In New York, the English common law on the subject of the general responsibility of common carriers, has been fully, ex

decisions contain very learned and able discussions on the subject, and the solidity of the stern rule of the common law is ably and successfully vindicated. But though common carriers cannot contract for a restricted responsibility, yet other bailees for hire may so contract, and leave the whole risk, in cases free from fraud, on the owner of the property; and it has been held that the owners of a steamboat undertaking for hire to tow a canal-boat and her cargo on the Hudson River, while the master and hands of the canalboat remain on board, and in possession and charge of the property, are not common carriers, but ordinary bailees for hire; and as it was stipulated that the canal-boat was to be towed at the risk of her master, the owners of the steamboat were not responsible, even for the want of ordinary care and skill. Alexander v. Greene, 3 Hill (N. Y.) 1. But this case was reviewed and and reversed in the New York Court of Errors, 7 Hill (N. Y.) 533. The English statute, (1 Wm. IV. ch. 68,) made for the more effectual protection of common carriers for hire, declares that they shall not be liable for the loss of or injury to, any property of the following description: that is to say, of gold or silver coin, or gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, watches, &c., bills, notes, writings, pictures, plated articles, glass, silks, furs, or lace, contained in any parcel to be carried for hire, or to accompany a passenger in any public conveyance, where the value exceeds 107., unless delivered as such with an express formal declaration of the value, and the carrier to be entitled to an increased rate of charge, according to previous notice. See Hinton v. Dibbin, 2 Adol. & Ell. N. S. 646, on the strict construction of the statute. No public notice is to limit the responsibility of the carrier in respect to other goods. The exception in bills of lading of goods on inland navigation, of "dangers of the river which are unavoidable," narrows the liability of the boat-owner, and exempts him from liability for accidents and loss occa

Monteath, 13 Barb. (N. Y.) 353. Dorr v. N. J. Steam Navigation Co. 4 Sandf. (N. Y.) 136. 1 Kernan, 485. Stoddard v. L. I. R. R. Co. 5 Sandf. (N. Y.) 180. Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith (N. Y.) 115. Moore v. Evans, 14 Barb. (N. Y.) 524; and the law is settled, as in the author's note, that though notice, even if brought home to the plaintiff, does not limit the carrier's liability, yet a special agreement does. Nevins v. Bay State St. B. Co. 4 Bosw. 225. West. Tr. Co. v. Newhall, 24 Ill. 466. Bissell v. N. Y. Cent. R. 25 N. Y. 442. This is the rule in Michigan, and there the special agreement need not be in writing. Am. Tr. Co. v. Moore, 5 Mich. 368. Also in Georgia; and there the special agreement may exist by usage. Cooper v. Berry, 21 Geo. 526. This is also the rule of the Supreme Court of the United States, in Merchants' Bank v. N. J. S. N. Co. 6 How. (U. S.) 344. In M. C. R. R. v. Ward, however, it was held that a corporation, chartered as a common carrier, could not, consistently with its contract with the state, make a special agreement diminishing its liability. 2 Mich. 538. See further, F. & M. Bank v. Champlain Tr. Co. 23 Vermont, 186; Kimball v. R. & B. R. R. Co. 26 Ibid. 247; Derwort v. Loomer, 21 Conn. 245; Moses v. B. & M. R. R. Co. 4 Foster, 71; Davidson v. Graham, 2 Ohio, 131. None of these cases go so far as to say that the carrier may, by special agreement, divest himself of all liability. Goldey v. Penn. R. R. Co. 30 Penn. 242. Smith v. N. Y. Cent. R. 29 Barb. (N. Y.) 132. But in Bissell v. N. Y. Cent. R. 25 N. Y. 442, a contract that a person riding free to take care of cattle in transportation, did so at his own risk of personal injury, was held valid. Notice, if brought to the plaintiff's knowledge, will limit the carrier's liability in Maine, Sagar v. Portsmouth A. S. Co. 31 Maine, 228; and in Pennsylvania, Laing v. Colder, 8 Barr, 479; C. & A. R. R. v. Baldauf, 16 Penn. 67.

Fish v. Chapman, 2 Kelly (Geo.) 349. The opinion of Judge Nesbit, in this case, is prepared with his usual learning and ability.

I

plicitly, and repeatedly recognized in its full extent; and equally in respect to carriers by land and water, and equally in respect to foreign and inland navigation. (c) In Elliott v. Rossell, the whole doctrine was extensively considered; and it was understood and declared, that a common carrier warranted the safe delivery of goods in all but the excepted cases of the act of God and public enemies; and that there was no distinction between a carrier by land and a carrier by water, whether the water navigation was internal or foreign, except so far as the exception is

extended to perils of the sea by the special terms of the *609 contract*contained in the charter-party or bill of lading.

It was further shown, that the marine law of Europe went to the same extent, as did also the civil law, and the law of those nations in Europe which have made the civil law the basis of their municipal jurisprudence. The principle appeared to be sound and wise, and to have a very general reception among nations. The same doctrine was again declared in New York, in Allen v. Sewall; (a) and the owners of a steamboat carrying light freight

sioned by hidden obstructions newly placed in the river, and which human skill and foresight could not discover and avoid. Gordon v. Buchanan, 5 Yerger, 71. (c) Colt v. M'Mechen, 6 Johns. 160. Schieffelin v. Harvey, 6 Ibid. 170. Elliott v. Rossell, 10 Ibid. 1. Kemp v. Coughtry, 11 Ibid. 107. Allen v. Sewall, 2 Wendell, 327. McArthur v. Sears, 21 Ibid. 190.

water.

(a) 2 Wendell, 327. The case of Aymar v. Astor, 6 Cowen, 266, would seem to have gone far to unsettle and reverse the common-law doctrine respecting carriers by But if there was not originally some inaccuracy or mistake in the statement or report of that case, it is to be considered as completely overruled by the case of Allen v. Sewall. This last case was reversed by the Court of Errors, (6 Wendell, 335,) on the ground that bank-bills were not goods, wares, and merchandise, within the meaning of the statute incorporating the steamboat company, whose agent the defendant was, and that the carriage of such bills was not a part of their ordinary business, and was

4 Carriers may insure for their own interest and for that of their owners, and may contract with them for the benefit of insurance effected by the owners, and such contract will prevent the acquirement by insurers of any claim against the carrier which the owners might have enforced, and against which they are indemnified under the contract of insurance. Mercantile Ins. Co. v. Calebs, 20 N. Y. 172. Chase v. Washington Ins. Co. 12 Barb. (N. Y.) 595.

Savage v. Corn Exch. Co. 4 Bosw. 1.

1 The questions, who are servants of carriers, and the extent of the principal's liability for their acts, were much discussed in a late case, which arose upon the construction of the Carrier's Act. 11 Geo. IV. and 1 Will. IV. ch. 68. Machu v. Railway Co. 2 Wels., H. & G 415. See, as to the effect of notices printed on tickets and way-bills, Chippendale v. L. & Y. Railway Co. 7 Eng. L. & Eq. 395; Morville v. Great Northern Co. 10 Eng. L. & Eq. 366; Austin v. Manchester R. Co. 11 Eng. L. & Eq. 506; Carr v. Lancashire Co. 14 Eng. L. & Eq. 340; Brown v. E. R. R. 11 Cush. 97.

and parcels for hire, were held to be liable as common carriers. Bank-bills were held to be goods, within the meaning of the law; and directions to the captain not to carry money did not excuse the owner, unless notice of such instructions were brought home to the shipper. There is no doubt, also, that the doctrine of the English common law, which declares that persons carrying goods for hire by land or water, including all kinds of internal as well as external navigation, are common carriers, and liable for all losses happening otherwise than by inevitable accident, prevails generally in these United States, as part of the common law of the land.1 The slightest neglect or fault, levissima culpa, renders the master of a vessel liable. (b) 3

forbidden by instructions to the master. But the general doctrine in the text respecting the liability of common carriers was not disturbed. So, in the case of Camden Company v. Burke, 13 Wendell, 611, it was held, that steamboat and railroad companies were liable for the baggage as common carriers; and even notice, brought home to the passengers, that all baggage is to be at the risk of the owners, will not exempt the owners from the implied agreement that the vehicle is sufficient. But they are not responsible for the passengers if due care be used.

(b) M'Clures v. Hammond, 1 Bay (S. C.) 99. Miles v. James & Johnson, 1 M'Cord, 157. Cohen v. Hume, Ibid. 439. Smyrl v. Niolon, 2 Bailey (S. C.) 421. Murphy v. Staton, 3 Munf. 239. Bell v. Reed, 4 Binney, 127. Moses v. Norris, 4 N. Hamp. 304. Craig v. Childress, Peck (Tenn.) 270. Gordon v. Buchanan, 5 Yerger (Tenn.) 71. Turney v. Wilson, 7 Ibid. 340. Faulkner v. Wright, 1 Rice (S. C.) 107. Hennen v. Monroe, 11 Martin (Louis.) 579. Smith v. Pierce, 1 Louis. 349. Spencers v. Daggett, 2 Vermont, 92. Gilmore v. Carman, 1 Smedes & Marsh. 279. Hale v. New Jersey Steam N. Co. 15 Conn. 539. Adams v. New Orleans Steam Towboat Co. 11 Louis. 46. Alexander v. Greene, 7 Hill (N. Y.) 533. In this last case it was held, that the owners of a steamboat on the Hudson, engaged generally in the business of towing canal-boats for hire, were responsible as common carriers; and though the business was in that special case undertaken at the risk of the master and owners of the towboat, yet that the master and owners of the steamboat were in that case liable for ordinary neglect, and certainly for gross neglect; and there was evidence of both in that case.2 I was much struck in this case with the learning and ability of the lay members of the Court of Errors, several of whom gave separate opinions; and this case leads me to part with still deeper regret with the Court of Errors, which existed, and generally with great dignity and usefulness, from the independence of the state of New York in 1777 down to its destruction, and the substitution of the Court of Appeals, in 1847. In

1 It seems clear, that there may be common carriers from a place within, to a place without the realm. Bennett v. Peninsular S. B. Co. 6 Mann. Gr. & S. 786.

See, as to the liability of towing vessels, Lec. XLVII. vol. iii. It will be seen that the case of Alexander v. Greene has been disapproved in the Court of Appeals. 2 Comst. 208. The Broeder Trow, 20 Eng. L. & Eq. 634. Leonard v. Hendrickson, 18 Penn. 40.

3 Where goods to be delivered at A. were lost, the measure of damages is not what they can be bought for at A., but what it would cost to procure and deliver them at A. Rice v. Baxendale, 7 Hurl. & Nor. 96.

* 610

*It has been the settled law in England, since the case of Lane v. Cotton, (a) that the rule respecting common carriers does not apply to postmasters, and there is no analogy between them. The post-office establishment is a branch of the public police, created by statute, and the government have the management and control of the whole concern. The postmasters enter into no contract with individuals, and receive no hire, like common carriers, in proportion to the risk and value of the letters under their charge, but only a general compensation from government. In the case referred to, the postmaster-general was held not to be answerable for the loss of exchequer bills stolen out of a letter while in the defendant's office. The subject was again elaborately discussed in Whitfield v. Lord Le Despencer, (b) and the same doctrine asserted. The postmaster-general was held not to be responsible for the bank-note stolen, by one of the sorters, out of a letter in the post-office. But a deputy postmaster or clerk in the office is still answerable, in a private suit, for misconduct or negligence; as, for wrongfully detaining a letter an unreasonable time. (c) The English law on this subject was admitted in Dunlop v. Munroe, (d) to be the law of the United States; and a postmaster was considered to be liable in a private action for damages arising from misfeasance or for negligence, or want of ordinary diligence in his office, in not safely transmitting a letter. (e) Whether he was liable himself for the negligence of his

Pennsylvania, the English law, as to carriers by land, is admitted in the full extent; but with respect to carriers by inland navigation, the law was considered, in Gordon v. Little, 8 Serg. & Rawle, 533, to be unsettled in respect to its application in that state. The carrier on inland waters was held to be clearly liable for every accident which skill, care, and diligence could have prevented; but beyond that point it was competent for the common carrier to prove a usage different from the common law. In Harrington v. M'Shane, 2 Watts (Penn.) 433, it was, however, adjudged, that under the usage of trade on the western waters, (the river Ohio,) the owners of steamboats carrying goods on freight were common carriers, and liable as such for all losses, except those occasioned by the act of God or the public enemy.

(a) 1 Ld. Raym. 646.

(b) Cowp. 754.

(c) Rowning v. Goodchild, 3 Wils. 443.

(d) 7 Cranch, 242.

(e) See, also, Schroyer v. Lynch, 8 Watts, 453; Story on Bailment, § 463.

1 Or for refusing to deliver a newspaper. Teall v. Felton, 3 Barb. (N. Y.) 512. S. C. 1 Comst. 537. The state courts have jurisdiction of such cases; and the act of the postmaster in charging letter postage on a newspaper, is not such a judicial act as protects him from liabillity.

2

clerks or assistants, was a point not decided; (f) though if he were so to be deemed responsible in that case, it * 611 would only result from his own neglect, in not properly superintending the discharge of his duty in his office. (a)

The general doctrines of agency and lien have a material bearing on this subject of bailment; but as they are essentially connected with mercantile transactions, their extent and importance require a separate discussion.

(f) In Conwell v. Voorhees, 13 Ohio 523, it was held that a mail contractor was not liable to the owner of a letter for money lost by the mail by the carelessness of the contractor's agents carrying the mail.

(a) Since the first edition of this work, my learned and estimable friend, Mr. Justice Story, in the discharge of his duties as Dane Professor of Law in Harvard University, has favored the public with Commentaries on the law of Bailments, with Illustrations from the Civil and Foreign Law; and in 1840, he gave to the public an improved and enlarged edition of that work. I would strongly recommend that volume to the student, who wishes to pursue more extensively than the plan of the present lecture permitted, the refined distinctions and practical illustrations which accompany this branch of the law. I have availed myself of the lights which that work has afforded, and the confidence which it has inspired, while engaged in the revision of my own more brief and imperfect survey of the subject. This excellent treatise is the most learned and the most complete of any that we have on the doctrine of bailment. It aims to lay down all the principles appertaining to the subject, both in the civil, the foreign, the English and the American law, with entire accuracy; and I beg leave to say, after a thorough examination of the work, that, in my humble judgment, it has succeeded to an eminent degree.

It has been declared that he is not. Wiggins v. Hathaway, 6 Barb. (N. Y.) 682. He must be shown to have been guilty of a want of ordinary care, and that such negligence was the cause of the loss. See Strong v. Campbell, 11 Barb. (N. Y.) 135.