ual case. In some cases, the question of delivery will be determined by the express terms of the contract, but generally it must be settled by the usage of the trade in the particular line of transportation." Long established uniform and well-known usage as to the mode of delivery is a part of the contract,25 but local usage must be affirmatively established.26 The general rule as to carriers by water is that the carrier's liability terminates when the goods are unloaded on the wharf, and reasonable notice given to the consignee.27 In the case of transportation by rail there must be an actual delivery to the consignee, or a constructive delivery involving reasonable opportunity to accept.28 While it may be the duty of the consignee to be present to receive the goods when ready for delivery,20 yet the carrier cannot abandon the goods for failure of the consignee to appear and claim them, although his liability as carrier may be terminated.30 In such a case he must store or warehouse them, and hold them for the consignee.31 SECTION 7. LIABILITY OF COMMON CARRIERS. The liability of common carriers is in many respects heavier than in the case of any other class of bailees. The means of transportation have been revolutionized during the past two generations, and the laws governing the liability of carriers has been undergoing constant 24 Denver, etc., R. Co. vs. De Witt, 1 Col. App., 419, 29 Pac., 524; 154. 25 The Richmond, 1 Biss. (U. S.), 383, 20 Fed. Cas. No. 11, 796. 96 Rowland vs. Miln, 2 Hilt. (Ń. Y.), 150. 27 Howland vs. The Henry Hood, 12 Fed. Cas. No. 6, 795; Turner vs. Huff, 46 Ark., 222, 55 Am. Rep., 580; The Santee, 2 Ben. (U. S.), 519, 21 Fed. Cas. No. 12, 328. 28 Swlinger vs. Simmons, 8 Abb. Pr. N. Š. (N. Y.), 409; Gallowat vs. Hughes, 1 Barley (S. C.), 553. 29 Pickering vs. Weld, 159 Mass., 522, 34 N. E., 1081. 30 See supra 11, J. 3. 31 Green, etc., Nav. Co. vs. Marshall, 48 Ind., 596. changes. The present state of the law governing the bailment liability of common carriers will be considered in the following chapter. 33 The following extract from Note in Smith's Leading Cases to case of Coggs vs. Bernard will show the state of the law on common carriers as it existed half a century ago: "A common carrier is a person who undertakes to transport from place to place for hire, the goods of such persons as think fit to employ him. Such is a proprietor of wagons, barges, lighters, merchant-ships, or other instruments for the public conveyance of goods. Forward vs. Pittard, 1 T. R., 27; Mors vs. Slew, 2 Lev., 69; 1 Vent., 190, 238, commented on in the text by Lord Holt; Rich vs. Kneeland, Cro. Jac., 330; Maying vs. Todd, 1 Stark., 72; Brook vs. Pickwick, 1 Bing., 218. A person who conveys passengers only is not a common carrier. Aston vs. Heaven, 2 Esp., 533; Christie vs. Griggs, 2 Camp., 79; see Sharpe vs. Grey, 9 Bing., 460. Nor is a town carman so, who does not ply from one fixed terminus to another, but undertakes casual jobs. Brind vs. Dale, 2 M. & Rob., 80. A railway company are common carriers unless exempt by some special provision. Palmer vs. Grand Junction Canal Co., 4 M. & W., 749. The extraordinary liabilities of a carrier were imposed upon him in consequence of the public nature of his employment, which rendered his good conduct a matter of importance to the whole community. He is bound to convey the goods of any person offering to pay his hire, unless his carriage be already full, or the risk sought to be imposed upon him extraordinary, or unless the goods be of a sort which he cannot convey, or is not in the habit of conveying. Jackson vs. Rogers, 2 Show., 327; Riley vs. Horne, 5 Bing., 217; Lane vs. Cotton, 1 Lord Ray., 646; Edwards vs. Sherratt, 1 East., 604; Batson vs. Donovan, 1 B. & A., 32 While the goods are in his custody, he is bound to the utmost care of them; and, unlike other bailees falling under the same class, he is, at common law, responsible for every injury sustained by them occasioned by any means whatever, except only the act of God or the King's enemies. I Inst., 89; Dale vs. Hall, 1 Wils., 281; Covington vs. Willan, Gow, 115; see Davies vs. Garrett, 6 Bing., 716. However, when the increase of personal property throughout the kingdom, and the frequency with which articles of great value and small bulk were transmitted from one place to another, had begun to render this degree of liability intolerably dangerous, carriers, on their part, began to insist that their employers should, in all cases, either diminish it, by entering into special contracts to that effect upon depositing their goods for conveyance, or should pay a rate of remuneration proportionable to the risk undertaken. To this end, they posted up and distributed written notices, to the effect that they would not be accountable for property of more than specific value, unless the owner had insured and paid an additional premium for it. If this notice was not communicated to the employer, it was, of course, ineffectual. Kerr vs. Willan, 6 M. & S., 150. But if it could be brought home to his knowledge, it was looked upon as incorporated into his agreement with the carrier, and he became bound by its contents. Mayhew vs. Eames, 6 B. & C., 601; Rowley vs. Horne, 3 Bing., 2; Nicholson vs. Willan, 5 East., 507. Still the carrier, notwithstanding his protection by the notice, was bound to avoid gross negligence; and if the property was lost or injured by such negligence, he was responsible. Smith vs. Horne, 2 B. M., 18; Duff vs. Budd, 3 B. & B., 177; Birkett vs. Willan, 2 B. & A., 356; Garnett vs. Willan, 5 B. & A., 53; Sleat vs. Fagg, Ib., 542; Wright vs. Snell, Ib., 350; see Owen vs. Burnett, 4 Tyrwh., 143. Unless, indeed, the employer had lulled his vigilance by an undue concealment of the nature of the trust imposed upon him, for such conduct would have exonerated the carrier, even had he given no notice. Batson vs. Donovan, 4 B. & A., 21; Miles vs. Cattle, 6 Bing., 743; Sec. 4 Burr, 2301; B. N. P., 71. Very many questions, as was naturally to be expected, having arisen upon the construction of these notices, and whether they had come to the customer's knowledge the legislature has thought proper to step in, and by several enactments to regulate the responsibility of carriers by land and water. The land-carrier act is St. 11, Geo. 4 & 1 Will., 4, Cap. 68, which enacts that no common carrier by land for hire, shall be liable for loss or injury to any gold or silver coin, gold or silver in a manufactured or unmanufactured state, precious stones, jewelry, watches, clocks, time-pieces, trinkets, bills, bank-notes, orders, notes or securities for payment of money, stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate or plated article, glass (see Owen vs. Burnett, 4 Tyrwh., 143), china, silks-manufactured or unmanufactured-wrought-up or not wrought-up with other materials, furs (see Mayhew vs. Nelson, 6 C. & P., 59), or lace, contained in any parcel, when the value exceeds the sum of 10, unless at the time of delivery the value and nature of the article shall have been declared, and the increased charges, or an engagement to pay the same, accepted by the person receiving the parcel. By Sec. 2, the carrier may demand for such parcels an increased rate of charge, which is to be notified by a notice affixed in his office, and customers are to be bound thereby, without further proof of the notice having come to their knowledge. Carriers who omit to affix the notice are, by Sec. 3, precluded from the benefit of this act, and, by Sec. 4, they can no longer by a notice limit their responsibility in respect of articles not within the act. Special contracts, however, between the carrier and his employer are still allowed, and are not affected by this statute. By Sec. 5, the act is not to protect carriers from their liability to answer for loss occasioned by the felonious acts of their own servants, nor is it to protect the servant from answering for his own neglect or misconduct. And it has been held that, notwithstanding the statute the carrier is still answerable for gross negligence on his part, which has occasioned a loss of property such as the act directs to be insured, even although the owner has neglected to insure it; for the protection given to the carrier by the act is substituted for the protection which he formerly derived from his own notice, and the former, therefore, will not now protect him, in a case in which the latter would not have been allowed to do so in consequence of his misconduct. Owen vs. Burnett, 4 Tyrwh., 142. "With respect to carriers by water, besides the exemptions for which they stipulate in their charter-parties and bills of lading (which latter always contain a clause discharging them from liability for losses occasioned by 'the act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of what nature and kind soever;' the first two of which exemptions they indeed enjoyed at common law, and that from loss by fire under 28 Geo., 3, c. 86, s. 2), they are further protected by the last-mentioned statute from making good loss or damages to any gold, silver, diamonds, watches, jewels, or precious stones, sustained by any robbery, embezzlement, making away or secreting thereof, unless the owner or shipper has, at the time of shipping, declared the nature and value thereof in writing. 6 Geo., 4, c. 155, s. 53, exempts them from liability from damage arising from the want of a duly qualified pilot, unless incurred by their own refusal or neglect to take one on board; and Sec. 55, from liability from loss incurred through the default or incompetency of a licensed pilot. Where their common law liability remains, it is much narrowed by the following acts, viz.: 7 Geo., 2, c. 15, which exempts them from making good losses incurred by the misconduct of the master and mariners, without their privity, to a greater extent than the value of the ship and freight (see Sutton vs. Mitchell, 1 T. R., 18); 26 Geo., 3, cap. 86, sec. 1, which extends the above enactment to all cases of losses by robbery by whomsoever committed, and 53 Geo., 3, cap. 159, which extends to all cases of loss occasioned without their default or privity; but this act does not extend to vessels used solely in rivers or inland navigation, nor to any ship not duly registered according to law; nor do any of the acts extend to lighters and gabberts. Hunter vs. M'Gown, 1 Bligh, 573. It should also be observed that the benefit of the three last mentioned acts extends to owners only, not to masters, and that the last contains an express clause against relieving the master, though he may happen also to be a part-owner. See Wilson vs. Dickson, 2 B. & A., 2. "Where goods consigned to a vendee are lost through the default of the carrier, the consignee is the proper person to sue, for the consignor was his agent to retain the carrier. Dawes vs. Peck, 8 T. R., 330; Dutton vs. Solomonson, 3 B. & P., 582; King vs. Meredith, 2 Camp., 639; Brown vs. Hodgson, Ib., 36. But it is otherwise where the goods were sent merely for approval, Swain vs. Shepherd, 1 M. & Rob., 224, or the consignee is the agent of the consignor, Sargent vs. Morris, 3 B. & A., 277, or the carrier has contracted to be liable to the consignor in consideration of the latter's becoming responsible for the price of the carriage. Moore vs. Wilson, 1 T. R., 659; Davis vs. James, 5 Burr., 2680. See Freeman vs. Birch, 1 Nev. & M., 420. In the case of an action brought against a carrier, it is sufficient prima facie evidence of a loss by his negligence to show that the goods never reached the consignee. But where they are bailed to a booking-office keeper to be delivered to a carrier, the plaintiff must show by direct evidence, that they were not delivered to one. Gilbart vs. Dale, 5 A. & E., 540; Griffith vs. Lee, 1 T. R., 659. With regard to the mode of declaring against a carrier, formerly, the practice was to set out the custom of the realm; that has been discontinued, because the custom of the realm being the law of the realm, the courts take notice of it. Afterwards the practice became to state the defendants to be common carriers for hire, totidem verbis, that was, however, departed from to some extent in Botherton vs. Wood, 3 B. & B., 58; and still more in Pozzi vs. Shipton, 8 A. & E., 974, where a declaration stating that the plaintiff delivered, and that the defendant accepted the goods in question, to be carried for reward from A to B, was held sufficient upon the custom of the realm to warrant a verdict against one of two defendants, upon evidence of his being a common carrier. The court, however, doubted whether it would have been good on special demurrer." BAILMENT LIABILITY OF COMMON CARRIERS. SECTION 8. GENERAL RULE. A common carrier is liable as an insurer for the safety of all goods entrusted to his care. This general rule is unquestioned and the only practical questions arising in this connection are as to the exceptions to the rule.1 The losses which a common carrier of goods is exempted from liability for, are those occasioned by act of God, by public enemies, by the act of the shipper, or by the inherent nature of the goods themselves. SECTION 9. DAMAGE CAUSED BY ACT OF GOD. A common carrier is not liable for losses caused by the act of God, but the extent of this exception has always been carefully restricted. No loss which might have been prevented by the loss of ordinary care on the part of the carrier, can be excused as being caused by an act of God. The burden of proof is on the carrier to show that it used every reasonable effort to avoid the effects of the inevitable accident. Some cases hold that a carrier of goods is liable for their loss or injury in the course of transportation by reason of a casualty which in itself constitutes an act of God, where the damage would not have occurred but for the negligent delay of the goods. This holding is supported by a number of cases; but on the 1 Am. & Eng. Ency. of Law, Vol. V. Smith vs. Western R. Co., 91 Ala., 455, 24 Am. St. Rep., 9293; Lang vs. Pennsylvania R. Co., 2 Pa. Dist. Rep., 125, 154 Vol. V.-11. 161 Pa. St., 342, 32 W. N. C., (Pa.), 205. 3 Columbus, etc., R. Co. vs. Kennedy, 78 Ga., 646. |