221. Liabilities of common carrier.-The common carrier, as we have said, has extraordinary liabilities which arise out of his public calling and his duties as an insurer of the goods of his patrons. Railroad and other public carriers are given valuable rights, known as franchises, and are also endowed with the right of eminent domain, which is the right to take private land for their public use. This latter is, as it were, a delegation of sovereignty itself, for the owner's wishes are not consulted, his only right in the matter being the right to compensation. It is because these privileges have been given that correlative duties are imposed,— duties greater than those which attach to private callings.

The duty to accept the goods of all who apply is more than a mere prohibition against discrimination. The present day railroad is bound to keep up with the demand on its roads and to supply facilities that will accommodate such traffic as can reasonably be anticipated. Extraordinary press of business, of course, cannot be anticipated and part of it may be refused for lack of adequate facilities. One shipper cannot be deprived of facilities in preference to another, but all are entitled to notice of the railroad's incapacity if within a reasonable time the carrier is unable to supply the demand for cars. Dangerous goods, and those which the carrier does not hold himself out to transport, as, for example, cattle, may be refused.

Under the common law a shipper may receive a more favorable rate than his competitors if the rate charged the competitor is not unreasonable. The statutes of most states provide that uniform rates must be charged for transportation beginning and ending within the state, and the Federal Congress has enacted the Inter

state Commerce Act, which provides a method for regulating transportation rates in interstate commerce.1

222. Carrier's liability as an insurer.-Under the common law unmodified by statute or contract, a common carrier is liable absolutely for all loss or damage to goods in his possession as common carrier. This general rule has several exceptions enumerated below:

1. Loss caused by an act of God does not fall upon the carrier. Losses caused by freshets, earthquakes, frosts, storms, lightning, unusual winds, and other actions of the elements, are examples of acts of God. The test always is: Is the loss proximately caused by some force without the interposition of human agency? Care must be taken to distinguish between acts of God and inevitable accidents, the latter of which is the larger term and includes the former. Though the carrier is not liable for the results of an act of God, he must use due diligence and reasonable care to diminish the disastrous effects as far as possible.

2. Loss occasioned by depredations of a public enemy also are not visited upon the carrier. The public enemy means a nation with whom the country is at war and pirates who are looked upon as enemies of all mankind. Mobs, rioters, robbers, strikers, and insurgents are not public enemies.

3. The carrier will not be responsible for loss occasioned by an act of public authority. The carrier will

1 The following are the important laws relating to interstate commerce passed by Congress:

Interstate Commerce Act (1887-1910), Commerce Court (1910), Elkins Act (1903-1906), Act Relating to Testimony (1893-1910), Expedition Act (1903), Sherman Anti-Trust Act (1890), Safety Appliance Acts (18931910), Employers' Liability Act (1908), Hours of Service Law (1907), Investigation of Block Signals, Etc. (1906-1910), Accident Law (1910), Ash Pan Law (1908), Arbitration Act (1909), Transportation of Explosives (1909), Mann-Elkins Act (1910).

not be held liable for loss of goods destroyed by the police power of the state or taken by legal process valid upon its face and issued against the owner of the goods. The carrier is bound, however, to notify the shipper so that he may appear and defend, and the carrier will also be liable for parting with goods by virtue of a void legal process.

4. The shipper may commit some act which will excuse the carrier from liability. If, for example, the shipper improperly packs or marks the goods, or if he loads them on the cars and takes charge of them on the journey, the carrier will be relieved from responsibility for any loss growing out of the shipper's improper acts. The carrier will not be liable for the loss of valuable goods if the shipper in any way disguises their value.

5. Where loss occurs through the inherent nature of the goods, no liability will attach to the carrier. If the carrier has notice of the nature of the goods he is bound to handle them with a view to their peculiar qualities.

EXAMPLES

250. A ships goods on the X railroad. The train is destroyed by fire; X will be liable unless the fire was caused by lightning.

251. A ships goods on the X railroad, and while in transit they are destroyed by the act of a lynching mob. X is liable, for a mob is not a public enemy.

252. A ships meat on the X railroad. It is seized and destroyed by the health authorities. X is not liable.

253. A ships goods on the X railroad intended for Y in Canada. A's shipping clerk misdirects the package. X will not be responsible for any loss occasioned by the act of A's

servant.

254. A packs five diamonds in a box of straw. The box is lost; the carrier will not be responsible, for he should have

been notified of the value of the goods to give him an opportunity to take the necessary precautions for their protection.

255. X, a railroad, ships annually many heads of cattle from M to N, a distance of five hundred miles. A train loaded with cattle stops at one of the usual watering places, but finds no water and proceeds on its journey. As a result, one-half the cattle perish. X will be responsible, for a shipper of cattle is bound to provide for their safe transportation.

223. Carrier's liability under special contracts and statutes. In the absence of statutory prohibition, a common carrier may contract with a shipper to limit his extraordinary liability so that his duties and responsibilities are those of an ordinary bailee. The reason for the rule that common carriers are insurers of the goods of their shippers will be found in the attempt of the law to protect shippers from collusion between the carrier and highwaymen or other robbers. This reason has practically disappeared, and the courts now uphold contracts which are reasonable and not contrary to public policy and the purpose of which is to avoid the carrier's liability as an insurer.

On the other hand, a contract by which a carrier seeks to avoid a liability caused by its own negligence or that of its employés has been held by most courts to be illegal as contrary to public policy. In other words, while a carrier may make a contract against liability as an insurer he may not make a contract against liability as a bailee. In England and New York, however, carriers may contract away their liability as bailees, though the shipper upon payment of a higher rate may insist upon having his goods carried without entering into a limited liability contract.

Carriers, however, often insist upon a limitation of their liability to a sum fixed by the shipper as the value

of his goods. The carrier is entitled to greater compensation if the value is greater than that fixed by the shipper, for the carrier's risk is greater and such contracts, therefore, have been upheld by the courts. Bills of lading usually provide that in case of loss the carrier shall be notified within a certain time. If this time is reasonable, the contract will be valid on the ground that the shipper should be given an opportunity to trace the goods if possible, or to fix the liability upon its agents or outsiders who may be responsible for the loss.

A notice, the purpose of which is to limit the carrier's liability, will be ineffective if not brought to the attention of the shipper. If, however, the shipper receives a bill of lading, express receipt or similar document before the goods shipped are beyond recall, he is presumed to have assented to any notice contained therein. The receipt given for baggage by a local baggage carrier, however, does not come within this rule, for the reason that it has not been made by custom evidences of a contract. Ordinary railway tickets also are excluded from the rule. Where an ordinary ticket or baggage receipt is accepted, and it can be shown that the person receiving it had actual notice of a special contract printed thereon, he will be deemed to have assented to the contract by accepting the ticket or receipt.

In some states, the common law liability of carriers is modified, as for example, where a carrier is exempted from liability for loss or damage by fire not due to its negligence.

224. Termination of carrier's liability.—The extraordinary liability of a carrier is ended by delivery of the shipment or by some valid excuse for non-delivery.

Delivery must be made at a reasonable time, at the