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dicial basis. Later cases unanimously recognized both the existence of this right and its tremendous practical importance. A number of English statutes, also sanctioned such contractual limitations on the old insuring liability. Of these the most important, perhaps, is the Railway and Canal Traffic Act of 1854, which limited these contracts to such as a court or judge should deem "to be just and reasonable."

Same-In the United States

With us the earliest cases were Hollister v. Nowlen 15 (1838) and Cole v. Goodwin,16 both of which repudiated the right (previously recognized in England) of the carrier to limit his liability by public notices, and Gould v. Hill," holding that the carrier's exceptional responsibility could not be diminished even by special contract. Very soon after the decision in Gould v. Hill, however, the United States Supreme Court repudiated the ruling of the earlier case and held, in New Jersey Steam Navigation Co. v. Merchants' Bank,18 that the carrier could limit his common-law liability by a special contract to that effect.

After this ruling of the United States Supreme Court, the decision in Gould v. Hill was repudiated even by the New York court which handed it down.19 In due time this right of the carrier was recognized by the highest courts of all the states. It is now, then, the rule, approved by both state and federal courts, that the common carrier of goods, in the absence of a statute prohibiting it, may restrict by means of a special contract his liability as an insurer of the safe delivery of the goods,20 which high responsibility is placed upon him by the rules of the common law.

The extraordinary liability of common carriers is said to have

14 Smith v. Horne, 8 Taunt. 144; Wyld v. Rickford, 8 M. & W. 443; Brooke v. Pickwick, 4 Bing. 218; McCance v. London, etc., Ry. Co., 3 H. & C. 343, 34 L. J. Exch. 39; Peck v. North, etc., Ry. Co., 10 H. L. Cas. 473, 32 L J. Q. B. 241; Mayhew v. Eames, 3 B. & C. 601.

15 19 Wend. (N. Y.) 234, 32 Am. Dec. 455.

16 19 Wend. (N. Y.) 251, 32 Am. Dec. 470.

17 2 Hill (N. Y.) 623.

18 6 How. 344, 12 L. Ed. 465.

19 Parsons v. Monteath, 13 Barb. (N. Y.) 353; Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485, 62 Am. Dec. 125.

20 SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226; Merchants' Despatch Transp. Co. v. Leysor, 89 Ill. 43; Ormsby v. Union Pac. Ry. Co. (C. C.) 4 Fed. 706; Ullman v. Chicago & N. W. R. Co., 112 Wis. 150, 88 N. W. 41, 88 Am. St. Rep. 949; Hoadley v. Northern Transportation Co., 115 Mass. 304, 15 Am. Rep. 106; Allam v. Pennsylvania Ry. Co., 183 Pa. 174, 38 Atl. 709, 39 L. R. A. 535; St. Louis, I. M. & S. R. Co. v. Bone, 52 Ark. 26, 11 S. W. 958; Lacey v. Oregon R. & Nav. Co., 63 Or. 596, 128 Pac. 999.

been originally imposed by public policy, because of the danger of collusion between the carrier and robbers. The improved state of society, the better administration of the laws, and the rapidity and comparative safety of modern modes of transportation, are all factors that have, in the course of time, rendered less imperative the strict application of the rule holding the carrier up to the rigid responsibility of an insurer. Hence a contract exempting a carrier from liability as an insurer, and substituting for it some less rigorous responsibility, came to be considered as just and reasonable, and no longer against public policy. But the uneven terms upon which the parties deal, often enabling the carrier practically to dictate his own terms, still make it a matter of public policy that some limitation be put upon the carrier's power thus to limit his liability. The American courts, however, as we shall see, have differed greatly as to the nature and extent of such limitations.

METHOD OF LIMITING LIABILITY

123. The limitation of the carrier's common-law liability can be effected only by means of a contract assented to by the shipper. Notices limiting liability are ineffectual, unless the shipper assents to the terms of such notice; and such assent cannot be inferred merely because the shipper, after he has knowledge of the notice, delivers the goods to the carrier for shipment.

Notices

When the power of the carrier to limit his insuring liability is conceded, a question of paramount importance is the method by which such limitations can be effected. The effect of a notice, published by the carrier and brought home to the shipper, has resulted in a sharp difference of opinion between the English and American courts.

English Rule

In England the custom, resorted to by the carrier, of posting notices in public which purport to limit the carrier's responsibility, met with favor at the hands of the courts. It was there accordingly held that merely by general notice to that effect the carrier could restrict his common-law liability, when the shipper knew of such notice.21 The evils of such a practice, however, led to the pas

21 Gibbon v. Paynton, 4 Burr. 2298; Riley v. Horne, 5 Bing. 217; Mayhew v. Eames, 3 B. & C. 601; Lesson v. Holt, 1 Starkie, 186; Phillips v. Edwards, 3 H. & N. 813; Maving v. Todd, 1 Starkie, 72; Nicholson v. Willan, 5 East, 507; London & N. W. Ry. Co. v. Dunham, 18 C. B. 826.

DOB.BAILM.-24

sage in 1854 of the Railway and Canal Traffic Act. Under this act the carrier was prohibited from limiting his liability by "notice, condition or declaration"; but the right of the carrier to diminish his responsibility by a contract signed by the shipper was expressly recognized.

American Rule

But in this country the rule is well established that notices limiting the liability of the carrier are of no avail unless assented to by the shipper,22 in which case a contract is established.22 The American rule finds its justification in the essential nature of a common carrier's duty to the public. It is a common carrier's duty to carry for all who offer, and it cannot divest itself of this duty by any ex parte act of its own, short of ceasing to be a common carrier. The fact that a restrictive notice is shown to have been actually received or seen by the owner of the goods will not of itself raise the presumption that he assents to its terms, since it is as reasonable to infer that he intends to hold the carrier to his full common-law liability as that he assents to a limitation of this liability, and the burden of proof is upon the carrier to establish the contract limiting his liability, if he claims that one exists.25

22 Western Transp. Co. v. Newhall, 24 Ill. 466, 76 Am. Dec. 760; Dorr v. New Jersey Steam Navigation Co., 11 N. Y. 485, 62 Am. Dec. 125; McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349; Little v. Boston & M. R. R., 66 Me. 239; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Hartwell v. Northern Pacific Exp. Co., 5 Dak. 463, 41 N. W. 732, 3 L. R. A. 342; Brown v. Adams Exp. Co., 15 W. Va. 812; Georgia R. Co. v. Gann, 68 Ga. 350; Central of Ga. R. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 128.

23 Gott v. Dinsmore, 111 Mass. 45, 52; Fibel v. Livingston, 64 Barb. (N. Y.) 179; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140; Brown v. Adams Exp. Co., 15 W. Va. 812; Farmers' & Mechanics' Bank v. Champlain Transp. Co., 23 Vt. 186, 56 Am. Dec. 68; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349; BLOSSOM v. DODD, 43 N. Y. 264, 3 Am. Rep. 701, Dobie Cas. Bailments and Carriers, 208; Davidson v. Graham, 2 Ohio St. Gerry v. American Exp. Co., 100

131; Rome R. Co. v. Sullivan, 14 Ga. 277; Me. 519, 62 Atl. 498.

24 See Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Cole v. Goodwin, 19 Wend. (N. Y.) 251, 32 Am. Dec. 470; Jones v. Voorhees, 10 Ohio, 145; BENNETT v. DUTTON, 10 N. H. 481, 487, Dobie Cas. Bailments and Carriers, 322; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 382, 12 L. Ed. 465; Moses v. Boston & M. R. R., 24 N. H. 71, 55 Am. Dec. 222; Kimball v. Rutland & B. R. Co., 26 Vt. 256, 62 Am. Dec. 567; Dorr v. New Jersey Steam Navigation Co., 4 Sandf. (N. Y.) 137; Id., 11 N. Y. 485, 62 Am. Dec. 125; Michigan Cent. R. Co. v. Hale, 6 Mich. 243; Slocum v. Fairchild, 7 Hill (N. Y.) 292.

25 McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79. 111, 93 Am. Dec.

"Conceding that there may be a special contract for a restricted liability," says Bronson, J., in a leading American case," "such a contract cannot, I think, be inferred from a general notice brought home to the employer. 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. Notwithstanding the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment. If the delivery of the goods under such circumstances authorizes an implication of any kind, the presumption 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. Now, the carrier is under a legal obligation to receive and convey the goods safely, or answer for the loss. He has no right to prescribe any other terms; and a notice can, at the most, only amount to a proposal for a special contract, which requires the assent of the other party. Putting the matter in the most favorable light for the carrier, the mere delivery of goods after seeing a notice cannot warrant a stronger presumption that the owner intended to assent to a restricted liability on the part of the carrier, than it does that he intended to insist on the liabilities imposed by law; and a special contract cannot be implied where there is such an equipoise of probabilities."

The American rule, then, is that, though the carrier can modify his responsibility by contract, he cannot do so by notice." When, however, the shipper does more than deliver the goods to the carrier with knowledge of the notice, and actually assents to the terms of the notice, then the shipper is bound.28 This is on the theory, of course, that the proposal contained in the notice, when accepted by the shipper, ripens into a contract. The limitation, in such a case, is not by notice, but by contract, and the notice is.

208 (per Cooley, J.); New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 383, 12 L. Ed. 465 (per Nelson, J.).

26 Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 245, 32 Am. Dec. 455. 27 See cases cited in note 22.

28 See cases cited in note 23.

merely a means by which the contract is made. The assent of the shipper thus converts an ex parte notice of the carrier into a contract agreed to by both parties to the transaction, and the limitations of the carrier's liability are thus validly effected by contract.

SAME-NOTICE OF THE CARRIER'S REGULATIONS 124. Regulations of the carrier, enacted for the proper conduct of the carrier's business, are binding on the shipper, when they are reasonable and notice of them is brought home to the shipper, even without his assent.

In order that the carrier may properly perform the manifold duties imposed upon him, the law gives him the right to establish regulations for the conduct of his business.29 It will be seen that this right is given, not on the basis of the bestowal of an arbitrary privilege upon the carrier, but rather as a method of enabling him to serve the public more efficiently and more expeditiously.

When such regulations are reasonable, and when they are brought to the notice of the shipper, he is bound by, and must conform to, them. When loss or damage is due to the shipper's failure to conform to such reasonable regulations, of which he has knowledge, he is barred of a recovery against the carrier.3o

31

The shipper who has failed to comply with the regulations loses his right to recover from the carrier on the ground that the fault of the shipper contributed to the loss or damage. As such regulations are not attempts on the part of the carrier to limit his liability, no assent to the notice or regulation is necessary. The notice is in no sense a proposal for a contract, but merely informs the shipper of the rules under which the carrier's business is conducted. The validity of the regulation is derived, not from the assent of the shipper, but from its reasonableness.32 The shipper who does business with the carrier must do so in conformity with the latter's known reasonable rules, and any departure therefrom will be at his peril.

29 Harp v. Choctaw, O. & G. R. Co., 125 Fed. 445, 61 C. C. A. 405; Robinson v. Baltimore & O. R. Co., 129 Fed. 753, 64 C. C. A. 281; BULLARD v. AMERICAN EXP. CO., 107 Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358, Dobie Cas. Bailments and Carriers, 244.

80 Western Transp. Co. v. Newhall, 24 Ill. 466, 76 Am. Dec. 760; Boscowitz v. Adams Exp. Co., 93 Ill. 523, 34 Am. Rep. 191; McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208.

31 Oppenheimer v. United States Exp. Co., 69 Ill. 62, 18 Am. Rep. 596; Western Transp Co. v. Newhall, 24 Ill. 466, 76 Am. Dec. 760.

82 Pennsylvania Coal Co. v. Delaware & H. Canal Co., 31 N. Y. 91.

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