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as to the manner in which goods should be carried by them is that which applies equally to land carriers. Being peculiarly liable, however, to incur losses by accidental fires, great care is required of them in so disposing their freight as to avoid, as far as possible, dangers from that source. If negligently exposed to this risk and a loss thereby occurs, the carrier loses all the benefit of special exceptions to his liability in his bill of lading, and becomes responsible, according to the rigid rule of the common law in reference to common carriers. Such was the case of The New J. S. N. Company v. The Merchants' Bank.37 "There was," in the language of the court, "great want of care, which amounted to gross negligence on the part of the respondents, in the stowage of the cotton; especially regarding its exposure to fire from the condition of the covering of the boiler deck and the casing of the steam chimney;" and upon this ground and for other omissions of duty, the company was held liable, notwithstanding an exemption from liability in its contract from losses which would have been otherwise sufficient for its protection.

Sec. 609. Same subject-Damage to goods in discharging cargo. If, in discharging the cargo, the goods are temporarily placed in an unfit place in the vessel where they are likely to be damaged, the vessel will be liable for any resulting injury. Thus a vessel was held liable for the damage done to bags of filberts which, in the course of discharging, were placed so near the coal bunkers of the vessel that dust from the coal blew upon and through the bags.38

Sec. 610. Stowage upon freight cars of railroad companies. -The cases bearing upon the improper stowage of goods upon freight cars of railroad companies are few in number. The duty of loading and unloading freight delivered at its station or warehouse rests primarily upon the railroad, and for its negligence in stowage the railroad company will be liable in damages. But the shipper may by contract either express or implied assume that duty; and if he does so, the railroad com

37. 6 How. 344.

38. The Florida, 64 Fed. 159.

pany will not be liable for the consequences of his own negligence in stowing the goods.39

Sec. 611. (§ 310.) The goods must be carried in the customary mode or according to the directions of the shipper.All common carriers are bound to carry in the mode customary in their business, and usage is of great importance in determining whether the carrier has done his duty in this regard,40 and as we have just seen, it will even justify the master of the vessel in departing from the rule which, in sea voyages, requires a stowage under deck. Where such usage is relied upon, it must, according to the general rule as to usages, be well established; and unless it be so general as to have become a matter of judicial knowledge, it must be proven. Usage, however, may be controlled by the directions of the owner of the goods, and such directions the carrier will disregard at his peril. When he accepts goods to be carried, with a direction on the part of the owner to carry them in a particular way or by a particular route, he is bound to obey such direction, and if he attempts to perform his contract in a manner different from that directed, he becomes an insurer, notwithstanding the exceptions in his contract,41 and even though the loss occurs on a connecting line.42 And if goods are marked in such a way as to indicate

39. Pennsylvania Co. v. Kenwood Bridge Co., 170 Ill. 645, 19 N. E. Rep. 215, reversing 69 Ill. App. 145.

40. Northern Pacific Ry. Co. v. Kempton, C. C. A. 138 Fed. 992; Milroy v. Railroad Co., 98 Iowa 188, 67 N. W. Rep. 276; Shelton v. Merchants D. T. Co., 59 N. Y. 258.

41. Express Company v. Kountze, 8 Wall. 342; Streeter v. Horlock, 1 Bing. 34; Maghee v. R. R. Co., 45 N. Y. 514; Dunseth v. Wade, 2 Scam. 285; Sleat v. Fagg, 5 Barn. & Ald. 342.

In Uptegrove v. Railroad Co., 37 N. Y. Supp. 659, 16 Misc. 14, the goods were not shipped according to instructions and the carrier was held liable as an insurer although the loss occurred on a connecting line and the consignor knew that the carrier had restricted its liability to its own line.

Where, by mistake or otherwise, goods are delivered by the initial carrier to a connecting carrier other than the one designated by the contract, such initial carrier by its wrongful act of diverting the goods from their designated

42. 3 Railroad Co. v. Thomas, 89 route, becomes an insurer of their Ala. 294, 7 So. Rep. 752. safe delivery at destination. Brown

the manner in which the shipper desires them to be carried, or so as to give notice to the carrier that their safety requires that they must be carried in a particular manner, such marks must not be disregarded. Thus where a box containing a glass bottle filled with oil of cloves was delivered to the carrier marked, "Glass-with care this side up," it was held that this was sufficient notice to him of the value and nature of the contents of the box to charge him with the loss of the oil occasioned by his disregarding such direction.43 So in the case of The Star of Hope, 44 where packages of nuts were marked "in cabin stateroom," and were, in disregard of such direction, stowed in the hold of the vessel, and were injured on the voyage in consequence, it was held to have been culpable negligence on the part of the master. On the other hand, it has been said that such a notice does not bind the carrier where it is not called to his attention and is not inserted in the bill of lading.45 And when the carrier receives goods marked to a particular address and destination, it becomes his duty to forward them accordingly, without any further directions from the bailor.46

So where the owner of a horse directed that he should be carried in a close car, but the direction was not obeyed, and the horse, in consequence of being carried upon an open car, was injured by the extreme coldness of the weather, the company was held liable, although the owner had assumed the risk of "all damage that might happen."47 So where directions were

& Haywood Co. v. Railroad Co., 63 Minn. 546, 65 N. W. Rep. 961.

A railroad company which undertakes to carry goods under an entire contract to deliver them at destination has no right, in order to suit its own convenience, to intrust their carriage to another carrier, and if it does so and the goods are injured while in the possession of such carrier, it becomes liable as an insurer for an injury resulting from its unauthorized act. Mere convenience cannot excuse the carrier for a

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given to the carrier to forward the goods from the terminus of his own route by a particular line of boats, and upon tender of the goods to the agent of that line he declined to receive them, on the ground that he was prohibited by law from transporting freight of that description, whereupon the carrier forwarded them by a barge, and they were lost, he was held liable. It was said that, upon the refusal of the steamboat proprietors to receive the property, the carrier should either have communicated the fact to the plaintiff and awaited further instructions, or he should have relieved himself from liability by depositing the goods in a warehouse for safe keeping. "There is a class of cases," says the court, "in which an agent is justified by an unexpected emergency in deviating from his instructions, where the safety of the property requires it. In this instance no such exigency arose. The only inconvenience which would have resulted to the owner from compliance by the carrier with his known wishes would have been mere delay in transmitting the hemp to market, and he had notified the company that he would rather submit to this delay than to the hazard of tow-boat transportation at the close of the season of navigation. The primary duty of the agent is to observe the instructions of his principal, and when he departs from these he must be content with the voluntary risk he assumes.

2748

Sec. 612. Same subject-When carrier not liable.-But the carrier will be justified in deviating from his instructions if, owing to an unexpected emergency, the safety of the goods requires it.49 And if by a breach of the contract of carriage occurring on the stipulated route, it becomes impossible to get the goods to their destination by the stipulated route and within the time contemplated, the fact that the carrier, in order to decrease the sum for which he would be liable, sends the goods forward over another route than that provided for in the contract will not deprive him of the benefit of the exceptions to

48. Johnson v. Railroad Co., 33 Railway Co., 129 Fed. 480; s. c., N. Y. 610. 135 Fed. 135.

49. Empire State Cattle Co. v.

his liability contained in the contract.50 So if the injury to the goods results from the carrier relying upon and following the shipper's directions, the carrier will not be liable.51

Sec. 613. (§ 312.) Carrier's duty to transport by usual route.—It is the duty of the carrier to transport the goods by the usual direct route; and for any loss which a departure from such route may occasion to them, he is liable.52 Where, however, there are two customary routes, and the carrier is left free to choose between them, he may make his choice, without incurring increased liability, if there are no special reasons which make the route chosen unsafe. As where there were two customary or usual routes, one known as the inside or

50. Foster v. Railway Co. (1904) 2 K. B. 306, 73 L. J. K. B. 811.

51. A shipper of vegetables in the month of February during freezing weather, but not an unprecedented cold spell, gave directions to the carrier to leave open a vent in the car. As a result some of the vegetables were frozen. Freezing is not unusual in Texas during the month of February, and the court held it would presume the consignor knew such fact when he directed that the vent be left open, and that he was willing to take the risk of injury from cold weather. Gillett Railway Co., 4 Tex. Ct. Rep. 414, 856, 68 S. W. Rep. 61.

v.

V.

52. Express Co. v. Kountze, 8 Wall. 342; Merchants' Despatch v. Kahn, 76 Ill. 520; Crosby v. Fitch, 12 Conn. 410; Powers v. Davenport, 7 Blackf. 497; Hand Baynes, 4 Whart. 204; Davis v. Garrett, 6 Bing. 716; Smith v. Whitman, 13 Mo. 352; Phillips v. Brigham, 26 Ga. 617; Railroad Co. v. De Witt, 1 Colo. App. 419, 29 Pac. Rep. 524.

that the goods are to be carried from one point to another, prima facie a direct voyage is intended. If the vessel goes first, without necessity or reasonable excuse, into a port which does not belong to the natural or established course of the voyage, this is such a deviation as will authorize the consignor to recover the damages thus sustained in an action against the owner of the ship. Thus

he may recover duties

charged at destination because the goods did not come directly from the port of shipment. Robinson v. Holst, 96 Ga. 19, 23 S. E. Rep. 76.

A clause in a bill of lading that the cargo "is to be shipped wholly at the risk of the shipper, and that the owners assume no responsibility therefor during the voyage," refers to the voyage contemplated by the parties, and to deviations reasonably incident thereto and not to an additional voyage arbitrarily made by the order of the vessel owner. Swift & Co. v. Furness, Withy & Co., 87

Where a bill of lading provides Fed. 345.

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