an insurer, though the shipper or his servant may accompany the goods and assume certain duties towards them; but for any loss or injury, resulting from a failure to attend to the duties thus assumed, the carrier is, of course, not responsible. These principles

are of frequent application in shipments of live stock, when it is not unusual for a shipper to send with the animals a servant to feed, water, and otherwise take care of them. The carrier must also give such servant reasonable opportunity to perform the duties which he has thus assumed."

Inherent Vice, Disease, or Condition of Animals

Carriers of live stock are liable as insurers, just as other common carriers of goods, subject to the same five exceptions."1 In this case, though, the last of these exceptions, inherent nature of the goods, far outshadows all the others in practical importance. This is often stated in such a way as to indicate that the exemption of the carrier of live stock in this respect is by virtue of some rule inapplicable to other carriers. The rules are the same in each case; the difference results from the application of the rule to different sets of facts. Animals are alive; most freight is inanimate. In this vitality is found an added element of danger in the transportation of animals. Accordingly, if the cases were counted, the results would probably show that, in the case of live stock, the carrier has occasion to resort more frequently to the inherent nature of the goods than to all the other four exceptions added together.

The carrier's liability is therefore especially contingent upon the inherent vice, disease, or condition of the animals 72 shipped. "Liv

69 South & N. A. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Cragin v. New York Cent. R. Co., 51 N. Y. 61, 10 Am. Rep. 559; Duvenick v. Missouri Pac. Ry. Co., 57 Mo. App. 550; Central R. R. v. Bryant, 73 Ga. 722; Betts v. Farmers' Loan & Trust Co., 21 Wis. 80, 91 Am. Dec. 460; Gannell v. Ford, 5 L. T. (N. S.) (Eng.) 604.

70 Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268; Harris v. Northern Indiana R. Co., 20 N. Y. 232; Johnson v. Alabama & V. Ry. Co., 69 Miss. 191, 11 South. 104, 30 Am. St. Rep. 534.

71 See cases cited in note 64.

72 Richardson v. Chicago & N. W. Ry. Co., 61 Wis. 596, 21 N. W. 49; Illinois Cent. R. Co. v. Scruggs, 69 Miss. 418, 13 South. 698; Louisville, N. O. & T. Ry. Co. v. Bigger, 66 Miss. 319, 6 South. 234; Smith v. New Haven & N. R. Co., 12 Allen (Mass.) 531, 90 Am. Dec. 166; Penn v. Buffalo & E. R. Co., 49 N. Y. 204, 10 Am. Rep. 355. Where the carrier has used due care, and provided a suitable car, and the injuries were caused by the peculiar character and propensities of the horse, such as fright and bad temper, the carrier is not liable. EVANS v. FITCHBURG R. CO., 111 Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201. It is the duty of the owner, delivering property to a carrier which he knows requires peculiar care in its safe transportation, to make known the necessity in order that DOB.BAILM.-23

ing animals have excitabilities and volitions of their own, which greatly increase the risks and difficulties of management. They are carried in a mode entirely opposed to their instincts or habits; they may be made uncontrollable by fright, or notwithstanding every precaution, may destroy themselves in attempting to break

the proper precaution may be used. Wilson v. Hamilton, 4 Ohio St. 722. In Clarke v. Rochester & S. R. Co., 14 N. Y. 570, 67 Am. Dec. 205, it was held that common carriers of cattle are liable, not only for a safe and careful conveyance of the car containing them, but also for any injury which can be prevented by foresight, vigilance, and care, although arising from the conduct of the animal, and they are not relieved of this responsibility by the fact that the owner of the cattle was present, and aided in loading them, and was allowed a passage for himself in the train which carried the cattle. See, also, Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42; Goldey v. Pennsylvania R. Co., 30 Pa. 242, 72 Am. Dec. 703; McDaniel v. Chicago & N. W. R. Co., 24 Iowa, 412. The carrier is not relieved from his liability merely because delay, which occasions damage to the property, is the result of an unavoidable accident, but is bound, notwithstanding the accident, to use the highest degree of care during the delay for the safety of the deposit. Kinnick v. Chicago, R. I. & P. R. Co., 69 Iowa, 665, 29 N. W. 772. Where there is no misrepresentation or deceit on the part of the shipper of live stock, a common carrier waives all exceptions to the defects in loading by accepting stock so loaded for transportation, and assumes all the liabilities of a common carrier with reference to the property. Id. "No doubt the horse was the immediate cause of its own injuries, i. e. no person got into the box and injured it. It slipped, or fell, or kicked, or plunged, or in some way hurt itself. If it did so from no cause other than its inherent propensities, its proper vice-that is, from fright, or temper, or struggling to keep its legs— the defendants are not liable. But, if it so hurt itself from the defendants' negligence or any misfortune happening to the train, though not through any negligence of the defendants (as, for instance, from the horse box leaving the line, through some obstruction maliciously laid upon it), then the defendants, as insurers, would be liable. If perishable articles, say soft fruits, are damaged by their own weight and the inevitable shaking of the carriage, they are injured through their own intrinsic qualities. .If, through pressure of other goods carried with them, or by an extraordinary shock or shaking, whether through negligence or not, the carrier is liable." Kendall v. Railway, L. R. 7 Exch. (Eng.) 373. A railroad company is not responsible for injuries inflicted upon one horse by another while they were being carried in the company's car, if the injuries were caused by the fault or neglect of the owner of the horses, in attaching their halters, or not removing their shoes. EVANS v. FITCHBURG R. CO., 111 Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201. A shipper must disclose peculiarities affecting the risk (Wilson v. Hamilton, 4 Ohio St. 722; Missouri Pac. R. Co. v. Fagan [Tex. Civ. App.] 27 S. W. 887), but need not disclose facts apparent to observation (McCune v. B., C. R. & N. R. Co., 52 Iowa, 600, 3 N. W. 615; Estill v. New York, L. E. & W. R. Co. [C. C.] 41 Fed. 849). A carrier of live stock cannot stipulate for exemption from liability for his own negligence. Moulton v. St. Paul, M. & M. Ry. Co., 31 Minn. 85, 16 N. W. 497, 47 Am. Rep. 781; Kansas City, St. J. & C. B. R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821, 46 Am. Rep. 104. A carrier of live stock held not lia

loose, or may kill each other." 78 Animals have active wants that must be attended to; they are susceptible to heat and cold; disease and their inherent propensities frequently kill or injure many of them. The vitality of the freight, then, becomes a tremendous factor in determining the liability of the carrier.

This vitality of the animals, or their peculiar nature, or inherent propensities, or proper vice, as it is variously called, obviously plays a double rôle in this connection: First, it involves a different type of physical facilities and a unique kind of service, far more exacting than in the case of inanimate freight, in order that the carrier may fulfill his duty of exercising ordinary care." Secondly, even when the carrier has exercised ordinary care, there are still, as has been indicated, many more injuries and losses here than in the case of inanimate freight. All of these considerations must be given due weight when the rule is applied that the carrier, who has used ordinary care in the premises and is hence guilty of no negligence, is not liable for any loss or injury as to the animals which can be traced to their inherent nature."

Statutes

Statutes have been passed in many of the states, and also by the federal Congress, affecting the transportation of live stock. ble for any "gaunting, scratching, biting," etc. Hanley v. Chicago, M. & St. P. Ry. Co., 154 Iowa, 60, 134 N. W. 417. See, also, Gilbert Bros. v. Chicago, R. I. & P. R. Co. (Iowa) 136 N. W. 911; Klair v. Philadelphia, B. & W. R. Co. 2 Boyce (Del.) 274, 78 Atl. 1085; Chicago, I. & L. R. R. Co. v. Woodward, 164 Ind. 360, 72 N. E. 558, 73 N. E. 810; Maslin v. Baltimore & O. R. Co., 14 W. Va. 180, 35 Am. Rep. 748; Winslow v. Chicago & A. R. Co., 170 Mo. App. 617, 157 S. W. 96.

73 EVANS V. FITCHBURG R. CO., 111 Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201.

74 Gulf, C. & S. F. Ry. Co. v. Trawick, 80 Tex. 370, 15 S. W. 568, 18 S. W. 948; Covington Stockyard Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. 73; Betts v. Chicago, R. I. & P. Ry. Co., 92 Iowa, 343, 60 N. W. 623, 26 L. R. A. 248, 54 Am. St. Rep. 558; Pratt v. Ogdensburg & L. C. R. Co., 102 Mass. 557; Coupeland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534. A carrier of live stock must furnish all necessary facilities for their rest, exercise, and refreshment, though the time and place thereof must be left to its own judgment. St. Louis Southwestern Ry. Co. v. Mitchell, 101 Ark. 289, 142 S. W. 168, 37 L. R. A. (N. S.) 546. A carrier of live stock must afford proper facilities for having the stock watered and attended to during transportation. Harden v. Chesapeake & O. Ry. Co., 157 N. C. 238, 72 S. E. 1042.

75 Cragin v. New York Cent. R. Co., 51 N. Y. 61, 10 Am. Rep. 559; Giblin v. National Steamship Co., 8 Misc. Rep. 22, 28 N. Y. Supp. 69; Armstrong v. United States Exp. Co., 159 Pa. 640, 28 Atl. 448. It has been held that this increased hazard in transporting live stock can properly be taken into account by the carrier in fixing his rates. New Orleans Live Stock Exchange v. Texas & P. Ry. Co., 10 Interst. Com. Rep. 327. See, also, Judson, Interstate Commerce (24 Ed.) § 186.

The most important of these is the federal statute requiring that cattle shall not be confined, in interstate shipments, for more than twenty-eight consecutive hours without being unloaded for rest, water, and feeding." There are also various federal statutes as to the transportation of diseased cattle."

THE HARTER ACT AS TO CARRIERS BY WATERLIMITED LIABILITY ACT

120. The Harter Act, passed by the federal Congress, has materially lessened the liability of carriers by water who have complied with its provisions. The amount of the liability of a vessel owner is further limited by the Limited Liability Act.

The Harter Act," passed by Congress in 1893, has wrought such a change in the liability of carriers by water that it calls for some brief mention here. The language of the act is broad and applies to "all vessels transporting merchandise to and from any port of the United States, situated upon any navigable waters, inland or otherwise, over which the federal government has jurisdiction." "

The first section 8° of the act forbids any contract relieving the "manager, agent, master, or owner" of the vessel "from liability for loss or damage arising from negligence in proper loading, stowage,82 custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge."

81

76 Rev. St. § 4386 (U. S. Comp. St. 1901, pp. 2995, 2996). See Judson, Interstate Commerce (2d Ed.) §§ 546-558.

77 See these statutes collected in 1 Fed. St. Annotated, under title "Animals."

78 Act Feb. 13, 1893, c. 105, 27 Stat. 445. For complete text of act, see U. S. Comp. Stat. 1901, p. 2946, 4 Fed St. Annotated, pp. 854-864, with many annotations. For discussion of the act, with its first three sections in full, see 1 Hutch. Carr. §§ 345-387, on which the brief discussion given above is based. The title of the act is "An act relating to navigation of vessels, bills of lading, and to certain obligations, duties and rights in connection with the carriage of property."

79 In re Piper Aden Goodall Co. (D. C.) 86 Fed. 670. See, further, as to the extent of the Harter Act, The E. A. Shores, Jr. (D. C.) 73 Fed. 342; The Germanic, 196 U. S. 589, 25 Sup. Ct. 317, 49 L. Ed. 610.

80 As to this section, see Bethel v. Mellor & Rittenhouse Co. (D. C.) 131 Fed. 129; The Southmark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65; Calderon v. Atlas S. S. Co., 170 U. S. 272, 18 Sup. Ct. 588, 42 L. Ed. 1033.

81 For meaning of this word here, see 1 Hutch. Carr. § 350; Insurance Co. of North America v. North German Lloyd Co. (D. C.) 106 Fed. 973; NordDeutscher Lloyd v. President, etc., of Insurance Co. of North America, 110 Fed. 420, 49 C. C. A. 1.

82 For two senses in which this word is used, see 1 Hutch. Carr. §§ 351

The second section 8 forbids similar contracts, lessening the obligation of the owners "to exercise due diligence [to] properly equip, man, provision, and outfit said vessel seaworthy and capable of performing her intended voyage," or lessening "the obligations of the master, officers, agents or servants to carefully handle and stow her cargo, and to care for and properly deliver same." These two sections, therefore, to which the courts have given full effect, are limitations, as to the incidents mentioned, on the power of the shipowner to limit his liability by contract.

84

The third section, however, materially limits the common-law liability of the shipowner. The first part of this section provides what such owner must do to secure exemption from liability; the second part defines precisely what is the extent of the exemption thus secured. Thus it is first provided that the owner "shall exercise due diligence * to make the said vessel seaworthy and properly manned, equipped and supplied." If this is done, it is provided that neither the vessel nor the owner, agent, or charterer shall be liable for loss or damage due 85 (1) to any of the five excepted perils in the case of the common carrier; (2) to faults or errors in navigation or in the management of said vessel; (3) to saving or attempting to save life or property at sea, or any deviation in rendering such service; or (4) to dangers of the sea or other navigable

waters.

Of these exemptions, the second is by far the most striking, under which, if the owner is duly diligent as outlined, he escapes liability for even the negligent acts of his own agents and servants, within the scope of their authority, when such negligent acts were committed "in the navigation or management of the vessel." " Thus the duly diligent owner escaped liability for an accumulation of water in the bilges, owing to a failure to make proper use of the pump, and negligently leaving a sea cock open,ss as faults in 359; Corsar v. J. D. Spreckels & Bros. Co., 141 Fed. 260, 72 C. C. A. 378; The Victoria (D. C.) 114 Fed. 962.

87

83 As to the effect of sections 1 and 2 on the shipowner's implied warranty of seawortäiness, see 1 Hutch. Carr. §§ 362–364.

84 As to what is due diligence, see 1 Hutch. Carr. §§ 380-381; The Manitoba (D. C.) 104 Fed. 145; International Nav. Co. v. Farr & B. Mfg. Co., 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830; Nord-Deutcher Lloyd v. President, etc., of Insurance Co. of North America, 110 Fed. 420, 49 C. C. A. 1; The Colima (D. C.) 82 Fed. 665; The Abbazia (D. C.) 127 Fed. 495.

85 This is not the order in which the exemptions are given in the act.

86 For scope of this exception, see The Rosedale (D. C.) 88 Fed. 328; Id., 92 Fed. 1021, 35 C. C. A. 167; The Guadaloupe (D. C.) 92 Fed. 671; The Etona (D. C.) 64 Fed. 880; The Nettie Quill (D. C.) 124 Fed. 669.

87 The Merida, 107 Fed. 146, 46 C. C. A. 208.

The Wildcroft, 130 Fed. 521, 65 C. C. A. 145.