the troops, "the company accepting no responsibility:" it was held that this stipulation did not exempt the company for a loss arising wholly from their own negligence (k). It is said to be now perfectly well understood, that if a parcel be delivered to a carrier to be carried, it is his duty to ask such questions about it as may be necessary; and that, if he ask no questions, and there be no fraud to give the case a false complexion, he is bound to carry the parcel as it is (1). And it is, at all events, clear that if the carrier be guilty of misfeasance, mere concealment without fraud, on the part of the customer, as to the nature of the parcel delivered to the carrier, will not absolve him from liability for its loss. Thus, where a parcel of great value was delivered to a carrier, with directions to send it by a particular conveyance; and he sent it by a different conveyance, and it was lost; it was held that he was responsible, notwithstanding he had given notice that he would not be answerable for any article exceeding a certain value, unless insured; and the customer had not given notice that the parcel in question contained property exceeding that value (m). But if, in such a case, the parcel were lost merely by the negligence of the carrier, concealment on the part of the customer as to its value might be sufficient to discharge the carrier, although the case was not within the Carriers Act (n); and if any fraud or deceit be practised on the carrier, as if the real value of the goods be misrepresented to, or fraudulently concealed from him, he will not be liable in case they be lost or stolen (0). But a carrier has not, in all cases, a right to be informed of the contents of packages brought to him to be carried; nor can he, in all cases, refuse to carry them, if such information be withheld (p). of be If, however, a person deliver to a carrier, for the purpose being carried, goods which are apparently safe and fit to carried, but which he knows to be of a dangerous character, and the carrier does not know the dangerous quality of the goods, such person is bound to give the carrier notice of their dangerous character; and, if he do not do so, he is liable to the carrier for B. & Al. 21; 22 R. R. 599; and see per (0) See per Parke, B., Walker v. Jack- (p) Crouch v. London and North Western Rail. Co. (1854), 14 C. B. 255. CH. XV. s. 1. the consequences of such omission (q). Nor, as it seems, does it Bailment for make any difference in the carrier's liability, that he might and Carriage (Liability as ought to have known-the article delivered to him being well known in commerce-that it possessed injurious qualities (r). Insurer). Goods damaged or lost by owner's neglect ; or from an inherent defect or vice, in the thing or animal carried. And it has even been held, that although the customer was ignorant of the dangerous quality of the goods, any loss which is occasioned by their dangerous quality must fall on him and not on the carrier (s). But Crompton, J., in the case just cited, differed from the other judges on this point-holding that where goods are delivered to a carrier to be carried, there is no absolute warranty by the customer that they are safe and fit to be carried (t). And the Court of Appeal has expressed a similar opinion (u). Where the damage complained of happens from the owner's neglect, and not from the neglect of the carrier in the ordinary course of his duty, he is not liable (x). Nor is he responsible for the loss of a parcel which, by agreement between the owner and the carrier's servant, the latter was to carry for his own private gain (y). And where the plaintiff received a parcel from G., which he was to book for London at the office of the defendants, who were common carriers; and, instead of obeying his instructions, he put the parcel into his bag, intending to take it to London by the coach as part of his own luggage: it was held that he could not recover against the defendants for the loss of such parcel (z). But if A. sends goods by B., who says, "I will warrant they shall go safe;" B. is liable, because of his warranty, for any damage sustained by the goods; notwithstanding that A. send his own servant in B.'s cart to look after them (a). Nor is a carrier responsible for damage, which arises wholly from an inherent defect in the article delivered to him to be carried-as, for instance, from the bung of a cask being imperfect (b). So if damage occur to a horse or other animal, by reason of an inherent vice in the animal itself, and without any negligence on the part of the carrier, he is not responsible (c). (a) Farrant v. Barnes (1862), 11 C. B., N. S. 553; Brass v. Maitland (1856), 6 E. & B. 470. (r) Hutchinson v. Guion (1858), 5 C. B., N. S. 149, 163. (s) Per Lord Campbell, C.J., and Wightman, J., Brass v. Maitland (1856), 6 E. & B. 470. (t) Id. 491. (u) Acatos v. Burns (1878), 3 Ex. D. 282, C. A.; and see sect. 105 of the Railways Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, and the Explo sives Act, 1875, 38 & 39 Vict. c. 17, Chit. Stat., tit. "Explosives." 74. (x) Whalley v. Wray (1800), 3 Esp. (y) Butler v. Basing (1827), 2 C. & P. 613. (z) Miles v. Cattle (1830), 6 Bing. 743. (a) Robinson v. Dunmore (1801), 2 B. & P. 416; 5 R. R. 635. (b) Hudson v. Baxendale (1857), 2 H. & N. 575. (c) Nugent v. Smith (1876), 1 C. P. D. But if a carrier receive goods which are not properly packed or secured, and this defect is visible at the time; he cannot, in an action for the loss of the goods, set up as a defence that they were not properly packed or secured when delivered to him (d). (e) Place, Mode, and Time of Delivery. CH. XV. s. 1. Goods not To whom and where the carrier should The contract of the carrier is, to deliver the goods to the consignee, or, where they are carried under a bill of lading, to the consignee or his assigns; and the person who holds the "first" deliver. bill of lading for value, is entitled to delivery of the goods (e). But the shipowner will be indemnified and safe in delivering the goods to whoever first presents a part of the bill of lading, unless, indeed, he knows of a previous assignment, when he should interplead. But the shipowner is not bound to make inquiries, it is for the assignee to give notice (ƒ). And the carrier is bound to deliver the goods at the place named by the consignor, unless the consignee direct them to be delivered at a different place. But if the consignee order the goods to be delivered at a place other than that named by the consignor, the carrier will be justified in so doing (g). On the question, whether a carrier is, under ordinary circumstances, bound to make an actual delivery at the address of the consignee, it was held by three judges, contrary to Lord Kenyon's opinion, that he was (h). And where the carrier receives a reward for carrying the goods from the wharf at which he unloads to the plaintiff's address (i); or where he has always been accustomed to deliver the goods in that way, he is clearly bound to do so (j). So where, by the bill of lading, the goods are to be delivered "to A. or his assigns, on paying for the said goods, freight, &c.:" it must appear, either that there was a delivery to the consignee or his assigns; or that a delivery at a particular wharf was a delivery to them, according to the usage of the port with respect to goods on such a voyage (k). And although-where the goods are deliverable to the consignee or his assigns-the carrier need 423, C. A.; Kendall v. London and South Western Rail. Co. (1872), L. R., 7 Ex. 373; Blower v. Great Western Rail. Co. (1872), L. R., 7 C. P. 655. (d) See Stuart v. Crawley (1818), 2 Stark. 323; Richardson v. North Eastern Rail. Co. (1872), L. R., 7 C. P. 75. (e) Barber v. Meyerstein (1876), L. R., 4 H. L. 317. (f) Glyn, Mills & Co. v. East and West India Docks (1882), 7 App. Cas. 591; The Stettin (1889), 14 P. D. 142; and see Sewell v. Burdick (1884), 10 App. Cas. 84. (g) London and North Western Rail. Co. v. Bartlett (1861), 7 H. & N. 400. (h) See Hyde v. Trent and Mersey (i) Hyde v. Trent and Mersey Naviga- Gatliff (1844), 11 CH. XV. s. 1. not deliver, until he has notice that the consignee or some Bailment for assignee will receive, or until the party entitled comes to receive Carriage (Delivery). them; still he must keep the goods for a reasonable time, either on board, or on the wharf, at his own risk, to enable the consignee or his assigns to come and fetch them (). And he will continue liable as a common carrier until such reasonable time has elapsed (m). Consignor may change destination of But where the usual course of business was for the carrier, on the arrival of the goods at the place to which they were consigned, to send a notice to the address of the assignee, requesting the goods to be removed, and stating that that notice, indorsed as a delivery order, must be produced by the person who was sent for the goods; and, this notice having been sent, it was afterwards produced so indorsed, by a person who was not the intended consignee; whereupon the goods were delivered to him: it was held that the carrier was not liable as for a misdelivery (n). where the terms of the bill of lading were, that the goods were to be "delivered in good order and condition from the ship's deck, where the ship's responsibility shall cease:" it was held that, as soon as the shipowner had cleared the goods from the deck, he ceased to be responsible for them (o). And The consignor may, by notice to the carrier, change the destination of the goods during their transit; and the carrier will be goods during responsible for not delivering the goods at such new destination (p). And if the consignor had the right to give such notice, and the carrier act upon it, he may set this up as an answer to an action by the original consignee for non-delivery (q). transit. Liability of carrier after refusal of goods by consignee. When carrier liable as a warehouse man. If the goods, on being tendered by the carrier at the address of the consignee, are refused, the carrier then becomes an involuntary bailee of such goods, and he is no longer liable as carrier: so that, if he afterwards deliver them to a wrong person, it will be a question for the jury whether, in so doing, he acted with reasonable care and caution (1). (f) Liability of Carrier as Warehouseman. After the responsibility of the carrier, as a carrier, has ceased, he may, if he retain the goods in his possession- either under a contract, or in accordance with the usual course of dealing (1) See note (k), p. 391. (m) Bourne v. Gatliffe (1843), 5 Scott, 667. (n) M'Kean v. M'Ivor (1870), L. R., 6 Ex. 36. (0) Petrocochino v. Bott (1874), L. R., 9 C. P. 355. (p) Scothorn v. South Staffordshire Rail. Co. (1853), 8 Exch. 341. (g) Sheridan v. New Quay Co. (1858), 4 C. B., N. S. 618. (r) Heugh v. London and North Western Rail. Co. (1870), L. R., 5 Ex. 51; and see Stephenson v. Hart (1828), 4 Bing. 476; Duff v. Budd (1822), 3 B. & B. 177. between him and the owner-render himself liable as a warehouseman (s); and where he retains the goods in his possession, either expressly as a warehouseman, or in respect of his lien for the carriage, he is bound, whilst they are in his possessioneven although he may have given notice to the consignee that he holds the goods as a warehouseman "at owner's sole risk" (t)— to keep them with reasonable care, and to deal with them in a reasonable manner (u); and he is entitled to recover from the owner of the goods all reasonable expenses incurred by him in so doing (x). (g) Who to Sue the Carrier. It is material to remark that, generally speaking, when goods are delivered by the vendor to a carrier, to be forwarded to the vendee, the property in the goods vests immediately in the vendee; and he is, therefore, the proper party to sue the carrier for the loss or non-delivery of the goods, or for any injury done to them; although the carriage may have been paid by the consignor, and the consignee gave no particular directions by whom the goods were to be forwarded to him (y). And where the contract was for goods, to be sent to the vendee on "an insurance being effected, terms three months' credit from the time of arrival; " and the insurance was effected in the name of the vendee it was held that the property in the goods vested in him, immediately they were forwarded and in the course of transit; and that they were then at his risk, so as to entitle him to maintain an action for an injury done to them through the negligence of the shipowner (z). CH. XV. s. 1. Who is to sue the carrier ;consignee. But where, by the contract between the consignor and the Consignor. carrier, the latter agrees to deliver the goods to a particular person at a particular place, this contract supersedes the necessity for showing the ownership of the goods; and the consignor may sue the carrier, although the goods may be the property of the consignee (a). So, where there is a special agreement by the consignor with the carrier, to pay for the carriage of the goods (b); or where the property in the goods has not passed to the vendee, (s) Cairns v. Robins (1841), 8 M. & W. 258; and see Giles v. Taff Vale Rail. Co. (1853), 2 E. & B. 822, Ex. Ch. (t) Mitchell v. Lancashire and Yorkshire Rail. Co. (1875), L. R., 10 Q. B. 256. (u) Crouch v. Great Western Rail. Co. (1858), 3 H. & N. 183, Exch.; Hudson v. Baxendale (1857), 2 id. 575. (x) Great Northern Rail. Co. v. Swaffield (1874), L. R., 9 Ex. 132. (y) Per Lord Alvanley, C.J., Dutton v. Solomonson (1803), 3 B. & P. 582; 7 (z) Fragano v. Long (1825), 4 B. & C. 219. (a) Dunlop v. Lambert (1839), 6 Cl. & F. 600, 627, H. L. (b) Per Lord Kenyon, C.J., and Grose and Le Blanc, JJ., Dawes v. Peck (1799), 8 T. R. 330; 4 R. R. 655; Moore v. Wilson (1787), 1 T. R. 659; 1 R. R. 347. |