contract of affreightment is made, and unless such contract clearly exempts the consignor, or unless the circumstances surrounding the acceptance of the goods indicate a clear intention on the part of the carrier and shipper to relieve the consignor of this liability, he is responsible and to him the carrier can look for his charges.25

There is a prima facie presumption, however, that the consignee is liable for the carrier's charges as the owner of the goods, on whose behalf the consignor was acting.2 In accepting the goods from the carrier, the law ordinarily implies a promise on the part of the consignee to pay the freight charges." It is a normal presumption on the part of the carrier that in surrendering the goods to the consignee (thus giving up his lien) the carrier can look to such consignee for his compensation.28

This presumption of ownership in the consignee, being merely a prima facie one, is, of course, rebuttable.20 If the consignee is not the owner of the goods, he is not liable merely because another

25 Spencer v. White, 23 N. C. 236; Grant v. Wood, 21 N. J. Law, 292, 47 Am. Dec. 162; Portland Flouring Mills Co. v. British & Foreign Marine Ins. Co., 130 Fed. 860, 65 C. C. A. 344; Baltimore & O. S. W. R. Co. v. New Albany Box & Basket Co., 48 Ind. App. 647, 94 N. E. 906, 96 N. E. 28; WOOSTER v. TARR, 8 Allen (Mass.) 270, 85 Am. Dec. 707, Dobie Cas. Bailments and Carriers, 253; Central R. Co. of New Jersey v. MacCartney, 68 N. J. Law, 165, 52 Atl. 575; Keeling & Field v. Walter Connally & Co. (Tex. Civ. App.) 157 S. W. 232; Pennsylvania R. Co. v. Titus, 156 App. Div. 830, 142 N. Y. Supp. 43.

28 Davison v. City Bank, 57 N. Y. 81; O'Dougherty v. Boston & W. R. Co., 1 Thomp. & C. (N. Y.) 477; Sweet v. Barney, 23 N. Y. 335; Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; Nebraska Meal Mills v. St. Louis S. W. Ry. Co., 64 Ark. 169, 41 S. W. 810, 38 L. R. A. 358, 62 Am. St. Rep. 183; Orange County Fruit Exchange v. Hubbell, 10 N. M. 47, 61 Pac. 121.

27 Davison v. City Bank, 57 N. Y. 81; Philadelphia & R. R. Co. v. Barnard, 3 Ben. 39, Fed. Cas. No. 11,086; Kemp v. Clark, 12 Q. B. Div. (Eng.) 647; Young v. Moeller, 5 El. & Bl. (Eng.) 755; Sanders v. Van Zeller, 4 Q. B. Div. (Eng.) 260; Cock v. Taylor, 13 East (Eng.) 399; Gates v. Ryan (D. C.) 37 Fed. 154; North German Lloyd v. Heule (D. C.) 44 Fed. 100, 10 L. R. A. 814; Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. 720, 121 C. C. A. 182; Pennsylvania R. Co. v. Titus, 156 App. Div. 830, 142 N. Y. Supp. 43.

28 Abbe v. Eaton, 51 N. Y. 410; Merian v. Funck, 4 Denio (N. Y.) 110; Davis v. Pattison, 24 N. Y. 317; Hinsdell v. Weed, 5 Denio (N. Y.) 172; Scaife v. Tobin, 3 Barn. & Adol. (Eng.) 523; Coleman v. Lambert, 5 Mees. & W. (Eng.) 502; Davison v. City Bank, 57 N. Y. 81; Taylor v. Fall River Ironworks (D. C.) 124 Fed. 826; Central R. Co. of New Jersey v. MacCartney, 68 N. J. Law, 165, 52 Atl. 575; Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. 720, 121 C. C. A. 182.

29 Ames v. Temperly, 8 M. & W. (Eng.) 798; Elwell v. Skiddy, 77 N. Y. 282. See, also, Central R. Co. of New Jersey v. MacCartney, 68 N. J. Law, 175, 52 Atl. 575.

consigns goods to him, if he does not accept them.30 Even acceptance of the goods does not render the consignee liable, when such acceptance is under circumstances which would not justify the carrier in presuming an intention on the part of the consignee thereby to become liable for the charges. Thus, the accepting consignee does not become responsible when he is, to the knowledge of the carrier, merely an agent of the owner.31

82

33

It is usual for bills of lading to state that the goods are to be delivered to the consignee or his assigns, he or they paying the freight, in which case the consignee or his assigns, by accepting the goods, become bound to pay the freight. It matters not, under such a bill of lading, whether the consignee be the owner or not, or whether the consignor is also liable for the freight. The provision that the consignee or his assigns shall pay the freight has been held to be for the sole benefit of the carrier, and therefore, if the carrier delivers the goods without receiving his freight, thereby waiving his lien, he may nevertheless recover of the consignor. If, however, the consignee, before the goods are delivered to him, indorses the bill of lading to another, who receives the goods, it is held that the carrier must look to such assignee (and not to the consignee) for his charges, unless such assignee is acting in the capacity of an agent for the consignee.35

Demurrage and Storage

Carriers by water usually provide by the contract of shipment for the payment by the consignee of a certain sum for each day that the vessel of the carrier is detained by reason of the consignee's failing to receive the cargo." This is called "demurrage." So, in

80 Davis v. Pattison, 24 N. Y. 317; Central R. Co. of New Jersey v. MacCartney, 68 N. J. Law, 165, 52 Atl. 575; Pennsylvania R. Co. v. Titus, 156 App. Div. 830, 142 N. Y. Supp. 43.

81 Dart v. Ensign, 47 N. Y. 619; Ames v. Temperley, 8 M. & W. (Eng.) 798. 822 Hutch. Carr. § 808; Dougal v. Kemble, 3 Bing. (Eng.) 383; Tobin v. Crawford, 5 M. & W. 235, Id., 9 M. & W. 716. Implied contract by consignee to pay the freight under bill of lading containing stipulation, "the consignee or consignees paying freight," arises from acceptance by the consignee of the delivery of the goods and waiver of lien by carrier. Union Pac. R. Co. v. American Smelting & Refining Co., 202 F. 720, 121 C. C. A. 182.

33 Davison v. City Bank, 57 N. Y. 81.

34 Shepard v. De Berrales, 13 East (Eng.) 565; Portland Flouring Mills Co. v. British & Foreign Marine Ins. Co., 130 Fed. 860, 65 C. C. A. 344; Central R. Co. of New Jersey v. MacCartney, 68 N. J. Law, 165, 52 Atl. 575; WOOSTER v. TARR, 8 Allen (Mass.) 270, 85 Am. Dec. 707, Dobie Cas. Bailments and Carriers, 253.

352 Hutch. Carr. § 808; Tobin v. Crawford, 5 M. & W. (Eng.) 235; Id. 9 M. & W. 716.

36 Williams v. Theobald (D. C.) 15 Fed. 465, 468; Conard v. Atlantic Ins. Co., 1 Pet. 386, 446, 7 L. Ed. 189; Chicago & N. W. R. Co. v. Jenkins, 103 Ill.

the absence of an express contract as to demurrage, a carrier by water may recover for any losses sustained by him when, owing to the consignee's failure to receive the goods, the carrier's vessel is detained more than a reasonable time for discharging the cargo.3 The term "demurrage" was formerly applicable only to the former of these cases (recovery by express contract), but as now used it is broad enough to include the damages for the detention of the vessel, even in the absence of an express stipulation on the subject. Of course, no demurrage can be collected by the shipowner, when the delay is due to his fault or that of his agents. The consignee, when he is the owner of the goods, is liable in that capacity for proper demurrage charges. Merely by accepting the goods, however, the consignee, who is not the owner of the goods (though liable for freight charges), does not become liable for demurrage, when there are no stipulations in the bill of lading on the subject.11

38

40

39

It is sometimes said (and certainly some of the earlier cases hold) that the right to recover demurrage never exists in the case of land carriers, unless the right is given by express contract or by statute. The reason usually given for thus limiting the right, in absence of statute or contract, to water carriers, is the essential differences in the methods of the two kinds of carriers. The correctness of this, however, has with good reason been questioned by recent writers and nearly all the late cases.**

When the duty of unloading the goods from the car in which they have been shipped devolves on the railroad, then there is ordi588; Randall v. Lynch, 2 Camp. (Eng.) 352; Burns v. Burns (D. C.) 125 Fed. 432.

37 Huntley v. Dows, 55 Barb. (N. Y.) 310; Clendaniel v. Tuckerman, 17 Barb. (N. Y.) 184; Morse v. Pesant, *41 N. Y. 16; Horn v. Bensusan, 9 Car. & P. (Eng.) 709; Brouncker v. Scott, 4 Taunt. (Eng.) 1; Kell v. Anderson, 10 Mees. & W. (Eng.) 498.

38 2 Hutch. Carr. § 832; Black, Law Dict. "Demurrage," p. 352, and cases cited.

39 Ewan v. Tredegar Co. (D. C.) 88 Fed. 703; 2,000 Tons of Coal ex The Michigan, 135 Fed. 734, 68 C. C. A. 372.

40 2 Hutch. Carr. § 852.

41 Merritt & Chapman Derrick & Wrecking Co. v. Vogeman (D. C.) 127 Fed. 770; Dayton v. Parke, 142 N. Y. 391, 37 N. E. 642; Steamship County of Lancaster v. Sharpe & Co., 24 Q. B. D. (Eng.) 158, 59 L. J. Q. B. 22.

42 Chicago & N. W. R. Co. v. Jenkins, 103 Ill. 588.

43 "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 carried by them. Carriers by ship do not, but it is done by the consignee." Chicago & N. W. R. Co. v. Jenkins, 103 Ill. 588.

44 In favor of demurrage charges being permitted to railroads, see Miller v. DOB.BAILM.-30

45

narily no occasion for demurrage. This is true when in a single car are shipped the goods of many owners. Often, however (as is so frequently the case in shipments of car load lots), the duty of the carrier is simply to place the car in a convenient place in which the consignee may have reasonable access to it, and the duty of unloading the goods from the car rests upon the consignee. In such a case, there would seem to be no good reason why, even in the absence of a contract to that effect, the railroad should not be allowed to recover demurrage when the consignee detains the car for an unreasonable time, owing to his failure to unload the car with reasonable dispatch. Certainly a regulation of the railroad imposing such charges seems reasonable and valid.“

48

46

We have already seen that on the arrival of the goods at their destination they should be stored awaiting a delivery to the consignee. If the consignee does not accept delivery of the goods. within a reasonable time, the carrier may either turn the goods over to a warehouseman " or the carrier may itself store the goods.5 In such case either the warehouseman 51 or the carrier 52 is entitled to collect reasonable storage charges for thus storing the goods.

50

49

Georgia Railroad & Banking Co., 88 Ga. 563, 15 S. E. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170; KENTUCKY WAGON MFG. CO. v. OHIO & M. RY. CO., 98 Ky. 152, 32 S. W. 595, 36 L. R. A. 850, 56 Am. St. Rep. 326, Dobie Cas. Bailments and Carriers, 255; Norfolk & W. R. Co. v. Adams, 90 Va. 393, 18 S. E. 673, 22 L. R. A. 530, 44 Am. St. Rep. 916; Swan v. Louisville & N. R. Co., 106 Tenn. 229, 61 S. W. 57; Chicago, P. & St. L. Ry. Co. v. Woolner Distilling Co., 160 Ill. App. 192; Erie R. Co. v. Waite, 62 Misc. Rep. 372, 114 N. Y. Supp. 1115.

45 2 Hutch. Carr. § 858.

46 See cases cited in note 44.

47 Miller v. Georgia Railroad & Banking Co., 88 Ga. 563, 15 S. E. 316, 18 L. R. A. 323, 30 Am. St. Rep. 170; Pennsylvania R. Co. v. Marshall, 147 App. Div. 806, 132 N. Y. Supp. 41; Yazoo & M. V. R. Co. v. Searles, 83 Miss. 520, 37 South. 939, 68 L. R. A. 715. In some states, statutes have been passed fixing demurrage charges. Ann. St. Mo. 1906, §§ 1082-1085. E. R. Darlington Lumber Co. v. Missouri Pac. R. Co., 216 Mo. 658, 116 S. W. 530.

48 Ante, § 144.

49 Alden v. Carver, 13 Iowa, 253, 81 Am. Dec. 430; Western Transp. Co. v. Barber, 56 N. Y. 544; Davidson S. S. Co., v. 119,254 Bushels of Flaxseed (D. C.) 117 Fed. 283; Gregg v. Illinois Cent. R. Co., 147 Ill. 550, 35 N. E. 343, 37 Am. St. Rep. 238.

50 Hardman v. Montana Union R. Co., 83 Fed. 88, 27 C. C. A. 407, 39 L. R. A. 300; Bickford v. Metropolitan S. S. Co., 109 Mass. 151; Southern R. Co. v. Born Steel Range Co., 126 Ga. 527, 55 S. E. 173; Tarbell v. Royal Exch. Shipping Co., 110 N. Y. 170, 17 N. E. 721, 6 Am. St. Rep. 350; Cairns v. Robbins, 8 M. & W. (Eng.) 258; Central of Georgia R. Co. v. Patterson, 6 Ala. App. 494, 60 South. 465.

51 See cases cited in note 49.

52 See cases cited in note 50; Central of Georgia R. Co. v. Turner, 143

DISCRIMINATION IN THE CARRIER'S CHARGES

148. At the common law, discrimination in rates by the common carrier of goods, in the sense of giving a lower rate to one shipper than to another, was not prohibited, provided both rates were reasonable, and provided the discrimination was not for an illegal purpose.

Modern cases, however, show a clear tendency (even in the absence of statute) to prohibit discrimination in rates by insisting strenuously on equality of rates as well as reasonableness. By sweeping statutes (both state and federal) discrimination in rates by the common carrier is now sternly forbidden under adequate penalties.

Discrimination at Common Law

Under the common law, the emphasis, in connection with the rates of the common carrier of goods, was laid upon reasonableness rather than upon equality. If the rate charged to one shipper was reasonable it seems that he could not complain merely because a lower rate had been given to another shipper." If, however, such Ala. 142, 39 South. 30. A carrier, after its liability as such has ceased and its liability as warehouseman has attached, and the free time allowed by the railroad commission rules has expired, is entitled to storage charges, though the freight has not been actually placed inside the depot or freight warehouse. Seaboard Air Line Ry. v. Shackelford, 5 Ga. App. 395, 63 S. E. 252. A carrier, wrongfully refusing to deliver freight, when sued therefor, cannot counterclaim for warehouse charges. Hockfield v. Southern Ry. Co., 150 N. C. 419, 64 S. E. 181, 134 Am. St. Rep. 945.

53 Great Western Ry. Co. v. Sutton, L. R. 4 H. L. (Eng.) 226, 238; Baxendale v. Railway Co., 5 C. B. [N. S.] (Eng.) 336; Root v. Long Island R. Co., 114 N. Y. 300, 21 N. E. 403, 4 L. R. A. 331, 11 Am. St. Rep. 643; Scofield v. Lake Shore & M. S. Ry. Co., 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846; Tift v. Southern R. Co. (C. C.) 123 Fed. 789.

54 Fitchburg R. Co. v. Gage, 12 Gray (Mass.) 393; Hoover v. Pennsylvania R. R., 156 Pa. 220, 27 Atl. 282, 22 L. R. A. 263, 36 Am. St. Rep. 43; Johnson v. Pensacola & P. R. Co., 16 Fla. 623, 26 Am. Rep. 731; Cowden v. Pacific Coast S. S. Co., 94 Cal. 470, 29 Pac. 873, 18 L. R. A. 221, 28 Am. St. Rep. 142; Parsons v. Chicago & N. W. R. Co., 167 U. S. 447, 17 Sup. Ct. 887, 42 L. Ed. 231; Christie v. Missouri Pac. Ry. Co., 94 Mo. 453, 7 S. W. 567. At common law a carrier of freight is not bound to treat all shippers alike. It must carry for every shipper at a reasonable rate. It may favor any particular shipper or class, where the circumstances warrant a distinction, subject to the limitation that the discrimination must be reasonable. A carrier cannot be charged with allowing undue preferences to a class, where the character of the shipments justify a distinction. State v. Central Vermont Ry. Co., 81 Vt. 463, 71 Atl. 194, 130 Am. St. Rep. 1065. As to discrimination as evidence of the unreasonableness of a rate, see Samuels v. Louisville & N. R. Co. (C. C.) 31 Fed. 57.