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must be an actual delivery, or acts which are so far equivalent to a delivery as make the next line assume the relation of a carrier to the goods. The first carrier does not, by unloading the goods at the end of its line, become a mere warehouseman. The shipper who delivers his goods to a common carrier has a right to understand that the liability of an insurer is upon some carrier during the whole period of the transit. The duty of one carrier is not discharged, therefore, until it has been imposed upon the succeeding carrier, and this is not done until there is an actual delivery of the goods, or at least such acts as are in law equivalent to a tender of delivery.

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The owner loses sight of his goods when he delivers them to the first carrier, and has no means of learning their whereabouts till

47 Wehmann v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546. Notifying second carrier to take goods, which he does not do, is not a discharge. Goold v. Chapin, 20 N. Y. 259, 75 Am. Dec. 398. If carrier of freight to be transferred to another carrier merely stores it in warehouse of its own, whence the other is in habit of taking it at its convenience, and freight, while so stored, is destroyed, first carrier is liable for its value. Condon v. Marquette, H. & O. R. Co., 55 Mich. 218, 21 N. W. 321, 54 Am. Rep. 367; Lawrence v. Winona & St. P. R. Co., 15 Minn. 390 (Gil. 313), 2 Am. Rep. 130; Wood v. Milwaukee & St. P. Ry. Co., 27 Wis. 541, 9 Am. Rep. 465; Conkey v. Milwaukee & St. P. Ry. Co., 31 Wis. 619, 11 Am. Rep. 630. If a carrier is ready to deliver goods to succeeding carrier, yet it is liable as common carrier for a reasonable time, until, according to usual course of business, the vessel of the succeeding carrier can arrive to take the goods. Mills v. Michigan Cent. R. Co., 45 N. Y. 622, 6 Am. Rep. 152. Compare Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434. Taking of part of a lot of goods by a railroad company from a steamboat company, and fact that rest were pointed out and ready to be taken from the boat, does not necessarily constitute constructive delivery of the whole. Gass v. New York, P. & B. R. Co., 99 Mass. 220, 96 Am. Dec. 742. Carrier is not discharged of his liability where he receives goods for transportation to point beyond end of his route, and there are public means of transportation from there to place of destination, by delivering them to mere wharfinger at end of his route, in absence of established usage to that effect, but he must deliver them to some proper carrier to be taken further. But, when there are no public means of further transportation, such point must be regarded as place of destination, and he may properly deliver to warehouseman or wharfinger. Hermann v. Goodrich, 21 Wis. 536, 94 Am. Dec. 562. See, also, Palmer v. Chicago, B. & Q. R. Co., 56 Conn. 137, 13 Atl. 818; Lewis v. Chesapeake & O. Ry. Co., 47 W. Va. 656, 35 S. E. 908, 81 Am. St. Rep. 816; Mt. Vernon Co. v. Alabama G. S. R. Co., 92 Ala. 296, 8 South. 687.

48 Conkey v. Milwaukee & St. P. R. Co., 31 Wis. 619, 11 Am. Rep. 630; Barter v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. Ed. 297; In re Petersen (C. C.) 21 Fed. 885; Texas & P. R. Co. v. Clayton, 84 Fed. 305, 28 C. C. A. 142.

49 Condon v. Marquette, H. & O. R. Co., 55 Mich. 218, 21 N. W. 321, 54 Am. Rep. 367. And see Louisville, St. L. & T. R. Co. v. Bourne (Ky.) 29 S. W. 975; Buston v. Pennsylvania R. Co., 119 Fed. 808, 56 C. C. A. 320.

he or the consignee is informed of their arrival at the place of destination. At each successive point of transfer from one carrier to another, the goods are liable to be placed in warehouses, and during this storage the danger of injury to, or loss of, the goods, either from collusion of the carrier or other cause, is equally as great as while the goods are actually in transit. Again, the storing of the goods under such circumstances is to be regarded solely as an incident of, and accessory to, their actual transportation.50

If a connecting carrier, to whom the goods are properly tendered by another carrier, refuses to receive the goods for transportation, such other carrier, tendering the goods, should store the goods and notify either the consignor or consignee of the situation.51 During such storage, the liability of the carrier storing the goods is merely that of a warehouseman."2

Presumptions and Burden of Proof

When goods are lost or injured in the course of transportation over connecting lines, the consignor or consignee (plaintiff in the action brought for such loss or injury) has ordinarily no means of showing on the line of which carrier the loss or injury occurred. In such cases, therefore, the law resorts to certain prima facie presumptions in his favor.5

50 McDonald v. Western R. Corp., 34 N. Y. 497; Fenner v. Buffalo & S. L. R. Co., 44 N. Y. 505, 4 Am. Rep. 709.

51 Fisher v. Boston & M. R. Co., 99 Me. 338, 59 Atl. 532, 68 L. R. A. 390, 105 Am. St. Rep. 283. Without instructions from the consignor, there is no right to forward the goods by another route. Johnson v. New York Cent R. Co., 33 N. Y. 610, 88 Am. Dec. 416; Rawson v. Holland, 59 N. Y. 611, 17 Am. Rep. 394; Nutting v. Connecticut River R. Co., 1 Gray (Mass.) 502; Louisville & N. R. Co. v. Campbell, 7 Heisk. (Tenn.) 253; Lesinsky v. Great Western Dispatch Co., 10 Mo. App. 134; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. Ed. 297; In re Petersen (C. C.) 21 Fed. 885; Deming v. Norfolk & W. R. Co. (C. C.) 21 Fed. 25. But, in Regan v. Grand Trunk Ry., 61 N. H. 579, where perishable goods were shipped, and the connecting carrier designated was unable to receive them, it was held that the first carrier exercised reasonable care by forwarding the goods over another route. It may be provided, by agreement or custom between connecting carriers, that a constructive delivery shall terminate the first carrier's liability, without an actual change of possession. See McDonald v. Western R. Corp., 34 N. Y. 497; Condon v. Marquette, H. & O. R. Co., 55 Mich. 218, 21 N. W. 321, 54 Am. Rep. 367; Converse v. Norwich & N. Y. Transp. Co., 33 Conn. 166; Pratt v. Grand Trunk R. Co., 95 U. S. 43, 24 L. Ed. 336. The owner may take advantage of such a usage, and recover against the carrier to whom the goods have been constructively delivered. Etna Ins. Co. v. Wheeler, 49 N. Y. 616.

52 Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416; Nut ting v. Connecticut River R. Co., 1 Gray (Mass.) 502; Michigan Cent. R. Co v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. Ed. 297.

53 Laughlin v. Chicago & N. W. Ry. Co., 28 Wis. 204, 9 Am. Rep. 493; DOB.BAILM.-29

In the case of injury to the goods, or loss of a part of them, such partial loss or injury is prima facie attributable to that carrier in whose possession the goods are found either in a damaged condition or with part of the goods missing." This presumption is most frequently invoked against the last carrier, who delivers the goods to the consignee in a damaged condition or with part of them missing. In an action, in such cases, against the last carrier, when it is shown that all the goods were delivered by the shipper to the initial carrier in good condition, unless the last carrier can show that the goods when he received them were in the same injured condition as when he delivered them, the last carrier is liable. The basis of this presumption is that the condition once shown to exist (all of the goods in proper condition in the hands of the initial carrier) is presumed to continue until the contrary is shown by affirmative evidence.56

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It is sometimes said that the rule just stated applies even when the goods are entirely lost and there is no showing where such

MOORE v. NEW YORK, N. H. & H. R. CO., 173 Mass. 335, 53 N. E. 816, 73 Am. St. Rep. 298, Dobie Cas. Bailments and Carriers, 251.

54 Sheble v. Oregon R. & Nav. Co., 51 Wash. 359, 98 Pac. 745; Laughlin v. Chicago & N. W. Ry. Co., 28 Wis. 204, 9 Am. Rep. 493; Mobile & O. R. Co. v. Tupelo Furniture Mfg. Co., 67 Miss. 35, 7 South. 279, 19 Am. St. Rep. 262; MOORE v. NEW YORK, N. H. & H. R. CO., 173 Mass. 335, 53 N. E. 816, 73 Am. St. Rep. 298, Dobie Cas. Bailments and Carriers, 251; Beede v. Wisconsin Cent. R. Co., 90 Minn. 36, 95 N. W. 454, 101 Am. St. Rep. 390; Yesbik v. Macon, D. & S. R. Co., 11 Ga. App. 298, 75 S. E. 207.

55 MOORE v. NEW YORK,, N. H. & H. R. CO., 173 Mass. 335, 53 N. E. 816, 73 Am. St. Rep. 298, Dobie Cas. Bailments and Carriers, 251; Laughlin v. Chicago & N. W. Ry. Co., 28 Wis. 204, 9 Am. Rep. 493; Mobile & O. R. Co. v. Tupelo Furniture Mfg. Co., 67 Miss. 35, 7 South. 279, 19 Am. St. Rep. 262; Texas & P. Ry. Co. v. Barnhart, 5 Tex. Civ. App. 601, 23 S. W. 801, 24 S. W. 331; Texas & P. R. Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56; Lin v. Terre Haute & I. R. R., 10 Mo. App. 125; Central Railroad & Banking Co. v. Bayer, 91 Ga. 115, 16 S. E. 953; International & G. N. Ry. Co. v. Foltz, 3 Tex. Civ. App. 644, 22 S. W. 541; Faison v. Alabama & V. Ry. Co., 69 Miss. 569, 13 South. 37, 30 Am. St. Rep. 577. But see International & G. N. R. Co. v. Wolf, 3 Tex. Civ. App. 383, 22 S. W. 187; Western Ry. Co. v. Harwell, 97 Ala. 341, 11 South. 781; Georgia, F. & A. R. Co. v. W. H. Stanton & Co., 5 Ga. App. 500, 63 S. E. 655; Philadelphia, B. & W. R. Co. v. Diffendal, 109 Md. 494, 72 Atl. 193, 458; Connelly v. Illinois Cent. R. Co., 133 Mo. App. 310, 113 S. W. 233; New York & B. Transp. Line v. Lewis Baer & Co., 118 Md. 73, 84 Atl. 251; St. Louis, I. M. & S. R. Co. v. Carlile, 35 Okl. 118, 128 Pac. 690; Williamsport Hardwood Lumber Co. v. Baltimore & O. R. Co., 71 W. Va. 741, 77 S. E. 333.

56 Smith v. New York Cent. R. Co., 43 Barb. (N. Y.) 225; Laughlin v. Chicago & N. W. Ry. Co., 28 Wis. 204, 9 Am. Rep. 493; Forrester v. Georgia Railroad & Banking Co., 92 Ga. 699, 19 S. E. 811. See, also, cases cited in preceding notes.

total loss occurred; in other words, when the shipper delivers the goods to the initial carrier and never hears of them again. The cases cited, however, are practically all of them cases of delivery of the goods in a damaged condition. It hardly seems fair, in the absence of any showing that the goods ever came into its possession, to hold that carrier responsible which forms the last link in the intended chain of transportation. A fairer rule, on proof of delivery to the initial carrier, is to hold such carrier prima facie liable for the total loss, unless it can show delivery to the second carrier and so on. Here that carrier should be responsible into whose possession the goods can last be traced. A carrier, then, to whom possession of the goods can be traced, is prima facie liable for the total loss, and escapes liability by showing (as it can easily do when that is the real situation) a delivery to the next carrier. Under this scheme, in cases of total loss, liability (instead of starting with the last carrier and working backward) begins with the initial carrier and moves forward (on proof of possession) through the intermediate carriers towards the last carrier.

Statutes-State and Federal

The question of the liability of the initial carrier for loss or damage occurring on the lines of connecting carriers has been further complicated by statutes passed in many of the states. The trend of these statutes has unquestionably been towards imposing such liability on the initial carrier. In some states, the rule of Muschamp's Case is adopted.58 In other states, even more stringent rules affecting the liability of the initial carrier have been enacted by the Legislatures. The particular statutes should, of course, in each case be consulted."

By what is known as the Carmack Amendment to the federal Interstate Commerce Act, a common carrier, receiving property

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57 See Brintnall v. Saratoga & W. R. Co., 32 Vt. 665. But in Glazer v. Old Dominion S. S. Co. (Sup.) 113 N. Y. Supp. 979, it was held that, in an action against an initial carrier for loss of goods, the burden was on the plaintiff to show a failure to deliver to the connecting carrier. And in Mobile, J. & K. C. R. Co. v. T. J. Phillips & Co. (Miss.) 60 South. 572, it was held that the connecting carrier is not liable for the loss of a package, when it was not shown that the initial carrier delivered this package to the connecting carrier.

58 McCann v. Eddy, 133 Mo. 59, 33 S. W. 71, 35 L. R. A. 110, affirmed in Missouri, K. & T. R. Co. v. McCann, 174 U. S. 580, 19 Sup. Ct. 755, 43 L. Ed. 1093; Dimmitt v. Kansas City, St. J. & C. B. R. Co., 103 Mo. 440, 15 S. W. 761.

59 See note, 2 Ann. Cas. 517.

60 Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169) as amended by Act June 29, 1906, c. 3591, § 7, pars.

for transportation from a point in one state to a point in another state, is liable for injury or loss occurring either on its own line or that of a connecting carrier, and from this liability the initial carrier cannot exempt itself by express contract to that effect. This statute, of course, applies only to interstate commerce. In imposing this liability on the initial carrier, and then in prohibiting such carrier from relieving itself, even by express contract, from responsibility for loss or damage on the lines of connecting carriers, the Carmack Amendment goes far beyond the English rule. Its constitutionality has been expressly upheld by the United States Supreme Court.61

Though, in the absence of statute, it is believed that the American rule is the better one, considerations of practical expediency seem to justify the wisdom of the Carmack Amendment, which, without imposing undue hardship on the initial carrier, has worked well in practice. The amendment expressly gives the initial carrier a remedy over against the connecting carrier on whose line the loss or injury actually occurred.

SAME EXCUSES FOR NONDELIVERY BY THE CARRIER

146. The common carrier is excused for a failure to deliver the goods to the consignee:

(a) When the goods are demanded by one having paramount title to them.

(b) When the consignor, owing to the insolvency of the buyer, has exercised the right of stoppage in transitu.

(c) When the goods, in the absence of negligence on the part of the carrier, have been lost, owing to one of the excepted perils.

There still remain for discussion those cases in which the responsibility of the common carrier of the goods is terminated, though he makes no delivery either to a consignee or to a connecting carrier. In the first two of the three cases outlined in the

11, 12, 34 Stat. 595 (U. S. Comp. St. Supp. 1911, p. 1307). See this discussed in Judson on Interstate Commerce (2d Ed.) § 407.

61 Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7. For recent decisions construing the Carmack amendment, see Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516; De Winter & Co. v. Texas Cent. R. Co., 150 App. Div. 612, 135 N. Y. Supp. 893; Shultz v. Skaneateles R. Co., 145 App. Div. 906, 129 N. Y. Supp. 1146; St. Louis, I. M. & S. R. Co. v. Furlow, 89 Ark. 404, 117 S. W. 517.

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