this general rule of construction, when applied to the contracts of carriers with their employers, especially when such contracts are created by the acceptance of their carefully prepared receipts, is to be understood with the qualification just stated, that when their meaning is doubtful or ambiguous, that construction will be put upon them which is less favorable to the carrier, and that their language, in order to exclude his liability, should be clear, and its meaning unmistakable. But while care is to be taken not to extend their meaning so as to embrace immunity which was never intended, it is equally important to guard against the other extreme of excluding risks which are fairly embraced. Examples have been given in which the courts have put upon them the very narrowest construction which their terms would justify, especially when the effort has been on the part of the carrier to screen himself from the consequences of negligence, or to throw the whole risk upon his employer. Such cases show the inclination of the law, even while it permits him to contract for a limited liability, to look with some jealousy upon such contracts. This no doubt grows, in part, out of the fact that they are almost universally in the terms prepared by the carrier himself, and are rarely if ever scrutinized by those who intrust their goods to him; and certainly this is a potent reason why nothing which is not clearly expressed should be understood in his favor. Sec. 477. ($280.) Carrier liable notwithstanding exemption if the loss be the result of his negligence.-Whenever the carrier claims exemption from liability by virtue of his contract, if it appear that the loss occurred from his negligence, even though it be from a cause excepted in the contract, he will be liable for the loss notwithstanding the contract, unless liability for loss by negligence be distinctly excepted, whenever by the rules of law that may be done, as in England and some of the American states.21 If, for instance, the contract should exempt 21. See cases cited in 450, from liability for loss from ante. suffocation of the animals. McFall . Railway Co., Mo. App. This would be true where the stipulation relieved the carrier 94 S. W. Rep. 570. him from liability for losses by fire, and it should be made to appear that the fire was the result of his negligence, or that it might with proper diligence have been extinguished before the damage was done, he will be held liable. The cases upon this subject, where the loss has occurred from fire occasioned or not prevented by the negligence of the carrier, are numerous.22 Negligence and misfeasance universally deprive the carrier of ali advantage which he might have otherwise derived, either from defenses based upon inevitable accident, the act of God, or contract, unless such contract cover his negligence; and even then it will not avail him unless, as we have seen by the law of the particular country, such exemption is considered just and reasonable. Sec. 478. Carrier liable, though exemption from negligence would otherwise be sustained, if loss occasioned by his misfeasance. Although the law, as in some states permits exemp tion by contract from the results of negligence, the contract cannot avail if the act of the carrier or his servants amounts to misfeasance. But "it would be trifling with contracts deliberately made by shippers, and the decisions of our courts, and saying in effect that they could not, by any contract, limit or restrict their common-law liability, to hold that by calling ordinary neglect, from which a loss ensues, 'misfeasance,' or 'an abandonment of 22. Montgomery, etc. R. R. v. Edmonds, 41 Ala. 667; York Com pany v. Cent. R. R., 3 Wall. 107; Steinweg v. Railroad, 43 N. Y. 123; N. J. S. Nav. Co. r. Merchants' Bank, 6 How. 344; Railroad Co. v. Reeves, 10 Wall. 176; Lamb v. Railroad, 46 N. Y. 271; Erie Railroad v. Lockwood, 28 Ohio St. 358; Insurance Co. of North America . Railroad Co., 152 Ind. 333, 53 N. E. Rep. 382; Hutkoff v. Railroad Co., 61 N. Y. Supp. 254, 29 Misc. 770; affirmed, 63 N. Y. Supp. 198, 30 Misc. 802; Railway Co. v. McFadden, (Tex. Civ. App.) 32 S. W. Rep. 18; Marande r. Railway Co., 184 U. S. 173, 22 Sup. Ct. R. 340, 46 L. Ed. 487; Thomas . Lancaster Mills, 71 Fed. 481, 19 C. C. A. 88, 34 U. S. App. 404, affirming 63 Fed. 200. Where the carrier has failed to make a delivery at destination, the jury will be entitled to infer negligence and a contract exempt ing the carrier from liability cannot avail him. Railway Co. r. Nicholai, 4 Ind. App. 119, 30 N. E. Rep. 424, 51 Am. St. Rep. 206. See also, ante, § 420. the character of carriers,' the limitation was nullified and the full common-law liability established. The act which will deprive the carrier of the benefit of a contract for limited liability fairly made must be an affirmative act of wrong-doing, not merely ordinary neglect in the course of the bailment. It need not necessarily be intentional wrong-doing, but the mere omission of ordinary care in the safe-keeping and carriage of goods is not the misfeasance intended by the authorities. ''23 Sec. 479. Or, though exemption be for losses resulting from delay, if delay is occasioned by negligence. Where the carrier has stipulated that he will not be liable for losses resulting from a delay in transportation, he cannot avail himself of the exemption if the delay has been occasioned by his negligence.2+ But where, as in England, the carrier is permitted to contract against the consequences of his negligence, a stipulation that he will not be liable for losses arising from a negligent delay will be upheld.25 Sec. 480. Or if he departs from the stipulated method of transportation-When departure will be excused. So if the carrier depart from the stipulated method of transportation, his contract for exemption will not avail him, but during such departure he will be subject to his common-law responsibility for losses then occurring.26 Thus, if he stipulates for transportation entirely by rail, but carries part of the way by steamboat;27 or if he agrees to carry by canal, but sends the goods by sea;28 or if he undertakes that 23. Magnin v. Dinsmore, 70 N. Y. 410. Where the carrier is guilty of a conversion of the goods, the contract for exemption will not avail him. Railway Co. v. Fifth National Bank, 26 Ind. App. 600, 59 N. E. Rep. 43. 24. Parker v. The Railroad, 133 N. Car. 335, 45 S. E. Rep. 658, 63 L. R. A. 827; Bosley v. The Railroad, 54 W. Va. 563, 46 S. E. Rep. 613, 66 L. R. A. 871. 25. Foster v. The Railway, 2 K. B. (1904) 306, 73 L. J. K. B. 811. 26. Robinson v. Transportation Co., 45 Iowa, 470; Hand v. Baynes, 4 Whart. 204; Collins v. Railroad Co., 11 Excheq. 790; Galveston, etc. R. Co. v. Allison, 59 Tex. 193; Graham v. Davis, 4 Ohio St. 362; Sleat v. Flagg, 5 B. & Ald. 342; Goodrich v. Thompson, 44 N. Y. 324; post, §§ 617-619. 27. Maghee v. Railroad Co., 45 N. Y. 514; post § § 618, 619. 28. Hand v. Baynes, supra. the goods shall go through without change of cars, but transfers them on the way;29 or if he contracts to care for the goods while in transit, but fails to exercise the requisite care;30 or if he agrees to transport the goods by passenger train service, but sends them forward by freight train,31 he will be liable, notwithstanding his contract for exemption, for injuries happening during such deviation. So if the carrier discriminates against the shipper in the time or rapidity of forwarding his goods,32 he will lose the benefit of exemptions which otherwise might have protected him. But a well known and notorious usage may be an important factor in determining whether there has been a departure from the stipulated method of transportation; and if such a usage sanctioning a departure be proven, the usage not contradicting but simply explaining the terms of the contract, full force and effect will be given an exemption from liability where the loss has occurred during such a departure.33 Where, however, there is a breach of the contract of carriage, and such breach occurs upon the stipulated route, as where the carrier has stipulated that the goods shall be carried by a stipulated route but owing to a mistake on his part he neglects to transfer the goods at an intermediate station at which point it is necessary to transfer them to another train in order that they may be forwarded by the stipulated route and within the time contemplated, he will not be deprived of the benefit of exemptions from liability contained in his contract if, in order to decrease the sum for which he would be liable, he forwards the goods by another route than that provided for in the contract.3+ Sec. 481. (§ 281.) Exceptions to liability in the bills of lading of carriers by water.-Something remains to be said in this chapter upon the subject of the exceptions always to be 29. Robinson v. Transportation Co., supra. 30. Hunnewell v. Taber, 2 Sprague, 1. 31. Pavitt v. Railroad Co., 153 Penn. St. 302, 25 Atl. Rep. 1107. 32. Keeney v. Railroad Co., 47 N. Y. 525. 33. Robertson v. Steamship Co., 139 N. Y. 416, 34 N. E. Rep. 1053, reversing 17 N. Y. Supp. 459. 34. Foster v. Railway Co., 2 K. B. (1904) 306, 73 L. J. K. B. 811. found in the bills of lading of carriers by water, and which are peculiar to them. From the remotest times, and long before carriers by land had begun to put any limit upon their commonlaw liability by contract or notice, it had become common for carriers by sea to provide for themselves a somewhat more extensive protection than was allowed them by the exceptions of what were known as the acts of God and of the king's enemies, the benefit of which the law always allowed them, as we have seen, by inserting in their bills of lading exceptions also of the perils or dangers of the seas; and this limitation of their liability by contract to this extent with their employers became at length, from long usage, one of their conceded rights. And when the carrying business upon rivers and other internal bodies of water became of sufficient importance to demand it, the words were extended so as to include not only the perils and dangers of navigation upon the high seas, but also of river and other water navigation.35 Sec. 482. (§ 282.) Same subject-Perils of the seaDangers of navigation.-This exception is one of the highest importance to carriers upon the rivers of this country, especially upon our western rivers, which, owing to continually shifting currents and other unexpected obstructions to their navigation, make the carrying business upon them more than ordinarily dangerous; and for this reason, as we have seen, some of the courts have held that losses occurring in their navigation from such causes come within the exceptions of the acts of God from which the carrier is protected independently of contract. "It is to be observed," say the court in Steamboat Company ads. Bason,36 "that in our river navigation, owing to forests upon their banks 35. The earliest mention of the exception of the perils of the sea in a bill of lading or charter-party is said to be in Pickering v. Barkley, Style, 132, which is copied in full, ante, § 316. The English bill of lading, as it is called in Laveroni v. Drury, 8 Exch. 166, contains exceptions of "the act of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers and navigation of whatever nature and kind soever." Abbott on Ship. 322. 36. Harper, Law, 262. |