the scope of judicial power and a part of judicial duty to 
 
 ' Copp V. Lomsville & N. R. Co. 3 Inters. Com. Rep. 625, 12 L. R. A. 725, 43 
 La. Ann. 511.
 
 PlJOLKKltlX(.S At.AlNbT VIOLATOKS. lUol 
 
 restrain anvtliing \v]ii(?li. in the form of a regulation of rates, 
 operates to deny to tlie owners of property invested in the busi- 
 ness of transportation that equal protection which is the constitu- 
 tional right of all owners of other property. The equal protec- 
 tion of the laws which, by the 14th Amendment, no state can 
 deny to the individual, forbids legislation, in whatever form it 
 may be enacted, by which the property of one individual is witli- 
 out compensation wrested from him for the beneiit of another, or 
 of the public. It was within the competency of the Circuit Court 
 of the United States for the Western District of Texas, at the 
 instance of the plaintiff, a citizen of another state, to enter upon 
 an inquiry as to the reasonableness and justice of the rates pre- 
 scribed by the railroad commission. The tariff rates prescribed 
 by the railroad commissioners of Texas on the International & 
 Great Northern Railroad were, from the facts admitted by the 
 demurrer, unjust and unreasonable, and the decree in the case was 
 reversed so far as it restrains them from establishing reasonaI)le 
 rates, and affirmed so far as it restrains the enforcement of the 
 rates already established by them.' 
 
 %l/)o. Proceedings against Violators of the In- 
 terstate Comnierce Act. 
 
 The provisi(.ns of the 8th, 9th, 13th, 14tli and 1.5th sections of 
 the Act to Kegulate Commerce seem clearly to indicate tlie in- 
 tention of Congress that the Commission should investigate and 
 report upon the question of reparation to complainants for dam- 
 age sustained by the carrier's illegal conduct in the past, as well 
 as upon the mere naked question of a violation of the law. But 
 an attentive consideration of the 16th section as it originally stood, 
 and which was intended to provide machinery for enforcing the 
 orders of the Commission shows that no provision was made for 
 enforcing its orders in the matter of rej^aration for past damages. 
 This conclusion results from the fact that proceedings to enforce 
 the Commission's orders were by the terms of the section confined 
 
 ^Beagan v. Farmers Loan <6 T. Co. 4 Inters. Cora. Rep. 560, 578, 154 U. S. 
 362, 420, 38 L. ed. 1014. 1031.
 
 1052 ACTION AGAINST CAKKIKli OK GOODS. 
 
 to the e(jiiity side of tlie court, and contemplated the use of in- 
 junctive process alone; whereas, if the contirniation of the Com- 
 inissioirs award of past damao;es had been the object in view, 
 provision would doubtless have been made for proceedings on the 
 law side of the court, and for an ordinary judgment and execu- 
 tion as in actions at law. Besides this it seems clear that where 
 in any case the sole question involved is one of reparation for past 
 damages, a constitutional right to jury trial exists, and the ICth 
 section failed to provide for jury trial in any case whatever. 
 
 Considerations of this character were adverted to by the Com- 
 mission in its First Annual Keport in the following language: 
 "In none of the cases so far decided by the Commission has it 
 felt called upon to order reparation to be nuide for past injury. 
 Most of the cases were such as to present no case for reparation — 
 they looked only to the establishment of a rule for the future. 
 Some complaints, however, were evidently nuule in the expecta- 
 tion that the Commission might proceed to give damages upon a 
 grievance that would support an action on the common law side 
 of the Federal court. The Commission, when such complaints 
 have been brought to a hearing, has not discovered in the statute 
 a purpose to confer upon it the general power to award damages 
 in the cases of which it may take cognizance. The failure to pro- 
 vide in terms for a judgment and execution is strong negative 
 testimony against such a purpose; but what is perhaps more con- 
 clusive is that the Act must be so construed as to harmonize with 
 the 7th x\.mendment to the Federal Constitution, which preserves 
 the right of trial by jury in common law suits." 
 
 In the case of Councill v. Western da A. R. Co. 1 Inters. Cora. 
 Tiep. 638, decided Dec. 3, 1887, the complainant alleged that he 
 had been subjected to unreasonable prejudice and unjust discrim- 
 ination, and claimed before the Commission large money damages 
 for injuries done him. The Commission found that he had l)een 
 subjected to unreasonable prejudice and unjust discrimination as 
 alleged, and ordered the carrier to cease and desist therefrom. 
 But the Commission declined to go into the question of damages 
 to the complainant; saying: " Under the 7th Amendment to the 
 Constitution of the United States, the defendant in any case at
 
 PROCEEDINCiS AGAIN.Vr VIOLATORS. 1053 
 
 coiiiinon law is entitled to a jurv trial. This claim is in its nature 
 an action of trespass, and therefore presents such a case . . ." 
 
 In the case of Ileck v. Eaat Tennessee, V. cfc G. R. Co. decided 
 Feb. 15, 1S88, 1 Inters. Com. Rep. 775, complainants charged 
 that the defendants iinjustlv discriminated against them bj refus- 
 ing to haul their coal, and prayed that their rights as shippers of 
 coal might be secured by the order of the Commission, and that 
 large pecuniary damages be awarded them for losses sustained by 
 defendant's refusal to ship their coal. The defendants were or- 
 dered by the Commission to receive and forward complainant's 
 coal when offered for transportation, but as stated in the opinion : 
 "The claim for pecuniary damages made by tiie complainants 
 was not entertained on the hearing because it presents a case at 
 common law in which the defendants are entitled to a jury trial." 
 
 In the ca.se of Riddle v. mw Tori: L. E. dj W. R. Co. de- 
 cided Feb. 23. 1888. 1 Inters. Com. Rep. 787, the defendants 
 were adjudged to have violated the Act in refusing to furnish 
 cars for the transportation of complainant's coal: but it was said 
 in the opinion: ''Tlie Commission has repeatedly held that it can 
 make no award of damages in a case like the present for the rea- 
 son that the defendants are entitled to have the amount assessed 
 by a jury." 
 
 By Act of March 2, 1889, the 16th section was so amended as 
 to provide in cases involving the right to jury trial for proceed- 
 inofs to enforce the Commission's orders on the law side of the 
 court, and for a trial and judgment as at common law. The cor- 
 rectness of the position taken by the Commission as above ex- 
 plained was thus recognized by Congress, and the obstacle in tlui 
 way of the Commission's recommending reparation for past dam- 
 ages to complainants was removed. But this Act expressly pro- 
 vided that it should have no application to proceedings pending 
 before the Commission at the time of its passage. 
 
 In the case of Rmnson v. Newport, News <& M. V. Co. decided 
 Kov. 13, 1889, 2 Inters. Com. Rep. 626, the decision was ren- 
 dered after the amendment of the 16th section above referred to, 
 but the case had been pending at the date of the passage of that 
 amendment. The petition had prayed the Commission to award
 
 1U54 ACTION AGAINST CARRIER OF GOODS. 
 
 liiin I'eparation for past dainai^es, but this was refused, the portion 
 of the opinion relating to tliat question bein<)j as follows: " As to 
 the reparation claimed, prior to the amendment of the 16th sec- 
 tion of the Act to Jleo-uhite Commerce of ^[arch 2, 1889, we held 
 in several cases, that as the statute provided for no trial by jury 
 in the courts to enforce our awards in controversies sucli as were 
 triable at common law and where more than twenty dollars was 
 involved, we could award no reparation in consequence of the 
 provisions of the 7th Amondment to the Constitution of the 
 United States. Tlie amendment of the statute of ^[arch 2, 1889, 
 was made to cover this feature of the statute, but the amendment 
 expressly provides that it shall have no reference to proceedin<ijs 
 pending at the time the amendment was adopted ; and this pro- 
 ceeding was pending at that time. The amendment to this effect 
 is found in the proviso in section 22 of the statute as amended, 
 and is in the following language : " Provided that no pending liti- 
 gation shall in any way be affected by this Act. The statute, 
 therefore, leaves the petitioner to enforce his claim for reparation 
 in the courts as he may be advised, and accordingly this petition 
 is dismissed without preiudice." 
 
 In the most of the complaints brought before the Commission 
 since the amendment of the 16th section, as described above, the 
 question of reparation for past damages has not been involved. 
 In sonie cases where that question was involved, its determination 
 seemed so peculiarly appropriate for a jury, that the Commission 
 did not consider it ; deeming it best for all parties that the ques- 
 tion of the amount of damages should be settled by a jury in the 
 regular courts. It has. however, since been held by the Circuit 
 (}ourt of the United States for the Western District of Pennsyl- 
 vania in the case of Riddle v. New JTork, L. E. <& W. R. Go. 
 Feb. 23, 1888, 1 Inters. Com. Eep. 787, that where the question 
 of reparation for past damages has been submitted to the Com- 
 mission, it cannot be subsequently made the subject of a suit in 
 court, even though the Commission has expressly declined to pass 
 upon it. A like opinion has been intimated by the Circuit Court 
 of the United States for the Soutliern District of Iowa. Although 
 regulation for alleged violations of some of the provisions of the
 
 PKOCEEDINGS AGAINST VIOLATOBS. lU55 
 
 first four sections of the Act to Regulate Commerce is the prin- 
 cipal and important reme.dy sought in most complaints, yet repara- 
 tion in many cases is not an unimportant incident. Therefore, 
 so long as these rulings of the courts last mentioned stand as the 
 law it seems a plain duty to complainants to pass upon the ques- 
 tion of reparation for past damages whenever a claim is made 
 therefor. Indeed it seems to rise above mere discretion and be- 
 comes an imperative duty; otherwise the dual remedy which 
 Congress seemed to contemplate in a single proceeding would be 
 defeated ; and even more, one of the remedies is lost under an 
 application of the somewhat technical doctrine of the election of 
 remedies operating in contravention at least of the spirit of the 
 enactment as well as the demands of justice.' 
 
 A suit brought by the Interstate Commerce Commission in the 
 United States circuit court to enforce an order of the Connnis- 
 sion, is an original and independent proceeding. The court is not 
 contined to a mere re-examination of the case as heard and re- 
 ported by the Commission; but the court hears and determines 
 the cause de novo upon proper pleadings and proof. The Com- 
 mission's report is prima facie evidence of the matters of fact 
 therein reported ; but the court will hear all such other, and fur- 
 ther testimony as either party may introduce, bearing upon the 
 matters in controversy; and will permit such pleadings as will 
 bring before the court clearly, and in legal form, such matters as 
 may be pertinent and proper in view of the issues raised.' 
 
 The circuit judge, holding the Circuit Court of the United 
 States for the Northern District of Illinois, handed down his 
 decision in an important question bearing on the powers of the 
 Interstate Commerce Commission. When W. G. Brinson, David 
 Brown, L. Hopkins, Henry Walker, W. R. Stecking, and others 
 refused to answer certain questions asked by the Interstate Com- 
 
 ' Macloon v. Chicago & N. W. R. Co. 3 Inters. Com. Rep. 711. 
 
 ^Interstate Commerce Com. v. Cincinnati, N. 0. & T. P. B. Co. 4 Inters. Com. 
 Rep. 383, 56 Fed. Rep. 935; Kentucky & I. Bridge Co. v. Louisville & N. R. 
 Co. 2 Inters. Com. Rep. 351, 2 L. R. A. 289, 37 Fed. Rep. 567; Interstate 
 Commerce Com. v. Lehigh Valley R. Co. 3 Inters. Com. Rep. 796, 49 Fed. 
 Rep. 177; Interstate Commerce Com. v. Atchison, T. & S. F. R. Co. 4 Inters. 
 Com. Rep. 323, 50 Fed. Rep. 295. 
 
 t
 
 lUOti ACTION ACiAlNbT UAKlClKl: Ol 00(»1>6. 
 
 merce Commission, District Attorney Milclirist brou^^ht a petition 
 ])efore Judne (xresliam to compel the j)rc»(lnctit>n oi the hooks and 
 the answer of the questions. The ciivuit jn(li4'e refused to i^nint 
 the petition, holding that the court could not be made subsidiary 
 to or a subordinate auxiliary to a non-judicial and administrative 
 body. Tlie case was that in which the (Chicago & Grand Trunk, 
 the Calumet & Blue Island, Chicago & Kenosha, Joliet & Blue 
 Maud, Chicago & Southeastern, Milwaukee, Bay view & Chicago, 
 Baltimore & Ohio, Chicago & Eastern Illinois, Big Four, Chicago 
 lV: Erit\ INIfcchigaii Central, Lake Shore, Pennsylvania, Nickel 
 Plate, AVabash, and Lackawanna were accused of unjust discrimi- 
 nation in favor of large Chicago shippers, notably the Illinois Steel 
 Com}>any. This decision, in the language of the Suj)reine Court 
 of the United States in reviewing and reversing the ruling. 
 " would go fai- towards defoating the object for which the people 
 of the United States placed commerce among the states under 
 National control." Fortunately so ill advised a decision, promptly 
 discredited by other courts and by the mendjcrs of the legal 
 profession, was prompth' reversed on the appeal taken to the 
 Supreme Court of the United States in the masterly opinion pro- 
 nounced by Justice Harlan.' This opinion is s[)ecially important 
 as an exposition of the Literstate Commerce Act. 
 
 The appeal brought up for review a judgment rendered Decem- 
 ber 7, 1892, dismissing a petition filed in the Circuit Court of the 
 United States on the 15th day of July 1802 by the Interstate 
 Connnerce Commission under the Act of Congress entitled "An 
 Act to Regulate Commerce." approved Fel)ruary 4, 1887, and 
 amended by the acts of March 2, 1889 and February 10, 1891. 
 24 Stat, at L. 379, chap. 104 ; 25 Stat, at L. 855, chap. 382 ; 20 
 Stat, at L. 743, chap. 128 ; 1 Rev. Stat. Supp. 529, 684, 891. The 
 petition was based on the 12th section of the Act authorizing the 
 Commission to invoke the aid of any court of the United States 
 in requiring the attendance and testimony of witnesses, and the 
 production of documents, books, and papers. The circuit court 
 held that section to be unconstitutional and void, as imposing on 
 the judicial tribunals of the United States duties that were not 
 
 ^Interstate Commerce Com. v. Bnmson, 154 U. S. 447, 38 L. ed. 1047.
 
 PROCEEDINGS AGAINST VIOLATOUS. 1057 
 
 •jvidicial in their nature. In the jiidoinent of that court, this pro- 
 ceeding was not a case to which the judicial power of the United 
 States extended.' The provisions of the Intel state Commerce 
 Act have no application to the transportation of passengers or 
 propL'rty, or to the receiving, delivering, storing, or handling 
 of storing of property, wholly within one state and not ship- 
 ped to a foreign country from any state or territory, or from 
 a foreign country to any state or territory. But they are de- 
 clared to be applicable to carriers engaged in the transportation 
 of passengersor property wholly by railroad, or partly by rail- 
 road and partly by water when both are used, under a conunon 
 control, management, or arrangement, for a continuous carriage 
 or shi])ment from one state or territory of the United States, or 
 the District of Columbia, to any other state or territory of the 
 United States, or the District of Columbia, or from any place 
 in the United States to an adjacent foreign country, or from 
 any place in the United States through a foreign country to any 
 other place in the United States, and also to the transportation in 
 like manner of property shipix*(l from any place in the United 
 States to a foreign country and carried from such place to a port 
 of transshipment, or shipi)ed from a foreign country to any place 
 in the United States and carried to such place from a port of entry 
 either in the United States or an adjacent foreign country. The 
 term *' railroad" as used in the Act includes all bridges and ferries 
 used or operated in connection with any milroad, and also all the 
 road in use by any corporation operating a railroad, wliether 
 owned or operated under a contract, agreement, or lease; and the 
 term " transportation " includes all instrumentalities of shipment 
 of carriage. All charges made for services rendered or to be ren- 
 dered in the transpoi-tation of passengers or property, as above 
 stated, or in connection therewith, or for the receiving, delivering, 
 storing, or handling of such projiei'ty. are required to be reasonable 
 and just ; and every unjust and unreasonable charge for such serv- 
 ice is prohibited and declared to be unlawful. § 1. 
 
 Any carrier subject to the provision of the Act, directly or 
 indirectly, by special rate, rebate, draw])ack, or other device, 
 
 ' 4 Inters. Com. Kep. 315, 53 Fed. Rep. 476. 480. 
 67 
 t
 
 1056 ACTION AliAIKST CAKKIER OF GOODS. 
 
 charging, demanding, collecting, or receiving from any person or 
 persons a greater or less compensation for services rendered or to 
 be rendered in the transportation of passengers or property, than 
 it charges, demands, collects, or receives for doing a like and con- 
 temporaneous service in the transportation of a like kind of traffic 
 under substantially similar circumstances and conditions, is to be 
 deemed guilty of unjust discrimination, which the Act expressly 
 declares to be unlawful. § 2. 
 
 So it is made unlawful for any such carrier to make or give any 
 undue or unreasonable preference or advantage to any particular 
 person, company, firm, corporation, or locality, or to any particu- 
 lar description of traffic, or to subject any particular person, com- 
 pany, firm, corporation, or locality, or any particular kind of traffic, 
 to undue or unreasonable prejudice or disadvantage in any respect. 
 And carriers subject to the provisions of the Act are required to 
 afford, according to their respective powers, all reasonable, proper, 
 and equal facilities for the interchange of traffic between their 
 respective lines, and for the receiving, forwarding, and delivering 
 of passengers and property to and from their several lines and 
 those connecting thei"ewitli, and not to discrimate in their rates 
 and charges between such connecting lines ; but this regulation 
 does not require a carrier to give the use of its tracks or terminal 
 facilities to another carrier engaged in like Ijusiness. § 3. 
 
 It is made unlawful for any carrier subject to the provisions of 
 the Act to charge or receive any greater compensation in the 
 aggregate for the transportation of passengers or of lilvc kind of 
 property under substantially similar circumstances and conditions, 
 for a shorter than for a longer distance over the same line, in the 
 same direction, the shorter being included within the longer dis- 
 tance ; but this does not authorize the charging and receiving as 
 great compensation for a short as for a longer distance. Upon 
 application to the Commission, the carrier may in special cases, 
 after investigation by tliat body, be authorized to charge less for 
 longer than for short distances for the transportation of passengers 
 or property ; and the Commission may from time to time pre- 
 scribe the extent to which the carrier may be relieved from the 
 operation of this section. § 4.
 
 PROCEEDINGS AGAINST VIOEATOKS. 1059 
 
 It is also made unlawful for any carrier subject to the 
 provisions of the Act to enter into any contract, a^-reement, or 
 combination with any other carrier or carriers for the pooling of 
 freights of different and competing railroads, or to divide between 
 theju the aggregate or net proceeds of the earnings of such rail- 
 roads, or any portion thereof ; and in any case of an agreement 
 for the pooling of freights as aforesaid each day of its continuance 
 is deeined a separate offense. § 5. 
 
 Another section of the Act provides for the printing and post- 
 ing b}" caj-riers of their rates, fares, and charges, for the transpor- 
 tation of passengers and property, including terminal charges, 
 classifications of freight, and any rules or regulations affecting 
 such rates, fares, and charges, including the rates established and 
 charged for freight received in this country to be carried through 
 a foreign country to any place in the United States; forbids any 
 advance or reduction in such rates, fares, and charges, so estab- 
 lished and published, except upon public notice, of which changes 
 the Commission shall be notitied ; requires every carrier to file 
 with the Commission copies of all contracts, agreements, or 
 arrangements with other carriers relating to any traffic affected by 
 the provisions of the Act, as well as copies of schedules of joint 
 tariff's of rates, fares, or charges for passengers and property over 
 continuous lines or routes operated by more than one carrier; 
 declares it to be unlawful for any carrier, party to any joint tariff, 
 to charge, demand, collect, or receive from any person or persons 
 a greater or less compensation for the transportation of persons or 
 property, or for any services in connection therewith between any 
 points as to which a joint rate, fare, or charge is named thereon 
 tlian is speciiied in the schedule filed with the Commission in force 
 at the time; authorizes in addition to the penalties prescribed for 
 neglect or refusal to file or publish rates, fares, and charges, a 
 writ of mandamus to be issued by any circuit court of the United 
 States in the judicial district wherein the principal office of the 
 carrier is situated, or wherein such offense may be committed, and 
 if such carrier be a foreign corporation, in the judicial circuit 
 wherein it accepts traffic, and has an agent to perform such serv- 
 ice, to compel compliance with the above provisions of the section
 
 lOdd ACTION AGAINST CAKKIEK OF CJOODS. 
 
 relatint^ to seliednles of rates, fares, and cliarf^es — such writ to 
 issue in the name of tlie people of the United States, at the rela- 
 tion of tlie commissioners appointed undei- tlie provisions of the 
 Act, and the failure to comply with its requirements beiu": punish- 
 al)le as and for a contemj)t ; and ein])owers the commissioners, as 
 (•(Muplainants, to apply, in any such circuit court of the United 
 States, for a writ of in junction against the carrier, to restrain it 
 from receiving or transferring property among the several states 
 and territories of the United States, or between the United States 
 and adjacent foreign countries, or between ports <^f transshi])ment 
 and of entry and the several states and territories of the United 
 States, as mentioned in the Ist section of tlie Act, until the carrier 
 shall have complied Avith the provisions last referred to. § 6. 
 
 So a common carrier subject to the provisions of the Act is 
 forbidden to enter into any combination, contract or agreement, 
 expressed or implied, to prevent by change of time schedule, car- 
 riage in different cars, or by other means or devices, the carriage 
 of freights from being continuous from the place (»f shipment to 
 the place of destination ; and no break of bulic, stoppage or inter- 
 ruption made by such common cjirrier shall prevent the carriage 
 of freights from being, and being treated, as one continuous car- 
 riage from the place of shipment to the place of destination, unless 
 such break, stoppage, or interruption was made in good faith for 
 some necessary purpose, and without any intent to avoid or un- 
 necessarily interrupt such continuous carriage or to evade any of 
 the provisions of the Act. § 7. 
 
 By the 11th section a Commission is created and established, to 
 be known as the Interstate Commerce Commission, and to be 
 composed of five commissioners, appointed by the President, by 
 and with the advice and consent of the Senate. § 11. 
 
 Other sections give a riglit of action to the persons injured by 
 the acts of carriers done in violation of the statute ; prescribe 
 penalties against carriers for illegal exactions and discriminations; 
 and indicate how the provisions of the statute may be enforced 
 against carriers by the Commission. 
 
 The 12th section (26 Stat, at L. 74:3, chap. 128) the validity of 
 certain parts of which is involved in this proceeding, provides as
 
 PKOCEEDINGS AGAINST VIOLATOKS. iUGi 
 
 follows : " That the Coniniissioii hereby created shall have au- 
 thority to inquire into the management of the business of all 
 common carriers subject to the provisions of this Act, and shall 
 keep itself informed as to the manner and method in which the 
 same is conducted, and shall have the right to obtain from such 
 common carriers full and complete information necessary to 
 enable the Commission to perform the duties and carry out the 
 objects for which it was created ; and the Commission is hereby 
 authorized and required to execute and enforce the provisions of 
 this Act ; and, upon the request of the Commission, it shall be 
 the duty of any district attorney of the United States to whom 
 the Commission may apply to institute in the proper court and 
 to prosecute under the direction of the Attorney General of the 
 United States all necessary proceedings for the enforcement of 
 the provisions of this Act and for the punislinient of all violations 
 thereof, and the costs and expenses of such prosecution shall be 
 paid out of the appropriation for the expenses of the courts of 
 the United States; and for the purposes of this Act the Commis- 
 sion shall have power to re(juire, by subpoena, the attendance and 
 testimony of witnesses and the production of all books, papers, 
 tariffs, contracts, agreements, and documents relating to any mat- 
 ter under investigation. Such attendance of witnesses and the 
 production of such documentary evidence, may be requiVed from 
 any place in the United States, at any designated place of hear- 
 ing. And in case of disobedience to a subpoina the Commission, 
 or any party to a proceeding before the Commission, may invoke 
 the aid of any court of the United States in requiring the attend- 
 ance and testimony of witnesses and the production of books, 
 papers, and documents under the provisions of this section. And 
 any of the circuit courts of the United States within the jurisdic- 
 tion of which such inquiry is carried on may, in case of contumacy 
 or refusal to obey a subpcena issued to any common carrier sub- 
 ject to the provisions of this Act, or other person, issue an order 
 requiring such common carrier or other person to appear before 
 said Commission (and produce books and papers if so ordered) 
 and give evidence touching the matter in question ; and any fail- 
 ure to obey such order of the court may be punished by such
 
 I0t)2 ACTION AGAINST CAKRIKi: <>l. (jooD.s. 
 
 court as a eontenipt tliereuf, Tlie (tlaiiii that any such testimony 
 or evidence may tend to criminate the person giving such evi- 
 dence shall not excuse such witness from testifying ; but such 
 evidence or testimony shall not be used against such person on 
 the trial of any criminal pioceeding. The testimony of any wit- 
 ness may be taken, at the instance of a party, in any proceeding 
 or investigation depending before the Commission, by deposition, 
 at any time after a cause or proceeding is at issue on petition and 
 answer. The Commission nuiy also order testimony to be taken 
 by deposition in any proceeding or investigation pending before 
 it, at any stage of such proceeding or investigation. Such depo- 
 sitions may be taken before any judge of anv court of the United 
 States, or any commissioner of a circuit, or any clerk of a distiict 
 or circuit court, or any chancellor, justice, or judge of a supreme 
 or superior court, mayor or chief magistrate of a city, judge of a 
 county court, or court of common pleas of any of the United 
 States, or any notary public, not being of counsel or attorney to 
 either of the parties, nor interested in the event of the proceed- 
 ing; or investiii'ation. Reasonable notice must iirst be oriven in 
 writing by the party or his attorney proposing to take such depo- 
 sition to the opposite party or his attorney of record, as either 
 may be nearest, which notice shall state the name of the witness 
 and the time and place of the taking of his deposition. Any 
 person may be compelled to appear and depose, and to produce 
 documentary evidence, in the same manner as witnesses may be 
 compelled to appear and testify and produce documentary evi- 
 dence before the Commission as hereinbefore provided. Every 
 person deposing as herein provided shall be cautioned and sworn 
 (or affirm if he so request) to testify the whole truth ; and shall 
 be carefully examined. His testimony shall be reduced to writing 
 by the magistrate taking the deposition, or under his direction, 
 and shall, after it has been reduced to writing, be subscribed by 
 the deponent. If a witness whose testimony may be desired to 
 be taken by deposition be in a foreign country, the deposition 
 may be taken before an officer or person designated by the Com- 
 mission, or agreed upon by the parties by stipulation in writing 
 to be filed with Commission. All depositions must be promptly
 
 PROCEEDINGS AGAINST VIOLATORS. 1063 
 
 riled with the Commission. Witnesses whose depositions are 
 taken pursuant to this Act, and the magistrate or other officer 
 taking the same, shall severally be entitled to the same fees as 
 are paid for like services in tlie courts of the United States." 
 
 § 12. 
 
 The nature of the present proceeding, instituted pursuant to 
 the authority conferred by that section, will appear from the fol- 
 lowing sunnnary of the pleadings and orders in the cause : Prior 
 to the 14tli of June, 1892, informal complaint was made to the 
 Interstate Commerce Commission, under the provisions of the 
 Interstate Commerce Act, that the Illinois Steel Company, a cor- 
 poration of Illinois, had caused to be incorporated under the laws 
 of that state the Calumet & Blue Island Railroad Company, the 
 Chicago & Southeastern Railway Company of Illinois, the Joilet 
 & Blue Island Railway Company, and the Chicago & Kenosha 
 Railway Company, for the purjjose of operating its switches and 
 side tracks at South Chicago, Chicago, and Joliet, respectively, 
 and engaging in traffic by a continuous shipment from cities and 
 places without to cities and places within Illinois, in connection, 
 respectively, with the Baltimore & Ohio Railroad Company, the 
 Baltimore & Ohio Southwestern Railroad Company, the Illinois 
 Central Railroad Company, the Lake Shore & Michigan Southern 
 Railway Company, the Chicago, Rock Island & Pacific Railway 
 Company, the Pittsburg, Fort Wayne & Chicago Railway Com- 
 pany, the Pennsylvania Company, the Pennsylvania Railroad 
 Company, the Belt Railway Company, the Chicago & Alton Rail- 
 road Company, the Chicago Railw-ay Transfer Company, the Atch- 
 ison, Topeka and Santa Fe Railway Company, the Elgin, Joliet 
 & Eastern Railway Company, the Chicago & Northwestern Rail- 
 way Company, and the Chicago, Milwaukee & St. Paul Railway 
 Company ; that it had also caused to be incorporated under the 
 laws of Wisconsin, for the purpose of operating its switches and 
 side tracks at or near Milwaukee, in that state, and engaging in 
 traffic or traffic by a continuous shipment from places and cities 
 without to cities and places within Wisconsin, in connection with 
 the Chicago, Milwaukee & St. Paul Railway Company, and the 
 Chieagt> & Northwestern Railway Company ; and that said Illi-
 
 1064 ACTIOM A(iAlNST C'AJiUIKK VV GOODS. 
 
 noip Steel Coiiipaiiy owned and controlled the above named com- 
 panies, which it caused to be incorporated under the laws of Illi- 
 nois, and operated tliem in connection with the other companies 
 named, "as a device for the purpose of evadinc; the provisions of 
 the Act to Rei^ulate Commerce, and obtaining sj)e('ial, illegal, un- 
 just and unreasonable rates for the transportation of interstate 
 traffic," and, by the connivance and consent of said other con- 
 necting i-ailroad companies, in such a manner as to give the Illi- 
 nois Steel Company an illegal, undue, and unreasonable preference 
 and advantage, subjecting other persons, firms, and companies to 
 undue and unreasonable prejudice and discrimination in the 
 transportation of property from divers cities and places without 
 tlie states of Illinois and Wisconsin to divers cities and towns 
 within those states. 
 
 It was made to appear to the Commission that the companies 
 so owned, controlled, and operated by the Illinois Steel Com})any 
 for more than the six months then last past had been and were 
 still engaged in the transportation of property by railroad in con- 
 nection with tiie other companies named "under a conmion con- 
 trol, management, and arrangement for a c(»ntinuous carriage 
 or shipment" from divers cities and towns without to divers 
 cities and towns within the states of Illinois and Wisconsin, and 
 that none of the companies, so owned, controlled, and operated, 
 had tiled with the Commission copies of their contracts, agree- 
 ments, and common arrangements with the other companies, nor 
 their tariffs nor schedules of rates, fares, and charges as required 
 by the Act of Congress. The Commission, of its own motion, de- 
 cided to investigate the matters set forth in said informal com- 
 plaint by inquiring into the business of all of said railroad com- 
 panies and the management thereof with reference as well to the 
 alleged making of illegal, unjust, and unreasonable rates, as to the 
 alleged unjust and illegal discrimination in favor of the Illinois 
 Steel Company, and the failure, as above stated, to tile with the 
 Commission the above contracts, agreements, and tariffs. 
 
 An order was thereupon made by the Commission, which re- 
 cited the facts of the informal complaint made to it, and required 
 each of the above mentioned companies to make and tile in its
 
 PBOCEEDINU.S AGAINST VIOLATOKS. iU65 
 
 office in "Washington, a full, complete, perfect, and specific veri- 
 fied answer, setting forth all the facts in regard to the matters 
 complained of and responding to the following questions : 1. Does 
 any contract, agreement, or arrangement in writing or otherwise 
 exist between the companies above alleged to be under the con- 
 trol [of] and operated by the said Illinois Steel Company and any 
 of the other com)>anies with reference to interstate traffic? If so, 
 state the contract, agreement, or arrangement. 2. Or [are] any 
 tariffs of rates and charges for the transportation of interstate 
 property in effect between said com])anies al)Ove alleged to be 
 under the control of and operated by the Illinois Steel Company 
 and said other railroad companies i If so, what are they and 
 what are the divisions thereof between the several carrier? 3. 
 Have the companies above alleged to be under the control of and 
 operated by the llhnois Steel Company received interstate traffic 
 from any of the other carriers above mentioned during the six 
 months last past, or have they delivered any such traffic to such 
 other carriers during that time, for any pers(jn, firm, or company 
 other than the Illinois Steel Company; and if so. to what 
 amount ? 
 
 The order further recjuired all of the companies named to ap- 
 pear before the Commission at a named time and place in Clii- 
 cago, when that body would proceed to make in(juir\' into and 
 investigate the management of the said business by the carriers 
 so ordered to appear. Each of the companies which, according 
 to the allegations of the petition, the Illinois Steel Company had 
 caused to be incorporated, filed its answer with the Commission, 
 and averred that it had in all respects complied with the obliga- 
 tions imposed upon it by the laws of the state and of the United 
 States ; that it was not engaged in interstate commerce witliin six 
 months preceding the filing of the complaint against them ; and 
 it answered "Ko" to each of the above specific questions. The 
 Calumet & Blue Island liailway Company also denied that the 
 operation of its railways was a device to evade the provision of 
 the Interstate Commerce Act, or had resulted in obtaining for the 
 Illinois Steel Company special, illegal, unjust, or unreasonable 
 rates in interstate trafiic or in securing to that company illegal, 
 undue, (jr unreasonable preferences.
 
 1066 ACTION AGAINST C'AUliiEK OF GOODS. 
 
 The Commission, notwithstaTiding tliese denials, conceived it to 
 be tlieir duty to proceed with the investigation by the examina- 
 tion of witnesses and the books and papers of the corporations in- 
 volved, and especially to ascertain whether the Illinois Steel Com- 
 pany was the owner in fact of the railroads, which it was alleged 
 to have caused to be incorporated, and whether such incorpora- 
 tions were for the purpose of giving to that company an undue 
 and illegal preference in the transportation of its property and 
 freight. Among the witnesses subpcenaed to testify before the 
 Commission was William G. Brinison, the president and manager 
 of the five roads so incorporated in Illinois. Being asked what 
 constituted the principal traffic of the roads, he said : "The busi- 
 ness of these roads, except as indicated in the answers, is that of 
 switchinsf — switcliino^ business. We do a switchiiiii!' and terminal 
 business, in that we are open to any business, for anybody's pro})- 
 erty, or persons who may locate at such place where we can go to 
 them ; mainly our business is with the Illinois Steel Company. 
 This is the great proportion of our business." In reply to the 
 question whether his company engaged in transportation business 
 other than as stated by him, he said that they did not, 'except 
 the Calumet & Blue Island, as stated in our reply. On that we 
 do engage in other business to a certain extent." Having stated 
 that his companies did not engage in the transportation business 
 for everybody and anybody having occasion to employ them, and 
 that their business was limited to the above companies with which 
 thev had traffic arrangements, he was asked whether the com- 
 panies of which he was president and manager were owned by the 
 Illinois Steel Company. The witness, nnder the advice of coun- 
 sel, refused to answer this question. 
 
 J. S. Keefe, secretary and auditor of the live roads mentioned, 
 was examined by the Commission as a witness. He admitted that 
 he had in his possession a book showing the names of the stock- 
 holders of the Calumet & Blue Island Railway Company, but re- 
 fused, upon the demand of the Commission, to produce it. He 
 also refused to answer the question, " Do you know, as a matter 
 of fact, whether the Illinois Steel Company owns the greater part 
 of the stock of these several railroads ? " William R. Stirling, the
 
 PROCEEDINGS AGAINST ViOLATOKS. lU67 
 
 first vice president of the Illinois Steel Company, was also exam- 
 ined as a witness, and after statin<y that that company had a con- 
 tract M'ith the five railroads in question to handle the railroad 
 business at the five " plants " of the Steel Company, refused to 
 answer the question, " Is that the only relation which your com- 
 pany sustains to these railroad companies?" 
 
 On the succeedincT day the Commission issued a subjxena duces 
 tecum, directed to J. S. Keefe, secretary and auditor of the five 
 railroads in question, commanding hira to appear before that 
 body, and bring with him the stock books of those companies. 
 A like subpoena was issued to WilHam R. Stirling, as first vice 
 president of the Steel Company, commanding him to appear be- 
 fore the Commission and produce the stock books of that com- 
 pany, Keefe and Stirling appeared in answer to the subpoenas, 
 but refused to produce the books or either of them so ordered to 
 be produced. The Commission thereupon, on the 15th day of 
 July, 1892, presented to and filed in the court below its petition 
 embodying the above facts, and prayed that an order be made re- 
 quiring and commanding Brimson, Keefe, and Stirling to appear 
 before that V)ody and answer tlie several questions propounded by 
 them and which they liad respectively refused to answer, and re- 
 quiring Keefe and Stirling to appear and produce before the 
 Commission the stock books above referred to as in their posses- 
 sion. 
 
 The answers of Brimson, Keefe, and Stirling in the present 
 proceeding, besides insisting that the question propounded to 
 them, respectively, were immaterial and irrelevant were based 
 mainly uj)on the ground that so much of the Interstate Commerce 
 Act as empowered the Commission to require tlie attendance and 
 testimony of witnesses and the production of books, papers and 
 documents, and autliorizes the circuit court of the United States 
 to order common carriers or persons to appear before the Com- 
 mission and produce books and papers and give evidence, and to 
 punish by process for contempt any failure to obey such order of 
 the court, was repugnant to the Constitution of the United States. 
 
 Is the 12th section of the Act unconstitutional and void, so far 
 as it ajithorizes or requires the circuit court of the United States
 
 10(58 ACTION A(JAINST CARRIER OF (iOODS. 
 
 to use tlieir process in aid of inquiries before tlie Coniniission ? Tlie 
 court says it recot^nizes the importance of this question, and has be- 
 stowed upon it tlie most careful consideration. As the Constitu- 
 tion extends the judicial power of the United States to all cases 
 in law and equity arising under that instrument or under the laws 
 of the United States, as well as to all controversies to which the 
 United States shall be a party (Art. 3, § 2) and as the circuit 
 courts of the United States are capable, under the statutes defin- 
 ing and regulating their jurisdiction, of exerting such power in 
 cases or controversies of that character, within the limits pre- 
 scribed by Congress (25 Stat, at L. 434. chap. 866) the fundamen- 
 tal inquiry on this appeal is whether the present proceeding is a 
 "case" or "controversy" within the meaning of the Constitution. 
 The circuit court, as we have seen, regarded the petition of the 
 Interstate Commerce Commission as nothing more than an appli- 
 cation by an administrative body to a judicial tribunal for the ex- 
 ercise of its functions in aid of the execution of duties not of a 
 judicial nature, and accordingly adjudged that this proceeding 
 did not constitute a case or controversy to which the judicial 
 power of the United States could be extended. 
 
 At the same time the learned court said : " Undoubtedly, Con- 
 gress may confer upon a non-judicial body authority to obtain 
 information necessary for legitimate governmental purposes, and 
 make refusal to appear and testify before it touching matters per- 
 tinent to any authorized inquiry, an offense punishable by the 
 courts, subject, however, to the privilege of witnesses to make no 
 disclosures which might tend to criminate them or subject them 
 to penalties or forfeitures. A prosecution or an action for viola- 
 tion of such a statute would cleai-lv be an orio;inal suit or contro- 
 versy between parties within the meaning of the Constitution, 
 and not a mere application, like the present one, for the exercise 
 of the judicial power in aid of a non-judicial body."' In other 
 words if the Interstate Commerce Act made the refusal of a wit- 
 ness duly summoned to appear and testify before the Commission 
 in respect to a matter rightfully committed by Congress to that 
 
 ' Re Interstate Commerce Commmion, 4 Inters. Com. Rep. 315, 53 Fed. Rep. 
 476, 480.
 
 rK>CEKDINGS AGAINST VIOLATORS. l0t)9 
 
 body for examination, an offense against the United States, pun- 
 ishable by fine or imprisonment, or both, a criminal prosecution 
 or an information for the violation of such a statute would be a 
 case or controversy to which the judicial power of the United 
 States extended ; while a direct civil proceeding, exj^ressly author- 
 ized by an Act of Congress, in the name of the Commission, and 
 under the direction of the Attorney General of the United States, 
 against the witness so refusing to testify, to compel him to give 
 evidence before the Commission touching the same matter, would 
 not be a case of controversy of which cognizance could be taken 
 by any court established by Congress to receive the judicial power 
 of the United States. 
 
 This interpretation of the Constitution would restrict the em- 
 ployment of means to carry into effect powers granted to Congress 
 within much narrower limits than, the court holds, is warranted 
 by that instrument. The Constitution expressly confers upon 
 Congress the power to regulate commerce with foi-eigu nations, 
 among the several states, and with the Indian tribes, and to make 
 all laws necessary and proper for carrying that power into execu- 
 tion. Art. 1, § 8. AVhile the completely internal commerce of 
 a state is reserved to the state itself, because never surrendered 
 to the -general government, commerce, the regulation of which it 
 committed by the Constitution to Congress, comprehends traffic, 
 navigation and every species of commercial intercourse or trade 
 between the United States, among the several states, and with 
 the Indian tribes.' "It may be doubted," the court has said, 
 " whether any of the evils proceeding from the feel)leness of the 
 Federal government contributed more to that great revohitiou 
 which introduced the present system than the deep and general 
 conviction that commerce ought to be regulated by Congress. It 
 is not, therefor, matter of surprise that the grant should be as ex- 
 tensive as the mischief, and sliould comprehend all foreign com- 
 merce, and all commerce among the states. To construe the 
 power so as to impair its efficiency would tend to defeat an ob- 
 ject, in the attainment of which the American pubUc took, and 
 
 ' Gihiom v. Ogden, 22 U. S. 9 Wheat. 1, 193, 194, 6 L. ed. 23, 69. 
 1
 
 1070 ACTION AGAINST CAKKIEli OF GOODS. 
 
 justly took, tliiit Strang interest wliieh arose from a full convic 
 tion of its necessity.'" " In tlie matter of interstate commerce," 
 the court, speaking by Mr. Justice Bradley, has declared, "the 
 [Tnited States are but one country, and are and must be subject 
 to one system of regulations, and not to a multitude of systems."' 
 The same principle was announced by the present Chief Justice 
 in Stoatenhuryh v. Ileniilch, 129 U. S. 141, 148, 32 L. ed. 637, 
 039. 
 
 What is the nature of the power thus expressly given to Con- 
 gress, and to what extent and under what restrictions, may it be 
 constitutionally exerted ? This question was answered when Chief 
 Justice Marshall said that it was the power " to prescribe the rule 
 by which commerce is to be governed." "This power," the 
 Chief Justice continued, "like all others vested in Congress, is 
 complete in itself, may be exercised to its utmost extent, and ac- 
 knowledges no limitations other than are prescribed in the Con- 
 stitution. These are expressed in plain terms, and do not affect 
 the questions which arise in this case, or which have been dis- 
 cussed at the bar. If, as has always been understood, the sov- 
 ereignty of Congress, though limited to specified objects, is 
 plenary as to those objects, the power over commerce with for- 
 eign nations and among the several states is vested in Cpngress 
 as absolutely as it would be in a single government having in its 
 constitution the same restrictions on the exercise of the power as 
 are found in the Constitution of the United States. The wisdom 
 and the discretion of Congress, their identity with the people, and 
 the influence which their constituents possess at elections, are, in 
 this, as in many other instances, as that, for example, of declaring 
 war, the sole restraints on which they have relied to secure them 
 from its abuse. They are the restraints on which the people must 
 often rely solely in all representative governments."' Congress 
 
 ' Broim V. Maryland, 25 U. S. 12 Wheat. 419, 446, 6 L. ed. 678, 688; Phila- 
 delphia cfe /S. M. SS. Co. v. Pennnyioania, 1 Inters. Com. Rep. 308, 133 U. 
 S. 336, 346, 30 L. ed. 1200, 1205. 
 
 ■Bobbins v. Shelby County Taxing Dist. 1 Inters. Com. Rep. 45, 120 U. S. 489, 
 498, 30 L. ed. 694, 696. 
 
 3 Gibbons v. Ogden, 22 U. S. 9 Wheat. 1, 189, 196, 197, 6 L. ed. 23, 68, 70.
 
 PROCEEDINGS AGAINST VIOLATOKS. 1071 
 
 thus having plenary power subject to tlie limitations imposed hj 
 the Constitution to prescribe the rule bj which commerce among 
 the several states is to be governed, the question necessarily arises, 
 what are the principles that should control the judiciary when 
 determining whether a particular Act of Congress, avowedly 
 adopted in execution of that power, is consistent with the funda- 
 mental limitations of the Constitution? 
 
 The general principle applicable to this subject was long ago 
 announced by the court, and has been so often affirmed and ap- 
 plied that argument in support of it is unnecessary, even if it 
 were possible to suggest any thought not heretofore expressed in 
 the adjudged cases. In the great case of JfcCidloch v. Mary- 
 land, 17 U. S. 4 AVheat. 316, 421, 423, 4 L. ed. 579, 605, it M^as 
 said : " The sound construction of the Constitution must allow to 
 the national legislature that discretion, with respect to the means 
 by which the powers it confers are to be carried into execution, 
 which will enable that body to perform the high duties assigned 
 to it, in the manner most beneficial to the people. Let the end 
 be legitimate, let it be within the scope of the Constitution, and 
 all means which are appropriate, which are plainly adapted to 
 that end, which are not prohibited, but consistent with the letter 
 and spirit of the Constitution, are constitutional." Again : 
 •* Where the law is not prohibited, and is really calculated to ef- 
 fect any of the objects entrusted to the government, to undertake 
 here to inquire into the degree of its necessity would be to pass 
 the line which circumscribes the judicial department, and to tread 
 on legislative ground. This court disclaims all pretensions to 
 such a power." 
 
 Guided by these principles, the court inquire whether the 
 twelfth section of the Interstate Commerce Act, so far as it au- 
 thorizes the present proceeding, assumes to invest the circuit 
 courts of the United States with functions that are not judicial. 
 It was not disputed, it is said, nor indeed can it be successfully 
 denied, that the prohibition of unjust charges, discriminations, or 
 preferences, by carriers engaged in interstate commerce, in re- 
 spect to property or persons transported from one to another, is a 
 proper regulation of interstate commerce, or that the object Con- 
 t
 
 1072 ACTION A(iAIN.ST CAKIilKK OF OOODS, 
 
 gross lias ill view l»y the Act in (jiiestion iiuiy be le«^itiinHtely ac- 
 coinplislied by it under the power to regulate commerce among 
 the several states. In every substantial sense such prohibition is 
 a rule by which interstate coniinerce must be governed, and is 
 plainly adapted to the object intended to be accomplished. The 
 same observation may be made in respect to those provisions em- 
 powei'ing the (Commission to inquire into the management of the 
 business of carriers subject to the provisions of the Act, and to 
 investigate the whole subject of interstate commerce as conducted 
 by such carriers, and, in that way, to obtain full and accurate in- 
 formation of all matters involved in the enforcement of the Act 
 of Congress. It was clearly com})etent for Congress, to that end, 
 to invest the Commission with authority to require the attendance 
 and testimony of witnesses, and the production of books, papers, 
 tariffs, contracts, agreements, and documents relating to any mat- 
 ter legally conimitted to that ))ody for investigation. We do not 
 understand that any of these propositions are disputed in this case. 
 Interpreting the Interstate Commerce Act as applicable, and as 
 intended to apply, only to matters involved in the regulation of 
 commerce, and which Congress may rightfully subject to investi- 
 gation by a Commission established for the purpose of enforcing 
 that Act, the court cannot say that its provisions are not appro- 
 priate and plainly adapted to the protection of interstate commerce 
 tVoni burdens that are or may be, directly and indirectly, imposed 
 upon it by means of unjust and unreasonable discriminations, 
 charges, and preferences. Congress is not limited in its employ- 
 ment of means to those that are absolutely essential to the accom- 
 plishment of objects within the sco})e of the powers granted to it. 
 It is a settled principal of constitutional law that " the goverur 
 ment which has a right to do an act, and has imposed on it the 
 duty of performing that act, must, according to the dictates of 
 reason, be allowed to select the means ; and those who contend 
 that it may not select any appropriate means, that one particular 
 mode of effecting the object is excepted, take upon themselves the 
 burden of establishing that exception." ' The test of the power 
 
 ^McCulloch V. Maryland, 17 U. S. 4 Wheat. 316, 409, 4 L. ed. 579, 603.
 
 PROCEEDINGS AGAINST VIOLATORS. 1073 
 
 ot Ooiio:ress is not the jiul^nient of tlie courts that pai-tieular 
 means are not the best that could have been employed to effect 
 the end contemplated by the legislative department. The judic- 
 iarv can only iuipiire whether tlie means devised in the execution 
 of a power granted are forbidden by the Constitution. It cannot 
 go beyond that inquiry without entrenebing upon the domain of 
 another de])artment of the government. That it may not do with 
 safety to our institutions.' 
 
 An adjudication that Congress could not establish an adminis- 
 trative body with authority to investigate the subject of interstate 
 commerce and with power to call witnesses before it, and to require 
 the production of books, documents, and papers relating to that 
 subject, would go far towards defeating the object for which the 
 people of the United States placed commerce among the states 
 under national control. All must recoonize the fact that the full 
 information necessary as a basis of intelligent legislation by Con- 
 gress from time to time upon the subject of interstate commerce 
 caimot be obtained, nor can the rules established for the reaula. 
 tion of such commerce be efficiently enforced, otherwise than 
 through the instrumentality of an administrative body, represent- 
 ing the whole country, always watchful of the general interests, 
 and charged with the duty not only of obtaining the required 
 information, but of compelling by all lawful methods obedience 
 to such rules. 
 
 It is also observed that inde})endently of any question con- 
 cerning the nature of the matter under investigation by the Com- 
 mission — however legitimate or however vital to the public 
 interests the inquiry being conducted by that body — the judgment 
 below rests upon the broad ground that no direct proceeding to 
 compel the attendance of a witness before the Commission, or to 
 require liim to answer questions put to him, or to compel the pro- 
 duction of books, documents or papers in his possession relating to 
 the subject under examination, can be deemed a case or controversy 
 of which under the Constitution, a court of the United States may 
 take cognizance, even if such proceeding be in form judicial. 
 
 ' Union Pac. R. Co. v. United States {"Sinking Fund Cases") 99 U. S. 700, 718, 
 25 L. ed. 49G. 501. 
 
 6^
 
 lOTi ACnoM AGAINST CAKKIEB OF UOOD8. 
 
 And t]io theory upon wliicli the judgment proceeded is apj)Hcable 
 alike to corporations and iiulividuals, although by the estaltlished 
 doctrine of the courts a railroad corporation may, under legislative 
 sanction and upon making compensation, apj)ropriate jn-ivate 
 property for the pui-poses of its right of way, because and only 
 because its road is a public highway established primarily for the 
 convenience of the })eople and to subserve public objects, and 
 tiierefore, subject to governmental conti'ol.' 
 
 What is a case or controversy to which, under the Constitution, 
 the judicial power of the I'nited States extends ^ Referring to 
 the clause of that instrument, which extends the judicial power of 
 the United States to all cases in law and equity arising under the 
 Constitutit)n, the laws of the United States, and treaties made or 
 that shall be made under their authority, the court, speaking by 
 Chief Justice Mai'shall, has said : " This clause enables the 
 judicial department to receive jurisdiction to the full extent of the 
 Constitution, laws, and treaties of tlie United States when any 
 question respecting tliem shall assume such a form that the judicial 
 ])ower is capable of acting on it. That power is capable of acting 
 only when the subject is submitted to it by a party who asserts his 
 rights in the form prescribed by law. It then becomes a case, and 
 the Constitution declares that the judicial power shall extend to 
 all cases arising under the Constitution, laws, and treaties of the 
 United States." ^ Mr. Justice Curtis, after observing that Con- 
 gress cannot withdraw from judicial cognizance any matter which, 
 from its nature, is the subject of a suit at the common law, or in 
 equity, or admiralty, nor on the other hand, bring under judicial 
 power a matter which, from its nature, is not a subject for judicial 
 determination, said : "At the same time there are matters involv- 
 ing public rights which may be presented in such form that the 
 judicial power is capable of acting on them and which are suscep- 
 tible of judicial determination, but which Congress may or may 
 not bring within the cognizance of the courts of the United States, 
 
 1 Cherokee Nation v. SoutJiern Kansas R. Co. 135 U. S. 641, 657, 34 L. ed. 295, 
 
 303. 
 ' Osborn v. Bank of United States, 22 U. S. 9 Wheat. 738, 819, 6 L. ed. 204, 
 
 223. And in Den v. Hoboken Land c£ Imp. Co. 59 U. S. 18 How. 272, 284, 
 
 15 L. ed. 372, 377.
 
 FKOCEKDINUtJ AijAIAST VIOLATORS. 1075 
 
 as it may deem proper." So, in Smith v. Adams, 130 U. S. 173, 
 32 L. ed. 897, Mr. Justice Field, speaking for the court, said that 
 the terms "cases" and "controversies" in the Constitution 
 embraced " the claims or contentions of litigants brought before 
 the courts for adjudication by regular proceedings established for 
 the protection or enforcement of rights, or the prevention, 
 redress, or punishment of wrongs." Testing the present proceed- 
 ing by these principles, the result is reached that it is one that can 
 properly be brought under judicial cognizance. 
 
 Among the statutes is an Act of Congress authorizing the Inter- 
 state Commerce Commission to summon witnesses and to require 
 the production of books, papers, tariifs, contracts, agreements, and 
 documents relating to the matter under investigation. The con- 
 stitutionality of this provision — assuming it to be applicable to a 
 matter that may be legally entrusted to an administrative body for 
 investigation — is, it is said, not disputed and is beyond dispute. 
 Upon every one, therefore, who owes allegiance to the United 
 States, or who is within its jurisdiction, enjoying the protection 
 that its government affords, rests an obligation to respect the 
 national will as thus expressed in conformity with the Constitution. 
 As every citizen is bound to obey the law and to yield obedience 
 to the constituted authorities acting within the law, this power 
 conferred upon the Commission imposes upon any one, summoned 
 l)y that body to appear and to testify, the duty of appearing and 
 testifying, and upon any one required to produce such books, 
 papers, tariffs, contracts, agreements, and documents, the duty of 
 producing them, if the testimony souglit, and the books, papers^ 
 etc., called for, relate to the matter under investigation, if such 
 matter is one which the Commission is legally entitled to investi- 
 gate, and if the witness is not excused, on some personal ground, 
 from doing what the Commission requires at his hands. These 
 propositions seem to be so clear and indisputable that any attempt 
 to sustain them by argument would be of no value in the discus- 
 sion. "Whether the Commission is entitled to the evidence it 
 seeks, and whether the refusal of the witness to testify or to pro- 
 duce books, papers, etc., in his possession, is or is not in violation 
 of his ^uty or in derogation of the rights of the- United States,
 
 1076 ACTION AGAINST CAKICIKK UF OUODS. 
 
 seeking to execute a power expressly granted to Congress, are the 
 distinct issues between that body and the witness. They are 
 issues between the United States and tliose who dispute the valid- 
 ity of an Act of Congress and seek to obstruct its enforcement. 
 And those issues inade in the form prescribed by the Act of Con- 
 gress, are so presented that the judicial power is capable of acting 
 on them. 
 
 The question so presented is substantially, if not pri'ci>ely, that 
 which would nri>v if the witness was proceeded against by indict- 
 ment nnder an Act of Congress declaring it to be an oftense 
 against the United States for any one to refuse to testify bef<»re 
 the Commission after being duly summoned, or to produce books, 
 papers, etc., in his possession upon notice to do so, or imposing 
 penalties for such refusal to testify or to produce the required 
 books, papers, and documents. A prosecution for such offense or 
 a proceeding by information to recover such penalties would have 
 as its real and ultimate object to compel obedience to the rightful 
 orders of the Commission, while it was exerting the powers given 
 to it by Congress. And such is the sole object of the present 
 direct proceeding. The T'nited States asserts its right, under the 
 Constitution and laws, to have these appellees answer the questions 
 propounded to them by the Commission, and to produce specitied 
 books, papers, etc., in their possession or under their control. It 
 insists that the evidence called for is material in the matter under 
 investigation ; that the subject of investigation is within legislative 
 cognizance, and may be inquired of by any tribunal constituted by 
 Congress for that purpose. The appellees deny that an}' such 
 rights exist in the general government, or that they are under a 
 legal duty, even if such evidence be important or vital in the en- 
 forcement of the Interstate Commerce Act, to do what is required 
 of them by the Commission. Thus has arisen a dispute involving 
 rights or claims asserted by the respective parties to it. And the 
 power to determine it directly, and, as between the parties, 
 finally, must reside somewhere. It cannot be that the general 
 government, with all the power conferred upon it by the people 
 of the United States, is helpless in sucb an emergency, and is 
 unable to provide some method, judicial in form, and direct in its
 
 PROCKEDIXGS AGAINST VIOLATORS. i077 
 
 operation, for the prompt and conclusive determination of this 
 dispute. 
 
 As the circuit court is competent under the law bj wliich it 
 was ordained and established to take jurisdiction of the parties, 
 aud as a case arises under the Constitution or laws of the United 
 States when its decision depends upon either, why is not this pro- 
 ceeding judicial in form and instituted for the determination or 
 distinct issues between the parties, as defined by formal plead- 
 ings, a case or controversy for judicial cognizance, within tbe 
 meaning of the Constitution ? It must be so regarded, unless, 
 the court say, Congress is without power to provide any method 
 for enforcing the statute or compelling obedience to the lawful 
 orders of the Commission, except through criminal prosecutions 
 or by civil actions to recover penalties imposed for non-compliance 
 with such orders. But no limitation of that kind upon the power 
 of Congress to regulate commerce among the states is justified 
 either by the letter or the spirit of the Constitution. Any such 
 rule of constitutional interpretation, if applied to all the grants 
 of power made to Congress, would defeat the principal objects 
 for which the Constitution was ordained. As the issues are so 
 presented that the judicial power is capable of acting on them 
 finally as between the parties, the supreme court cannot adjudge 
 that the mode prescribed for enforcing the lawful orders of the 
 Interstate Commission is not calculated to attain the object for 
 which Congress was given power to regulate interstate com- 
 merce. It cannot be so declared unless the incompatibility be- 
 tween the Constitution and the Act of Congress is clear and 
 strong.' In accomplishing the objects of a power granted to it, 
 Congress may employ any one or all the modes that are appro- 
 priate to the end in view, taking care only that no mode em- 
 ployed is inconsistent with the limitations of the Constitution. 
 
 The coui-t does not overlook constitutional limitations which, for 
 the protection of personal rights, must necessarily attend all in- 
 vestigations conducted under the authority of Congress. Neither 
 branch of the legislative department, still less any merely admin- 
 istrative body, established by Congress, possesses, or can be in- 
 
 » Fletcher v. Peck, 10 U. S. 6 Cranch, 87, 128, 3 L. ed. 162, 175.
 
 lU78 ACTION AGAINST CAKICIKK oK 0<J<>D.S. 
 
 vested witli, a iii'iieral power of making in<|iiiry into tlie private 
 affairs of tlie citizen.' As said in Boi/d v. United States, ll»; LT. 
 S. 616, 630, 20 L. ed. 7-1:6, 751— and it cannot be too often re- 
 peated — all the ])rinciples that enii^ody the essence of constitn- 
 tional liberty and security forbid all invasions on the part of tiio 
 government and its employes of the sanctity of a man's home, 
 and the privacies of his life. As said by Mr. Justice Field in Re 
 Paclfie R. Cot»mis.s!on,'^2 Fed. Rep. 241. 250, " of all the riglits 
 of the citizen, few are of greater importance or more essential to 
 his peace and happiness than the right of personal security, and 
 that involves, not merely protection of his person from assault, 
 but exemption of liis private affairs, books, and pajiers from the 
 inspection and scrutiny of others. Without the enjoyment of 
 this right, all others would lose half their value." It was said in 
 argument that the twelfth section was in derogation of those 
 fundamental guarantees of personal rights that are recognized by 
 the Constitution as inhering in the freedom of tlie citizen. It is 
 scarcely necessary to say that the power given to Congress to 
 regulate interstate commerce does not carry with it any power to 
 destroy or impair those guarantees. The court had already spoken 
 fully upon that general subject in Countiehiian v. Hitchcock, 3 
 Inters. Com. Rep. 816, 142* U. S. 547, 35 L. ed. 1110. It need 
 not add anything to what has been there said. It is enough in the 
 view of the court that as the Interstate Commerce Commission, 
 by petition in a circuit coui-t of the United States, seeks, upon 
 grounds distinctly set forth, an order to compel appellees to an- 
 swer particular questions and to produce certain books, papers, 
 etc., in their possession, it was open to each of them to contend 
 before that court that he was protected by the Constitution from 
 making answer to the questions propounded to him ; or that he 
 was not legally bound to produce the books, papers, etc., ordered 
 to be produced ; or that neither the questions propounded nor 
 the books, papers, etc., called for relate to the particular matter 
 under investigation, nor to any matter which the Commission is 
 entitled under the Constitution or laws to investio-ate. These 
 issues being determined in their favor by the court below, the 
 1 Kilhourn v. Thompson, 103 U. S. 168, 190, 26 L. ed. 377, 386.
 
 I'JiOC'KEUi.NGS AGAINST VluLATOlib. 1079 
 
 petition of the Ooiiiniissioii could have heeu dismissed upon its 
 merits. 
 
 Attention was called also to the fact that after the de- 
 cision in CovnHelraan v. Hitchcock^ the Interstate Commerce Act 
 was amended by an Act approved February 11, 1893, which pro- 
 vides "that no person shall be excused from attending and tes- 
 tifying, or from producing books, papers, tariffs, contracts, agree- 
 ments, and documents before the Interstate Commerce Commis- 
 sion, or in obedience to the subjxena signed or issued by one 
 or more Commissioners, or in any cause or proceeding, criminal 
 or otherwise, based upon or growing out of any alleged violation 
 of the Act of Congress, entitled ' An Act to Regulate Connnerce,' 
 approved February fourth, eighteen hundred and eighty-seven, 
 or of any amendment thereof, on the ground or for the reason 
 that the testimony or evidence, documentary or otherwise, re- 
 quired of him may tend to criminate him or subject him to a 
 penalty or forfeiture. But no person shall be prosecuted or sub- 
 jected to any penalty or forfeitiwe for or on account of any tran- 
 saction, matter or thing concerning which he may testify, or 
 produce evidence, documentary or otherwise, before said Commis- 
 sion, or in obedience to its subpcfina, or the subpoena of either of 
 them, or in any such case or proceeding : ProvuJeds That no per- 
 son so testifying shall be exempt from prosecution and punish- 
 ment for perjury committed in so testifying. Any person who 
 shall neglect or refuse to attend and testify, or to answer any law- 
 ful inquiry, or to produce books, papers, tariffs, contracts, agree- 
 ments, and documents, if in his power to do so, in obedience to 
 the subpoena or lawful requirement of the Commission, shall be 
 guilty of an offense, and upon conviction thereof by a court of 
 competent jurisdiction shall be punished by tine not less than one 
 hundred dollars nor more than live thousand dollars, or by im- 
 prisonment for not more than one year, or by both such fine and 
 imprisonment." 27 Stat, at L. 443, chap. 83. But the Act was 
 not in force when this case was detei-mined below. JNor does it 
 reach the question whether a proceeding like the present one can 
 be maintained in a circuit court of the United States. 
 
 In tlie course of the ars'ument at the bar some attention was
 
 108U ACTION AGAINST CAKlilEU OK OOUDS. 
 
 called to Hayhurn's Case^ 2 U. S. 2 Dull. 4U!>, 1 L. ed. \M\, and 
 United States ^.Ferreira, 54 U. S. 13 How. 40, 40, 14 L. ed. 
 42, 44, as announcing ])iiM<'ij)les not in harmony with the views 
 the court expressed in this (tpiniun. llayburn's case was an ap- 
 plication for a mandanins, it was explained, to the Circuit Court of 
 the United States for the District of Pennsylvania, commanding 
 that court to proceed in a petition by 11 ay burn to be put on the 
 pension list of the United States in conformity with an Act of 
 Congress, approved March 23, 1792, chap. 11, which provided 
 for the settlement of tlie chiims of widows and orphans barred 
 by limitations previously established, and to regulate claims to in- 
 valid pensions. The court took the case under advisement, but 
 as Congress provided in another way for the relief of invalid pen- 
 sioners, no decision was made. Nevertheless, by a note to llay- 
 burn's case, we are informed of the views expressed at the circuit 
 by members of the supreme court in relation to the Act of 1792. 
 They concurred in holding that it was not in the power of Con- 
 gress to assign to the courts of the United States any duties ex- 
 cept such as were properly judicial, and to be performed in a 
 judicial manner; and that the duties assigned to the circuit courts 
 were not of that description, and were not contemplated by the 
 Act of Congress as of that character ; and, consequently, that the 
 Act could be considered as only appointing commissioners for 
 the purposes mentioned in it by official instead of personal de- 
 scriptions, which positions the judges of the court were at liberty 
 to accept or decline. 
 
 In a note prepai-ed by Chief Justice Taney, under the direction 
 of the court, and found in 54 U. S. 13 How. 52, 14 L. ed. 47, an 
 account is given of United States v. Todd, which also involves 
 the validity of the Act of 1792, so far as it imposed upon the cir- 
 cuit courts duties relating to pensions. And it is there stated 
 that Chief Justice Jay and Justice Cushing, upon further reflec- 
 tion, became satisfied that the power conferred by the Act of 1792 
 on the circuit court as a court could not be construed as giving 
 such power to the judges of the court as commissioners. The 
 same general principles were aimounced in Ferreira's case, which 
 arose under the treaty of 1819 between Spain and the United
 
 TKocEEDIKOS AUAlNfeT VluLATOKS. 1081 
 
 States, and under certain acts of Congress passed to carry a 
 particular article of that treaty into execution. The case came 
 before the court upon appeal from a decision or award made by 
 the district judge, acting upon a special statute authorizing him 
 to receive and adjudicate certain claims. A motion to dismiss 
 the appeal for want of jurisdiction in tlie cunrt raised the ques- 
 tion whether the district judge exercised judicial power, strictly 
 speaking, under the Constitution. The motion to dismiss was 
 sustained. Chief Justice Taney, referring to the statutes under 
 which the district judge proceeded, said: " It is maiiifest that 
 this power to decide upon the validity of these claims is not con- 
 ferred on them as a judicial function to be exercised in the ordi- 
 nary forms of a court of justice. For there is to be no suit ; no 
 parties in the legal acceptance of the term are to be made ; no 
 process to issue ; and no one is autliorized to appear in behalf of 
 the United States, or to summon witnesses in the case. The j)ro- 
 ceeding is altogether ex parte ^ and all that the judge is required 
 to do is to receive the claim when the party presents it, and to 
 adjust it upon such evidence as he may have before him, or be 
 able himself to obtain. But neither the evidence nor his award 
 are to be liled in the court in which he presides, nor recorded 
 there; but he is requii-ed to transmit both the decision and the 
 evidence npon which he decided to the Secretary of the Treas- 
 ury; and the claim is to be paid if tlie Secretary thinks it just 
 and equitable, but not otherwise. It is to be a debt from the 
 United States upon the decision of the Secretary, but not upon 
 that of the judge. It is too evident for argument on the subject 
 that such a tribunal is not a judicial one, and that the Act of 
 Congress did not intend to make it one. The authority conferred 
 on the respective judges was nothing more than that of a com- 
 missioner to adjust certain claims against the United States; and 
 tlie office of judges and their respective jurisdictions are referred 
 to in the law merely as a designation of the persons to whom the 
 authority is confided, and the territorial limits to which it ex- 
 tends. The decision is not the judgment of a court of justice. 
 It is the award of a commission." 
 
 It tlius appears that the Act of 1792, above referred to, at-
 
 1082 ACTION AGAINST CAUKIKK UF OUUUS. 
 
 tempted to impose upon the courts of the United States diitiea 
 purely administnitive in their character. So, also, tlie acts of 
 Congress involved in Ferreira's case conferred no authority u])on 
 the district judi?e to determine finally any questions of a judicial 
 nature, and, without requiring any petition to be filed, and with- 
 out empowering the district attorney to enter an appearance for 
 the United States, so as to make it a party to the proceeding, or 
 to authorize a judgment against it, gave that officer the power 
 only of adjusting, witliout the presence of parties, certain claims, 
 the allowance and payment of which, after being so adjusted, 
 were made to depend wholly upon the discretion of the Secretary 
 of the Treasury. 
 
 An allusion was also made in this connection to Gordon v. 
 United States, 117 U. S. appx. p. r)ltT and Re S<i)d)(>rii, 148 U. 
 S. 222, 37 L. ed. 420. In Gordon's case, the question was 
 whether the court had jurisdiction to review the action of the 
 Court of Claims in respect to a claim examined and allowed in the 
 latter court under an Act of Congress (12 Stat, at L. 65, chap. t»2, 
 §§ 5, 7, 14) which, among other things, provided that no money 
 should be paid out of the Treasury for any claim passed upon by 
 the Court of Claims, until after an appropriation therefor should 
 be estimated by the Secretary of the Treasury, and an appropria- 
 tion to pay it be made by Congress, Under that Act neither the 
 Court of Claims nor supreme court could do anything more than 
 certify their opinion to the Secretary of the Treasury, and it de- 
 pended upon that officer, in the first place, to decide whether lie 
 would include it in his estimates of private claims, and if he de- 
 cided in favor of the claimant, it rested with Congress to deter- 
 mine whether it would or would not make an appropriation for 
 its payment. Neither the Court of Claims nor Supreme Court 
 could, by process, enforce its judgment ; and whether the claim was 
 paid or not, did not depend on the decision of either court, but 
 upon the future action of the Secretary of the Treasury and of 
 Congress. The appeal of Gordon was dismissed upon the ground 
 that Congress could not " authorize or require this court to ex- 
 press an opinion on a case where its judicial power could not be 
 exercised, and where its judgment would not be final and conclu-
 
 PKOCEEDIiS'tiS AGAINST VIOLATUKS. 1083 
 
 sire upon tlie rights of the parties, and process of execution 
 awarded to cany it into effect." "The award of execution," said 
 Chief Justice Taney, " is a part and an essential part, of every 
 judgment, passed by a court exercising judicial power. It is no 
 judgment, in the legal sense of term, without it. Without such 
 an award the judgment would be inoperative and nugatory, leav- 
 ing the aggrieved party without a remedy. It would be merely 
 an opinion which would remain a dead letter, and without any 
 operation upon the rights of the parties, unless Congress should 
 at some future time sanction it, and pass a law authorizing the 
 court to carry its opinion into effect. Such is not the judicial 
 power confided to this court in the exercise of its appellate juris- 
 diction ; yet it is the whole power that the court is allowed to ex- 
 ercise under this Act of Congress." ' 
 
 In Sanborn's ease, above cited, the same principles were an- 
 nounced. That case arose under an Act of Congress of March 3, 
 1887 (21: Stat, at L. 505, chap. 105) one section of which provided 
 that " when any claim or matter may be pending in miy of the 
 executive departments which involves controverted questions of 
 fact or law, the head of such department, w^ith the consent of the 
 claimant, may transmit the same, with the vouchers, papers, 
 proofs, and documents pertaining thereto, to said Court of Claims, 
 and the same shall be there proceeded in undei- such rules as the 
 court may adopt. When the facts and conclusions of law shall 
 have been found, the court shall report its findings to the depart- 
 ment by which it was transmitted. § 12. The court dismissed 
 an appeal from a finding of the Court of Claims, under this Act. 
 Referring to the cases of Haybnrn, Todd, Ferreira, and Gordon, 
 above cited, it observed : " Such a finding is not made obligatory 
 on the department to which it is reported — certainly not so in 
 terms — and not so, as we think, by any necessary implication. 
 We regard the function of the Court of Claims, in such a case, as 
 ancillary and advisory only. The finding or conclusion reached 
 by that court is not enforceable by any process of execution 
 issuing from the court, nor is it made by the statute the final and 
 
 " Gordon v. United States, 117 U. S. appx. p. 702. See De Groot v. United 
 States, 72 U. S. 5 Wall. 419, 18 L. ed. 700.
 
 1084 ACTION AOAINST CAIMMKK OK GOOU8. 
 
 indisputable basis of action either bv the department or bj Con- 
 ii;ress." ' The views expressed in the present ease are declared 
 not inconsistent witli anything said or decided in those cases. 
 They do not, in any manner, infriiiire npon the sahitory doctrine 
 that Congress (excbnling the special cases provided for in the 
 Constitution, as, for instance, in section two of article two of that 
 instrument) may not impose npon the courts of the United States 
 any duties not strictly judicial. The duties* assigned to the circuit 
 courts of the United States by the I'Jth section of the Interstate 
 Commerce Act ai-e judicial in their nature. The itnjuiry whether 
 a witness before the Commission is bound to answer a particular 
 question propounded to him, or to produce books, papers, etc., in 
 his possession and called for by that body, is one that cannot be 
 committed to a subordinate administrative or executive tribunal 
 for final determination. Such a body could not, under our sys- 
 tem of government, and consistently with due process of law, be 
 invested with authority to compel obedience to its orders by a 
 judgment of tine or imprisonment. Except in tiie particular in- 
 stances enumerated in the Constitution, and considered in Ander- 
 son V. Dunn, 19 U. S. 6 Wheat. 204, 5 L. ed. i>42. and in Kil- 
 hourne v. Thompson, 103 U. S. 108, 190, 2<) L. ed. :377, 386, of 
 the exercise by either house of Congress of its right to punish 
 disorderly behavior uj)on the part of its members, and to compel 
 the attendance of witnesses, and the production of papers in elec- 
 tion and impeachment cases, and in cases that may involve the 
 existence of those bodies, the power to impose tine oi*»imprison- 
 ment in order to compel the performance of a legal duty imposed 
 by the United States, can only be exerted, under the law of the 
 land, by a competent judicial tribunal having jurisdiction in the 
 premises.- 
 
 Without the aid of judicial process of some kind, the regula- 
 tions that Congress may establish in respect to interstate com- 
 merce cannot be adequately or eflicientW enforced. One mode, 
 as already suggested — the validity of which is not questioned — of 
 
 '7ie Safiborn, 148 U. S. 326, 37 L. ed. 431. 
 
 ''See Whitcomb's Case, 120 Mass. 118, 21 Am. Rep. 502. and authorities there 
 cited.
 
 PKOCEKDlNGb AGAINST VluLATOKS. 10S5 
 
 compelling a witness to testify before the Interstate Commerce 
 Commission, to an wer questions propounded to him relutiug to 
 the matter under investigation and which the law makes it his 
 duty to answer, and to produce books, papers, etc.. is to make his 
 refusal to appear and answer, or to produce the documentary evi- 
 dence called for, an ofEense against the United States punishable 
 by fine or imprisonment. A criminal prosecution of the witness 
 under such a statute, it is conceded, would be a case or contro- 
 versy within the meaning of the Constitution, of which a court of 
 the United States could take jurisdiction. Another mode would 
 be to proceed by information to recover any penalty imposed by 
 the statute. A proceeding of that character, it is also conceded, 
 would be a case or controversy of which a court of the United 
 States could take cognizance. If, however. Congress, in its wis- 
 dom, authorizes the Commission to bring before a court of the 
 United States for determination the issues between it and a wit- 
 ness that mode of enforcing the Act of Congress, and of compel- 
 Ung'the witness to perform his duty, is said not to be judicial and 
 is beyond the power of Congress to prescribe. 
 
 The court disclaim any view of the Constitution that concedes 
 the power of Congress to accompUsh a named result, indirectly, 
 by particular fornis of judicial procedure, but denies its power to 
 accomplish the same result, directly, and by a diU'erent proceed- 
 ino- judicial in form. It could not do so without denymg to 
 Con.n-css the broad discretion with which it is invested by the 
 Constitution of employing all or any of the means that are appro- 
 priate or plainly adapted to an end which it has unquestioned 
 power to accomplish, namely, the protection of interstate com- 
 merce aoainst improper burdens and discrimhiations. Indeed, of 
 all the modes that could be constitutionally prescribed for the en- 
 forcement of the reoulations embodied in the Interstate Commerce 
 \ct that provided by the 12th section is the one which, more 
 than any other, will protect the public against the devices of 
 those who, taking advantage of special circumstances, or by 
 means of combinations too powerful to be resisted and overcome 
 by individual effort, would subject commerce among the states to 
 unjusti and unreasonable burdens.
 
 1086 ACTluN AUAlNsT CAKKIKK OF OtiUl>S. 
 
 The present procc'cding is not incn-lv ancilhirv and advisory. 
 It is not, as in Gordon's ease, one in wliieli the Tnited States 
 seeks from tlie cirenit court of the United States an opinion that 
 •' would remain a dead letter, and without any operation upon 
 the rights of the parties." The proceeding is one for determin- 
 ing rights arising out of specified matters in dispute that concern 
 both the general public and the individual defendants. It is one 
 in which a judgment may be rendered that will be conclusive 
 upon the parties until reversed on appeal. And that judg- 
 ment may be enforced by the process of the circuit court. Is it 
 not clear that there are here parties on each side of a dispute in- 
 volving grave cpiestions of legal rights, that their res})ective posi- 
 tions are defined by pleadings, and that the customary forms of 
 judicial procedure have been pursued ? The performance of the 
 duty whicli, according to the contention of the government, rests 
 upon the defendants, cannot be directly enforced except by judi- 
 cial process. One of the functions of a court is to compel a }>arty 
 to perform a duty which the law re<piires at his hands. If it lie 
 adjudged that the defendants are, in law, obliged to do what they 
 have refused to do, that determination will not be merely ancil- 
 lary and advisor}', but, in the words of Sanborn's case, will be a 
 *' final and indisputable basis of action," as between the Commis- 
 sion and the defendants, and will furnish a precedent in all similar 
 cases. It will be as much a judgment that may be carried into 
 effect by judicial process as one for money, or for the recovery of 
 property, or a judgment in mandamus commanding the perform- 
 ance of an act or duty which the law requires to be performed, or 
 a judgment prohibiting the doing of something which the law 
 will not sanction. It is none the less the judgment of a judicial 
 tribunal dealing with questions judicial in their nature, and pre- 
 sented in the customary forms of judicial proceedings, because its 
 effect may be to aid an administrative or executive body in the 
 performance of duties legally imposed upon it by Congress in 
 execution of a power granted by the Constitution. 
 
 This view is illustrated, it is said, in Fong Yue Ting v. United 
 States, 149 U. S. 698, 728, 37 L. ed. 905, 918, which arose under 
 the Act of May 5, 1892, chap. 60, prohibiting the coming of
 
 PKOCEEDIMGS AGAINST VIOLATOKis. 1087 
 
 Chinese persons into the United States. That Act provided for 
 the arrest and removal from the United States of any person of 
 Chinese descent unlawfully within this country, unless such per- 
 sons shall establish, by affirmative proof, to the satisfaction of a 
 justice, judge or commissioner of the United States before wdiom 
 he might be brought and tried, his lawful right to remain in the 
 United States. It also authorized the arrest of such person by 
 any customs official, collector of internal revenue, or United 
 States marshal, and taken before a United States judge. The 
 court said : " When, in the form prescribed by law, the executive 
 officer, acting in behalf of the United States, brings the Chinese 
 laborer before the judge, in order that he may be heard, and the 
 facts upon which depends his right to remain in the country be 
 decided, a case is duly submitted to the judicial power; for here 
 are all the elements of a civil case — a complainant, defendant, 
 and a judge — actoi\ reus et judex.^ No formal complaint or 
 pleadings are required, and the want of them does not alfect the 
 authority of the judge, or the validity of the statute." 
 
 Another suggestion thrown out in argument against the valid- 
 ity of the 12th section of the Interstate Conmierce Act, in the 
 particular adverted to, was that the defendants are not accorded a 
 )-iglit of trial by jury. If, the court say, as has been decided, this 
 proceeding made a case or controversy within the judicial power 
 of the United States, the issue w^hether the defendants are under 
 a duty to answer the questions propounded to them, and to pro- 
 duce the books, papers, documents, etc., called for, is manifestly 
 not one for the determination of a jury. The issue presented is 
 not one of fact, but of law exclusively. In such a case, the de- 
 fendant is no more entitled to a jury than is a defendant in a 
 proceeding by mandamus to compel him, as an officer, to perform 
 a ministerial duty. Of course, the question of punishing the de- 
 fendants for contempt could not arise before the Commission ; 
 for, in a judicial sense, there is no such thing as contempt of a 
 subordinate administrative body. No question of contempt could 
 arise until the issue of law, in the circuit court, is determined 
 
 > 3 Bl. Com. 25; Osborn v. Bank of United States, 23 U. S. 9 Wheat. 738, 819, 
 6 L. ed. 204, 223. 
 t
 
 1088 ACTION AGAINST CAKKIKK OK GOODS. 
 
 adversely to the det'eudaiits and they refuse to obey, nut the order 
 of the Commission, but the final order of the court. And, in 
 matters of contempt, a jury is not required by '* due process of 
 law," From the very nature of their institution, and that their 
 lawful jud<j:nients may be respected and enforced, the courts of 
 the United States possess the power to punish for contempt. 
 And this inherent power is recognized and enforced by a statute 
 expressly autiiorizing such courts to jjunish ciuitempts of their 
 authority when manifested by disobedience of their lawful writs, 
 process, orders, rules, decrees, or commands.' Surely it cannot 
 be supposed that the tjuestion of contempt of the authority of a 
 court of the United vStates, committed by a disol)edience of its 
 orders, is triable, of right, by a jury. 
 
 The result follows that a judgment of the circuit court of the 
 United States determining the issues presented by the petition of 
 the Interstate Commerce Commission and by the answers of wit- 
 nesses, will be a legitimate exertion of judicial authority in a case 
 or controversy to which, by the Constitution, the judicial power 
 of the United States extends. And a final order by that court 
 dismissing the petition of the Commission, or requiring the appel- 
 lees to answer the questions propounded to them, and to produce 
 the books, papers, etc., called for, will be a determination of 
 questions upon whicii a court of the United States is capable of 
 acting and which may be enforced by judicial process. If there 
 is any legal reason why witnesses should not be required to answer 
 the questions put to tiiem, or to produce the books, papers, etc., 
 demanded of them, their rights can be recognized and enforced 
 by the circuit court when it enters upon the consideration of the 
 merits of the questions presented by the petition. 
 
 In view of the conclusion reached upon the oidy question de- 
 termined by the circuit court, the form of judgment was con- 
 sidered. The case was heard below upon the petition of the 
 Commission and the answers of the defendants. But no ruling 
 
 ' Rev. Stat. § 725; 1 Stat, at L. 83; 4 Stat, at L. 487; United States v. Hudwn, 
 11 U. S. 7 Cranch, S'2, 3 L. ed. 259; Anderson v. Bittm, 19 U. S. 6 Wheat. 
 204, 227, 5 L. ed. 242, 247; Ex parte Robinson, 86 U. S. 19 Wall. 505, 510, 
 22 L. ed. 205, 207; Ex parte Terry, 128 U. S. 289, 302, 303, 32 L. ed. 405, 
 408- Cartwright's Case, 114 Mass. 230, 238.
 
 PKOL'EEDI.NCiS AGAl^•bT VluLA•R)K^. 1(>89 
 
 was made in respect to the materiality of the evidence sought to 
 be obtained from the defendants. Passing by every other ques- 
 tion in the case, tlie circuit court, by its judgmeut, struck down 
 >o mucii of the twelfth section as authorized or required the 
 courts to use their process in aid of inquiries before the Com- 
 mission. Under the circumstances, the court felt obliged to go no 
 further at this time than to adjudge under the issue that that sec- 
 tion in the ])articular named is constitutional, and to remand the 
 cause that the court below might proceed with it upon the merits 
 of the questions presented by the petition and the answers of the 
 defendants and make such determination thereof as may 
 be consistent with law. Any other course would, it might 
 be apprehended, involve the exercise of original jurisdiction, 
 and might possibly work injustice to one or the other of the 
 I )arties. 
 
 As the question may be raised whether a corporation can be 
 proceeded against by indictment, the Conmiission in the Fourth 
 Annual Report to Congress, without discussing the point, 
 I'efer to a number of judicial authorities upon the subject, show- 
 ing that corporations are indictable, and the offenses for which 
 they may be indicted. For this purpose the Commission avails 
 itself of the treatise on corporations by Mr. Morawetz, in which 
 the authorities below cited are collated : A corporation can not 
 be charged criminally with a crime involving malice or the inten- 
 tion of the otfender. But there are certain classes of crimes not 
 depending on the intention of the offender, and in these cases the 
 crime consists of the act alone, without regard to the intention 
 with which it was committed, and there is no difficulty in attrib- 
 uting an offense of this character to a corporation, since it may be 
 committed entirely through the company's agents.' Therefore a 
 corporation maybe indicted for causing a nuisance;'' or for not 
 
 'Morawetz, Priv. Corp. ^ 732. 
 
 - Gom. V. New Bedford Bridr/e Propi-s. 2 Gray. 339; State v. Morris & E. R. 
 Co. 23 N. J. L. 360; Louismlle <fc K R. Co. v. State, 3 Head, 533, 75 Am. 
 Dec. 778; Susquehanna & B. Tump. R. Co. v. People, 15 Wend. 267; Peo- 
 ple V. Albany, 11 Wend. 539, 27 Am. Dec. 95; Reg. v. Great North of Eng- 
 land R. Co. 9 Q. B. 315; Com. v. Vermont & M. R. Corp. 4 Gray, 22. 
 
 69
 
 lOyU Ac;Tl<J^' AliAiNST CAKKlElt OF GOODS, 
 
 performing a duty cast upon it l)y law ;' or for doing any act whicli 
 is made indictable without regard to the intenticjn of the offender.' 
 On a motion for the issue of a distress warrant to compel an ap- 
 pearance of the defendant railroad company, which was considered 
 as a motion to quash the indictment as to said company, it has 
 been held that a corporation w'as not subject to an indictment 
 under the Interstate Commerce Act/ 
 
 An indictment will lie against any officer, director, agent, or 
 employe of a carrier who aids and abets a violation of the Inter- 
 state Commerce Law, as well as against the carrier, such officers 
 and employes having knowledge that they are engaged in an 
 illegal act/ If the agents or employes of a railroad, of whatever 
 rank, make an unlawful contract, or if they knowingly aid and 
 abet in the execution of an unlawful contract, tiiey become liable 
 to the penalties of the Act violated, but the proof, as in all crim- 
 inal cases sliould be clear and leave no reasonable ground for 
 doubt as to their guilty knowledge of the illegality of tliu Act* 
 When an agent of a railroad is prosecuted under the Interstate 
 Commerce Act, it is not necessary either to allege or prove that 
 the particular unlawful act complained of was done under author- 
 ity conferred by its principal or by its direction ; it is sufficient to 
 show that the accused was in fact an agent of a railroad subject to 
 the Act, and that the wrong was committed under color of his 
 office or agency/ 
 
 The Interstate Commerce Act was intended to punish only an 
 active and willful violation of its provisions. Men who occupy 
 merely clerical positions, who are only the instruments which 
 carry out an unlawful action or contract made by their superior 
 
 1 Com. V. Central Bridge Corp. 12 Cush. 242; Mower v. Leicester, 9 Mass. 247, 
 6 Am. Dec. 63; Loimville c6 W. B. Co. v. Com. 13 Bush. 388; Boston, C. <& 
 M. R. Co. V. State, 33 N. H. 215; Reg. v. Manchester, 7 El. & Bl. 453. 
 
 "^Reg. V. Bradford Nav. Co. 6 Best. & S. 631; State v. Murfreeshoro, 11 
 Humph. 217; United States v. Baltimore & 0. R. Co. 7 Am. L. Reg. N. S. 
 757; Brennan v. Tracy, 2 Mo. App. 540. 
 
 ^United States \. Michigan Cent. R. Co. 3 Inters. Com. Rep. 287, 43 Fed. Rep. 26. 
 
 ^ United States v. Cleveland, C. & S. R. Co. 3 Inters. Com. Rep. 290. 
 
 ^ United States v. Michigan Cent. R. Co. 3 Inters. Com. Rep. 287, 43 Fed. Rep. 
 26. 
 
 « United States v. Tozer, 2 Inters. Com. Rep. 422, 2 L. R. A. 444, 37 Fed. 
 Rep. 635.
 
 PROCEEDINGS AGAINST VIOLATOKS. 1091 
 
 oflBcers, which they do not concoct, should not be punished except 
 where the proof of guilty knowledge and participation is clear." 
 An indictment, under the Interstate Commerce Act, § % for 
 " unjust discrimination," need not aver by what particular device 
 the defendant managed to discriminate in favor of a particular 
 shipper. A count under the Interstate Commerce Act, § 9, is 
 sufficient if it shows with requisite certainty, by any apt language, 
 that the accused has committed an act which gives one shipper or 
 class of shippers an advantage, or subjects others to a disadvantage. 
 A count under the Interstate Commerce Act, § 3, charging the 
 subjection of a certain locality to an undue prejudice by charging 
 its merchants a higher rate for transporting property to a certain 
 point than was exacted from residents of a certain other locality, 
 must show with precision that the lower rate was for transporta- 
 tion between the same points as the higher rates. Counts under 
 the Interstate Commerce Act, § 2, for " undue and unreasonable 
 preference," and " for undue or unreasonable prejudice or disad- 
 vantage," need not allege that the service for which a different 
 rate was charged was rendered " under substantially similar cir- 
 cumstances and conditions," — those words being found only in 
 § 4, in relation to greater charge for shorter haul. A count undei- 
 the Interstate Commerce Act, § 6, alleging the allowance of a rate 
 less than the established and published rate which " was in force 
 on that day," sufficiently negatives the inference that the rate 
 might have been reduced by the carrier without notice, as per- 
 mitted by that section.' 
 
 A wnt of habeas corpus will not issue in favor of one who is an 
 oflScer of a railroad company, to wit: vice president and treasurer, 
 and who is under arrest for contempt in refusing to answer ques- 
 tions put to him by or before the grand jury or to produce papers 
 and documents of his company and under his control, ordered by 
 subpoena duces tecum and by order on arrest for contempt, on the 
 ground that such answers and production would tend to criminate 
 himself and his company, the investigation being based upon no 
 
 ' United States v. Michigan Cent. R. Co. 3 Inters. Com. Rep. 287, 43 Fed. 
 
 Rep. 26. 
 » United States v. Tozer, 2 Inters. Com. Rep. 422, 2 L. R. A. 444, 37 Fed. 
 
 Rep. 635. 
 t
 
 1092 ACTION A(iAlN8T (JAKKIEK OK GOODS. 
 
 (jluirges aj^ainst liiinst'lf and liis i>\\ii tr-tiimtiiy >li..\viiiL'- that tlit-v 
 would not critninate hira. 
 
 An indictment for violation.^ of tln' lutei'state Conuneree Law 
 in the transaction of a business whicli is subject to the provisions 
 of that law only when it is carried on in a particular manner must 
 show that the particular business with respect to which complaint 
 is made is so carried on as to be within tUe provision of the law. 
 An averment that an ex})res> company "was a corporation and a 
 common carrier enga«red in the transportation of property by 
 raili'oad from one state of the United States to other states oi the 
 United States'' tends to show simply that the company is an in- 
 dependent concern en<;ai>;ed in business for its own ])rofit, and 
 does not show that it is connected with any railroad com]iany, 
 iience it is insutKcient to show that such company is within the 
 purview of the Interstate Commerce Act ; nor is it a sufficient de- 
 scription of a carrier declared by tlie Act to be subject to its 
 provisions, as such carriers must be enga<:;cd in transportation of 
 property ''wholly by railroad." ' And a mere freight agent who 
 collects and receives rates fixed by other officers, having nothing 
 to do with making the rate, is not liable to indictment under the 
 interstate law foi' conspiring with the latter to charge a greater 
 compensation for transportation of merchandise for a shorter than 
 for a longer distance." 
 
 A railroad com})any is not exem])ted from Uability for establish- 
 ing a tariff in violation of the provisions of the Interstate Com- 
 merce Law, by the fact that such taritf was estal)lished by a joint 
 arrangement between it and other lines connecting with it.^ The 
 violation, by giving special rates of schedules of joint rates for 
 through shipments from points in the L'nited States to points in 
 Canada, which have been established and tiled with the Interstate 
 Commerce Commission and posted in the carrier's offices, cannot 
 be punished by the United States government so far as the viola- 
 tion was committed wholly or partly in Canada.* 
 
 ' United States v. Morsman, 3 Inters. Com. Rep. 112, 42 Fed. Rep. 448. 
 - United States v. Mellen, 4 Inters. Com. Rep. 247, 53 Fed. Rep. 239. 
 "^Junod V. Gldcago & N. W. R. Co. 3 Inters. Com. Rep. 663, 47 Fed. Rep. 290. 
 * Unitted States v. Knight, 3 Inters. Com. Rep. 801.
 
 PROCEEDINGS AGAINST VIOLATOKS. 1093 
 
 A railroad company which has published, filed, and posted, un- 
 der the Interstate Commerce Act, a schedule of unlimited tickets 
 between two points at a certain price, and limited tickets at a less 
 price, does not violate the Act by selling tickets at such less price 
 which are not limited as to the period of use, where the stop-over 
 privileges thereunder are limited, and no explanation of the term 
 " limited " has been required by the Interstate Commerce Com- 
 missioner or given by the company.' 
 
 The question whether a prosecution of the officers of the Union 
 Pacific Railway Company for a violation of the Interstate Com- 
 merce Act is an effort on the part of the government to interfere 
 with its revenues, which cannot be done until they exceed a cer- 
 tain percentage upon the costs of the road, cannot arise upon a 
 motion to quash an indictment.' 
 
 ' United States v. Egan, 3 Inters. Com. Rep. 582, 47 Fed. Rep. 112. 
 » Uniled States v. Mellen, 4 Inters. Com. Rep. 247, 53 Fed. Rep. 329.
 
 IISTDEX. 
 
 A. 
 
 ABANDONMENT. page. 
 
 of voyage, liability of shipowner for, 332, 333 
 
 of vessel, effect on liability of indemnitors for expenses and repairs, 26 
 
 of ship and cargo, when justifiable, 332 
 
 presumption from, when careless and cowardly, 333 
 
 to underwriters, effect of acts of underwriters on liability for, 174 
 
 effect of on right to proceed for limited liability, 1042 
 
 of goods upon wharf, liability for, 940 
 
 acceptance of 872 
 
 ABSENCE OF CONSIGNEE. 
 
 duty of msster as to delivery in case of, 966, 967 
 
 ACCEPTANCE AND TRANSPORTATION. 
 
 as c'vidoiici- that freight charges are remunerative, 814 
 ACCEPTANCE FOR CARRIAGE. 
 
 dutv of carrier as to, 74 
 
 time of, 76 
 
 need not be in writing, 84 
 
 by inducing storage on platform by promise to ship, 77 
 
 by attempt of carrier to load, 84 
 
 by leaving without objection at proper place, 84 
 
 right to refuse, when shipper insists upon delivery beyond line, 36«'^ 
 
 by connecting carrier, a question for jury, 389 
 
 right to refuse unless charges are prepaid, 389 
 
 what constitutes reasonable time for, 389 
 
 effect of, when marked to a point beyond carriers line, 401) 
 
 when right to refuse exists, 74 
 
 when no receipt or bill of lading is given, 79 
 
 when shipper knew that agent was prohibited from receiving, 82 
 
 as a waiver of right to prepayment of freight, 847 
 
 on liability for delay when done with knowledge of inadequacy 
 
 of means of transfer, 325 
 ACCEPTANCE OF GOODS. 
 
 what constitutes, so as to release carrier from liability, 967 
 
 in case of abandonment, 872 
 
 proof necessary to establish, 872 
 
 intention to discharge vessel and owner by, 873 
 
 reasonable time for, what is, 968, 969 
 
 effect on, of circumstances, distance, etc., 968 
 
 other business engagements as an excuse for delaj, 968 
 
 presumption from, 968 
 
 effect of, as a termination of voyage, 872 
 
 on right to show shortage, 917 
 
 on liability for freight, 970 
 
 on liability for demurrage, 970 
 
 as a waiver of breach of contract to transport, 345 
 
 a^ place of collision, as a release, 
 
 328 
 
 distinction between loss within and without exception, 872, 873 
 
 1095
 
 1u:m; iNDKx. 
 
 ACCIDENT. PAGE. 
 
 duty of carrier in case of, 330 
 
 lo sell perishable goods in discharge of lien for freight, 866 
 
 effect of, on duty to transport, 329, 330 
 as an excuse for delay, 261, 262, 321, 322 
 
 as an excuse for delivery in bad condition. 262 
 
 lire not within exemption from liability for, 178 
 
 ACQUIESCENCE. 
 
 in use of bill limiting liability, effect of, 120 
 ACTION. See also PitocKKUiNos. 
 
 right of, resting on common law principles, effect on of repeal of 
 
 statute, 1006 
 by third person on contract for his benefit, 957, 958-963 
 
 against state, suits against railroad commissioners. 1060 
 upon insurance policy, stipulation bv carrier for benefit of, as a 
 
 defense. ' 1011-1016 
 
 for the enforcement of orders of railway commissioners, 527 
 ACTION AGAINST CARRIER. 
 
 who may maintain, 1003, 1004, 1007 
 
 for loss of goods, 1003 et »(({. 
 
 when goods are sent to one for use of another, 1005 
 
 upon express contract in bill, 1006 
 
 for refusal to deliver before prepayment of charges, 846 
 
 right of consignor to maintain, 1003-1005 
 
 right of agent to maintain, 1005 
 
 in whose name brought, 1007, 1008 
 
 right of insurer to sue in name of insured, 1021 
 
 joinder of all owners of vehicle in, 1006 
 
 for collision, parties to, 1007 
 
 upon a custom, joinder of owners of vehicle in, 1006 
 
 right of, without tender of charges, 861. 1005 
 
 when liability as such appears to have terminated, . 1001 
 
 for breach of oral contract of shipment, recovery in, 1024 
 
 for conversion of goods by carrier, without paying freight, 860 
 
 on original contract, for failure to deliver, 1002 
 
 how brought, when there is special contract limiting liability, 1006 
 
 by insurer, recovery not limited to amount of policy, 1022 
 
 effect of failure to deny allegations of complaint, 1034 
 
 provisions of Interstate Commerce Act as to, 1060 
 
 for penalties, for delay, recovery for loss of wages in, 923 
 
 for refusal to deliver, defenses to, 922, 923 
 
 right of, when based on amount of freight not shown, 922 
 
 ACTION BY CARRIER. 
 
 right of, for loss of cargo, 1003 
 
 for injury to cargo, 360-363 
 
 for collision, right of owners to intervene, 1007 
 
 for freight charges, right of, 857 
 
 right to recoup damages on connecting line, 876 
 right to set off damages suffered on connecting line, 411, 875, 876 
 
 right to split up by decree for undisputed amount, 865 
 for demurrage, right to recover additional demurrage accruing after 
 
 filing original libel, 978 
 ACTIONS IN PERSONEM. 
 
 against owners of bridge for injury to vessel, 1046 
 ACTIONS IN REM. 
 
 against bridge for injury to vessel, 1046 
 
 against vessel for injury to bridge, 1047
 
 INDEX. 1097 
 
 ACT OF GOD. PAGE. 
 
 what constitutes, 158, 160 
 
 distinguished from inevitable accident, 13, 158! 160 
 
 •what included in 170, 174, 177, 178 
 
 exemption from liability for loss by, 159, 174 
 
 reasons for, 172, 173 
 
 in case of flood or storm, 13 
 
 in case of contract to transport within reasonable time, 21 
 
 in case of deviation, 312, 313 
 
 effect on, of failure to give notice of arrival or wrongful detention, 264 
 
 in case of nonperformance of imposed duty, 14 
 
 necessity of stipulation for, 159 
 
 as an excuse for delay, 321 
 
 duty of carrier to guard against injury by, 175 
 
 degree of care required, 15, 175, 176 
 
 liability for loss by, effect of intervention of human agency, 177 
 
 when contributed to by carrier's negligence, 11, 15, 173, 175 
 
 proximate and remote cause, 176, 177 
 
 when coupled with delay in delivery, 919 
 
 burden of proof of loss by, 187 
 
 of negligence contributing to, 178 
 
 ACT TO REGULATE COMMERCE. 
 
 See I-NiKHsiATic Commeiuk Act. 
 ACTS UNKNOWN TO SHIPOWNER. 
 
 liability ior, under limited liiibilily act, 1039 
 ADDITIONAL EXPENSE. 
 
 of ininspDrtatinn, !is an (■xeii'^e for delay, 331 
 ADEQUATE REMEDY AT LAW. 
 
 effect of, on cciuitublu remedy for enforcement of carrier's lien, 857 
 ADMIRALTY. 
 
 effect of slate statutes of limitation in, 870 
 
 when lien granted by local law will be recognized in, 1048 
 
 joinder of causes in, against master and to enforce lien on ship, 1049 
 
 jurisdiction in, in cases of tort, 1045 
 
 over injury to vessel by bridge, 1046-1048 
 
 over injury to vessel at wharf, 1046 
 
 over loss of storehouses by fire spreading from vessel, 1048 
 
 over injury to merchandise through neglect to repair wharf, 1049 
 
 locality of thing injured as a test of, 1045, 1048 
 
 wrong must have originated and been consummated on water, 1045, 1048 
 
 effect on, of seizures on land, 1048 
 
 effect on, of state statute creating lien for injuries by vessels, 1048 
 
 over matters of contract, 1045 
 
 dependent upon nature of contract, 1045 
 
 over collisions, _ 1045 
 
 over contracts of affreightment, 495, 1047 
 
 over contracts of marine insurance, 1047 
 
 right to file libel after commencement of suit for damages, 1049 
 
 not conferred by statutes, 1048 
 
 proof of kind of negligence under general charge in, 1049 
 
 damages in, apportionment of, 357 
 
 allowance ot interest, 357 
 for collision, 349, 357, 358 
 
 where two vessels mutually in fault injure a third, 356 
 
 for illegal capture, 358 
 
 fo? goods lost or destroyed, 357 
 
 where goods have no market value at place of shipment, 367
 
 1098 INUKX. 
 
 ADVANCEMENT. 'ao« 
 
 of freight charges, construction of provision for, 855 
 
 ADVANCES. 
 
 on bill of lading, lien for, 107 
 
 by consignee, right to preference for, IIH 
 
 bv insurer, ellect of as a payment, 1021, 103-' 
 
 parly making, chargeable with notice of contents of bill of lading. lOH 
 
 demand made on assurance of shipper as to couteuls of packages, lOi". 
 
 ADVERSE TITLE. 
 
 liability of carrier for resisting. 92*> 
 
 notice of to carrier, efTect of on liability, 926 
 
 right of carrier to reasonable time to examine, 927 
 
 affect of assertion after delivery, 927 
 
 ADVERSE WINDS. 
 
 as an excuse for dciiiy, 1*^" 
 
 AFFREIGHTMENT. 
 
 liability of vessel for breach of contract of, 871 
 
 by law of what place contract governed, 89:? 
 
 admiralty jurisdiction over contracts of, 1047 
 
 AGENCY. 
 
 of master, in sale of cargo from necessity, 867 
 
 of carrier, collecting price of goods carried, 90H 
 
 AGENTS. 
 
 power of, to bind principal. 108 
 includes everything usually necessary for accomplishment of its 
 
 object, 401 
 
 to bind principal under limited authority. 394 
 
 to assent to limitation of liability, 136, 137 
 
 to agree to carry within a limited time, 33il 
 
 to contract for transportation of definite quantity, 602 
 
 to agree for dififerent place of delivery after arrival, 88'J 
 
 to agree for delivery to third person, 907 
 
 notice to, of limitation, when binding, 137 
 
 bound by notice of limitation to principal, 137 
 
 liability of carrier for embezzlement by, 91<i 
 
 of shipper, power to agree that carrier shall have benefit of insurance 13(i 
 
 right of, to sue for loss of goods, 1005 
 
 ALE, BEER AND MINERAL WATER. 
 
 classification of, as freight, 557 
 AMOUNT INVESTED. 
 
 consideration of, in determining reasonableness of rates, 802 
 ANIMALS. See also Livestock. 
 
 liability of carrier for transportation of, 15 
 
 ANTI-TRUST ACT. 
 
 construction of, 457, 458, 480 
 validity of association of railroads for equal protection under, 443, 444, 480 
 application to carriers engaged in interstate and international com- 
 merce, 480 
 APPARENT GOOD ORDER AND CONDITION. 
 
 application of clause to casks in linen covers, 155 
 
 APPEALS. 
 
 in proceedings for limited liability, jurisdiction over, 1042 
 
 APPRAISEMENT. 
 
 effect of, on jurisdiction to allow reappraisement in proceeding to 
 
 limit liability, 62
 
 INDEX. 1099 
 
 ASSENT. P^^lf; 
 
 to limitation of liability, when inferred, ^ l-io 
 by acceptance of receipt, 127, 129, 133 
 
 by acceptance of bill under Georgia Code, 12o 
 
 presumption from acceptance of bill, 130 
 
 not presumed from acceptance of bill given after delivery, 134 
 
 effect of failure of shipper to sign receipt under Dakota statute, 128 
 
 a question of fact, 1^^ 
 
 when required to be alleged and proved, l'*' 
 
 to limitation in bill given after delivery, evidence necessary to estab- 
 lish, 134, 135 
 
 when presumed from previous course of dealing, loo 
 
 ASSIGNMENT. . . , , moft 
 
 of cause of action agamst carrier for damages, 1W» 
 
 ASSIGNMENT OF BILL OF LADING. 
 
 by consignee. . , . n iio 
 
 right of shipper under contract with carrier to sell, llo 
 
 written endorsement or transfer not necessary, 108 
 
 possession prima facie evidence of title, 108 
 
 efifect of endorsement without delivery, lOJ 
 
 effect of endorsement without authority, 108 
 
 necessity of words " order " or " assign," 110 
 
 words "order" or "assign " how treated, 111 
 
 rights of pledgee in case of, 10' 
 
 effect as construction, delivery of the goods, iO< , lUJ 
 
 as transfer of title, 1J|^ 
 
 when procured by fraud, jO^ 
 
 when made by one not the owner, 110 
 
 when goods were lost or stolen, 10b 
 
 when made after arrival of goods, 10» 
 
 on contract of carrier. 1-^0 
 
 ASSUMPTION OF RISK. , , ^ 7q 
 
 from fire, risk of carrier's negligence not included, (^ 
 
 effect of, on injury from defective truck, -o^ 
 
 validity as to defects caused by negligence, -od 
 
 AUTHORITY. ^ ... .. 
 
 to do act complained of, proof of, on prosecution for violation ot in 
 terstate commerce law, 
 AVERAGE CHARGES. See Freight Rates. 
 
 1090 
 
 BAD FAITH. 
 
 effect of, on'liability for misdelivery, 91o 
 
 BAGGAGE .(.r. 
 
 loss of. bv peril of the sea, , . . . , • * q^a 
 
 in union depot before delivery, liability of initial carrier for, rfS4 
 
 in interstate transit, liability for by what law governed, »»b 
 
 BAGGAGE AND MERCHANDISE. 
 
 brought into country by ferries, duty to report to custom officers, 516 
 
 BAGGAGE ROOM. . , , , ,. ,,«£, 
 
 a warehouse within meaning of bill, fixing place of delivery, 888 
 
 BANK ,BILLS. ^ ,. . ^ v ^t* .f 10^9 
 
 liability of shipowner for, under hmited hability act, iv^J
 
 liOO INDKX. 
 
 BARGES. PAOB. 
 
 not within limited liability act, 1040 
 BEACONS. 
 
 state regulation of, 486 
 BILGING. 
 
 from insuflicient tackle, not a i)eril of the sea, 165 
 BILLS OF LADING. 
 
 defined, 90 
 nature of, 141, WZ 
 the measure of the rights and liabilities of the parlies, "jr>, 392 
 
 acceptor bound by terras of, 130 
 constituent elements of, 105, 139 
 
 requisites of, to transfer title, 1005 
 
 what must be included in, 103 
 
 what description of cargo required in, 104 
 
 need not state chemical character of cargo, 104 
 
 what a sufficient showing of amount of freight, 921 
 effect of failure to insert name of steamer, under agreement that 
 
 first one passing should take goods, 323 
 how endorsees of are rendered liable for demurrage, 977, 978 
 distinguished from bills of exchange and promissory uotee, 902 
 twofold character of, 93, 299 
 form of, 90 
 a matter of agreement as between connecting lines, 677 
 right to make by parol, 90 
 stipulations varying law merchant as to, should be in writing, 95 
 need of uniformity in interstate commerce, 91 
 adopted by National Transportation Association, 91 
 adopted by New York Produce Exchange and Liverpool Ship- 
 owners Association, 91-93 
 by whom signed, 101 
 unsigned, when binding, 101 
 signature of, by shipmaster, 103 
 signed without authority, effect on, of endorsement and procuring 
 
 insuraiice on, 904 
 
 should always be required, 101 
 
 duty of shipmaster to give on receipt of goods, 103 
 
 effect of failure to give on liability for loss, 104 
 
 validity depends upon reception of goods, 137 
 
 of stipulations substituting law of another country, 150 
 
 assumption of risk of fittings of vessel by shipper, 22 
 
 effect of fraud and mistake upon, 99 
 
 eflect of change by carrier in place of delivery, 132 
 
 effect of agreement to pay for deficiency, 154 
 
 effect of issue by agent without authority, 136 
 
 presumption of authority of shipmaster to bind owners, 103 
 
 when contract takes effect, 137 
 
 contract to deliver dependent upon receipt, 107 
 
 cover goods subsequently delivered, 137 
 
 preference when several are issued, 136 
 
 when constituting contract for carriage beyond line of carrier, 369 
 
 right to limit liability in, of carrier, 102 
 
 to foreign ports, effect ou of limitation of liability, 529 
 
 in duplicate and triplicate, use of, 102 
 
 which set controls, 102 
 
 with draft attached, nature of, 111 
 
 presentment as notice of draft, 113
 
 INDEX. 1101 
 
 PAGE. 
 
 when holder entitled to delivery of goods, 112 
 
 holder deemed owner of goods, 112 
 
 right to recover goods of consignee, 112 
 
 effect of endorsement to one who discounts draft, 112 
 
 right of transferree to pledge, 112 
 
 right of consignee to preference for advances, 113 
 
 liability to holder of draft for delivery to consignee, 113 
 
 by what law governed, 894 
 
 construction of, 96, 103, 105, 100 
 
 written part controlling, 150 
 
 obligations implied by law, 96 
 
 duty to unload, 121 
 
 exemptions as to seaworthiness, 156 
 
 recital that goods are in apparent good condition, 299 
 
 provisions of, for delivery on paytnent of freight charges, 856 
 
 clause empowering master to land cargo if not called for, 857 
 
 effect of clause on back if intended to be struck out, 99 
 
 not changed by stamp on back, 966 
 
 when subject to local tariff rale, 921 
 
 option under provision for liability as warehouseman to retain 
 
 goods in car or store them, 999, 1000 
 effect of stipulation to store without notice in default of accept- 
 ance 969 
 Assignment of, see AssKiNMENT. 
 
 negotiability of 106, 108, 109, 901, 
 
 effect of statutes conferring, 110 
 
 effect of stamping non-negotiable, 909 
 
 assignment of non negotiable bills, 141 
 
 who are bona fide purchasers of, 104 
 
 endorsement of, when in duplicate or triplicate, 102 
 
 effect of acceptance of, without endorsement, 138 
 
 effect of delivery without assignment, 901 
 
 effect of delivery on conclusiveness of exemptions in, 151 
 
 effect of sending unindorsed to consignee with indorsed bill sent 
 
 to agent, 902 
 
 conclusiveness of, 94 
 
 as contracts, 93, 94, 301 
 
 as receipts, 93, 94 
 
 presumed to contain whole contract, 98 
 
 merger of prior contemporaneous agreement iu, 94, 103 
 
 parol evidence of contemporaneous collateral agreement, 98 
 
 extent of right to contradict by parol, 95, 300 
 
 implication in, not assailable by parol, 97 
 
 right to show injury, fraud, or deceit of carrier, 133 
 
 right to show that no goods were received, 138 
 
 right to contradict as to condition of goods, 299 
 
 as to route, 315 
 
 effect of silence of as to route, 97 
 
 duty of carrier under, in absence of exception, 102 
 
 liability under, when goods received are delivered, 105 
 
 when goods carried and delivered differ, 105 
 
 when property is destroyed in the hands of the consignor, 138 
 
 when issued before receipt of goods, 138 
 
 when shipper is estopped by, 71, 125 
 
 consignee and endorsee bound by, 133 
 
 as evidence of ownership, 106 
 
 01 contract of carriage, 102, 846
 
 1102 INDEX. 
 
 BILLS OF LADING— continued. pacjk. 
 
 against insurer, of liind and quantity of cargo, or amount of freight, 1033 
 
 as evidence when executed after delivery, 99 
 
 presumption of knowledge of contents from acceptance, 129 
 
 right of carrier to take up and hold as evidence, 923 
 
 creation of lien on ship by, ytt9 
 
 penalty for refusal to give in TexHM, 1(»4 
 
 BLANKET RATES. 
 
 validity of, 001. 728 
 
 BLOWING. 
 
 exemption from liability for, includes blowing of bilge water, 156 
 
 BONA FIDE PURCHASERS. 
 
 who are, of bills of lading, 104 
 
 persons paying for goods on faith of bill of lading, 1005 
 
 liability of, for goods delivered on fictitious bill of lading, 91tt 
 
 BONDS. 
 
 enforcement of, when extorted by ollicer under color of ollice, 963, 963 
 
 BOXED AND CRATED ARTICLES. 
 
 distinction between, in classitication of freight rates, 554 
 
 BRAKEMEN. 
 
 on trains, application of statute providing for, 17 
 BREACH OF CONTRACT BY SHIPPER. 
 
 as an excuse for delaj', 831 
 BREAKABLE GOODS. 
 
 liai)iiity of carrier for improper packing, 398 
 BREAKAGE. 
 
 no presumption of negligence from, 1032 
 BRIDGE COMPANY. 
 
 not a common carrier within Act to Regulate Commerce, 429 
 
 BRIDGES. 
 
 power of state to establish, 515 
 
 over navigable waters, concurrent jurisdiction of state and nation over, 496 
 
 over non-navigable streams, power of state to build and regulate, 494 
 
 over inland navigable stream, state regulation and construction of, 487 
 
 within a stale, power of Congress over, 491 
 
 between states as instruments of commerce, 502-504 
 
 power of Congress to construct and approve, 489-493 
 
 state power over, 492 
 
 right of state to fix tolls on, 507 
 
 power of stale to establish freight and passenger rates on, 502-507 
 
 tolls on must be reasonable, 507 
 
 injury to as a marine tort, 1047 
 
 injury to vessel by, jurisdiction in admiralty over, 1046, 1047 
 
 deemed property of railroad company occupying and using within 
 
 Interstate Commerce Act, 429 
 
 included in term railroad used in Interstate Commerce Act, 1057 
 BROKERS. 
 
 employed to sell cargo, liability of for freight, 852 
 
 BUOYS. 
 
 state regulation of, 486 
 BURDEN OF PROOF. 
 
 to discharge carriers for non-performance of contract, 966 
 
 of invalidity of contract, 707 
 
 of proper intent in forming combinations, 693
 
 I-NDEX. 1103 
 
 PAGE. 
 
 that contract is against public polic)', 473 
 
 of inability to furnish cars, 20 
 
 of delivery in good condition, 1030 
 
 of seaworthiness, 21, 191, 193 
 
 of consent to stowage on deck, 303, 304 
 
 of cause of loss of goods stowed below deck, 308 
 
 to justify delivery to agent, 985 
 
 of loss by act of God, 187 
 
 of loss by public enemy, 187 
 
 of loss by unavoidable casualty, 189 
 
 of loss by peril of the sea, 1028 
 
 of negligence contributing to loss by act of God, 178, 187-189 
 
 causing delay, what sufficient to shift, 323 
 
 causing loss within excepted causes, 45, 188, 189, 1028-1033 
 
 when shipper takes charge of livestock, 241, 271, 345 
 
 of modification of responsibility, 148, 187 
 
 of reasonableness of limitation, 181 
 
 to bring loss within exemption, 187, 836, 1027, 1029, 1080, 1031. et seg. 
 
 to establish freedom from fault for non-delivery, 1003 
 
 of unusual pressure of business, 1033 
 
 of proper eirort to meet unusual pressure, 1033 
 
 of notice of anticipated failure to meet unusual pressure, 1033 
 
 of liability of chilled beef to injury by delay, 328 
 
 of title of third person demanding goods of carrier, 933 
 
 of reasonableness of freight rates, 532, 590, 600-602 
 
 where no discrimination is alleged, 600, 602 
 
 when not fixed according to distance, 590 
 
 of exaction of unreasonable rates, 532 
 
 of unjust discrimination, 534, 781 
 
 to justify inequality of rates, 652 
 
 to justify discrimination in rates, 781 
 
 as to effect of competition with water transportation, 659 
 
 of dissimilar circumstances and conditions, 601, 607, 647 
 
 between locations, 717 
 
 BUSINESS. 
 
 power of Interstate Commerce Commission to manage, 533 
 
 BUTTER. 
 
 application of ice to, not excused by sealing of car, 310 
 
 c. 
 
 CANAL BOATS. 
 
 not within limited liability act, 1040 
 
 when not common carriers, 918 
 
 liability of for sale of part of cargo by captain, 918 
 CANAL COMPANIES. 
 
 validity of combinations between, to prevent competition, 692 
 
 CANALS. 
 
 within states, state power over, 494 
 
 CARE OF GOODS. 
 
 degree required during delay, 334-336 
 
 CARGO. 
 
 stowage of, when bill of lading is silent, 300, 301 
 application of general rule as to packing and stowing below deck, 299 
 
 stowage of, below deck, duty of master as to, 304. 306
 
 1104 INDEX. 
 
 CARGO— continued. pack. 
 
 liability for breach of, 300 
 
 burden of proof as to cause of loss in case of, 30;j 
 
 sale of, what necessity will warrant, 867 
 
 right of, when damaged, 872 
 
 necessity for, how determined, 867 
 
 injury to by water, liability of charterer, 2o 
 
 from escape of steam, liability of owner of vessel. 28 
 
 from defective bridge, liability of vessel, 23 
 
 presumption from injury from leak, 22 
 
 value of, how estimated, 362, 3G;:5 
 
 allowance of interest upon, 363 
 
 allowance of prospective profits, 3fi.S 
 
 riglit to proceed against carrier where loss caused by act of another, 362 
 
 right of carrier to recover for loss or injury to, 360, 361 
 
 grounds of recovery against wrongdoer, 361 
 
 wrongdoer not bound to imjuire as to relative equities in, 363 
 
 effect on liability of wrongdoer to owner, 301. 362 
 
 right of owner to intervene, 362 
 CARLOAD. 
 
 construction of in statute fixing maximum freight rate, 637, 85o 
 
 CARLOAD LOTS. 
 
 classititiUion of freight rates as to, 554 
 
 (liscriminalion as to, 561 
 CARRIAGE BEYOND ROUTE. 
 
 right of carrier to select agency, 318 
 
 contract for, wliat constitutes, 405 
 receipt "to forward," 370, 393. 396, 397 
 
 contract for througli rate, 374, 396 
 
 effect of advertising through line, 369, 395 
 
 effect of payment of through rate, 368, 400 
 
 effect of continuous passage, 36H 
 
 effect of taking guaranty of through charges, 369, 897 
 
 effect of guaranty of rate beyond line, 398 
 effect of acceptaDce of goods marked to such point, 
 
 364, 365, 369, 374. 377, 400 
 
 effect of receipt naming such place of delivery, 369, 371 
 
 effect of receipt of through freight, 371, 374 
 
 effect of receipt requiring notice at such place, 369 
 
 effect of agreement to deliver in good order as addressed, 398 
 right of carrier to make, 380, 881, 894 
 
 power of station agent to make, 400 
 
 distinction between power of general and local agent as to, 402 
 
 liability on, 397, 398 
 
 effect of, 406, 415 
 
 necessity of express agreement, 368, 371 
 
 must be established by clear and satisfactory evidence, 370 
 
 evidence of power of agent as to, 402 
 CARRIER AS SHIPPER. 
 
 discrimination by, in favor of self, 786, 836 et seq. 
 
 selling for less than cost of production and transportation, 820 et seq. 
 
 how ascertained, 838, 839 
 
 difficulty in applying definite rules to, 842 
 
 duty of to give all, including self, proportional benefit of its services, 
 
 786 et seq. 
 
 when amount charged self for transportation is immaterial, 800, 801 
 
 right of to restrict production to get better price, ISS et aeq.
 
 INDEX. 1105 
 
 PAGE. 
 
 to establish rates which will keep price down, 844 
 
 assumption as to cost of transportation for self, 842 
 efifect on freight rates of rate fixed by carrier as to its own property, 842 
 
 restrictions in Pennsylvania constitution as to, 799 
 
 power of Interstate Commerce Commission, to adjust operations of 
 
 seller, 805 
 
 to determine what price must be paid to pay for freights, 804 
 
 efifect of carrier being interested in business of shipper, 802 
 CARRIERS BY WATER. See also Vessels. 
 
 duty of to furnish equipped and seaworthy vessel, 21 
 
 to employ competent officers and crews, 24 
 
 to employ sufficient number of sailors, 24 
 
 contract of, 96t> 
 
 excuses for noD-performance, 96(5 
 
 liability of, for acts of master or agent, 172 
 
 as insurers of merchandise, 12 
 
 right of, to contract against liability for negligence, 34, 35 
 
 in France, Italy, Germany and Holland, 35 
 
 when exempt from liability for damage by lard in leaking casks. 305 
 delivery bj', see Delivery. 
 CARRIERS OF INTERSTATE COMMERCE. 
 
 amenability of, to state rules and regulations, 513, 514 
 
 liability of under state laws, 513 
 
 CARRIERS OF PASSENGERS. 
 
 nature of liability of, 11 
 
 CARS. 
 
 duly of carrier to furnish, 16 
 in times of special pressure, 19 
 regular customers not entitled to preference, 19 
 adaptability to intended use, 17 
 as to safety of, 328-231 
 liability for not relieved by knowledge of shipper of unsafety, 232 
 time of delivery to shipper, 20 
 reasonableness of rule requiring shipper to load according to stations, 884 
 excuses for failure to furnish, 19 
 because more profitably used elsewhere, 19 
 notice of inability to obtain, 779 
 burden of proof of inability to furnish, 20 
 liability for refusal to furnish. 230 
 penalties for refusal to furnish on demand, 230 
 contract to furnish, what constitutes, 265 
 authority of station agent to bind company, 20, 21, 265 
 validity of stipulation releasing from liability for breach of, 20 
 by correspondence, effect on of promise to make contract at speci- 
 fied time, 265 
 on a certain day, what a sufficient performance of, 266 
 excuses for breach of, 265 
 unavoidable accident as excuse for breach, 20 
 heavj' traffic as excuse for breach, 20 
 effect of carrier having none, 265 
 liability for breach of, 265 
 not abrogated by statute imposing penalty, 21 
 liability for breach of to carry by a certain time, 266 
 liability for delay where cars contracted for were given to another, 265 
 right to contract for exclusive use of, 777 
 
 70
 
 1106 INDEX. 
 
 CARS— continued. '•AOt. 
 
 right of carrier, to obtain from shipper, 778 
 
 to obtain from other carriers, 778 
 
 effect of acceptance of those belonging to shipper, 779 
 
 measure of damages for use of when not belonging to railways, 430 
 
 interchange of by connecting lines a matter of agreement, 678 
 
 presumption of safety of from receipt by connecting carrier, 426 
 
 effect of statutory requirement to receive from connecting line, 426 
 
 constitutionality of reciuirement of transfer witiiout unloading, 426 
 reasonableness of rule requiring shipper to clean and repair, 17, 230, 884 
 
 CARTAGE. See also Piiee Cartage. 
 
 to station, right of carrier to pay for, 781 
 
 effect of payment of part of as an unjust discrimination, 779 
 
 CARTMEN. 
 
 when common carriers, 3 
 
 CASE OR CONTROVERSY. 
 
 what constitutes, within constitutional provision as to judicial power, 
 
 1068. 1069, 1074, 1075 
 
 C. O. D. See also Collection by Carkiek. 
 
 signification of, 115, 116 
 
 effect of mark on goods when not in course of carrier's business, 116 
 
 CATTLE. 
 
 liability of steamship for when carried on deck, 230 
 contract for shipment of, implies agreement for sufficient ventilation, 240 
 
 freight rales as to, 596 
 
 CAUSE OF ACTION. 
 
 again.st carrier for damages, assignability of, 1008 
 
 CAUSE OF LOSS. 
 
 effect of union of several causes within exemption, 172 
 
 CELERY. 
 
 classification of as freight, .^61 
 
 CHARACTER AND COMMODITY. 
 
 consideration of in determining undue preference, 733 
 CHARACTER AND MAKE-UP OF ROADS. 
 
 consideration of in determining existence of undue preference, 729 
 CHARTERER. 
 
 when responsible for conduct of master and marines, 26 
 
 liability of for miscarriage of master or agent, 966 
 
 for embezzlement by crew in Massachusetts, 26 
 
 for insufficient cargo, 305 
 
 for bad stowage, 309 
 
 obligation of to unload vessel, when it begins, 869 
 
 CHARTER PARTY. 
 
 construction of provisions of, 869 
 
 for payment of freight, 855 
 
 as to reporting arrival. 870 
 
 effects of provision for lien upon liability of charterers, 864 
 
 for advancement by charterer, 855 
 
 CHARTERS. 
 
 of railroad companies, when contracts which can not be affected by 
 
 subsequent legislation, 518, 519 
 
 not contracts impaired by regulation of rates, 509, 542 
 CHATTLE MORTGAGE. 
 
 demand under, right of carrier to resist, 929, 930-934
 
 INDEX. 1107 
 
 CHILLED BEEF. page, 
 
 burden of proof of liability to injury by delay, 328 
 CHLORIDES. 
 
 liability for improper stowage of, when sliipped in barrels instead 
 
 of carboys, 309 
 CLASSIFICATION OF FREIGHT. 
 
 present methods of, 791 
 
 validity of, 551 
 
 how made, • 551 et seq. 
 under Interstate Commerce Act, 542, 551, 791e< seq, 
 
 requirements of Interstate Commerce Act as to, 791 
 
 what considered in making, 792 
 
 must be reasonable, 558, 500 
 
 what considered in determining reasonableness, 548, 560 
 
 unreasonableness or injustice of, how shown, 548 
 
 rule of as to similar articles, 549, 570 
 
 grounds for discrimination, 561 
 
 reasonableness of distinction between different articles, 555, 556 
 
 right to make differences for business motives, 549, 557 
 of anthracite and bituminous coal differently, 791 et seq. 
 
 discrimination between corn and its direct products, 561 
 
 use of as a devise to effect unjust discrimination, 791 
 
 consideration of shipper's representations in, 552, 557 
 
 right to base it upon description of article for purpose of sale, 558 
 
 right to promise different rates, 557 
 
 discrimination in, a question of fact, 565 
 
 reasonableness of in interstate traffic, 568 
 
 effect of, when improper, upon right of carriers, 556 
 
 power of court over, 556 
 
 power of Interstate Commerce Commission to revise or correct, 549 
 proceedings to correct. See Pkockduke. 
 CLASSIFICATION OF RAILROADS. 
 
 effect on of provision for due process of law, . 514 
 
 for establishing rales, effect of unequal operation, 514 
 
 legislative right to make distinctions based on locality, 515 
 
 reasonableness of when based upon amount of business per mile, 515 
 
 when based upon gross earnings, 515 
 
 according to length, 509 
 
 according to lengtli, constitutionality of, 509 
 
 CLERICAL AGENTS. 
 
 punishment of for violation of Interstate Commerce Act, 1090 
 
 CLOSE OF NAVIGATION. 
 
 effect of, when voyage is interrupted by, 853 
 
 COAL. 
 
 classification of, effect of uncertainty as to cost of mining, 812, 813 
 difference in rate charged for antliiacite and bituminous coal, 787 et seq. 
 
 different rate for common coal and gas coal, 559 
 
 COCKROACHES. 
 
 damage by, liability of carrier for, 168 
 
 COLD WEATHER. 
 
 liability for loss from negligence co-operating with, 309 
 COLLATERAL INQUIRIES. 
 
 not determined by Interstate Commerce Commission, 533 
 COLLECTION BY CARRIER. See also C. O. D. 
 
 of price of goods carried, 906 
 
 application of law of agency as to, 906 
 1
 
 1108 INDEX. 
 
 COLLECTION BY CARRIER— continued. paqk. 
 
 right to require carrier collect, 116 
 
 of carrier as to, 906 
 
 to f^ive reasonable time to pay, 114 
 
 to allow inspection, IIH 
 
 to recover goods when obtained wi;!;out payment, 116 
 
 to return goods on refusal to receive, 114 
 
 to return money paid in case of fraud, ll') 
 
 duty of carrier to give notice of non-payment, 114 
 
 relief from liability by demand and tender. 906 
 
 termination of liability by notice of non-payment, 114 
 
 effect of allowing inspection before acceptance, 906 
 
 liability for refusal to permit inspection, or give time to raise money, 906 
 
 for delivery without payment, 115 
 
 for loss by fire, how affected by, ll-"! 
 
 for negligent failure to collect note taken in payment, 115 
 
 when bank fails before presentment of check takin in payment, llo 
 
 acceptance of conditional payment, ratification by consignor, ll'i 
 
 right of consignor to sue carrier for breach of agreement, 116 
 
 defenses to action for delivery without payment, 907 
 
 COLLISIONS. 
 
 not the act of God, 161 
 
 when inevitable accident, 16o 
 
 when a peril of the sea, 164, 169 
 
 covered by insurance against perils of the sea, I0()t> 
 
 when included in dangers of navigation, 164 
 
 diligence required in preventing, 849, 351 
 
 observance of rules of navigation to avoid, 351, 35ii 
 
 duty of vessel when unavoidable, 351 
 
 duty of one vessel in case of violation of rules by the other, 352 
 
 liability for, 156, 348 
 
 when owner is his own freigiiter, 856, 1040 
 
 when caused by criminal act of stranger, 327 
 
 for fault not contributing to, 352 
 
 when directly contributed to by stopping vessel in accordance with 
 
 rules of navigation, 351 
 when fixed by disregard of rules of navigation, 351 
 for failure to examine cargo after, 173 
 injury to third vessel by, 1023 
 where helm became unmanageable after approaching in an un- 
 usual manner, 351 
 vessel crossing course of swifter vessel, 352 
 not affected by error in extremis, 353 
 limitation, when both vessels were in fault, 62 
 limitation of, after vessel is raised and repaired, 61 
 construction of exemptions from, 156 
 under limited liability act, 60, 140, 1039 
 rule of division of damages not applicable, injury to third vessel, 1023 
 between native and foreign vessel, application of limited liability 
 
 act, 59 
 
 responsibility of tug for, 354, 355 
 
 joint liability for when lug and tow participate in navigation, 356 
 
 liability of tow for when not following course of tug, 354 
 
 responsibility for as between tug familiar with course and foreign 
 
 steamer, 354 
 with wreck, liability of vessel for, 356 
 liability for when port authorities undertake to indicate her posi- 
 tion' 356
 
 INDEX, 
 
 1109 
 
 PAGE. 
 
 between sailing vessels, mutual fault, ,.,.,• r q« 
 
 by canal boat, by other boats driving against her, liability lor, ia» 
 damages for. See Damages. 
 
 jurisdiction in admiralty over, ^^ 
 
 recovery for in admiralty when both are m fault, ^ 
 
 parties to actions for, }-*^ 
 
 right of consignee to sustain libel for, jW^ 
 
 right of carrier to recover for against wrongdoer, 1UU7 
 
 right of recovery of owner of cargo against shipowners, d49, lU^p 
 
 evidence as to cause of, ^^ 
 
 not limited to the immediate cause, ^^y 
 
 as an excuse for delay, ^'^' f^° 
 
 effect of acceptance of goods at place of, 2«q 
 
 allowance of demurrage for detention for repairs, »^» 
 
 lien for on cargo of offending vessel, oOb 
 
 right to appropriate cargo to equalize loss between vessels, lU4b 
 abandonment of freight because of, where owner is his own 
 
 freighter, 1"*" 
 
 COLORADO. J . t 
 
 constitutional and .statutory provisions relating to discrimination ot 
 
 carriers, ^^^' ^^« 
 
 COLORBLIND PERSONS. , , , rioo 
 
 validity of imposition of tine for employment of on railroads, a-i^ 
 
 COMBINATIONS. ^ ... „eQ . .,„ 
 
 between competing carriers, validity of, ^^^'S in«n 
 
 provisions of Interstate Commerce Act as to, ,.i ro'a S 
 
 to control and suppress competition, invalidity of, 43o-438, 442, ^^^-^^^ 
 
 at common law, ... 
 
 when nltra vires, ™' ^^j 
 
 validity of agreements based upon, o«". o»^ 
 
 right to enjoin execution of, Aon ftQi 
 
 when interstate traffic involved, o^"' ^»i 
 
 test of validity. ,. , , .^ h^^^ ' fifi^ 
 
 general principles relating to, not applicable to railroads, bbe 
 
 cases holding general rule distinguished, 699, 699 note 
 
 public policy as to, , , . ai^ 4sn 
 
 .}\Au^r r^t fr>r AQtnhliflhmftnt. of reasonable rates, 44d, 4DU 
 
 validity of, for establishment of reasonable rates, 443. 480 
 
 to control and maintain prices, **^*' *^^' **^" 
 
 to promote each other's interes 
 to confine traffic to particular i 
 for division of territory and traffic, . J^^ 
 
 to promole"*each Other's interest by mutual influence, 694 
 
 to confine traffic to particular roads, *^} 
 
 effect of right of withdrawal on, 
 effect of imnuinity from, punishment for failure to obey regulations, 690 
 
 for charging a certain rate and division of net earnings, 
 
 690 
 
 failure to show excessive charges, 
 
 between carriers, presumption of illegality, **5o, un- 
 
 burden of proof of intent, to prevent ruinous competition. by- 
 
 estoppel to deny validity of. by retention of its fruits, 695, 701, 70^ 
 
 when relief will be granted to party to, '^-. 'V^ 
 
 right to discovery in proceeding for accounting for prohts of, 704, 7Ua 
 
 COMMERCIAL CONDITIONS. 
 
 effect of, on right of localities to equal rates, '^" 
 
 COMITY. ogts 
 
 application of, to control of carriers.
 
 COMMERCE. P*a». 
 
 what constitutes, 483 
 
 defined as intercourse, 503 
 
 what included in, 1009 
 
 transportation essential to, 482 
 
 regulation of, 481 el neq. 
 
 what constitutes, 482, 505 
 
 requirement to furnish double decked cars for sheep, 228 
 
 disciualitication of color blind persons from certain services en 
 
 railroads. 522 
 
 power of Congress as to, 481 et seq. 850, 1009 
 
 exclusiveness of. " 482, 485, 4y0, 497 
 
 how exercised before Interstate Commerce Act, 849 
 
 power of states as to, 482 e! seq. 
 
 limited to local matters, 497 
 
 validity of state laws incidentally affecting, 509 
 
 state taxation of, 497 
 
 when jurisdiction of state and nation over, is concurrent, 496, 497 
 
 effect of non action by Congress, 496, 523 
 
 effect of action by Congress, 496 
 
 when non action of Congress indicates its freedom from state 
 
 burdens, 502 
 
 effect of action by Congress on previous action by state, 489, 492 
 
 amone the states, power of Congress to regulate, 849 
 COMMERCIAL CONTRACTS. 
 
 power of state to provide form of, 495 
 COMMERCIAL INTERCOURSE. 
 
 included in commerce. 1069 
 COMMITTEE ON RAILROAD TRANSPORTATION. 
 
 contract for carriage of livestock adopted by, 249, 250, 251, 252, 
 
 COMMON CARRIERS. 
 
 who are, 1, 2 
 within Interstate Commerce Act, 5 
 regularity of trips as a test, 3 
 nature of employment, 1 
 how constituted private carriers or bailees for hire, 1 
 protection of, under constitutional provisions for regulation of com- 
 merce, 981 
 when carrier becomes warehouseman, 981 
 right of, to donate services, 521 
 
 to insure goods, see Insurance. 
 duties of, see Duties of Cakkier. 
 liability of, see Liability. 
 COMMON ARRANGEMENT. 
 
 between connecting carriers, what constitutes assent to, 397 
 
 COMMON ARRANGEMENT FOR CONTINUOUS CARRIAGE. 
 
 what constitutes, 681 
 
 assent to, by receipt of goods shipped under through bills, 681 
 
 COMMON CONTROL OR ARRANGEMENT. 
 
 construction of Interstate Commerce Act as to, 681 
 COMPENSATION. 
 
 of carrier, right to charge reasonable rate, 762 
 
 must be reasonable, but need not be equal, 744, 745 
 
 in proportion to risk assumed, 212 
 
 how secured, 571 
 
 right to demand it in advance, 571
 
 INDKX. 11 il 
 
 COMPETING LINES. page. 
 
 what constitutes, 689, 695 
 
 validity of purchase of, 440, 441 
 
 invalidity of combinations between and promises founded on, 443 
 
 judicial notice as to, 
 
 689 
 
 COMPETITION. 
 
 purpose of Interstate Commerce Act as to, 626, 688, 774 
 
 what is deemed legitimate, 666 
 
 must be based upon actual compliance with law, 627 
 
 legality of, as affecting rates, how determined, 626 
 
 right of railroads to acquire lands for prevention of, 439 
 
 effect of, on public interest, 696 
 
 validity of combinations in restraint of, 388 et seg. 431 et seq. 462 
 
 determined by reasonableness of, 465^ 467 
 
 cases holding restrictions invalid, distinguished and explained, 461 
 
 distinction between merchants and railroad companies as to, 467, 468 
 
 effect of incidental restriction upon, 444, 480 
 
 right to contract for prevention of, when ruinous, 643 
 
 to make arrangements with shipper when it takes business from 
 
 others. '^^ 
 
 to equalize advantages and disadvantages by making rates, 629 
 
 effect of, on right to change rates, 613, 623, 636, 637, 659 
 
 consideration of dormant facilities for, in fixing rates, 664 
 
 when required to be determined by the Commission, 632 
 
 extent of right to reduce, 666 
 
 restrictions upon right to reduce. 625, 626 
 
 on richt to charge more for short than for long haul, 
 
 ^ 620, 621, 634, 651, 653 
 
 at termini, on right to lower rate for long haul, 633 
 
 on right to maintain higher rate at intermediate points, 666, 667 
 
 on right to make special lates, 659 
 
 on classification of freight, 55 < 
 
 on alleged undue preference, 614 
 
 when it constitutes a special case, o*o 
 in rare and peculiar cases, 621, b^d 
 
 right of carrier to determine what are, 62d 
 
 does not constitute dissimilar circumstances and conditions, 62b 
 when doubt as to similarity of circumstances and conditions 
 
 exists 
 
 on road'as a standard for rates on another road, 637 
 
 effect of restriction by, on right to compel reduction by other roads, 7dU 
 
 between markets, con.sideration of, in establishment of rates, 7^7 
 
 effect of on discrimination between short and long hauls, b&l 
 
 1 right to determine existence of similar conditions, 628 
 
 does not constitute dissimilar circumstances and conditions, 6^9 
 
 absence of as a reason for departure from long and short haul rule, 651 
 with carrier not subject to Act, effect of, on^jte|,^^ ^^^ ^^^^ ^^^ ^^ ^^^ 
 
 with water carriers, as a ground for changing rates, 636, 658, 659, 660, 661 
 
 extent of right to reduce because of, o^y 
 
 as an excuse for charging less than class rate, oDrf 
 
 as a ground for charging less rate for long haul, 621 , bj5, biyi 
 
 effect of on right to charge more for short haul, b51 bbl 
 
 on right to charge more between intermediate points, bb2, bb4, bbo 
 
 distinct lines having joint through rates, oo^ 
 
 on rates for goods which cannot be extensively carried by water, bbl
 
 1112 INDEX. 
 
 COMPETITION— continued. PAor. 
 
 as a dissimilar coudition, (364 
 
 reasonableness of rates authorized by, C")?, tt.'iH 
 
 method of reduction of rates because of, 661 
 
 burden of proof of effect of, 559 
 
 with combined water and rail transportation, effect of on riglit to 
 
 change rates, 658 
 
 when greater charge for short distance not justitied by, 663 
 
 with railroads within state, as a ground for charging less for long 
 
 haul, 621, 625 
 with foreign railroads, as a ground for charging less for long haul, 621, 62.'> 
 between termini, effect of, on amount of rates between intermediate 
 
 places, 660, 66(i 
 
 between straight road and circuitous one, effect on rates, 622 
 between roads leading to different markets, effect of on rates, 622, 62h 
 
 with shorter line, effect of on right to reduce rates, 654 
 
 effect of, on similarity of circumstances, 654 
 with carriers from different places, running to same market, effect of, 
 
 on rates, 62b 
 
 consideration of, in determining reasonableness of rate, 73:^ 
 
 in determining existence of undue preference, 733 
 COMPETITIVE COMMODITIES. 
 
 estiibJisluDcnt of froiglit rules for, 652, 553 
 COMPLAINANTS. 
 
 before Interstate Commerce Commission, need not have pecuniary 
 
 interest, 582 
 
 COMPLAINT. 
 
 against common carrier, allegations necessary, 271 
 
 requisites of, for overcharge, 877 
 
 in proceeding for discrimination between long and sliort hauls, 648 
 
 dismissal as against carrier sharing in low charges, 648, 651 
 
 before Interstate Commerce Commission, by whom made, 532 
 
 reasonable ground for investigation must appear, 582 
 
 course adopted when made for retaliation, 533 
 
 dismissal upon change of rates before hearing, 532 
 
 against classification committee, offending carriers should be made 
 
 parties, 549, 550 
 
 COMPROMISE. 
 
 effect on, of mistake as to cause of loss, 918 
 CONCEALMENT. 
 
 as to value of goods, effect on liability of carrier, 212, 213 
 
 stipulation for additional freight upon discovery, 217 
 
 CONDITIONAL SALES. 
 
 effect of tiling contract as notice to carrier, 898 
 
 CONDITION OF GOODS. 
 
 conclusiveness of bill of lading as to, 94 
 
 CONFISCATION. 
 
 property shipped in violation of rules or of law, 872 
 
 as an excuse for non-delivery, 937 
 
 CONGRESS. 
 
 power of, to regulate commerce, 481, et seq. 1070, 1072 
 
 extent of, 490, 850 
 
 right of judiciary to inquire into exercise of, 1073 
 
 among the states, 849
 
 INDEX. 1113 
 
 PAGE. 
 
 to regulate internal commerce, 495, 508, 509, 510 
 
 to authorize a business within a state, 495 
 
 to interfere with state regulations, 511 
 
 when it prevails over police power, 489 
 
 to create corporations, 488 
 
 to exercise right of eminent domain, 489 
 
 to construct highways from state to state, 488 
 
 to authorize construction of railroads across states, 492 
 
 of railroads across territories, 493 
 
 to construct and approve bridges between states, 489, 491, 490, 492 
 
 over bridges within a state, 491 
 
 to improve navigation of rivers, 489 
 
 over ferries, . 516 
 to regulate navigation on high seas between ports in same state, 547, 52« 
 
 to authorize inquiry into private affairs, 1077 
 
 to establish and confer authority on adrainislrative bodies, 1072 
 
 over jurisdiction of Federal courts, 1074 
 
 to assign duties to courts not of a judicial nature, 1080-1084 
 
 CONNECTICUT STATUTES. 
 
 as to rates on loiiir and >hort liauls, construction of, 644 
 
 CONNECTING CARRIERS. See also Initial Carriers, Intermedi- 
 ate CAUK1KK:^. 
 
 rights and duties of as between themselves, rfW 
 
 right of. to make arrangements with respect to through traflic, 677, 678 
 to make joint contract for transportation, 411 
 
 through rates by, dependent upon agreement, 424 
 
 what constitutes an arrangement between, under Interstate Commerce 
 
 Act 
 nrcvisions affecting connections and prohibiting combinations, con- 
 
 ^ structionof. ^^io */?o 
 
 ai'-ency of one for another, d»-i, 41<J 
 
 as agent of owner while holding goods for delivery to succeedmg 
 
 carriers, ^ 
 
 no privity of contract with shipper, u « ^ 
 
 estoppel of, to deny authority of initial carrier to fix rate by offer to 
 
 accept it, . ~~^ 
 
 right of, to refuse to receive or deliver freight, oiv 
 
 to refuse to receive damaged goods, 4^^ 
 
 to refuse to receive unless charges are prepaid, ^»y 
 
 effect of refusal to receive, **«»- J«^ 
 
 to convey without prepayment, , . -, , »u „ 47n fi^u 
 
 to charge local rates on business tendered to it by another, 470 67y 
 
 to benefit of contract of initial carrier. *" o^^ 
 
 when not bound by contract of initial carrier, ^oo 
 
 ratification of original contract, what constitutes, _ ^ y-* 
 
 effect of receipt of goods by, as an adoption of initial carrier^^^ ^^^ 
 contract, .^~' .01 
 
 to connect road with that of another, *-'. *o^ 
 
 to require same facilities given to another, ' ai^ 
 
 to refuse to furnish facilities under Interstate Commerce Act, 417 
 
 application of requirement to officers and employes, 4~d 
 
 to same traffic arrangement made with another, 4^^ 
 
 to compel allowance of interchange of traffic at a new point, 421, 4^2 
 to compel through traffic arrangements, . , ^ -i- 
 
 to compel traffic arrangements between, when no terminal facili- 
 ties exist, 
 
 t
 
 1114 INDKX. 
 
 CONNECTING CARRIERS— continued. paok. 
 
 lo require adoption of tlirough rates. 677, 71ti 
 
 to require receipt of through cars without transfer, 407, 421, 4'J8, 711, 7i:5 
 
 statutory requirements as to, 426, 427 
 
 constitutionality of requirement, 426 
 
 to require reception of througli passengers, 428, 711 
 
 to terminate arrangement for joint traffic, 415, 422 
 
 to discontinue use of facilities, 423 
 
 to lease terminal point of track so as to defeat ingress, 427 
 
 to terminate arrangement with one and form one with another, 415, 416 
 
 to agree that liability shall extend over whole route, 370 
 
 right to limit liability to line, 264, 292, 376 et seq.. 392 
 
 of each of several independent companies. 878 
 
 ellect of statutory prohibition against, 880 
 
 duty of, to collect tariff rates adopted under Interstate Commerce Act, 40S» 
 
 to pay each other's charges, 670, 864 
 
 as to division of charges collected, 409, 410 
 
 apportionment of losses between, a matter of agreement. 677 
 
 to carry to destination, 412 
 
 duty of. as to delivery, see Dklivkuy iiy Caukiek. 
 
 obligation of, under Interstate Commerce Act, to all connecting lines, 
 
 416, 417 
 liability of, 189. 867, 369, 370, 372-374, 386, 412 
 
 when it commences, 384 
 
 when joint, 413-415 
 
 when joint and several, 411, 412 
 
 joint liability of, how established, 4l;i 
 
 not liable as partners, 259 
 
 when goods are received in bad condition, 36n 
 
 when contract of transportation was invalid, 369, 406 
 
 for goods never received, 139 
 
 for refusal to receive goods from initial carrier, 261 
 
 for failure to deliver, on tender of less than the schedule rate, 407, 408 
 for excessive charges over amount stated in bill of lading, 309 
 
 effect on agreement to advance charges and collect, 37H 
 
 for rates made by another, 409 
 
 for failure to communicate instructions, 392 
 
 for loss or injury on connecting line, 71, 184, 264, 329, 365. 400, 404, 414 
 under statute requiring one road to carry freight of another con- 
 necting road, 415 
 for safe delivery of goods procured beyond line, 381 
 beyond line, dependent upon contract, 375 
 cases holding the English rule distinguished and explained, 375 
 assumption of, beyond line, how released, 382 
 statutes imposing, for whole carriage upon each carrier, constitu- 
 tionality of, 372 
 construction of, 372, 373 
 application to interstate and foreign transportation, 372 
 for delay on connecting lines, 329, 374, 406 
 for delay when no contract relation exists with initial carrier, 373 
 in tort for unreasonable delay, 400 
 liability for loss of goods while awaiting unloading, 388 
 for injury to goods held to await payment for charges, 408 
 for loss of car of initial carrier, 429 
 for mileage on foreign cars, 429 
 not affected by fact that defective car causing injury belonged to 
 
 another, 406 
 
 limitation of liability bj', what constitutes, 364
 
 INDEX. 1115 
 
 PAGE. 
 
 to own lines, what constitutes, 378 
 
 form of, 380 
 
 application of, to perishable property, 379 
 
 validity and reasonableness of, 343, 379 
 
 effect of, on through bill of lading, 529 
 
 effect of delivery of freight at terminus, 379 
 
 effect of, under English^Railway & Canal Traffic Act, 259 
 
 by carriers of livestock, 257, 260 
 discrimination against, see Discrimination. 
 
 lien of, for freight charges, 259, 862 
 
 for charges paid to initial carrier, 407, 408, 864 
 
 when initial carrier disregards instructions, 318 
 
 when possession is obtained wrongfully, 319 
 
 where they exceed guaranteed rate, 864 
 
 when goods were to be sent by another route, 859 
 
 agreement for use of each other's tracks, rights under, how measured, 424 
 
 effect of ratification of, when unauthorized, 424 
 
 right to assign or sublet, 424 
 
 evidence of partnership between, 413 
 
 right of one to give evidence of negligence of another, 413 
 
 storage by, in depot, not warehousing, 387 
 
 effect on, of statute requiring surrender of goods upon payment of 
 
 specified charges, 864 
 
 right of shipper to withdraw goods at end of first line, 411 
 
 to sue, ^^^'in?i~ 
 
 on contracts between, l*^"' 
 
 to recoup damages against subsequent carrier's claim for freight, 411 
 
 CONNECTING LINES. 
 
 what constitutes, ']] 
 effect of intervention of terminal system owned by another, 4>i», ai 
 
 what constitutes assent to common arrangement, 397 
 
 carriage over, how treated, "^' 
 discrimination over, see Discrimination. 
 obstruction of, as an excuse for delay, 
 knowledge of obstruction on, as an excuse for delay, 
 effect of omission to name point of connection in receipt, 
 rights of parties, by what law governed, 
 
 CONSIDERATION. 
 
 for contract of carriage, necessity of proof of, to recover on, 'in 
 
 for contract exempting from liability for negligence, 54 
 for storage by carrier after arrival, 9oo. ^^'^' ^^* 
 
 CONSIGNEE. 
 
 contract of, to pay freight, ,. w. ?^n 
 
 when bound by stipulation exempting carrier from liability, l/u 
 
 accepting goods, bound by bill of lading, idd 
 
 presumed to be owner of goods, lOUO 
 
 right of carrier to treat as owner, inn4 
 
 evidence of ownership of, '■rfZ 
 
 with notice of draft, not an innocent purchaser, i^^ 
 
 326 
 329 
 369 
 398 
 
 duty of, to inform carrier where notice of arrival may be given, 
 
 to take goods on arrival without unreasonable delay, »9» 
 
 right of, to transfer bill of lading by endorsement, 109 
 
 to take goods on arrival without unreasonable delay, 
 ght of, to transfer bill of lading by endorsement, 
 to refuse to accept goods not corresponding with bill 
 to refuse goods after transportation to wrong place. 
 
 to refuse to accept goods not corresponding with bill of lading, 105 
 
 to refuse goods after transportation to wrong place, »«" 
 
 to lie libel for injury by collision, 1""'
 
 1116 INDEX. 
 
 CONSIGNEE— continued. »*aoe. 
 
 right of, to file libel against ship for nondelivery, 1007 
 
 to sue carrier for loss, 1003-1005 
 
 CONSIGNMENT. 
 
 to agent of carrier, effect of, on liability for detention. 1037 
 
 to firm, effect of provision that vessel is to be reported to it, 870 
 
 CONSIGNOR. 
 
 rigiit of, to sue carrier for loss, 1003, 1004 
 
 ■when shipping to himself, " 100"» 
 
 when action brought in name of, though he is not owner, 1008 
 
 CONSOLIDATION OF RAILROADS. 
 
 construction of act for, 431 
 
 right of, to connect lateral road, 441 
 
 by roads connected only by other roads, 441 
 
 to stifle competition, 433 
 
 as to competing roads in Kansas, 441 
 
 under New Hampshire act to prevent monopolies, 700 
 
 power to, does not include power to lease, 433 
 
 CONSPIRACY. 
 
 gravamen of, consists of the combination, 438 
 
 what constitutes, by shipowners, 694 
 
 agreement to accept freight to be carried over designated road only, 431 
 
 offense when complete, proof of overt act, when necessary, 488, 439 
 
 CONSTITUTIONAL LAW. 
 
 legislative power to regulate fares and freights, 520 
 validity of provision for enforcement of orders of Interstate Com- 
 merce Commission, 536 
 requirement that subject-matter of statute be included in title, 433 
 affecting connections and prohibiting combinations, construction of, 
 
 430 et neq. 
 CONSTRUCTIVE DELIVERY. See also Dkijvery. 
 
 by storage in carrier's warehouse, 988 
 CONTEMPT. 
 
 what constitutes, refusal to obey subordinate administrative body, 1087 
 failure to obey order of court to produce books or papers before 
 
 Interstate Commerce Commission. 1061, 1062, 1091 
 
 proceeding for, trial by jury not required, 1088 
 CONTENTS AND VALUE UNKNOWN. 
 
 meaning of, in bill of lading, 105 
 CONTENTS UNKNOWN. 
 
 meaning of, in bill of lading, 155 
 
 effect of, on liability of carrier, 105 
 
 CONTINUOUS CARRIAGE. 
 
 what constitutes, where continuance depends on volition of shipper, 685 
 
 construction of Interstate Commerce Act, as to, 681 
 
 right of carrier to evade responsibility by breaking up, 683 
 
 between interstate points, right of carrier as to, 686 
 CONTRACTS. 
 
 effect of general laws upon, 849 
 
 effect of, when declarative of a general rule of law, 835, 836 
 
 necessary implication a part of, 97 
 
 when controlled by custom or usage, 893, 903, 904, 964 
 
 enforcement of, by courts of one state, when made in another, 896 
 
 right of third person to sue on, 957, 958-963 
 
 invalidity of acts impairing obligation of, 848
 
 INDEX. 1117 
 
 PAGE. 
 
 burden of proof of invalidity, 707 
 
 for transportation, right of carrier to consult own interest in making, 700 
 
 merger of verbal, in subsequent written contract, 20 
 
 power of station agent to bind company by oral agreement, 20 
 
 supersedes common law liability, 95 
 
 when controlling on rights of parties, 95 
 
 how construed, 124, 833, 834, 893 
 
 by law of what place governed, 66-71, 150, 893 
 
 when illegal in one place and legal in another, 67. 68 
 
 how affected by posted rate bill, 879 
 
 effect of failure to designate quantity in, 603 
 
 rights of parties, how determined when invalid, 71 
 
 remedy for breach, 95^ 96 
 
 right of revocation, 603 
 
 power of Interstate Commerce Commission to enforce, 533 
 
 how treated by Federal courts, 376 
 
 right of carrier to set up, as defense when charged as wrongdoer, 836 
 
 impossibility of performance as an excuse for breach of, 338 
 
 validity of, when in restraint of trade, 458, 459, 740 
 
 not to be interested in certain voyages, 464 
 
 when effecting unjust discrimination, 848, 851 
 
 when injurious to morals and public safety, 73, 896 
 
 for less rate than tiiat given on schedule, 851 
 
 to carry for one cheaper than for another, 785 
 
 for payment of freight without reference to delivery, 854 
 
 to transport desired quantity, 20, 851 
 
 liability to account for profits under when illegal, 703, 704 
 
 right of action under when illegal, 848 
 
 to carry within a limited time, what constitutes, 339, 340 
 
 power of agent of, to make, 339 
 
 liability for breach of, 33f< 
 
 unexpected rush no excuse for breach, 75 
 
 to furnish cars at rales named, 852 
 
 liability for breach not abrogated by statute imposing penalty, 21 
 
 to accept cars provided, effect on liability for injury by defective cars, 148 
 
 to supply vessel, breach not excused by contrary winds and bad weather, 21 
 
 for payment of freight upon true delivery, effect of, 854, 855 
 
 right of carrier to change, 851 
 
 for future rates, power of carrier to make, 851 
 
 between carriers, effect of Interstate Commerce Act on, 848 
 
 to fix freight rates, validity of, 689 
 
 fixing rates, construction of, 853 
 
 for exclusive rights in territory, validity of, 688 
 
 CONTRACTS IN RESTRAINT OF TRADE. 
 
 what constitutes, 440, 442, 444-480 
 
 upheld when restraint is partial, 463 
 
 reasonablene.ss of, 465 
 
 CONTRIBUTION. 
 
 between goods stowed on deck and under deck, 804 
 CONTRIBUTORY NEGLIGENCE. See also Negmgence. 
 
 what constitutes, 79 
 
 effect of, on liability of carrier, 274, 296 
 
 for loss by act of God, 11 
 
 of livestock, see Livestock. 
 
 as a defense to an action for improper packing and .storing, 299 
 
 absence of, how pleaded, 296 
 
 t
 
 1118 INDEX. 
 
 CONTROL OF DISCHARGE. paoe. 
 
 purpose for which, given to consignee, 976 
 CONVERSION. 
 
 what (•onslilutes, 907, 909 
 misdelivery, 908. 909, 915, 982 
 
 delivery to wrong person after storage, 909 
 
 misdelivery by warehousemen, 982, 983 
 
 delay in delivery, 919 
 
 transportation to wrong place, liability for, 890 
 
 receipt of goods from person in wrongful possession, 910-912 
 taking goods under direction of person having apparent control, 
 
 910-912, 914 
 
 wrongfully informing owner that goods have not arrived, 914 
 
 by misdelivery, liability for. 908 
 
 right to sue for, without demand, 908 
 
 measure of recovery for, 909 
 
 when property taken back in mitigation of damages, 909 
 
 effect of tender of miscarried goods after commencement of action, 890 
 
 by sale by carrier, right of owner to recover for, 908 
 
 liability as for, in case of sale under lien for freight, 860 
 
 by wharfinger, right of owner to recover for, 394 
 
 effect of, on duty of shipper to pay or tender charges, 859, 860 
 
 CO-OPERATING CAUSES OF DAMAGE. 
 
 liability for consequences of, 348 
 
 CORPORATIONS. 
 
 power of, to perform public duties through agents, 479 
 forfeiture of franchise by disabling themselves for performance of 
 
 public duties, 479 
 when subject to indictment, 1089, 1090 
 COST OF PRODUCTION. 
 
 consideration of, in determining existence of undue preference, 738 
 
 COST OP SERVICE. 
 
 consideration of, in classifying freight, 552 
 
 in determining reasonableness of rate, 733 
 
 COTTON. 
 
 classification of, different rates upon compressed and uncompressed, 551 
 
 carriage of, additional precautions necessary in open cars, 186 
 
 liability for aoss of. safety of place of storage, 186 
 
 while in compress warehouse, 77 
 
 COURTS. 
 
 power of, to control the administration of railroad affairs, 541 
 
 to determine reasonableness of freight rates, 1050 
 
 to require establishment of through rates, 677 
 
 to restrain regulation of rates which deny equal protection, 1051 
 
 to enforce statute against discrimination, 770 
 
 COWS. 
 
 liability for miscarriage by, when notice of pregnancy not necessary, 269 
 
 CUSTOMS OF PORT. 
 
 when imported into contract of affreightment, 870 
 
 computation of despatch moneys according to, 870 
 
 effect of, on liability for increased cost of discharging cargo, 869 
 
 CUSTOMS. See Usages and Customs. 
 
 CUTS IN DRUMS OF GLYCERINE, 
 
 when a peril of the sea, 168
 
 INDEX. 1119 
 
 D. 
 
 liability for, remote and proximate cause, 918, 1034, l^)^5, W67 
 
 when carrier is liable for entire property injured, 1036 
 
 effect on, of agreement fixing value in consideration of reduced rate, 10^5 
 
 duty of injured party to make reasonable effort to reduce, 1034 
 
 measure of, under English Railway aud Canal Traffic Act, 279 
 
 where goods are not shipped for market, 1037 
 
 when property is rendered unfit for some particular use, 1036 
 
 for loss of foal by injury to mare, 269 
 
 how estimated, allowance for loss of profits, 1037 
 
 consideration of actual consequences of breach, 1037 
 
 allowance for putting goods in salable condition, 1035 
 
 allowance for idle hands for loss of machinery, 1037 
 
 allowance of expenses of surveying damaged cargo, 845 
 
 consideration of enhanced price at place of delivery, 1036 
 
 consideration of consequences presumed to have been contemplated, 1037 
 
 for lost goods, measure of, 920, 1038 
 
 allowance of interest on, jj^^o 
 
 having no fixed market value at place of destination, y-iO 
 
 consideration of statute prohibiting transportation in fixing, 103o 
 
 for delay, measure of. 343, 345, 1036 
 
 under special contract, . ^** 
 
 in forwarding, place of appraisal where no destination is mentioned, d4^. 
 
 fall in market price as an element of, 279, 344 
 
 notice of elements of, not necessary, 344 
 
 in transportation of stock, 3bb. ^b^, ^b8 
 
 interest, when allowed, *o^ 
 
 value estimated at what place, /^ob, ~b/ 
 
 proof of knowledge of carrier that it was designed for a certain 
 
 market ^ob 
 
 in carrying corpse, mental distress as an element of, 1025, 1026, 1027 
 
 for nondelivery, measure of, . lo^* 
 
 measure of, under prohibition to collect more than specified m biU 
 
 of lading, J^ 
 
 where measured, . rj^tl 
 
 right to contract for measurement at place of shipment, W6i 
 
 for failure to deliver within reasonable time, measure of, 101- - 
 
 punitive, for delivery in wrong place, 966 
 
 for refusal to transport stock, measure of, ^oO 
 
 at what place estimated, -^" 
 
 for collision, measure of, ^9. *^^'> g^ 
 
 allowance of interest, fi' 
 
 expected profits. ^^^ 
 
 punitive damages for, ^^ 
 
 right to recover rent and expenses of gathering cargo, lOdg 
 
 for refusal to furnish cars, measure of, i * * 
 
 for breach of contract of carriage, mental distress as an element ot 
 
 1025, 1026, 1027 
 
 evidence admissible in determining, 260 
 
 right to recover in action on prior oral contract, iO->* 
 
 for fmproper stowage of wood, measure of, f inoL 
 
 for violation of contract to fix amount of transportation, measure ot, lUdb 
 for refusal to deliver unless extortionate demurrage is paid, measure ot.977 
 
 from bad weather, liability for, in case of refusal to receive, 10-4 
 
 for wrongful act preventing voyage, measure of, ^il 
 
 for use of cars, measure of, ^^
 
 1120 INDEX. 
 
 DAMAGES— continued. paqk. 
 for carero Rhipperl in United States and sold in Enirl;ind, liability in 
 
 American money, W^^} 
 for negligent sliipment. recovery of, in action fni breadi of contract 
 
 to fiirnisii cars, 1024 
 
 for negligence, award of, when sustained on appeal, '.'Ao 
 in admiralty, see Admiualty. 
 for illegal capture, see Illegal Capture. 
 
 DAMPNESS. 
 
 injury by, when within peril^ of the sea, 16s 
 
 DAMS. 
 
 across navigable waters, concurrent jurisdiction of state and nation 
 
 over, 49r» 
 
 DANGEROUS GOODS. 
 
 carrier not bound to cany, 85 
 
 right to require information as to, 85, 86 
 
 liability of shipper for damages caused by, 85, 86, 88 
 
 duty of shipper and carrier to notify servants, 88 
 
 shipper presumed to know character of, 87 
 
 DANGERS OF NAVIGATION. 
 
 what included in, 163, 164, 165, 166. 171 
 
 DANGERS OF THE RIVER. 
 
 what included in, 163, 164 
 
 DEATH. 
 
 of consignee, duty of master a.s to delivery in case of, 966 
 
 DECAY. 
 
 of fruit, liability of carrier for, 919 
 
 DECEIT. 
 
 as to character of goods sent, effect on liability of caiTier, 29») 
 
 DELAY. 
 
 in transportation, what constitutes, 320, 321, 323 
 
 diligence required to prevent, 19, 328 
 
 care of goods during, 321, 322, 334, 335 
 
 necessity of notice to shipper, 75 
 
 duty to transport as soon as obstruction can be removed, 260 
 
 effect of, on liability for injury by act of God, 176 
 
 on exemation from liability, 340 
 
 on shipper's liability for freight, 341 
 
 under exemption for that caused by restraint of princes or rulers 
 
 or political disturbances, 324 
 
 in transporting perishable goods, 323 
 excuses for, 321, 322, 323, 324 et seq. 
 
 insufficient means of transportation, 324. 325 
 
 effect of knowledge of shipper of snow blockade, 323 
 
 knowledge of obstruction on connecting line, 329 
 
 additional expense in protecting or transporting, 331 
 liability for, 322, 326, 343, 345, 887, 968 
 
 limited to deterioration and loss, 342 
 
 when caused by reckless act of stranger, 341 
 
 when caused by strikes, mobs etc., 346 
 
 not affected by advance in price, 344 
 
 decline of price when goods could have been sold without loss, 345 
 
 under promise to ship at once, 322 
 
 effect of selling goods upon, 345 
 
 exemption from liability for, 147
 
 INDEX, 1121 
 
 PAGE. 
 
 construction of, 56 
 
 willful or negligent disregard of contract not included, 261 
 on connecting lines, see Connecting Cauriers, Initial Carriers 
 
 and Intermediate Carriers. 
 damages for, see Damages. 
 
 in furnishing cars, wben excused by unusual rush of business, 264 
 
 in furnishing goods, effect of, on liability for breach of contract to 
 
 carry, . 339 
 in shipment and delivery of livestock, see Livestock. 
 
 in transportation, liability of, 1025 
 
 from taking inexpeditious route, liability for. 313 
 
 in examining adverse title, rights and liabilities as to, 927 
 
 awaiting custom house officers, liability of carrier for, 342 
 in delivery, not a conversion entitling consignee to refuse to receive, 
 
 341, 342, 919, 967 
 
 liability of carrier for, 887 
 
 necessity of notice that loss of wages will result, 953 
 
 in unloading, charge for, not one for transportation, 975 
 
 where carrier's duty ends with delivery of car, 972 
 
 in acceptance, duty of master in case of, 967 
 
 excuses for, 968 
 
 as an excuse for injury by carrier, 968 
 
 liability for detention of vessel by, 969 
 
 responsibility for, how avoided, 968 
 
 in removal, right to charge storage for, as warehousemen, 971, 972 
 
 evidence necessar}' to establish negligence, 323 
 
 what sufficient to shift the burden of proof of negligence, 323 
 
 DELIVERY BY CARRIER. 
 
 included in contract of transportation, 989 
 effort required of carrier as to, 890, 907 
 termination of liability upon, 888, 996, 965 
 continuance of liability until, under Texas statute, 227 
 when carrier remains liable for part of cargo landed, 847 
 what sufficient to constitute waiver of lien for freight, 863 
 duty of carrier as to, to make to holder of bill of lading, 007 
 when goods are demanded by person claiming to be owner, 930-9;5'2 
 to act upon orders of consignee, 425 
 where consignee cannot be found, 907, 966 
 when consignee is dead, 966 
 when shipped without directions, 964 
 when required to be made in person, 915 
 where consignee is not ready to receive, 976, 991 
 at place where there is no depot or warehouse, 889 
 under contract for transportation and delivery at a certain point, 889 
 when goods are directed to a point beyond its line, 383 
 to hold goods until demanded by holder of bill, 904 
 of last connecting carrier, 272, 400, 407 
 not bound to waich property after discharge, 945 
 right of carrier to make, on holiday, 891 
 to refuse, until freight is paid, 846 
 effect of guaranty to secure, on right to enforce excessive pay- 
 ments, 896, 897 
 to demand security on entire freight when part is delivered, 857 
 application of Arkansas statute as to rights to require payment, 864 
 to require surrender of bill of lading, 857 
 on production of unindorsed bill of lading, 902, 903 
 
 7tl
 
 1122 INDEX. 
 
 DELIVERY BY CARRIER— continued. pack. 
 
 effect of custom upon, 903 
 
 to store afexpense of consignee when he is not present, b57 
 
 where one bill is indorsed to one person and another to another, 001 
 
 liability for loss while awaiting, bi)2, 893, 939 
 
 for loss while in bad condition, 917 et stq. 
 
 of consignee for freight charges upon, 846 
 
 not excused by custom, 898 
 
 without production of bill of lading. 111, 897, 903, 908, 1024 
 
 where bill makes goods deliverable to consignor, 898 
 
 validity of secret agreement as to consignee not valid, 898 
 
 shortage in, see Bhoutage. 
 
 place of, 987 
 
 right of shipper to change, 856, 889 
 power of agent of carrier to contract for change of, after arrival, 889 
 
 by carrier on land, 887 et seq. 
 
 by railroads, 888 
 
 by wagons, 888 
 
 at railway station and not village of same name, 888 
 
 where streetage has been charged, 888 
 
 at private depot, 981, 982 
 
 by vessels, 888, 937 
 
 when wharf is specified, 941 
 
 effect of custom and usage as to delivery on wharf, 964 
 
 at wharf with notice, sulliciency of established custom as to, 964 
 
 to caiLnian at wharf without orders, effect of on liability, 965 
 
 excuses for departure from custom, with reference to, 903, 964 
 
 at place of disaster, proof of acceptance necessary, 941 
 
 to wrong place or person, see Misdeliveuy. 
 
 failure to make, see Nomdeliveuy. 
 
 to whom made, 896 et seq. 
 
 where no one is named in bill of lading as consignee, 897 
 
 when information as to consignee was doubtful, 897 
 
 where bill of lading is to shipper's own order, 1004 
 
 effect of direction to notify third party, 272, 897 
 
 to agent, burden of proof to justify, 985 
 
 when justified to person named by consignors agent, 898 
 
 person clothed with legal evidence of title, 914, 915 
 
 when bill of lading has been assigned , 896 
 
 to third person on order of consignee, 915 
 to consignee, effect of delivery of unindorsed bill of lading upon 
 
 right to make, 901 
 
 to person sending for money in name of another, 916 
 to person who ordered goods, where shipper supposed he was 
 
 sending to another, 915 
 
 time and manner of, 891 et seq. 
 
 time of, what is reasonable time, 892 
 
 by carrier by water, 989 
 
 effect of custom upon, 891 
 
 exclusion of holidays, 891 
 
 during a storm, when not permissible, 891, 839 
 
 by carrier by water, 939 
 
 delay in, see Delay. 
 
 how made, personally, 888 
 
 effect of custom upon , 891 
 
 in accordance with bill of lading, 907 
 
 by express companies, 986 
 
 when shipment is larger than can be landed in a day, 847
 
 1123 
 
 INDEX. 
 
 PAGE. 
 
 by deposit on wharf, necessity of notice to complete, ^^^_^^ ^^ 226, 947 
 
 liability of carrier for loss after reasonable time for removal, M5, y4b 
 
 of goods carried coastwise, ^^ 
 
 what is reasonable lime for removal, o»^ 
 
 effect of failure to remove as required by bill of lading, 227 
 
 modern methods of, ^*'^ 
 effect of usage of trade upon. 941, 944, 946, 947 
 
 must be made in reasonable time, o^' 
 
 reasonable time to find out freight due, ^^ 
 
 duty of ship to find berth, «« 
 by placing cargo m lighter. eO, «l, 9^9, y/u 
 
 in wharf when sufficient, ^*" 
 
 at custom house, when sufficient, ^^ 
 
 object of provision with reference to, ^o* 
 
 notice to consignee, ^^°' ^^^ 
 
 necessity of notice of readiness to discharge, y*'. ^^i 
 
 delay of, until notice given not npcessary, 947, Jft4 
 
 notice of selection of different pier for discharge, ^^* 
 
 effect of failure of consignee to exercise right to select wharf, y4U 
 
 effect of abandonment upon wharf, 940 
 
 place of, wliere cargo is consigned to different persons, »41 
 
 consignments must be separated, 940 
 
 what sufficient to relieve from liability for fire, a-iu 
 continuance of liability of carrier to enable shipper to take pos- 
 
 session v'lv 
 
 by carrier on land, liability for breach of duty as to, 887 
 
 when required to be made at residence or place of business, 9»0 
 
 of livestock by discharging at depot to which access must be pur- 
 
 chased, ' 
 
 right to make certain stockyards an exclusive depot, 982 
 by leaving car on side track, liability for loss when no notice was 
 ffiven 
 
 liability' for injury by other cars placed thereon without notice, 889 
 
 by warehousing with notice to consignee, 888 
 
 liability of carrier upon, ^'^ 
 
 right to limit llabilitv to that of warehousemen upon, y4rf 
 
 before receiving payment, right to recover goods, VIZ, 91rf 
 
 without pavment of price, excuses for, . . ,. n\t 
 
 holding consignee responsible, as an unjust discrimination, //o 
 
 ratification by owner or consignee when unauthorized, 914 
 
 estoppel to deny by taking goods, Vnfk 
 
 in good condition, burden of proof of, i"^u 
 
 right to compel by mandamus, '"^ 
 DELIVERY OF RECEIPT. 
 
 what constitutes wilful failure and refusal to make, y-s* 
 
 DELIVERY TO CARRIER. 
 
 what constitutes. '"' '° 
 
 good faith required in, ^* 
 
 to whom made, g^ 
 
 by agent, - ^^ 
 
 time of, -g rjij 
 
 place of, . ' „Q 
 
 by leaving at designated place, '"
 
 1124 INDEX. 
 
 DELIVERY TO CARRIER— continued. '-^ok. 
 
 by deposit for transportation without further orders, 83 
 
 storing goods along line of road, 76 
 
 storing on platform under promise to ship, 77 
 
 necessity of notice of, 76. ^0 
 
 on dock, necessity of notice, ^1 
 
 to ferry boat, by deposit on slip, 81 
 
 notice of deposit on slip, _ 81 
 
 under agreement to deposit in particular place without notice, 82 
 
 at unusual place, necessity of acceptance in fact, 80 
 
 duty to furnish equal facilities for, 732 
 
 right to require good faitii in, 82 
 
 right of carrier to rely on presumption that title rests in consignee on, 808 
 
 when liability commences. 7(1, 78, 81, 83, 84, 847, 971) 
 
 to await further instructions, liability that of warehouseman, 83, 84 
 
 involves surrender of control, 137 
 
 when a direction to transport, 823 
 
 as security, what sufficient to defeat stoppage in transitu, 
 
 DELIVERY TO CONNECTING CARRIER. 
 
 diligence refjuired in, 328, 329, 383, 388 
 
 duty of each line as to, 383 
 
 duty as to perishable property, 383 
 duty to use available means of forwarding goods in case of failure of, 390 
 
 what constitutes reasonable time for acceptance, 389 
 
 by deposit in an agreed place, 391 
 
 by placing in special depository and giving notice, 388 
 
 by placing car on common track and giving notice, 391 
 effect of placing car on side track of connecting line without notice, 388, 391 
 
 storing goods in warehouse at end of route, 383, 384 
 
 usage or custom as to, 384 
 
 course of business as evidence of, 384 
 
 termination of liability by, 384 
 
 rc'isonableness of condition relieving from liability upon, 392 
 
 effect of deposit at agreed place upon liability to shipper, 890 
 
 effect of, on liability of the several carriers, 384 
 
 liability for refusal unless demurrage is paid, 883 
 
 not excused by charter provision making initial carrier liable as 
 
 warehouseman only, 884 
 
 carrier as agent for owner while awaiting, 387 
 
 effect of giving bill of lading in hands of initial carrier, 320 
 
 DEMAND. 
 
 necessity of before suit, against carrier for conversion, 908 
 
 before suit for wrongful delivery, 909 
 
 sufficiency of, to subject carrier to penalty for non-delivery, 933 
 
 by third person for goods in hand of carrier, duty of carrier as to, 933 
 
 necessity for exhibition of bill of lading on, 924 
 
 effect of, on liability of carrier employed to collect, 906 
 
 DEMURRAGE. 
 
 nature of, 970 
 
 adoption of term by railroads, 974 
 
 by railroads not governed by rules of marine law, 974 
 
 whether dependent upon express contract, 973, 974 
 
 right to, where consignee fails to exercise right to select wharf, 940 
 
 contract for arrangement for carriage with notice of regulation, 975 
 
 claim for, on bill of lading, 103 
 
 time of, how estimated, Sundays not deducted, 976
 
 INDEX. 1125 
 
 recovery of additional demurrage occuring after filing of original 
 
 libel, 978 
 for what allowed, 970 
 as damages for illegal capture, 359 
 liability for under rule of which consignee had no notice, 977 
 when consignee is not responsible for delay, 976, 977 
 when consignee fails to have dock ready for discharge, 976 
 when vessel is detained through fault of consignee who is owner, 970 
 of holder of bill of lading, 976 
 extortionate demand for, 869, 977 
 demand for in advance without reference to reasonableness, 975, 976 
 effect of acceptance of goods on, 970 
 effect of, on duty of master to give bill of lading, 103 
 lien upon cargo for, 974 
 how bona fide endorsees are rendered liable for, 977, 978 
 what charges are reasonable, 974, 975 
 effect of varying capacity of cars, 974 
 effect of charging part of a day as a whole day; 974 
 not measured by storage in warehouses or cars, 974, 975 
 duty of carrier to store and not hold vessel for unnecessary time, 976 
 how computed when other vessels of same owner takes place of in- 
 jured vessel, 977 
 right of access to cars during free period, 975 
 allowance of, for detention for repairs in case of collision, 978 
 when position of vessel retards work, 978 
 where reasonable notice of time of unloading is not given, 978 
 
 DEMURRER TO EVIDENCE. 
 
 when sustiiiiK'd, 1032 
 
 DEPARTURE FROM DUTY. 
 
 effect of, on liability for injury by act of God, 176 
 
 DEPOSITIONS. 
 
 how taken for use before Interstate Commerce Commission, 1062 
 
 DEPOT. 
 
 right of railway to exclude other carriers from, 425 
 
 as a place of delivery by railroads, 888 
 
 DESKS. 
 
 may hu shipped when crated, 554 
 
 DESTINATION. 
 
 right of shipper to change instructions as to, 189 
 
 DESTRUCTION. 
 
 of vessel, effect of, on contract to carry, 339 
 
 of bridge, as an excuse for delay, 326 
 
 DEVIATION. 
 
 defined, 946 
 
 when justifiable, 317 
 
 as to perishable freight, 317 
 
 a question of law, 315 
 
 discharging cargo at another than the carrier's wharf as, 955 963 
 
 by delivery to connecting carrier other than the one named, 313 
 
 duty of carrier in case of interruption on stipulated line, 317 
 
 to notify consignee of necessity of, 317 
 
 neglect to notify consignee does not render carrier liable for delay, 317 
 
 leave to make, not construed so as to defeat objects of voyage, 315 
 
 to one place not excused by permission to deviate to another, 315
 
 1126 INDEX. 
 
 DEVIATION— continued. page. 
 liability for, 815 et seq. 
 
 when injury was by act of God, 312, 'iVi 
 
 when contributing to injury by act of God, l?."} 
 
 under exemption from liability, 312 
 when goods sent by different conveyance or in different names 
 
 from that directed, 314. 315 
 
 effect of usage on, 31G 
 
 of connecting carrier, 318, 319 
 
 to refund excess, when charges on substituted route are more, 313, 314 
 
 renders carrier an insurer for the course chosen, 313, 314 
 
 effect of, when warrsiiited by known usage of trade, 940 
 
 DISASTEROUS WEATHER. 
 
 as an excuse for delay, 160 
 
 DISCOVERY. 
 
 right to, on bill for account of profits of illegal combination, 704, TOri 
 
 allegations required in, 704, 705 
 
 DISCOUNTS. 
 
 unjust discrimination by allowance of, 776 
 
 DISCRIMINATION. 
 
 see also Unjust Discrimination. 
 
 what constitutes, 774, 775, 776 
 
 as against stock car company, 430 
 
 charging large party less per capita than single passengers, 010, Oil 
 
 different rates between same points, 0S6, 732 
 
 special tariff to certain persons and articles, 732 
 
 increased rate, where there is a pause in transportation, 732 
 
 different charges for different distances, 732 
 
 furnishing free cartage on long haul, 648, 8S4, H85 
 
 through rates proportionately less than local rate, 684-086 
 
 maintaining rate at intermediate point when reduced at termini, 666 
 unreasonable adjustment of joint rates, 719 
 
 charging higher rate on cross than on main line, 770 
 
 charging more on leased than on main line, 771, 772 
 
 giving advantages to towns on main line over those on branches, 711 
 charging more for foreign than for native, 731 
 
 by one carrier against another, 425, 070, 708 et seq. 
 
 in facilities furnished by carrier to connecting carriers, 419, 424, 709 
 reasonableness of, 420, 421 
 
 arrangement with one and refusal to arrange with another, 670 
 
 refusal to make joint through rates, 678 
 
 refusal to make same arrangements with another, 671, 678 
 
 refusal to receive or deliver where no arrangement i? made, 679 
 
 charging local rate on business tendered by connecting carrier, 679 
 
 refusal to permit connecting carrier to use terminal facilities, 712 
 
 refusal of equal facilities where connecting points are far apart, 423, 713 
 furnishing one with better facilities than another, 713, 714 
 
 requiring prepayment by connecting carrier, 709, 712 
 
 refusal to transport foreign cars when its own cars are not in use, 429 
 termination of arrangement for through traffic, 415, 416, 713 
 
 under statutes defining it, 565 
 
 in freight rates, 27 
 
 between different stockyards, , 238 
 
 between large and small dealers, 553 
 
 between long and short hauls, 644 
 
 between long and short hauls, excuse for, 641, 643, 644 
 
 group rates for milk from all stations within 2C0 miles. 729
 
 INDEX. 
 
 112: 
 
 PAGE. 
 
 -1 QO 
 
 on wheat and on flour, ^°^ 
 
 diflferent charge for corn and its products, ao^ 
 
 as between ordinary lumber and knock-down troughs, 'oo 
 
 between carload and less than carload lots, ooi 
 
 must be reasonable, , ,, «rrc< 
 
 between carload lots shipped by one and by several, reasonableness of ,754 
 by connecting carrier selected by initial earner, 4^a 
 
 by allowance of discount, * '" 
 
 by making rebates, see Rebates. 
 
 a question of fact, 9«>5, TUb, /o^ 
 
 legality of, o-q' -,-. 
 
 invalidity of contracts producing, °*^' °^,L 
 
 statutes prohibiting, declaratory of common law, too, tot 
 
 provisions of Interstate Commerce Act as to. see Interstate Com- 
 merce Act. UN.IUBT Discrimination. 
 in rate on through line, not within state statute, ^00 
 
 American cases as to, __„ 
 
 statutory provisions as to, in England, ^ ,. ^ _, ., , „„^„, 
 
 power of courts to grant relief under English Railway and Canal 
 
 Traffic Act. ^"J 
 
 authority of Etiglish cases as to, ri° 
 
 Colorado constitution and statutes as to, '»'- '«P 
 
 effect of, when not shown to be unjust or partial, TOb, 74» rwte 
 
 between passengers, _„. r-nt, 
 
 between warehouses in same city, '"^' '"" 
 
 in arranging for through traffic, ^ . ^, . _, , f,^;„u* 775 
 
 between less desirable and more desirable traffic and freight, ui^ 
 
 against certain traffic because of its ultimate use, bi5, '»* 
 
 in favor of corporations having same officers, <»». o'-"^ 
 
 in favor of corporations in which carrier owns stock, _ »iu-»i» 
 
 in favor of one entitled to a part of market price after paying for ^^^ 
 transportation. ' „q„ 
 
 between different grades of a commodity, 
 between elevators, see Elevators , 
 
 by classification of railroad ties differently from other lumber, 559 
 
 in agreeing to deliver stock at a particular stockyard, ^^^ 
 
 between different owners of Slock cars, ~^^ 
 
 in supplying different kinds of cars to shippers of livestock, ^^^ 2^9 
 
 between rival steamship lines, - 
 
 between facilities furnished to different express companies, 27, 28, 29, 32, 33 
 as between localities, see Localities. 
 
 between shippers, see Shippers cu,t,x,c-i, 
 
 by carrier as shipper in its own favor, see Carrier as Shippeb. 
 construction of charter provision as to, '° 
 
 enforcement of statute against, by courts of equity, <'" 
 
 DISPATCH COMPANY. ., ^ r • ft 
 
 liability under agreement with railroads for carnage, o 
 
 DISPATCH MONEY. q^q 
 
 how computed, 
 
 DISTANCE. g3 ^gg ^27 73O 731, 732 
 
 effect of, on treignt rates, , , i ^^^ .^^^ 
 
 for transportation of coal, ' ;j,g^ 
 
 eff'eTt ro^rett ab^Srof time for acceptance of goods, 968 
 
 consideration of, in determining existence of undue preference, 729, 733 
 
 la dSermining existence of discrimination between shippers, 748
 
 1128 INDEX. 
 
 DOGS. 'AOE. 
 
 liability assumed in conveyance of, 256 
 DOMESTIC BILLS OF LADING. 
 
 !ue CDiitnicts, 96 
 DOMICILE. 
 
 ac(iuisiii()ii of, by corporation, 1043, 1044 
 
 DOUBLE DECKED CARS. 
 
 for sheep, validity of statutory requirement to furnish, 229 
 
 DRAWBACKS. 
 
 provision of Interstate Commerce Act as to, 620, 1057 
 
 validity of, 644, 750, 769 
 
 effect of provision for, as evidence of discrimination, 750, 751 
 
 discrimination between shippers by payment of, 782 
 
 right to make preferences between localities by means of, 720 
 
 right of shipper to recover, when no third person complains, 745 
 
 DRY PHOSPHATE ROCKS. 
 
 refusal to si«;n bill of lading for, without qualification, 104 
 
 DUTIES AND LIABILITIES. 
 
 no distinction between those of carriers by land and by water, 12 
 
 DUTY OF CARRIERS. 
 
 to safely carry and deliver, 159 
 
 public nature of, 739 
 
 independent of contract, 11 
 
 rules as to, how changed, 334 
 
 to exercise calling upon proper request, 912 
 
 to serve the public without difference, 738 
 
 •when carrier is also a producer and shipper, 838 
 
 to carry for all at same rate, 740, 743 
 to carry for all for a reasonable reward, 570, 737, 754, 756, 759 
 
 care and diligence required in performance of, 2 
 
 to use diligence to prevent loss by act of public enemy, 14 
 
 to provide adequate equipment, 17, 160 
 
 cannot be transferred to shipper, 17 
 
 as affected by nature of goods, 17 
 
 to inspect means of transportation, 26 
 
 towards goods when unable to carry them, 941 
 
 when unable to carry goods to destination, 140 
 
 to save property, 165 
 
 to use reasonable care for preservation of property, 967 
 to discharge in suitable place, not relieved by stipulation to store 
 
 without notice in default of acceptance, 96!t 
 
 validity of stipulations relieving from, 194 
 
 enforcement of, 75, 76 
 
 of passengers, intention in the imposition of, 5 
 
 E. 
 
 EARTHQUAKE. 
 
 an act of God, 160 
 
 EGGS. 
 
 classification of, as freight, 561 
 
 ELEVATORS. 
 
 not instruments of commerce, 498 
 
 facilities for the erection of, need not be on right of way, 766 
 
 discrimination between, by imposing terms and conditions, 766 
 
 by refusal to deliver grain to, 761 
 
 in furnishing facilities for the erection of, liability for, 766
 
 INDEX. 1129 
 
 ELEVATOR CHARGES. page. 
 
 state power to regulate, 497 
 
 EMBARGO. 
 
 elfect of, on coBtPact to carrj, 338 
 
 EIUBEZZLEMENT. 
 
 not included in perils of the sea, 164 
 
 liability of shipowner for loss by, under limited liability act, 1039 
 
 EMINENT DOMAIN. 
 
 power of Congress to exercise right of 489 
 
 right of railroad company to acquire land by, 689 
 
 ENGLISH CASES. 
 
 authority of, in questions of interstate transportation, 609, 610, 611 
 
 as to discrimination and undue preference, 708 
 
 as to construction of substantially similar circumstances and con- 
 ditions, 605 et seq. 
 
 ENGLISH COMMISSION. 
 
 power of, to require the establishment of through rates, 677 
 
 ENGLISH MERCHANTS' SHIPPING ACT. 
 
 right of action under, for freight, 857 
 
 ENGLISH RAILWAY AND CANAL TRAFFIC ACT. 
 
 right to make special rates under, 659 
 
 option of railway to change rates under, 614 
 
 provisions of, with reference to preference or advantage, 708 
 right under, to require special order for delivery describing each 
 
 package, 425 
 
 limitation of liability under, 42, 278 
 
 powers of court to grant relief under, 708, 709 
 
 ENGLISH RAILWAY CLAUSES ACT. 605, note 
 
 undue preference clause of, 606, note 
 
 ENGLISH REGULATIONS FOR PREVENTING COLLISIONS. 
 
 vessel when not under command within, 352 
 
 ENGLISH REGULATION OF RAILWAYS ACT. 
 
 who are persons interested under, 687 
 
 EQUAL FACILITIES. 
 
 see also Disckimination, 
 
 what constitutes, 776 
 
 provisions of Interstate Commerce Act as to, 1058 
 
 EQUAL PROTECTION OF LAW. 
 
 efl'ecl of provision for, 1051 
 
 EQUALITY. 
 
 right of recovery on breach of provision for, in the English statute, 614 
 
 EQUALIZATION OF RATES. 
 
 as between large and small towns as a ground of complaint, 715 
 
 ERROR IN EXTREMIS. 
 
 what constitutes, 351 
 
 liability for, 161, 163, 351 
 
 effect of on liability for collision, 253 
 
 ERRONEOUS ENTRY. 
 
 causing delay in delivery, liability for loss by fire in case of, 187
 
 1130 INDEX. 
 
 ESTOPPEL. PAO''" 
 
 to deny state control by asserting exemption from Pecieral law. 674. 675 
 
 to deny validity of combination while letainiiii; its fruits, 695. 701, 702, 703 
 
 to deny authority of agent, by issue of bill of lading. 139, 142, 143 
 
 to issue bill of lading when goods are not yet received, 143 
 
 to contract to transport a definite quantity, 602 
 
 to deny authority of initial carrier to fix rate by offer to accept it, 924 
 
 by bill of lading, when consignor had no alternative. 125 
 
 by taking advantage of a lowei rate, to assert negligence, 282 
 
 to deny title to lost or stolen bill of lading. lOH 
 
 to claim unjust discrimination by misrepresentation as to class, 556 
 
 to assert unsafety of cars by acceptance, 232, 233 
 to assert delay in watering and feeding stock, by consent to omission 
 
 at particular stations, 250 
 
 to deny delivery by taking goods from place wliere they were left, 920, 940 
 to deny liability for storage by permitting carrier to hold car unloaded, 973 
 
 EVIDENCE. 
 
 of contract of initial carrier, 895 
 
 of partnership between connecting carriers, 41 :i 
 
 of joint ownership, 1008 
 
 of unreasonableness of rates, 577 
 
 of reasonableness of rate, time of maintainance as, 597 
 
 statements by agent as to contents of record as, 103 
 
 bills of lading given after receipt of goods as, 99 
 
 of usatre as to packing and storing, to vary bill of lading, 302 
 
 bill of lading as proof of kind and quantity of cargo or amount of 
 
 freight, 1032 
 of number of cars loaded, to prove damages for breach of contract 
 
 to carry, 260 
 
 to prove inability to furnish proper cars. 229 
 
 to establish negligence contributing to injury by act of God, 189 
 
 of delivery to connecting carrier, course of business as, 348 
 
 to entitle consignee to maintain action for failure to forward, 342 
 
 as to cause of collision, 849, 353 
 
 of weight of part of cargo lost, 1037 
 
 of identity, effect of improper admission of, 1033 
 
 of limitation of value by agreement, 1035 
 
 of usage limiting liability not admissible, 122 
 
 of reasonableness of limitation of liability, 181 
 expert testimony as to terms of art used in classification of freight, 552 
 
 as to loss of freight of livestock from delay, 268 
 
 EXAMINATIONS FOR RAILWAY SERVICE. 
 
 validity of requirement that railway pay fees, 522 
 
 EXCEPTED PERILS. 
 
 must be proximate cause of loss, 1031 
 
 proof necessary to bring loss within, 836 
 
 effort to avoid effects of, required, 334 
 
 necessity of establishing freedom from negligence, 1028 
 
 EXCEPTIONAL QUALITIES. 
 
 consideration of, iu lixing rates, 792 
 EXCEPTIONAL RATES. 
 
 prohibition of by Interstate Commerce Act, 620 
 EXCHANGE. 
 
 effect of, on liability for cargo shipped in United States and sold in 
 
 England. 1035
 
 INDEX. 1131 
 
 EXEMPTION FROM LIABILITY. PAaE. 
 
 see also Limitation of Liability. 
 
 for loss by act of God, 160 
 
 for neg]io;ence, sufficiency of consideration for, 54 
 
 general stipulations limited by specific ones, 55 
 
 must be reasonable, 146 
 
 need not be sustained by public policy, . 54 
 
 in bills of lading, construction of terms used, ' 154, 155, 156, 157 
 
 construction of, for detention, 156 
 
 for collisions, 156 
 
 for loss by pirates, robbers or theft, 151 
 
 for negligence, 54, 55, 56 
 
 for leakage and breakage, 154, 157 
 
 for deticiency in packages, 155 
 
 for loss by fire, see Fike. 
 
 for number of pieces or weight, effect of, 154 
 
 for wrong delivery, effect of, on failure to deliver, 919 
 for loss or delay, effect of upon liability for loss by decline of price, 345 
 
 after unloading, — effect of carrying through without unloading, 397 
 
 effect upon past liability, 96 
 
 for loss on perishable property, not applicable to matured corn, 154 
 
 for breach of previous oral contract to furnish cars, validity of, 20 
 
 for acts of servants, carrier's own negligence not included in, 56 
 on production of receipt of connecting carrier, application of, 1033 
 
 enforcement of, 95 
 
 proved by law of forum, 63 
 burden of proof of. see Burden of Proof. 
 
 EXPENSE ACCOUNT. 
 
 when not a i)art of bill of lading, 922 
 
 EXPENSE BILLS. 
 
 preference between localities by means of, 720 
 
 discrimination between shippers by payment of, 782 
 
 EXPENSE OF TRANSPORTATION. 
 
 consideration of, in fixing rates, 792 
 
 in determining reasonableness of rate, 762 
 
 EXPLOSION OF BOILER. 
 
 not a danger of navigation, 169 
 
 EXPLOSIVES. 
 
 liabilility for injury by, effect of notice of character, 87 
 
 EXPORT TARIFFS. 
 
 liow sliown in rate bills, 880, 882 
 
 EXPORTATION. 
 
 when it commences, 530 
 
 EXPRESS AGENT. 
 
 authority of, to give rate, 10 
 to arrange with consignee for time to get goods, 9, 980 
 
 EXPRESS COMPANIES. 
 
 when common carriers, 6 
 
 effect of assumption of another name, 6 
 
 character of business, 31 
 
 duty to deliver package, 8 
 undertaking to secure speedy and personal delivery not a waiver of, 7 
 
 not bound or presumed to know contents of package, 10 
 
 when not bound to transport intoxicating liquor, 10 
 
 right to require service of railroad, 31 
 
 agelicy of railroads carrying packages for, 6
 
 1132 INDEX. 
 
 EXPRESS COMPANIES— continued. page. 
 to withdraw fronn agreectient to ship goods not packed according 
 
 to rule, 10 
 
 liability of. as common carriers, 6 
 
 for loss through adoption of hazardous route, 9 
 
 where consignee cannot be found, 986 
 
 effect of departure from known rule at instance of consignee, 9 
 
 for money package stolen from safe, 8 
 
 for damages to fruit from delay, 9 
 
 for trunk lost before delivery to it by railroad company, 10 
 
 when delivered to imposter, t) 
 
 stipulations by, for exemption from liability for negligence of railroad, 6 
 
 delivery, how made by, 986 
 
 EXPRESS RECEIPTS. 
 
 are contracts, 96 
 
 shipper presumed to know contents, 9 
 
 EXTORTION. 
 
 by railroads, liability for treble damages for, in Missouri, 542 
 
 EXTRAORDINARY FLOODS. 
 
 liability for (hiniai,'e by, 161 
 EXTRAORDINARY PRESSURE OF BUSINESS. 
 
 as an excuse for delay, 322, 325, 326 
 
 EXTRAORDINARY RISK. 
 
 liability when transportation involves, 16 
 
 F. 
 
 FACILITIES FOR HANDLING. 
 
 consideration of, in determining reasonableness of rate, 763 
 
 in determining existence of, undue preference, 72U 
 FAILURE OF WIND. 
 
 when ncglitrence not to guard against, 174 
 FALSE REPRESENTATION. 
 
 effect of, on liability for freight, 878 
 
 upon right to set up unjust discrimination in rates, 55ii 
 
 assignment of bill of lading procured by, 108 
 
 that rate charged is through rate, right of recovery for, 877 
 
 inducing signature, proof of, 100 
 
 how interposed as a defense, 100 
 
 effect of failure to enquire on right to interpose as a defense, 100, 101 
 
 FARES AND FREIGHTS. 
 
 power to regulate, 620, 521 
 
 power to create commission for regulation of, 509 
 
 regulation of, a legislative function, 520, 521 
 
 on post and military routes and national highways, 515 
 
 effect upon foreign company operating road in state, 515 
 
 judicial interference with, 521 
 
 power of state to regulate, 518, 1050 
 
 to classify railroads for establishment of, 509, 514 
 
 state regulation of not applicable to interstate shipments, 522 
 
 right to interfere with interstate contracts regulating in restraint 
 
 of trade, 510 
 
 reasonableness, 514 
 
 how determined, 515 
 
 limitations upon legislative power to reduce, 519 
 
 state power to bargain away the right to limit, 518, 519
 
 INDEX, 1133 
 
 PAOE. 
 
 limitation of right to regulate by charter provisions, 518, 519 
 
 legislative reservation of the riglit to regulate, 520 
 
 power to limit charges to those specified in bill of lading, 521 
 
 on independent spur of road, liability for excessive charges, 603 
 
 FAVORITISM. 
 
 proliibitiou of hy Interstate Commerce Act, 620 
 
 FEDERAL COURTS. 
 
 jurisdiction of, 1043 et seq. 
 
 power of Congress over, 1049, 1074 
 
 over right arising under a law of United States, 1049 
 
 where parties reside in different states, 1049, 1050 
 
 no distinction between persons and corporations as to, 1044 
 
 over corporation of one state, doing business in another, 1044 
 
 to enquire as to reasonableness of wharfage, 512 
 
 to restrain multiplicity of suits in state courts, 1044 
 
 under Interstate Commerce Act, 532 
 
 to aid Interstate Commerce Commission, 1061 
 to restrain railroad commissioners from putting in force a schedule 
 
 of rates, 540 
 jurisdiction of Supreme Court over appeal in proceeding for limited 
 
 liability, 1042 
 
 effect on, of allowance of undisputed amount of freight, 865 
 
 jurisdiction of circuit court to inquire as to reasonableness of rates, 1057 
 
 to restrain transportation by foreign corporation until rate bill is 
 
 filed, 1060 
 to use process in aid of inquiries before Interstate Commerce Com- 
 mission, 1056 et seq. 
 jurisdiction of district court, exclusiveness of, 1049 
 when following decisions of state courts, 895 
 recognition of state statute of limitation by, 1049 
 effect of state legislation as to mode of proceeding on, 1050 
 enforcement of orders of Interstate Commerce Commission by, 535 
 
 FEES. 
 
 for depositions for use before Interstate Commerce Commission, 1063 
 
 FERMENTATION. 
 
 of liquors, liability of carrier for, 919 
 
 FERRIES. 
 
 power of Congress over, 516 
 
 concurrent jurisdiction of state and nation over, 496 
 
 power of state to establish, 515 
 
 to impose burdens upon, 515, 517 
 
 to tax property of, 517 
 
 state control over in Pennsylvania, 517 
 
 between states as instruments of commerce, 503, 504 
 
 power of state to authorize, 604, 517 
 
 power of state over, 517 
 
 power of state to tax, 502 
 
 power of state to impose license fee, 504 
 
 conflicting legislation of states, how treated, 517 
 
 right of, to require tolls or fares, 517 
 
 when included in term " railroad," 1057 
 
 FIRE. 
 
 not an unavoidable casualty, 189 
 
 not a danger of the river, 168
 
 1134 INDEX. 
 
 FIRE— continued, paob. 
 liability of carrier for loss by, 1457, 182 
 
 wlicu caused by liyhtniny, 178, 182 
 
 when goods were shipped on Sunday, 386, 387 
 
 when shipped contrary to agreement, 984 
 
 not affected by undertaking to collect on delivery, 115 
 
 when power of ship is proiluced by, 180 
 application of state statutes as to, to interstate and foreign traffic, 182 
 
 under limited liability act, 1039 
 
 after delivery but before removal of goods, 183 
 
 liability of warehousemen fi)r loss by, 983 
 
 not within common law exemption, 178 
 exemption from liability for, validity of, 179, 183, 943 
 
 what sufficient to limit common law liability for, 180 
 
 effect of receipt containing, issued after receipt of goods, 181 
 
 presumption under as to proximate cause, 179 
 
 construction of, 183 
 
 does not include negligence, 185, IHG 
 
 does not include loss after wrongful delivery, 182 
 
 effect on, of exposure to peril, 19, 186 
 
 necessity of providing appliances for extinguishment, 182 
 
 effect of loss while goods were unloaded in transit, 182 
 
 effect on loss of cotton while being compressed, 183 
 
 effect of damage after discharge of cargo, 944 
 
 effect of carrying cotton in open flat cars, 186 
 
 effect of delay of shipment on, 186, 187 
 
 effect when loss caused by defect in cars, 187 
 
 effect of loss, on right to freight charges, 856 
 
 effect of, on liability to connecting carrier for freight, 847 
 
 burden of proof of negligence under, 188 
 
 proof of negligence occurring after delivery to consignee, 189 
 
 presumption of negligence, from destruction of goods by, 189 
 
 under limited liability act, 1040 
 
 FISHING VESSELS. 
 
 not included in limited liability act, 54 
 
 FLOODS. 
 
 an act of God, 160 
 
 diligence required in protecting from damage by, 173 
 
 liability for damage from, 826 
 
 by failure to dry or preserve goods, 173 
 
 effect of failure to dry on exemption from liability for, 337 
 
 when negligence to fail to take precaution against, 174 
 
 effect of damage by, on subsequent liability, 160 
 
 FLORIDA RAILROAD COMMISSION RULE. 
 
 contents and posting of rate bills under, 882, 883 
 
 FLOUR. 
 
 classification of, as freight, 661 
 
 FOG. 
 
 as an excuse for delay, 326 
 
 diligence required in, to avoid collision, 380 
 
 FOREIGN BILL OF LADING. 
 
 what is, under Texas Revised Statutes, 57 
 
 FOREIGN CARRIERS. 
 
 right of, to contract for exemption from liability, 72
 
 INDEX. 
 
 1135 
 
 FOREIGN CORPORATIONS. J'^of- 
 
 application of, provision for equal facilities to, 760 
 
 right to own ferry coming into state, 516 
 FOREIGN FREIGHT RATES. 
 
 not witiiin control of Interstate Commerce Commission, 537 
 
 FOREIGN LAWS. 
 
 duty of shipmasier to take notice of, "65 
 FOREIGN MERCHANDISE. 
 
 t-fff'Ct of rei^nilation from port of entry on, 680 
 FOREIGN VESSELS. 
 
 within limited liability act, 59 
 FORWARDING FREIGHT. 
 
 duty of carrier as to, SdU, 661 
 
 when perishable, ^^1 
 
 ■when it cannot be done in the manner originally contemplated, S'61 
 
 liability for increase<l cost of, , 331 
 
 evidence entitling conNignee to maintain action for failure in, 342 
 
 FORWARDER'S RECEIPT. 
 
 effect of delivery of, without assignment, wOl 
 
 FRAUD. 
 
 wliat constitutes, t^ 
 
 bow pleaded, ^00 
 
 of consignor, as an excuse for misdelivery, »14 
 
 effect on liability of carrier, ^0 
 
 of agent, liabilitv of carrier for, 9|o 
 
 as to value of goods, effect on liability of carrier, 213, 216 
 
 right of carrier to contract against liability for, 51 
 
 liability for, under contract limiting value, 303 
 
 FREE CARTAGE. 
 
 preference between localities by furnishing, 7^5 
 
 effect of continued practice, 707, 75b 
 
 right to furnish to one and not to another. 883, 884 
 
 in larger city, w^hile denying it in smaller ones, 725 
 
 in order to secure tratlic of certain firms, 770 
 
 when depot is at a distance, while that of a rival is in business 
 
 center, ^26 
 
 illegality of, when allowed as a rebate, 7Ub, 7U7 
 
 liability of carrier for furnishing, 770 
 
 who may complain of, "°*' ^°^ 
 
 FREEZING. 
 
 of canals and rivers, an act of God, lol 
 
 of canal, as excuse for delay, «*''. '^^° 
 
 liability for loss by, ^^^ 
 
 FREIGHT. ^._ 
 
 defined, ^*^ 
 
 classification of, see Classification of Freight. 
 
 discrimination between different classes of, !» 
 
 duty of carrier to load, 7° 
 
 agreement by shipper to load, J^ 
 
 what should be boxed and what crated, 554 
 
 how stored in cars, „p,'^ 
 
 presumed to have been received in good order, 
 
 recital as to condition in bill of lading to what applicablt), 
 
 right to contradict bill of lading as to condition of, 
 
 299 
 299 
 299
 
 1136 INDEX. 
 
 FREIGHT AGENTS. ^*'^^- 
 
 duly of, in selection of route, 39:i 
 
 power of, to promise expedition in unloading, 823 
 
 to contract willi reference to freight charges, 852 
 
 to bind connecting carriers by announcement of rate, 407 
 
 to contract as to rates, when road is in hands of receivers, 852 
 
 liability of, to indictment for conspiracy for improper charges, 1092 
 
 FREIGHT CARS. 
 
 duly of Company to inspect, 88 
 
 FREIGHT CHARGES. 
 
 implied contract to pay. 845, 868 
 
 when payable in absence of agreement, 846 
 
 power to contract with reference to, 848 et ntq. 
 
 of freight agent, 852 
 
 agreement as to, what constitutes, 862 
 
 construction of, 853 
 
 for payment of, on right delivery. 854, SS!) 
 
 for advancements at port of lading for ordinary disbursements, 85.") 
 
 fixing amount, elTect on, of increase of rates, 851 
 
 for payment on delivery, elTect of loss by tire, 55<) 
 
 for right to hold goods for payment, effect of mistake in, 855 
 
 amount of, 845 et neq. 
 
 subject to agreement of parties, 845 
 
 in the absence of agreement, 845, 846 
 
 when based upon an estimate, 85H 
 
 upon what weight estimated, 840 
 
 when estimated in ascertaining limited liability, 02 
 
 when a question of fact, 845 
 
 effect of misrepresentation as to class of goods, 878 
 
 requirement as to reasonableness in Interstate Commerce Act, 1057 
 
 rules with relation to carload rates, 853 
 
 application of charter limit upon, after sale of road to another, 852 
 
 to road operated outside of state, 851 
 
 right to refuse to pay when excessive, 858 
 
 overcharge of, see Overcharge. 
 
 when payable, 845, 846 
 
 right to demand before delivery, 847 
 
 right to demand before opportunity to examine goods, 857 
 
 right to demand prepayment of, 776, 847 
 
 lien for, see Lien. 
 
 waiver of right to prepayment of, by acceptance, 847 
 
 right to convey without prepayment, 862 
 
 right of action for refusal to deliver before payment, 84G 
 
 collection of, on connecting line. 668 
 
 right of connecting carrier to require prepayment, 38'J 
 
 effect of carriage without prepayment upon amount of care required, 1000 
 
 when collectible on packages not delivered, 854 
 
 when due at place short of destination, 873 
 
 liability for, 84(5 
 
 of assignee of bill of lading, 840 
 
 of broker employed to sell cargo, 852 
 
 under contract for payment, whether delivered or not, 854 
 
 after commencement of voyage, and before bills of lading are 
 
 signed, 855 
 balance after payment of agreed amount based upon misrepresenta- 
 tion, 878 
 where double first class goods were shipped as first class, 878
 
 INDEX. 1137 
 
 PAGE. 
 
 in case of refusal to reship, 382 
 
 where goods are accepted at place of interruptioa, 338, 853, 873 
 
 in case of disaster within exception in bill of lading, 872 
 
 effect of acceptance of goods on, 970 
 
 to connecting carrier, 855 
 
 of one carrier to another, where property is destroyed, 847 
 
 when excessive, 603 
 
 effect of delay in refunding, 603 
 
 measure of damasces for wrongful act preventing carrier from earning. 847 
 effect of law of flag upon, 845 
 
 effect of payment by indirect benefit on liability for loss of goods, 856 
 duty to surrender bills to charterer or tender of balance due, 852 
 
 necessity of paying or tendering in case of conversion, 859, 860 
 
 recognition of, by Interstate Commerce Act, when indefinite or un- 
 certain, 855 
 actions for. see Action. 
 
 right of shipper to rely upon representation of station agent as to, 852 
 
 to recover upon refusal to receive goods, 877 
 
 to recoup damages done by subsequent carrier, 411, 875, 876 
 
 right of consignee to deduction for expenses incurred, 854 
 
 FREIGHT RATES. 
 
 classification of, 790 
 
 how determined, 792, 807, 810, 842 
 
 right of carrier to arbitrarily change, 666, 783 
 
 addition of local rates, 720 
 
 arbitrary differential added to rates between nearer places, 898 
 
 on competitive articles, 784 
 
 average or mean rate, how ascertained, 591 
 
 what considered in determining, 572, 802 
 
 distance as a measure of, 
 
 592, 652, 663, 719, 726, 727, 730, 731, 782, 793, 794, 797 
 long continued custom, 592 
 
 commercial considerations, 783 
 
 interests of shipper, 784 
 
 interest of carrier, 573, 784 
 
 value of freight, 578 
 
 selling price of article carried, 787 et seq. 
 
 cost of terminal service, 818 
 
 rates charged on another line, 795 
 
 rate fixed by carrier of its own property, 842 
 
 different bulks, 592, 594 
 
 different commodities, 573, 577, 591, 789 et seq. 
 
 different kinds of carriage, 575 
 
 greater expenses of carriage, 652 
 
 difference in cost of loading or unloading, 594 
 
 extent of traffic, and character of country, 589 
 
 amount of, requirement of Interstate Commerce Act as to, 666 
 
 validity of provisions limiting to that named in bill, 925 
 
 validity of prohibition against more than is fair and reasonable, 538 
 
 prohibition against lower than established rule. 592 
 
 contracts for less than schedule rates, when enforceable, 851 
 
 validity of large advances on old rates of long standing, 601 
 
 validity of agreement between competing roads desigued to fix, 689 
 
 graduation of, according to volume of business, 593 
 
 effect of dissimilar conditions upon, 776 
 
 regulation of by single or gross shipment, 751 
 
 effect of competition upon, see Competition. 
 7S
 
 1138 Index. 
 
 FREIGHT RATES— continued. page. 
 
 usual rate implied when omitted from bill, 97 
 
 implication of usual amount not assailable by parol, 98 
 
 local should not exceed through rate, 599 
 
 local need not correspond with through, 599 
 
 through rates need not be on mileage basis, 599 
 
 agsiregate rate should not exceed that of particular articles, 561 
 
 effect of contract fixing, 833, 834 
 
 effect on, of change of place of delivery, 856 
 
 effect on, of use of appliances of another, 779 
 
 effect of rule of internal trallic as to, upon interstate trafTlc, 596 
 
 necessity of being remunerative, 811 
 
 schedule of when presumed to be i)rofitable, 677 
 
 acceptance and transportation as evidence of profitableness, 814 
 
 when sufRciently fixed within statutory restriction upon, 97 
 
 duty of carrier as to the announcement of, 881 
 
 publication of, see Ratk Sheets. 
 
 right of carrier as to, 673, 574 
 
 to contract for lower rate than that published, 740 
 
 to make same rates for all places in same territory, 727 
 to make special rates, 573, 600, t501 
 to charge different rates on anthracite and bituminous coal, 789 el seq. 
 to charge different rates between competitive and nou competitive 
 
 points, 597 
 
 to maintain higher rate to branch line point, 727 
 
 to charge more for loose than packed parcels, 593 
 
 to charge more for rapid transit, 594 
 
 to charge more for carloads of large tonnage, 594 
 
 to charge more where return loads could not be had, 594 
 
 to charge more for improved .stock cars, 594 
 
 to charge more for transportation over steep grades, * 693 
 
 to charge more than carrier's share of joint rate, 783 
 
 to increase by changing from net weight to gross weight, 597 
 
 to charge less for train loads at regular intervals, 593 
 
 to charge less for train loads than for car loads, 648, 593 
 
 to charge less when it rents cars of shipper, 778 
 
 to charge less when return loads are furnished, 578 
 
 to charge less on account of promnt return of cars, 594 
 
 to charge less for wheat than for flour, 783 
 
 to allow for weight of oil barrels, 596 
 
 to distinguish between finished and unfinished goods, 598 
 
 to discriminate between corn and its direct products, 783 
 to distinguish between knock-down trouglis and ordinary lumber, 765 
 
 to prescribe minimum rate and charge for excess, 596, 782 
 
 to make the best bear burden of the inferior, 793 
 
 to discriminate in order to keep down price of its own material, 844 
 
 must be reasonable, 571 et seq., 758 
 
 distinctions in, must be reasonable, 754 
 
 what rates are reasonable, 806, 807, 809 
 
 for local business, 685 
 
 for interstate business, 714 
 
 reasonableness of, what constitutes, 842 
 how determined. 391, 576, 577, 598, 727, 805, 809 
 what considered in determining, 733, 763, 842 
 
 cost of service as a test, 599, 791 
 
 consideration of value of traffic, 577, 595 
 
 consideration of value of service, 576 
 
 consideration of cost of service, 575-577
 
 INDEX. 1139 
 
 PAGE. 
 
 consideration of face of tariffs, 599 
 
 consideration of length and character of haul, 590, 733 
 
 consideration of cost of production, 576 
 
 consideration of profit of shipper, 578 
 
 consideration of profits of carrier, 678, 589 
 
 consideration of earnings of road, 575 
 
 consideration of debts and operative expenses, 576, 802 
 
 consideration of apportionment, 578 
 
 consideration of commercial necessity of carrier, 576 
 
 consideration of surrounding circumstances, 578 
 
 comparison of rates as a standard, 597 
 
 comparison under dissimilar circumstances, 691, 602 
 
 comparison with rates from different places, 595 
 
 comparison of rates on long lines with local rates, ^ 592 
 comparison between profits of carrier who also produces with rates 
 
 charged to others, 848 
 
 what constitutes, as between different localities, 733 
 
 as to competitive commodities, 577 
 
 application of requirement as to long and short hauls, 648 
 
 effect of increased facilities for transporting, 598 
 
 effect of apportionment to different parts of through line, 719 
 
 effect of sparsely settled country on, 601 
 
 effect of method of fixing rates per ton per mile, 589, 591, 592 
 relative reasonableness of, how determined, 572, 573, 710, 711 
 
 a judicial question requiring due process of law, 599 
 
 intent of Interstate Commerce Act as to, _ 574 
 when court may determine as to, 755, 1050, 1051 
 
 presumption as to, 598, 815 
 burden of proof as to, see Burden op Pjioof. 
 
 a question of fact, ^^^ 
 reasonableness of difference in rates a question of fact, oOO 
 time of maintenance as evidence of, 597 
 allovance of less rates for special reasons as proof of unreason- 
 ableness, ^11^ 
 unreasonableness, remedy for, koo 
 inequalities, how traced, 590 
 right to assert, ^^° 
 procedure in determining, see Procedure. 
 
 evidence of, ^^^ 
 
 reduction as evidence of, ouu 
 
 what sufficient to establish, 592, 600, bOl 
 
 defenses to charge of, °4l 
 
 equality required, 574, 732, 757, 758, 876 
 
 by Interstate Commerce Act, • O'O. 'j^ 
 
 effect of dissimilarity of circumstances, 77b 
 
 effect of correction of inequality, oo* 
 
 uniformity required in, , , , , . koi 
 
 construction of statutes as to, when of doubtful meaning, Wl 
 
 providing for amount with relation to distance, 591 
 
 as to reasonableness of and unlawful discrimination in, 574, 784 
 
 making rate over whole line a basis for additional rate, 591 
 
 imposing penalties for imposition of unjust rates, 602 
 
 control over. Federal and state, . . 674, 675 
 
 power to regulate includes power to establish jomt through rates, 521 
 
 regulation of, by Federal authority, gl 
 
 state regulation in business done withm state, 498, 5UU 
 
 in interstate traffic, 500, 501, 530 
 
 on roads passing out of and back mto state, ^J^
 
 1140 INUKX. 
 
 FREIGHT RATES— continued. paob. 
 
 power of state to fix, in interstate traffic, 501, 502, 521 
 
 power of court as to, 509, 1051 
 
 effect of schedule adopted by legislature upon, 537 
 
 when enforcement of schedule of, adopted by legislature will be 
 
 enjoined, 541 
 
 power of Interstate Commerce Commission over, see Intekstatk 
 
 CoMMKKCE Commission. 
 power of railroad commissions as to, see Railroad Commissions. 
 right to compel change of, because of reduction on another road, 679, 730 
 by adoption of rate used temporarily, 575 
 
 on mere conjecture, 575 
 
 when it will necessitate other changes, 784 
 
 elTect of accepting lower rates of one of two parallel lines, 598 
 
 decisions as to, effect of, on rates in other sections, 600 
 
 provisions requiring inclu.sion of terminal charges in, 639, 642-644 
 
 violation of principles governing, as a jusliticatiou for violation by 
 
 another, 770 
 
 FREIGHT STATIONS. 
 
 when niilroud compelled to establish, 77 
 
 FREIGHT TRAIN. 
 
 when a passenger train considered as, 86 
 
 FRESHETS. 
 
 as an e.xcuse for delay, 826 
 
 FRIGHTENED CATTLE. 
 
 loss of from lighter as a peril of the sea, 166 
 
 FRUIT. 
 
 duty of carrier in handling, 810 
 
 FULL CARGO. 
 
 what constitutes, how determined, 75 
 
 G-. 
 
 GAME. 
 
 obligation of carrier to transport when possession is prohibited, 82 
 
 GAME LAWS. 
 
 right to take animals from carrier of interstate commerce under, 935 
 
 GARNISHMENT. 
 
 as an excuse for nondelivery, 932 
 
 GENERAL AVERAGE. 
 
 liability to, on destruction of cargo in extinguishing fire, 180 
 
 exemption from liability to, by contract, 868 
 
 effect of adjustment on right to recover freight charges, 854 
 
 GENERAL COMMERCIAL LAW. 
 
 Federal courts not bound by state decisions as to, 895 
 
 GENERAL COURSE OF DEALING. 
 
 contract limiting liability not implied from. 129 
 
 GENERAL FREIGHT AGENTS. 
 
 authority of, 401 
 
 to contract for carriage of, beyond route, 400 
 
 to bind subsequent carrier by announcement of rates, 407 
 
 GENERAL PRINCIPLES OF EQUITY. 
 
 when state decisions as to, bind Federal courts, 895 
 
 GOODS OF LIKE DESCRIPTION. 
 
 meaning of, as used in Interstate Commerce Act, 775
 
 INDEX. 1141 
 
 GOODS SUBJECT TO DUTY. page. 
 
 delivery of, 342 
 
 GOODS THROWN OVERBOARD. 
 
 when carrier not liable for, 169 
 
 GOVERNMENT RAILROADS. 
 
 liability of Crown for injury to goods carried by, 1024 
 
 GROSS NEGLIGENCE. 
 
 right to stipulate against liability for, 52 
 
 GROUNDING. 
 
 from reflux of tide, a peril of tlie sea, 171 
 GROUP RATES. 
 
 validity of, 728, 729 
 
 under statutes prohibiting discrimination as to long and short hauls, 655 
 
 statutes providing for, 655 
 
 effect of unjust discrimination in, 655 
 
 unjust discimination in, a question of fact, 655 
 
 undue preference as to, what constitutes, 728 
 GUARANTY. 
 
 given to discharge lien for freight, recovery under, 858 
 
 H. 
 
 HABEAS CORPUS. 
 
 right to, of carrier's agent under arrest for refusal to answer, 1091" 
 
 HANDLING. 
 
 liiibility for loss by ncffligence in, 326 
 
 HARBOR PILOTAGE. 
 
 state regulation of, 486 
 
 HARBORS. 
 
 concurrent jurisdiction of state and nation over, 496 
 
 HIDDEN ROCKS. 
 
 liability of master for loss of ship by, 170 
 
 HIGHWAYS. 
 
 from state to state, power of Congress to construct, 488 
 
 within state, state power over, 494 
 
 HOGS. 
 
 duty of carrier as to, in case of delay, 240, 247 
 
 liiibility of carrier receiving car overloaded, 255 
 
 HOLIDAYS. 
 
 right to make delivery upon, 891 
 
 exclusion of, in determining time of delivery, 891 
 
 observance of, when not compulsory, 892 
 
 who required to observe, under Canon Law, 892 
 
 HOULT LAW. 
 
 repeal of, 644 note 
 
 HOUSEHOLD GOODS. 
 
 classification of, as freight, 539 
 
 I. 
 
 ICE. 
 
 liability of carrier for injury to, S07 
 
 IDENTIEICATION. 
 
 want 01, as an excuse for nondelivery, "o7
 
 1142 I.NDiiX. 
 
 ILLEGAL CAPTURE. pa<ib. 
 
 measure of damages for, 35b, 359 
 
 in case of recapture, ;i')9 
 
 when property has been sold, 359 
 
 insurance as an item, 358 
 
 allowance of probable protils of untiaished voyago, 858 
 
 allowance of interest, 859 
 
 allowance of demurrage, 859 
 
 allowance of punitive damages for, 360 
 
 liul)ility of captors for freight and cargo, • 359, 3(50 
 
 who entitled to freight on restitution, 359, 'MO 
 
 wiien full freight is decreed though only part is returned, 360 
 
 ILLEGAL PURPOSE. 
 
 knowletlge of, by fiirricr as an excuse for nondelivery, 937 
 
 IMPORT RATE CASE. . C35tif«e<7. 
 
 IMPOSED DUTIES. 
 
 (•(irpoiiitiniis .siihjrct to iiidiftiiicnt for fiulurc to [HTlorm, 1090 
 IMPOSSIBILITY OF PERFORMANCE. 
 
 as an excuse for luench of express couuucl to carry, 888 
 
 to supply full cargo, 839 
 IMPROVED STOCK CARS. 
 
 right to iiKToascd freight for, 594 
 
 INDEMNITORS. 
 
 when liiilile as owners, 26 
 
 INDICTMENT. 
 
 when corporations are subject to, 1089, 1090 
 
 against carriers for violation of Interstate Commerce Lav^, 1090 
 
 must show that carrier is in purview of, 1092 
 
 when officers and agents of carrier are subject to. 1090 
 liability of freight agent to, who receives and collects improper rates, 1092 
 
 requisites of, for undue preference, 1091 
 
 for unjust discrimination, 1091 
 
 what considered on motion to quash, 1093 
 INDORSEE. 
 
 of bill of lading, title of, 102 
 INDORSEMENT. 
 
 of shipping receipt, effect as a transfer of title, 272 
 INEVITABLE ACCIDENT. 
 
 defined, 163 
 what constitutes, 158, 162, 175 
 
 must be one not avoidable by reasonable precaution, 163 
 
 distinguished from act of God, 162 
 
 care and diligence required in case of, 150 
 
 liability of carrier for damage by, 103, 178 
 
 when the result of human means, 159 
 
 assumption of liability for, by contract, . 164 
 
 exemption from liability for, 174 
 
 as an excuse for delay, 321 
 
 for loss in navigation, 349 
 
 for breach of express contract to carry within specified time, 338, 339 
 effect of, on contract to carry when no time is fixed for completion, 339 
 INFECTION. 
 
 destruction of goods to prevent, as an excuse for nondelivery, 936, 937 
 INHERENT NATURE OR PROPENSITIES. 
 
 liability of carrier for injury from, 231, 253, 254, 298, 919
 
 INDEX. 1143 
 
 INHERENT NATURE OR PROPENSITIES— pontinued. page. 
 
 for injury oa connecting line where partnership relation exists, 259 
 
 for failure to communicate instructions, 392 
 
 Georgia statute regulating, not applicable to steamships, 374 
 
 to connecting carrier when collecting through freight, 855 
 
 termination of, 366, 368, 384 
 
 when it has assumed responsibility for the whole, 366 
 
 when contracting to carry to destination, 406, 415 
 
 effect of failure to disclose, 295 
 
 necessity of pleading and proving character, 267 
 
 of livestock, strength of cars necessary when vicious, 229 
 
 INITIAL CARRIERS. 
 
 right of, to select agency for forwarding, 
 
 318, 373, 377, 392, 393, 668, 669, 678, 679 
 
 effect of Interstate Commerce Act as to, 393, 669 
 
 duty of, in selection of route in absence of direction, 314 
 
 when selected by shipper, 393 
 
 to indicate the one chosen, 813, 314 
 
 termination of liability of, under option to choose, 316 
 
 effect of delivery of goods in car of another as a designation of route, 319 
 
 power of to contract with connecting carrier on behalf of the owner, 391 
 
 to contract with subsequent carrier for limitation of liability, 405 
 
 of freight agent of, to bind connecting carrier, 407 
 
 nature of contract of, a question of fact, 395 
 
 evidence of contract of, 395 
 
 diligence required to secure forwarding of goods, 388 
 
 duty of, to forward goods by best available method in case of refusal 
 
 to receive, 389 
 
 to refund when charges on substituted route are more, 313, 314 
 
 to give notice to shipper in case of delay, 389 
 
 effect of selection of agency for continuance by shipper, 393 
 
 to transfer to connecting line, 257, 258 
 
 diligence required in, 328 
 
 to give notice and protect goods in case of refusal to receive, 389 
 
 delivery by, to connecting carrier, see Delivery to Connecting 
 
 Carriers. 
 right of, to contract to carry beyond terminus of its route, 894 
 
 to assume responsibility for entire route, 381 
 
 to contract to deliver beyond the state incorporating it, 394 
 
 receiver of, to assume responsibility beyond line, 381 
 
 to refuse to receive goods, when shipper insists on delivery beyond 
 
 line, 368 
 
 to pro rata freight where goods were destroyed without fault, 410 
 
 in case of refusal in connecting carrier to receive, 388 
 
 to recover goods on refusal of connecting carrier to give receipt, 394 
 to recover of connecting carrier for loss caused by, 399 
 
 liability of, at common law, 368 
 
 for failure to forward goods, 329 
 
 when carriage extends beyond line, 865-374 
 
 for failure to store in case of refusal to receive, 388 
 
 beyond line dependent on contract, 368 
 
 under contract for shipment, 394 
 
 for negligence of connecting carrier, 371 
 
 for escape of livestock beyond its line, 257 
 
 for delay on connecting line, 367, 373, 383 
 
 for penalty for overcharge on connecting lines, see Overcharge. 
 after arrival at destination and before delivery, 365 
 
 fo^ injury occurring after delivery to connecting carrier, 367
 
 1144 INDEX. 
 
 INITIAL CARRIERS— continued. _ pack. 
 
 for wrougful delivery, 391, 303 
 
 for failure to notify shipper of probability of storms, 390 
 
 for increased rate charged on connecting line, 381 
 
 for overcharges by connecting lines, 408, 409, 924 
 
 eflect of ciiarge of tlirough rate of freight, 36C 
 
 elTect of stipulation limiting liability to own line, 408 
 
 effect of receipt for goods in good order on, at common law, 371 
 
 for injury beyond route in liie absence of agreement, 414 
 
 under assumption of responsibility for entire route, 381 
 
 assumption of, for whole carriage, must be distinctly shown, 360 
 
 limitation of liability of, 365 
 
 applicability of, to each carrier, 404, 405 
 
 elTect of on connecting carrier, 257, 405, 40K 
 
 when not inuring to benelit of subsequent carrier, 292 
 
 release from liability for negligence of connecting carrier, 259 
 
 effect of contract making it a forwarder, 259 
 
 right of, to limit liability to own line, 292 
 
 in case of interstate shipments, 379, 380 
 
 in case of carriage of livestock, 257, 200 
 
 for delay on connecting line, 377 
 
 ■without offering to assume risk for additional compensation, 378 
 
 not applicable to injury on one of a system of roads operated by it, 292 
 
 INJUNCTION. 
 
 restraint of combination of competing lines by, 442 
 
 restraint of discrimination between shippers by, 236, 770 
 
 restraint, unreasonable preference by, 759 
 
 restraint of assignment, of right to use tracks of another by, 424 
 
 restraint of withdrawal of railway connection with stockyard by, 442 
 
 restraint of multiplicity of suits by, 1044 
 restraint,of suit pending appeal in proceedings for limited liability by, 1042 
 
 restraint'of transportation until rate bill is issued by, 1060 
 against enforcement of unreasonable freight rates, defenses to suit for, 541 
 
 against enforcement of schedule of rates, violation of, 537 
 INLAND NAVIGATION. 
 
 application of rule as to storage below deck, 299, 300 
 INSPECTION. 
 
 duty of carrier, as to vessels, 26 
 
 as to freight cars, 26 
 
 of hull and boilers of ferry boats, 516 
 
 of goods, necessity of permitting, 906 
 
 of livestock, duty of shipper as to, 256 
 
 of tobacco, power of state as to, 510 
 
 right of consignee as to, where carrier collects price, 906 
 
 before acceptance, — effect on carrier's contract to collect, 906 
 
 INSTRUCTIONS. 
 
 of shipper, construction of, when doubtful, 862 
 
 liability of carrier for disregard of, 810 
 INSURANCE. 
 
 by carrier, warehouseman or wharfinger, 1009 et seq. 
 
 effect of, 1014 
 
 "what risks covered by, 1009 
 
 right to recover full value of goods lost, 12 
 
 effect of fraudulent concealment of facts in, 1015 
 
 effect of payment of, on liability of carrier, 1022 
 
 effect of payment to owner instead of carrier, 1023 
 
 contract to effect, how constituted, 1022
 
 INDEX. 1145 
 
 PAGE. 
 
 effect of breach of, 41 
 
 right of shipper when refused because of insufficient ventilation, 240 
 
 right to adjust before carrier's liability is established, 1022 
 
 by owner, effect on, of contract limiting carrier's liability, 1016 
 
 owner and insurer treated as one person, 1020 
 
 liability of carrier primary and that of insurer secondary, 1020 
 
 placing ultimate liability on insurer, how effected, 1017, 1018 
 
 shipowner not liable for, under limited liability act, 61 
 
 stipulations giving carrier benetit of, 159 
 
 validity of, 1011-1016, 1016 note, 1021 
 
 effect of, as defense to action on policy, 1011-1016 
 
 effect of, on rights of owner, 1011 
 
 effect on rights of insurer, 1011, 1013, 1014 
 
 effect of failure to disclose upon right to subrogation, 1011-1016 
 
 right to provide that it shall not inure to benefit of carrier, 1017-1019 
 
 effect of provision that it shall not inure to benefit of carrier, 1017-1019 
 
 necessity of notice of provision that it shall not inure to benefit of 
 
 carrier, 1019 
 
 right of subrogation of insurer, construction of agreements as to, 1017 
 
 effect of payment of loss on, 1020 note 
 
 effect of destruction of subject-matter on, 1020 note 
 
 when deemed to be in subordination to contract of shipment, 1011-1016 
 
 by wharfinger, effect of loss by his own negligence, 1011 
 
 against perils of the sea, effect of negligence upon, 1009, 1010 
 
 not covering common law liability, effect of negligence upon, 1009 
 
 procured before shipment, when it takes effect, 1013, 1014 
 
 on goods not actually carried, liability for premiums paid, 99 
 INSURANCE COMPANIES. 
 
 right of, to combine to equalize rates, 432 
 INSURER. 
 
 liability of common carrier as, 2, 11, 12 
 
 liability of, secondary to that of carrier, 1020 
 
 right of, to subrogation to rights of insured, 1017-1020, 1020 note 
 
 to sue carrier in name of assured, 1021 
 
 recovery by, against carrier, when policy does not inure to its benefit, 1021 
 
 not limited to amount of policy, 1022 
 
 INTERCHANGE OF CARS. 
 
 by connecting lines a matter of agreement, 678 
 INTERCHAN<RE OF BUSINESS. 
 
 right of connecting carrier to require, 711 
 
 right to require same facilities as are extended to other roads, 711 
 
 duty of carrier demanding to furnish facilities for, 712 
 
 what constitutes reasonable and equal facilities for, 711, 712 
 
 what constitutes denial of equal facilities, 712 
 
 power of court to compel establishment of same rate, 712 
 
 what constitutes violation of duty to furnish equal facilities for, 713 
 INTERCOURSE. 
 
 commerce defined as, 483, 503 
 INTEREST. 
 
 allowance of, under limited liability act, 61 
 
 on damages for lost goods, 920 
 INTERMEDIATE CARRIERS. 
 
 who are, ^ 382 
 
 riffhXs of, limited to those of initial carrier, ^ 253 
 
 effect of rules of, on contract for carriage, 406 
 
 liability of, for delay while awaiting bill of charges, 342
 
 1146 INDEX. 
 
 INTERNAL COMMERCE. page. 
 
 what constitutes, 508 
 
 effect of, on passage over soil of another state, 508, 527 
 
 power of state over, 494, 49r), 509 
 
 power of Congress to regulate, 508-r)10 
 
 to interfere with state regulations, 511 
 
 INTERNAL RAILROADS. 
 
 when included in acts providing for Interstate Commerce Commis- 
 sion, 526, 531 
 
 INTERNAL TRAFFIC. 
 
 what constitutes, 680 
 
 effect of passing out of and coming back into state, 608, 527, 528 
 
 effect of deliver}' across the line, 529 
 
 effect of connection with outside road, 530 
 
 right of state to exact bonus for permitting, 494 
 
 power of Congress over, 495 
 
 INTERSTATE CARRIERS. 
 
 power of, to classify freight rates, 552 
 
 to adopt special class rates, 575 
 
 lines of, must he arcessil)!e to interstate shippers, 785 
 INTERSTATE COMMERCE. 
 
 what constitutes, 603, "i27 
 
 transportation a constituent part of, 83 
 
 effect on, of temporary stoppage of goods, 530 
 
 of shipping to agent in state and reshipmcnt by him, 531 
 
 when agency of transportation within the state, is engaged in, 629, 530 
 
 when prohibited game becomes a subject of, 83 
 
 regulation of, 1070 
 
 power of states to regulate, 484, 485 
 
 by prohibition of unreasonable freight rates, 574 
 
 prohibiting oyster fishing by nonresidents, 508 
 
 by imposing license fees upon tugs towing vessels, 483 
 
 bj taxation of, 522 
 
 whslt constitutes interference with, regulation of internal traffic, 538 
 
 state statutes limiting liability, 182 
 
 limitation of the time to sue, 273 
 
 imposition of penalties, 324 
 
 Imposition of penalties for nondelivery, 920, 921 
 
 charging higher freight rate for flour than for wheat, 568, 569 
 
 Federal courts not bound by state decisions with reference to, 484 
 
 INTERSTATE COMMERCE ACT. 
 
 provisions of, 1057-1062 
 
 undue preference clause, 606 
 provisions of, as to discrimination, see Discrimination. 
 provision as to long and short hauls, see Long and Short Hauls. 
 
 provision with reference to reasonableness of charges, 574, 1057 
 comparison of, with English Railway and Canal Traffic Act, 
 
 608, 609. 667, 668 
 
 object and intent of, 715, 716 
 
 as to reasonableness of freight rates, 574 
 
 as to competition, 626, 688, 774 
 
 as to contracts and combinations between railroads, 455, 668 
 
 as to agreements in restraint of trade, 467, 468 
 
 with reference to preferences, 707, 772, 771 
 
 as to punishment for violation of its provisions, 1090 
 
 as to private contracts between carriers, 848 
 
 what contracts rendered invalid by, 848, 851
 
 INDEX. 1147 
 
 PAGE. 
 
 construction of, 537 
 meaning of word "line" in, 531 
 meaning of term "goods of like description " in, 775 
 meaning of term " like kind of traffic " in, 778 
 meaning of words " substantially similar circumstances and condi- 
 tions" used in, 604 
 stock car compan}^ not a connecting carrier within, 430 
 what constitutes an arrangement between connecting carriers under, 409 
 what are reasonable facilities for interchange of business under, 427, 428 
 railroad using bridge with its approaches deemed owner under, 429 
 
 to what carriers it applies, 526, 669, 878, 879 
 
 to connecting carriers, 397 
 
 to independent water carriers, 669 
 
 to railroad within state acting independently, 530 
 
 to short road within state used to connect interstate lines, 531 
 
 requirement of posting and filing rate sheets, 878 
 
 application of, to transactions wholly within a state, 1057 
 
 to carriage within state destined to point without it, 631 
 
 to railroad within state connecting with steamers, 531 
 
 to continuous carriage by state carriers from state to state, 1057 
 
 to interstate shipments where no joint tariff is established, 680 
 
 arrangements with one and refusal to arrange with another, 670 
 
 equality of freight rates required under, 575, 775 
 
 recognition of uncertain freight charges under, 858 
 
 discrimination as to shippers under, see Shippers. 
 
 effect of, on aggregate charges according fo distance, 592 
 
 on existing agreements for special rates and rebates, 886 
 
 on validity of rebates, 885 
 
 on rate made in foreign port, 680 
 
 on right of carrier to select agency for forwarding, 893, 669 
 
 duties of carriers under, 669 
 
 to adopt reasonable rates, 574 
 
 as to announcement of rates, 881 
 
 to collect rates adopted under, 409 
 
 as to all lines connecting with it, 416, 417 
 
 to transport cars of another company, 428, 429 
 
 to honor tickets issued by connecting line, 428 
 
 duties imposed upon Interstate Commerce Commission by, 524 
 
 right of carrier under, to make such traffic arrangement as it chooses, 421 
 
 to refuse to furnish facilities to connecting carrier, 417-419 
 
 to compel joint arrangement, 424 
 
 to compel interchange of business, 429 
 
 rights and duties of connecting carriers under, 415 et seq. 
 
 as to through traffic, 711 
 
 to require interchange of business, 711 
 
 to terminate arrangement for through traffic, 415, 416 
 
 classification of articles under, see Classification of Freight. 
 
 violation of, refusal to furnish cars, 19 
 
 adoption of different freight classifications, 560 
 
 subjecting certain through traffic to local rates, 650 
 
 selling tickets with limited stopover privilege at a less price, 1093 
 
 act imposing penalty for failure to feed and water livestock, 242 
 
 collection of full rate where goods were shipped at less rate, 410 
 
 refusal of connecting carrier to deliver on tender of less than 
 
 schedule rates, 407, 408 
 
 proof necessary to establish, 1090 
 
 Accuses for, 1092
 
 1148 
 
 INDEX. 
 
 PACK. 
 
 650. 683 
 
 1061, low 
 
 75 
 
 1052. 1064 
 
 622 
 
 533, 1051. 1053 
 
 INTERSTATE COMMERCE ACT-contiiuied. 
 evasion of by deiluration that carriage is local, 
 
 jurisdiction ovrr violation of, 
 jurisdiction of Federal courts under, 
 remedy for violation of, 
 enforcement of duty to transport under, 
 power of commission to award damai,'e8 under, 
 order for relief wlien necessary under, 
 reparation for past injuries under, 
 power of United States government to puiii>-li violations of, com- 
 mitted in Canada, 
 indictment for violation of, 
 re(iui?ites of indictment, 
 
 procedure for enforcement of, see PRorKDURE. 
 INTERSTATE COMMERCE COMMISSION. 
 creation of, 
 purposes of, 
 duties of, 
 
 to determine reasonablenrss oi rates, 
 
 to interfere in case of departure from rules, 
 authority of, 
 
 scope of. under power to m; ke orders for relief, 
 
 to relieve from hardship, 
 
 to prevent wrong and oppression, 
 
 to enforce contracts or manage business, 
 
 to inquire into management of business of carriers, 
 
 to restrict competition, 
 
 to attempt to overcome natural advantages in fixing rates, 
 
 to revise or correct classification, 
 
 to correct misuse of classification, 
 
 to make rates generally, 
 
 to require adoption of a uniform mileage basis, 
 
 to determine reasonableness of rates, 
 
 1092 
 1090 
 1092 
 
 623, 1060 
 523, 524 
 524 
 809 
 629 
 624, HOI 
 322 
 526 
 533 
 533 
 1072 
 408. 471 
 784 
 549 
 647 
 633, 575 
 526 
 524, 547, 599. 809. 842 
 in preliminary procee(..ngs, 842-S44 
 
 to determine whether rates are in conflict with statute, 538 
 
 to compel carrier to increase rates, 575 
 
 to grant relief by permitting change of rates, 628 
 
 to reciuire the establishment of through rates, fi77 
 
 to compel joint arrangement, 670, 671 
 
 to compel receipt or delivery of freight from or to connecting carrier, 679 
 under provision as to long and short hauls, 618 
 
 as to suspension of regulation as to long and short hauls, 646 
 
 to determine right of railroad to hold stock in coal company, 804 
 
 to determine what price carrier as shipper must buy at to pay full 
 
 freight, 804 
 
 to adjust operations of carrier as miner, shipper and seller, 805, 839, 840 
 to summon witnesses and require production of books and papers, 1065 
 to grant relief under fourth section proviso of the act, 534 
 
 to institute investigations without complaint or damage, 533. 534 
 
 to grant accounting for profits under contract for same rates as 
 
 others, 843 
 
 to award damages, 1052, 1055 
 
 jurisdiction of, when ultimate destination is outside of state, • 531 
 
 over act done before passage of Act, 532 
 
 effect of placing property in hands of receiver, 534, 535 
 
 reports of, 524-526 
 
 what questions determined by, 533 
 
 findings of, as evidence, 524, 535
 
 INDEX. 
 
 1149 
 
 PAGE. 
 
 what are special cases for relief by, 629 
 
 ri'^ht to hearing before, as to reasonableness of rates, wy 
 
 rules of, as to long and short hauls, ol». «i^ 
 
 course adopted by with reference to uniform classification, MU 
 
 resolutions of. as to adoption of provisions of Interstate Commerce Act. b7^ 
 
 change of extended system of freight rates by, ^o* 
 
 when it will interfere with method of priutmg rate bill. »»i 
 
 violation of orders of, by refusal to aflford facilities for exchange, 71d 
 
 expression of opinion by, in cases not within its jurisdiction, 5.^6 
 
 as to rates after abandonment, °"^ 
 
 when required to invoke aid of Federal courts, oao 
 
 enforcement of orders of, by Federal courts, . , . * 
 
 effect of submission of question as to past damages upon "gnt of 
 
 action, 1"^*' ^"^^ 
 
 suits to enforce orders of, see Proceedings. 
 procedure before, see Procedcue. 
 
 determination of, ho%v enforced, "'** 
 
 INTERSTATE TRAFFIC. gg^ 
 
 what constitutes, „„« 
 
 through shipments over connecting lines, «o" 
 
 legislative power to fix freight rates as to, »*j 
 
 state regulation of freight rates as to. ^^^^ '^^^ 
 
 by taxation upon gross receipts of, 2qq 
 
 by refusing equal rights and privileges to passengers, *»» 
 
 right of carrier of, to make reasonable charges for moving, ooo 
 
 to declare it local, ^-q 
 
 to issue through tickets, or give through rates. ^;J^ 
 
 freight rates as to, under Interstate Commerce Act, o^ 
 
 through rates as to, dependent upon agreement, *-* 
 
 effect on, of statute regulating rates, ^ 
 
 of adoption of rule as to rates in internal traffic. Jo» 
 
 of enforcement of interstate commerce law on roads within state, b/o 
 
 of state statutes providing for nondelivery, »-^ 
 
 effect of change of law on contracts with relation to, o^n 
 
 when railroad becomes carrier of , ' 
 
 when combinations to prevent competition as to, are ultra vires 44d 
 
 authority of English cases as to, ^^^ "^^ 
 
 INTERVENTION. o^o 
 
 by owner, in action by carrier against wrongdoer. ^JJ^ 
 
 INTOXICATING LIQUOR. ^ ^ ^^ 
 
 in action by carrier for collision. 
 xOXICATING LIQUOR. 
 
 when express company not bound to transport, 
 
 ^ effect of statement in. that goods were shipped with draft, 113 
 
 J. 
 
 JETTISON. 311 
 
 where a loss by penis of the sea. „.^ „,. 
 
 of heavy goods on deck, wh(n justifiable, ^'■^' ^ 
 
 duty of master to determine necessity of, ^ 
 
 conclusiveness of determination of master as to necessity of. |1J 
 
 liability for, when vessel aground, g^^ g^^ 
 
 of goods stored on deck, ' gg^ 
 as an excuse for nondelivery, 
 
 ^'^^ p^wer^-fSor withhold under United States revised statutes. 678
 
 1150 INDEX. 
 
 JOINT RATES— rontinuml. taoz. 
 
 power to establish included in power to regulate rates, r>Cl 
 
 wbat carrier, within provisions of Interstate Commerce Act as to, 878. 879 
 
 as an entirety, 679 
 
 ettect of requirement of, on duty to contract with other roads, 521 
 
 effect of establishment of, on lial)ility when rate is unlawful. 880 
 effect of failure to establish upon application of interstate commerce 
 
 law, 680 
 
 refusal to make, not unjust discrimination. 678 
 
 unreasonable adjustment of as an unjust discrimination, 719 
 
 reasonableness of, effect of expenses of carriage on, 665 
 
 effect of mileage, 652 
 
 rale bills as to, what must be shown in, 879 
 
 who may file, 8«1 
 
 how printed. 881 
 
 how and where posted, 880, 881 
 
 where kept. 881 
 
 in violation of law, power to furnish when part of line is in Canada, ln92 
 
 ap|)orli()nnient of, a matter of agreement, 677 
 
 JOINT TRAFFIC ARRANGEMENTS. 
 
 not an excuse for viol.ition of interstate Commerce Act, 1092 
 
 JUDICIAL FUNCTIONS. 
 
 what const ilules. 1081. 1086, 1088 
 
 JURISDICTION. 
 
 over torts, locality the leading test of, 1048 
 
 amount in controversy, conclusiveness of alleged value, 1044 
 
 in suit to restrain multiplicity of suits, for overcharge, 1044 
 in admiralty, see AoMiitALTY. 
 of Federal courts, see Feukual Coukts. 
 of state courts, see State Couuts. 
 
 of interi^tate commerce commission, see Inteustatk Commerce 
 Commission. 
 
 L. 
 
 LANDSLIDE. 
 
 liability of railroad company for injury by, 177 
 LATERAL RAILROAD ACT. 
 
 constitutionality and construction, 441 
 
 LAW OF PLACE. 
 
 general rules, 63-66 
 
 governing construction and validity of contracts, 893 
 
 governing contract of shipment, 70, 71 
 
 governing obligation of shipper, 306, 845 
 
 governing bills of lading, 150 
 governing rights of parties to interstate carriage, 398, 399, 896 
 governing injury in another state while passing from place to place 
 
 in same state, 69 
 
 governing contracts valid in one place and not in another, 894, 895 
 
 governing validity of sale of cargo at port of refuge, 174 
 
 right to stipulate as to what law contract is governed by, 1033 
 
 what presumed to have been intended in making contract, 894 
 
 proof of intent as to, 894 
 
 right of foreign carriers to stipulate for exemption from liability, 72, 73 
 
 contract exempting from liability proved by law of the forum, 63 
 effect on rights under American bill of lading, off coast of England, 894 
 LAW OF THE FLAG. 
 
 effect of, on freight charges, 845
 
 INDEX. 1151 
 
 LAW MERCHANT. pa<?e. 
 
 formality required ia stipulations, varying, 95 
 
 LEAKAGE. 
 
 when a peril of the sea, 168, 169 
 
 liability of carrier for, 919 
 
 damage by, contributed to by carrier's negligence, 169 
 
 right to contract for exemption from, 157 
 
 no presumption of negligence from, 1032 
 
 loss of part by, as an excuse for refusal to receive balance, 919 
 
 LIABILITY OF CARRIER. 
 
 extent of, , 11, 13, 102 
 
 at common law, ' 7, 13, 35, 36, 41, 335 
 
 grounds of, 36 
 
 remote and proximate cause, 309 
 
 regulated by law and not by contract, 54 
 
 not affected' by failure to give bill of lading, 104 
 
 not affected by ownership of carriage, 78 
 
 arises from failure to deliver goods, 15 
 
 who carries in a particular case, 3 
 
 under special contract for carriage, 43 
 
 effect of care on, 14 
 
 what must be shown to excuse, 174, 189 
 
 for negligence mingled with the act of God, 15 
 
 distinction between that of carriers of goods and of passengers, 11 
 
 right to assume enlarged liabilities, 54 
 
 for wrongful acts of strangers, 16 
 
 when it commences, 1034 
 
 after receipt and before transportation, 79 
 
 where notice of readiness for transportation has not been given, 980 
 
 where goods are allowed to remain for convenience, 984, 990 
 
 when goods are detained at request of shipper, 980 
 
 for goods deposited subject to future orders, 980 
 
 when shipper selects means of transportation, 16, 17 
 
 when shipper loads goods, 15, 78 
 
 when owner accompanies goods, 15 
 
 effect of shipper's management of property on, 296 
 
 effect of owner not loading or accompanying property, 51 
 
 for defective vehicles when shipper knew of the defect, 16 
 
 for jewelry contained in baggage, 36 
 
 under contract of shipment of fruit at owner's risk, 13 
 
 when transportation involves extraordinary risk, 15 
 
 when unable to carry goods to destination, 149 
 
 for breach of contract to forward freight, 261 
 
 while goods are deposited in warehouse en route, 979, 980 
 
 previous to delivery, former rule as to, 990, 991 
 
 for delivery of goods without surrender of bill of lading, _ 104 
 after arrival and storage in warehouse, 256, 980, 984, 986 
 
 for accidental loss after notice of arrival, 984 
 
 after warehousing goods consigned to firm having no existence, 982 
 
 after delivery to agent for deposit in warehouse, 990 
 
 after delivering cars upon private track of consignee, 982 
 after storage where consignee has had no opportunity to remove, 
 
 ^ 986, 987, 994 
 
 continuance of, until reasonable period after notice of arrival, 905 
 
 where goods are left after notice that they cannot be stored, 1000 
 
 after giving incorrect information that goods had not arrived, 983, 984 
 
 effect on, of fraud or imposition of shipper, 50 
 
 effect of payment of freight in indirect benefits, 866
 
 115ii INDKX, 
 
 LIABILITY OF CARRIER— continued, faob. 
 
 by Wilier, 160 
 
 no distinction between carriers by land and by water, 335 
 exemption from, see Exkmi'tion kuom Li.vimmty. 
 limitation of, see Limitation of Liaiulity. 
 
 termination of. 836. 987-989, 992 
 
 by profKirty passing into possession of owner, 999 
 
 by carriage and storage, 986. 990. 991. 998 
 
 ellect of statute requiring notice of arrival, 992, 993 
 
 necessity of notice of arrival, 994-1001 
 
 without notice of arrival, 9H7, 9M9-991 
 
 reasonable time for consignee to get, as affecting, 993-1001 
 
 where consignee is to do unloading, 990. 992 
 
 where consignee is unknown or cannot be found. 9H>). 999 
 
 commencement of liability as warehousemen, 906, 985, 989. 993, 994 
 
 when it acts as warehouseman, forwarder or wliarfinger, 979 
 
 as warehouseman after contract as carrier is fulfilled, 15 
 
 after arrival and reasonable time to remove. 979 
 
 where carrier has no warehouse, 997 
 
 where goods are stored by express direction of consignee, 979 
 
 apportionment of. to different causes of injury, 160 ♦)77 
 
 whether to consignor or con>ignee dependent upon circumstances. lOOtt 
 
 effect on, of incorrect description in bill of lading. 105 
 
 effect on, of knowledge of shipper that agent was prohibited from 
 
 receiving, 935 
 
 LIBEL. 
 
 effect of filing, lien secured by, 873 
 
 against ships, right of consignee to sustain, 1007 
 
 LICENSE TAXES. 
 
 power of states to impose, on ferries between states, 504 
 
 on vessels plying within its jurisdiction, 505 
 
 validity of, on sale of meats, 484 
 
 on travelling salesmen, 484 
 
 on steam tugs, 4»3 
 
 LIEN. 
 
 for salvage paid, 856 
 
 for demurrage, 974 
 
 for compensation for transportation, 571 
 
 right to require security before delivery, 857, 863 
 
 of pledges of vessel and freiglit, 863 
 
 upon goods delivered to carrier by wrongdoer, 859, 861, 863 
 
 upon goods purchased at conditional sale and not paid for, 861 
 
 upon goods subject to lien for prior freights, 864 
 
 of connecting carrier, 318, 319, 862 
 
 for charges paid initial carrier, 864 
 
 when shipper has not paid in full, 860 
 
 when initial carrier forwarded goods to wrong place, 862 
 
 on goods received to be sent by another route, 859 
 
 right to retain whole freight in satisfaction of, 855 
 
 duty of carrier as to care of goods held under, 864, 865 
 
 waiver of, by unconditional delivery, 863 
 
 special delivery as a waiver of, 863 
 
 waiver of, by placing refusal to deliver on other grounds, 863, 864 
 
 right to contract that delivery to warehouse shall not be a waiver, 863 
 
 existence of, when carrier does not charge directly. 850 
 
 after transportation, superiority over lien of pledges, 856, 857 
 
 goods, how held when delivered to warehousemen, 865 
 
 preservation of, when stored in absence of consignee, 857
 
 INDEX. 1153 
 
 PAGE. 
 
 subordination of, to right in stoppage in transitu, 864 
 
 effect of provision for collection upon existing equitable remedy, 857 
 
 how satisfied, 858 
 
 recovery under guaranty given to discharge, 858 
 
 enforcement of, by sale, 865 
 
 sale under, see Sale. 
 
 of contract of affreightment, 868 et seq. 
 
 effect of absence of contract, 871 
 
 on vessel, when it attaches, 808, 869 
 
 for insutliciency of, or fault of master or crew, 871 
 
 priority of, 871 
 
 secured by filing libel, 873 
 
 effect of, on right to proceed in rem or in j)e7'sonem against owner, 873 
 
 of vessel on cargo in case of collision, 1040 
 
 for advances on bill of lading, priority over rights of consignee, 107 
 
 effect of i)rovision for in charter-party on liability of charters, 865 
 
 retention of. as an unjust discrimination, 776 
 
 grunted by local law when recognized in admiralty, 1048 
 
 LIGHTS. 
 
 on ferry boats, how regulated, 516 
 
 LIGHTERAGE. 
 
 liability for, pending proceedings to obtain permit to effect removal, 969 
 
 LIGHTERS. 
 
 not within limited liability act, 1040 
 
 delivery to, liability for loss before reaching vessel, 80, 81 
 
 LIGHTNING. 
 
 an act of God. 160 
 
 liability for fire caused by, 178, 182 
 LIKE KIND OF TRAFFIC. 
 
 nieanint;: of, in Interstate Commerce Act, 549, 778 
 
 LIMITATION OF ACTION AGAINST CARRIER. 
 
 validity of. 220, 222, 1038 
 
 under Dakota Civil Code, § 958, 326 
 
 under Texas Act of March 4, 1891, 273 
 
 consideration for, 274 
 
 time of commencement to run, 224, 878 
 
 what is reasonable, 221-225, 274, 870, 1039 
 
 when delay will be excused, 224 
 
 waiver of, by carrier, 223 
 
 power of station agent to waive, _ 401 
 
 waiver of, by agent known to be without authority, 225 
 
 strict construction as to application of, 275, 870 
 
 application of, to penalty for failure to feed and water stock. 242 
 
 LIMITATION OF LIABILITY. See also Exemption from 
 
 Liability. 
 
 by contract, 34 et seq. 
 
 policy of permitting, 219 
 
 constitutional prohibitions of, 57, 293, 294 
 
 statutorj' prohibitions against, 49, 56, 57 
 
 application of state prohibition against, 539 
 
 existence and extent of right, ^„ „^^ 
 
 41, 43, 44, 47, 51, 52, 72, 180, 193-196, 289, 290, 294 
 
 in the different states, 54, 56, 127, 128 
 
 in Canada, ak^I? 
 
 English doctrine, *"• *' 
 
 ?3
 
 1154 INDKX. 
 
 LIMITATION or LIABILITY— continued. »•*"« 
 
 riglil of, uihIlt Init r»iHle Coininerce Act, ttlO 
 
 under English Kailwuy and Caual Traffic Act, 278, 271* 
 
 when not controlliug, 4^) 
 must bo just and reasonable, 39, 45, 49. 52, 55, 120, 181, 194, 195. 2o«i 
 
 right based upon reasonableness, 278 
 
 what is reasonable, 40 
 meaning of " just and reasonable " as used in the English statute, 279 
 
 must be fairly obtained, 40 
 
 right to make it a conditioD of carriage, 151. 21(2 
 
 consideration for, 45. 40. 179, 2U1 
 
 reduction of rate as a consideration for, 201, 202, 287 
 
 reduction must be reasonable, 201 
 
 right of carrier to charge in proportion to risk, 47, 48 
 
 by payment of a smaller rate, 201, 202 
 
 uecessity of olTering alternation of common law liability, 45, 48. 181 
 
 option to secure cheaper rate by waiving, 44, 45 
 
 release not valid without option, 44 
 
 provision for full payment in case of negligence, 52 
 
 proof of consideration, 49 
 
 when value not stated and increased charge paid, 44 
 effect of absence of consideration, or reijuiremeul to disclose value, 48 
 
 shipper must demand full liability contract, 49 
 
 assent of consignor, 125 
 
 carrier's terms must be accepted as the contract of carriage, 82 
 
 requisites of, 45 
 
 contract must be clear and explicit, 54 
 
 necessity of express stipulation, 55, 56, 125 
 
 necessity of shipper's signature to shipping receipt, 120 
 
 acceptance of smaller rate, 47 
 
 acquiescence in use of bill containing limit, 120, 130 
 
 by express agreement or special acceptance, 41 
 power of agent to assent, see Aobnts. 
 
 no distinction between state and interstate traffic, 43 
 after receipt of goods, without restriction, 133-135, 181 
 by shipment of fruit at owner's risk. 13 
 for baggage, by clause on back of ticket, notice of, 131 
 in ticket, controlled b)' payment of larger rate. 202 
 for loss after unloading cargo, reasonableness of, 903 
 liability as warehouseman under, 945, 940 
 effect on, of permission to load goods at risk of shipowner, 958, 903 
 to that of warehouseman upon delivery in carrier's warehouse, 943 
 losses within exception, 151 
 for loss caused by strikes, 346 
 for theft by servants, 151 
 for breaking and chafing, not applicable to breaking of horse's leg, 289 
 for default in navigation, no protection against liability for negli- 
 gence. 307 
 for goods left on wharf, construction of, 950 
 effect given to, 151 
 effect where several different bills are given, 127 
 effect of. on insurance by owner, 1010 
 effect of usages and customs as to. 390 
 effect on, of delivery in wrong place, 944, 945, 951, 952 
 effect on, of delivery to wrong person, 945 
 effect of negligence or unnecessary delay on, 9, 340 
 effect of transporting with knowledge of noncompliance with 
 
 conditions, 204
 
 INDEX. 1155 
 
 PAGE. 
 
 effect of inability of shipper to read contract, 379 
 
 to delivery to named consignee, how effected, 909 
 
 for negligence, see Negligence. 
 
 for malfeasance, see Malfeasance. 
 
 by connecting carriers, see Connecting CARRiERa 
 
 by initial carriers, see Initial Carriers. 
 
 to a specified value, see Value. 
 
 validity governed by law of place where made, 64 
 
 waiver of by departure from contract, 148 
 
 proof must bring loss within exception, 287 
 
 presumption in favor of, 50 
 
 burden of proof as to, see Burden of Proof. 
 
 action how brought in case of, 1006 
 
 by requiring notice of injury, reasonableness, 273 
 
 by notice, see Notice. 
 
 by statutes, see Stati'tes. 
 LIMITED LIABILITY. 
 
 to what injuries applicable, 60 
 
 colii-sion, when both vessels are in fault, 62 
 
 in case of libel of sunken vessel after being raised and repaired, 61 
 
 amount of, effect of raising and rep'airing vessel, 62 
 
 wlieu freight estimated in ascertaining, 62 
 
 for freight, passage money and prepaid freight included in, 62 
 
 shiposvuer not liable for insurance, 61 
 
 effect of surrender to underwriters upon right to proceed for, 60, 1042 
 
 how claimed, 60, 1040 
 surrendering ship, or paying her value, 1040, 1041 
 
 how pleaded, 1041 
 
 proceeding for, how conducted, 62 
 
 time of determining shipowner's interest, 60 
 
 sufficiency of appraisement at time of libel, 1043 
 
 effect of appraisement on right of re appraisement, 62 
 measure of value of matter in dispute in, 1042, 1043 
 
 right to enjoin other proceedings for collection, 63 
 
 effect of, upon actions and suits for same damages, 63, 1042 
 
 as to one party upon right to claim against another, 1041 
 
 discharge of by surrender of ship and freight, 61 
 
 effect of diminished value on, 1041 
 
 apportionment of amount, 61 
 
 by assigning vessel to trustee, 1041 
 
 by payment into court, 60 
 
 LIMITED LIABILITY ACT. 
 
 provisions of, 1039 et seq. 
 
 effect of special contract upon, 1040 
 
 effect of exemption under, on liability as bailee for hire, 1040 
 
 application of, to marine torts, 63 
 
 to acts on high seas and waters of United States, 59 
 
 to collisions, 59, 60 
 
 to damage to ship by fire originating upon deck, 943 
 
 to foreign vessels, 59 
 
 to vessels plying between ports of same stale, 59 
 
 to vessels used in inland navigation, 69, 1040 
 
 to fishing vessels, ^^ 
 
 to canal boats, ^® 
 
 to vessels stranded by negligence of master, 60 
 
 to proceedings in rem, ""
 
 1156 TNDKX. 
 
 LIMITED LIABILITY ACT— contitiii.-'I paok 
 
 lialjility of sliipowiior iindtT, for loss by liro, 5H 
 
 for einbtz/.leinent, loss, etc.. of goods, 58 
 
 for precious metals when value not given, 58 
 
 allowance of interest under, 61 
 
 apportionment of loss under, 59 
 
 distribution of funds under, 1041 
 
 limitiilion to value of ship and freight at time of injury, 104:j 
 
 what constitutes termination of voyage within, <J1 
 
 right to institute proceedings under, without waiting for suit, 1041 
 
 after final decree in cause for collision. 1041 
 
 effect of decree in action for collision on proceedings luider, 1041 
 
 effect of, on payment of costs in district court, 59 
 
 effect of proceedings under, after satisfaction of demand, 1041 
 
 LINE. 
 
 meaning of term in Act to Regulate Commerce, 531 
 
 LIVESTOCK. 
 
 duties and responsibilities of carriers of. 241, 253 
 
 duty of carrier to provide place to receive, 236 
 
 to provide place for delivery, 236. 237 
 
 to furnish cars on reasonable notice, 760 
 
 to furnish suitable cars for, 228-231 
 
 not avoided by calling attention to defects, 231 
 
 to see that cars are properly loaded, 235 
 
 to feed, water and care for, 239. 240 
 
 to provide for, not relieved from, by rush of business, 240 
 
 effect of exemption from liability beyond line upon, 241 
 
 effect of exemption from liability for delay, 267 
 
 to unload when in bad condition, 244 
 
 of vessel contracting to carry, 230 
 
 when owner assumes responsibility and takes care of stock, 293 
 
 as to stopping train for shipper accompanying stock, 297 
 
 to furnish opportunity to unload and feed, 245 
 
 to deliver to connecting line, 257 
 
 to put cars of connecting carrier in order, 255. 257 
 
 to give opportunity to unload in case of floods, _ 244 
 
 duty of shipper to communicate particulars which would increase 
 
 the risk, 256 
 
 as to inspection of. under Texas statute, 256 
 
 right of carrier to transfer duty to care for, to shipper, 239. 241 
 
 to carry for one to the exclusion of another, 732 
 
 to make yards of certain company its exclusive stock depot, 982 
 
 right of shipper to cars specially constructed with improvements, 779 
 
 to have cars laid out when improperly loaded, 245-249 
 
 to compel delivery at place furnished by consignee, 236 
 
 liability of carrier for, when it attaches, 255 
 
 failure to furnish suitable cars for, 231, 232 
 
 failure to fumigate cars after carrying diseased animals, 256 
 
 delay in furnishing cars contracted for, 265 
 
 for injury from defect in place for loading, 237 
 
 negligent loading, 235 
 
 negligence in transportation, 258, 269, 271 
 
 effect of carrier's usage on, 269 
 
 failure to feed and water, 242, 244 
 
 injury by storm, 169 
 
 maintaining unsuitable pens, 236 
 
 injuries inflicted by animals upon selves or each other, 254, 271
 
 INDEX. 
 
 1157 
 
 PAGE. 
 
 miscarriage of shipment by mistake, 273 
 
 promiscuous intermingling of cattle, '»<^'^' *'" 
 
 when car belongs to stockowner, ^o* 
 
 effect of refusal to repair because of extra charges, '«'" 
 
 effect of knowledge of shipper of unsafe condition of platform, ^y / 
 
 when owner takes care of, oa? 
 
 failure to maintain safe appliances for use of shipper. ^^^ 
 
 failure to furnish facilities for unloading and feeding, 239, 241, 243, 244 
 failure to care for when carried beyond destination, ^41 
 
 injury from unknown cause, ^'t 
 
 effect of giving shipper pass to go with, ^00. ^'^ 
 
 effect of negligence of shipper in loading 'i*" 
 
 loss from vicious nature of, see Inherent Nattjue o^ Propensities^ 
 
 for delay ' ' ' 
 
 keeping in same car for more than twenty-eight hours, 244, 245 
 
 when owner takes care of, . **^ 
 
 when it induced shipper to ship at improper time, ^04 
 
 for failure to deliver after arrival, ^^0 
 
 failure to deliver at agreed time, *^* 
 
 for delivery to wrong person, o^nJ-ia 
 
 proof necessary to establish. *'" ^'^ 
 
 burden of proof of negligence when shipper takes charge, ^41. ^71 
 
 relaxation of common law rule as to, ^«^. ^^^ 
 
 under contract limiting liability to own line, -iJ^ ^2» 
 
 ilidity of contracts relieving from, *^^ 
 
 availibility of, to lessor of road, '^^' 
 
 limitation of value in contract of carriage, see Value. 
 
 liability of connecting carriers for, see Connecting Carriers, In- 
 itial Carriers. 
 
 delivery of, see Delivery. 
 
 damages for refusal to transport, see Damages. 
 
 nroof of damage to, see Expert Testimony. 
 
 contract for transportation of, adopted by committee on railroad^^^^^ 
 transportation, . . ~' oec 
 
 when stipulations in contract not binding on connecting earner, ^55 
 
 contract to unload, effect of contrary usage ^o* 
 
 effect of contract that shipper shall load and unload, ^4^ 
 
 effect of assumption of entire risk by shipper, 
 
 acceptance of car for transportation, when carrier relieved ^'^'^^^^_^^^ 
 
 liability by, 000 2«iS 
 
 not an estoppel to assert unsafety, *''^' g^^ 
 
 rates charged for transportation of, ■ ■, t ooq 
 
 character of motive power and appliances required for. |~» 
 
 when considered as received for shipment, 
 
 reasonable dispatch required in shipping, ^"^' " 
 
 delay in shipment and delivery of, excuses for, ^«>i. ^^^ 
 
 what constitutes unreasonable delay, ^^g 
 
 delav in delivery to connecting carrier, . 
 
 corSn^of shipper to failure to feed and water as an estoppel, 241 
 
 penalties for failure to care for, how recovered, 
 
 notice of loss of, see Notice of Loss. ggg 
 
 facilities for loading, implied invitation to use, ^^^ 
 liability for injury from defects m, 
 
 LOCAL RATES. ^ . ^ ^. . . 652 
 
 need not correspond with divisions, ggg 
 
 right to make, higher than joint rate.
 
 1158 INDEX. 
 
 LOCALITIES. PAQK. 
 piclcieiiccs between, right to muke, 714 el iiff/. 
 
 object of Iriterstiile Commerce Act as to, 716 
 
 for purpose of overcoming natural advantages, 710-721 
 
 because of municipal sul>scription to road, 715 
 
 when departure from long and short haul rule is justifiable, 717, 7iy 
 
 by means of paying drawback or expense bill, 720 
 
 because of large amount of trallic, 721-724 
 
 as between transportalion of pork and of live hogs. 721-723 
 
 because of cost of transportation, 723 
 
 because of difference in character of property carried, 723 
 
 because of shrinkage of |)roperty carried, 724 
 
 because of large investments of capital in industries, 724 
 
 by furnishing free cartage at one place and not at another, 72."). 72li 
 by sending goods beyond line from one point and not from another. 727 
 
 as to towns not reached, 727 
 
 as to large and small town in same neighborhood, 727 
 
 by maintaining higher rate to brancli line point, 727 
 reasons for, 715, 721-724 
 
 because of greater danger from transportation, 730 
 
 two towns in same neighborhood, 730 
 
 refusal to give through rate. 732 
 what is undue and unreasonable, 715. 719, 731, 733 
 
 necessity of relative reasonableness of charges, 711, 730 
 
 not justified when circumstances and conditions are similar, 718 
 
 what constitutes dissimilarity of conditions, 731 
 
 burden of proof of dissimilar circumstances, 717 
 
 elTect of commercial conditions, location, etc., 716 
 
 effect of competition upon, 718 
 
 not justified by use of different kind of cars, 721-723 
 
 effect of reduction as to one place, 725 
 
 not established by fact of different rates for different sections, 727 
 
 duty of carrier giving low rates to some localities, 730, 731 
 
 right of locality discriminated against, 730 
 
 right to relief, whether serious or trivial, 717 
 
 objections to correction of, 715 
 
 right of carrier to complain of, as against a connecting carrier, 714 
 
 LOCALITY. 
 
 meaning of, in act prohibiting discrimination against, 540 
 
 LOCKS. 
 
 power of state to construct and regulate, 510 
 
 LONG AND SHORT HAULS. 
 
 common law duty of carrier as to distinction between, 571 
 
 equality of privileges as between, 661 
 
 provision of Interstate Commerce Act as to, 606, 637, 638, 1058 
 
 purposes of, 609 
 
 construction of, 607 
 
 what constitutes a violation of, 560 
 
 recognition in England of principle of restraint of rates as to, 647 
 
 difference between English and American provision as to, 608 
 
 p.pplioation of requirement of reasonable rates and provision probib- 
 
 iting unjust discrimination as to, 648 
 
 authority of Interstate Commerce Commission as to, 618 
 
 rules of Interstate Commerce Commission as to, 618, 619 
 
 regulation of rates as to, how put in force, 645 
 
 suspension of, in special cases, 646
 
 INDEX. llo9 
 
 PAGE. 
 
 suspension of, by Interstate Commerce Commission, «i|j 
 
 number of states adopting, °!J 
 
 classiticatiou of freight rates as to, g^ 
 
 right to charge same rates for, riq fiqn fi^l 
 
 right of carrier to determme as to rates for, t)19, bdU, brfl 
 
 estimation of rate in proportion to distance, o^* 
 right to charge more for short haul, 615, 639, 640, 644, 649, b54 
 
 for purpose of building up trade centers, ^V^, ^40 
 
 for encouragement of some industry, o|». "^^ 
 
 when it is more expensive, o^"^> "'''• "|° 
 
 because of difference in bulk, " 
 
 because of return of cars, "* 
 because of competition, see Competition. 
 
 intent of rule as to. with reference to natural advantage?, a» 
 
 right to charge more for local traffic, ^^ 
 
 right to make local rate higher than jomt through rate, bo4, b55 
 
 right to increase charges between intermediate points, bOd 
 
 unreasonable rates and unjust discriminations as to, o^J 
 
 difference between proportionate rates must be reasonable, b54 
 
 effect of similar and dissimilar conditions brf". ^J-^i- gJJ 
 
 what constitutes similar circumstances and conditions, oao 
 
 right of carrier to judge as to, „^^ 
 
 effect of terminal expenses on rate. „ 
 
 effect of riiiht to depart from rule as to, ';^'> ' ^ 
 
 rates on long hauls as a basis for comparison for local rate 6o4, 6oo, 718 
 
 exception t6 rule that expense of carriage is less on long haul, b56 
 discrimination between, comparison of statutes of different states^^_ ^^ ^^^ 
 
 649, 650 
 
 what constitutes, ggO 
 
 how determined, g^. gg^^ g53 
 
 excuses for. , g^iO 
 
 effect of existence of converging lines, 
 
 effect of joint tariff arrangement with oth?V k ^-ff.r.nt rnntP« S 
 
 effect where different lines reach same points by different routes, 650 
 
 over connecting lines having joint tariff, 
 
 effect on, of unreasonable distinction between commodities. ^^^652 
 
 scope of, prohibition as to, g^g 
 
 relief granted in proceeding for, 
 
 procedure in proceeding for, see Procedurb. ^^^ 
 
 resolution of state commissioners as to, ggg 
 repeal of Hoult Law as to, 
 
 LOST GOODS. . . 213 
 
 payment for, transfers title to carrier, ^^ 
 
 effect on title of sale by finder, ^^28 
 difficulty of proving cause of loss, 
 
 LOW TIDES. 160 
 
 as an excuse for delay, 
 
 LOW WATER. 326 
 
 as an excuse for delay, jgO 
 
 as an excuse for failure to deliver, g^,j, 
 liability for demurrage when delay is caused by, 
 
 LUMBER. ^, ^ 559 
 
 classification of, effect of labor upon,
 
 11 ()0 INDEX. 
 
 M. 
 
 MALFEASANCE. f^oz. 
 
 I iL'lii of ((iiTicr to limit liability for, 1023 
 MANUFACTURING. 
 
 varKiity of a;j;r('eineiit not to carry on, 469 
 
 MARINE INSURANCE. 
 
 adiniralty jiirisdiclion over contracts of, 1047 
 
 MARINE TORTS. 
 
 what constitutes, how deternained, 1045 
 
 injury caused f)y failure to perform duty on land, 1045 
 
 application of limited liability act to, 68 
 
 MARITIME LAW. 
 
 olili^Mition of siiipowner under. ^ 888 
 
 of United States, compared with that of Europe, 68 
 
 MARITIME LIENS. 
 
 aiiaiiist wlial tin y exist, 1046 
 MARKETS OVERT. 
 
 law of, not adopted in this country, 869 
 MARKET VALUE. 
 
 consideration <)f, in determinintj existence of undue preference, 733 
 
 in determining reasonableness of freight rales, 842 
 
 MASTIC. 
 
 liability for injury to other freight by, 86, 309 
 
 MAXIM. 
 
 dicire et non dare legem, 1048 
 
 MAXIMUM RATES. 
 
 effect of fixing by statute, 618 
 
 validity of general statutes fixing, 520 
 MEANS OF TRANSPORTATION. 
 
 duty of carrier to furnish, 777. 779 
 
 insufficiency of, as an excuse for delay, 324, 325 
 
 MERGER. 
 
 of oral stipulations made on delivery, in bill subsequently given, 20, 54, 134 
 
 of agreement for shipment in receipt, 133 
 MILEAGE TICKETS. 
 
 neglect to publi.-h rate bill as to, 881 
 MISDELIVERY. 
 
 as a conversion, 273, 908, 909, 915, 982 
 
 by warehousemen, when a conversion, 982, 983' 
 
 whether a conversion a question of fact, 983 
 
 as a defense to action on draft secured by warehouse receipt, 1002 
 
 liability for, effect on, of manner of occurence of, 982 
 
 when caused by fraud or mistake of consignor, 914 
 
 on false order at place of destination, 915 
 not dependent on shipper's discovery of fraud and stoppage of goods, 915 
 
 on unindorsed bill of lading, without requiring identification, 916 
 
 on duplicate bill of lading to insolvent consignee, 899 
 
 of assorted coal by placing upon the ground, 988 
 when at wrong place. 951, 952, 966, 990 
 
 in punitive damages when willful, 966 
 
 how effected by exemption, 944, 945 
 to wrong person, 272, 273, 907 et seg. 
 
 when goods are addressed to shipper, 900, 910 
 
 to wrong person after storing, 909
 
 Il^DEX. 1161 
 
 to consignee, liability to one producing bills of lading, 896 
 
 to shipper, liability for, to holder of bill as for a conversion, 908, 1004 
 liability for, to consignee when bill of lading has draft attached, 898 
 
 to wrong person, demand not necessary before suit for, 909 
 
 demand and refusal as evidence of conversion, 909 
 
 effect of, on change of liability to warehousemen, 985 
 
 effect of usage, to deliver without production of bill of lading, 272 
 
 effect of custom upon liability for, upon unindorsed bill, 908 
 
 effect of subsequent actual delivery, 909 
 
 by order of shipper, effect of, on right to freight, 856 
 
 sufficiency of excuse for, when a question for jury, 915 
 
 mistake as an excuse for, 908 
 
 inability to find consignee or indorsee as an excuse for, 981 
 
 prior delivery without production of bill as an excuse for, 910 
 
 Indorser unknown as an excuse for, 897 
 
 of livestock, see Livestock. 
 MISFEASANCE. 
 
 liability lor. cannot be contracted against, 61 
 MISFORTUNE. 
 
 as an excuse for delay, 821, 322 
 MISPLACED SWITCHES. 
 
 liability of carrier for, when caused by discharged employe, 327 
 MISREPRESENTATION. 
 
 etTect of, on ciassiticaiion , 558 
 
 MISSOURI FREIGHT ASSOCIATION. 
 
 validity of, under AntiTiust Act. 443, 444, 480 
 
 MISTAKE. 
 
 as an excuse for misdelivery, 908, 914 
 
 in stating amount of freight charge.*, effect of, 852 
 
 MISTAKE OF PORT. 
 
 not within dangers of lake navigation, 171 
 
 MOB. 
 
 loss by act of, not included in perils of the sea, 164 
 
 existence of, as an excu.se for breach of express contract to carry, 339 
 
 liability for delay caused by, 346 
 
 MONOPOLY 
 
 what constitutes, 478 
 
 association of railroads, 444 
 
 creation of, by discrimination between shippers, 767, 770 
 
 invalidity of contracts for, 757 
 
 to restrict supply of staple commodities, 460 
 
 right to enjoin acts in aid of, 442 
 
 New Hampshire Act, to prevent, 700 
 
 effect of, on transactions before its enactment, 700, 701 
 
 MOTION OF BOAT. 
 
 injury by, when a peril of the sea, 168 
 MORE OR LESS. 
 
 wuen clause prevents consignee from claiming damages for defi- 
 ciency, 
 
 106 
 
 MUSICAL INSTRUMENT. 
 
 should be boxed when sent as freight, 554 
 
 MUNICIPAL SUBSCRIPTIONS. 
 
 effect of, on right of localities to equal rates, "JIG
 
 1102 INDEX. 
 
 N. 
 
 NAPHTHA. PAOK. 
 
 waniiii'^ of dangerous character necessary. 88 
 shippiiii,' under vvroni; name by agreement, liability for injury by, 88, 89 
 
 NATURAL ADVANTAGES. 
 
 elTccl of, on right to prefer localities, 716, 719 
 
 effect of, on discrimination in rates, 784 
 right to overcome by preference to localities, 717, 720, 721 
 
 intent of long and short haul rule as to, 718 
 
 NATURAL GAS. 
 
 power of stiile to prohibit coniiurtinir from ^t;ifo to ■itMtp, 512 
 
 NATIONAL TRANSPORTATION ASSOCIATION. 
 
 form of bii! of hiding adopted by, 91 
 
 NAVIGABLE WATERS. 
 
 what are. 488 
 
 power of Congress over, 488 
 
 obstruction of navigation in, 482 
 
 improvement of, state regulation of, 486 
 
 title to shores and lands under, 508 
 NAVIGATION. 
 
 included in commerce, 1069 
 
 improvement of. concurrent jurisdiction of state and nation over, 496 
 
 of rivers, power of Congress to improve, 489 
 
 between places in same state, power of Congress to regulate, 527, 528 
 
 of internal waters, state power over, 494 
 
 degree of care required in, 848, ::f49 
 
 what constitutes negligence in, 350 
 
 construction of, exception of loss from, in policy, 1011 
 
 respon;Mbility of ship to third persons for, 350 
 
 duty of vessel approaching another. 350 
 
 observance of rules of, to avoid collisions, 351, 352 
 
 sufficiency of disregard of rule of, to fix liability, 351 
 vessel when not under command, within regulations for preventing 
 
 collisions, 352 
 
 inevitable accident as an excuse for loss iu, 349 
 by tug and tow, see Tug and Tow. 
 NAVIGATION LAWS. 
 
 duty of sliipmaster to take notice of, 965 
 NEGLIGENCE. 
 
 what constitutes, in packing and stowing, 302, 305 
 
 wrongly informing ownei- that goods have not arrived, 913 
 
 effect of, on exemption from liability, 340 
 
 on insurance against perils of the sea, 1009, 1010 
 
 on insurance obtained by wharfinger, 1011 
 
 on insurance not covering common law liability, 1009 
 
 right of carrier to insure against, 1009 
 
 when presumed, see Presumption. 
 
 burden of proof as to, see Burden of Proof. 
 
 sufficiency of proof to establish absence of, 186 
 
 to render other exemptions available, 149 
 
 when a question for jury, 354 
 
 nondeliverj' as evidence of, 1027 
 
 tipping and sliding off of cargo as evidence of, 311 
 
 liability of carrier for, 3IO 
 
 remote and proximate cause, 149, 309 
 
 under special contract, ' 42
 
 INDEX. 
 
 1163 
 
 PAGE. 
 
 a79 
 
 under English Railway and Canal Traffic Act ^79 
 
 when contributing to injury by act of God, 174. 175, 178, 187. 188, 309 
 evidence necessary to establish, :J°^ 
 
 when contributing to act of public enemy, |^^ 
 
 when contributing to loss by penis of the sea, lOo, l<4, i j» 
 
 when contributing to loss by accident in navigation, ^49 
 
 when contributing to injury from excepted cause, 152, 153, lO~8-lUdl 
 
 of agent of carrier, ,. , ^ . .^ ftf54 
 
 in case of goods held under lien for freight, w* 
 
 not affected by provision for adjustment between owner and ^^^ 
 
 charterer, ,004 
 
 of persons in charge of government railway, i"*=* 
 in transportation of livestock, see Livestock. 
 of connecting carrier, see Connecting Carriers, Initial Car- 
 
 riers 
 
 right to contract against. liabilty_^j-. ^^^^ ^^^ ^^^^ ^^^^ ^^^ ^^^^ ^94,^023 
 
 of carrier by water, ^^ 201,202 
 
 extent of, , . r ' ' 51 
 
 not extended to positive acts of misfeasance, ^i 
 
 by stipulation as to value of the property carried ^''^'^ 
 
 bv limiting damages to value at place of shipment, -^^ 
 
 effect of limitation unless value is stated, '^^^^ *^- 
 
 sufficiency of consideration for. ^,„ 
 
 exemption from, must be express, 1 40 147 
 
 contracts must be unequivocal. , , .„ '147 
 
 insufficiency of special contract stamped on bill, ^^J 
 
 doctrine in Federal courts. ^ . . . nq ftq.'i 
 
 Federal courts not bound by state decisions as to, M, o»» 
 
 construction of exemption, • . ,j. 
 
 exemption from delay does not cover, oftfi 
 
 not affected by limitation to value at place of shipment, ^bb 
 
 effect of exemption from liability for breakage or damage on, 306 
 noUncluded in exemption from liability for injury caused by rust, 307 
 
 not relieved by exemption of damage by sweating, ^^o 
 
 loss in case of deviation not excused by. » 
 
 statement, "not accountable for contents, in bill. J*' 
 
 release from damages that " might happen ^,i;„:„„' 14s 
 
 Release from liability for damages not resulting from collision. 148 
 
 enforcement of, when made in another state, =><5, <o 
 
 enforcement of, when valid by the (exjoa, J"' 
 
 enforcement of, when valid at place ot performance, 71 89o 
 
 ri-ht to stipulate as to what law shall govern, ^"^^ 
 
 ^^;in^3Srf'shipmentviolatp Interstate Com^^ 10| 
 oflffents and servants, right to stipulate against liability for, a. .2. 146, 102d 
 
 ^by stipulation that they shall be deemed agents of shipper, ^o2 
 liability for, not limited by notice, 
 
 in navigation, see Navigation. ^^„^ 
 
 not excused by statute prohibiting transportation lUrf| 
 
 right of action in tort for, though special contract exists, ^9^ 
 
 NEW YORK PRODUCE EXCHANGE. ^^ 
 
 objects of, , J . J u 91-93 
 form of bill of lading adopted by, 
 
 NITROGLYCERINE. 86 
 
 transportation of, from state to state, ^ ^. ^ 15 
 
 liflhil IV of carrier when received without notice, '^ 
 
 exemption fJom, for improper stowage when contents unknown, 308
 
 JU;4 i.M'ix, 
 
 NONDELIVERY. *"*•";•• 
 
 usH brtiK li of carrier's oripinal contract, iwa 
 
 prinm fiicie evidence of negligence, l"-7 
 
 as a con\ersH)n, "'•' 
 
 efloct of, after demand upon cxreptlons in bill of lading, 919 
 preHumption from, see I'liKsiNiri ion. 
 burden of proof us to, see Bluuen ok Puoof. 
 
 liability for. «19. 920 
 
 wliere properly is seized under process of law. 92» et Mq. 
 
 where errt)neoua information of nonarrival was given, 983, yH4. WO 
 
 when weight of goods is not specified, 92~ 
 
 damages for. see I)AMA«iES. 
 
 penalties for, see Penaltiks. 
 
 excuses for. 920, 926 tt neg. 
 
 refusal of connecting carrier to receive, 261 
 
 that property was to be used for illegal purposes, t<97 
 
 act of consignor, 926 
 
 delivery to true owner. 926, 931 
 
 delivery to anollier by consent, 937 
 
 seizure by sheriff, 927 
 of liv( slock, see Livkstock. 
 
 NONUSER. 
 
 effect of, on a power of government, 520 
 
 NOTICE. 
 
 right to limit liability by. 30-40. 42^^ 128 
 
 origin and L'rowth of doctrine, 37, 88 
 
 sulliciencv of, 124, 126 
 
 terms must be clear and specific, 12») 
 
 consignor must have knowledge of, 126 
 
 necessity of publication to the world, 127 
 
 by pamphlet hanging in freight onice, 126 
 
 on buck of receipt. ISS 
 
 for baggage, on back of passenger ticket, 120, 131 
 
 given to agent, 137 
 
 effect of giving several, 127 
 
 given after it is too late to repudiate, 37 
 
 implication from delivery of goods, 39 
 
 of inability to obtain cars, duty of carrier as to, 779 
 
 of shipping rules and regulations from adequate means of knowledge, 879 
 
 presumption of, from posting. 879 
 
 of contents of pamphlets banging in railroad oftice, 879 
 
 of rights of carrier from bill of lading, 1013 
 
 of delay, duty of carrier as to, 75 
 
 liability for failure to give. 341 
 
 of seizure imder legal process, to whom given, 927 
 
 relief from liability by, 928 
 
 liability for failure to give, 927 
 
 of failure to find berth, 869 
 
 ■)f selection of different piers for discharge, 952 
 
 of dissent to change of place of delivery, 133 
 
 of arrival, see Notice of Arrival. 
 
 of claim, see Notice op Claim. 
 
 of discharge, see Notice of Discharge. 
 
 of loss, see Notice of Loss or Injury. 
 
 of retention of title upon conditional sale, 898 
 
 necessity of having agent where it is to be given, 341
 
 INDEX. 1165 
 
 NOTICE OP ARRIVAL. page. 
 
 wlien required, 904 et seq. 
 
 uecessity of, to complete delivery, 94^, 943 
 
 to termination of liability as carrier, 905, 989, 990, 992,' 995 
 
 to relieve from liability as warehouseman, ' ' 904 
 
 purchaser of bill of lading chargeable with knowledge of right to, 236 
 
 right to require delay in discharge until given, 917-954 
 
 effect of direction to give to certain persons, 227, 897 
 
 liability for failure to give, when goods subject to duty, 342 
 
 effect of custom to leave at certain place on, 904 
 
 excuses for failure to give, 907 
 
 effect of failure to deliver when given through mistake, 227 
 
 effect of failure to give, on liability for subsequent loss, 264, 947 
 
 an act of God as an excuse for loss, 264 
 
 NOTICE OF CLAIM. 
 
 validity of requirement of, 273, 274 
 
 requirement of, in writing, effect of, 273 
 
 not satisfied by oral notice, 275 
 
 not applicable to damages accruing prior to contract, 274 
 
 effect of failure to comply with, 275 
 
 sutliciency of, when given to agent of connecting carrier, 277 
 
 requirement of, at delivery station, reasonableness of, 275 
 
 limitation of time for, validity of, 219-221, 226 
 
 construction of, 224 
 
 what is reasonable, 221, 222. 225 
 
 requirement of presentment within thirty days, reasonableness, 1039 
 
 effect of deviation as to mode of transportation, 221 
 
 not applicable to refusal to pay money collected, 219, 220 
 
 not applicable to claim accruing before contract was made, 225 
 
 application of, to carrier as warelKmseman, 1002 
 
 requirement of, before removal of property, reasonableness, 276, 278 
 
 necessity of giving opportunity, 258 
 
 not established by usage or custom, 276 
 
 effect of noncompliance with, 277, 278 
 
 necessity of pleading and proving facts showing it to be reasonable, 277 
 
 not applicable to removal by carrier, 154 
 
 what is sufficient compliance with, 276 
 
 necessity of proof of available agent to serve upon, 276 
 
 waiver of, by returning injured property to place of shipment, 277 
 
 excuse for noncompliance with stipulation for, 274, 277 
 
 NOTICE OF DISCHARGE. 
 
 in lieu of notice of arrival, 943, 953 
 
 necessity, 947-951 
 
 what sufficient, 963 
 right to stipulate to dispense with, 226, 967, 969 
 
 effect of delay in giving, upon demurrage, 978 
 
 liability for loss when not given. 118 
 NOTICE OF LOSS OR INJURY. 
 
 sufficiency of, to freight agent, 272 
 
 effect of failure to object to, 9 
 
 requirement of, not applicable to damages for delay, 266 
 
 reasonableness of requirement of, at place of shipment, 273 
 
 necessity of notice of loss of part under, requirement of, 341 
 
 NUISANCE. 
 
 resulting from method of storing, liability of carrier for, 140 
 
 corporations subject to indictment for causing, 1089
 
 HOC INDEX. 
 
 o. 
 
 OBLIGATION TO CARRY. 'aok^ 
 
 extent ot, t54 
 OBSTRUCTION. 
 
 to navigation, when included in act of God, 177 
 
 ■when within daii^a-rs of navigation, 170, 171 
 
 effect of, on duly to transport, 329, 3^0 
 
 on connecting road as an excuse for delay, 326 
 
 duty to complete carriage immediately upon removal of, 331 
 OFFICIAL CLASSIFICATION. 
 
 in Illinois, how made, 790, 791 
 
 OIL. 
 
 distinction between shipments in tanks and barrels, as to rate, 596, 597 
 
 OPEN CARS. 
 
 when carrier may use, 19 
 used by agreement, liability for failure to cover while detained, 148, 306 
 
 ORAL AGREEMENT TO CARRY. 
 
 not sus|)en(leil by subs(([Uent bill of lading, 133-135 
 
 ORDER FOR RELIEF. 
 
 when necessary under Interstate Commerce Act, 622 
 
 power of C'oniinission under authority to make, 622 
 ORIGINAL PACKAGES. 
 
 what constitutes breaking up, 513 
 
 OVERCHARGE. 
 
 right of shipper to recover excess, 874, 875 
 
 when payment is voluntary, 874, 1024 
 
 what payments are invcihintary, 875 
 
 when made on misrepresentation, 877 
 
 effect of retention of, as an extortion and unjust discrimination, 875 
 
 sufficiency of notice to local agent, 874 
 
 liability for goods withheld for payment of, 875 
 
 of assignee of purchaser of railroad as an individual, 876 
 
 of connecting carrier, 408, 400, 9^4 
 
 penalties for, 602, 603 
 
 application of provision for, to spur of road, 603 
 
 liability of initial carrier, when exacted by connecting carrier, 409, 924 
 
 right to recover from connecting carrier, 877 
 
 remedy for, under Kansas statute, 874 
 
 when statute of limitations begins to run against claim for, 878 
 
 requisites of complaint in action for, 877 
 
 proof necessary to a recovery for, 876 
 
 measure of recovery for, 874 
 
 loss of profits not recoverable, 874 
 
 OVERHEATING. 
 
 right to contract for exemption from liability for, 157 
 OVERLOADING. 
 
 liability for loss by, 311 
 OVERPOWERING CAUSE. 
 
 diligence required in avoiding effects, 148 
 OWNER. 
 
 contract of, to pay freight, 868 
 
 right of, to sue carrier for loss, 1007 
 
 to sue second carrier on contract made with first, 1007 
 
 action against carrier, when brought in name of, lOOf
 
 INDEX. 1167 
 
 OWNER'S RISK. page. 
 
 liability of carrier when goods were shipped at, 306 
 OWNERSHIP. 
 
 conclusiveness of bill of lading as to, 94 
 
 right to assume title to be in consignee, 928 
 OYSTERS. 
 
 power of state to prohibit taking by nonresidents, 508 
 
 P. 
 PACKAGE. 
 
 rigiit of carrier to open, 76 
 
 to inquire into contents, 85, 86 
 
 wlien carrier need not itKjuire as to contents of, 308 
 
 PACKING AND STOWING. 
 
 on deck, see StowaoK on Deck. 
 
 duty of carrier as to, 298, 307 et seq. 
 
 how far controlled by usages and customs, 301, 302 
 
 right to contract with reference to, 301 
 
 place of, when not mentioned in bill of lading, 306 
 
 liability for, failure of duty by master as to, 304, 871 
 
 in a place other than that indicated. 306 
 
 when done by stevedore employed by charterer, 305 
 
 proof of negligence when necessary, 1032 
 
 contributory negligence as a defense, 299 
 
 PALACE HORSE CAR. 
 
 procured at instance of shipper, liability for defect in, 232 
 
 PAROL EVIDENCE. 
 
 lo vary bill of lading, as a contract, 95 
 
 to explain bill of lading as a receipt, 94 
 
 of contemporaneous agreement collateral to bill of lading, 98 
 
 to control freight rates, express or implied, 98 
 
 PARTIALITY. 
 
 what constitutes, 70G 
 
 effect of absence of, on right to discriminate, 706 
 
 PARTNERSHIP. 
 
 between cf)nneeting carriers, evidence of, 413 
 
 PASSAGE MONEY. 
 
 included as freight in limited liability act, 62 
 
 PASSENGERS. 
 
 right of carrier to refuse to carry, 757 
 
 PASSENGER RATES. 
 
 state regulation of on roads wholly within state, 498, 500 
 
 on roads passing out of, and back into state, 499 
 
 establishment of schedule of by railway commissioners, see Rail- 
 road COMMISSIONEKS. 
 
 PATENT MEDICINES. 
 
 classification of, as freight, 557 
 
 PAYMENT. 
 
 of loss by insurer, effect of, on liability of carrier, 1022, 1023 
 
 for lost goods, acceptance of, transfers title to carrier, 213 
 
 PEARLINE. 
 
 classitication of, as freight, 559 
 
 PENALTIES. 
 
 for violation of Interstate Commerce Law, liability for, 1090
 
 IIOS INDEX. 
 
 PENALTIES— continued. paos. 
 provisions of Interstiitc Commerce Act as to, 775, 1060 
 
 for refusal to furnish cars, 230 
 
 for refusal to give bill of lading, 104 
 
 for failure to care for livestock, bow recovered, 242 
 
 validity of Texas statutes, 242 
 
 application of limitation of time to sue for damages to, 242 
 for overcharge, see OvEuniAK(>E. 
 
 for discrimination between shippers, liability for, 7fi<) 
 
 not a regulation of Interstate Commerce, 324, 920. 921 
 
 recovery for loss of wages in action for, 92y 
 
 for nondelivery, 920 et aeq. 
 
 state statutes not applicable to interstate shipments, 920 
 
 sulliciency of demand to subject carrier to, 923 
 
 for refusal to deliver, validity of imposition of, 521 
 
 to what carriers applicable, 924 
 
 not recoverable on refusal to receive, 918 
 
 liability for, 921, 923, 924 
 
 while in hands of receiver, 925 
 
 tender necessary to establish, 918 
 
 exhibition of bill of lading not necessary, 924 
 
 where carrier has paid more than the amount tendered, 925 
 
 sutHciency of statement of amount of charges, 921 
 
 elTect where bill does not show amount, 922 
 
 effect on, of later act prescribing different penalty, 921 
 
 willingness to pay excess as a defense, 923 
 
 that plaintiff was not the consignee, as a defense, 922 
 
 given l)y Act of Congress, when enforceable in state court, 1049, 1050 
 
 for possessing carcasses of wild animals, application to carriers, 935 
 
 for violation of either of several provisions, liability for, 920 
 
 PERILS OF THE SEA. 
 
 what constitutes, 163 
 
 broader than act of God, 164 
 
 what included in, 164-170 
 
 when collisions are, 156 
 
 loss by, when jettison included in, 311 
 
 when sweating of cargo included in, 308 
 
 insurance against, covers losses by stranding, 1009 
 
 right to freight charges on packages lost by, 854 
 
 effect of negligence contributing to loss by, 1C5, 172, 173. 175 
 
 liability for loss by, when proper precautions were not observed, 333 
 
 right to stipulate against liability for, 170 
 
 effect of unseaworthiness, 190, 191 
 
 burden of proof of loss by, 1028 
 
 PERISHABLE PROPERTY. 
 
 establishment of freight rales for, 552, 594 
 
 duty of initial carrier as to delivery, 383 
 
 right to limit liability for, in hands of connecting carrier, 379 
 
 duty of carrier to forward in case of obstruction, 331, 332 
 
 when part of goods carried has to be left. 337 
 
 to sell to satisfy lien where consignee will not receive, 865 
 
 PERSONAL SECURITY. 
 
 what involved in right of, 1078 
 
 PERSONS INTERESTED. 
 
 who are, under English Railway Act, 637
 
 INDEX, 1169 
 
 PETROLEUM OIL AND ITS PRODUCTS. page. 
 
 cliissitication of, 559 
 
 PHYSICAL CONNECTION. 
 
 of railroads as distinguished from business connection, 430 
 
 effect of requirement of, as to interchanee of traffic. 433 
 
 PILOTAGE. 
 
 power of state to regulate, 510 
 
 PIPE LINE COMPANIES. 
 
 validity of agreement for exclusive right to lay pipe, 466 
 
 PIRATES. 
 
 loss b}-, within dangers of the river, 164 
 
 within perils of the sea, 171 
 
 PLEADING. 
 
 sufficiency of general allegation of negligence of carrier, 292 
 
 absence of contributory negligence, how stated, 296 
 
 necessity of particular allegations to charge connecting carrier, 373 
 proof of negligence contributing to act of God under general denial, 178 
 
 PLEDGEE. 
 
 of bill of lading, rights of, 107 
 
 as security for draft, title of, 111 
 
 of vessel and freights when not entitled to lien. 863 
 
 POLICE POWERS. 
 
 defined, 483 
 
 where vested, 483 
 
 extent of, 510 
 limit upon the exercise of, 483-485 
 
 when subordinate to power of Congress, 489 
 
 to prohibit discriminations and regulate tariffs, 420 
 
 imposition of penalties for nondelivery under, 930 
 
 POOLING CONTRACTS. 
 
 validity of, 455, 093, 694 
 
 prohibition of, by Interstate Commerce Act, 455 
 
 between railway and pipe line, 688 
 
 POOLING OF FREIGHT. 
 
 provisions of Interstate Commerce Act as to, 105) 
 
 PORTERS. 
 
 when common carriers, .3 
 
 POST AND MILITARY ROUTES AND NATIONAL HIGH- 
 WAYS. 
 
 not exempt from state regulations of fares and freights, 515 
 
 PRECIOUS METALS, STONES OR JEWELS. 
 
 liability of shipowner for, under limited liability act, 1039 
 
 PREFERENCES. See, also, Undue Preferences. 
 
 between localities, see Localities. 
 
 as to facilities furnished, when reasonable, 420, 421 
 
 between manufacturing interests, right to make, 716 
 
 PREPAID FREIGHT. 
 
 included in freight in. limited liability act, 63 
 
 PREPAYMENT OF FREIGHT. 
 
 right of carrier to require of shipper, 709 
 
 of connecting carrier, 709, 710 
 
 PRESENTMENT OF CLAIM. See Notice of CLAni. 
 PRESUMPTION. 
 
 that consignee is owner of goods, 902, 1006 
 
 74 
 1
 
 1170 INDEX. 
 
 PRESUMPTION— continued. i'aok. 
 rii^hl to rebut, 10(J7 
 how rebutted, 902 
 that bill of lading contains whole contract, 98 
 of authority of ship master to issue bill of lading, 103 
 of power of station aj^enls to contract, 401 
 of knowledge of contents, from acceptance of bill of lading, 129 
 from weigiit unknown stamped on bill of lading, 155 
 that contract was intended to be governed by law of place of per- 
 formance, 894 
 that contract is made with reference to usage, 385, 903, 904 
 of shipper's knowledge of dangerous character of goods, 87 
 as to seaworthiness, 22 
 of unseaworthiness, from wet cargo, 1082 
 from leaking of deck, 23 
 from slacking of lime on board, 23 
 of ability to furnish proper cars, how overcome, 229 
 from acceptance of goods, 968 
 of receipt of goods in good order, 299 
 of notice of shipping regulations from posting, 879 
 of illegality of combination between carriers, 436, (i92 
 as to reasonableness of freigiit rates, 815 
 at one point, from reasonableness at another, 598 
 does not arise from filing rate bill, 880 
 that schedule of rates adopted is profitable, 577 
 that things classified alike are entitled to equal rates, 561 
 as to similarity of circumstances and conditions, 027, 631, 632 
 of validity of contract for rebate, 707 
 that discrimination between shippers is not unjust, 750 
 of consent to stowage on deck, 304 
 of safety of cars, from receipt l)y connecting carrier, 426 
 of negligenc*', when indulged in, 1031 
 from condition of means of transportation, 1032 
 from loss of goods, 1027 et seq. 
 etfect of exemption upon, 1028 
 from destruction of goods by fire, 189 
 from breakage, 1032 
 from injury when usual course has been changed, 980, 981 
 from refusal to state circumstances of loss, 189 
 from nondelivery, 1027, 1028 
 how overcome, 1027 
 does not arise from loss from perils of navigation, 1030 
 from wet cargo, when proof of negligent stowage is necessary to, 1032 
 from injury to cargo from leak in vessel, 22 
 from damage to cargo by water taken aboard, 23 
 that omission of duty contributed to injury, 185 
 from careless and cowardly abandonment of vessel and cargo, 333 
 of assent to limitation of liability, from receipt of bill, 130, 134, 135 
 as to proximate cause, under exemption from liability for fire, 179 
 PRICE OF LABOR. 
 
 validity of agreements to fix, 460 
 PRIMA FACIE CASE. 
 
 against carrier, what sufficient, 1031 
 PRINCIPAL OFFICE. 
 
 as place of enforcement of orders of Interstate Commerce Commission, 535 
 PRIVATE CARRIERS. 
 
 liability for injury from stowing and packing, 302
 
 INDEX, 1171 
 
 PROCEDURE. PAGE. 
 
 before Interstate Commerce Commission, 535, 532-534 
 
 wheu carrier concluded by its pleadings, 534 
 
 order pendente lite as to part of controversy, 534 
 
 in proceedings to enforce orders of, 1055' 
 
 to correct classification of freight, who should be made parties, 
 
 549, 550, 556 
 in determining reasonableness of rates, who should be made parties, 600 
 for enforcement of Interstate Commerce Act as between connect- 
 
 ting carriers, 422 
 
 under unjust discrimination clause, burden of proof of dissimilarity, 607 
 
 under undue preference clause, what may be considered, 609 
 
 under long and short haul clause, frivolous applications, 607 
 
 riglit to examine rates on competing lines, 607 
 
 right to institute collateral proceeding, 607 
 
 proceeding, how brought, 608 
 
 what must appear on application, 608 
 
 necessity of proof of damage, 608 
 
 fur discrimination in rates between long and short hauls, 648 
 
 PROCEEDINGS. 
 
 to enforce orders of Interstate Commerce Commission, scope of, 1055 
 
 procedure in, 1055 
 
 commissioner's report as evidence in, 1055 
 
 to compel production of papers and answers of questions, 1068, 1069 
 
 aid of court to compel production of books and answers of questions, 
 
 1055 et seg. 
 
 for violation of Interstate Commerce Act, 1051 
 
 for discriminating between long and short hauls, parties to, 647 
 
 permission to make exceptions in, 648 
 
 on complaint ai^^ain.st reasonableness of through rates, parties to, 686 
 
 PROCEEDINGS IN REM. 60 
 
 application of limited liability act to, 60 
 PROOF. 
 
 necessary to establish violation of Interstate Commerce Law, 1090 
 PROPERTY CLOTHED WITH A PUBLIC INTEREST. 
 
 legislative power to limit price for use of, 509 
 PROPS CARRIED AWAY BY TIDE. 
 
 not a peril of the sea, 165 
 PUBLIC ENEMY. 
 
 diligence required to prevent loss by act of, 14 
 
 who is, within exemption, 151 
 
 burden of proof of loss by, 187 
 
 PUBLIC POLICY. 
 
 standard for determination of, 460 
 
 change of, with changing conditions, 458 
 
 power to declare contract void as against, how exercised, 432 
 
 opposed to infringement of right of travel, 439 
 
 contracts between rival railroads in contravention of, 439 
 
 invalidity of ultra vires contract as against, 439 
 as to agreements between railroads for restraint of competition, 440, 697 
 
 burden of proof to show that contract is against, 473 
 
 effect of, as to contracts in restraint of trade, 740 
 as to stipulation of carrier for benefit of insurance, 1013 
 
 PUBLIC USE. 
 
 what constitutes, 688, 689.
 
 1172 INDEX. 
 
 Q. 
 
 QUANTITY. PA"'^ 
 
 (louclusiveness of bill of lading as to, 95 
 conaidL-ration of, in delerrainitig existence of discriiniiiatiun between 
 
 sliippiTs, 748 
 
 QUARANTINE. 
 
 power of stale to regulate, SIO 
 
 exemption from liability for detention by, 150 
 
 QUARANTINE AND INSPECTION LAWS. 
 
 concurrent jiirisilictioii of state and nation over, 490 
 
 QUO WARRANTO. 
 
 against railroad for usurping powers of another, 433 
 
 for discrimination against shippers, 761 
 
 R. 
 
 RACE DISTINCTIONS. 
 
 validity nf slate prohibition against, in interstate transportation, 499 
 
 RAILROADS. 
 
 are common carriers, 3 
 
 as public highways, 751 
 
 public character of, how determined, 689 
 
 what included in term as used in Interstate Commerce Act, lorj? 
 legislative control over, 518 et aeq. 
 
 judicial control over, 3 
 
 within states, state power over, 494 
 
 when instruments of interstate commerce, 529 
 
 extending through states, jurisdiction of courts of each over, 519 
 
 power of Congress to create, 488 
 
 across states, power of Congress to authorize construction of, 492 
 
 across territories, power of Congress to authorize construction of, 49:? 
 charters of, when contracts, 518, 519 
 
 right to change charters of, 519 
 
 forfeiture of charter for ultra irirei* acts, 443 
 
 jurisdiction to enjoin litrn vires acts of, 443 
 limitation of business of, to that of transportation, 799, 800 
 
 when compelled to establish freight stations, 77 
 classification of, see Classification of Railuoads. 
 
 duty of, to furnish suitable cars, 16, 17 
 
 to provide proper appliances, 16, 17 
 
 to furnish equal facilities to different express companies, 27-29 
 
 to carry for all express companies at equal rates, 29 
 
 to furnish sufficient facilities for transportation of express matter, 29 
 
 to transport for intersecting or connecting roads, 426 
 
 power of, to select their own stopping places, 709 
 
 right of, to discriminate between express companies, 32 
 
 to confer exclusive privilege on express company, 27, 28 
 
 to confine express facilities to one company, 29-31 
 
 to exclude express company and transact business themselves, 29 
 
 to consider their own interests in dealing with express companies, 32 
 
 to lease lines. 431-433, 440, 442 
 
 to take lease of competing lines, 440 
 
 to guarantee covenants of another in a lease of its line, 443 
 
 power to lease not included in power to consolidate, 433 
 
 right of lessee to change guage in North Carolina, 441 
 
 validity of lease of road and rolling stock to a competitor, 464 
 
 right of, to consolidate with other roads, 433, 694 
 
 to exercise right of eminent domain, 688
 
 INDEX. 1173 
 
 to acquire lands for speculation or to prevent competition, ^^439 
 
 to discontinue established switch connection, - ig 
 
 to exclude other carriers from access to their depots, 425 
 
 to refuse to receive unsafe cars from connecting roads, 426 
 
 to obtain control of the affairs of a competing road, ' 431 689 
 
 to discontinue side-track connection established for private persons' 432 
 
 to mine and ship and sell at less than prevalent rates, 836 837 
 
 to compel others to unite in joint tariff, 676* 677 
 
 requirement of adoption of joint rates, effect of, ' 521 
 
 validity of combinations between, 688 et sea 
 
 contract between, requiring notice of reduction in rates, 476 
 
 agreements to control traffic, 440 
 
 contract not to continue road beyond a certain point, 439 
 
 liability for breach of contract of carriage by lessee of road, 78 
 
 for torts of lessee of line, 442 
 
 when cars are furnished by shipper, 5 
 
 for defects in cars belonging to other companies, 16 
 
 for delay in furnishing cars when goods were taken, as warehouseman, 184 
 
 for injury from landslide, I77 
 
 for operation of another road, in New Hampshire, 700, 702 
 
 under arrangement of, for transportation, when not actually connected, 415 
 
 what constitutes competing line, within Pennsylvania constitution, '441 
 
 place of deliver}^ by, ggg 
 
 RAILROAD COMMISSIONERS. 
 
 delegation of authority to, 536, 538, 542 
 constitutionality of, 5O9, 542 
 powers of, ' 540 
 over transportation companies, 536 
 to regulate transportation by water, 528 
 to establish freight rates, 528 644 
 to fix rates over route extending through neighboring state, ' 528 
 to regulate rates of shipment by agent of principal out of state, 531 
 to supply details of practice and pleading, 536 
 effect of, on contract obligations of railroad, 539 
 rules adopted by, as evidence. 602 
 conclusiveness of schedule of rates established by, upon courts, 538 
 validity of provision making rates by, prima facie evidence of reason- 
 ableness, 538, 539 
 construction of term "carload '' by, in statute fixing rates, 539, 853 
 when reduction of rates by, is unconstitutional, " 539 
 discretion of, to enforce rates which will not pay expenses, 540 
 when courts will relieve against schedule of rates by, 537, 539 
 constitute a court of record, 536 
 irregularity in proceeding before, effect of, 542 
 orders of, w^hen made without notice, 540 
 recommending a railroad company to repair its road, 541 
 when not enforced, 535 
 enforcement of, by action, 527 
 power of courts to carry into effect, 541 
 jurisdiction of Federal courts to restrain, 540 
 RAILROAD EMPLOYES. 
 
 examinations as to fitness of, state regulation of, 486 
 
 right to require company to pay fees for examination of, 622 
 RAILROAD MATERIAL. 
 
 classification of, as freight, 559 
 RAILWAY BRIDGE COMPANY. 
 
 net a common carrier of interstate traffic, 4
 
 1174: INDEX. 
 
 RAIN. PAO*. 
 
 injury by, when the act of God, 161 
 
 RATE BILLS. 
 
 provibious of Interstate Commerce Act as to, 1059 
 
 what carriers subject to, 878 
 
 what services required to be included in, 858, 879, 880. Hfi'6 
 
 in Ciise of an export tarill, bbO, 882 
 
 in case of joint tariff of rates, 879 
 
 for joint tarilfs, how printed, 881 
 
 who may tile, 881 
 
 where kept, 881 
 
 how and where posted, 880, 881 
 
 method of printing, when commission will interfere with, 881 
 
 effect of filing of, 880 
 
 as a limitation upon the amount charged, 881 
 
 acciuiescence in mctliods of prcjiaration and publication, 879 
 
 neglect to publish a violatKjn of the Act, 881 
 
 necessity of publishing at every station, 882 
 
 where required to be posted, 879, 880 
 
 what a sufficient compliance with Florida commission nile as to, 882 
 
 effect of omissions to challenge or disapprove schedules of, 881 
 
 upon express contract between shippi-r and carrier, 879 
 
 requirement of notice of change , on right to vary from day to day, 880, 881 
 
 RATE WARS. 
 
 riixht to cast consequences upon the public, 676 
 
 effect of, on right to reduce rates, 671, 672 
 RATIFICATION. 
 
 of contracts of station agent by recognition, 401 
 of agreement for joint use of tracks, effect of, 424 
 of original contract of shipment by connecting carrier, what consti- 
 tutes, 924 
 RATS. 
 
 diunage by, when included in perils of the sea, 166-168 
 
 not vermin within exemption for, 168 
 REASONABLE AND EQUAL TERMS. 
 
 right to discriminate between shippers, requirement of, 734 
 REBATES 
 
 validity of, 641, 705-707, 740-744, 747, 764, 769, 886 
 
 at common law, 885 
 
 cannot be considered as alms giving, 744 
 
 upon what dependent, 757 
 
 effect of Interstate Commerce Act upon, 620, 851, 885, 886, 1057 
 
 under Act to prevent unjust discrimination, 707 
 
 not presumed to constitute a discrimination, 747, 748 
 
 when made from rates charged other customers, 706 
 
 when discount is equaled by consideration, 706 
 
 in consideration of shippers erecting dock, 764 
 
 when shiJDper agrees to do his own loading, 764 
 
 when a discrimination against other shippers, 886 
 
 by extraordinary mileage for cars furnished by shipper, 885 
 
 effect of secrecy as to, 885 
 
 presumption of validity of contract for, 707 
 
 prohibition of, in Texas, 644 
 
 object of Interstate Commerce Act as to, 715 
 
 what constitutes, allowance of free cartage, 706, 883, 884 
 
 allowance of, as proof of unjust discrimination, 886
 
 INDEX, 1 175 
 
 PAGE. 
 
 when conditions are similar, effect of, as evidence of unreason- 
 ableness, 753 
 right of shipper to recover on contract for, 875 
 when not provided for in bill of lading, 876 
 of favored customer, 885 
 when promise was obtained by suppression of truth, 877 
 right of shipper discriminated against to recover excess, 706. 753 
 power of receiver to contract for, 853 
 construction of order to pay to third person, 856 
 RECEIPT. 
 
 for goods delivered, when not a contract of shipment, 133 
 
 for shipment of cattle, effect of indorsement as a transfer of title, 273 
 
 for part of consignment when whole not delivered, 101 
 
 of connecting carrier, relief from liability by production of, 1033 
 
 what constitutes " willful failure and refusal to produce," 1033 
 RECEIPT OF GOODS. 
 
 conclusiveness of bill of lading as to, 94 
 
 what constitutes, giving bills of lading, 140 
 
 duty of carrier to furnish equal facilities for, 732 
 
 as carrier or as warehouseman or forwarder a question of fact, 979 
 
 proof of, without producing bill of lading, 1032 
 
 controls validity of bill of lading, 137 
 
 authority of agent to issue bill of lading in the absence of, 142, 145 
 
 estoppel to deny authority to issue bill of lading in absence of, 139, 142, 143 
 
 liability on bill of lading, in absence of, 139-141, 143, 145 
 
 when issued before, 139 
 
 when part only is received, 139, 140 
 
 reasons for rulings, 143, 144, 145 
 
 effect of fraud or mistake, 139, 142 
 
 right to show nonreceipt, 138 
 
 evidence of nonreceipt necessary to overcome bill of lading, 141 
 
 RECEIPT AND CARRIAGE. 
 
 duty of carrier as to, 845 
 
 RECEIVERS. 
 
 right of, to assume responsibilitj' beyond lines, 381 
 
 to discriminate between siiippers, 785 
 
 power of, to contract for rebate, 853 
 
 power of freight agent to bind, 852 
 
 liability of carrier to penalties while in hands of, 925 
 
 RECOVERY. 
 
 Hgaiiist wrongdoer, effect on liability of wrongdoer to owner, 361, 362 
 
 REGULAR DEPOT OR STATION. 
 
 wimt constitutes, for receipt of freight, *'' 
 
 REGULATIONS. 
 
 right of carrier to adopt and enforce, "'1 
 
 REFRIGERATOR CARS. 
 
 duty of carrier to provide, |^ 
 
 liability for neglect to provide, 1° 
 
 REFUSAL TO ACCEPT AND CARRY. ^ 
 
 right of carrier, *^' °^> ^^^ 
 
 when delay will be caused, ^^"^ 
 
 when all facilities are in use by regular patrons, ee op 
 
 when shipper refuses to show that goods are not dangerous, 85, eb 
 
 liability of carrier for, 85 737, 738 
 
 excuses for, 75, <b, 85, 666 
 
 wit^iout limitation, ground for action at law, l'*^
 
 1 1 70 INDEX. 
 
 REFUSAL TO DELIVER. »•*"»• 
 
 meuHure of (liiiimgeH tor, ^^ 
 
 effect of. on ri^ht of action for injury to goods, WSI 
 liiihility for. on ilcmand of one cluiining lo be the owner, 931, 932 
 REFUSAL TO RECEIVE. 
 
 giiHimls for, 967 
 duty of master in care of, 960, 967 
 
 effect of, on liat)ility for conversion by carrying to wrong place, 890 
 
 on liability of carrier for sale williout notice, 908 
 
 on right to recover after sale for freight. 876 
 
 on rigiil to charge demurrage and storage, 9T7 
 
 on liability for subsequent injury by weather, 1024 
 
 when ma(fe under mistake of fact, 968 
 
 REMEDIES. 
 
 for unreasonable freight rates, 807-809 
 
 for discrimination between shippers, H04 
 
 for breach of contract for special service, 594 
 
 for enforcement of maritime lien, election between, 878 
 
 of owner, for seizure of goods by sherifl, 927 
 
 when contini'd to tiioM- provided by act conferring the right, 1050 
 
 REMOVAL OF GOODS. 
 
 consignee entitled to reasonable time, 905 
 what constitutes reasonable time for, 892, 893, 1001 
 
 liat)ility for failure to notify consignor of refusal, 905 
 
 RESHIPMENT. 
 
 duty of carrier as to, in case of accident, 880 
 
 liability for increased freight rate because of, 380 
 
 effect of refu'^ii], on ritrht to compensation. 882 
 
 RESTRAINT OF PRINCES OR RULERS. 
 
 what included in, 824 
 
 RESTRAINTS OF TRADE. See Combinations. 
 
 RESTRICTION OF PRODUCTION. 
 
 by regulation of freight rates, 787, 7Sf^ et seq. 
 
 what constitutes, 795, 796 
 
 REVENUE LAWS. 
 
 duty of shipmaster to take notice of, 965 
 
 REVOCATION. 
 
 of contract for transportation, 603 
 
 RIGHT OF WAY. 
 
 what constitutes, 350 
 
 duty of boat having, 350 
 RIVERS AND HARBORS. 
 
 jiower of slate to regulate, 610 
 
 ROADS. 
 
 power of state to establish, 515 
 
 ROBBERY. 
 
 not included in perils of the sea, 164 
 
 liability of warehouseman for loss by, 983 
 
 ROCKS." 
 
 perils from, a danger of navigation, 166 
 
 ROPE. 
 
 breaking of, when a peril of the sea, 169 
 
 ROUTE. 
 
 when carrier may select, 97
 
 INDEX. 1177 
 
 PAGE. 
 
 selection of a longer one when unreasonable, 410 
 
 liability for delay from taking inexpeditious one, 313 
 
 bill of lading when conclusive as to, 315 
 
 construction of term " nearest passage," 316 
 
 duty of freight agent when not designated, 398 
 selection of, by initial carrier, see Initial CARULEns. 
 iulrnissiljility of oral evidence of agreement as to, 316, 393 
 RUNNING CONNECTION. 
 
 required by statute, what included in, 427 
 
 s. 
 
 SAFETY APPLIANCES. 
 
 lest as to the use of, 19 
 
 effect of prohibition against use of, without approval, 63 
 
 SALE OF CARGO. 
 
 what necessity will warrant, 867 
 
 necessity for, how determined, 867 
 
 when voyage is broken up by ungovernable circumstances, 867 
 
 when damaged, 872 
 
 liability for, 174 
 
 by what law determined, 174 
 
 liability of carrier for proceeds, 908 
 
 SALE OF VESSEL. 
 
 from iHcossiiy, duty of master as to notice to owners, 867 
 
 SALE UNDER LIEN FOR FREIGHT. 
 
 duty of carrier as to perishable goods, 865 
 
 must be necessary to preservation of goods, 866 
 
 duty of carrier as to tirst consulting with owner, 866 
 
 as to selection of market, 866 
 
 liability for, when unnecessary, 866 
 
 title passed when wrongful, 866 
 
 SALT. 
 
 classification of, as freight, 561 
 
 comparison with grain, 663 
 
 SALT CAKE. 
 
 liability of shipper for injury to boat by, 87 
 
 SALVAGE. 
 
 paid for recovery of sunken cargo, lien of carrier for, 856 
 
 SALVAGE SERVICE. 
 
 rendition of, as an excuse for delay, 328 
 
 SAME LINE. 
 
 what constitutes, under Interstate Commerce Act, 654 
 
 SEAWORTHINESS. See also Unseaworthiness. 
 
 duty of carrier as to, 167 
 warranty of, 190, 191 
 
 not dependent upon knowledge or ignorance, 192 
 
 effect of exception on, 156 
 
 an implied condition of hiring vessel, 21 
 
 implied warranty of, how affected by express warranty, 22 
 
 of hull, what constitutes, 22 
 
 validity of assumption of risk of fittings by shipper, 22 
 
 liability for leakage when shipper assumes risk, 22 
 
 presumptions concerning, 22 
 burden of proof, 21, 191, 192 
 
 whalJt necessary to establish, 191
 
 117S INDKX. 
 
 SEIZURE. PAOK, 
 
 ui)(lor judicial process as an excuse for nondelivery, 928, 929, 934 
 
 as an excuse for breach of express contract to carry, 'i'dti 
 
 process must he valid, 1»2S, 920, 935 
 
 duty of carrier in case of, 927-929, 931 
 
 duly of carrier to obey process, 92S 
 
 in hands of wliarfintrer, liability for, UA't 
 
 liability of wan-houseman for, in absence of notice of arrival, 1001 
 
 without a warrant as an excuse for misdelivery. 935, 936 
 
 by customliOMse olhcersas an excuse for nondelivery, 928, 929 
 
 without adjudication as an excuse for nondelivery, 93H 
 
 ui)on land, admiralty jurisdiction in case of, 1048 
 
 SEWING MACHINES. 
 
 may be sliipin-d wlien crntod, 554 
 SHALLOWNESS OF WATER. 
 
 wlicii included in dangers of lake navigation, 171 
 SHEEP. 
 
 validity of rociuirement to furnish double decked cars for, 229 
 SHIPMASTER. 
 
 rigiil of, to contract for towage, 327 
 
 to abandon ship and cariro, 25 
 
 to maintain action for collision, 1007 
 
 power of, to pass title to voluntary donee, 867 
 
 to sell vessel in case of necessity, 867 
 
 implied warranty as to authority to sell vesse\ 867 
 
 duty of, to seek shelter from storms, 25, 333, 334 
 
 when vessel is stranded, 25 
 
 in renewal of deck after hurricane, 27 
 
 to convey cargo to destination, 336 
 
 to deliver goods in reasonable time, 857 
 
 to care for goods when unable to carry them to destination, 941 
 
 to sell cargo when voyage is l)roken, 867 
 
 to conform to laws of country with which he trades, 25 
 
 to acquaint himself with laws and customs, 965 
 
 to take notice of revenue and navigation laws, 965 
 
 discretion of, as to seeking safety from storms, 333, 334 
 
 liability of, for goods stolen, 24 
 
 for acts of those under his atUhorit)% 25 
 
 for precious metals when value not given. 58 
 
 for care of moneys received from necessary sale, 906 
 
 SHIPOWNERS. 
 
 contracts of, as carriers, 868 
 
 validity of combinations between, 694 
 
 validity of agreement prohibiting use of a certain steamer, 464 
 
 validity of agreements for keeping up freight rates, 467 
 
 liability of, for acts of master, 24 
 
 for piracy by master, 25 
 
 for employment of intemperate master, 24 
 
 for goods stolen, 24 
 
 for miscarriage of master or agent, 966 
 
 for acts done without their knowledge, 1039 
 
 for nondelivery of goods when relieved by hiring to charterer, 26 
 
 for embezzlement, loss, etc., under limited liability act, 58 
 
 for loss by fire under limited liabilitj' act. 58 
 
 for precious metals when value not given, 58 
 
 for failure to use safety appliances, 63
 
 INDEX. 1179 
 
 PAGE. 
 
 for abandonment of voyage, 332, 333 
 
 to owner of cargo after recovery for collision, 1025 
 
 SHIPPERS. 
 
 contract of, to pay freight, ~ 868 
 
 obligation of, by what law determined, S06, 845 
 
 liability of, under contract to furnish and load cars, 261 
 
 right to require to load cars according to stations, 884 
 
 to clean and repair cars, 884 
 
 right of, to sue on express contract contained in bill, 1006 
 
 discrimination between, how constituted, 182 
 
 how accomplished, 775 
 
 a question of fact, 764 
 
 by charging different rates, 238. 739, 740, 743. 746. 763, 770, 777, 876 
 by carrying for some and not for others, 756, 770 
 
 by different rate which is part of a uniform through rate, 783 
 
 by exacting conditions not exacted of all, 771 
 
 by conferring benefit upon one and not upon another, 780 
 
 by charging less than the regular tixed rate. 740 
 
 by imposing unequal terms and giving unequal accommodations, 763 
 refusal to give benefit of unexpired contract to one and not to an- 
 other, 762 
 by giving special rates to a certain class, 781, 782 
 by making advances to one, 802 
 by agreement for repayment of loan in freight at reduced rate, 745 
 by furnishing free canage, 770, 771, 779, 781, 783, 784, 787 
 by rebilliiig at a different rate, 780 
 by underbilling rates, 781. Ir^i 
 by refusal to give rates, 770 
 by delay of goods of one to forward those of another, 762 
 by charging unreasonable rent for cars, 776, 779 
 by charging more for rented cars, 778 
 by charging more for oil in barrels than in tanks, 776, 778, 7-0 
 by confining use of oil tank cars to one class, 777 
 by permitting shipper to stipulate for use of cars, 777 
 by regulation affecting individuals only, 758 
 by arbitrarily determining who shall receive manufacturing rates, 780 
 by refusal of improvements furnisiied anotiier under special contract, 779 
 by different charge for special services furnished, 777 
 by condition that all goods shall be shipped by carrier's line, 764 
 by special privileges to religious teachers, 736 
 by failure to make road accessible, 785 
 by purchasing of shipper, transporting and selling, 603, 805 
 in supplying cars for livestock, 229 
 in delivery to different stock yards, 236 
 as between manufacturers and dealers, 765 
 right of carrier as to, 
 
 571, 734 et seq., 737, 739, 743, 744, 745, 754, 755, 760, 761, 768, 771, 773 
 right of receiver as to, 785 
 
 common law rule as to, 730, 738, 746 
 
 prevalent doctrine as to, 736 
 
 under Interstate Commerce Act, 772 
 
 to what the prohibition against applies, 783 
 
 what constitutes offense under Interstate Commerce Act, 775 
 
 preference need not be accomplished by device, 781 
 
 English Rule as to, 755 
 
 difference between English and American Rules, 734 
 
 cases upholding the right distinguished and explained, 745
 
 1180 INDEX. 
 
 SHIPPERS— continued. ^ paoe. 
 
 cast'> denying the right distinguished and explained, 749, 750 
 right of each to equal facilities, 740, 760. 771, 777 
 
 reasonableness the test of validity, 756, 758 
 
 elTecl of, on reasonableness of rate, 765 
 
 must be unjust to be unlawful, 786 
 
 must be unreasonable to be unlawful, 789 
 
 must be injurious to be unlawful, 739 
 
 not presumed to be unjust and oppressive, 750 
 
 eCFect of fact that higher rate was not unreasonable, 746, 756 
 
 difTerence must be proportional in cost of carriage, 735 
 
 absolute e(|uality required in Colorado, 76H 
 
 without partiality, 7<50 
 
 what constitutes partiality, 767 
 difTerence in rales must be proportional to difference in cost of 
 
 carriage, 764 
 
 when higher rate to one than to another is justified, 768, 779, 785 
 
 for purpose of giving one advantage over another, 736, 775 
 
 to advance interest of carrier, 773, 774 
 for purpose of securing custom. 736, 754, 762, 773, 774, 784 
 
 for purpose of giving a monopoly, 762, 767, 770 
 
 'by depriving shipper of material advantage, 770. 784 
 
 because of difTerence in bulk of goods, 735, 764 
 
 to foster particular cnterpri.«es, 760 
 
 becau.se of use of all facilities by regular patrons, 760 
 for purpose of building up one's business at expense of another, 759 
 
 because of difTerence of cost of service, 735, 764 
 
 because of difTerence in expense of loading and unloading, 735, 764 
 
 because of ditticulty in obtaining cars, 779 
 
 because of greater risks to carrier's property, 778 
 
 because of defective stock supplied by shipper, 778 
 
 efTect of use of cars on return trip, 780 
 because of guaranty of large quantities at regular periods, 735, 736, 773 
 
 because return loads cannot be had, 735 
 
 because of transportation over steep crades, 735 
 based on quantity shipped, 74b, 751, 752, 703, 758, 761, 767, 773 
 
 as to forwarding property shipped, 757 
 
 what considered in determining existence of, 748, 764 
 
 comparison of charges, 746 
 
 equality of advantages, 749 
 
 access to competing route, 735 
 
 effect of motive upon, 761 
 when circumstances and conditions are similar, 746, 753, 756, 763, 765, 775 
 
 equality necessary when conditions are similar, 769 
 
 in case of di.ssimilar conditions, 736, 772, 776 
 
 when shipper owns side track and returns cars, 735 
 
 consideration furnished by favored shipper, 772 
 
 inability to furnish their own conveyance, '780 
 
 effect of inequality between rate charged and rate published, 740 
 
 liability of carrier for, 766 
 
 how vshown, 781 
 
 remedy for, 770, 804 
 
 burden of proof as to, 781 
 SHIPPING DIRECTIONS. 
 
 proof of effect of systematic disregard of, 859 
 SHIPPING RECEIPT. 
 
 necessity of shipper's signature to limited liability, 126 
 
 effect of indorsement of, or right of possession, 898
 
 INDEX. 1181 
 
 SHIPPING RULES AND REGULATIONS. page. 
 
 notice of, 879 
 
 presumption of notice from posting, 879 
 
 SHIPPING WATER. 
 
 a peril of the sea, IQg 
 SHOALS. 
 
 peril from, a danger of navigation, 169 
 SHORTAGE. 
 
 effect of acceptance on right to show, 917 
 
 liability for, proof necessary to establish, 917, 918 
 
 of canal boat hired at daily rate, ' 918 
 
 where weight is not known, 917 
 
 right to offset claim for, against demand for freight, 917 
 
 SHRINKAGE. 
 
 as a ground for discrimination between localities, 724 
 
 SINKING. 
 
 on c;ilni night, as a peril of the sea, 171 
 
 SLEEPING CARS. 
 
 validity of agreement for exclusive right to furnish, 459 
 
 used in interstate traffic, state taxation of, 512 
 
 SMALL TYPE. 
 
 effect of printing limitation of liability in, 180 
 
 SOAP. 
 
 classification of, as freight, 538 
 
 SPARK CONSUMERS. 
 
 effect of failure to provide, on exemption from peril by fire, 19 
 
 SPECIAL CARS. 
 
 provision of, for transporting special classes of freight, 19 
 
 SPECIAL CASE. 
 
 for change of rates, what constitutes, 026 
 
 for relief by interstate commerce commission, what constitutes, 629 
 
 SPECIAL CONTRACT. 
 
 not necessary to entitle shipper to transportation, 19 
 
 effect on character of carrier, 2, 3 
 liability under, when shipper knew that agent was prohibited from 
 
 receiving, • 82 
 
 effect of, on limitation of liability act, 1040 
 
 limiting liability, not implied from general course of dealing, 129 
 
 when binding, though contents unknown, 130 
 
 giving advantage in transportation, legality of, 771 
 
 admissibility of, in collateral proceeding for discrimination, 831, 842 
 
 SPECIAL RATES. 
 
 right of carrier to make, 578, 764 
 
 for legitimate increase of business, 756 
 
 to promise in consideration of locating on line, 557 
 
 when an unlawful discrimination, 781 
 
 provision of Interstate Commerce Act as to, 1057 
 
 effect on agreement for, of Interstate Commerce Act, 851, 886 
 
 power of United States Government to punish for, in Canada, 1098 
 right of person receiving to complain of charge on return shipment, 877 
 
 SPECIAL SERVICE. 
 
 establishment of freight rates for, 552, 595 
 
 SPECULATION. 
 
 right of railroads to require lands for ihe purpose of, 439
 
 1182 INDEX. 
 
 STATE BOARD OF TRANSPORTATION. pacje. 
 
 power of, to determine reasonableness of charge, 5il 
 
 order of, as to proper charges as evidence, 540 
 
 STATE CONTROL. 
 
 ( stoppcl to <li'ny, by asserting exemption from Federal law, 674, 675 
 
 STATE COURTS. 
 
 jurisdiction of, over legal and equitable rights, 1041) 
 
 over violation of Interstate Commerce Act, 1050 
 
 over penalties given by Act of Congress, 1049, 1050 
 
 over corporations engaging in business in state, 1043 
 
 STATE DECISIONS. 
 
 liovv far followed by courts of another state, 895 
 
 how far followed by Federal courts, b95 
 
 STATE LAW. 
 
 wlio are common carriers, decided by, 523 
 
 (iiitics and liability of common carrier measured by, 528 
 
 STATE REGULATIONS. 
 
 ado()lion of, under Interstate Commerce Act, 853 
 
 STATES. 
 
 power of, over commerce, 482-485 
 
 us to local matters, 497 
 eCfect of failure of Congress to act, 485, 486, 487 
 
 in matters of internal police, 515 
 
 over internal commerce, 494, 495 
 
 to regulate fares and freights, 1050 
 
 of internal commerce, 509 et sey. 
 
 when road constitutes part of a through transportation, 530 
 
 to prohibit unreasonable rates as to interstate traHic;, 574 
 
 to prohibit greater charges than specified in bill of lading, 510 
 
 to adopt rules to be observed by interstate carriers, 514 
 
 to provide safeguards against wrongs by interstate carriers, 513, 514 
 
 to carry on local works incidentally affecting commerce, 508 
 
 to interfere with contracts in restraint of competition, 510 
 
 grant by. of power to fix and regulate charges, 500 
 
 over ferries, 517 
 
 STATION AGENTS. 
 
 authority to contract to furnish cars, 20, 21, 265 
 
 to contract for carriage beyond route, 400 
 
 to bind company by representations as to rates, 852 
 
 to waive limitation of action for loss, 401 
 
 presumption as to, 401 
 
 when a question of fact, 401 
 
 necessity of notice of limitation upon, 401 
 
 ratification of authority of, by recognition of acts, 401 
 
 STATUTES. 
 
 how construed, 625 
 
 regulating commerce, tests of constitutionality, 482, 488 
 
 when conflicting with a congressional regulation, 486 
 affecting connections and prohibiting combinations, construction of, 
 
 430 ei seq. 
 
 effect of unconstitutional provision in, 538 
 
 when invalid as to part, and valid as to the rest, 1050 
 
 repeal of, by subsequent inconsistent enactment, 921 
 
 limitation of liability by, validity, 34 et seg. 
 
 on production of receipt, when applicable to steamships, 1033
 
 INDEX. 1183 
 
 STATUTES OF LIMITATION. page. 
 
 ctfect of, in admiralty, 870 
 
 recognition of, in Federal courts, 1049 
 STEAMBOATS. 
 
 liability of, as common carriers, 2 
 
 for failure to keep medicines for passengers properly arranged, 25 
 
 for damages to smaller craft caused by her waves, 353 
 
 for loss of cargo of lighter, caused by her waves, 363 
 
 discrimination between rival lines of, 714, 757 
 
 right of, to confiscate property shipped in violation of rules, 873 
 
 STOCK CAR COMPANY. 
 
 when a CMiniecting earner for interchange of traflBc, 430 
 STOLEN GOODS. 
 
 lien of carrier on, for freight, 861 
 
 effect on title, of sale, by thief, 903 
 STOPPAGE OF TRAINS AT STATIONS. 
 
 elTect of ^^tate re((uiiem<'nt of, 514 
 STOPPAGE IN TRANSITU. 
 
 as an excuse for nondelivery, 926 
 
 right of, superiority over stipulation for lien, 864 
 
 what is sufticient delivery to defeat, 864 
 
 defeat of right of, by transfer of bill of lading, 926 
 
 after refusal of insolvent person to receive, 926 
 
 STORAGE. 
 
 duty uf carrier as to, where delivery cannot be made, 988, 989 
 
 where connecting line will not receive, 982 
 
 where consignee lirm has no existence, 983 
 
 where consignee cannot be found, 986 
 
 where consignee is not ready to receive, 991 
 
 right to charge for delay in unloading, 971, 973 
 
 by carrier as warehouseman, right of to charge, 972 
 
 consideration for, 993, 997, 998 
 
 liability for, 972 
 
 under rule of which consignee had no notice, 977 
 
 loss during storage on route, , 315 
 
 in depot, right to stipulate for termination of liability on, 337 
 
 STORMS. 
 
 an act of God, 158, 160 
 
 as a peril of the sea, 170 
 
 as an excuse for delay, 336 
 
 liability for putting to sea in face of, 174, 175 
 
 effect of, on time of delivery, 891 
 STOWAGE ON DECK. 
 
 when required, 303 
 
 form of consent to, 304 
 
 burden of proof of consent to, 304 
 
 effect of consent to, on burden of proof as to cause of loss, 303 
 
 presumption of consent when customary, 304 
 
 liability for loss from, 303, 311 
 
 effect of knowledge of shipper, 304, 306 
 
 STRANDING. 
 
 a peril of the sea, i '" 
 
 covered by insurance against perils of the sea, 1009 
 
 liability for injury by, I'J'O. 348 
 
 power of shipmaster to sell vessel in case of, oo7
 
 1184 INDEX. 
 
 STREETAGE. paok 
 
 cITcrt of charging, upon place of delivery, 898 
 STRIKES. 
 
 duty of carrier in case of, 340 
 
 as an excuse for delay in delivery, 208. 3J^9 
 
 as excuse for failure to deliver. 10:{:{ 
 
 liability for delay caused by, 848, 347 
 
 for dcnuirra^e wiien delay 18 caused by, 976 
 
 of consignee for failure to unload caused by, 857 
 
 right to limit liability for, 846 
 
 SUBPOENAS DUCES TECUM. 
 
 right to, in proceeding for discrimination in rates, 831, 843 
 SUBROGATION. 
 
 right of insurer to, in absence of express contract, 1017 
 
 effect on, of contract limiting carrier's liability, lOKi 
 
 effect on, of voluntary payment, 1015 
 elfect on, of stipulation by carrier for benefit of insurance, 
 
 1011, 101a. 1016, 1021 
 
 effect of agrecniont for subrouMtion of carrier ai:;iin<t iii-iun-r, 1017 
 
 SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND 
 
 CONDITIONS. 
 
 what constitutes, 604 et seq., 616, 617, 633, 636, 660 
 
 under long and short haul clause, 618 
 
 as between different localities, 781 
 
 effect of limitation of liability by contract, 616 
 
 effect of ordinary difference of cost of carriage, 616 
 
 effect of competition, 617, 623, 654 
 
 effect of competition with carrier, not subject to act, 625, 637, 601 
 
 effect of competition at terminal points, 658 
 
 effect of competition with water transportation, 659, 664, 606 
 
 effect of competition between vlifferent markets, 029 
 
 effect of difference in size of cities, 726, 727 
 
 effect of difference in quantity shipped. 753 
 
 effect of difference in distance of depots from trade center, 726 
 
 effect of more traffic furnished by one road than by another, 686 
 
 effect of difference as to terminal charges, 720 
 
 effect of rendition of special services, 777 
 
 effect of different weight of lumber, 777 
 
 origin of phrase, 604 
 
 construction of phrase, 604 et seq., 617. 61 S 
 
 authority of English decisions as to, 005 et seq. 
 
 application of provision as to, 624 
 
 when carrier may determine as to existence of, 625-629, 647 
 
 when existence determinable by courts or juries, 032 
 
 necessity of equality of rates under, 769 
 
 discrimination between localities under, 718 
 
 discrimination between shippers under. 775 
 
 effect of absence of, on dissimilarity of rates, 776 
 
 necessity of, to recover for discrimination between shippers, 765 
 
 dissimilarity must not be controllable by carrier, 633. 780 
 
 admission of, by establishment of like rates, 649 
 
 presumption as to, 627, 631, 632 
 
 burden of proof of dissimilarity, 607, 647, 717 
 
 SUDDEN DEATHS AND ILLNESSES. 
 
 the act of God, 161 
 SUNDAY. 
 
 carrier not bound to furnish cars to ship livestock on, 363
 
 INDEX. 1185 
 
 when carrier's duty to ship livestock on, 263 
 
 right of carrier to receive goods tendered on, 387 ■ 
 
 former rule as to validity of contracts made on, 892 
 
 SUNKEN CANAL BOAT. 
 
 owner not required to remove from New York harbor, 356 
 
 SUNKEN VESSELS. 
 
 effect of raising and repairing on limited liability, 62 
 
 SUPERIOR TITLE. 
 
 iu third person as an excuse for nondelivery, 926 
 
 SURGICAL CHAIRS. 
 
 may be shipped wlien crated, 554-556 
 
 SURVEY OF DAMAGED CARGO. 
 
 recovery of expense of, in addition to freight, 845 
 
 SWEATING. 
 
 of cargo, when a peril of the sea, 168, 308 
 
 from improper storage, liability of master for, 309 
 
 right to contract for exemption from liability for, 157 
 
 loss in case of deviation not excused by exempuoa, 312 
 
 SWITCH. 
 
 not a depot for delivery of freight, 77 
 
 SWITCHING COMPANY. 
 
 not a common currier, 4 
 
 SWITCHING SERVICE. 
 
 what constitutes, 635 
 
 T. 
 
 TABLE OF DISTANCES. 
 
 whiit constitutes witliiu Florida Commission Rule, 883 
 TANK CARS. 
 
 right to allowance for use of, 778 
 TAXATION. 
 
 by state, of commerce, 496 
 
 of interstate commerce, 622 
 
 of gross receipts of interstate traffic, 622 
 
 of persons or goods in trandtu in another state, 484 
 
 of telegraph messages, 487 
 
 of ferry between states, 502 
 
 of sleeping cars used in interstate traffic, 612 
 
 of goods brought from another state, 513 
 
 of instruments of commerce, 497 
 of property engaged in interstate commerce, 505, 517 
 TEAMSTERS. 
 
 when common carriers, 3 
 
 TELEGRAPHS. 
 
 power of Congress to regulate, 487 
 
 power of states to regulate, 484 
 
 state taxation of messages, 487 
 
 state regulation of delivery of messages in another state, 512 
 
 validity of contract for exclusive right to construct, 466 
 
 TELEGRAPH MESSAGES. 
 
 damages for delay in delivery, mental distress as an element of, 1026, 1027 
 
 TEMPEST. 
 
 an act of God, 158, 160 
 
 75
 
 1186 INDEX. 
 
 TEMPORARY STOPPAGE. pack. 
 
 cITl'cI of, on exports and interstate transportation, 530 
 
 TENDER. 
 
 of reasonable compensation for carriage, effect of, 74 
 
 necessity of, when carrier refuses to deliver without payment, 861 
 
 to action for injury to, or loss of goods, 859, SCI. 1005 
 
 to liability for penalty for refusal to deliver, 918, 923 
 
 when demand for demurrage is extortionate, 869, 977 
 
 of balance of freight by charterer's agent, effect of, 852 
 
 effect of, on liability of carrier employed to collect, 906 
 
 TERMINAL CHARGES. 
 
 inclusion of, in established freight rates, C39. 642. 643, 644 
 
 effect of, on freight rates, 818 
 
 effect on, of estimate of rate on long and short hauls, 654 
 
 effect of, on similarity of circumstances and conditions, 720 
 
 TERMINAL FACILITIES. 
 
 joint use of, a matter of agreement, 678 
 
 TERMINATION OF VOYAGE. 
 
 what constitutes, within limited liability act, 61 
 
 effect of, on right to freight, 872 
 
 by acceptance of cargo at place of disaster, 872 
 TERMS OF ART. 
 
 meaning of, when used in classiflcation of freight, 552 
 
 TERRA COTTA BUSTS. 
 
 not statuary within carrier's contract, 96 
 TESTIMONY. 
 
 how taken under order of court before Interstate Commerce Com- 
 mission, 1062 
 TEXAS CATTLE. 
 
 power of state to prohibit running at large, 509 
 TEXAS FEVER. 
 
 liability for furnishing cars infected with, 229 
 
 right to refuse to transport cattle infected with, 237 
 
 liability for injury from transportation of cattle infected with, 237 
 THEFT. 
 
 not included in perils of the sea. 164 
 
 liability of warehouseman for loss by, 983 
 
 by servants, right to contract against liability for, 151 
 THROUGH BILLS OF LADING. 
 
 right of connecting carrier to issue, 711 
 THROUGH RATES. 
 
 formation of, 652, 684, 68.5, 687 
 
 for exports, 649, 680 
 
 by addition of local rate to through rate on first line, 682 
 
 by adoption of local rate covering both initial and final expense, 687 
 
 method of establishing, importance of, 683 
 
 formal announcement by one carrier to another, 683 
 
 proper adjustment of, 683 
 
 must be reasonable, 683 
 
 reasonableness of, parties to proceeding to determine, 686 
 
 not affected by division between carriers, 687 
 
 what constitutes, when no joint tariff is established, 686 
 
 formal quotation of, by one carrier to another, 685 
 
 design of Interstate Commerce Act as to, 688 
 
 power of the English Commission as to, 677
 
 INDEX, 1187 
 
 PAGE. 
 
 who entitled to order showing rates making up, 687 
 
 right to compel railroads to give, 676, 677 
 
 right of carrier to refuse to give, 674, 676 
 
 right to reduce as to interstate traflSc, 673, 674 
 
 validity of agreements for, 680 
 
 not within prohibition against combinations, 680 
 when less than local rates after division, 684-687, 710 
 reasonableness of difference from local rates, a question of fact, 686, 733 
 effect on, of cost of delay in unloading cars at a particular station, 687 
 
 discrimination by, against intermediate point, 684, 686 
 
 effect of charging local rate as a part of the whole, 684, 685 
 
 effect of making one carrier's portion less than its local rate, 684 
 
 effect of refusal to make, 679 
 
 consideration of divisions as to arbitrary differential, 687 
 circumstances warranting excess over percentage for distant point, 684 
 
 THROUGH ROUTES. 
 
 right to insist upon circuitous when direct routes are feasible, 676 
 
 right to break up, 713 
 
 THROUGH TICKETS. 
 
 right to issue under Interstate Commerce Act, 711 
 
 THROUGH TRAFFIC ARRANGEMENTS. 
 
 refusal to make, not an unjust discrimination, 678 
 
 TOLLS. 
 
 grant by state of power to fix, 500 
 
 power of state to establish over bridge between states, 602-507 
 
 on bridges between states must be reasonable, 507 
 
 THROW-OFF SWITCHES. 
 
 liability for failure to close contributing to collision caused by 
 
 stranger, 327 
 
 TICKETS. 
 
 right to refuse to sell to particular persons, 757 
 
 TICKET BROKERS. 
 
 complaints by, before Interstate Commerce Commission, 532 
 
 TIDES. 
 
 as an excuse for delay, 326 
 
 when negligence not to guard against, 174 
 
 TIME AND MANNER OF CARRIAGE, 
 
 legislative regulation of, 709 
 
 duty of carrier as to, 709 
 
 TITLE. 
 
 to goods shipped, evidence of, 1004 
 
 when taken at risk of consignor, 1004 
 
 of one who Is both consignor and consignee, 1005 
 
 of carrier, 1003 et seq. 
 
 how transferred from shipper to consignee, 1003 
 
 requisites of bill of lading as to, 1005 
 
 where insurer has advanced its value as a loan, 1021 
 
 of consignor, right of carrier to dispute, 926 
 
 of pledgee of bill of lading as security for draft, 111 
 
 TONNAGE DUTIES. 
 
 distinguished from wharfage charges, 508 
 
 power of stale to impose, 511
 
 1188 INDEX. 
 
 TORTS. 'AQ"^ 
 
 iurisdiction in admiralty over, 104') 
 
 at sea. nature of lien on vessel for, H71 
 
 TOW. 
 
 liiihility of, for collision, 354 
 
 TOWAGE. 
 
 rii^lit of shipmaster to contract for, 327 
 
 TOWBOAT. 
 
 wliciher iv common carrier, 4 
 
 TOWING OR LIGHTERING. 
 
 uiicii Iiilurstale Commerce, " 630 
 
 TRACKS. 
 
 joint use of a matter of agreement, 678 
 TRADE. 
 
 wiib Indian tribes, included in commerce. 1069 
 
 among the several states, included in commerce, 1069 
 
 TRADE CENTERS. 
 
 right of to more favorable rates than smaller towns, 714 
 
 discriiiiinatiDn in favor of, 715 
 
 TRADE CONDITIONS. 
 
 consulcruiiou of, in claasiflcation of freight, 665, 566 
 
 TRAFFIC. 
 
 included in commerce, 488, 1001> 
 
 is eillier state or interstate, '•■'SO 
 
 TRANSFER COMPANIES. 
 
 when connecting carriers, 882, 383 
 
 TRANSPORTATION. 
 
 essential to commerce, . 482 
 
 legislative power to regulate time and manner of 709 
 
 from one state to another is interstate Commerce, 627 
 
 what included in term as used in Interstate Commerce Act, 1057 
 
 duty of carrier as to, 329 
 
 effect of accidents and obstructions on, 829, :{W 
 
 degree of diligence required as to time, 820, ;521 
 
 what constitutes reasonable time for, 322 
 
 establishment of duty to forward at once, by usage, ;S23 
 
 carrier not bound to carry goods beyond exterminus, 383 
 
 right to, a common right belonging to all, 751, 754 
 
 on reasonable and equal terms, 765 
 
 right to give preference as to the order of, 760 
 
 right to delay in order to forward goods of another, 762 
 
 right to imperil goods in order to expedite, 331 
 
 effect of temporary stops, 386 
 
 contract for, not affected by mode adopted, 7 
 
 special contract for, need not be made, 570 
 
 invalidity of contracts for monopoly of, 757 
 
 assumption as to cost of, wiiere carrier is shipper, 842 
 
 TRANSPORTATION COMPANIES. 
 
 when common carriers, 6 
 
 what are within provision, as to power of railroad commission, 536 
 TRESPASSERS. 
 
 liability of carriers for injury by acts of, 16, 327 
 TRIAL BY JURY. 
 
 not required in matters of contempt, 1088
 
 INDEX. 1189 
 
 PAGE. 
 
 right to, in proceeding before Interstate Commerce Commission, 1087 
 not infringed by making schedule of rates prima facie evidence of 
 
 reasonableness, 538 
 
 TRINKETS. 
 
 what are, within provision requiring notice of character and value, 58 note 
 
 TROVER. 
 
 right to maintain without pa}'ment of freight, 860, 861 
 
 TRUCKING COMPANIES. 
 
 when connecting carriers, 383, 383 
 
 TRUCKMEN. 
 
 when common carriers, 3 
 
 TRUNKS AND PACKAGES. 
 
 carriers of, when common carriers, 2 
 
 liability of carriers of, 3 
 
 TUGS. 
 
 duties and liabilities of, 354 
 
 responsibility of in case of collision, 354, 355 
 
 liability of, for failure to leave tow in safe place, 333 
 
 validity of license fees imposed upon, 483 
 
 TUG AND TOW. 
 
 exhibition of lights by, 355 
 
 joint liability for collision where tow participates in navigation, 355 
 
 continuance of course by, in storm of indehuite duration, 354 
 
 u. 
 
 ULTRA VIRES CONTRACTS. 
 
 validity of, 439 
 UNAVOIDABLE CASUALTY. 
 
 hre not included in, 189 
 
 exemption from liability for, burden of proof as to, 189 
 UNDUE PREFERENCE. 
 
 what constitutes, 776 
 
 a question of fact, 715 
 
 as to group rate, 728 
 
 as between dealers and manufacturers, validity of, ' 725 
 
 through rate proportionately less than local rate, 684, 710 
 
 charging local rates on business tendered by local carriers, 679 
 
 less rate for product of certain mines than others, 710 
 
 charging more for anthracite than for bituminous coal, 791, 794 
 
 refusal of goods, because shipper offers like tralhc to another, 710 
 
 provision for, in Interstate Commerce Act, 606, 1058 
 
 purpose of. 609, 716, 773 
 
 construction of, 609 
 
 application of prohibition, 667, 668 
 
 authority of English cases as to, 708 
 
 what considered in determining, 609, 739, 733 
 
 commercial necessities, 710 
 
 public interest, 733 
 
 more traffic furnished by one road than by another, 686 
 
 competition with other routes, 613, 614, 633 
 
 between different localities, see Localities. 
 
 between through and local traffic, necessity of showing prejudice, 610-612 
 
 in whose favor constituted by excessive charges, 745 
 
 right to recover overcharges in violation of act prohibiting, 613 
 
 indictment for, requisites of, 1091
 
 1190 
 
 UNEXPECTED INUNDATION. paok. 
 
 as all t'X(:ii>ii' f"(»r ili-luy, ItM) 
 
 UNIFORM CLASSIFICATION. 
 
 practical»ilily i>t', 
 history of adoption of, 
 class rates uot oblij,'alory, 
 not obligatory on railroads, 
 connecting carriers, how treated under, 
 right of carrier to adopt lower than class rates, 
 lower proportionate charges for long distances under, 
 course adopted by Interstate Commerce Commission aa to, 
 UNINSPECTED BOILER. 
 liability for use nf, 
 use of as proof of negligence, 
 
 UNJUST DISCRIMINATION. See also Dischimination 
 provision of Interstate Commerce Act aa to, 
 
 purpose of, 
 
 prohibition, when applicable, 
 
 constitutionality of, 
 what constitutes under Interstate Commerce Act, 
 
 charges need not be unreasonable, ])er se, 
 effect of consideration equal to discount, 
 
 equality of discount allowed, 
 effect of competition upon right to fix rates as to, 
 consideration of interest of carrier in determining existence of, 
 use of classification as a devise lo effect, 
 not excused by agreement for maintaining uniform rate, 
 establishment of by proof of different rates between same places, 
 
 by proof of preference between localities, 
 
 by proof of allowance of rebates, 
 prevention of by establishing reasonable rates, 
 what treated as a point, for the purpose of proceeding for, 
 jurisdiction in action for, when road extends through different states, 
 requisites of indictment for, 
 
 UNLAWFUL DISCRIMINATION. 
 
 wliat constitutes, 
 
 UNLOADING. 
 
 of vessel, construction of charter-party as to, 
 
 duty of carrier as to use of care in, 
 
 effect of agreement of consignee to unload, 
 
 consignee's obligation as to diligence, 
 
 right of deduction for, under bill binding master to unload, 
 
 when vessel may wait for berth until notice of readiness, 
 
 UNREASONABLE RATES. 
 
 application of prohibition of, to long and short hauls, 
 
 UNSEAWORTHINESS. See also Seaworthiness. 
 excuse for, 
 when presumed, 
 
 liability for, when contributing to injury by act of God, 
 effect of, on exemption from liability for perils of the sea, 
 
 USAGES AND CUSTOMS. 
 
 office of, 
 
 what constitutes, 
 
 existence, a question of fact, 
 
 790 
 642 et neq. 
 
 547. .WO 
 r>47 
 r)47 
 
 549, •)«! 
 547 
 550 
 
 848 
 
 848 
 
 574. (J05 now. 772, 1058 
 
 euU, 707, 715, 772, 774 
 
 574, 021, G48 
 
 1071 
 
 732. 774 
 
 610, Oil 
 
 706 
 
 706 
 
 638 
 
 772 
 
 791 
 
 731 
 
 686 
 
 733 
 
 706, 886 
 
 710 
 
 713 
 
 519 
 
 1091 
 
 649 
 
 869 
 989 
 925 
 97G 
 854 
 977 
 
 621 
 
 22 
 
 28, 1032 
 
 175 
 
 190, 191 
 
 117 
 385 
 117
 
 INDEX. 1191 
 
 validity, a question of law, nj 
 
 force and effect of, 964, 965 
 
 must be reasonable, ' 117 
 
 must not be contrary to public policy, 117, 119 
 
 must not be in restraint of trade, ' 117 
 
 must be definite, uniform and notorious, 117, 118 
 
 must be of general acceptance, ' 965 
 must be brought to notice of parties, 119, 385, 965 
 cannot override express or established rules of law, 117, 118, 123 
 
 cannot prevail against legal rights, . ' 964, 965 
 
 effect of upon contracts for transportation, 118, 893 
 
 when contract is clear and explicit, 118,' 385 
 when contract is presumed to have been made with reference to, 
 
 116, 117, 385, 903, 904 
 
 when taken notice of without proof, 385 
 
 as evidence, competency and purpose of, 117, 119, 385 
 
 of agreement for delivery by deposit, without notice, 82 
 
 of delivery to connecting carrier. 384 
 
 establishment of duty to forward at once by, 323 
 
 effect of, upon liability of carrier, 2, 167 
 
 for unsafe method of transportation, 119 
 
 lor deviation, 316, 946 
 
 for failure to give notice of nondelivery, 390 
 
 on time and mode of delivery, 122, 891 
 
 on method of delivery to connecting carrier, 384, 385 
 
 upon place of delivery. 118, 122, 946, 947 
 
 on right to deliver on unindorsed bill of lading, 897, 908 
 
 on rii,'ht to deliver without production of bill, 272, 903 
 
 on delivery by carrier by water, 941, 944, 964 
 
 with reference 10 delivery to carrier, 123 
 
 for shipper to accompany stock, 119 
 
 to pay for hauling from shipper's wharf, 119 
 
 packing and storing, how far controlled by, 301, 302 
 
 as an excuse for failure to forward goods, 329 
 
 limitation of liability by, 119, 120, 122, 964 
 
 by limitation of value, 293 
 
 by requiring notice of claim, 120 
 
 by reducing measure of damages to place of shipment, 390 
 
 to take up bills of lading before delivering, 923 
 
 as to delivery, sufficiency of excuse for departure from, 963, 965 
 
 delivery according to when shipped without directions, 964 
 
 at wharf with notice, sufficiency of, 964 
 
 what controls in absence of, 964 
 
 to leave freight at a certain place, effect of, 904 
 
 to store goods on arrival, consignee must take notice of, 986 
 
 to deliver to warehousemen, effect of on liability of carrier, 998 
 
 as to unloaded vessels, . 965 
 
 requiring owner to unload stock, 122 
 
 when controlled by agreement, 264 
 
 devolving care upon consignee after unloading, 122 
 
 requiring notice of claim before removal, 276 
 
 USED. 
 
 meaning of term in limited liability act, 69 
 
 USEE. 
 
 right of, to sue for goods sent to another, 1005
 
 1192 INDKX. 
 
 V. 
 
 VARIANCE. PAGE, 
 
 between allegation of liability as conimon carrier and proof of as 
 
 private carrier, 256 
 
 between allegation of common law liability and proof of a special 
 
 contract, 288-291,1006 
 
 VALUE. 
 
 rii;lit of carrier to require information as to, 86, 206 
 duty of shipper to state if asked, 208 
 good faith rerjuirud of shipper in stating, 282 
 suliiciency of verbal statement of, 208 
 effect of concealment or understatement of, on liability, 209, 213 
 validity of stipulation for additional freight on discovery of conceal- 
 ment, 216, 217 
 of livestock, judicial notice as to, 283 
 limitation of, by contract, validity of, 
 
 45. 196-198, 208, 218, 219, 283. 285, 28« 
 
 ■when binding on shipper, 201, 280 
 
 validity wIkmi loss is caused by negligence, 196-199, 207, 281, 280 
 
 necessity of consideration, 204 
 
 in consitleralion of reduced rate, 202 
 
 effect of failure to mention reduced rate. 207 
 
 when accompanied by statement that without it goods would not go, 287 
 
 necessity of demanding full liability transportation, 284 
 
 value fixed must not be arbitrary, 204 
 
 when reasonable, 203, 204, 279, 280, 285, 286 
 
 strictly cnnslrued, 255 
 
 validity and effect where value not stated. 213 
 
 effect where goods are plainly of greater value, 213 
 
 effect of failure to ask for value or goods or rate of freight, 280 
 
 when limited to each package or article, 218 
 
 under statute prohibiting exemption from liability, 218 
 
 validity as applied to liv-estock, 255. 281 
 
 to that at time and place of shipment, validity of, 202, 203, 219, 293 
 
 not applicable to loss by negligence, 266 
 
 effect of signature of contract without reading, 281 
 
 when implied from shipping under known regulations, 280 
 
 by shipping without obtaining benetit of lower rate, 284 
 
 existence of contract for. a question for the jurj', 287 
 
 when an estoppel to claim higher value, 208, 282 
 
 no protection against fraud or intentional or reckless negligence, 203 
 
 effect of sale for more, on liability within the limit, 285 
 
 evidence of, 1035 
 
 effect of, on damages, 1035 
 
 waiver of, by settling for more, 287 
 
 validity of limitations designed to effect a full disclosure of, 282 
 
 limitation of, unless stated, when binding, 201 
 
 effect of failure to inquire, 203, 205, 206 
 
 effect of silence or artifice, 203 
 
 effect of refusal to give, 204 
 
 effect of, when charge is graduated by valuation, 214, 215 
 
 consideration of, in classifying freight, 552, 557 
 
 consideration of, in fixing rate, 792 
 
 of transportation, consideration of, in fixing rate, 792 
 
 VERBAL MORTGAGE OR PLEDGE. 
 
 when good as against consignee, 107
 
 INDEX. 1 193 
 
 VERMIN. PAGE, 
 
 rats not included in exemption from liability for, 168 
 
 liability for, in case of failure to fumigate, 333 
 VESSELS. See also Steamboats. 
 
 wiiuu common carriers, g 12 
 
 when instruments of Interstate Commerce, 529 
 
 power of state to impose license fees on, 505 
 
 used in inland navigation not within limited liability act, 1040 
 
 dutj' of owner, to inspect, 26 
 
 seaworthiness an implied condition of hiring, 21 
 breach f>f contract to supply, not excused by contrary winds and bad 
 
 weather, 21 
 
 waiver of objection to want of readiness to receive cargo, 21 
 
 duty of, to keep hold free from water, 307 
 
 in packing and stowing cargo, 298 
 
 when approaching another vessel, 350 
 
 responsibility of, to third persons for proper navigation, 350 
 
 in case of loss within exception of bill of lading, 872 
 
 place of delivery by, 888 
 
 obligation of charterers to unload, when it begins, 869 
 
 right of. to discharge elsewhere than at their own piers, 955, 963 
 
 unloading, usage and custom as to, 905 
 
 liability of, as common carriers, 12, 171, 361, 869 
 
 for injury to cargo by water, 23 
 
 for injury to cargo from defective bridge, 23 
 
 for injury from escape of steam, 23 
 
 for injury from defective platform for unloading, 23 
 
 for fault of master, 871 
 
 for breach of contract of one unlawfully in possession, 326 
 
 for loss of weight of stock from delay, 345 
 
 for error in extremis, 351 
 
 for insufficiency of vessel, 871 
 
 for negligence in storage, 298, 871 
 
 for injury by goods of one to those of another, 871 
 
 for failure to furnish safe unloading machinery, 871 
 
 for failure to give notice of inability to find berth, 869 
 
 for increased cost of unloading, caused by custom of the port, 869 
 
 for breach of contract of affreightment, 871 
 
 for safe shipment and delivery, when it attaches, 847 
 
 sale of, duty of master as to notice to owners, 867 
 
 lien on, for performance of contract of shipment, see Liens, 
 
 VOLUME OF TRAFFIC. 
 
 consideration of, in classifying freight, 552, 553, 557 
 
 in determining existence of undue preference, 729, 780 
 
 in determining reasonableness of rate, 733 
 VOLUNTARY DONATION. 
 
 of lost goods, right of shipmaster to make, 867 
 
 w. 
 
 WAGONS. 
 
 place of delivery by carriers by, 888 
 WAIVER. 
 
 of want of readiness to receive cargo, 21 
 
 of prepayment of freight by acceptance of goods, 847 
 
 of breach of contract to transport, effect of receipt of goods, 345 
 
 of duty by agreement for speedy and personal delivery, 7 
 
 1
 
 11 'J4 INDEX. 
 
 WAIVER— continued. paoe. 
 
 of liinitution, Ity dcpiirture from contract, 148 
 
 by failure to insist upon higlier riite, 204' 
 
 of Viiluu, by settling for larger iiinount, 287 
 
 of time for presentment of cliiim by notice of subsequent delivery, 223 
 
 of notice of claim before removal by return of injured prdperly, 277 
 
 of defects in notice of loss, by failure to object. 9 
 
 of limitation of action, by agent known to be without authority, 22.') 
 
 of refusal to store by assumption of duty of depositor, 1000 
 
 of lien for freight by unconditional delivery, 863 
 
 special delivery subject to lien, 863 
 
 by placing detention of gootls on other grounds, 863, 804 
 
 riglit of parties to contract against, 863 
 
 WAREHOUSEMAN. 
 
 cairier when liable as, 15, 979 et uq., 985 
 
 where connecting line will not receive, 982 
 
 duty of carrier as, with reference to goods deposited, 994 
 
 bound only for reasonable care, 980 
 not protected by constitutional provisions for regulation of commerce, 981 
 
 right to hold goods subject to their own liens, 865 
 
 to insure goods, see Insuranck. 
 
 liability of, for misdelivery, 982, 983 
 
 for ordinary care, 980, 987 
 
 for loss by lire, 983 
 
 for loss through robbery or theft, 983 
 
 for loss from dangerous quality of goods, 983 
 
 for goods lost through defect in package, 988 
 
 after delivery to agent of consignor, 990 
 
 ■where erroneous information as to nonarrival is given, 990 
 
 for properly seized by legal process, 1001 
 
 under receipt for property, subject to order of third person, 1002 
 WAREHOUSES. 
 
 dii^crimination by carrier between, 761, 76'i 
 
 what constitutes, as a place of delivery, 888 
 WASHOUT. 
 
 liability for delay caused by, 263 
 WAVES. 
 
 perils from, a danger of navigation, 166 
 
 WEIGHT OF GOODS. 
 
 how estimated when actual weight can not be ascertained, 714 
 
 duty of carrier when weight is not specified in bill, 922 
 
 how established where a part of cargo is lost, 1037 
 
 WEIGHT UNKNOWN. 
 
 effect of clause on statement of amount in bill of lading, 105, 106 
 
 stamped on bill of lading, presumption from, 155 
 
 WET CARGO. 
 
 presumption of unseaworthiness from, , 1032 
 WHALING VESSELS. 
 
 interest of owners and seamen in, 1008 
 WHARFAGE. 
 
 power of state to regulate, 508, 510 
 
 charges for, must be reasonable, 512 
 
 reasonableness of, how ascertained, 511 
 
 reasonableness of, by what law governed, 512 
 
 right of Congress to interfere if unreasonable, 511
 
 INDEX. 1195 
 
 PAGE. 
 
 right of Federal courts to inquire as to reasonableness of, 513 
 
 regulated by tonnage, not tonnage duties, 508, 511 
 
 validity of, not atfected by application of proceeds, 508 
 
 WHARFINGERS. 
 
 riglit of owner to recover property sold by, • 108 
 
 right of, to insure goods, see Insurance. 
 
 liability of, for goods seized under legal process, 935 
 
 WHARVES PIERS AND DOCKS. 
 
 reguhitioa of, concurrent jurisdiction of state and nation over, 496 
 
 as a place of delivery by steamboats, 888 
 WILLFUL MISCONDUCT. 
 
 riglifto stipulate against liability for, 44, 53 
 
 WINDS. 
 
 change of, an act of God, 170 
 
 peril from, a danger of navigation, 166 
 
 damage by, when a peril of the sea, , 170 
 
 blowing car from track causing fire, proximate cause, 179 
 
 WITNESSES. 
 
 provisions of Interstate Commerce Act as to, 1063, 1063 
 
 WORMS. 
 
 damage by, not a peril of the sea, 165, 168 
 
 WRECKAGE. 
 
 damage to'ship passing through, a peril of the sea, 166 
 
 WRECKED VESSELS. 
 
 duty of master as to saving goods and repairing vessel, 330, 333 
 
 care required of goods on board, 335, 336 
 
 duty to reship to place of destination, 330 
 
 liability for collision with, ^ 356 
 
 WRECKING. 
 
 when a danger of navigation, 171 
 WRITTEN AGREEMENTS. 
 
 not changed by custom, 874 
 
 WRONGDOERS. 
 
 lien of carrier upon goods delivered by, 859, 863 
 
 WRONGFUL DETENTION. 
 
 effect of, on liability for loss by subsequent freshet, 264 
 
 effect of failure to give notice of, on act of God as an excuse, 264 
 
 WRONGS. 
 
 power of Interstate Commerce Commission to prevent, odd 
 
 right of carrier to interpose contract as a defense against, 836