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Full text of "Negligence of imposed duties, carriers of freight"




QJnrtifU ICam ^rl^ool ffiibratg 



Cornell University Library 
KF 1091.R26N4 



Negligence of imposed duties, carriers o 




3 1924 018 923 866 




Cornell University 
Library 



The original of tliis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018923866 



NEGLIGENCE 



IMPOSED DUTIES, 



CARRIERS OF FREIGHT. 



CHARLES A. EAT, LL. D. 



(Ex-Chief Justice of Indiana Supreme Court. Author of NeoijIQEnce or 

Imfobed Duties, Personal, and Carriers of Passengers, 

AND Contbaotuaij Limitations.) 



EOGHBSTEE, N. Y. 

The Lawtbes' Co-Opbeative Publishing Company. 

1895. 



i n f I n n 



Entered according to Act of Coneresg, in the year eigrhteen hundred and ninety-flTe, by 

THE LAWYERS' CO-OPERATIVE PUBLISHING CO., 

In the Office of the Librarian of Congress, at Washington, D. 0. 



B. B. xncnfflws, fbintsr, Rochester, n. t. 



TABLE or CONTENTS. 



CHAPTEE I.— 1-33. 

I LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 
Sec. 1. Who are Common Carriers. 

a. Express Companies Liable as Common Carriers. 
Sec. 2. Distinction in Liability Between Carriers of Goods and Passenger 

Carriers. 
Sec. 3. Carriers by Rail Must Furnish Suitable Cars. 
Sec. 4. Cars Must be Adapted to their Intended Use. 
See. 5. When Failure to Furnish Cars Excused. 
Sec. 6. Duty of Carrier by Water to Furnish Seaworthy Vessel, etc. 
Sec. 7. Carrier by Water Must Answer for Competency of Officers and Crew. 
Sec. 8. Duty of Carrier of Goods to Inspect Present Condition of Implements 

of Transportation. 
Sec. 9. Discrimination Between Express Companies in Furnishing Facilities. 

CHAPTEE 11.-34^73. 

LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 

Sec. 10. The Common Law Liability of Freight Carriers. 

Sec. 11. Limitation of Liability by Notice. 

Sec. 12. Limitation of Liability in Particular Instances. 

Sec. 13. ' Release of Liability Must Rest upon a Consideration. 

Sec. 14. Denial of Right to Contract against Negligence. 

Sec. 15. Refusal of Federal Courts to Recognize Contracts Releasing Liability 
for Negligence. 

Sec. 16. When Exemption by Contract Permitted, Exemption Must be Clear 
and Explicit. 

Sec. 17. Statutes Limiting Power of Carrier to Contract against its own Neg- 
ligence. 

Sec. 18. Limitation of Amount of Liability by Statute — Act of Congress. 

Sec. 19. Law of Place of Contract of Affreightment. 

CHAPTER III.— 74-89. 

ACCEPTANCE OF GOODS BY CARRIER. 
Sec. 20. Duty of Carrier to Accept Goods. 

Sec. 31. What Constitutes Delivery, Fixing Responsibility of Carrier. 
Sec. 23. Liability of Shippers for Goods of a Dangerous Character. 
Sec. 23. Liability of Shipper of Dangerous Goods to Employe of Carrier. 

CHAPTEE lY.— 90-123. 

BILL OF LADING. 
Sec. 24. Definition of Bill of Lading. 
Sec. 35. Bill of Lading as a Contract and as a Receipt. 
Sec. 26. Fraud or Mistake in Bill of Lading. 
Sec. 27. Bill of Lading Should be Delivered. 



VI TABLE OF CONTENTS. 

Sec. 28. " Contents and Value Unknown "—" Weight Unknown "—" More or 

Less." 

Sec. 39. Assignment of Bill of Lading. 

Sec. 30. " Order" or "Assign " in Bill of Lading. 

Sec. 31. Bill of Lading with Draft Attached. 

Sec. 33. "Charges to be CoUected"— " C. O. D." 

Sec. 33. Usage or Custom as Affecting Carrier's Liability. 

CHAPTER v.— 124-157. 
VALIDITY OF BILL OF LADING— ITS LIMITATIONS OF LIABILITY. 

Sec. 84. Whether Notice or Acceptance of Bill Constitutes Contract. 

Sec. 35. When Acceptance of Bill Concludes Contract. 

Sec. 86. Bill Delivered after Accepting Goods. 

Sec. 87. Limitation Consented to by Agent. 

Sec. 38. Validity of Bill Depends on Reception of Goods by Carrier. 

Sec. 89. Exceptions in Bill Waived by Negligence. 

Sec. 40. EfEect of Exception in Bill. 

CHAPTER VI.— 158-192. 

"ACT OF GOD"— "PERILS OP THE SEA"— "FIRE CLAUSE"— NEG- 
LIGENCE-PRESUMPTIONS. 
Sec. 41. "Act of God," What Constitutes. 

Sec. 42. Inevitable Accident Not Resulting from Natural Causes. 
Sec. 43. "Perils of the Sea;" "Dangers of the River," "of Lakes," "of 

Waters," or " of Navigation." 
Sec. 44. When " Act of God" or other Inevitable Cause No Excuse. 
Sec. 45. "Fire Clause." 

Sec. 46. Statutory Provisions Regarding "Fire Clause." 
Sec. 47. Goods in Transit or Depot — " Fire Clause." 
Sec. 48. Negligence Defeats "Fire Clause." 
Sec. 49. Burden of Proof for Loss Under Exceptions. 

CHAPTER VII.— 193-227. 
FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 
Sec. 50. Charges and Liability Proportioned to Value. 
Sec. 51. Tariff Value and Liability Must be in Reasonable Proportion. 
Sec. 53. Tariff Based on Value, Without Stating Limit of Liability. 
Sec. 53. Fraud or Imposition Respecting Value and Estoppel. 
Sec. 54. Carrier May Recover Where Value of Goods Concealed. 
Sec. 55. When Limit Applies to each Article. 
Sec. 56. Statutory Provisions Respecting Statement of Value. 
Sec. 57. Limiting Time for Commencing Action. 

a. Stipulation Regarding Notice to Consignee. 

CHAPTER VIII.— 228-297. 

TRANSPORTATION OF CATTLE. 
Sec. 68. Duty to Furnish Suitable Cars. 
Sec. 59. Acceptance of Car by Shipper. 
Sec. 60. Duty to Provide Place to Receive and Deliver Stock. 

a. "Texas Fever." 
Sec. 61. Carrier Must not Discriminate between Shippers. 
Sec. 63. Duty to Peepl, Water and Care for Stock. 
Sec. 68. Extraordinary Unloading of Livestock in transitu. 



TABLE OF CONTENTS. vii 

See. 64. Carrier's Responsibility for Livestock. 

Sec. 65. Forwarding by Connecting Line. 

Sec. 66. Damages for Refusal or for Failure to Transport. 

Sec. 67. Delay in Shipment and Delivery of Livestock. 

a. Breach of Contract for Cars. 

b. Damages to Livestock by Delay in Transportation. 

c. Opinions of Expert Witnesses as to Damages. 
Sec. 68. Damages for Negligent Loss of or Injury to Cattle. 

Sec. 89. Liability for Miscarriage and Wrongful Delivery of Livestock. 
Sec. 70. Stipulation for Notice of Injury to Livestock. 

a. Limit of Time for Notice. 

b. Forbidding Removal before Notice. 
Sec. 71. Restricting Liability for Livestock. 
Sec. 73. Contributory Negligence of Shipper. 

CHAPTER IX.— 298-311. 

PACKING AND STOWING GOODS. 

Sec. 73. Duty of Carrier and Shipper— Clean Bill of Lading. 

Sec. 74. Custom Controlling Stowage. 

Sec. 75. Stowage of Goods on Deck. 

Sec. 76. Owner's Knowledge of Improper Stowage — Owner's Risk. 

Sec. 77. Negligence in Stowage and Handling. 

Sec. 78. Jettison. 

CHAPTER X.— 312-319. 

DEVIATION PROM ROUTE. 

Sec. 79. What Constitutes a Deviation. 

Sec. 80. What not a Deviation from Route. 

Sec. 81. Justifiable Deviation from Route. 

Sec, 83. Responsibility of Connecting Carrier for Deviation. 

CHAPTER XI.— 320-347. 

DELAY OF TRANSPORTATION OF GOODS. 

Sec. 83. What will be Considered Delay. 

Sec. 84. InsufiScient Means of Transportation. 

Sec. 85. Delay from Storm or Collision. 

Sec. 86. Delay in Delivering to Connecting Carrier. 

Sec. 87. Duty to Forward Goods in Case of Wreck or Delay. 

Sec. 88. Care of Goods During Delay. 

Sec. 89. Contract to Deliver at Specified Date. 

Sec. 90. Consequences of Delay. 

a. When Caused by Strikers, etc. 

CHAPTER XII.— 348-363. 

NEGLIGENT LOSS OR ILLEGAL CAPTURE OP CARGO. 

Sec. 91. Negligent Navigation — Collision. 

Sec. 93. Recovery for Injury to or Loss of Cargo. 

Sec. 93. Damages for Illegal Capture of Cargo. 

Sec. 94. Carrier may Recover for Loss of Cargo. 



Sec. 


95. 


Sec. 


96. 


Sec. 


97. 


Sec. 


98. 


Sec. 


99. 


Sec. 


100. 



Vm TABLE OF CONTENTS. 

CHAPTEE XIII.— 364^02. 
TRAKSPORTATION BT CARRIER OVER CONNECTING LINES. 
Liability for Goods to be Transported beyond Termination of Line 
Carrier may Restrict Liability to its own Line. 
May Contract for Freight and Transportation beyond its own Lme_ 
Must Deliver Goods to Connecting Carrier. 
Contract for Through Carriage. 
Contract by Agent for Through Carriage. 

CHAPTER XIY.— 403-480. 

LIABILITIES— CHARGES— FACILITIES — CONNECTING CARRIERa 

—COMBINATIONS. 
Sec. 101. Stipulation of Initial Carrier Limiting Liabilities. 
Sec. 103. Freight Charges of Connecting Carrier. 
Sec. 103. Carrier Assuming Joint and Several Liability— Partnership. 
Sec. 104. Facilities Furnished Connecting Carrier. 
Sec. 105. Provisions Enforcing Connections and Forbidding Combinatioiu. 

CHAPTER XV.— 481-603. . 

INTERSTATE AND STATE COMMERCE. 
Sec. 106. Power to Regulate Commerce. 
Sec. 107. State Regulations Affecting Common Carriers. 
Sec. 108. Interstate Commerce Commission — Jurisdiction and Practice. 
Sec. 109. State Railroad Commission. 
Sec. 110. Uniform Classification. 
Sec. 111. Classification of Freight and Rates. 
Sec. 113. Reasonable Rates for Freight. 

CHAPTER XVI.— 604-656. 

COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE. 

Sec. 113. Substantially Similar Circumstances and Conditions. 

Sec. 114. What Circumstances and Conditions Infiuence Rates for Long or 
Short Haul. 

Sec. 115. Competition with Water Carrier; with Foreign Railroads; with Non- 
Interstate Railroads; in "Rare and Peculiar Cases." 

Sec. 116. Long and Short Hauls and Group Rates. 

CHAPTER XVn.— 657-707. 

COMPETITION, DISCRIMINATION AND CONTINUOUS CARRIAGE: 

— CONTrNUBD. 

Sec. 117. Water Transportation a Controlling Factor. 

Sec. 118. Railways Need not Make Through Rates with Water Craft. 

Sec. 119. Through Routes and Through Rates. 

Sec. 130. Combinations between Rival Carriers. 

Sec. 121. Rebate— Contract to Repay the Shipper a Part of the Rate. 

CHAPTER XVm.— 708-785. 

UNJUST DISCRIMINATION. 
Sec. 188. Discrimination by One Carrier against Another. 
Sec. 123. Blanket or Group Rate— Preference Given one Locality over Another. 
Sec. 124. Discrimination between Shippers — Rebate. 



TABLE OF CONTENTS. IX 

CHAPTEK XIX.— Y86-844. 
UNJUST DISCRIMINATION— CoNTrauBD. 
Sec. 125. Carrier, as Shipper, Must not Favor Itself. 

CHAPTER XX.— 845-886. 
FREIGHT CHARGES, AFFREIGHTMENT AND CARRIER'S LIEN. 
Sec. 126. Freight Charges. 
Sec. 137. Contract Rates on Freight. 
Sec. 128. Carrier's Lien for Charges. 
Sec. 129. Sale to Enforce Lien on, from Necessity. 
Sec. 130. Lien of Contract of AfEreightment. 
Sec. 131. Overcharge on Freight — Underbilling. 
Sec. 132. Rate Sheets. 
Sec. 133. Rebate. 

CHAPTER XXI.— 88Y-937. 
DELIVERY OF GOODS. 
Sec. 134. Place of Delivery by Carrier on Land. 
Sec. 135. Time and Manner of Delivery — Custom — Law of Contract. 
Sec. 136. Delivery to Proper Person — Bill of Lading — Draft. 
Sec. 137. Notice to Consignee of Arrival of Goods. 
Sec. 138. Collections by Carrier — Sale of Goods. 
Sec. 139. Delivery to iWrong Person — Conversion. 
Sec. 140. Delivery in 'Bad Condition — Shortage. 
Sec. 141. Failure to Deliver. 
Sec. 142. Statutory Penalties for Non-Delivery. 
Sec. 143. What will Excuse Non-Delivery of Goods. 

CHAPTER XXII.— 938-1003. 
DELIVERY OF GOODS— Contintibd. 
Sec. 144. Delivery by Carrier by Water. 
Sec. 145. Demurrage. 
Sec. 146. When Liable only as Warehouseman. 

CHAPTER XXIII.— 1003-1093. 

ACTION AGAINST CARRIER OF GOODS— INSURANCE— PRESUMP- 
TION— STATUTORY LIMITATION OP LIABILITY. 
Sec. 147. Title in Goods Shipped— Who May Sue for Loss. 
Sec. 148. Insurance on Goods by Carrier. 
Sec. 149. Liability of Carrier of Goods. 

Sec. 150. Presumption from Loss of Goods— Burden of Proof. 
Sec. 151. Damages for Loss, Injury or Delay of Goods. 
Sec. 152. Limitation of Right of Action. 
Sec. 153. Claim of Limit of Liability under Revised Statutes of the United 

States. 
Sec. 154. When the United States Courts Have Jurisdiction. 
Sec. 155. Proceedings against Violators of the Interstate Commerce Act. 



TABLE OF OASES. 



A. 

Aaron v. Adams Exp. Co. 37 Ohio 

L.J. 183 115, 907 

Abbott D. Baltimore & R. Steam 
Packet Co. 1 Md. Ch. 

543 33 

V. Johnstown, G. & K. Horse 
R. Co. 80 N. T. 37, 86 

Am. Rep. 573 440 

V. National SS. Co. 33 Fed. 

Rep. 895- 154, 155 

Aberdeen Commercial Co. v. Great 
North of Scotland R. 
Co. 3 Ry. & Canal Traf- 
fic Gas. 305 836 

Abrams «. Milwaukee, L. S. & W. 

R. Co. 87 Wis. 485-343, 386 
Acatos V. Burns, L. R. 3 Exch. 

Div. 383 866 

Ackley ». Chicago, M. & St. P. R. 

Co. 86 "Wis. 353 409 

Adam D. Hay, 7 N. C. 149 167 

Adams v. Bissell, 38 Barb. 383 ..-1005 
«. Clark, 9 Gush. 215, 57 Am. 

Dec. 41 - 861 

». O'Connor, 100 Mass. 515, 

1 Am. Rep. 137 109 

7>. Royal Mail S. Packet Co. 

5C. B.N. S. 493 399 

v. Scott, 104 Mass. 166 986 

Adams Exp. Co. v. Pendrick, 38 

Ind. 150 _43, 45 

V. Harris, 7 L. R. A. 314, 130 

Ind. 78 

.45, 301, 403, 406, 863, 1013 

V. Havnes, 43 111. 89 146 

». McConnell, 37 Kan. 338. 114 
V. Reagan, 39 Ind. 31, 93 

Am. Dec. 333.. 55, 224, 335 
V. Stettaners, 61 111. 184, 14 

Am. Rep. 57... 48, 308 

V. Williams (Ark.) June 4, 

1890 .- _ 9 

Adella S. Hills, The, 47 Fed. Rep. 

76_ 846, 930, 940 

Adriatic, The, 16 Blatchf. 434 

__ 1030, 1032 

Advertiser & T. Co. v. Detroit, 43 

Mich. 116 118 



Mtna. F. Ins. Co. v. Tyler. 16 
Wend. 385, 30 Am. Dec. 
90 1030 

^tna Ins. Co. v. Wheeler, 49 N. 

Y. 616 391, 400, 405 

Agnew V. Contra Costa, The, 37 

Gal. 435, 87 Am. Dec. 

87 _... 179, 1038 

Ah Pong, Ex parte, 3 Sawy. 145.. 486 
Aigen «. Boston & M. R. Co. 133 

Mass. 423 ._._..... 413, 414 
Aiken v. Chicago, B. & Q. R. Co. 

68 Iowa. 363 84 

Alabama, The, «. DeLa Casas, 92 

U. S. 695, 23 L. ed. 763, 

rev'g 11 Blatchf. 483 .. 357 
Alabama & G. S. R. Co. ■». Thomas, 

89 Ala. 294 257, 317 

Alabama & T. R. Co. ». Kidd, 35 

Ala. 309 966 

Alabama G. S. R. Co. v. Cureton, 

68 Ga. 824 854 

«. Eichofer, 100 Ala. 224... 919 
B. Little, 71 Ala. 611.. 208, 1030 
V. Thomas, 83 Ala. 343.194, 358 
Alabama Nat. Bank «. Mobile &0. 

R. Co. 42 Mo. App. 384 937 
Alair b. Northern Pac. R. Co. 19 

L. R. A. 764, 58 Minn. 

160- _. 197, 199,303,383,286 
Albany, The, 44 Fed. Rep. 431... 868 
Alderman ■». Eastern R. Co. 115 

Mass. 234 902 

Aldridge v. Great Western R. Co. 

15 C. B.N. S. 583 856 

Aleppo, The, 7 Ben. 135. 863 

Alexander v. Greene, 8 Hill, 9, 7 

Hill, 558 4 

Alford ®. Chicago, R. I. & P. R. 

Co. 3 Inters. Com. Rep. 

771 .434, 514 

Alice, The, 13 Fed. Rep. 496 138 

Aline, The, 19 Fed. Rep. 875 .... 953 
Allan V. Gripper, 3 Cromp. & J. 

218, 2Tyrw. 317 889 

v. State SS. Co. 39 N. Y. S. 

R. 388-- 35 

AUday v. Great Western R. Co. 34 

L. J. Q. B. 5, 5 Best. & 

S. 903 44 



XI 



Xll 



TABLE OF CASES. 



Alleged Excessive Freight Rates & 
Charges on Pood Pro- 
ducts, Be, 3 Inters. Com. 

Rep. 9H 525, 577 

Allen V. BrowD, 44 N. Y. 238-.- 1008 
«. Coltart, L. R. 11 Q. B. 

Div. 782 318 

V. Louisville, N. A. & C. R. 
Co. 1 Inters. Com. Rep. 

631.. 409,601 

v. Mercantile Mut. Ills. Co. 
44 N. Y. 437, 4 Am. 

Rep. 700 853 

V. Nevfbeny, 62 U. S. 21 
How. 244, 16 L. ed. 110 

495, 1048 

V. Sackrider, 87 N. Y. 841. 3 
«. Williams, 13 Pick. 297.. 

..109, 901 

Alliance Ins. Co. ■». Morning Light, 
The, 69 U. S. 3 Wall. 

560, 17 L. ed. 864 162 

Allison «. Chandler, 11 Mich. 

542 868 

Alston B. Herring, 11 Exch. 822.. 

298, 301 

Alvah, The, 59 Fed. Rep. 630--.. 241 
Alvord V. Latham, 31 Barb. 294.. 1005 
Amalia, The, 34 L. J. Adm. 21... 357 
Ambach v. Baltimore & O. R. Co. 

30 Ohio L. J. Ill 196 

American Exp. Co. ®. Fletcher, 35 

Ind. 493- 915, 916 

«. Greenhalgh, 80 111. 68 -.. 927 
v. Haire, 31 Ind. 4, 83 Am. 

Dec. 384 32 

o. Hockett, 30 Ind. 250, 95 

Am. Dec. 691- 8 

V. Lesem, 39 III. 313 906 

V. Perkins, 43 111. 458 146 

«. Sands, 55 Pa. 140 

41,51, 194, 199 

0. Second Nat. Bank of Ti- 
tusville, 69 Pa. 894, 8 

Am. Rep. 368 111, 365 

0. Smith, 33 Ohio St. 511, 31 

Am. Rep. 561 -.161, 333, 389 

V. Stack, 29 Ind. 37 8, 915 

American Ins. Co. «. Centre, 4 

Wend. 45 866 

V. Offden, 15 Wend. 533 ... 867 
American Merchants U. Exp. Co. 

e. Wiltsie, 79111. 92... 116 

«. Wolf, 79 111. 430 31, 114 

American Transp. Co. ■». Moore, 5 

Mich. 368 178 

American U. Exp. Co. ■». Robin- 
son, 73 Pa. 374 31 



Ames B. New York U. Ins. Co. 14 

N. Y. 253--- 220, 232- 

Amesbury v. Bowdit<;h Mut. F. 

Ins. Co. 6 Gray, 596 ... 220* 
Amiable Nancy, The, 16 U. S. 3 

Wheat. 546, 4 L. ed. 456 

358,360 

Amies ■a. Stevens, 1 Strange, 128. 

13,17,161, 174, 178 

Anderson «. Clark, 2 Bing. 20 

1005, 1006 

V. Dunn, 19 U. S. 6 Wheat. 

204, 5 L. ed. 243.1084, 1088 
D. Jett, 6 L. R. A. 390, 89 

Ky. 375 - -.- 461 

Andover, The, 8 Blatchf. 303-... 846 
Andrews b. Dietericb, 14 Wend. 31 319' 
V. Kneeland, 6 Cow. 354 

108.894 

Andrews Soap Co. «. Pittsburg, C. 

& St. L. R. Co. 3 Inters. 

Com. Rep. 77 558- 

Angel V. Cunard SS. Co. 55 Fed. 

Rep. 1005 331 

Angle B. Mississippi & M. R. Co. 9 

Iowa, 487 388 

Anglo African Co. v. Lamzed, L. 

R. 1 C. P. 339 301 

Anna Catharine, The, 4 C. Rob. 

Adm. 107... 360 

Anna Catharine, The, 6 C. Rob. 

Adm. 10-.- 363 

Anna Green, The, 1 Gall. 394.359, 360^ 
Anna Maria. The, 15 U. S. 2 Wheat 

327, 4 L. ed. 253.. -858, 363 
Annapolis, W. & B. R. Co., Be, 1 

Inters. Com. Rep. 315. 

91,537 

Annas «. Milwaukee & N. R. Co. 

67 Wis. 46 -1013 

Ann Caroline, The, ®. Wells, 69 U. 

S. 2 WaU.538,17L.ed. 

833 358 

Ansell ». Waterhouse, 3 Chitty, 1, 

6Maule & S. 393. -.It, 14 
Anthony v. Mina. Ins. Co. 1 Abb. 

(U. S.)343-- 166 

Anthony Salt Co. ■». Missouri Pac. 

R. Co. 4 Inters. Com. 

Rep. 33--. .549, 563, 718, 719 
Antonia Johanna, The, 14 U. S. 1 

Wheat. 159, 4 L. ed. 60 859 
Appollon, The, 23 U. S. 9 Wheat. 

363, 6L. ed. Ill - 363 

Arbuckle ®. Thompson, 37 Pa. 

170 --.- 1008 

Archer v. Terre Haute & I. R. Co. 

103111.498 440 



TABLE OF OASES. 



XIU 



.Arctic F. Ins. Co. ». Austin, 54 

Barb. 559 4 

Arend e. Liverpool, N. Y. & P. 

S8. Co. 6 Lans. 457, 64 

Barb. 118 95,148, 1027 

Arkansas & L. R. Co. v. Smitli, 4 

Inters. Com. Rep. 415, 

42 Am. & Eng. R. Cas. 

348 877 

Arklow, The, L. R. 9 App. Cas. 

136 -. 351 

Armory I. Delamirie,l Strange,505 361 
Armour v. Michigan Cent. R. Co. 

65 N. Y. Ill, 22 Am. 

Rep. 603 148 

Armstrong ■». Chicago, M. & St. P. 

R. Co. 53 Minn. 183... 274 
Arnold «. Georgia R. & Bkg. Co. 

50 Ga. 304 874 

«. Illinois Cent. R. Co. 83 

111. 273, 25 Am. Rep. 386 53 
V. National SS. Co. 89 Fed. 

Rep. 184 942 

.Arnot ». Pittsion & B. Coal Co. 68 

N. Y. 558, 23 Am. Rep. 

190 -...437, 694 

A. R. Robinson, The, 57 Fed. Rep. 

657 354 

Arthur «. Cassius, The, 2 Story, 81 

....358, 866,966 

Ashhurner v. Balchen, 7 N. Y. 262 847 
Asher v. Texas, 138 U. S. 129, 33 

L. ed. 368, 3 Inters. 

Com. Rep. 143 485 

Ashley e. Ryan, 153 U. S. 436, 38 

L. ed. 773.... 495 

Ashmole v. Wainwright, 3 Q. B. 

837 14 

Ashmore «. Pennsylvania Steam 

Towing Transp. Co. 28 

N. J. L. 180 4, 146 

Asphodel, The, 53 Fed. Rep. 835. 140 
Assicurazioni Generali o. Bessie 

Morris Co., The [1892] 

2Q. B. 652 333 

Aston «. Heaven, 2 Esp. 533 11 

Astrup «. Lewy, 19 Fed. Rep. 536 

160,866 

Atcheson v. Mallon, 43 N. Y. 147, 

3 Am. Rep. 678 691 

Atchison & N. R. Co. «. Wash- 
burn, 5 Neb. 117 295 

-&.tchison, T. & S. F. R. Co. v. Col- 
lins, 47 Kan. 11 - 277 

«. Denver & N. O. R. Co. 

110 U. S. 667, 28 L. ed. 

291 318 

393," 4127 427"43'lV 668, 709 



Atchison v. Dill, 48 Kan. 210 

130, 135, 387, 292, 406 

«. Roberts, 3 Tex. Civ. App. 

370 931,922 

J). Temple, 13 L. R. A. 363, 

47 Kan. 7 .53, 194,377 

Atkinson v. Maling, 3 T. R. 463 

891, 964 

D. Ritchie, 10 East, 530 338 

Atlanta&W. P. R.Co.,ifo,2Inters. 

Com. Rep. 461 533, 682 

Atlanta & W. P. R. Co. ■». Rags- 
dale, 46 Miss. 458 323 

9. Texas Grate Co. 81 Ga. 

603 343 

Atlantic & P. R. Co. ■». Laird, 58 

Fed. Rep. 760 3, 253 

Atlantic Exp. Co. v. Wilmington 

& W. R. Co. 4 Inters. 

Com. Rep. 284, 18 L. 

R. A. 393, 111 N. C. 463 

11, 536 

Atlantic Ins. Co. ■». Conard, 4 

Wash. C. C. 676 109 

s. Storrow, 1 Edw. Ch. 621, 

5 Paige, 285 1030 

Atlantic Mut. M. Ins. Co. v. Huth, 

L. R. 16 Ch. Div. 474.. 866 
Atlee ». Northwestern U. Packet 

Co. 88 U. S. 21 Wall. 

389, 33L. ed. 619 1047 

Attorney General «. Birmingham 

6 D. J. R. Co. 3 Eng. 
Ry. & Canal Cas. 124.. 610 

«. Niagara Falls Interna- 
tional Bridge Co. 20 
Grant Ch. 34. 440 

Atwood V. Reliance Transp. Co. 9 
Watts, 87, 34 Am. Dec. 
503 813 

Audenried ti. Philadelphia & R. 
R. Co. 68 Pa. 370, 8 Am. 
Rep. 195.. 571, 737, 755, 885 

August, The [1891], Prob. 338.... 175 

Augusto, The, 29 Fed. Rep. 334.. 308 

Austin V. Manchester, S. & L. R. 
Co. 11 Eng. L. & Eq. 
506, 16 Q. B. 600, 15 
Jur. 670. ..41, 96, 231, 1006 
v. New Jersey S. B. Co. 43 
N. Y. 75, 8 Am. Rep. 
663 349 

Australian Steam Nav. Co. b. 

Morse, L. R. 4 P. C. 223 866 

Avinger «. South Carolina R. Co, 

29 S. C. 265 740, 757 

Ayers ». Western R. Corp. 14 

Blatchf. 9 388 



XIV 



TABLE OF CASES. 



Aymar d. Astor, 6 Cow. 266 168 

Ayres e. Chicago & N. W. R. Co. 

71 Wis. 373 ...20, 

228, 229, 254, 367, 760, 1033 
f). Chicago & N. W. R. Co. 
75 "Wis. 215..., 75 



B. 

Babcock ». Lake Shore & M. S. R. 

Co. 49 N. Y. 491, 43 

How. Pr. 317 404-406 

Bacharach «. Chester Freight Line, 

133 Pa. 414.. 864, 968 

Baclthouse o. Bneed, 5 N. C. 173.. 177 
Bagg V. Wilmington, C. & A. R. 

Co. 3 Inters. Com. Rep. 

803, 14 L. R. A. 596, 

109 N. C. 379 324, 921 

Bailey v. Hudson River R. Co. 49 

N. Y. 70.. 90, 111,889 

Baird «. St. Louis, I. M. & S. R. 

Co. 41 Fed. Rep. 592, 

42 Am. & Eng. R. Cas. 

281.. 99 

Baker ». Brinson, 9 Rich. L. 201, 

67 Am. Dec. 548 .1030 

«. Michigan S. & N. I. R. 

Co. 42111. 73 134 

«. Missouri Pac. R. Co. 34 

Mo. App. 98 154 

Baldwin v. Liverpool & G. W. SS. 

Co. 74 N. Y. 125, 30 

Am. Rep. 277. _ 86 

Ball ». Berwind, 29 Fed. Rep. 541 356 
Ballard e. Burgett, Langd. Cas. 

Sales, 730, 40 N. Y. 814 913 
Ballentiue v. Nortli Missouri R. 

Co. 40 Mo. 491, 93 Am. 

Dec. 315 820, 827 

Ballou V. Earle, 14 L. R. A. 433, 

17 R. L441 9, 200,214 

Balsley t. St. Louis, A. & T. H. 

R. Co. 119 111. 68, 59 

Am. Rep. 784 443 

Baltimore, The, 34 Fed. Rep. 660 850 
«. Rowland, 75 U. S. 8 

Wall. 377, 19 L. ed. 463 

60,358,1040 

Baltimore & O. Exp. Co. v. 

Cooper, 66 Miss. 558.9, 224 
Baltimore & O. R. Co. «. Brady, 

33 Md. 838 46, 146 

«. Davis, 20 W. N. C. 504. 928 

B. Green, 25 Md. 72 888 

V. Keedy, 75 Md. 320, 49 

Am. & Eng. R. Cas. 124 173 



Baltimore & O. R. Co, e. Mary- 
land, 88 U. 8. 21 Wall. 
456, 32 L. ed. 678_-494, 495 
■B. Morehead, 5 W. Va. 293.1028 
•B. O'Donnell, 49 Ohio St. 489 

260,273, 

330, 343, 859, 890, 908, 936 
«. Rathbone, 1 W. Va. 87, 

88 Am. Dec. 664... 147, 185 
«. Schumacher, 29 Md. 168, 

96 Am. Dec. 510 866 

V. Skeels, 3 W. Va. 556.45, 185 
v. Sulphur Springs Inde- 
pendent School Dist. 
96 Pa. 65, 42 Am. Rep. 

529 176 

e. Wilkens, 44 Md. 11, 22 

Am. Rep. 26. 95,141 

Baltimore & P. S. R. Co. ». Brown, 

54 Pa. 77 98, 866, 412 

Bancroft's Case, cited in Eenrig v. 

Eggleston, Aleyn, 93.. 169 
Bancroft d. Merchants Dispatch 
Transp. Co. 47 Iowa, 
262, 29 Am. Rep. 482.7, 405 
Bankard o. Baltimore & O. R. Co. 

34Md.l97. 1080 

Bank of Augusta®. Earle, 38 U. S. 
13 Pet. 519, 10 L. ed. 

274 73, 896 

®. New York, L. E. & W. 
R. Co. 106 N. Y. 195, 

60 Am. Rep. 440 

148, 144, 909 

of Kentucky n. Adams Exp. 
Co. 93 U.S. 174, 23 L.ed. 
873.8, 72, 103, 126, 194, 198 
of Rochester b. Jones, 4 N. Y. 

497, 55 Am. Dec. 290.. 107 
of St. Thomas «. Julia Blake, 
The, 107 U. S. 418, 27 

L. ed. 595 866 

Bansemer v. Toledo & W. R. Co. 
25 Ind. 484, 87 Am. 

Dec. 367 888 

Barber e. Brace, 8 Conn. 9, 8 Am. 

Dec. 149.. 94, 303, 306, 311 
Barclay o. Cuculla Y Gana, 8 

Dougl. 389 12, 16, 151 

». Hygena, 1 T. R. 33 151 

Bardwell o. American Exp. Co. 35 

Minn. 344 8,230 

Barker «. Swallow, The, 44 Fed. 

Rep. 771 311 

Barlow v. Lambert, 38 Ala. 704, 65 

Am. Dec. 874 118 

Barnard o. Kellogg, 77 U. S. 10 

Wall. 383, 19 L. ed. 987 803 



TABLE OF OASES. 



XV 



Barnard v. Kobbe, 54 N. T. 516 . . 928 
Barnett o. London & N. W. R. 

Co. 5 Hurlst. & N. 604. 80 
Barney «.Burnsteinbinder,64 Barb. 

218 87 

Barnwell v. Hussy, 1 Mill, Const. 

114 314 

Barracouta, The, 39 Fed. Rep. 388 

309, 1030 

Barrel! «. Mohawk, The ("The Mo- 
hawk") 75 U.S. 8 Wall. 

153, 19 L. ed. 406 

169, 866,872, 941 

Barrett ». Rogers, 7 Mass. 397, 5 

Am. Dec. 45.... 94, 96, 105 
Barron v. Eldfedge, 100 Mass. 455, 

1 Am. Rep. 126.77, 83, 141 
Barter c. Wheeler, 49 N. H. 9, 6 

Am. Rep. 434.-_ 

55, 180, 398, 899. 411, 412 
Bartlett d. Philadelphia, 33 Mo. 

356 966 

V. Pittsburg, C. & St. L. R. 

Co. 94 Ind. 281 

48,46, 263, 846, 1012 

Bartons. Walliford, Comb. 56... 171 
Baasett ». Connecticut River R. 

Co. 145 Mass. 139.... 15, 58 
Bateau. Cunningham, 12 Hun, 31.1005 
v. Pennsylvania R. Co. 2 

Inters. Com. Rep. 715.. 

557, 561, 782 

V. Stanton, 1 Duer, 79.. 109, 927 
Batson v. Donovan, 4 Barn. & Aid. 

31 50, 75 

Baughman v. Louisville, E. & St. 

L. R. Co. 14 Ky. L. 

Rep. 368- 197, 204 

«. Louisville, E. & St. L. R. 

Co. 14 Ky. L. Rep. 775. 280 
Baumbach s. Gulf, C. & S. F. R. 

Co. 4 Tex. Civ. App. 650 343 
Baumvoll Manufacturer Von 

Scheibler v. Gilchrist 

[1891] 3Q. B. 310 104 

Bauserman v. Blunt, 147 U. S. 647, 

37L. ed. 316 1049 

Baxendale v. Bristol & E. R. Co. 1 

Nev. & McN. 203 735 

D. Great Eastern R. Co. 4 Q. 

B, 244, 38 L. J. Q. B. 
137... --..44, 318 

V. Great Western R. Co. 5 

C. B. N. S. 336, 1 Nev. 

& McN. 203... 576, 749, 836 
V. London & S. W. R. Co. 

L. R. lExch. 137 

759,764, 771 



Baxter v. Leland, Abb. Adm. 115. 

13, 94, 163 

V. Rodman, 3 Pick. 435 1008 

Bayles b. Kansas Pac. R. Co. 2 
Inters. Com. Rep. 643, 
5 L. R. A. 480, 13 Colo. 
181--571, 707, 740. 749, 853 

Baylies v. Pettyplace, 7 Mg,83. 

324 338 

Bazia v. Steamship Co., The, 3 

Wall. Jr. 339 1038 

B. C. Terry, The, 30 Fed. Rep. 

711 350 

Beadle ». Kansas City, Ft. S. & 

M. R. Co. 51 Kan. 348. 874 

Real B.Chase, 31 Mich. 490 464 

«. South Devon R. 3 Hurlst. 

&C. 337 46 

Beals s. Allen, 18 Johns. 363, 9 

Am. Dec. 221 394 

Beard «. Illinois Cent. R. Co. 7 L. 
R. A. 280, 79 Iowa, 518 

-- 18, 148, 200, 310 

V. St. Louis, A. & T. H. R. 
Co. 79 Iowa, 527, 43 
Am. & Eng. R. Cas. 509 398 

Beaumont v. Canadian Pac. R. Co. 
5 Mont. L. Rep. (Sup. 
Ct.)355 257, 343, 392 

Beaver v. Pittsburg, C. & St. L. R. 
Co. 3 Inters. Com. Rep. 
564 549 

Beck V. Evans, 16 Bast, 243 213 

BeckwithD. Prisbie, 32 Vt. 559.337, 968 

Behreno v. Great Northern R. Co. 

31 L. J. Exch. 299 204 

Belden v. Davies, 3 Hall, 433 100 

Belfast, The, v. Boon, 74 U. S. 7 
Wall. 634, 19 L. ed. 266 
495, 871, 874 

Belfast Cent. R. Co. ■». Great North- 
ern R. Co, 4 Railway 
Comrs. Rep. 159 687 

Belgenland, The, i>. Jensen, 114 U. 

S. 355, 82 L. ed. 152... 35 

Belger v. Dinsmore, 51 N. Y. 166, 

10 Am. Rep. 575... 203, 215 

Bell «. London, etc. R. Co. 2 Nev. 

&McN. 185.. .733, 735, 771 
■o. Reed, 4 Binn. 127, 5 Am. 
Dec. 398 163, 185 

Bellona, The, 4 Ben. 503 1033 

Bellsdyke Coal Co. v. North Brit- 
ish R. Co. 3 Nev. & 
McN. 39..576,594, 735, 749 

Bennett v. American Exp. Co. 13 
L. R. A. 33, 83 Me. 236 
83, 935 



.XVI 



TABLE OF OASES. 



Bennett v. Bryam, 38 Miss. 17, 75 

Am. Dec. 90 320, 321 

V. Dutton, 10 N. H. 486 

11,84, 760 

«. Northern Pac. Exp. Co. 

12 Or. 49 7, 224 

Bennitts. Missouri Pac. R. Co. 46 

Mo. App. 656 396 

Benson, Mc parte, 18 S. C. 38, 44 

Am. Rep. 564 

571,734, 740, 744 

V. Gray, 13 L. R. A. 262, 154 

Mass. 391 122, 265 

Berg a. Narragansett SS. Co. 5 

Daly, 394 896 

Bergenseren, The, 36 Fed. Rep. 

700 - 169, 833 

Berger v. Dinsmore, 51 N. Y. 166, 

10 Am. Rep. 575 . . . .202, 203 
Berkley v. Watling, 7 Ad. & El. 29,1006 
Berkshire, The, 59 Fed. Rep. 1007 63 
Berkshire Woolen Co. ■». Proctor, 

7Cush. 422 903 

Bermuda, The, 29 Fed. Rep. 399. 

.213. 217, 218 

Bernstein v. Baxendale, 6 C. B. N. 

S. 251 318 

Bernstine «. Union Exp. Co. 40 

Ohio St. 451 7 

Berry ®. Cooper, 28 Ga. 543 

43, 188, 1030 

Bethea v. Northeastern R. Co. 26 

S. C. 91 392, 1013 

Bickford s. Metropolitan S8. Co. 

109 Mass. 151 906 

Biddle v. Bond, 6 Best. & S. 225.. 927 
Bigbee & W. R. Packet Co. v. Mo- 
bile & O. R. Co. 4 Inters. 

Com. Rep. 829, 60 Fed. 

Rep. 545 732 

Bills. Smith, 39 Conn. 206 .. 348 

Bills v. New York Cent. R. Co. 84 

N. Y. 5 160, 244,247 

Binford v. Johnston, 82 Ind. 426, 

42 Am. Rep. 508 87 

Bird V. Astcock, 2 Bulst. 280 169 

V. Cromwell, 1 Mo. 81, 13 

Am. Dec. 470 833, 337 

Bird of Paradise, The, n. Heyne- 

man, 72 U. S. 5 Wall. 
555, 18 L. ed. 664-.. 95, 868 
Birney «. Wabash, St. L. & P. R. 

Co. 20 Mo. App. 470... 260 
Bishop V. Shepherd, 23 Pick. 492.1008 

Bissel V. Price, 16 111. 408 105 

^Bissell «. New York Cent. R. Co. 
25 N. Y. 442, 82 Am. 
Dec. 369 258 



Bixby V. Deemar, 54 Fed. Rep. 718 

174,330,333,345 

Black V. Baxendale, 1 Exch. 410.. 

147 968 
V. Chicago," B. & Q. R. Co.' 

30 Neb. 197 

15, 160, 161. 175, 253 

9. Goodrich, 55 Wis. 319,42 

Am. Rep. 713.-127, 200, 201 
®. Southern Pac. R. Co. 39 
Fed. Rep. 565 ...1042, 1049 
Blackett v. Royal Exch. Assur. Co. 

2 Cromp. & J. 250 304 

Blackstock v. New York & B. R. 
Co. 20 N. Y. 48, 75 Am. 

Dec. 372 ....262. 347 

Blaikie o. Stembridge, 5 Jur. N. S. 

1138 302 

Blaisdell v. Connecticut River B. 

Co. 145 Mass. 132.... 15, 58 
Blake v. Winona & St. P. R. Co. 
19 Minn. 418, 18 Am. 

Rep. 845 518 

Blakeley «. LaDuc, 19 Minn. 

187 81 

Blanchard v. Isaacs, 3 Barb. 

388 80 

s. Martha Washington, The, 

1 Cliff. 473 486 

V. Page, 8 Gray, 281 

....90, 110,889,1007, 1008 
V. Western U. Teleg. Co. 60 

N. Y. 510 1032 

Bland v. Southern Exp. Co. 1 

Hughes, 345... 32 

Blane v. Proudflt, 3 Call, 207, 3 

Am. Dec. 546 108. 394 

Bliven «. Hudson River R Co. 35 
Barb. 191, aff'd.. 36 N. 

Y. 408 ...929, 935,987 

Block V. Fitchburg R. Co. 139 

Mass. 308 412,414 

Blodgett V. Abbott. 72 Wis. 516.. 340 
Blossom t). Dodd, 43 N. Y. 264, 3 

Am. Rep. 701 219 

«. Griffin, 13 N. Y. 569, 67 

Am. Dec. 75 84 

V. Smith, 3 Blatchf. 316.-.- 891 
Blower e. Great Western R. Co. L. 

R. 7 C. P. 655 15,254 

Blumenthal v. Brainerd, 38 Vt. 
402, 91 Am. Dec. 350.. 

124, 185,920 

Blythe v. Denver & R. G. R. Co. 
11 L.R. A. 615, ]5Colo. 

833.... 161,180, 186 

Boardman o. Spooner, 13 Allen, 

853, 90 Am. Dec. 196.- 122 



TABLE OF OASES. 



XVU 



Board of Trade of Chattanooga ». 

East Tennessee, V. & G-. 

R. Co. 4 Inters. Com. 

Rep. 213 ..-.598,719 

of Chicago v. Chicago & A. 

R. Co. 3 Inters, Com. 

Rep. 233 724 

of Troy v. Alabama Midland 

R. Co. 4 Inters. Com. 

Rep. 848 

535, 683, 685, 687, 715 

Boards of Trade Union «. Chicago, 

M. & St. P. R. Co. 1 

Inters. Com. Rep. 608. 

572, 710 

Boatmen's Sav. Bank v. Western 

& A. B. Co. 81 Ga. 221 114 
Boaz V. Central R. & Bkg. Co. 87 

Ga. 463 242, 1006 

Bodley v. Reynolds, 8 Q. B. 779.. 968 
Boedefeld «. Reed, 55 Cal. 299 ... 489 
Boehl ». Chicago, M. & St. P. R. 

Co. 44 Minn. 191, 45 

Am. & Eng. R. Cas. 351 

...50, 52, 194. 253, 254, 279 
Bogg V. Wilmington, C. & A. R. 

Co. 14 L. R. A. 596, 109 

N. C. 279 488 

Bohannan ». Hammond, 42 Cal. 

227 11 35 

Bohemia, The.'sS FeA Rep" 756". .156 
Boies «. Hartford & K. H. R. Co. 

37 Conn. 272 188 

Bonanno v. Boskenna Bay, The, 36 

Fed. Rep. 697 227 

Boner v. Merchants SS. Co. 1 Jones, 

L. 211. 320,321 

Bonner v. Blum (Tex. Civ. App.) 

Jan. 25, 1894_ 36 

Bonsteel «. Vanderbilt, 21 Barb. 26 339 
Boorman v. American Exp. Co. 31 

Wis. 154 200,202, 231 

Bork«. Norton, 2 McLean, 422.. 873 
Borries «. Hutchinson, 34 L. J. C. 

P. 169_ 379 

Boscowitz V. Adams Exp. Co. 98 

III. 523, 34 Am. Rep. 

191.. ..7, 18, 130. 213, 1012 
Boskenna Bay, The, 23 Fed. Rep. 

662 952 

Boston, The, 1 Low. Dec. 464 944 

Boston V. Crowley, 88 Fed. Rep. 

202 1049 

Boston & A. R. Co. «. Boston & 

L. R. Co. 1 Inters. Com. 

Rep. 571 531, 

533, 647, 648, 651, 653 

«. Shanly, 107 Mass. 568... 89 

2 



Boston & M. R. Co. B.York County 

Comrs. 79 Me. 386 .... 531 
Boston, C..& M. R. Co. d. State, 

32 N. H. 215 _1090 

Boston Chamber of Commerce v. 

Lake Shore & M. S. R. 

Co. 1 Inters. Com. Rep. 

754 ..572, 

573, 598, 699, 730, 734 

Boston Fruit & P. Exch. v. New 

York & N. E. R. Co. 3 

Inters. Com. Rep. 493. 

397, 681 

Bostwick ». Baltimore & O. R. Co. 

45 N. Y. 712., 94, 

128, 134, 147 

V. Baltimore & O. R. Co. 55 

Barb. 137 129, 151, 316 

Botsford V. Plummer, 67 Mich. 264 327 
Bowen ii. Matheson, 14 Allen, 499 462 
V. Stoddard, 10 Met. 381... 117 
Bowering v. Thebaud, 56 Fed. Rep. 

520 - 22 

Bowman v. Chicago & N. W. R. 

Co. 135 IT. S. 465, 31 L. 

ed. 700, 1 Inters. Com. 

Rep. 833 83, 485, 

486, 488, 497, 503, 510, 537 
«. Teall, 23 Wend. 306, 35 

Am. Dec. 563 161, 

320-322, 327, 926 

Boyce v. Anderson, 37 U. S. 3 Pet. 

150, 7 L. ed. 379 936 

Boyd V. Dubois, 3 Campb. 133-.. . 253 
V. Moses, 74 U. S. 7 Wall. 

316, 19 L. ed.l93.--85, 305 
V. United States, 116 U. S. 

616, 89 L. ed. 746 1078 

Boylan v. Hot Springs R. Co. 133 

U. S. 146, 33 L. ed. 390.1006 
Boyle V. McLaughlin, 4 Har. & J. 

291 36 

Bradford ®. Cun"ard "sS.""Co""i47 

Mass. 58 202 

«. South Carolina R. Co. 7 

Rich. L. 201, 62 Am. 

Dec. 411 -. 413 

Bradley v. Dunipace, 1 Hurlst. & 

C. 531 95 

Bradley Fertilizer Co. v. Edwin I. 

Morrison, The, 153 U. 

S. 199, 38 L. ed. 688.33, 

173, 190 

Bradstreet v, Heran, Abb. Adm. 

309 96 

Brady «. Pennsylvania R. Co. 2 

Inters. Com. Rep. 78-. 

.603, 683, 719, 730 



xvm 



TABLE OF CASES. 



Braithwaite v. Power, 1 N. D. 455 

413, 853, 873 

Branch v. Wilmington & W. R. 

Co. 88 N. C. 573 1012 

Brands. Lisley, Yelv. 161.. 109 

Brandt v. Bowlby, 3 Barn. & Ad. 

933 90, 1004 

Branley i>. Southeastern R. Co. 12 

C. B. N. S. 63 759 

Brantford City, The, 29 Fed. Rep. 

373. 68, 73 

Brasher v. Denver & R. G. R. Co. 

13 Colo. 384 899, 914 

Brass v. Maitland, 6 El. & BI. 482 

85,86, 89 

V. North Dakota. 158 TJ. 8. 

391, 38 L. ed. 757 498 

Breese ». United States Teleg. Co. 

48 N. Y. 133, 8 Am. 

Rep. 526.- 96, 330 

Brehme i>. Adams Exp. Co. 25 Md. 

828 .300, 213 

Brennan v. Tracy, 3 Mo. App. 

540 -_ 1090 

Bretherton ». Wood, 3 Brod. & B. 

54 14 

Briddon v. Great Northern R. Co. 

28 L. J. Exch. 51.. 320, 

-321, 337,381 

Briggs V. Boston & L. R. Co. 6 

Allen, 346, 83 Am. Dec. 

636...... 319, 860, 863, 865 

V. New York Cent. R. Co. 

38 Barb. 515 919, 1036 

Brinckcrhoil v. Brown. 7 Johns. 

Ch. 317. ■ 473 

Brind v. Dale, 8 Car. & P. 307.76, 141 
Brinkman, Be, 7 Nat. Bankr. Reg. 

435 483 

Brintnall v. Saratoga & W. R. Co. 

33 Vt. 665. -366, 388 

Bristol, The, 39 Fed. Rep. 867.-. 

61, 356, 1040 

Bristol &B. R. Co. ®. Collins, 39 L. 

J. Exch. 41, 5 Hurlst. 

& N. 969, 7 H. L. Cas. 

194 364, 399,403, 404 

Bristol & West of England Bank 

V. Midland R. Co. L. R. 

2 Q. B. Div. 653 112 

British Consul, The, ». Thompson, 

Bee 144 859 

British* F. M. Ins". ' Co.' «. Guff, 

C. & S. F. R. Co. 63 

Tex. 475, 51 Am. Rep. 

661 1013 

V. Southern Pac. R. Co. 55 

Fed. Rep. 83 410 



Brittan v. Barnaby, 63 U. S. 31 
How. 537, 16 L. ed. 177 

.95,118, 

845, 847, 857, 939, 964, 966 
Brittannic, The, 39 Fed. Rep. 895 156 
Broadnax v. Cheraw & S. R. Co. 

1 Pa. Dist. Rep. 351... 22 
Broadwell o. Butler, 6 McLean, 
396, 1 Newb. Adm. 171 

320, 939 

Brooklyn City & N. R. Co. «. Na- 
tional Bank of the Re- 
public, 103 U. S. 14, 86 

L. ed. 61 53, 895 

Brooklyn Crosstown R. Co. a. 
Brooklyn City R. Co. 

51 Hun, 600 434 

Brooks V. American Exp. Co. 14 

Hun, 364. 116 

«. Martin, 69 U. 8. 2 Wall. 
70, 17 L. ed. 732 703 

z>. New York, L. E. & W. 
R. Co. 108 Pa. 539, 56 
Am. Rep. 235.143, 893, 894 

V. Oriental Ins. Co. 7 Pick. 

359 304 

Brouncker «. Scott, 4 Taunt. 1... 970 
Brousseau e. Hudson, The, 11 La. 

Ann. 437 179 

Brower b. Peabody, 13 N. Y. 121 

108, 109 

«. Water Witch, The, 19 

How. Pr. 241 871 

Brown, Be, 3 Nat. Bankr. Reg. 250 482 

V. Adams Exp. Co. 15 W. 
Va. 813 136,188,1030 

«. Blunt, 73 Me. 415 101 ' 

V. Camden & A. R. Co. 83 

Pa. 316 86, 893, 894 » 

s. Clayton, 13 Ga. 564 918 

V. Combs, 68 N. Y. 598.... 1005 

V. Cunard SS. Co. 147 Mass. 
58 -. 318 

V. Hodgson, 3 Campb. 36.. 1003 

V. Houston, 114 U. S. 632, 1 

29 L. ed. 257..487, 497, 850 

0. Louisville & N. R. Co. 86 

111. App. 140 136, 183 • 

V. Manchester, S. & L. R. 
Co. L. R. 10 Q. B. Div. 
350, L. R. 8 App. Cas. 
703 43, 44 i 

V. Maryland, 25 U. S. 13 
Wheat. 419, 6 L. ed. 678 
1070 

V. Powell Duffryn Steam * 

Coal Co. L. R. 10 C. P. 
562. 138 



TABLE OF CASES. 



XJLX 



Brown v. Roger Williams Ins. Co. 

5R. I. 394 322 

D. Roger Williams Ins. Co. 
7R. I. 301 220 

V. Rounsavell, 78 111. 589... 465 
«. Savannah Mut. Ins. Co. 

24 Ga. 97 220 

«. Wabash, St. L. & P. R. 
Co. 18 Mo. App. 568-- 

- 203, 203 

Brownell v. Columbus & C. M. R. 
Co. 4 Inters. Com. Rep. 

285- 524, 

534, 549, 554, 561, 593, 778 
Browning e. Goodrich Transp. Co. 
lOL. R. A.415,78Wi8. 
391 --..406, 1028, 1030, 1033 
15 B. Magill, 2 Har. & J. 308. - 859 
Bruce v. Wait, 3 Mees. & W. 15,-1005 
[Brundred v. Rice, 49 Ohio St. 640. 762 
Bryans b. Nix, 4 Mees. & W. 902- -1005 
,Bryantffl. Com. Ins. Co. 6 Pick. 131 333 
V. Southwestern R. Co. 68 

Ga. 805 339,241 

iBucbanan v. Northern Pac. R. Co. 
i 3 Inters. Com. Rep. 655 598 

Bucher v. Cheshire R.Co. 135 U. S. 

8 555, 31 L. ed. 795 53 

BucUand «. Adams Exp. Co. 97 
Mass. 134, 93 Am. Dec. 

68 7, 82, 396, 913, 914 

jBuckfastleigh, T. & S. D. R. Co. 
': V. South Devon R. Co. 

INev. &McN. 321.... 411 
iBucklin v. Reals, 38 Vt. 653.--... 909 
iBuckman s. Levi, 3 Campb. 414.- 

_-- 76,141 

iBudd «. London & N. W. R. Co. 

36 L. T. N. S. 802, 25 

Week. Rep. 753-. -613, 770 

v. New York, 143 U. S. 517, 

86 L. ed. 247, 4 Inters. 

i Com. Rep. 45 498 

Jnddy «. Wabash, St. L. & P. R. 
Co. 20 Mo. App. 306- 

-- 841, 904 

Mgett V. Binnington [1891] 1 Q. 

r B. 35 339 

Sufflngton «. Curtis, 15 Mass. 527, 

8 Am. Dec. 115 109 

jtulkley «. Naumkeag Steam Cot- 
ton Co. 65 U. S. 34 How. 

386, 16 L. ed. 599 

f' 81, 179, 847 

luUard v. Northern Pac. R. Co. 3 
Inters. Com. Rep. 576, 
11 L. R. A. 346, 10 
Mont. 168 836, 851,886 



Buller v. Fisher, 3 Esp. 67 164 

Bullock «. Babcock, 3 Wend. 391- 178 
Bunts V. Cole, 7 Blackf. 265, 41 

Am. Dec. 226- 691 

Burditt B. Hunt, 25 Me. 419, 43 

Am. Dec. 289--- 910 

Burgess «. Seligman, 107 U. S. 30, 

37 L. ed. 359 53, 895 

Burke «. South Eastern R. Co. L. 

R. 6C. P. Div. 1 215 

Burlington, C. R. & N. R. Co. ®. 

Dey, 12 L. R. A. 436, 

82 Iowa, 312- -426, 521, 602 
«. Northwestern Fuel Co. 31 

Fed. Rep. 653- -749, 753, 778 
Burroughs i>. Grand Trunk R. Co. 

67 Mich. 851 126 

V. Norwich & W. R. Co. 100 

Mass. 36, 1 Am. Rep. 78 

..- -365, 402,414 

Burtis V. Buffalo & S. L. R. Co. 24 

N. Y. 269--_ 394 

Burton v. English, L. R. 3 Q. B. 

Div. 318 127 

«. Wilkinson, 18 Vt. 186, 46 

Am. Dec. 145 935 

Burton Stock Car Co. «. Chicago, 

B. & Q. R. Co. 1 Inters. 

Com. Rep. 339.-430,576,594 
Bush «. St. Louis, K. C. & N. R. 

Co. 3 Mo. App. 63- -915, 936 
Bushel ». Wheeler, 15 Q. B. 443- --889 
Business Mens' Asso. v. Chicago & 

N. W. R. Co. 2 Inters. 

Com. Rep. 48 533, 590 

e. Chicago, St. P. M. & O. 

R. Co. 3 Inters. Com. 

Rep. 41 --.578, 590, 

592, 597, 683, 662, 664, 684 
Bussey «. Mississippi Valley 

Transp. Co. 34 La. Ann. 

165, 13 Am. Rep. 120- . 4 
Butler «. Arrow, The, Newb. 59- - 95 
V. Boston & S. SS. Co. 130 

U. S. 537, 32 L. ed. 1017 

60,63 

c. Fisher, 3 Esp. 67 156 

■5. Heane, 2 Campb. 415---- 127 
«. Murray, 80 N. Y. 88, 86 

Am. Dec. 355 866 



C. 

0. Accame, The, 20 Fed. Rep. 642 

1047 

Caflero ». Welsh, 8 Phila. 130---. 94 
Caldwell v. Ball, 1 T. R. 205 109 



XX 



TABLE OF CASES. 



Caldwell v. New Jersey S. B.Co. 56 

Barb. 435 169 

V. New Jersey 8. B. Co. 47 

N. Y. 283 1033 

Caledonia, The, 43 Fed. Rep. 681 

31, 156, 190,344 

California v. Central Pac, R. Co. 

127 U. S. 1, 32 L. ed. 

150, 3 Inters. Com. Rep. 

153 488, 493 

Callender v. Insurance Co. of N. A. 

SBinn. 535 873 

Calvin ®. Newberry, 6 Bligh. N. S. 

189 26 

Camblos i>. Philadelphia & R. R. 

Co. QPhila. 411 593 

Cambridge o. Anderton, 3 Barn. & 

C. 693 867 

Camden & A. R. Co. v. Baldauf, 

16 Pa. 67, 55 Am. Dec. 

481 41.43, 137 

V. Forsyth, 61 Pa. 81 

184, 316, 393,400 

V. Megs Landing & E. H. C. 

R. Co. 48 N. J. L. 28.. 433 
Camden & A. R. & Transp. Co. v. 

Belknap, 31 Wend. 354 84 
». Brady, 66 U. S. 1 Black, 

62, 17L.ed. 84 349 

Cameron v. Rich, 4 Strobh. L. 168, 

53 Am. Dec. 670.. 1038, 1033 
Cammell «. Sewell, 3 Hurlst & N. 

617 866 

Camp «. Hartford & N. 7. S. B. 

Co. 43 Conn. 333 

50, 54, 1006 

Campbell v. Chicago, Bf. & St. P. 

R. Co. 17 L. R. A. 443, 

4 Inters. Com. Rep. 203, 

86 Iowa, 587 537,538 

». Marietta & C. R. Co. 33 

Ohio St. 168 591, 853 

•B. Morse, 1 Harp. L. 468... 

13, 159, 174, 176, 317 

Canada G. T. R. Co. «. Stevens, 95 

U. S. 655, 34 L. ed. 635 72 
Canada Southern R. Co. «. Inter- 
national Bridge Co. L. 

R. 8 App. Cas. 733.... 677 
Candee v. Pennsylvania R. Co. 21 

Wis. 583, 94 Am. Dec. 

566 396 

Canfleld v. Baltimore & 0. R. Co. 

93 N. Y. 533, 45 Am. 

Rep. 368...53, 56, 147, 1030 
Canlsteo, The, 47 Fed. Rep. 908.. 365 
Canuan v. Meaburn, 1 Bing. 343.. 

866,867 



Cannon v. Jackson, 40 Ark. 417.. 101 
V. New Orleans, 87 U. 8. 20 
Wall. 577, 33 L. ed. 417 496 

Cantu D. Bennett, 39 Tex. 303.893, 894 

Cantwell o. Paciflc Exp. Co. 58' 

Ark. 487... 323 

Capehart v. Louisville & N. R. Co. 
3 Inters. Com. Rep. 378 
..424,670,671,677,680,877 
«. Seaboard & R. R. Co. 81 
N. C. 438.... 224 

Card V. Hine. 39 Fed. Rep. 818.260, 330 

Cardwell v. American River Bridge 
Co. 113 U. 8. 205, 38 L. 
ed. 959.. 496 

Carew s. Rutherford, 106 Mass. 1, 

8 Am. Rep. 297 462 

Carl Gustaf, The, 53 Fed. Rep. 846 354 

Carlotta, The, 9 Ben. 6 158 

Carolina, The, 30 Fed. Rep. 199.. 871 

Caroline Miller, The, 53 Fed. Rep. 

136 139 

Carpenter v. Providence Washing- 
ton Ins. Co. 41 U. S.- 16 
Pet. 495, 10 L. ed. 1044 53 

Carr v. Lancashire & Y. R. Co. 7 

Exeh. 711 755 

«. Schafer, 15 Colo. 48.. 16, 340 

Carriage of Persons Free or at Re- 
duced Rates, Be, 3 
Inters. Com. Rep. 717_. 534 

Carrier v. Chicago, R. I. & P. R. 
Co. 6 L. R. A. 799, 79 

Iowa, 80 878 

V. Concord R. Corp. 48 N. J 
* H.331 433 

Carroll v. Missouri Pac. R. Co. 88 

Mo.339,57 Am.Rep.382.1013 
«). Southern Exp. Co. 37 S. 

C. 453 9 

V. Walton & W. Co. 48 Fed. 
Rep. 133 87 

Carstairs v. Mechanics & T. Ins. i 
Co. 18 Fed. Rep. 473- 
1012,1011 

Carter v. Humboldt F. Ins. Co. 12 

Iowa, 387 3»1 

«. Peck, 4 Sneed, 303, 67 Am. 
Dec. 604 75, sea 

Cartwright's Case, 114 Mass. 330.. 108! 

Casco, The, 4 Law Rep. 471 M 

Casco, The, 3 Ware, 188 871 

Cass «. Boston & L. R. Co. 14 

Allen, 448 881 

Caterham R. Co. e. London, B. & 

S. C. R. Co. 1 C. B. N, ' i 
S. 410, 1 Nev. & MoN. „ 
83 7" 



TABLE OF CASES. 



XXI 



Catharine, The, ». Dickinson, 58 

U. 8. 17 How. 170, 15 

L. ed. 233 859 

□alley v. Wintringham, Pealie, 150 893 
□axon V. Great Western R. Co. 29 

L.J. Exch. 165 399 

Cayuga, The, «. Hobolien Land & 

Imp. Co. 81 U. 8. 14 

"Wall. 270, 20 L. ed. 828 

60, 1040 

Caze D. Baltimore Ins. Co. 11 U. 

S. 7 Cranch, 359, 3 L. 

ed. 370 873 

0. E. Conrad, The, 57 Fed. Rep. 

^ 256 - 326 

Central & M. R. Co. c. Morris, 68 

Tex. 49 847 

Central Ohio Salt Co. v. Guthrie, 

35 Ohio 8t. 666 461 

Central R. & Bkg. Co. ■». Avant, 

80 Ga. 195 392 

e. Georgia Fruit & V. Bxch. 

(Ga.) 55 Am. & Eng. R. 

Cas. 606 347 

V. Hasselkua, 91 Ga. 382... 

129, 226,398 

«. Hines, 19 Ga. 203 35 

«. Lampley, 76 Ala. 357, 52 

Am. Rep. 334 2, 74 

1). 8tate, 54Ga. 401 431 

Central R. Co. v. Collins, 40 Ga. 

582 .431,442, 462, 690 

V. Dwight Mfg. Co. 75 Ga. 

609. 134 

Central Trust Co. v. Ohio Cent. R. 

Co. 23 Fed. Rep. 306, 

23 Am. & Eng. R. Cas. 

666 699, 703 

V. Wabash, St. L. & P. R. 

Co. '81 Fed. Rep. 441.. 159 
V. Wabash, St. L. & P. R. 

Co. 38 Fed. Rep. 561.. 602 
Central Vermont R. Co. ». Soper, 

59 Fed. Rep. 879 1039 

Centurion, The, 57 Fed. Rep. 412. 

307, 309 

Ceres, The, 7 W. N. C. 576 1047 

Chaffee «. Mississippi & T. R. Co. 

59 Miss. 182- 889 

Chamber of Commerce of Minne- 
apolis V. Great Northern 

R. Co. 4 Inters. Com. 

Rep. 230 717,720 

Chamberlain ». Ward, 62 U. 8. 21 

How. 548, 16 L. ed. 211 34 
®. Western Transp. Co. 45 

Barb. 218 187 

Chambers v. Grantzon, 7 Bosw. 414 867 



Champion v. Bostwick, 18 Wend. 

175, 31 Am. Dec. 376.. 413 
Champneys v. Peck, 1 Stark. 404. 954 
Chandler v. Belden, 18 Johns. 157, 

9 Am. Dec. 193 109 

«. Sprague, 5 Met. 306, 88 

Am. Dec. 404 93, 1004 

Chapin v. Chicago, M. & St. P. R. 

Co. 79 Iowa, 582 161 

Chaplin v. Rogers, 1 East, 192.891, 964 
Chapman v. Chicago & N. W. R. 

Co. 26 Wis. 295, 7 Am. 

Rep. 81 -. 357 

B. Great Western R. Co. 42 

L. T.N. 8. 252 906 

V. New Orleans, J. & G. N. 

R. Co. 21 La. Ann. 224, 

99 Am. Dec. 722 1028 

Charles J. Willard, The, 38 Fed. 

Rep. 759 23, 187, 1028 

Charles Runyon, The, 46 Fed. 

Rep. 813 333 

Charleston & C. 8. B. Co. v. Bason, 

1 Harp. L. 262 159, 174 

Chartered Mercantile Bank of 

India v. Netherlands I. 

S. Nav. Co. L. R. 9 Q. 

B. Div. 118, L. R. 10 Q. 

B. Div. 521 66, 349 

Chasca, The, 23 Fed. Rep. 156.... 168 
Chase v. Washburn, 1 Ohio St. 244, 

59 Am. Dec. 628 84 

Cheboygan Lumber Co. i). Delta 

Transp. Co. 100 Mich. 

16 63 

Cheeseman «. Exall, 6 Exch. 341. 927 
Cherokee Nation v. Southern Kan- 
sas R. Co. 135U. 8. 641, 

34 L. ed. 295 489, 1074 

Cheshire, The, 2 Sprague, 28 871 

Chester Nat. Bank v. Atlanta & C. 

A. L. R. Co. 25 8. C. 

216 898 

Chevallier «. Straham, 2 Tex. 115, 

47 Am. Dec. 639 178 

Cheviot®. Brooks, 1 Johns. 367.. 888 
Chicago 4). Robbins, 67 TJ. 8. 3 

Black, 418, 17 L. ed. 

298 895 

Chicago, etc. R. Co. v. Atty. 

Gen. 9 West Jur. 347.. 439 
Chicago & A. R. Co. e. Erickson, 

91 111. 613, 33 Am. Rep. 

70 746 

V. People, 67 111. 11, 16 Am. 

Rep. 599 -.. 

..27, 576, 594, 599, 735, 

749, 755, 756, 761, 762, 764 



XXll 



TABLE OF OASES. 



Chicago & A. R. Co. v. Sufifern, 
27 III. App. 404, afE'd. 

in 129 111.274. .. 

..16, 423, 432, 710 

Chicago & E. I. B. Co. v. Eatzen- 

bach, llSInd. 174 .... 287 
Chicago & G. T. R. Co. v. Well- 
man, 143 U. S. 839, 36 

L. ed. 176 521 

Chicago & I. Coal R. Co. v. De 

Baum, 2 Ind. App. 281 237 
Chicago & N. W. R. Co. «. Becker, 

33 111. App. 290 856 

V. Chapman, 8 L. R. A. 508, 
138 111.96 .50, 53, 305 

V. Day, 3 Inters. Com. Rep. 
325, 1 L. R. A. 744, 35 
Fed. Rep. 866.537, 540, 541 

•9. Fuller, 84 U. 8. 17 Wall. 
560, 31 L. ed. 710 484 

■e. Merrill, 48 111. 425 116 

■B. Monlfort, 60 111. 175 128 

«. Northern Line Packet Co. 
70111.218 399, 400 

v. Osborne, 4 Inters. Com. 
Rep. 257, 10 U. S. App. 
430, 53 Am. & Eng. R. 
Cas. 18, 53 Fed. Rep. 
912 654, 677,682 

D. Sawyer, 69 111. 289, 18 

Am. Rep. 613 .158, 342 

Chicago & S. W. R. Co. «. North- 
western U. Packet Co. 

38 Iowa, 377 856 

Chicago, B. & Q. R. Co. ». Bur- 
lington, C. R. & N. R. 
Co. 34 Fed. Rep. 
481 76 

v. Cutts, 94 U. S. 155, 24 L. 
ed. 94 __..520, 751 

1). Dey, 38 Fed. Rep. 656 _. 540 

■B. Iowa, 94 U. S. 155, 34 L. 
ed. 94 498, 518, 755 

V. Jones, 149 111. 361, 24 L. 
R. A. 141.. 539 

0. Manning, 38 Neb. 552.. 
188, 1030 

V. Owen, 21 III. App. 339.. 296 

V. Parks, 18 111. 460, 68 Am. 

Dec. 562 770 

Chicago Gaslight & C. Co. •». Peo- 
ple's Gaslight & C. Co. 

121 111. 580. .465, 466 

Chicago, M. & St. P. R. Co. v. 
Ackley, 94 U. S. 179, 
24 L. ed. 99 518 

v. Hovt, 149 U. S. 1, 37 L. 
ed. 625 159 



Chicago, M. & St. P. R. Co. v. 

Minne80ta,184U.S. 418, 

33 L. ed. 970. 3 Inters. 

Com. Rep. 209.520, 531, 599 
Chicago, R. I. & P. R. Co. v. Chi- 
cago & A. R. Co. 3 

Inters. Com. Rep. 731. 685 
«. Harmon, 17 111. App. 640 203 

D. Witty, 32 Neb. 275 295 

Chicago, St. L. & N. O. R. Co. v. 

Abels. 60 Miss. 1017.. 

204,254 

D. Moss, 60 Miss. 1003, 45 

Am. Rep. 428 188, 1030 

o. Pullman Southern Car 

Co. 139 U. S. 79, 35 L. 

ed. 97 460,467 

Chicago, St. P. & K. C. R. Co., 

Be, 2 Inters. Com. Rep. 

137.. 575, 590, 6-34, 651. 733 
Chicago, St. P. M. & O. R Co. v. 

Becker, 35 Fed. Rep. 

883 541 

Chickering ■b. Fowler, 4 Pick. 371 

_ 892,938,940 

Chidester v. Consolidated Ditch 

Co. 59Cal. 202. 174 

Childs V. Little Miami R. Co. 1 

Cin. S. C. (Ohio) 480.. 1028 
China Mut. Ins. Co. «. Force, 142 

N. T. 90.. 307, 845,846,863 
Chippendale v. Lancaster & T. R. 

Co. 21 L. J. Q. B. N. 8. 

22 233 

Chouteau v. St. Anthony, The, 16 

Mo. 216, 20 Mo. 519.... 2 
V. Union R. & Transit Co. 

33 Mo. App. 386. . . .441, 770 
Chouteaux v. Leech, 18 Pa. 224, 57 

Am. Dec. 602 

94, 171, 333, 337, 412 

Christenson v. American Exp. Co. 

15 Minn. 270, 2 Am. 

Rep. 122.7, 45, 80, 194, 279 
Christie v. Craigton, The, 41 Fed. 

Rep. 63 168,188 

®. Griggs, 1 Campb. 79 11 

e. Lewis, 2 Brod. & B. 410 



V. Missouri Pac. R. Co. 3 
Inters. Com. Rep. 22, 94 
Mo. 453. .571, 707, 740, 749 
ChseufE, The, 33 Fed. Rep. 237.. 350 
Churchill «. Welsh, 47 Wis. 39... 909 
Chy Lung v. Freeman, 92 U. S. 

275, 33 L. ed. 550 483 

Clampa Amelia, The, 46 Fed. Rep. 

866 854 



TABLE OF CASES. 



XXIU 



Cincinnati & L . M. R. Co. «. Boal, 

15Ind. 345 2 

Cincinnati, H. & 0. R. Co. v. Pon- 
tius, 19 Ohio St. 221. 2 

Am. Rep. 391 414 

V. Spratt, 2 Duv. 4 411, 412 

Cincinnati, I. St. L. & C. R. Co. ■». 

Case, 123 Ind. 310 

263, 820,968 

Cincinnati, P. B. S. & P. Packet 
Co. V. Catlettsburg, 105 
U. 8. 559, 26 L. ed. 1169 
496, 511, 517 

Citizen's Bank o. Nantucket S. B. 

Co. 2 Story, 17 2, 32 

Citizen's Ins. Co. v. Kountz Line, 

4 Woods, 268-- 414 

City Bank v. Rome, W. & O.- R. 

Co. 44 N. Y. 136 

-109, 110, 896 

City of Alexandria, The, 24 
Blatchf. 50,28 Fed.Rep. 
203--- 81, 311 

City of Carlisle, The, 5 L. R. A. 

52, 39 Fed. Rep. 807.. 1049 

City of Erie, The, v. Canfleld, 27 

Mich. 479 1047 

City of Hartford, The, e. Rideont, 

97 D. S. 323, 24L.ed.980 357 

City of Lincoln, The, 25 Fed. Rep. 

885 967, 1049 

City of Macon, The, 47 Fed. Rep. 

919 353 

Citv of Manchester, The, 5 Prob. 

Div. 221.- 349 

City of Norwich, The, 8 Ben. 579 14 

City of Norwich, The, 4 Ben. 271 196 

City of Para, The, 44 Fed. Rep. 

689 60 

City of Springfield, The, 39 Fed. 

Rep. 933 163 

Claflin V. Boston & L. R. Co. 7 

Allen, 341 --373, 913 

Clapp V. Stanton, 30 La. Ann. 495, 

96 Am. Dec. 417 4 

Clark, Be, 2 Inters. Com. Rep. 797 

424, 670 

5). Barnwell, 53 U. 8. 12 
How. 272, 13 L. ed. 985 
14, 95, 103, 105, 155, 160, 
168, 179, 188, 399, 336, 
887, 919, 1027, 1038, 1081 
v. Lowell & L. R. Co. 9 

Gray, 381 ...-859, 861 

«. Needles, 25 Pa. 888 79 

V. Richards, 1 Conn. 54 167 

v. St. Louis, K. C. & N. R. 
Co. 64 Mo. 440 ....341, 315 



Clarke v. Blackmar, 47 N. Y. 156 689 
V. Hall & D. Lumber Co. 41 

Minn. 105 117 

«. Hutchlns, 14 Bast, 475.. 137 
V. Rochester & 8. R. Co. 14 

N. Y. 570, 67 Am. Dec. 

205 231, 253 

Clarkson v. Edes, 4 Cow. 470 26 

Clay«. Willan, 1 H. Bl. 298 202 

e. Willis, 1 Barn. & C. 156.1045 

Clayton s. Corby, 2 Q. B. 819 46 

Clement ».New York Cent. & H. R. 

R. CO.30N.Y.8. R.713 908 
Cleveland & M. R. Co. v. Himrod 

Furnace Co. 37 Ohio St. 

434 851 

Cleveland & P. R. Co. v. Sargent, 

19 Ohio St. 488 914 

Cleveland, C. C. & I. R. Co. v. 

Closser, 3 Inters. Com. 

Rep. 387, 9 L. R. A. 

754,136 Ind. 348... 20 

571, 573, 603, 688, 689, 

692, 694, 706, 747, 751, 

756, 767, 848, 851, 875, 886 
Cleveland, P. & A. R. Co. ». Cur- 
ran, 19 Ohio St. 1,2 Am. 

Rep. 863 1012 

Clyde 0. Richmond & D. R. Co. 

57 Fed. Rep. 436 ..539, 576 
Coates v. United States Exp. Co. 

45 Mo. 338 - 413 

OobbB. Abbott, 14 Pick. 389 413 

Cobban ». Downe, 5 Esp. 41 82 

CobdenB. Bolton, 2 Campb. 108.. 127 

Cock «. Taylor, 18 East, 399 846 

Coe v. Errol. 116 U. 8. 517, 29 L. 

ed. 715. .....83, 530 

«. Louisville & N. R. Co. 8 

Fed. Rep. 775 442 

Coggill B. Hartford & N. H. R. 

Co. 3 Gray, 545 865 

Coggs V. Bernard, 3 Ld. Raym. 

919, 1 Smith, Lead. Gas. 

869.. 4, 13, 35, 155, 160, 759 
Cohen v. Hume, 1 McCord, L. 439 81 
V. Southeastern R. Co. L. R. 

2Exch. Div. 253 35 

V. Southern Exp. Co. 45 Ga. 

148 399 

Cole v. Goodwin, 19 Wend. 351, 

32 Am. Dec. 470. --.41, 746 
V. Western U. Teleg. Co. 33 

Minn. 327 375 

9. Williams, 13 Neb. 440--- 101 
Coleman v. Riches, 16 C. B. 104, 

29Eng. L. & Eq. 323.. 

138, 141, 868 



XXIV 



TABLE OF CASES. 



Coles ®. Central B. & Bkg. Co. 86 
Ga. S51,45 Am. &Eng. 

R. Gas. 328 426, 727 

s). Louisville, E. & St. L. R. 
Co. 41 111. App. 607... 221 
Colgate V. Pennsylvania Co. 102 N. 

Y. 120 897 

CoUard v. Southeastern R. Co. 30 

L. J. Exch. 393 279 

Oollender v. Dinsmore, 55 N. Y. 
200, 14 Am. Rep. 224.. 

32. 96, 103,122 

Collins V. Bristol & E. R. Co. 1 

Hurjst. &N. 517...... 403 

i>. Bristol & E. R. Co. 11 

Exch. 790 812, 315, 364 

u Burns, 63 N. Y. 1 945 

Collman v. Collins, 2 Hall, 569 ... 859 
Colt V. McMechen, 6 Johns. 160, 5 

Am. Dec. 200. 

13, 14, 164, 170, 174 

Colton «. Cleveland & P. R. Co. 67 
Pa. 211, 5 Am. Rep. 

424 180, 185, 188, 1028 

Columbian Ins. Co. v. Catlett. 25 
V. S. 12 Wheat. 883, 6 

L. ed. 664 873, 946 

Columbo, The. 3 Blatchf. 521. .95, 105 
Columbus & W. R. Co. v. Ludden, 
89 Ala. 612, 42 Am. & 
Eng. R. Cas. 404.. 904, 968 
Combe v. London & S. W. R. Co. 

31 L. T. N. S. 613.... 16 
Commercen. The, 14 U. 8. 1 
Wheat. 382, 4 L. ed. 
118, 2 Gall. 264. ...359, 360 
Commercial Bank of Eeokuk v. 

PfeifiEer, 23 Hun, 327.. 112 
Commercial Transp. Co. ■». Pitz- 
hugh, 66 U. S. 1 Black, 
574, 17 L. ed. 107.860, 1045 
Com. V. Carey, 147 Mass. 40, 

note 33 

V. Carlisle, Bright (Pa.) 36. 462 
». Central Bridge Corp. 12 

Cush. 242 1089 

». New Bedford Bridge 

Proprs. 2 Gray, 339 1089 

». O'Harra, 1 Nat. Bankr. 

Reg. 86 482 

e. Power, 7 Met. 596, 41 Am. 

Dec. 465 753, 770 

1). Shoe & L. Dealers P. & 
M. Ins. Co. 112 Mass. 

131 1009 

V. Vermont & M . R. Corp. 

4 Gray, 22 ..1089 

Compta, The, 4 Sawy. 375 1027 



Concord & P. R. Co. v. Forsaith, 
59 N. H. 122, 47 Am. 

Rep. 181 572, 757 

Cqndict «. Grand Trunk R. Co. 54 

N. Y. 500 75, 

177, 178, 186, 381, 888, 395 
Condon d. Marquette & O. R. Co. 
55 Mich. 218, 54 Am. 

Rep. 367 389, 390 

Congar v. Chicago & N. W. R. Co. 
24 Wis. 157, 1 Am. Rep. 

164 914 

«. Galena & C. U. R. Co. 17 

Wis. 485 902 

Conger v. Hudson River R. Co. 6 

Duer, 375 326,341 

Conkey «. Milwaukee & St. P. R. 
Co. 31 Wis. 619, 11 Am. 

Rep. 630 ..386, 390 

Connecticut Mut. L. Ins. Co. v. 

Duerson, 28 Gratt. 630.1043 
Connemara, The, 51 Fed. Rep. 

804 240 

Conover v. Pacific Exp. Co. 40 Mo. 

App. 31 .-48,204 

Conrad v. Atlantic Ins. Co. of N. 
Y. 26 U. S. 1 Pet. 386, 

7L. ed. 189. 107 

Considerant v. Brisbane, 22 N. Y. 

389 1007 

Constable ®. National SS. Co. 154 
U. S. 51, 38 L. ed. 903. 

939, 943, 968, 1040 

Converse e. Boston & M. R. Co. 

58 N. H. 521 - 914 

V. Brainerd, 27 Conn. 607.. 156 
V. Norwich & N. Y. Transp. 

Co. 33 Conn. 166 

...79,366, 891,394 

Conway i>. Tavlor, 66 U. S. 1 
Black, 608, 17 L. ed. 

191 496,504 

Cook V. Chicago. R. I. & P. R. 
Co. 3 Inters. Com. Rep. 
383, 9 L. R. A. 764, 81 

Iowa. 551 571, 

706, 758, 756, 767, 875, 886 
V. Erie R. Co. 58 Barb. 312. 968 
1?. Gourdin, 2 Nott. & McC. 

19 81 

r>. Loomis, 26 Conn. 483... 909 
Cooley V. Minnesota Transfer R. 

Co. 53 Minn. 327 857 

c. Philadelphia Port War- 
dens, 53 U. S. 12 How. 

299, 13 L. ed. 996 

486. 496,510 

Cooper 9. Berry, 21 Ga. 526 45 



TABLE OS CASES. 



XXV 



Cooper V. Kane, 19 Wend. 386, 32 

Am. Dec. 513 385 

». London & 8. W. R. Co. 

4 C. B. N. S. 738, 27 L. 

J. C. P. 324, 1 Nev.. & 

McN. 185 723, 781 

Cope ». Cordova, 1 Rawle, 203... 

891-893, 938, 940, 966 

Copeland «. New England M. Ins. 

Co. 2 Met. 482... 1009, 1010 
Copp ». Louisville & N. R. Co. 3 

Inters. Com. Rep. 625, 

12 L. R. A. 725, 43 La. . 

Ann. 511 1050 

Corbett ». Chicago, St. P. M. &0. 

R. Co. 86 Wis. 82 264 

Corier Maritimo, Tlie, 1 C. Rob. 

Adm. 241 359 

Cory «. Thames Iron Works & S. 

B. Co. 37 L. J. Q. B. ■» 

68 _ 279 

Costa Rica, The, 3 Sawy. 540... 160 
Costello ». 734,700 Laths, 44 Fed. 

Rep. 105 137, 854, 863 

V. Syracuse, B. & N. Y. R. 

Co. 65 Barb. 92 16 

Costigan ». Michael Transp. Co. 

33 Mo. App. 269, 38 

Mo. App. S19 165 

Cottingham v. Grand Trunk R. 

Co. 7 Mont. L. Rep. 

(Sup. Ct.)385 860, 908 

CottrillB. Krum, 100 Mo. 398.... 101 
Couch V. Watson Coal Co. 46 

Iowa, 20_ 903 

Council V. Western & A. R. Co. 1 

Inters. Com. Rep. 638.1052 
Counselman v. Hitchcock, 3 Inters. 

Com. Rep. 816, 142 U. 

S. 547, 35 L. ed. 1110. 1078 
Coup V. Wabash, St. L. & P. R. 

Co. 56 Mich. Ill, 56 

Am. Rep. 374 2, 5, 74 

CouDland v. Housatonic R. Co. 15 

L. R. A. 534, 61 Conn. 

531 -- 125, 212 

229, 235, 253, 281, 292, 879 
Covington & 0. Bridge Co. ». 

Kentucky, 154 U. 8. 

204, 38 L. ed. 962.. 502, 505 
Covington Stock Yards Co. ». 

Keith, 139 U. S. 128, 35 

L. ed. 73 236 

Cowan V. Bond, 2 Inters. Com. 

Rep. 543 636, 687, 783 

Cowden v. Pacific Coast SS. Co. 18 

L. R. A. 221, 94 Cal. 

470 734 



Cox V. Bruce, L. R. 18 Q. B. Div. 

147-. 188 

V. Columbus & W. R. Co. 

91 Ala. 893 907, 914 

v. Peterson, 30 Ala. 608, 68 

Am. Dec. 145.118, 160, 178 
Coxe V. Harden, 4 Bast, 211.1004, 1005 
V. Lehigh Valley R. Co. 3 

Inters. Com. Rep. 460.. 

.549, 590 

599, 654, 683, 727, 787, 789 
Cozon «. Great Western R. Co. 5 

Hurlst. &N. 274 364 

Craft V. McConoughy, 79 111. 346, 

22 Am. Rep. 171. ..461, 694 
Cragin v. Lovell, 109 TD. S. 194, 27 

L. ed. 903 954 

B. New York Cent. R. Co. 51 

N. Y. 61, 10 Am. Rep. 

559 51, 239, 254 

Crandall v. Nevada, 73 U. S. 6 

Wall. 85, 18 L. ed. 745 

486,497 

Crapo V. Kelly, 88 U. S. 16 Wall. 

610, 21 L. ed. 430 109 

Crass V. Memphis & C. R. Co. 96 

Ala. 447 857 

Crawford v. Southern R. Asso. 51 

Miss. 233, 34 Am. Rep. 

626 366 

V. Wick, 18 Ohio St. 190, 18 

Am. Dec. 103 740 

Cray ». Hartford Ins. Co. 1 Blatchf. 

280 221 

Creery s. Holly, 14 Wend. 26 

96, 301,304 

Crenshaw v. Pearce, 43 Fed. Rep. 

803 99, 414 

Cressiugton, The, [1891] Prob. 152 170 
Crews V. Richmond & D. R. Co. 1 

Inters. Com. Rep. 708. 

409,575, 

592, 715, 719, 783, 774, 775 
Crofts «. Waterhouse, 3 Ring. 319 11 
Cronkite«. Wells, 32 N.Y. 347 .. 80 
Crosby v. Fitch, 12 Conn. 410, 31 

Am. Dec. 745 

4, 35, 161, 164, 

185, 310, 312, 317, 330, 946 
Cross V. McFaden, 1 Tex. Civ. 

App. 461 - 265 

V. O'Donnell. 44 N. Y. 661, 

4 Am. Rep. 721 889 

Crossan v. New York & N. E. R. 

Co. 3 L. R. A. 766, 149 

Mass. 196 359, 863 

Crouch V, Great Northern R. Co. 

llExch. 742 279 



XXVI 



TABLE OF OASES. 



Crouch V. Great Northern R. Co. 34 

Eng. L. & Eq. 572.-758, 760 
®. Great Western R. Co. 2 

Hurlst. & N. 491, 3 

Hurlst. &N. 188 364 

V. London & N. W. R. Co. 

aCar. &K. 789 76 

V. London & N. W. R. Co. 

14 C. B. 256. 7 Excb. 

705 41, 85, 86, 296, 758 

Crowley «. Cohen, 3 Barn. & Ad. 

478 1009 

Crownhurst v. Amersham Burial 

Board, L. R. 4 Exch. 

Div. 5 87 

Cuff v. 95 Tons of Coal, 46 Fed. 

Rep. 670 863 

Culbreth v. Philadelphia, W. & B. 

R. Co. 3 Houst. (Del.) 

392 - 310 

Cumberland Valley R. Go's App. 

62 Pa. 218 760 

Gumming v. Barracouta, The, 40 

Fed. Rep. 498- 917 

Cummings ». Saux, 30 La. Ann. 207 694 
Currier v. Concord R. Corp. 48 N. 

H.325..- --- 701 

The Curtis, The Camden and The 

Welcome; The City of 

Milwaukee, Libelant, 3 

L. R. A. 711, 37 Fed. 

Rep. 705 _ 1048 

Curtis B. Chicago & N. W. R. Go. 

18 Wis. 312 327 

». Delaware, L. & W. R. Go. 

74 N. Y. 116, 30 Am. 

Rep. 271 896 

Cutting V. Florida R. & Nav. Co. 

8 Inters. Com. Rep. 665, 

46 Fed. Rep, 641 581 

V. Florida R. & Nav. Go. 4 

Inters. Com. Rep. 424, 

30 Fed. Rep. 663- 574 

V. Grand Trunk R. Co. 18 

Allen, 381 ---- 1036 

CuttS 11. Brainerd, 42 Vt. 566, 1 

Am. Rep. 358 396, 397 



D. 



Daggett «. Shaw, 3 Mo. 264 35 

Dale V. Hall, 1 Wils. 281-12, 13. 79, 168 

Dame v. Baldwin, 8 Mass. 518 859 

Damora «. Craig, 48 Fed. Rep. 

736 852 

Dan, The, 40 Fed." RepV 691 "-!"'." 302 
Dana v. Kemble, 19 Pick. 112..-. 954 



Daniel Ball, The, v. United States, 
77 U. S. 10 Wall. 557, 

19 L. ed. 999- 83,- 529 

Daniel Burns, The, 52 Fed. Rep. 

159 - 918 

Daniels v. Ballantine, 23 Ohio St. 

532, 13 Am. Rep. 264-. 

- 176,177 

Darling «. Boston & W. R. Corp. 

11 Allen, 295- 398 

Davenport Nat. Bank v. Homeyer, 

45 Mo. 145, 100 Am. 

Dec. 363 107 

Davidson e. Graham, 2 Ohio St. 

131 41, 45, 96, 194. 1028 

Davis v. Chicago, R. I. & P. R. 

Co. 83 Iowa, 744 218 

V. Cincinnati, H, & D. R. 

Go. 1 Disney (Ohio) 23.1038 
V. Garrett, 6 Bing. 716 

185, 312. 333, 342, 946, 968 
V. Nuzum (Wis.) 1 L. R. A. 

774 101 

V. Wabash, St. L. & P. R 

Go. 89 Mo. 349. 

172. 178, 1030.1031 

Dawe «. Morris (Mass.) 4 L. R. A. 

158 101 

Dawes v. Peck, 8 T. R. 380 1003 

Dawson v. St. Louis, K. C. & N. 

R. Co. 76 Mo. 514- --42, 239 
Day B. Ridley, 16 Vt. 48, 42 Am. 

Dec. 489 - 167 

Davton v. Parke, 142 N. T. 391 -. 970 
Dean ». King, 22 Ohio St. 118.. 94, 141 
V. Vaccaro, 2 Head. 488, 75 

Am. Dec. 744 966 

Decan v. Shipper, 35 Pa. 239, 78 

Am. Dec. 334 108 

Decker v. Baltimore & N. Y. R. 

Go. 1 Inters. Com. Rep. 

434, 30 Fed. Rep. 728.. 488 
Dedekam o. Vose, 3 Blatchf . 44-. 307 
DeForest «. Fulton F. Ins. Co. 1 

Hall, 84 1009 

DeGroot v. United States, 72 U. S. 

5 Wall. 419,18 L.ed.700-1083 
Delaware, The, v. Oregon Iron Co. 

81 U. S. 14 Wall. 579, 

20 L. ed. 779- 13, 

93, 94, 96, 103, 118, 140, 
141, 299, 301-304, 311, 868 

Delaware & H. Canal Co. v. Com. 
(Pa.) 1 L. R. A. 232, 2 
Inters. Com. Rep. 222.- 631 
V. Pennsylvania Coal Co. 75 
U. S. 8 Wall. 276, 19 L. 
ed. 349 97,316 



TABLE OF OASES. 



XXVH 



Delaware, L. & W. R. Co. v. Cen- 
tral Stock Yard & T. 
Co. 43N. J. Eq. 81.... 520 
V. TrautweiQ, 7 L. R. A. 435, 
52 N. J. L. 169, 41 Am. 
&Eng. R.Cas. 187-... 11 

Delaware State Grange P. of H. v. 
New York, P. & N. R. 
Co. 3 Inters. Com. Rep. 
554 552 

Del Col «. Arnold, 3 U. S. 8 Dall. 

333, IL. ed. 634 358 

Delhi, The, 4 Ben. 319 .1032 

Deming v. Grand Trunk R. Co. 48 
N. H. 455, 2 Am. Rep. 

367 75,331, 1036 

V. Merchants Cotton Press & 
S. Co. 13 L. R. A. 518, 
90Tenn. 306.. 183, 187, 1033 

Den V. Hoboken Land & Imp. Co. 
59 U. S. 18 How. 272, 
15 L. ed. 873 ..1074 

Denaby Main Colliery Co. ». Man- 
chester, S. & L. R. Co. 
L. R. 11 App. Gas. 97,8 
Nev.&McN.441,6Nev. 
& McN. 133, L. R. 10 
H.L.97,26Am. &Eng. 

R. Cas. 398 

565,576, 594, 

601, 715, 735, 764, 770, 784 

Denmark, The, 27 Fed. Rep. 141. 

- 217, 218 

Denny v. New York Cent. R. Co. 
13 Gray, 481, 74 Am. 

Dec. 645... 150, 

160, 161, 176, 330, 337, 340 

Denver & N. O. R. Co. «. Atchi- 
son, T. & S. F. R. Co. 
15 Fed. Rep. 650, 4 Mc- 
Crary, 335, 16 Cent. L. 
J. 209, rev'd 110 U. S. 

667, 38 L. ed. 391 

430, 481, 461, 746 

Denver & R. G. R. Co. v. DeWitt, 

1 Colo. App. 419... 339, 390 

De Peyster v. Columbian Ins. Co. 

2Cal. 85 168 

Der Mohr, The, 3 C. Rob. Adm. 

90 360 

Derwort «. Loomer, 21 Conn. 

346 41 

Detroit Board of Trade v. Grand 
Trunk R. Co. 2 Inters. 

Com. Rep. 199 

650,663, 733, 734 

Devereux v. Barclay, 2 Barn. & 

Aid. 703 908 



DeWitt "Wire Cloth Co. v. New 

Jersey Wire Cloth Co. 

14N. Y. Supp. 377.... 461 
De Wolf ®. New York Firemen 

Ins. Co. 30 Johns. 214.1004 

Diadem, The, 4 Ben. 247 939 

Diamond Match Co. v. Roeber, 106 

N. Y. 473, 60 Am. Rep. 

464 464 

Dias 0. Revenge, The, 8 Wash. C. 

C. 263 35 

Dibble i>. Morgan, 1 Woods, 406 

-.164,177, 938, 940 

Dickinson «. Gay, 7 Allen, 39, 83 

Am. Dec. 656 122 

Dickson v. Bell, 5 Maule & 8. 198 87 
Dictator, The, 30 Fed. Rep. 637.. 940 

Dill«. Wareham, 7 Met. 438 703 

Dillard v. Louisville & N. R. Co. 2 

Lea, 288 96, 130, 179 

Dillingham ®. Fischl, 1 Tex. Civ. 

App. 546 408, 923 

Dillon ». Barnard, 88 U. 8. 21 

Wall. 430, 33 L. ed. 673 473 
Dinsmore v. Missouri, K. & T. R. 

Co. 3 Am. & Eng. R. 

Cas. 602 755 

Diphwys Casson Slate Co. v. Fes- 

tiniog R. Co. 3 Nev. & 

McN. 73, 32 L.T.N. S, 

271 _...710, 715 

Dixie, The, 56 Fed. Rep. 403 106 

Dixon V. Baldwin, 5 East, 181 889 

v. Dunham, 14 111. 324.. 941, 944 
Doan V. St. Louis, K. & N. W. R. 

Co. 38 Mo. App. 408.. 

13,15, 196,201 

Doane®. Russell, 3 Gray, 382 866 

Dobbins v. Michigan Cent. R. Co. 

56 Mich. 522 914 

Dodd 0. Farlow, 11 Allen, 426, 87 

Am. Dec. 726 132 

Dodge i>. Boston & B. SS. Co. 3 L. 

R. A. 83, 148 Mass. 307 11 

V. Meyer, 61 Cal. 405 107 

Doe V. Turford, 8 Barii. & Ad. 890 954 
Doolan v. Midland R. Co. 10 Ir. C. 

L. Rep. 47 360 

Doris Eckhoff, The, 32 Fed. Rep. 

555 350 

Dorr V. New Jersey Steam Nav. 

Co. 11 N. Y. 485. 62 

Am. Dec. 125 

41,45, 96, 136, 220 

Doty V. Strong, 1 Pinney, 313, 40 

Am. Dec. 778. - 85 

Douglas V. Moody, 9 Mass. 550_-. 334 
V. Scougall, 4 Dow. P. C. 269 193 



XXVIU 



TABLE OF CASES. 



Dow V. Beidelman, 125 U. S. 680, 
31 L. ed. 841, 2 Inters. 
Com. Hep. 56 

.509,518, 557, 599 

Doward v. Lindsay, L. R. 5 P. C. 

338 - 350 

Down V. Fremont. 4 Campb. 40.- 218 
Downs V. National Bxcli. Bank -of 
Milwaukee, 91 U.S. 618, 

23 L. ed.214... 118 

Dows V. Cobb, 12 Barb. 310, 10 N. 

y. Leg. Obs. 161-1005, 1006 
11. Greene, 24 N. Y. 638.... 

108, 110, 901 

v. Greene, 82 Barb. 490.... 

- 1005, 1006 

V. National Exch. Bank, 91 

TJ. S. 618, 23 L. ed. 214 

107, 907 

». Perrin, 16 N. T. 335.... 108 
Druid, The, 1 W. Rob. Adm. 391 25 
D. S. Gregory, The, 2 Ben. 226.. 857 
Duff «. Budd, 3 Brod. & B. 177.- 

..314, 908,916,1004 

Duling V. Philadelphia, W. & B. 

R. Co. 66 Md. 120 965 

Duncan v. Atchison, T. & S. F. R. 

Co. 4 Inters. Com. Rep. 

885 410, 

549, 560, 590, 596, 680, 782 
Dundee, The, 1 Hagg. Adm. 109. 

- 25, 357, 1045 

Dunham v. Boston & M. R. Co. 70 

Me. 164, 85 Am. Rep. 

314 886, 392,905 

Dunlap e. International S. B. Co. 

98 Mass. 317 50 

Dunlop 1). Lambert, 6 Clark & P. 

600 1007 

Dunn B. Hannibal & St. J. R. Co. 

68 Mo. 268 239, 245 

Dunsethi). Wade, 8 111. 285 36, 315 

Duntley «. Boston & M. R. Co. (N. 

H.) 9 L. R. A. 449.207, 

280, 282, 283, 285, 1013, 1035 
Dupont V. Vancfe, 60 U. S. 19 How. 

162, 15 L. ed. 584... 22, 811 
Durgin «. American Exp. Co. (N. 

H.)9L. R. A. 453 

7, 9, 46, 52, 130, 

194, 201, 203, 207, 281, 1012 
Dutton V. Solomonson, 3 Bos. & 

P. 684 1003 

Dwight B. Brewster, 1 Pick. 50, 11 

Am. Dec. 133 8, 80 

Dwyer v. Gulf, C. & S. F. R. Co. 

7 L. R. A. 478, 76 Tex. 

572 404. 924 



Dye V. Virginia M. R. Co. 9 

Mackey, 63 -. 412 

Dyer v. Great Northern R. Co. 51 

Minn. 345.- 898 

V. National Steam Nav. Co. 

14 Blatchf. 483, 24 Int. 

Rev. Rec. 198 857 

Dygerts. Bradley, 8 Wend. 473.. 161 
Dyke v. Erie R. Co. 45 N. T. 113, 

6 Am. Rep. 43 894 



E. 



Eagle «. White, 6 Whart. 505, 37 

Am. Dec. 434.-35, 891. 939 
Eagle Ins. Co. o. Lafayette Ins. Co. 

9Ind. 443 221,222 

Earl V. Holderness, 4 Bing. 462... 909 
Earnest v. Southern Exp. Co. 1 

Woods, 573 46. 50, 303 

East & West Junction R. Co. v. 
Great Western R. Co. 1 

Nev. & McN. 331 410 

East Anglian R. Co. v. Lythgoe, 2 

Eng. L. & Eq. 333 868 

Eastern SS. Co. v. Smith [1891] 

App. Cas. 310....". 351 

Eastern Transp. Line v. Hope, 95 

U. S. 297, 24 L. ed. 477 4 
East Hartford v. American Nat. 

Bank, 49 Conn. 539 879 

East Line & R. R. Co. v. Hall, 64 

Tex. 616 80 

V. State, 76 Tex. 434 -. 689 

Easton v. Dudley, 78 Tex. 236, 45 

Am. & Eng. R. Cas. 340 21 
V. Houston & T. C. R. Co. 

32 Fed. Rep. 893. 751 

V. Worthington, 5 Serg. & 

R. 130 859 

East Tennessee & G. R. Co. o. Nel- 
son, 1 Coldw. 272 

75, 261, 320, 831, 326 

V. Whittle, 27 Ga. 535, 73 

Am. Dec. 741... 5 

East Tennessee, V. & G. R Co. v. 

Hale, 85 Tenn. 69 254 

V. Hermann, 92 Ga. 884 237 

V. Johnson, 85 Ga. 497 406 

V. Johnston, 75 Ala. 596, 51 

Am. Rep. 489. 385 

B. Kane, 32 L. R. A. 815, 92 

Ga. 187 337 

e. Rogers, 6 Heisk. 143, 19 

Am. Rep. 689 896 

«. Wright, 76 Ga. 533 

157, 170,405 



TABLE OF OASES. 



XXIX 



Eaton «, Neumark, 33 Fed. Rep. 

891, 37 Fed. Rep. 375.. 

154,917 

Eau Claire Board of Trade i>. Chi- 
cago, M. & St. P. R. Co. 

4 Inters; Com. Rep. 65. 

573, 593, 654, 716, 726, 727 
Bdsall V. Camden & A. R. & 

Transp. Co. 50 N. Y. 

661 55, 127, 147 

Edwards «. Cheraw & D. R. Co. 

82 S. C. 117 890 

«. Lycoming County Mut. 

Ins. Co. 75 Pa. 378.... 220 
V. Sherratt, 1 East, 604.... 75 
V. White Line Transit Co. 

104 Mass. 159, 6 Am. 

Rep. 218 

35, 928, 929, 935. 936 

Eells V. St. Louis, K. & N. W. R. 

Co. 52 Fed. Rep. 903.. 196 
Egan V. Cargo of Spruce Laths, 43 

Fed. Rep. 480 863 

E. H. Fittler, The, 1 Low. Dec. 

114 941 

Eiswald «. Southern Exp. Co. 60 

Ga. 496 115 

Elliins «. Camden & A. R. Co. 36 

N. J. Eq. 5 442, 690 

V, Empire Transp. Co. 81 

Pa. 315 150, 203 

Ellis V. Turner, 8 T. R. 531 342 

V. Willard, 9 N. Y. 529.... 

94-96, 299 

Elliott V. Levings, 54 111.- 213 100 

V. New York Cent. & H. R. 

R. Co. 33 N. Y. S. R. 

861 56, 194 

«. Rossell, 10 Johns. 1 

4, 12, 13, 103, 

160, 176, 182. 187, 260, 335 
Elvey ». Illinois Cent. R. Co. 2 

Inters. Com. Rep. 804 

781, 877 

Elwell V. Skiddy, 77 N. Y. 282-- 217 
Ely ». New Haven S. B. Co. 53 

Barb. 307.... 891 

Emerson v. St. Louis & H. R. Co. 

Ill Mo. 161 - 229 

Emery «. Boston M. Ins. Co, 138 

Mass. 398 122 

V. Hersey, 4 Me. 407, 16 Am. 

Dec. 268 26, 36 

9. Irving Nat. Bank, 25 Ohio 

St. 360, 18 Am. Rep. 

299_ 107, 113 

Emma Johnson, The, 1 Sprague, 

537 1037 



Emma Kate Ross, The, 46 Fed. 

Rep. 873 355 

Empire State, The, 3 Ben. 179... 359 
Empire Transp. Co. ■». Steele, 70 

Pa. 190.... 109 

V. Wallace, 68 Pa. 303, 8 

Am. Rep. 178 

330, 338. 331, 389 

®. Wamsutta Oil R. & M. 

Co. 63 Pa. 14, 3 Am. 

Rep. 515 19,43, 75, 187 

Energia, The, 56 Fed. Rep. 134.. 53 

Enrique, The, 5 Hughes, 375 169 

Episcopal Cliaritable Society v. 

Episcopal Church in 

Dedham, 1 Pick. 373.. 703 
Erie & P. Despatch v. Cecil, 113 

111. 185 749 

Erie & W. Transp. Co. o. Dater, 

91 111. 195, 33 Am. Rep. 

51 135 

Erie Dispatch v. Johnson, 87 Tenn. 

490 908 

Brie R. Co. v. Lockwood, 28 Ohio 

St. 358 126 

S.Wilcox, 84 111. 239, 25 Am. 

Rep. 451. .53, 126, 128, 914 

Erwin v. Clark, 13 Mich. 10 118 

Escanaba & L. M. Transp. Co. «. 

Chicago, 107 U. S. 678, 

27 L. ed. 442 496, 510 

Estill «. New York, L. E. & W. 

R. Co. 41 Fed. Rep. 

849 256, 269 

Etheridge v. Philadelphia, 26 Fed. 

Rep. 43 ..1047 

Evans v. Eaton, 16 U. S. 3 Wheat. 

454, 4 L. ed. 433, 20 U. 

S. 7 Wheat. 356, 5 L. 

ed. 473, 1 Pet. C. C. 

333 848 

V. Fitchburg R. Co. Ill 

Mass, 143, 15 Am. Rep. 

19 _ 331, 332, 354 

V. Foster, 1 Barn. & Ad. 

118, 30 E. C. L. 430... 970 
J). Marlett, 1 Ld. Raym. 371.1005 
». Nichol, 4 Scott, N. R. 43.1005 
V. Oregon R. & Nav. Co. 1 

Inters. Com. Rep. 641 

572, 575 

V. Spreckles, 45 Fed. Rep. 

365 157 

Bvansville & C. R. Co. ■». Andros- 
coggin Mills, 89 U. 8. 

33 Wall. 594, 22 L. ed 

734 396, 405, 412 

1). Young, 28 Ind. 516.254, 1013 



XXX 



TABLE OF CASES. 



Evansville & T. H. R. Co. v. Keith 

SInd.App. 57 122, 847 

Everett v. Saltus, 15 Wend. 474- 334 
Everslied «. London & N. W. R. 

Co. L,, R. 3 Q. B. Div. 

134, L. R. 2 Q. B. Div. 

254, L. R. 3 App. Cas. 

1029 614, 771, 773 

Ewart 0. Kerr, 2 McMuU. L. 141. 860 
V. Street, 2 Bail. L. 157, 23 

Am. Dec. 131 11, 

174,176, 1027, 1028 

Ewbank «. Nutting, 7 C. B. 797.. 866 
Exchange F. Ins. Co. «. Delaware 

& H. Canal Co. 10 Bosw. 

180 5 

Exe, The, 57 Fed. Rep. 399 169 

Express, The, 46 Fed. Rep. 860.. 356 



F. 



Fairchild «. Philadelphia, W. & 

B. R. Co. 148 Pa. 527.. 65 
V. Slocum, 19 Wend. 329, 7 

Hill, 292 163, 164 

Falkenau v. Fargo, 55 N. Y. 642. 41 

Falkner ». Earle, 3 Best. & S. 363. 301 

Fanny & Elmira, The, Edw. Adm. 

117 867 

Fargo V. Mil burn, 100 N. Y. 94 .. 855 
V. Stevens, 121 U. S. 230, 30 
L. ed. 888, 1 Inters. 
Com. Rep. 51 522 

Farmers & M. Bank v. Champlain 
Transp. Co. 28 Vt. 186, 
56 Am. Dec. 68 944, 964 

Farmers & M. Nat. Bank v. Hazel- 
tine, 78 N. Y. 104, 34 

Am. Rep. 518. 112 

V. Logan, 74 N. Y. 568-... 907 

Farmers Loan & T. Co. ®. St. Jo- 
seph & D. C. R. Co. 1 
McCrary, 247, 2 Fed. 
Rep. 117 703 

Farnham v. Camden & A. R. Co. 
55 Pa. 53. -.43, 51, 111, 
131, 184, 185, 199, 1028, 1030 

Farrant v. Barnes, 11 C. B. N. 8. 

553 87, 89 

Farrar i>. East Tennessee, V. & G. 
R. Co. 1 Inters. Com. 
Rep. 764 592, 688 

Farrell «. Richmond & D. R. Co. 
3 L. R. A. 647, 102 N. 

C. 390 486 

Faulkner ». Hart, 82 N. Y. 416, 87 

Am Rep.. 754 896 



Faulk,ner v. Southern Pac. R. Co. 

51 Mo. 311 335, 1036 

«. Wright, 1 Rice, L. 107.. 

161, 177 

Faust V. South Carolina R. Co. 8 

S. C. 118 931 

Favor «. Philbrick, 5 N. H. 358.. 939 
Fay V. Alliance Ins. Co. 16 Gray, 

461 903 

V. New World, The, 1 Cal. 

348 208 

Fearon v. Bowers, 1 Smith, Lead. 

Cas. 864.-. 901 

Feinberg v. Delaware, L. & W. R. 

Co. 52 N. J. L. 451.... 

161, 2i55, 364, 271 

Fellows V. R. W. Powell, The, 16 

La. Ann. 316, 79 Am. 

Dec. 581 141 

Fenner b. Buffalo & S. L. R. Co. 

44 N. Y. 505, 4 Am. 

Rep. 709 966 

«. Buffalo & S. L. R. Co. 46 

Barb. 108 391 

Ferguson v. Cappeau, 6 Har. & J. 

894 96 

Fergusson «. Brent, 12 Md. 33," 71 

Am. Dec. 582 158, 162 

Ferro, The [1893] Prob. 38 307 

Fibel V. Livingston, 64 Barb. 

179 45 

Field B. Chicago & R. I. R. Co. 71 

111.458 ..128, 130 

u. New York Cent. R. Co. 

32N. Y. 339 19 

Fifth Nat. Bank of Chicago v. Bay- 
ley, 115 Mass. 328 109 

Figgins V. Willie, 2 W. Bl. 1186. . 892 
Filing Copies of Joint Tariff, Se, 

1 Inters. Com. Rep. 76 881 
Fillebrown v. Grand Trunk R. Co. 

55 Me. 463, 93 Am. Dec. 

606 43, 82, 125, 819, 936 

Pilli «. Delaware, L. & W. R. Co. 

37 Fed. Rep. 65 1044 

Finlayson v. Finlayson (Or.) 3 L. 

R. A. 801 101 

Finn B. Western R. Corp. 108 Mass. 

283, 113 Mass. 524. 17 

Am. Rep. 123.343,1007, 1008 
Finnie v. Glasgow & S. W. R. Co. 

2 Macq. H. L. Cas. 177, 

3 Macq. H. L. Cas. 75, 
26L.T. 11, 1 Patterson, 
520 770, 772,776 

Firemen's Charitable Asso. ». 
Berghans, 13 La. Aon. 
209 694 



TABLE OF CASES. 



XXXI 



First Nat. Bank of Cairo o. Croclc- 

er, 111 Mass. 163 .. 109, 113 
of Cheyenne s.Swan. 3 Wyo. 

356 101 

of Green Bay «. Dearborn, 

115 Mass. 219. 15 Am. 

Eep. 92 107, 109, 112 

of Peoria ». Northern R. Co. 

58 N. H. 203 896 

of Starlssville v. Meyer, 43 

La. Ann. 1....110, 112, 113 
of Toledo ». Shaw, 61 N.Y. 

283 108, 893 

Fish V. Chapman, 2 Ga. 849, 46 

Am. Dec. 393.. 8, 35, 41, 74 

■c. Clark, 49 N. Y. 133 3 

Fisher «. Concord E. Co. 50 N. H. 

208 702 

«. Geddes, 15 La. Ann. 14.. 80 
Fisk I. Newton, 1 Denio, 45, 48 

Am. Dec. 649 891 

Fitch v. Newberrv, 1 Dougl. 

(Mich.) 1,"40 Am. Dec. 

33... 318, 319, 861, 863, 914 
Fitchburg & W. R. Co. v. Hanna, 

6 Gray, 589, 66 Am. Dec. 

427... 876 

Fitchburg R. Co. ■». Gage, 13 Gray, 

893 

.. 571,'7"3"9,"7"40,"749,'756, 763 
Fitz e. Amelie, The, 73 U. S. 6 

Wall. 18, 18 L. ed. 806, 

3 Cliff, 440 310,867 

Fitzgerald «. Grand Trunk R. Co. 

3lDters. Com.Rep. 633, 

13 L. R. A. 70, 63 Vt. 

169... 757,848,886 

Fitzhugh V. Wiman, 9 N. Y. 559. 1007 
Fitzsimmons ». Academy of Chris- 
tian Brothers, 81 Mo. 37 385 
Flagg V. Baldwin, 38 N. J. Eq. 219, 

48 Am. Rep. 308.... 73, 896 

Flash, The, Abb. Adm. 67 868 

Flautt V. Lashley, 36 La. Ann. 106 3 
Fletcher v. Inglis, 2 Barn. & Aid. 

315. 171 

s. Peck, 10 U. S. 6 Cranch. 

87, 3 L. ed. 163 1077 

Flinn «. Philadelphia, W. & B. R. 

Co. 1 Houst (Del.) 469. 1012 
Florence Mach. Co. v. Daggett, 135 

Mass. 583. 385 

Florida Fruit Exch. v. Savannah, 

F. & W. R. Co. 4 Inters. 

Com. Rep. 400.578, 598, 687 
Foard «. Atlantic & N. C. R. Co. 

53 N. C. 335, 58 Am. 

Dec. 277- 1037, 1038 



Foggan «. Lake Shore & M. S. R. 

Co. 40 N. Y. S. R. 718. 

908, 1034 

Fong Yue Ting «. United States, 

149 U. 8.698, 37 L. ed. 

905 1086 

Fonseca b. Cunard SS. Co. 13 L. 

R. A. 340, 153 Mass. 

553 893 

Forbes «. Boston & L. R. Co. 183 

Mass. 154. Ill, 887, 908, 915 
Ford B. Cotesworth, L. R. 4 Q. B. 

137 -.._ - 970 

». London & S. W. R. Co. 

3Fost. &F. 730 19 

«. Mitchell, 21 Ind. 54 78 

Fordyce «. Johnson, 56 Ark. 430. 

865, 935 

n. McFlvnn, 56 Ark. 424... 

...: 285, 355, 297 

Forelanders «. Hicks, 6 Ind. 448.. 691 
Foreman v. Great Eastern R. Co. 

2Nev. &McN. 202.... 

..576, 659, 735 

Forepaugh n. Delaware, L. & W. 

R. Co. 5 L. R. A. 508, 

128 Pa. 217 78, 895 

Forsyth ». Walker, 9 Pa. 148 296 

Ft. Worth & D. C. R. Co. v. Puller, 

3 Tex. Civ. App. 340 _. 415 
®. Greathouse, 83 Tex. 104. 

.. 53, 194, 367. 269, 278, 293 
«. Whitehead, 6 Tex. Civ. 

App. 595 509 

«. Williams, 77 Tex. 121 _. 

_- 359, 415 

Forward v. Pittard, 1 T. R. 37... 

18, 36, 84, 160, 178, 322, 1027 
Foster «. Davenport, 63 U. 8. 23 

How. 344, 16 L. ed. 248 530 
B. Mackinnon, L. R. 4 C. P. 

704 100 

». Sampson, 1 Sprague, 182, 24 
Poulke «. San Diego & G. S. P. R. 

Co. 51 Cal. 365 708 

Foulkes V. Metropolitan Dist. R. 

Co. 28 Week. Rep. 526. 399 

Foulks e. Falls, 91 Ind. 315 97 

Fourth Annual Report of Inter- 
state Commerce Com- 
mission, 8 Inters. Com. 

Rep. 837 676 

Fowle B. Park, 131 U. S. 88, 38 L. 

ed. 67 457, 464 

Fowler ». Liverpool & G. W. Steam 

Co. 87N. Y. 190 339 

Fowles V. Great Western R. Co. 7 

Exch. 699 364 



xxxu 



TABLE OF OASES. 



Fox V. Boston & M. R. Co. 1 L. R. 

A. 702, 148 Mass. 280 
-....11, 177,344 

V. Holt, 36 Conn. 558 103 

Fraeano v. Lone, 4 Barn. & C. 

219.. 1003 

Frances, The, 12 U. S. 8 Cranch. 

359, 3 L. ed. 589, 18 V. 

S. 9 Cranch. 183, 3 L. 

ed. 698 359, 1003, 1004 

Frances v. Dubuque & S. C. R. Co. 

25 Iowa, 60, 95 Am. 

Dec. 769 893 

Franchot v. Leach, 5 Cow. 506... 100 

Francis, The, 2 Gall. 391 1003 

Franconia, The, 16 Fed. Rep. 149. 357 
Frazer v. Bigelow Carpet Co. 141 

Mass. 126.-- 357 

Frazier v. Kansas City, St. J. & C. 

B. R. Co. 48 Iowa, 571 
77, 78 

Fredericks v. Northern Cent. R. 

Co. 22 L. R. A. 306, 157 

Pa. 108 327 

Fred H. Rice, The, 40 Fed. Rep. 

690 -.333, 348 

Freeman, The, v. Buckingham, 59 

U. S. 18 How. 182, 15 

L. ed. 841 137, 138, 140 

Freeman v. Birch, 1 Nev. & M. 

420 , 1004 

V. East ladia Co. 5 Barn. & 

Aid. 617 866,867 

French «. Buffalo & E. R. Co. 2 

Abb. App. Dec. 196 .. 1030 
«. Buffalo, N.Y.&E.R. Co. 

4Keyes, 108 53, 147 

B. Lafayette Ins. Co. 5 Mc- 
Lean, 461 221, 222 

Friend v. "Woods, 6 Gratt. 189, 52 

Am. Dec. 119- -.35. 177, 179 
Friedlander «. Texas & P. R. Co. 

130 U. S. 416, 32 L. ed. 

991. 108, 138,139, 141 

Fry «. Louisville, N. A. & 0. R. 

Co. 103 Ind. 265 90, 392 

F. Schumacher Milling Co. v. 

Chicago, R. I ifc P. R 

Co. 4 Inters. Com. Rep. 

373... 552, 560, 561, 578, 727 
FuUam «. New York U. Ins. Co. 

7 Gray, 61, 66 Am. Dec. 

462 220, 222 

Fulton «. Chicago, St. P. M. & O. 

R. Co. 1 Inters. Com. 

Rep. 875 532 

e. Lydecker, 41 N. Y. S. R. 

457 373, 907 



Furley v. Chicago, M. & St. P. R. 
Co. (Iowa) 23 L. R. A. 
73. 238 

Furman v. Chicago, R. I. & P. R. 
Co. 81 Iowa, 540, 45 
Am. & Eng. R. Cas. 385 927 
V. Union Pac. R. Co. 106 N. 

Y. 579 114, 

227, 896, 897, 905, 909, 910 

Furness v. White [1894] 1 Q. B. 483 858 



G. 



Gabay v. Lloyd, 8 Barn. & C. 793 169 
Gaetano, The, L. R. 7 Prob. Div. 

137 - 35,64 

Gage V. Meyers, 59 Mich. 300 118 

B. Tirrell, 9 Alien, 299-.54, 171 
Gaines v. Union Transp. & Ins. 

Co. 28 Ohio St. 418.127, 188 
Galena & C. U. R. Co. v. Rae, 18 
111. 488, 68 Am. Dec. 

574.-.- 147, 762, 1036 

Galena, D. D. & M. Packet Co. v. 
Rock Island R. Bridge 
("The Rock Island 
Bridge") 73 U. S. 6 
Wall, 213, 18 L. ed. 753 

871, 1045, 1047 

Gait V. Adams Exp. Co. McArth. 

&M. 124 - 8 

Galveston, H. & H. R. Co. v. Al- 
lison, 59 Tex. 193.-312, 315 
Galveston, H. & S. A. R. Co. v. 

Ball, 80 Tex. 602 

53, 194,234 

e. Bowman (Tex. Civ. App.) 

Jan. 17, 1894- 766 

V. Herring (Tex. Civ. App.) 

Jan. 10, 1894 243 

0. Ivey (Tex. Civ. App.) 

Oct. 4,1893 241 

V. Parsley (Tex. Civ. App.) 

Jan. 3. 1894 51 

V. Short (Tex. Civ. App.) 

Feb. 7, 1894 273 

«. Silegman (Tex. Civ. App.) 

Oct. 4, 1893. 274 

V. Tuckett (Tex. Civ. App.) 

Feb. 7, 1894 262 

0. Williams (Tex. Civ. App.) 

Feb. 7, 1894 274, 276 

Garden Grove Bank v. Humeston 
& S. R. R. Co. 67 

Iowa. 534 902 

Gardner e. Howland, 3 Pick. 

599 109 



TABLE OF OASES. 



xxxiu 



•Garnett v. Willan, 5 Barn. & Aid. 

53 314 

■Garnsey v. Rogers, 47 N. T. 233, 

7 Am. Rep. 440 958 

■Garrigues «. Coxe, 1 Blnn. 593, 3 

Am. Dec. 493 167,168 

Garrison v. Memphis Ins. Co. 60 
V. S. 19 How. 313, 15 

L. ed. 656 

.14, 118, 165, 166, 169, 180 

•Qarside®. Trent & M. Nav. Proprs. 

4T. R. 581 891, 896 

Garston Co., Ttie, «. Hlckie, L. R. 

18 Q. B. Div. 17 164 

Garton «. Bristol & E. R. Co. 6 C. 

B. N. S. 639, 28 L. J. 

C. P. 306, 1 Nev. & 
McN. 218, 1 Best & 9. 

113 576, 613, 735, 

749, 758-760, 764, 785, 836 

-Gass V. New York, P. & B. R. Co. 

99 Mass. 320, 96 Am. 

Dec. 743 184, 388, 413 

■GatlifEe v. Bourne, 4 Bing. N. C. 

814... 892, 893,904, 939, 944 
■Gates V. Ryan, 37 Fed. Rep. 154.. 318 
®. Thompson, 57 Me. 443, 

99 Am. Dec. 782 867 

■Gaudet v. Brown, L. R. 5 P. C. 236 967 
Gelsmer v. Lake Shore & M. S. K. 

Co. 102 N. Y. 563, 55 

Am. Rep. 837 321, 346 

•Gelpcke v. Dubuque, 68 U. 8. 1 

Wall. 175, 17 L. ed. 520 896 
■Gelvin v. Kansas City, St. J. & C. 

B. R. Co. 21 Mo. App. 

373 260, 265, 366 

•General Mut. Ins. Co. ■». Sher- 
wood, 55 U. 8. 14 How. 

352, 14 L. ed. 452.. 160, 1007 

•Gentleman, The, Olcott, 118 333 

George v. Concord, 45 N. H. 434.. 848 
V. Tate, 102 U.S. 564, 26 L. 

ed. 332 100 

■George B. Starr, The, 47 Fed. Rep. 

749 351, 353 

George Washington.The, v. Cavan, 

76 U. 8. 9 Wall. 513, 19 

L. ed. 787 357 

Georgia Pac. R. Co. v. Hughart, 

90 Ala. 36.49, 196, 204, 208 
■Georgia Packing Co. ■o. Macon, 22 

L. R. A. 775, 4 Inters. 

Com. Rep. 508, 60 Fed. 

Rep. 774. 484 

■Georgia R. & Bkg. Co. v. Smith, 

138 U. 8. 174, 23 L. ed. 

377 518 





Georgia R. Oo. ». Cole, 68 Ga. 623 389 

V. Gann, 68 Ga. 350 1013 

o. Murray, 85 Ga. 453, 8Rt. 

&Corp. L. J. 247 408 

Gerhard v. Neese, 36 Tex. 635 ' 

320, 321, 939 

Gerke Brew. Co. i>. Louisville & 

N.B. Co. 4 Inters. Com. 

Rep. 267. 650, 653, 654 

Germania P. Ins. Co. ■». Memphis 

& C. R. Co. 72 N. Y. 

90, 28 Am. Rep. 113, 

Aff'g7 Hun, 233 

129, 131,134,315 

Germania Ins. Co. ■». Lady Pike, 

The, 88 U. 8. 31 Wall. 

1, 22 L. ed. 499.. 

13, 31, 24, 887 

Gessley v. Missouri Pac. R. Co. 32 

Mo. App. 413 889 

Ghormley v. Dinsmore, 19 Jones 

&S. 196 224 

Gibbon v. Paynton, 4 Burr. 2398. 

...50, 296 

Gibbons v. Ogden, 22 U. 8. 9 

Wheat. 1, 6 L. ed. 33, 

17 Johns. 488 

...94, 481, 489, 

496, 503, 515, 850, 1069, 1070 
Gibbs V. Consolidated Gas Co. 130 

U. 8. 396, 33 L. ed. 979 

..457, 461, 462, 464-466, 694 
D. Liverpool Docks Trustees, 

SHurlst. & N. 164.... 5 

V. Smith, 115 Mass. 593 691 

Gibson v. American Merchants XJ. 

Exp. Co. 1 Hun, 387.. 115 
V. Brown, 44 Fed. Rep. 98-. 854 
V. Culver, 17 Wend. 305, 31 

Am. Dec. 297 386, 

892, 904, 938, 940, 942, 944 
«. Stevens, 3 McLean, 562.. 

109,891,964 

V. Stevens, 49 TJ. 8. 8 How. 

384, 13 L. ed. 1123.... 107 
Giglio, The, v. Britannia, The, 31 

Fed. Rep. 432 154, 333 

Gilbert «. Carter, 10 Ind. 16, 68 

Am. Dec. 655 691 

®. New York Cent. & H. R. 

R. Co. 4 Hun, 378, 6 

Thomp. & C. 663 83 

GUes v. Fargo, 43 N. Y. 8. R. 65 

. .! 14, 147 

B. Manchester, S. & L.R.Co. 

L. R. 8Q.B. 186 - 260 

Gillespie v. St. Louis, K. C. & N. 

R. Co. 6 Mo. App. 554. 175 



XXXIV 



TABLE or CASES. 



Gillettu. Ellis, 11 111. 679.. -169, 300 
Gilliam «. Brown, 43 Miss. 641... 703 
Gilman «. Philadelphia, 70 U. S. 

3 Wall. 713, 18 L. ed. 

96 486, 491 

Gilmore v. Carman, 1 Smedes & 

M. 379, 40 Am. Dec. 96 180 
Gilson ». Gwinn, 107 Mass. 126, 9 

Am. Bep. 13 859, 861 

Girardot v. Midland R. Co. 4 Ry. 

& Canal Traffic Cas. 

291.. 572, 576, 594, 714, 735 
Girolamo, The, 3 Hagg. Adm. 169 349 
Gisbourn «. Hurst, 1 Salk. 249. .. . 3 
Glascock V. Chicago & A. R. Co. 

69 Mo. 589 147 

Glasgow & S. W. R. Co. v. Mac- 
Kinnon, L. R. 11 App. 

Cas. 386, 27 Am. & 

Eng. R. Cas. 1 750 

Glass «. Betsey, The, 3 U. S. 3 

Ball. 16, IL. ed. 489.. 359 
Glasscock v. Wells, 23 La. Ann. 

517 694 

Gleadeu «. Thomson, 56 N. T. 194 947 
Gleeson v. Virginia Midland B. 

Co. 140 U. S. 485, 35 L. 

ed. 458. -.161, 173, 176, 178 
Glendevon, Be [1893] Prob. 269.. 870 
Glenfinlas, The, 1 U. S. App. 22, 

48 Fed. Rep. 758 965 

Glenfruin, The, 10 Prob. Div. 103 190 
Glenn v. Charlotte & S. C. R. Co. 

63 N. C. 510 -. 329 

«. Southern Exp. Co. 86 

Tenn. 594 224 

Glidden a. Lucas, 7 Cal. 26 109 

Gloucester Ferry Co. v. Pennsyl- 
vania, 114 U. S. 196, 29 

L. ed. 158, 1 Inters. 

Com. Rep. 382.. 

486, 488, 502, 

507, 508, 518, 522, 527, 850 
Gloucester Isinglass & G. Co. v. 

Russia Cement Co. 154 

Mass. 93 465 

Glover, The, 1 Brown, Adm. 166. 891 
Glaucus, The, 1 Low. Dec. 371... 363 
Glyn ®. East & West India Dock 

Co. L. R. 5 Q. B. Div. 

129 103 

Goddard v. Mallory, 53 Barb. 87.. 313 
Goggin V. Kansas Pac. R. Co. 12 

Kan. 416 375 

Golden v. Manning, 3 Willes, 430. 893 
Qoldey v. Pennsylvania R. Co. 80 

Pa. 343, 73 Am. Dec. 

703 43, 154 



Gold Hunter, The, 2 Blatchf. & H. 

300 164 

Goldsmith v. Chicago & A. R. Co. 

13 Mo. App. 479 414 

e. Tower Hill SS. Co. 37 

Fed. Bep. 806 368, 345 

Good V. Galveston, H. & S. A. R. 

Co. (Tex.) 4 L. R. A. 

801 243, 269, 276, 841 

Goodman v. Oregon R. & Nav. Co. 

22 Or. 14, 49 Am. & 

Eng. R. Cas. 87 299 

Goodrich v. Norris, Abb. Adm. 196 93 
». Thompson, 44 N. Y. 324 

312,317 

Goodridge v. Union Pac. R. Co. 37 

Fed. Bep. 182 706 

Goold o. Chapin, 20 N. Y. 359, 75 

Am. Dec. 398 389, 391 

«. Chapin, 10 Barb. 612 891 

Gordon e. Buchanan, 5 Yerg. 71. 

13, 159, 171 

n. Massachusetts, F. & M. 

Ins. Co. 3 Pick. 249... 867 
v. United States, 117 U. 8. 

Appx. 697 ..1082 

Gorham Mfg. Co. ■». Fargo, 45 

How. Pr. 90, 3 Jones & 

S. 434 204 

Gosling e. Higgins, 1 Camob. 451 928 

Goulds. Hill, 2 Hill, 633..' 220 

V. Oliver, 4 Bing. N. C. 134 310 
D. Oliver, 3 Maule & G. 

208 301 

Grace v. Adams, 100 Mass. 505, 97 

Am. Dec. 117, 1 Am. 

Rep. 131.41,45, 95, 306, 215 
Gracie o. Marine Ins. Co. 19 U. S. 

8 Cranch, 75, 3 L. ed. 

492 947 

V. Palmer, 21 U. S. 8 Wheat. 

605, 5 L. ed. 696 846 

Grafton, The, Olcott, 43, Abb. 

Adm. 553, 7Wie 964 

Grafton, The, 1 Blatchf. 173 891 

Graham v. Chicago, M. & St. P. R. 

Co. 53 Wis. 473... 874, 1006 
V. Davis, 4 Ohio St. 363, 63 

Am. Dec. 385... 48, 45, 

166, 177, 197, 313, 815, lOSO 
Grand Trunk R. Co., Be, 2 Inters. 

Com. Rep. 496 

583,683,730, 879,881 

«. McMillan, 16 Can. (S. C.) 

543, 42 Am. & Eng. R. 

Cas. 468 341, 365,392 

V. Stevens. 95 U. S. 655, 24 

L. ed. 535 198 



TABLE OF CASES. 



XXXV 



Grant v. Norway, 10 C. B. 665... 

138, 140, 141 

Gratitudine, The, 3 C. Rob. Adm. 

240 173, 834, 866 

Graves «. Lake Shore & M. S. E. 

Co. 137 Mass. 33, 50 

Am. Rep. 282 303, 

207-209, 282, 283, 285, 1035 
Gray o. Chicago, I. & N. R. Co. 

("The Clinton Bridge") 

77 U. S. 10 Wall. 454, 

19 L. ed. 969 491 

«. Jackson, 51 N. H. 9, 13 

Am. Rep. 1--.365, 389, 893 
Great Northern R. Co. v. Swaffeld, 

L. R. 9 Exch. 132 239 

B. Taylor, 35 L. J. C. P. 

210 831 

Great Western R. Co. ». Braid, 

Moore, P. C. N. S. 101 174 
V. Blower, 41 L. .T. C. P. 268, 

L. R. 7C. P. 655 17 

e. Burns, 60 111. 284 

75, 333, 835, 763 

«. Crouch, 3 Hurlst. & N. 

183 114, 906 

«. Hawkins, 18 Mich. 437.. 231 
e. McDonald, 18 111. 173.... 133 
«. Sutton, L. R. 4 H. L. 338 

..749, 775 

Green, u. Clarke, 12 N. Y. 343_...1008 

«. Dunn, 3 Campb. 215 927 

e. Milwaukee & St. P. R. 

Co. 38 Iowa, 100 79 

Greene, Be, 52 Fed. Rep. 104 

458,464, 478 

Greenock ». Southeastern R. Co. 

2 Nev. & McN. 819.573, 758 
Greenstine ■». Borchard, 50 Mich. 

434, 45 Am. Rep. 51... 118 
Gregg i>. Illinois Cent. R. Co. 147 

111. 550, Aff'g 47 111. 

App. 590 905, 906 

Gregory v. Wabash R. Co. 46 Mo. 

App. 574... 323 

«. West Midland Co. 33 L. 

J. Exch. 155..-. 44 

Greismer «. Lake Shore & M. S. 

R. Co. 102 N. Y. 563, 

26 Am. & Eng. R. Cas. 

290 262 

Grey e. Mobile Trade Co. 55 Ala. 

387, 28 Am. Rep. 729.. 

126, 1030 

Griffee «. Burlington & M. R. Co. 

2 Inters. Com. Rep. 194 776 
Griffln v. Colver, 16 N. Y. 489, 69 

Am. Dec, 718 3631 



Griffith V. Ingledew, 6 Serg. & R. 

429, 9 Am. Dec. 444... 

.136, 1004 

Grigsby v. Chappell, 5 Rich. L. 

443 5 

Grill 0. General Iron Screw Col- 
liery Co. L. R. 1 C. P. 

600, L. R. 3 C. P. 476. 

..14, 156. 175 

Qrindle «. Eastern Exp. Co. 67 

Me. 317, 24 Am. Rep. 

81 _ 365 

Grinnell v. Wisconsin Cent. R. Co. 

47 Minn. 569 918 

Griswold v. New York & N. E. R. 

Co. 53 Conn. 371, 55 

Am. Rep. 115 387 

Grogan v. Adams Exp. Co. 114 Pa. 

523, 60 Am. Rep. 360.. 

7, 45, 194, 

197, 199, 1012, 1027, 1028 
Grosvenor v. New York Cent. E. 

Co. 39N. Y. 34. 76 

D. Phillips, 3 Hill, 147 1005 

Grover & B. Sewing Mach. Co. «. 

Missouri Pac. R. Co. 70 

Mo. 672, 85 Am. Rep. 

444 366,402 

Grozier v. Atwood, 4 Pick. 334.. .1008 
Guiding Star, The, 53 Fed. Rep. 

936 186,324, 869, 1032 

Guildhall, The, 58 Fed. Rep. 796. 

24, 56,63, 73, 173 

Guillaume ». General Transp. Co. 

100 N. Y. 491-130, 134, 914 
V. Hamburg & A. Packet 

Co. 42 N. Y. 312, 1 Am. 

Rep. 512-- -. 147 

Guinn u. Wabash, St. L. & P. R. 

Co. 20 Mo. App. 453.. 363 
Gulf, C. & S. F. R. Co. «. Adair 

(Tex.App.)Dec. 7, 1889 

409, 925 

V. Allcorn (Tex. Civ. App.) 

Sept. 13, 1893 257 

V. Baird, 75 Tex. 256, 40 Am. 

& Eng. R. Cas. 160 415 

». Booton (Tex. App.) March 

18, 1891 219, 1035 

V. Boston (Tex. App.) March 

15, 1890...."- 876 

V. Brown (Tex. Civ. App.) 

Jan. 31, 1894 235 

V. Clarke, 5 Tex. Civ. App. 

547 401 

«. Dwyer, 84 Tex. 194 935 

V. Eddins (Tex. Civ. App.) 

April 35, 1894 258,373 



XXXVl 



TA.BLE OF OASES. 



Gulf, C. & S. F. R. Co. ®. Free- 
man (Tex. Civ. App.) 

9 Ey. & Corp. L. J. 497 937 
a. Gatewood, 10 L. R. A. 

419, 79 Tex. 89 

2, 43. 225, 346, 1012 

V. Gilbert, 4 Tex. Civ. App. 

369... -- 341 

«. Godair, 3 Tex. Civ. App. 

514 261 

D. Gray (Tex. Civ. App.) 

Jan. 24, 1894_ 242 

«. Hume, 6 Tex. Civ. App. 

653 20, 226 

D. Levi, 8 L. R. A. 323, 76 

Tex. 837 43, 346. 1012 

«. Loonie, 84 Tex. 259.. 344, 923 
®. McCown (Tex. Civ. App.) 

25 S. W. 435, «. c. 26 

S. W. 745 897,920-924 

«. McCorquodale, 71 Tex. 41 160 
V. Nelson, 5 Tex. Civ. App. 

387. .- 680 

V. State, 2 Inters. Com. Rep. 

335, 1 L. R. A. 849, 72 

Tex. 404 510, 689, 690 

u Tennaut (Tex. Civ. App.) 

June 8, 1893 258 

®. Thompson (Tex. Civ. 

App.) Feb. 8, 1893 .... 292 
«. Trawick, 68 Tex. 314.,.. 

57 120 223 
«. Trawickr8bTex."276.236, 275 
V. Wilhelm (Tex. App.) 

April 29, 1891 239 

11. Wilson (Tex. Civ. App.) 

April 25, 1894... 259 

V. "Wright, 1 Tex. Civ. App. 

402 258 

®. Zimmerman, 81 Tex. 605 

149,189, 1010. 1022 

Gurley a. Armstead, 2 L. R. A. 80, 

148Mass. 267 ...... 912. 914 

Gurney ». Behrend, 3 El. & Bl. 

623 110 

Gypsum Prince, The, 57 Fed. Rep. 

859. 353 



Haas e. Kansas City, Ft. S. & G. ' 

R. Co. 81 Ga. 792 346 

Hackett ». Boston, C. & M. R. Co. 

35 N. H. 390.... 1036 

Hadd V. United States & C. Exp. 

Co. 52 Vt. 335, 36 Am. 

Rep. 757 7, 365, 366 



Haddock a. Delaware. L. <fc W. R. 

Co. 3 Inters. Com. Rep. 

302 ....598,787,819 

Haddow «. Parry, 3 Taunt. 303 .. 

105, 106 

Hadji, The, 18 Fed. Rep. 459 203 

Hadley «. Baxendale, 9 Exch. 341 279 
B. Clarke, 8 T. R. 259 

320,331, 338,873 

Hagedorn «. Whitmore, 1 Stark. 

157 170 

Hagerman ®. Empire Slate Co. 97 

Pa. 534 --..1044 

Haille «. Smith, 1 Bos. & P. 563.. 1005 
Hale n. Bonner, 14 L. R. A. 336, 

82 Tex. 83 1027 

e. Milwaukee Dock Co. 29 

Wis. 482, 9 Am.Rep.603 109 
e. Missouri Pac. R. Co. 36 

Neb. 266 245 

«. New Jersey Steam Nav. 

Co. 15 Conn. 539, 39 

Am. Dec. 398 ..14, 180, 893 
Hales D. London & N. W. R. Co. 

4 Best. & S. 66, 82 L. J. 

Q. B. 292 321 

Hall V. Cheney, 36 N. H. 26. .178, 1028 
V. DeCuir, 95 U. S. 495, 24 

L. ed. 547 499 

V. Franklin Ins. Co. 9 Pick. 

466 866 

■B. Nashville & C. R. Co. 80 

U. S. 13 Wall. 369, 20 

L. ed. 594 14. 1020, 1021 

V. Ocean Ins. Co. 37 Fed. 

Rep. 371 866 

Halliday ®. Hamilton, 78 U. S. 11 

Wall. 510, 20 L. ed. 214 109 
D. St. Louis, K. & N. R. Co. 

74 Mo. 159, 41 Am. Rep. 

309 399 

Halsey v. Warden, 25 Kan. 128 .. 

107.114 

Hamburg, The, 2 Moore, P. C. N. 

S. 289, Brown & L. 

Adm. 258 35 

Hamburg- American Packet Co. o. 

Gattman, 27 HI. App. 

182. affd. 127 111. 598.. 

928,940 

Hamilton v. Chattanooga, R. & C. 

R. Co. 3 Inters. Com. 

Rep. 482 591,682,687 

o. Western N. C. R. Co. 96 

N. C. 898 346 

Hamilton Mfg. Co. v. Massachu- 
setts, 73 U. S. 6 Wall. 

682, 18 L. ed. 904 495 



TABLE OF CASES. 



XXXVU 



Hand a Baynes, 4 Whart. 204, 33 
Am. Dec. 54 

313,317,331,338,989 

Handy v. Cleveland & M. R. Co. 

31 Fed. Rep. 689 785 

Haney «. Kansas City, 94 Mo. 334 15 

Hannah v. Fife, 27 Mich. 173 691 

Hannibal & St. J. R. Co. v. Huseu, 

95 U. S. 465, 24 L. ed. 

527- 483,485, 510, 937 

e. Swift, 79 IT. S. 12 Wall. 

263, 20 L. ed. 423.5, 12, 

15, 18, 35, 51, 74, 78, 185, 298 
Hansea «. Harrold [1894] 1 Q. B. 

613 865 

T. Flint & P. M. R. Co. 73 

Wis. 346 398, 403 

Harding v. Chicago, St. P. M. & 

O.R. Co. 1 Inters. Com. 

Rep. 375 ; 532, 601 

Hardman ®. Brett, 2 L. R. A. 173, 

37 Fed. Rep. 803 

.- --861, 363, 1035 

«. Willcock, 9 Bing. 383... 927 
Hare e. London & N. W. R. Co. 

2 Johns. & H. 80, 7 Jur. 

N. 8. 1145 697, 699 

Harker v. Dement, 9 Gill. 7, 52 

Am. Dec. 670 361 

Harmon «. Chicago, 147 U. S. 396, 

37 L. ed. 216 483 

V. Chicago (111.) 34 Am. & 

Eng. Corp. Cas. 149_.. 530 
Harmony «. Bingham, 12 N. Y. 99, 

62 Am. Dec. 142 

- 332, 338, 839 

Harned ». Missouri Pac. R. Co. 51 

Mo. App. 483 374 

Harrello. Owens, 18 N.C. 278-... 11 
V. Wilmington & W. R. Co. 

106 N. C. 258, 43 Am. 

& Eng. R. Cas. 417 78 

B. Zimpleman, 66 Tex. 393. 

.885, 964 

Harriet Newhall, The, 3 Ware, 105 358 
Harrington v. Lyles, 2 Nott & McC. 

Harris, Me, 57"Fed.'RepV243"I"^1011 
s. Cockermouth&W. R. Co. 

1 Nev. & McN. 97, 3 C. 

B. N. S. 693 -- 

576, 613, 614, 735, 764, 778 
■». Duval, 3 Inters. Com. 

Rep. 514 600 

V. Great Western R. Co. L. 

R. IQ. B. Div. 515 --. 315 
V. Moody, 30 N. Y. 366, 86 

Am. Dec. 375 300 



Harris v. Northerj. Indiana R. Co. 

20N. ■&. 233.11,17,239,243 
V. Panama R. Co. 3 Bosw. 7 920 
V. Rand, 4 N. H. 259, 17 Am. 

Dec. 421 161, 338 

Harrisburg, The, «. Rickards, 119 

U. 8. 199, 80 L. ed. 358 35 
Harrison ■». London, B. & S. C. R. 

Co. 3 Best & 8.122.... 201 
v. New Orleans, J. & G. N. 

R. Co. 38 La. Ann. 777.1038 
Hart v. Allen, 2 Watts, 114... 176, 185 
V. Chicago & N. W. R. Co. 

69 Iowa, 485... 57, 219, 1012 
». Pennsylvania R. Co. 112 
U. 8. 331, 28 L. ed. 717 

-. -..45, 50, 

73, 181, 197, 203, 307- 
210, 317, 254, 288, 285, 1035 
V. Rensselaer & S. R. Co. 8 
N. Y. 37, 59 Am. Dec. 

447 412,418 

«. Western R. Corp. 13 Met. 
99, 46 Am. Dec. 719... 1020 
Hartford & N. H. R. Co. ii. New 
York & N. H. R. Co. 3 

Robt. 411 -.. 

439, 443, 443, 690, 691 

Hartman v. Will, The, 4 Pa. L. J. 

Rep. 350 867 

Hartshorn v. Day, 60 V. 8. 19 

How. 312, 15 L. ed. 605 100 
Hartwell v. Louisville & N. R. Co. 
15 Ky. L. Rep. 778.... 



e. Northern Pac. Exp. Co. 

3 L. R. A. 843, 5 Dak. 

463.. 36, 128, 177, 226, 1013 
Harvard v. Pennsylvania Co. 3 

Inters. Com. Rep. 257 

551, 553, 556 

Harvey v. Cady, 3 Mich. 431 118 

V. Connecticut & P. R. Co. 

124 Mass. 431, 26 Am. 

Rep. 673 .- 348 

■B. Lloyd, 8 Pa. 881 441 

7). Terre Haute & I. R. Co. 

74 Mo. 538 

-.45, 50, 203, 213, 283 

Harwell v. Columbus & W. R. Co. 

1 Inters. Com. Reo. 681 

..:. 659, 663 

Haskind c. Warren, 115 Mass. 514 122 
Hastings «. Pepper, 11 Pick. 41.- 

-4, 94, 

96, 163, 299, 306, 926, 1028 
Hathaway v. Haynes, 124 Mass. 

311 112 



XXXYIU 



TABLE OF OASES. 



Hatton V. Melita. The, 3 Hughes, 

494 .: 871 

Havemeyer v. Havemeyer, 11 

Jones & S. 506 431 

Hawkins ». Great Western R. Co. 

17 Mich. 62, 97 Am. 

Am. Dec. 179, 18 Mich. 

437 18, 146, 231 

e. Hoffman, 6 Hill, 586, 41 

Am. Dec. 767 11, 968 

Hawks V. Locke, 189 Mass. 305, 52 

Am. Rep. 703... 862 

Hawley s). Kansas & T. Coal Co. 

48 Kan. 593.. 885 

Hayburn's Case, 3 U. 8. 3 Dall. 

409, IL. ed. 436 1080 

Hayden v. Davis, 9 Cal. 573 928 

Hayes B. Campbell, 63 Cal. 143... 136 
V. "Wells, 23 Cal. 185, 83 

Am. Dec. 89-_ 395 

Hayman ®. Mollon, 5 Esp. 65.310, 867 
Hays V. Kennedy, 41 Pa. 378, 80 

Am. Dec. 627.-156, 161, 164 
V. Millar, 77 Pa. 238, 18 

Am. Rep. 445 4 

e. Pennsylvania Co. 12 Fed. 

Rep. 309.. 572, 613, 749, 

751, 753, 757, 761, 770, 773 

Hayso. Risher, 33 Pa. 169. 441 

Hazard ». Abel, 15 Abb. Pr. N. 8. 

413 90 

». Fiske, 83 N. T. 287 107 

V. Illinois Cent. R. Co. 67 

Miss. 33 142 

«. New England M. Ins. 

Co. 1 Sumn. 218, 33 IT. 

S. 8 Pet. 557, 8 L. ed. 

1043 164 

Hazel V. Chicago, M. & St. P. R. 

Co. 82 Iowa, 477 893 

Hazlehurst v. Savannah, G. & N. 

A. R. Co. 43 Ga. 13... 462 
Hearne v. Garton, 2 El. & Bl. 66.. 86 
Heck s. East Tennessee, V. & G. 

R. Co, 1 Inters. Com. 

Rep. 775 

.... 531, 582, 785,836, 1053 
Hedden v. Roberts, 134 Mass. 38, 

45 Am. Rep. 276 122 

Hedges v. Hudson River R. Co. 49 

N. Y. 223 968 

Heineman v. Grand Trunk R. Co. 

31 How. Pr. 430 239 

Heiserman «. Burlington, C. R. & 

N. R. Co. 63 Iowa, 783 875 
Heiskell v. Farmers' & M. Nat. 

Bank, 89 Pa. 155, 33 

Am. Rep. 745 113 



Hematite Min. Co. v. East Ten- 
nessee, V. & G. R. Co. 

92 Ga. 268 100,103 

Henderson v. London & N. W. R. 

Co. L. R. 5 Exch. 90.. 218 
D. Three Hundred Tons of 

Iron Ore, 38 Fed. Rep. 

36 105,846 

«. Wickham, 93 U. 8. 259, 

33 L. ed. 543.. 482, 486, 489 
Hendrick, The, o. Hudson, 3 Ben. 

419, 7 Law Rep. N. S. 

93 8ri 

Hendricks ®. Lindsay, 93 U. S. 

143, 23 L. ed. 855 954 

Hennick, Be, 1 Inters. Com. Rep. 

66, 5 Mackey, 489 522 

Henry v. Central R. & Bkg. Co. 89 

Ga. 815 299 

Hentz V. Idaho, The, 93 U. 8. 575, 

23 L. ed. 978.. 137, 937,931 
Hermann ®. Goodrich, 31 Wis. 543, 

94 Am. Dec. 562 966 

Hern a. Nichols, 1 Salk. 289 913 

Herrick v. Gallagher, 60 Barb. 566 

115,906 

Hersh v. Northern Cent. R. Co. 74 

Pa. 181... 571, 591, 749,756 
Hess ». Missouri Pac. R. Co. 40 

Mo. App. 303... 233 

Hezel Mill Co. e. 8t. Louis. A. & 

T. H. R. Co. 3 Inters. 

Com. Rep. 701 

303, 779, 781,883,885 

Hewitt V. Chicago, B. & Q. R. Co. 

63 Iowa, 612... 18,320 

H. G. Johnson, The, 48 Fed. Rep. 

696 104, 807, 1005 

Hibler v. McCartney, 31 Ala. 502. 178 
Hick o. Rodocanachi [1891] 2 Q. 

B. 636 346 

V. Rodocanachi (Eng. Ct. 

App.) 65 L. T. Rep. N. 

8. 300, 44 Alb. L. J. 

463 857 

Hickox c. Naugatuck R. Co. 31 

Conn. 281, 83 Am. Dec. 

143 84 

Hide f>. Trent & M. Nav. Co. 1 

Esp. 36.-_ 14 

Higgins V. Moore, 34 N. Y. 425.. 904 
V. New Orleans, M. & C. R. 

Co. 28 La. Ann. 133... 53 
V. United Slates Mail SS. 

Co. 3 Blatchf. 382 891 

Hill V. Boston, H. T. & W. R. Co. 

144 Mass. 384 --. 

203, 308, 382, 383, 385, 287 



TABLE OF CASES. 



XXXIX 



Hill v. Burlington, C. E. & N. R. 

Co. 60 Iowa, 196, 9 Am. 
& Eng. R. Cas. 31.-- 

400,407 

c. Denver & R. Q. R. Co. 4 

L. R. A. 376, 13 Colo. 

35 319, 859 

«. Humphreys, 5 "Watts. & 

S. 133, 39 Am. Dec. 117 

-.-.891, 939 

V. Sturgeon, 28 Mo. 333- -11, 157 
«. Syracuse, B. & N. Y. R. 

Co. 8 Hun, 396 135 

«. Syracuse, B. & N. Y. R. 

Co. 73 N. Y. 351, 29 

Am. Rep. 163-97, 131. 315 
Hill Mfg. Co. V. Boston & L. R. 

Corp. 104 Mass. 123, 6 

Am. Rep. 303-183, 394, 395 
Hinckley v. Gildersleeve, 10 Grant 

Ch. 313 - 440 

e. New York Cent. & H. R. 

R. Co. 56 N. Y. 439.. 

94, 97,316, 398 

Hindman «. Timme, 4 Ind. App. 

416 293 

Hinton v. Dibbin, 3 Q. B. 646.... 

14, 41, 43 

Hirshberg •». Dinsmore, 12 Daly, 

429 375 

Hoadley v. Lizzie, The, 39 Fed. 

Rep. 44 341 

«. Northern Transp. Co. 115 

Mass. 304, 15 Am. Rep. 

106 -161,176 

Hoagland v. Hannibal & St. J. R. 

Co. 39 Mo. 451- -- 33 

Hobart ®. Drogan, 35 U. S. 10 Pet. 

108, 9L. ed. 363 333 

Hodge V. Sloan, 107 N. Y. 244--. 465 
HofEman v. Carow, 32 Wend. 

385 - - 859 

Holbrooke St. Paul, M. & M. R. 

Co. 1 Inters. Com. Rep. 

333 533 

«. Wight, 34 Wend. 169, 35 

Am. Dec. 607...- 109 

Holden*. New York Cent. R. Co. 

54 N. Y. 662-.- 1034 

Holfordu. Adams, 2 Duer, 471--. 746 
Holladay v. Kennard, 79 U. S. 13 

Wall. 354, 30 L. ed. 390 

- -14, 148 

Holland, etc. R. Co. v. Festiniog 

R. Co. 2 Nev. & MclC 

287 -- 735 

HoUingsworth «. Brodrick, 7 Ad. 

&E1. 50 163, 165 



HoUister d. Nowlen, 19 Wend. 

234, 33 Am. Dec. 455-- 

--.-14, 40,41, 315 

Holman v. Georgia R. Co. 67 6a. 

595 - 401 

Holmes*. Bailey, 93 Pa. 57 113 

V. German Security Bank, 

87 Pa. 525-- -.107, 112 

Holsapple «. Rome, W. & O. R. 

Co. 86N. Y. 375---55, 147 

Holyoke v. Depew, 2 Ben. 334 339 

Home Ins. Co. v. Baltimore Ware- 
house Co. 93 U. S. 537, 

33 L. ed. 868- 1009 

e. Western Transp. Co. 4 

Robt. 367 1020, 1031 

Honeyman v. Oregon & C. R. Co. 

13 Or. 353, 57 Am. Rep. 

30 3,74, 356 

Hood e. New York & N. H. R. 

Co. 22 Conn. 1 366, 394 

Hooker v. Vandewater, 4 Denio, 

349, 47 Am. Dec. 358-- 

434, 437, 443, 461, 690, 692 
Hooper v. Chicago & N. W. R. 

Co. 27 Wis. 81, 9 Am. 

Rep. 434 -- 387 

e. Wells, Fargo & Co. 37 

Cal. 11, 85 Am. Dec. 211 194 
Hoosier Stone Co. ». Louisville, 

N. A. & C. R. Co. 131 

Ind. 575 229 

Hoover v. Pennsylvania R. Co. 156 

Pa. 320 765,885 

Hope V. Hope, 8 DeG. M. & G. 731 

73 896 
®. State'Bank,"4La. 2'l3V303, 306 
Hopkins «. Lewis, 15 L. R. A. 397, 

4 Inters. Com. Rep. 63, 

84 Iowa, 630- -. 513 

«. Westoott, 6 Blatchf. 64.- 

45, 50, 55, 203, 355 

Hoppet, The, Bdw. Adm. 369 359 

Hore V. Whitmore, 2 Cowp. 784.. 338 
Homes. Midland R. Co. L. R. 8 

C. P. 131, 42 L.J. C. P. 

59 - 279 

Horner «. Graves, 7 Bing. 735 464 

Hornthal v. Roanoke, N. & B. S. 

B. Co. 107 N. C. 76-.. 389 
Hosack V. Weaver, 1 Yeates, 478. 859 
Hosea «. McCrory, 12 Ala. 349.-. 2 
Hostetter d. Baltimore & O. R. Co. 

(Pa.) 10 Cent. Rep. 353 316 
«. Park, 137 U. S. 30, 34 L. 

ed. 568 171,177, 946 

Hotchkiss «. Artisan's Bank, 3 

Abb. App. Dec. 403... Ill 



xl 



TABLE OF OASES. 



Hot Springs R. Co. n. Trippe, 42 

Ark, 465, 48 Am. Rep. 

65 _ 412,414 

Hough V. Western Transp. Co. 

( "The Ply mouth") 70 U. 

8. 3 Wall. 20, 18 L. ed. 

125 1045-1048 

Houston & G. Nav. Co. ■». Dwyer, 

29 Tex. 376 179 

Houston & T. 0. R. Co. v. Adams, 

49 Tex. 748, 80 Am. 

Rep. 116._ 915 

n. Burke, 55 Tex. 323, 40 

Am. Rep. 808 296 

■B. Rust, 58 Tex. 98 786, 746 

B. Smith, 63 Tex. 822 

757, 760 

How -0. Kirchner, 11 Moore, P. C. 

21 95 

Howard «. Shepherd, 9 C. B. 297 

:...110,896 

Howard, The, ®. Wissman, 59 U. 

S. 18 How. 231, 15 Jj. 

ed. 363 919 

Howe n. Oswego & S. R. Co. 56 

Barb. 121 35, 919 

Howell u New York, L. E. & W. 

R. Co. 2 Inters. Com. 

Rep. 162 

572, 573, 600, 601, 728, 729 
Rowland v. Greenway, 63 U. S. 22 

How. 491. 16 L. ed. 391 

25, 146, 172, 940, 

966, 1028 

Hozier «. Caledonia R. Co. 24 L. 

T. 339, 1 Nev. & M. 27 

- -611, 714,749 

Hubbard ®. Harnden Exp. Co. 10 

R. I. 244 188 

v. Miller, 27 Mich. 15, 15 

Am. Rep. 158 464 

Hubbersty b. Ward, 18 C. B. 

551 - 141 

V. Ward, 8 Exch. 380-.138, 889 
Hughes ®. Great Western R. Co. 

14 C. B. 637- 820, 321 

"0. Sun Mut. Ins. Co. 100 

N. Y. 58 858 

Hugo, The, 57 Fed. Rep. 408.-.. 

151, 194, 230 

Hull ». Butler, 7 Ind. 367 97 

v. Chicago, St. P. M. & O. 

R. Co. 5 L. R. A. 587, 

41 Minn. 510 177, 1013 

Humphreys «. Perry, 148 U. S. 

637, 37 L. ed. 587 313 

Hunnewell «. Taber, 2 Sprague, 1 

312,315, 340 



Hunts. Cleveland, The, 6 McLean, 

76 --103T 

v. Colburn, 1 Sprague, 315. 24 
•B. Haskell, 34 Me. 839, 41 

Am. Dec. 387 866 

•B. Mississippi Cent. R. Co. 

29 La. Ann. 446. -.-95, 141 
«. Morris, 6 Mart. (La.) 676. 

12 Am. Dec. 489 14, 178 

B. New York & E. R. Co. 1 

Hilt. 228 400 

Hunters, Pfeiffer, 108 Ind. 197... 691 
V. Potts, 4 Campb. 203.. 168, 353 
s. Southern Pac. R. Co. 76 

Tex. 195 365 

Huntingdon «. Dinsmore, 4 Hun, 

66 Ill 

Hurlburts. Lake Shore & M. S. R. 
Co. 2 Inters. Com. Rep. 
81. ..553, 556, 357, 559. 88& 
Hurley ». Milward. 1 Jones & C. 

334 299 

Huse ». Glover, 119 U. S. 548, 30 

L.ed.487... ..496,510 

Hussey n. Taragossa, The, 3 

Woods, 380 372 

Hutchings «. Ladd. 16 Mich. 493. 118 
Hutchinson v. Chicago, St. P. M. 
& O. R. Co. 37 Minn. 

524 52, 281, 296 

V. Guion, 5 C. B. N. S. 149.85, 86 
Hutton s. Osborne, 1 Selw. N. P. 

407 4 

Hyde ». Trent & M. Nav. Co. 5 

T. R. 389 178, 183, 

891, 893, 896, 938, 940, 942 



Idle s. Royal Exch. Assur. Co. 8 

Taunt. 755 867 

lesson «. Solly, 4 Taunt. 52 970 

Illldge ®. Goodwin, 5 Car. & P. 

192 87 

Illinois & St. L. R. & Coal Co. «. 

Beaird, 24 111. App. 322 571 
Illinois Cent. R. Co. v. Adams, 42 
111. 474, 92 Am. Deo. 85 

239, 240,247 

■B. Ashmead, 58111. 487.. 80, 324 

V. Baches, 55 111. 379 16 

«. Brelstord, 13 HI. App. 251 

...231,254 

«. Foley, 53 Fed. Rep. 459. 237 
e. Prankenberg, 54 111. 88, 5 

Am. Rep. 92 

128, 129, 185, 895, SQS' 



TABLE OJf CASES. 



xli 



Illinois Cent. R. Co. v. Friend, 84 

111. 303 966 

«. Hayues, 63 Miss. 485 229 

v. Hornberger, 77 111. 457.- 75 

V. Kerr, 68 Miss. 14 400 

V. McClellan, 54 111. 58, 5 

Am. Rep. 83 

84, 154, 333, 1034 

V. Miller, 32 111. App. 259.. 322 

u Morrison, 19 111. 136 46 

V. Owens, 53 111. 391 160 

V. People, 131 111. 304, 108 

U. S. 541, 27 L. ed. 818 733 
V. Peterson, 14 L. R. A. 550, 

68 Miss. 454... 349 

V. Smyser, 38 111. 354, 87 

Am. Dec. 301.. 84, 122 

Illinois M. R. Co. v. People, 84 111. 

436 432 

Ilsley v. Stubbs, 9 Mass. 65, 6 Am. 

Dec. 39 1004 

Ilwaco R. & Nav. Co. v. Oregon 
Short Line & U. N. R. 
Co. 57 Fed. Rep. 673. . 714 
Immanuel, The, 2 C. Rob. Adm. 

186 360 

Imperial Coal Co. v. Pittsburg & 
L. E. R. Co. 2 Inters. 
Com. Rep. 162 -...650, 728 
Independent Mills Co. v. Burling- 
ton, C. R. & N. R. Co. 
72 Iowa, 535.. 313, 818, 393 
Independent Refiners Asso. v. 
Western New York & 
P. R. Co. 4 Inters. Com. 

Rep. 163. 688, 777 

India Bagging Asso. ». Kock, 14 

La. Ann. 164 461, 694 

Indiana®. United States, 148 U.S. 

148, 37L. ed. 401 489 

Indiana Nat. Bank i>. Colgate, 4 

Daly, 41 109, 113 

Indianapolis & C. R. Co. v. Cox, 
39 Ind. 360, 95 Am. 

Dec. 640.... 126,200 

e. Remmy, 13 Ind. 519 

98, 316, 393 

Indianapolis & St. L. R. Co. ». 

Herndon, 81 111. 143... 865 
V. Jurey, 8 111. App. 160.231, 254 
Indianapolis, B. & W. R. Co. v. 

Strain, 81 111. 504. .231, 257 
Indianapolis, D. & 8. R. Co. v. 

Davis, 32 111. App. 67. 886 

D. Erin, 118 111. 250 571, 750 

Indianapolis, D. & W. R. Co. v. 
Forsylhe, 4 Ind. App. 
336 45, 179 



Indianapolis, P. & C. R. Co. «. 
Allen, 31 Ind. 394.... 

50,51, 185,294 

v. Rinard, 46 Ind. 393 

757, 763, 770 

Indian River S. B. Co. v. East 
Coast Transp. Co. 28 
Fla. 387, 49 Am. & 
Eng. R. Cas. 213 427 

Industrie, The [1894] Prob. 58... 855 

Infracombe T. 0. Co. v. London 
S. "W. R. Co. Weekly 
Notes, 389 611 

Ingledew v. Northern R. Co. 7 

Gray, 86 343 

Inman v. South Carolina R. Co. 
139 U. S. 118, 33 L. ed. 

613 

72, 76, 1013, 1017, 1020, 1028 

Inman SS. Co. v. Tinker, 94 U. S. 

238, 24 L. ed. 118 485 

Insurance Co. of N. A. v. Dela- 
ware Mut. S. Ins. Co. 

91Tenn. 537... 1024 

®. Baston, 3 L. R. A. 424, 

73 Tex. 167 

177, 1012, 1013,1016 

v. St. Louis, I. M. & S. R. 

Co. 3 McCrary, 233.19, 186 
International & G. N. R. Co. v. 

Anderson, 3 Tex. Civ. 

App. 8 263,293, 293 

V. Armstrong (Tex. Civ. 

App.) Sept. 20, 1898... 341 
i>. Dimmitt County Pasture 

Co. 5 Tex. Civ. App. 

186 255 

V. Folts, 3 Tex. Civ. App. 

644 133 

■V. Hynes, 3 Tex. Civ. App. 

20 262 

0. Lewis (Tex. Civ. App.) 

Oct. 4, 1898 240 

V. McRae, 82 Tex. 614. 245 
B. Mahula, 1 Tex. Civ. App. 

182.. 257 

V. Thornton, 3 Tex. Civ. 

App. 197 258 

V. Tisdale, 4 L. R. A. 545, 

74 Tex. 8.241, 256, 839, 
396, 399, 413, 1033, 1034 

«. Wright, 1 Tex. Civ. App. 

402 266 

V. Wright, 3 Tex. Civ. App. 

198... - 257 

International Exp. Co. «. Grand 

Trunk R. Co. 81 Me. 92 

..28, 760 



xlii 



TABLE OF CASKS. 



Interstate Commerce Commission, 
Be, 4 Inters. Com. Rep. 
315, 53 Fed. Rep. 476. 

- 536, 1068 

o. Atchison, T. & 8. F. R. 
Co. 4 Inters. Com. Rep. 
323, 50 Fed. Rep. 395.. 

535, 631,658, 659, 1055 

». Baltimore & O. R. Co. 145 
U. S. 263, 36L. ed. 699, 
4 Inters. Com. Rep. 92, 
49 Am. & Eng. R. Cas. 

243 611, 688, 775, 776 

<e. Baltimore & O. R. Co. 8 
Inters. Com. Rep. 192, 

43 Fed. Rep. 37 749 

V. Brimson, 154 U. S. 447, 
38 L. ed. 1047, 4 Inters. 

Com. Rep. 545 536 

a. Cincinnati, N. O. & T. P. 
R. Co. 4 Inters. Com. 
Rep. 333, 56 Fed. Rep. 

925 410 

651, 654, 677, 682, 727, 1055 
«. Detroit, G. H. & M. R. 
Co. 4 Inters. Com. Rep. 
722, 57 Fed. Rep. 1005 

648, 649, 726, 781 

0. Leliigli Valley R. Co. 3 
Inters. Com. Rep. 796, 

49 Fed. Rep. 177 1055 

V. Texas & P. R. Co. 4 
Inters. Com. Rep. 62.. 

535, 774 

V. Texas & P. R. Co. 4 
Inters. Com. Rep. 408, 
57 Fed. Rep. 948... 659, 776 
Interstate Land Co. v. Maxwell 
Land Grant Co. 139 U. 
S. 569, 35L. ed. 278... 

-- 473 

Investment Co. of Philadelphia o. 
Ohio & N. W. R. Co. 

41 Fed. Rep. 378 415 

Invincible, The, 3 Sawy. 176 307 

Iowa, The, 50 Fed. Rep. 561 

„ 32, 3"3"3", 1033 

Iowa Barb Steel Wire Co., Be, 1 
Inters. Com. Rep. 605 

„ - 526,533,534 

Iowa Gram 8. 8. Asso. ®. Chicago 
&N.W.R.Co.2Inters. 

Com. Rep. 431 783 

Ira B. Ellens, The, 48 Fed. Rep 

^ , , 5?1. - 863 

Ireland «. Livingstone, L. R. 5 H 

L. 395 863 

e. Thomson, 4 C. B. 149... 867 



Irish V. Milwaukee & St. P. R.Co. 

19 Minn. 376, 18 Am. 

Rep. 340. 388 

Iron R. Co. ®. Lawrence Furnace 

Co. 49 Ohio St. 102 H9 

Isaacson v. New York Cent. & H. 

R. R. Co. 94 N. Y. 278, 

46 Am. Rep. 142 313 

Isabella Thompson, The, v. United 

States, 70 U. 8. 3WaU. 

155, 18 L. ed. 55 359 

Isham t. Greenham, 1 Handy, 357 861 
Itinerant, The, 2 W. Rob. Adm. 

236 349 

Izett V. Mountain, 4 East. 371 202 



J. 

Jack V. Des Moines & Ft. D. R. 

Co. 53 Iowa, 399 878 

Jackson s. Julia Smith, The, 6 Mc- 
Lean, 484, Newb. Adm. 

61 871 

B. McLean, 36 Fed. Rep 

213 .._._[ 694 

V. Magnolia, The, 61 U. 8 
20 How. 296, 15 L. ed. 

, , J^^ -jz -—1045 

Jackson Co. ®. Boylston Mut. Ins. 
Co. 139 Mass. 508, 52 

Am. Rep. 728 

1011, I0Y3", 1016 

Jacksonville 8. E. R. Co. «. Rab- 
bit, 39 111. App. 288... 877 

Jacob Dold Packing Co. v. Ober& 

Sons Co. 71 Md. 155... 236 

Jacobs V. Credit Lyonnais L R 
12 Q. B. Div. 689, 53 l! 

. ^ J- Q- ^- N- S- 156 893 

Jacobs ®. Tutt, 33 Fed. Rep. 413.. 15 
James c. Canadian Pac. R. Co. 4 

Inters. Com. Rep. 274 

-...534, 578, 659, 660, 716 
«. East Tennessee, V. & G. 

R. Co. 2 Inters. Com. 

Rep. 609.. 590, 599, 649, 658 
James & M. Buggy Co. v. Cincin- 

nati, N. O. & T. P. R 

Co. 3 Inters. Com. Rep. 

682 636, 

....651, 654, 658, 683, 782 
Jasper Trust Co. ». Kansas City 

M. & B. R. Co. 99 Ala! 

416 138.916 

Jeffersonville, M. & I. R. Co. «. 

Irvin, 46 Ind. 180.. 109 
V. Worland, 60 Ind. 839 98 



TABLE OF GASES. 



xliii 



Jeffersonville R. Co. v. Cleveland, 

3 Bush. 468 888, 893 

Jeffrey «. Bigelow, 13 "Wend. 518, 

38 Am. Dec. 476 87 

Jencks «. Coleman, 2 Sumn. 331.- 4 
Jenneson «. Camden & A. K. & 

Transp. Co. (Pa.)4 Am. 

L. Reg. 334 366 

Jennings v. Grand Trunk R. Co. 

53 Hun, 227, 137 N. Y. 

488, 49 Am. & Bng. R. 

Cas. 98 55, 80, 98 

99, 137, 147, 148, 235, 359 
Jennings County Comrs. v. Ver- 

barg, 63 Ind. 107 691 

Jessel V. Bath, L. R. 2 Exch. 267 

105, 106, 138 

J. B. Trudeau, The, 48 Fed. Rep. 

847 352 

Jewett V. Olsen, 18 Or. 419, 42 Am. 

& Eng. R. Cas. 485.937, 938 
Johanne, The, 48 Fed. Rep. 733.. 306 
John H. Pearson, The, 33 Fed. 

Rep. 845... 316 

Johnson «. Alabama & V. R. Co. 

69 Miss. 191 .194, 244 

V. East Tennessee, V. & Q. 

R. Co. 90 Ga. 810.. 321, 400 
V. Midland R. Co. 4 Exch. 

373 85 

v. New York "cent." R Co. 

31 Barb. 196 317 

V. New York Cent. R Co. 

33 N. Y. 610, 88 Am. 

Dec. 416 317 

«. Pensacola & P. R. Co. 16 

Fla. 623, 26 Am. Rep. 

731 571, 574 

734, 740, 744. 749, 760, 845 
Johnstone v. Richmond & D. R. 

Co. 39 8. C. 55 49, 

..51, 302, 381 

Joint Water & Rail Lines, Be, 3 

Inters. Com. Rep. 486 

434, 671, 709 

Jones 9. Clark, 9 Ind. 341 97 

e. Eastern Counties R. Co. 

3 C. B. N. S. 718, 1 

Nev. & McN. 45.. 611, 

612, 714, 749 

D. Fell, 5 Fla. 510 465 

V. New York & E. R. Co. 

39 Barb. 633 525,888 

«. Pitcher, 3 Stew. & P. 

(Ala.) 135, 24 Am. Dec. 

716 156, 163 

e. Voorhees, 10 Ohio St. 145 

41, 319, 330 



Jordan v. Fall River R. Co. 5 Cush. 

69, 51 Am. Dec. 44.... 746 
Joseph Grant, The, 1 Biss. 193... 138 
Joshua Barker, Tlie, Abb. Adm. 

215 357. 358,863 

Joslyn 0. Grand Trunk R. Co. 51 

Vt. 93 113 

Jourdan v. Long Island R. Co. 115 

N. Y. 880 434 

Joyce ®. Kennard, L. R. 7 Q. B. 

78 1009 

Joyner v. South Carolina R. Co. 

36S. C. 49 17 

Judson s. Western R. Corp. 4 Al- 
len, 520, 81 Am. Dec. 

718 415 

0. Western R. Corp. 6 Allen, 

486, 83 Am. Dec. 646.. 

135 912 
Julia, The," 14 Moore," 'P.' C.'210. .' 4 
Julien «. Peninsular &'0. Co. 3 

MooreP. C. N. S. 283.. 64 
Juniata Paton, The, 1 Biss. 15.. 

171, 1027 

Junod V. Chicago & N. W. R. Co. 

3 Inters. Com. Rep. 668, 

47 Fed. Rep. 290.. 649, 

719, 880, 1093 

Juston ». Ballam, 1 Salk. 34 334 

J. W. Brown, The, 1 Biss. 79 94 



K. 

Kallman v. United States Exp. Co. 

3Kan. 205-.45, 95, 200, 302 
Kansas City, M. & B. R. Co. v. 

Holland, 68 Mis's. 351.. 

127, 147, 333 

v. Lilly (Miss.) 45 Am. & 

Eng. R. Cas. 379.... 77, 80 
Kansas City, St. J. & C. B. R. Co. 

V. Simpson, 30 Kan. 645, 

46 Am. Rep. 104... 213, 254 
Kansas Pac. R. Co. b. Bayles, 19 

Colo. 348 764, 771, 852 

«j. Reynolds, 8 Kan. 639-.. 

188, 1038, 1030 

Karnak, The, L. R. 3 P. C. 505.. 64 

Kate, The, 13 Fed. Rep. 881 967 

®. Aitkin, 39 Fed. Rep. 328. 105 
Kauflman Mill Co. «. Missouri 

Pac. R. Co. 3 Inters. 

Com. Rep. 400 

481, 569, 783 

Kay V. Wheeler, L. R. 3 C. P. 

303 168 

Keeling v. Griffin, 56 Pa. 305.... 441 



xliv 



TABLE OF CASES. 



Keeney v. Grand Trunk K. Co. 47 
N. T. 535, 59 Barb. 104 
340, 757 

Keith V. Amende, 1 Bush. 455 95 

v. Kentucky Ceat. R. Co. 
(Ky.) 1 Inters. Com. 
Rep. 601 336, 238 

Kelham b. Kensington, 34 La. 

Ann. 100 188 

Keliher v. Nebo, The, 40 Fed. 

Rep. 31 -- 23 

Kellogg ®. La Crosse & M. Packet 

Co. SBisa. 496 167 

D. Larkin, 3 Pinney, 133..- 464 

Kelton ®. Taylor, 11 Lea, 264, 47 

Am. Rep. 384 385 

Kemp v. Coughtry, 11 Johns. 107 

_. ...-160, 906 

Kendall ®. London & S. W. R. 
Co. L. R. 7 Exch. 873, 
41 L. J. Exch. 184.... 
15, 358, 254 

Kennedy i>. Ryall, 67 N. Y. 379.. 25 

Kenney ». Grand Trunk R. Co. 59 
Barb. 104, 47 N. T. 535 

812 315 
c. New York Cent." &H. R 
R. Co. 125 N. Y. 423.. 
55, 56, 194 

Kent v. Hudson River R. Co. 32 

Barb. 278 325,343, 888 

Kentucky & I. Bridge Co. «. Lou- 
isville & N. R. Co. 2 
Inters. Com. Rep. 889, 
2 L. R. A. 325, 37 Fed. 

Rep. 680 5, 417, 

422, 424, 430, 438, 532, 
574, 600, 677, 679, 849, 1055 

Keokuk, The, i>. Home Ins. Co. 
("The Northern Belle") 
76 U. S. 9 Wall. 530, 19 

L. ed. 746 32, 38, 868 

v. Robson, 76 U. S. 9 Wall. 
517, 19 L. ed. 744 871 

Keokuk N. L. Packet Co. «. Keo- 
kuk, 95 U. S. 80, 24 L. 
ed.877 ..496,511, 517 

Kerbuish v. Havermeyer's & E. 
Sugar Ref. Co. 42 Fed. 
Rep. 511 918 

Kersey Oil Co. «. Oil Creek & A. 

R. Co. 13Phila. 374... 441 

Ketchum v. American Merchants 
D. Exp. Co. 53 Mo. 890 
48, 1030, 1082 

Kettle River R, Co. ■». Eastern R. 
Co. 6 L. R. A. 211, 41 
Minn. 461 688 



Keystone, The, 31 Fed. Rep. 413. 

...305, 308, 309, 333; 

Kidd «. Pearson, 128 TJ. S. 1, 33 

L. ed. 846, 3 Inters. 

Com. Rep. 332 851,937 

KifE V. Atchison, T. & 8. F. R. Co. 

82 Kan. 263... 403- 

«. Old Colony & N. R. Co. 

117 Mass. 591, 19 Am. 

Dec. 429 35, 936 

Kilbourn ®. Thompson, 103 U. S. 

168, 26 L. ed. 377.1078, 1084 
Killmer v. Nevr York Cent. & H. 

R. R. Co. 100 N. Y. 895, 

53 Am. Rep. 194 

:.-520. 749, 763 

Kimball o. Rutland & B. R. Co. 36 

Vt. 347, 63 Am. Dec. 

567 -._- 

5, 41, 74, 96, 124, 146, 1013 
Kimmish v. Ball, 129 U. 8. 317, 82 

L. ed. 695, 3 Inters. 

Com. Rep. 407. SOS' 

King V. Lady Franklin, The, 75 TJ. 

8. 8 Wall. 325, 19 L. ed. 

455... 94, 107, 137-139, 141 
■V. New York & N. H. R. Co. 

3 Inters. Com. Rep. 273 

663, 666, 72& 

®. Richards, 6 Whart. 418, 

37 Am. Dec. 430 937 

B. Shepherd, 3 Story. 849.. 

- 12,164, 

176, 182, 360,335, 336, 1028 
Kingaford ®. Marshall, 8 Bing. 458 171 
Kinnick v. Chicago, R. I. & P. R. 

Co. 69 Iowa, 666 

339, 347, 256, 262, 321, 827 
Kinsley «. Buffalo, N. Y. & P. R. 

Co. 8 Inters. Com. Rep. 

818, 37 Fed. Rep. 181.. 

571,753 

Kirby v. Adams Exp. Co. 3 Mo. 

App. 869.... 194, 208, 1027 
B. Western U. Teleg. Co. (8. 

D.) June 26, 1893.. 128, 151 
Kirchner n. Venus, 12 Moore, P. 

C. 384.... 95 

Kirkland v. Dinsraore, 63 N. Y. 

171,20 Am. Rep. 475.. 

.96, 103. 131 

Kirtland ®. Montgomery, 1 Swan. 

452 2 

Kitchen v. Vanadar, 1 Blackf. 856, 

12 Am. Dec. 249 866 

Kleineo. Catava, 2 Gall. 61 847 

Knapp V. United States & C. Exp. 

Co. 55 N. H. 348... 32, 115 



TABLE OF OASES. 



xlv 



:Knell,D. United States* B. SS. Co. 

lJones& S. 423 146 

Knight V. Providence & W. R. Co. 

13 R. I. 572, 43 Am. 

Rep. 46 862 

v. Southern Pac. K. Co. 41 

Tex. 406 852 

Knott V. 100 Bales of Rags, 60 Fed. 

Rep. 634 970 

i>. Raleigh & G. R. Co. 98 

N. C. 73 414 

Knowlton «. Brie R. Co. 19 Ohio 

St. 260, 2 Am. Rep. 395 

-.. 43, 893 

Knox V. Ninetta, The, Crabbe, 534 93 
Koehler, Ex parte, 1 Inters. Com. 

Rep. 28, 30 Fed. Rep. 

807 526,527,530, 531 

Koehler, Expa/rte, 1 Inters. Com. 

Rep. 317, 31 Fed. Rep. 

315 659 

Kohn e. Packard, 3 La. 224, 23 

Am. Dec. 453 892, 964 

KopitofE «. Wilson, L. R. 1 Q. B. 

Div. 377 190 

Kopper B. Dyer, 59 Vt. 477, 59 

Am. Rep. 742 -.. 162 

Krulder v. Ellison, 47 N. Y. 37, 7 

Am. Rep. 402.111, 902, 1008 
.Kyle ». Lawrence R. Co. 10 Rich. 

L. 382, 70 Am. Dec. 231 920 



La Amistad de-Rues, 18 U. S. 5 

"Wheat. 385, 5L.ed. 115 358 

Lacour v. New York, 3 Duer, 406 363 

La Crosse Manufacturers & J. 
Union v. Chicago, M. & 
St. P. R. Co. 2 Inters. 

Com. Rep. 9 

526, 532, 592, 684 

Ladd «. Foster, 31 Fed. Rep. 827- 

162, 175 

Ladue v. Griffith, 25 N. Y. 364, 82 

Am. Dec. 360 84 

Lady Pike, The, 2 Hiss. 145_-.13, 178 

Laing t. Colder, 8 Pa. 479, 49 Am. 

Dec. 533 42 

Lake Erie & W. R. Co. v. Hatch, 

6 Ohio, 0. C. 230 905 

n. Rosenberg, 31 111. App. 47 
.264, 323 

Lake Shore & M. S. R. Co. v. Ben- 
nett, 89 Ind. 457, 6 Am. 

&Eng. R. Cas. 391 

43,262, 346, 1008 



Lake Shore & M. S. R. Co. v. 

Hodapp, 83 Pa. 22.... 914 
«. State, 8 Ohio, C. C. 220.. 514 
Lake Superior & M. R. Co. t>. 

United States, 93 U. S. 

444, 33 L. ed. 967 5 

Lakin ®. Willamette Valley & C. 

R. Co. 13 Or. 436, 57 

Am. Rep. 25... 442 

Lallande «. His Creditors, 42 La. 

Ann. 705 71, 141 

Lamb e. Camden & A. R. & 

Transp. Co. 46 N. Y. 

271, 7 Am. Rep. 327, 

reversing 2 Daly, 454.. 

131, 

147, 185, 312, 404, 1029, 1080 
«. Camden & A. R. Co. 4 

Daly, 483.. 133, 181 

«. Henderson, 63 Mich. 302 

..118, 964 

v. Parkman, 1 Sprague, 343 

...95,306 

Lancashire & Y. R. Co. «. Green- 
wood, L. R. 21 Q. B. 

Div. 215, 35 Am. & 

Eng. R. Cas. 537 614 

Lancaster Canal Co. b. Parnaby, 

llAd. &B1. 223 5 

Lancaster Mills ». Merchants Cot- 
ton Press & S. Co. 89 

Tenn. 1, 45 Am. & Eng. 

R. Cas. 423 .14, 183 

Lance «i. Cowan, 1 Dana, 195 859 

Land o. Wilmington & W. R. Co. 

104 N. 0. 48, 40 Am. & 

Eng. R. Cas. 379. ...77, 80 

Lander o. Clark, 1 Hall, 355 26 

Landsberg a. Dinsmore, 4 Daly, 

490 203 

Lane ■». Atlantic Works, 111 Mass. 

141 87 

■0. Cotton, 1 Ld. Raym. 646 

.- 75, 76 

Lang v. Pen nsyl vania R. Co. 20 L. 

R. A. 360, 154 Pa. 342. 

152, 204 

Lapham ». Atlas Ins. Co. 24 Pick. 

1 302,306 

Larrinaga «. 2000 Bags of Sugar, 

40 Fed. Rep. 507 865 

Larrison u. Chicago & G. T. R. Co. 

1 Inters. Com. Rep. 

369 - 881 

Larrows n. Lewis, 44 Hun, 226... 964 
Latham v. Lawrence, 13 Conn. 299 26 
«. Rutley, 3 Barn. & C. 

20.. 96 



xlvi 



TABLE or CASES. 



La Tourrette e. Burton (' 'The Com- 
mander-ln-Chief") 68 U. 
S. 1 WaU. 43, 17 L. ed. 

609 4, 12, 35. 172, 

360, 361, 363, 887, 1003, 1007 
Laurie e. Douglas, 15 Mees. & W. 

746 169 

Laveroni v. Drury, 8 Exch. 166.. 

168, 887 

Lavoie®. Eeg. 3 Can. Exch. 96.. 

.394, 395, 1024 

Law ®. Bottsford, 26 Fed. Rep. 651 138 
Lawrence «. Aberdein, 5 Barn. & 

Aid. 107 169 

v. Denbreens (" CoUenburg, 

The,") 66 U. S. 1 Black, 

170, 17 L. ed. 89... 337, 919 

e. Milwaukee, L. S. & W. 

R. Co. 84 Wis. 427.. 

.261, 265 

V. Minturn, 58 U. S. 17 How. 

100, 15 L. ed. 58 

169, 303, 310, 311, 903, 1007 
e. New York, P. & B. R. 

Co. 36 Conn. 63 

95, 146, 303, 1012, 1035 

V. Winona & St. P. R. Co. 
15 Minn. 390, 3 Am. 

Rep. 130 365 

Lawrence R. Co. v. Cobb, 35 Ohio 

St. 94 857 

Lawton «. Comer, 7 L. R. A. 55, 

40 Fed. Rep. 480 1013 

Leadbetter v. jElna Ins. Co. 18 
Me. 267, 29 Am. Dec. 

505.. 220 

Leame®. Bray, 3 East, 593 178 

Leather Cloth Co. d. Lorsont, L. 

B. 9 Eq. 345-. 459,464 

Leathers v. Blessing, 105 U. S. 636, 

26 L. ed. 1192. ..1045, 1046 
Lebeau v. General Steam Nav. Co. 

L. E. 8C. P. 88 105 

Lechouizer v. Hamburg-American 

Packet Co. 8 Misc. 313 37 
LeConteur «. London & S. W . R. 

Co. 35 L. J. Q. B. 241. 44 
Ledyard «. Hibbard, 48 Mich. 421, 

42 Am. Rep. 474 118 

Lee s). Bargesa, 9 Bush. 652 2 

V. Boardman, 3 Mass. 238, 

3Am. Dec. 134 26 

V. Raleigh & G. R. Co. 72 

N. C. 236 254 

Lehigh Valley R. Co. «. Pennsyl- 
vania, 145 U. S. 192, 36 
L. ed. 673, 4 Inters. 
Com. Rep. 87 508, 527 



Lehmann v. Southern Pac. Co. 
3 Inters. Com. Rep. 80 

577, 667,710 

V. Texas & P. R. Co. 3 In- 
ters. Com. Rep. 706 

-.686, 727, 879 

Leigh -a. Smith, 1 Car. & P. 638.76, 141 

Leisy v. Hardin, 135 U. 8. 100, 34 

L. ed. 138, 3 Inters. 

Com. Rep. 36 -.81, 851. 937 

Leloup V. Mobile, 127 U. S. 640, 82 

L. ed. 311, 2 Inters. 

Com. Rep. 134 487 

Lenox v. United Ins. Co. 3 Johns. 

Cas. 178 ...304, 310 

Leonard d. American Exp. Co. 26 

U. C. Q. B. 533 135 

«. Chicago & A. R. Co. 3 
Inters. Com. Rep. 599 . 

783 853 
e. Decker," 32 Fed. Rep. 741 

- 1045 

B. Fitchburg R. Co. 143 

Mass. 307 119,269 

B. Tidd, 3 Met. 6.. 910, 911 

Lesinsky v. Great Western Dis- 
patch, 10 Mo. App. 134. 389 
Leslie v. Lorillard, 1 L.R. A. 456, 

110 N. Y. 519 440, 699 

Letchford «. Golden Eagle, The, 

17La. Ann. 9 35 

Levering v. Union Transp. & Ins. 
Co. 43 Mo. 88, 97 Am. 
Dec. 330.-19,185, 1028, 1030 
Levy e. Pontchartrain R. Co. 83 

La. Ann. 477 180 

D. Southern Exp. Co. 4 S. C. 

234 300, 204, 208, 404 

Lewis V. Alexander, 51 Tex. 578.. 703 
V. Great Western R. Co. L. 

R. 3Q. B. Div. 195.-.. 44 
e. Great Western R. Co. 5 
Hurlst. & N. 867, 47 L. 

J. Q. B. N. S. 131 

.80, 181, 221, 232 

V. Ludwick, 6 Coldw. 368, 

98Am. Dec. 454 35 

e. Smith, 107 Mass. 334-.. 1029 
Lewisohn v. National SS. Co. 56 

Fed. Rep. 603. 54 

Libby v. Ingalls, 124 Mass. 503... Ill 
License Tax Cases, 73 U. S. 5 Wall. 

463, 18 L. ed. 497 495 

Lickbarrow v. Mason, 1 Smith, 
Lead. Cas. 848, 2 T. R. 
63, 6 East, 21 ..109,866,901 

0. Mason, 5 T. R. 683 90 

Liddard v. Lopes, 10 East, 526 ... 873 



TABLE OF OASES. 



xlvii 



Ligo, The, 2 Hagg. Adm. 356 349 

Lincoln Board of Trade v. Burling- 
ton & M. R. Co. 2 In- 
ters. Com. Rep. 95 

589,600, 664,716 

c. Missouri Pac. R. Co. 2 In- 
ters. Com. Rep. 98 .655, 730 
Lincoln Creamery v. Union Pac. 
R. Co. 3 Inters. Com. 

Rep. 794. 600, 602 

Lindsley i). Chicago, M. & St. P. 
R. Co. 36 Minn. 539... 

254 272 
Lipford V. ChaVlotte& s'. C.R. Co.' 

7 Rich. L. 409.147, 161, 326 
Lippman v. Illinois Cent. R. Co. 

2 Inters. Com. Rep. 414. 685 
Little B. Boston & M. R. Co. 66 

Me. 239-. ...207, 1027 

e. Fargo, 43 Hun, 233 

.^.119, 346, 965 

e. Semple, 8 Mo. 99, 40 Am. 

Dec. 123 897 

Littlefleld «. Fitchburg R. Co. 158 

Mass. 1 542 

Little Miami, C. & X. R. Co. v. 
Dodds, 1 Cin. Super. Ct. 

47 141 

Little Miami R. Co. v. Washburn, 

22 Ohio St. 324 892 

Little Rock & Ft. & R Co. v. 

Bruce, 55 Ark. 65 

530, 559, 602, 921, 925 

». Cravens, 18 L. R. A. 527, 

57 Ark. 112 181 

». Daniels, 49 Ark. 352 409 

V. Hanniford, 49 Ark. 291, 
1 Inters. Com. Rep. 580, 
.-97, 510, 521, 920, 922, 925 

«. Hunter, 42 Ark. 200 77 

Little Rock & M. R. Co. ». East 
Tennessee V. & G. R. 
Co. 2 Inters. Com. Rep. 

454... -424, 677 

o. St. Louis, I. M. & S. R. 
Co. 2 Inters. Com. Rep. 
765, 41 Fed. Rep. 563.. 677 
«. St. Louis, I. M. & S. R. 
Co. 59 Fed. Rep. 400 
. 417, 419-421, 677, 713, 776 
Little Rock, M. R. & T. R. Co. ■». 

Corcoran, 40 Ark. 375. 1080 
D. Glidewell, 39 Ark. 487 .. 915 

«. Harper, 44 Ark. 208 188 

V. Talbot, 39 Ark. 524 

..127, 1012, 1030 

«. Talbot, 47 Ark. 97. 185 I 

Lively, The, 1 Gall. 325.. 358, 359, 363 I 



Liver Alkali Co. v, Johnson, L. R. 
7 Exch. 267, L. R. 9 
Exch. 338 3 

Liverpool & G. W. Steam Co. e. 
Phoanixins. Co. ("The 
Montana") 129 U. 8. 

897, 32 L. ed. 788 

12. 34, 35,46, 

52, 53, 64, 68, 72, 165, 
170, 191, 217, 894, 1017, 1021 

Liverpool Corn Trade Asso. «. 
London & N. W. R. Co. 
[1891] 1 Q. B. 120, 45 
Am. & Bng. R. Cas. 316, 
9 Ry. & Corp. L. J. 83 
576, 618, 635, 710, 717 

Live Yankee, -The, Deady, 420 

1027 

Livingston v. New Tork Cent. & 
H. R. R. Co. 5 Hun, 
562... 330, 327 

Lloyd s. General Iron Screw Col- 
lier Co. 3 Hurlst. & 0. 
284, 83 L. J. Exch. 269. 849 

Lloyd e. Guibert, 6 Best. & S. 100, 

L. R. 1 Q. B. 115 

-85, 64, 66, 894 

Logan «. Mobile Trade Co. 46 Ala. 

514... HI 

London & L. F. Ins. Co. «. Rome, 
W. & O. R. Co. 68 Hun, 
598. 78, 79, 130 

London & N. W. R. Co. v. Bart- 
lett, 7 Hurlst. & N. 

600 80 

o. Evershed, L. R. 3 App. 

Cas. 1029 785, 845 

B. Evershed, 26 "Week. Rep. 
863 759 

London & N. W. R. Co. ■». Glyn, 

IBl. &E1. 652 1009 

Lonergan ■». Stewart, 55 111. 44... 386 

Long «. New York Cent. R. Co. 

50N.Y. 76..94, 99, 111, 129 
i>. Straus, 107 Ind. 94, 57 
Am. Rep. 87 96, 97 

Longhurst v. Star Ins. Co. 19 Iowa, 

364... 224 

Lord V. Goodale, N. & P. SS. Co. 
103 U. S. 541, 26 L. ed. 
224.- 59, 495, 527, 528 

Lord Cochrane, The, 8 Jur. 716- - 867 

Loring «. Mulcahy, 3 Allen, 575-. 

910, 911 

Lotspeich «. Central R. & BUg. Co. 
73 Ala. 306, 18 Am. & 

Eng. R. Cas. 491 

576,594, 785,764 



xlviii 



TABLE OF CASES. 



Loud ». South Carolina R. Co. 4 

Inters. Com. Rep. 205. 

577, 594, 600 

Lough V. Outerbridge, 66 Hun, 103 575 
«. Outerbridge, 68 Hun, 486 

..764,771 

Louisiana Nat. Bank d. Laneville, 

52 Mo. 380 95,141 

Louisville & N. R. Co. He. 4 Inters. 

Com. Rep. 157 725, 781 

B. Baldwin, 85 Ala. 619.522, 523 
V. Barkhouse, 100 Ala. 543. 908 
V. Bell, 13 Ky. L. Rep. 393. 

266,347 

®. Boland, 18 L. R. A. 260, 

96 Ala. 626 426 

V. Brownlee, 14 Bush, 590. 

.130,183,1012 

V. Campbell, 7 Heisk. 253 .. 

.388,889 

v. Com. 13 Bush, 388 1090 

■B. Dies, 91 Tenn. 177.. .232, 833 
«. Fulgham, 91 Ala. 555, 9 

Ry. &Corp. L.J. 451.. 

...707, 876, 886 

V. Gerson (Ala.) Feb. 13, 

1894 272 

«. Gilbert, 7 L. R. A. 162, 88 

Tenn. 430 

.43, 45, 46, 52, 126, 179, 181 
®. Gilmer, 89 Ala. 534, 42 

Am. & Eng. R. Cas. 

450 889 

V. Lawson, 11 Ky. L. Rep. 

.S8 227, 914 

V. McGuire, 79 Ala. 395.... 

256, 864, 1032 

■». Manchester Mills, 88 

Tenn. 653 48, 188, 202 

c. Oden, 80 Ala. 38... 

49, 183, 188,202, 203 

a. Owen, 14 Ky. L. Rep. 118 194 
V. Railroad Commission of 

Tennessee, 19 Fed. Rep. 

679 680 

e. Sherrod, 84 Ala. 178 

202, 203,283 

v. Sowell, 90 Tenn. 17. 9 Ry. 

& Corp. L. J. 385 

....45, 46,49, 280, 283, 284 
«. State, 3 Head. 523, 75 Am. 

Dec. 778 1089 

V. Touart, 97 Ala. 514.. 124, 185 

V. Trent, 16 Lea, 419 270 

V. Wynn, 88 Tenn. 330 

204,253, 254, 272 

ioulsville, C. & L. R. Co. v. Hed- 

ger, 9 Bush, 645 254 



Louisville, E. & St. L. Cpnsol. R. 

Co. v. Crown Coal Co. 

43 111. App. 228.559, 762, 767 
a. Wilson, 18 L. R. A. 105, 

133 Ind. 517.-756,844,1024 
o. Wilson, 4 L. R. A. 244, 

119 Ind. 352.90, 98, 155, 845 
Louisville, N. A. & C. R. Co. a. 

Faylor, 126 Ind. 126.52, 194 
v. Flanagan, 113 Ind. 488.. 

80, 603,751 

«. Godman, 104 Ind. 490... 78 
V. Hart, 4 L. R. A. 549, 119 

Ind. 273... 264,365 

0. Nicholai, 4 Ind. App. 

119, 45 Alb. L. J. 412.. 1029 
V. Steele, 6 Ind. App. 183.. 277 
Louisville, N. O. & T. R. Co. «. 

Bigger, 66 Miss. 319... 

..254,271 

a. Mississippi, 138 U. S. 587, 

38 L. ed. 784, 2 Inters. 

Com. Rep. 801 509, 537 

Lovett e. Hobbs, 2 Show. 128 75 

Low V. DeWolf, 8 Pick. 101 109 

Lowe ®. East Tennessee, V. & G. 

R. Co. 90 Ga. 85 332 

Lowenberg e. Arkansas & L. R. 

Co. 56 Ark. 439 865 

Lucesco Oil Co. ■». Pennsylvania 

R. Co.2Pitt8b.477.... 150 
Lucy, The, 3 C. Rob. Adm. 208.. 359 
Ludlow «. Bowne, 1 Johns. 1, 3 

Am. Dec. 277 1004 

Luke a. Syde, 2 Burr. 882 853 

Luxton V. North River Bridge Co. 

147 U. S. 337, 37L. ed. 

194 493 

Lydian Monarch, The, 23 Fed. 

Rep.,2 198,203 

Lyng B. Michigan, 135 TJ. S. 166, 

84 L. ed. 153, 3 Inters. 

Com. Rep. 148 485 

Lynx, The, a. King, 12 Mo. 272,49 

Am. Dec. 135 337 

Lyons. Lennon, 106 Ind. 567 386 

a. Mells, 5 East, 428 

...14,17,42,190 

a. Tiffany, 76 Mich. 158.. 31, 22 
Lyons ». HUl. 46 N. H. 49.. ..115, 906 



M. 

McAbsher v. Richmond & D. R. 

Co. 108 N. C. 344... 20, 345 
McAlister ®. Chicago, R. I. & P. 

R. Co. 74 Mo. 351 248 



TABLE OF OASES. 



xlix 



MacAndrew s. Electric Teleg. Co. 

17 C. B. 3, S Am. L. 

Rev. 615, 33 Eng. L. & 

Eq. 180... 42,230 

V. Whitlock, 52 N. Y. 40, 11 

Am. Rep. 657, afE'g 3 

Sweeny, 628 -_325, 940, 967 
lUcArthur v. Sears, 21 Wend. 196 _ 

-.18, 118, 159, 164, 177, 182 
McBeath v. Wabash, St. L. & P. 

R. Co. 20 Mo. App. 445 

241, 271, 274 

McCall V. California, 136 U. S. 104, 

34 L. ed. 391, 3 Inters. 

Com. Rep. 181 485 

McCance ». London & N. W. R. 

Co. 31 L. J. Exch. 65, 

7Hurlst. & N. 477.-44, 303 
McCarthy «. Louisville & N. R. 

Co. (Ala.) 61 Am. & 

Eng. R. Cas. 178 ..173, 399 
McCarty v. Gulf, C. & S. F. R. Co. 

79 Tex. 33.- ..21, 395 

MoCombie v. Davies, 6 East, 538. 866 
NcConnell v. Norfolk & W. R. Co. 

86 Va. 248 365 

McCool «. Smith, 66 U. S. 1 Black, 

459, 17L. ed. 218 458 

McCoy ». Cincinnati, I. St. L. & 

C. R. Co. 13 Fed. Rep. 

31 236, 238 

.». Erie & W. Transp. Co. 

43Md. 498 155 

D. Keokuk & D. M. R. Co. 

44 Iowa, 424 254 

HcCready®. Holmes (S. C.)6Am. 

L. Reg. 239 95 

McCulloch !). Maryland, 17 U. S. 4 

Wheat. 316, 4 L. ed. 579 

488, 1071 

McCullough «. Hellweg, 66 Md.269 941 
«. Wabash Western R. Co. 

84 Mo. App. 23-78, 96, 185 
McCune «. Burlington, C. R. & N. 

R. Co. 52 Iowa, 600 ... 256 
McDaniel «. Chicago & N. W. R. 

Co. 24 Iowa, 412... 150, 893 
McDonald v. Highland R. Co. 3 

Ct. of Sess. (3d series) 614 15 
V. Hovey, 110 U. 8. 619, 28 

L. ed. 271 458 

e. Western R. Corp. 34 N. 

T. 497 390 

McDufEee v. Portland & R. R. Co. 

52 N. H. 430, 13 Am. 

Rep. 72 

37, 571, 744, 749, 

755, 758, 763, 769, 770, 885 
D 



McEntee v. New Jersey S. B. Co. 

45 N. Y. 34, 6 Am. Rep. 

28 887, 915 

McEweu V. Jeffersonville & I. R. 

Co. 23 Ind. 3G8, 5 Am. 

Rep.316 900 

McFadden ». Missouri Pac. R. Co. 

92 Mo. 343 201, 254 

McGaw V. Ocean Ins. Co. 33 Pick. 

405 _ 873 

McGraw v. Baltimore & O. R. Co. 

18 W. Va. 361, 41 Am. 

Rep. 696 320, 831 

McGrew v. Browder, 3 Mart. N. 

S. 17 859 

V. Missouri Pac. R. Co. 109 

Mo. 583 20,366 

McGwigan v. Wilmington & W. 

R. Co. 95 N. C. 433... 921 
MoHenry v. Philadelphia, W. & 

B. R. Co. 4 Harr. (Del.) 

448 ..158, 333 

Mclntyre «. Bowne, 1 Johns. 339.-1004 
McKay «. New York Cent. & H. 

R. R. Co. 50 Hun, 563. 

56, 339 

McKean «. Mclver, L. R. 6 Exch. 

36 915 

McKernan v. Mayhew, 31 Ind. 

291 _ 97 

Mackey «. Peterson, 29 Minn. 398, 

43 Am. Rep. 211 101 

McKinlay v. Morrish, 63 U. S. 31 

How. 843, 16 L. ed. 

100 919 

McLaren ■s. Detroit & M. R. Co. 23 

Wis. 138 329 

McLean v. Fleming, L. R. 2 H. L. 

128 138 

Macloon v. Chicago & N. W. R. 

Co. 3 Inters. Com. Rep. 

711 17, 588,885, 1053 

McMahon v. Macy, 51 N. Y. 

155- Ill 

McManus ». Lancaster & Y. R. 

Co. 3 Hurlst. & N. 703, 

4 Hurlst. & N. 346, 28 

L. J. Exch. 358- - 

39,44. 254, 755 

McMasters v. Pennsylvania R. Co. 

69 Pa. 374, 8 Am. Rep. 

364 - 964 

McMillan ». Michigan S. & N. I. 

R. Co. 16 Mich. 79, 93 

Am. Dec. 308- -96, 147, 366 
«. Western Classification 

Committee, 3 Inters. 

Com. Rep. 383 551 



1 



TABLE OF CASES. 



McMorran v. Grand Trunk R. Co. 

2 Inters. Com. Rep. 

604..-561,590, 599, 653,781 
MoNeal v. Braun, 53 N. J. L. 617. 905 
McNees «. Missouri Pac. R. Co. 22 

Mo. App.234 571,740 

McNichol 9. Pacific Exp. Co. 13 

Mo. App. 401 116 

McNiel, Me parte, 80 U. S. 13 

Wall. 236, 20 L. ed. 

624 486, 496 

Macombers. Parker, 13 Pick. 175. 118 
Macon «. Macon & W. R. Co. 7 

Ga.221- .- 32 

Madison Ave. Baptist Church v. 

Baptist Church in Olive 

Street, 73N. Y. 82.... 703 
Maggie Hammond, The, v. Mor- 

land, 76 U. S. 9 Wall. 

435, 19 L. ed. 772 

95, 331, 361, 869, 873 

Maggie J. Smith, The, v. Walker, 

123 D. S . 349, 31 L. 

ed. 175 351 

Maggie M., The, 30 Fed. Rep. 

692 298 

Maghee v. Camden & A. R. 

Transp. Co. 45 N. T. 

514, 6 Am. Rep. 124... 

215, 312,404,405 

Magnin a. Dinsmore, 56 N. Y. 

168 96, 146, 147 

e. Dinsmore, 70 N. Y. 410, 

26 Am. Rep. 608, afl'g 

60 N. Y. 35, 20 Am. 
Rep. 443, 50 How. Pr. 

457 51,203, 

207, 213, 285, 295, 315, 1035 

Maguireo. Smock, 42 Ind. 1 691 

Mahon v. Blake, 125 Mass. 477.. 

296, 914 

Mailler «. Express Propeller Line, 

61 N. Y. 313 357 

Main, The, v. Williams, 152 U. S. 

122, 38 L. ed. 381 62 

Majestic, The, 48 Fed. Rep. 780, . 354 
Majestic, The, 13 N. Y. Leg. Obs. 

100 938 

Maley d. Shattuck, 7 U. S. 3 

Cranch, 458, 2 L. ed. 

498 859 

Mallan v. May, 11 Mees. & W. 

653 459, 464 

Mallory, Se, 1 Inters. Com. Rep. 

294 714 

«. Tioga R. Co. 39 Barb. 488. 5 
Malpica «. McKown, 1 La. 248, 

80 Am. Dec. 279 213 



Manchester n. Milne, Abb. Adm. 

115 __ 94 

Manchester & L. R. Co. v. Concord 

R. Co. 3 Inters. Com. 

Rep. 319, 9 L. R. A. 

689, 66 N. H. — 

464, 467,471,695, 699 

Manchester, 8., & L. R. Co. •». 

Brown, L. R. 8 App. 

Cas. 703 46, 47 

v. Denabv Main Colliery Co. 

L. R. 14 Q. B. Div. 

209, L. R. 11 App. Cas. 

97, 26 Am. & Eng. R. 

Cas. 98... 613,614 

Manchisa e.Card, 39 Fed. Rep.492. 305. 
Manhattan Oil Co. v. Camden & 

A. R. Co. 52 Barb. 72 

5 Abb. Pr. N. S. 289, 54 

N. Y. 197 404,40* 

Mann v. Birchard, 40 Vt. 326. 

124. 125, 146, 185, 323, 1035 
Manning ». Hoover, Abb. Adm. 

188 m 

Manufacturers & J. Union v. 

Minneapolis & St. L. R. 

Co. 3 Inters. Com. Rep. 

115 590, 711, 731, 770 

Marcardier v. Chesapeake Ins. Co. 

12 XI. S. 8 Wheat. 605, 

5L. ed. 696 _. 26 

Marckwald i>. Oceanic Steam Nav. 

Co. 11 Hun, 462 315 

Margaret, The, v. Bliss, 94 V. S. 

494, 24 L. ed. 146 4 

Margeteon v. Glynn [1892] 1 Q. B. 

337 [1893] App. Cas. 351 31& 

Maria, The, 4 Rob. Adm. 348 35 

Marine Bank of Chicago B.Wright, 

48 N. Y. 1 112 

Marlborough, The, 47 Fed. Rep. 

667 23, 27, 311 

Marpeaia, The, L. R. 4 C. P. 212.. 349 
Marquardt c. French, 53 Fed. Rep. 

603 1022 

Marquette, H. & O. R. Co. e. 

Kirkwood, 45 Mich. 51, 

40Am. Rep. 453 392 

Marr e. Western U. Teleg. Co. 85 

Tenn. 542 45, 181 

Marsh v. Blythe. 1 McCord L. 360. 156 

V. Pedder, Holt. 74 109 

V. Russell, 66 N. Y. 388.... 473 
Marshall v. American Exp. Co. 7 

Wis. 1, 73 Am. Dec. 381 

891, 906 

«. New York Cent. R. Co. 

45 Barb. 503 337,343 



TABLE OF OASES. 



li 



Martello, The, v. Willey, 153 U. 8. 

64, 38 L. ed. 637... 185, 188 

Martha, The, Olcott, 140 94 

Martin v. Berens, 67 Pa. 459 101 

V. Berry, 87 Cal. 208 482 

1). Chicago, B. & Q. R. Co. 

2 Inters. Com. Kep. 33.. 
...715, 719 

V. Ft. Worth & D. C. R. Co. 

3 Tex. Civ. App. 556.. 104 
«. Hunter, 14 U. S. 1 Wheat. 

326, 4 L. ed. 102 483 

0. St. Louis, I. M. & 8. R. 

Co. 55 Ark. 510 143 

8. Salem Ins. Co. 2 Mass. 

421 168 

V. Southern Pac. Co. 2 

Inters. Com. Rep. 1 

561, 599, 652 

Marx V. Britannia, The, 84 Fed. 

Rep. 906.. 157, 1030 

Mary & Susan, The, 14 U. S. 1 

Wheat. 25, 4 L. ed. 27.. 1004 
Mary J. Vaughan, The, 3 Ben. 47, 

81 U. S, 14 Wall. 258, 

20 L. ed. 807 357, 363 

Maryland Ins. Co. v. Ruden, 10 

U. 8. 6 Cranch, 338, 3 

L. ed.242 94 

Mary Powell, The, 31 Fed. Rep. 

622 351 

Mary Stewart, The, 10 Fed. Rep. 

137.... 1046 

Mary Washington, The, v. Avres, 

5 Am. L. Reg. N. S. 

692 938 

Mascotte, The, 48 Fed. Rep. 119.. 869 
Maslin ». Baltimore & O. R. Co. 

14 W. Va. 180, 35 Am. 

Rep. 748 231 

Mason v. Missouri Pac. R. Co. 35 

Mo. App. 375.16, 18, 76, 236 
Massengale b. Western IT. Teleg. 

Co. 17 Mo. App. 357.. 275 
Master Stevedore's Asso. B.Walsh, 

3 Daly, 1 465 

Mather ». American Exp. Co. 138 

Mass. 55, 52 Am. Rep. 

258 7 

Matthiessen & W. Sugar Ref . Co. 

V. Gusi, 39 Fed. 794 

155, 157, 168 

Mattingly s. Pennsylvania Co. 3 

Inters. Com. Rep. 806.. 

.., 393, 681 

Maud Webster, The, 8 Ben. 547.. 1047 
Maury «, Talmadge, 3 McLean, 157 12 
Maying «!. Todd, 1 Stark. 73... 84, 137 



Maxey v. Williamson County Ct. 

72 111.207 100 

Maxfield d. Schwartz, 10 L. R. A. 

606, 43 Minn. 221 100 

May V. Babcock, 4 Ohio, 334.. 94, 399 
Mayall a. Boston & M. R. Co. 19 

2Sr. H. 123, 49 Am. Dec. 

149 401 

Mayell o. Potter, 2 Johns. Cas. 371 

892, 965, 966 

Mayflower, The, 1 Brown, Adm. 

887 SfiS 

May Flower, fhe,"3'Ware,'30o"II 103 
May hew v. Fames, 3 Barn. & C. 

601 137 

Maynard v. Syracuse, B. & N. Y. 

R. Co. 71 N. Y. 180, 37 

Am. Rep. 38 55, 56 

Means v. Bank of Randall, 156 U. 

S. 630, 36 L. ed. 1107.. 

107, 108 

Mears v. Waples, 3 Houat. (Del.) 

583... 109 

Mechanics & T. Bank v. Gordon, 5 

La. Ann. 604 395 

Mechanics Bank ». Straiton, 3 

Keyes, 365 111 

Medbury v. New York & B. R. Co. 

36 Barb. 564 1034 

Meeker B, Claghorn,44N. Y. 849.1008 
Meissner b. Brun, 138 U. S. 474, 

33 L. ed. 496 847, 853 

Melbourne ®. Louisville & N. R. 

Co. 88 Ala. 448.... 889, 890 
Melloy V. Lehigh & W. Coal Co. 

37 Fed. Rep. 877 361 

Memphis & C. R. Co. v. Reeves, 77 

U. S. 10 Wall. 176, 19 

L. ed. 909 18,15,35, 

148, 160, 161, 173, 175, 

176, 179, 188, 337, 1028, 1030 
Memphis &L. R. R. Co.». Southern 

Exp. Co. 117 U. S. 1, 

39 L. ed. 791... _29, 33,530 
Menacho «. Ward, 27 Fed. Rep. 

529 _-.734, 739, 763 

Menzell v. Chicago & N. W. R. 

Co. 1 Dill. 531 151 

Mercantile Mut. Ins. Co. v. Calebs, 

20 N.Y. 173.1013,1015,1017 
e. Chase, 1 E. D. Smith, 115 

.,. 41, 320 

Merchants & M. Ins. Co. Shillito, 

15 Ohio St. 559, 86 Am. 

Dec. 491.. 299 

Merchants Bank of Canada o. 

Union R. & Transp. Co. 

C9N. Y. 378 109,901 



lii 



TABLE OF OASES. 



Merchants Cotton Press & S. Co. ®. 
Insurance Co. of N. A. 
151 U. S. 368, 38 L. ed. 

195 885 

Merchants Despatch & Transp. Co. 
v. Cornforth, 3 Colo. 
280, 25 Am. Kep. 757.-7, 18 

V. Merriam, 111 Ind. 5 909 

Merchants Dispatch Transp. Co. v. 
Bloch, 86Tenn. 392...- 
.....6, 7, 45, 129, 412, 1012 

V. Bolles, 80 111. 473 86, 405 

V. Furthmann, 149 111. 66.. 133 
V. Furthermann, 149 111. 

App. 561 135 

«. Joesting, 89111. 152 7 

V. Kahn, 76 111. 520.... 315, 388 

». Leysor, 89 III. 43 7, 130 

V. Theilbar, 86 111. 71 127 

Merchants Mut. Ins. Co. v. Butler, 

20Md.41 873 

V. Lacroix, 35 Tex. 249, 14 

Am. Rep. 370 320 

Merchants Nat. Bank of Cincin- 
nati ». Bangs, 102 Mass. 

391 94 

Merchants Union of Spokane Falls 
V. Northern Pac. R. Co. 
4 Inters. Com. Rep. 188 

659, 661 

Meriwether v. Lowndes County, 89 

Ala. 362 159 

Merriam e. Hartford & N. H. R. 
Co. 30 Conn. 354, 53 
Am. Dec. 344.. 79, 390, 746 
Merrill «. American Exp. Co. 62 

N. H. 514 9, 206, 1013 

V. Grinnell, 30 N. T. 594... 1008 
Merrimack, The, 13 U.S. 8 Cranch, 

317, 3 L. ed. 575 1004 

Merriman «. May Queen, The, 

Newb. Adm. 464 147 

Merritt v. Earle, 39 N. Y. 117, 86 
Am. Dec. 393, 31 Barb. 

38 ..161,176, 177, 179 

». Old Colony & N. R. Co. 

11 Allen, 80 84 

Merry v. Glasgow R. Co. 4 Ry. & 

Canal T;'afflc Cas. 383.. 775 
Mersey Docks & H. Board v. 
Gibbs, L. R. 1 H. L. 93, 

35 li. J. Exch. 235 5 

V. Penhallow, 7 Harlst. & 
N. 329, 30 L. J. Exch. 

339. 5 

Mershon v. Hobensack, 22 N. J. L. 

372 35. 177, 178 

Merwin «. Butler, 17 Conn. 138.. 891 



Messenger v. Pennsylvania R. Co. 
86N. J.L.407, 13Am. 
Rep. 457 -...737, 744, 
746, 749,751,755,757,770,885 
e. Pennsylvania R. Co. 37 
N. J. L. 531, 18 Am. 

Rep. 754... 

744, 746, 750, 756, 760, 769 
Metcalf V. McLaughlin, 122 Mass, 

84 910, 911, 914 

V. Weld, 14 Gray, 210 117 

Metropolitan Bank v. Van Dyck, 

37N.T.400.... 848 

Metzger v. Cleveland, 3 Ind. Law 

Mag. 42 432 

Meyer v. Chicago & N. W. R. Co. 
24 Wis. 566, 1 Am. Rep. 

207 187 

V. Dresser, 16 C. B. N. S. 

657 138,140 

«. Lemcke, 31 Ind. 208.. 115, 906 
V. Vicksburg, S. & P. R. Co. 

41La. Ann. 639 77,79 

Meyerstein v. Barber, L. R. 3 C. 

P. 38, L. R. 4 Eng. & 

Ir. App. 317.. 102, 107, 109 

Miami Powder Co. a. Port Royal 

&W. C. R.C0.38S. C. 

78-_ ....860,861,936 

Michaels v. New Tork Cent. R 
Co. 30 N.Y. 564, 86 Am. 

Dec. 415- 

-.11, 150, 176, 312, 342, 946 
Michigan Cent. R. Co. b. Burrows, 

33 Mich. 6.176, 177, 330, 325 

«. Curtis, 80111.334.. 177 

». Hale, 6 Mich. 243 

95, 124, 197 

e. Mineral Springs Mfg. Co. 
83 U. S. 16 Wall. 318, 

31L. ed. 397. 124, 

135, 147, 387, 388, 390, 944 
B. Phillips, 60 111. 190.. 107, 109 
Michigan Congress Water Co. d. 
Chicago & G. T. R. Co. 
3 Inters. Com. Rep. 428 

37, 600,686 

Michigan S. & N. I. R. Co. n. Cas- 
ter, 13 Ind. 167 1034 

V. Day, 30 111. 375, 71 Am. 

Dec. 278.. 261, 330, 331, 329 
«. Heaton, 37 Ind. 448, 10 

Am. Rep. 89.. .43, 126, 185 
o. McDonough, 21 Mich. 

165.. ..253,354 

V. Shurtz, 7 Mich. 518.77, 84, 391 
Middlesex, The, 11 Law Rep. N. 

S. 14 940 



TABLE OF CASES. 



liii 



Midland R. Co. «. Bromley, 17 C. 

B. 376 -...1028 

Mignano v. Mc Andrews, 53 Fed. 

Rep. 958- 870 

Milan, The, Lush Adm. 388, 31 L. 

J. Adm. 105 - 349 

Milburn v. 35,000 Boxes of 
Oranges & Lemons, 57 

Fed. Rep. 286 870 

Miles «. Cattle, 6 Bing. 743 14 

V. Fletcher, 1 Dougl. 231.- 867 
9. James, 1 McCord, L. 157 81 
Miller v. Hannibal & St. J. R. Co. 
90 N. Y. 430, 43 Am. 

Rep. 179 105, 106 

V. Hannibal & St. J. R. Co. 

24 Hun, 607 150 

V. New York, 109 U. S. 385, 

27 L. ed. 971 491 

B. Resolution, The, 2 U. S. 
2 Dall. 19, 1 L. ed. 

263 .-- - 359 

V. South Carolina R. Co. 9 
L. R. A. 833, 33 S. C. 

359 924, 1034 

V. Steam Nav. Co. 10 N. Y. 

431 178 

V. Thompson, 60 Me. 822.. 867 
e. Tiffany, 68 IT. S. 1 Wall. 

810, 17 L. ed. 543 893 

Millhiser v. Erdmann, 103 N. C. 27 913 
Milligan ®. Grand Trunk R. Co. 17 

U. C. C. P. 115 342 

Milliken v. Dehon, 27 N. Y. 

364 - 1005 

Milloy V. Grand Trunk R. Co. 33 
Ont. Rep. 454, 55 Am. 
&Bng. R. Cas. 579-... 184 
Mills a. Central R. Co. of N. J. 41 

N. J. Eq. 1— 433 

D. Michigan Cent. R. Co. 45 
N. Y. 622, 6 Am. Rep. 

152 80, 888 

Milton v. Denver & R. G. R. Co. 

1 Colo. App. 307 

— .342,875, 1033 

Milwaukee & M. R. Co. v. Fair- 
child, 6 Wis. 408 920 

Milwaukee & St. P. R. Co. b. 

Smith, 74111. 197 895 

Milwaukee Belle, The, 3 Biss. 

197 - -- - 300 

Milwaukee Chamber of Commerce 
B. Flint & P. M. R. Co. 

2 Inters. Com. Rep. 893 
— .684, 685,783 

Minerva, The, 8 C. Rob. Adm. 

84.- 360 



Minnie Smith, The, 57 Fed. Rep. 

251 - 858 

Missouri & L. R. Tie & Lumber 

Co. 1). Cape Girardeau 

& a. W. R. Co. 1 Inters. 

Com. Rep. 607 536, 531 

Missouri Coal & Oil Co. v. Hanni- 
bal & St. J. R. Co. 35 

Mo. 84 80 

Missouri, K. & T. R. Co. v. Graves 

(Tex. App.) May 3, 1890 

---20, 21, 194, 335,330, 375 
e. Olive (Tex. Civ. App.) 

Oct. 4,1893 262 

V. Stoner, 5 Tex. Civ. App. 

50 407, 409, 935 

«. Trinity County Lumber 

Co. 1 Tex. Civ. App. 

558-- 556, 601, 878 

Missouri Pac. R. Co. v. Childers, 1 

Tex. Civ. App. 302..-- 275 
D. China Mfg. Co. 79 Tex. 26 188 
V. Edwards, 78 Tex. 807-270, 271 
V. Fagan, 3 L. R. A. 75, 73 

Tex. 127 120, 

241, 254, 270, 376, 393, 390 

e. Finley, 88 Kan. 550 338 

V. Harmonson (Tex. App.) 

April 23, 1890 21 

V. Harris, 67 Tex. 166 

57, 120, 334, 354, 276 

V. Haynes, 72 Tex. 175 337 

V. Heath (Tex.) Dec. 1, 

1891 - 270 

®. Heidenheimer, 82 Tex. 

195 908, 909, 926, 1005 

V. International M. Ins. Co. 

84 Tex. 149--- 186 

V. Ivy, 1 L. R. A. 500, 71 

Tex. 409. _ 1012 

V. Ivy, 79 Tex. 444 244 

V. Levi (Tex. App.) Oct. 26, . 

1889 346, 347 

«. M'Fadden, 154 U. S. 155, 

38L. ed. 944-.107, 139, 141 
V. Paine, 1 Tex. Civ. App. 

621 375 

V. Sherwood, 17 L. R. A. 

643, 4 Inters. Com. Rep. 

340, 84 Tex. 125.57, 183, 539 
V. Smith, 84 Tex. 348.. -.52, 194 
V. Texas & P. R. Co. 30 Fed. 

Rep. 2-. -572, 573, 756, 758 
V. Texas & P. R. Co. 31 Fed. 

Rep. 527- 630 

». Texas & P. R. Co. 41 Fed. 

Rep. 319 343 

V. Twiss, 35 Neb. 367-399, 404 



liv 



TABLE OF OASES. 



Missouri Pac. R. Co. v. Vande- 
water, 3L. R. A. 139,36 

Neb. 333 .56, 395, 1013 

D. Weisman, 3 Tex. Civ. 
App. 86 435 

Missouri SS. Co. Be. L. R. 43 Ch. 

Div. 331 893, 894 

Se (Eng. Ct. Aup.) 7 Ry. & 
Corp. L. j; 5 65 

Missouri Valley R. Co. ». Cald-' 

well, 8 Kan. 344 185 

Miston ®. Lord, IBlatchf. 354--. 334 

Mitchel «. Ede, 11 Ad. & El. 888, 

3 Perry & D. 513.. 889, 1004 
Mitchell V. Reynolds, \ P. Wms. 

181, 1 Smith Lead. Cas. 

(7th ed.) 708 

117, 436, 463, 473 

V. Steelman, 8 Cal. 363 486 

V. United States Exp. Co. 

46 Iowa, 314 188 

M. M. Chase, The, 37 Fed. Rep. 

708 938 

Mobile & M. R. Co. e. Jurey, 111 
U. S. 584, 28 L. ed. 537 
-...90, 98, 1031, 1033, 1034 

». Steiner, 61 Ala. 559 

591, 853, 874 

Mobile & 0. R. Co. v. Dismukes, 

4 Inters. Com. Rep. 300, 
17 L. R. A. 113, 94 Ala. 
131 533,851 

V. Hopkins, 41 Ala. 496, 94 

Am. Dec. 607 134, 208 

». Jarboe, 41 Ala. 644 

147, 154, 1030 

n. Weiner, 49 Miss. 735 

.41, 136. 1013 

Mobile County v. Kimball, 103 U. 
S. 691, 36L. ed. 338... 
83,486, 496, 510 

Moffat «. Strong, 10 Johns. 13.... 174 

Mogul SS. Co. V. McGregor, L. R. 
31 Q. B. Div. 544, 39 
Alb. L. J. 50.. 463, 467, 751 
V. McGregor [1893] 1 App. 
Cas. 25 694, 751 

Mohawk, The, 75 U. S. 8 Wall. 

153, 19 L. ed. 406 873 

Mollie Mohler, The, ■». Home Ins. 
Co. ("The Mohler") 2 
BIss. 508, 88 U. S. 31 
Wall. 230, 33 L. ed. 485 
13, 178, 1028 

Mondego, The, 56 Fed. Rep. 

368 230 

Montell V. Wm. H. Rutan, The, 1 

Int. Rev. Rec. 135 868 



Monticello, The, v. Mollison, 58 U. 

S. 17 How. 153, 15 L. 

ed. 68 363. 363, 1028 

Monitor, The, 3 Hiss. 35. 357 

Monitor Mut. F. Ins. Co. ■». Buf- 

fum, 115 Mass. 343.... 215 
Montana, The, 17 Fed. Rep. 377.. 333 
Montgomery «. Port Adelaide, 

The, 38 Fed. Rep. 753. 

941,964 

Montgomery & E. R. Co. ■». Kolb, 

73 Ala. 396, 49 Am. Rep. 

54 79 

Montgomery & W. P.R. Co. ». Ed- 
monds, 41 Ala. 667 185 

Mooney v. Howard Ins. Co. 138 

Mass. 375, 52 Am. Rep. 

277 385 

Moore «. American Tranap. Co. 65 

U. S. 24 How. 1, 16 L. 

ed. 674 59 

V. Evans, 14 Barb. 524 ...45, 58 
V. Great Northern R. Co. L. 

R. 10 Ir. Ch. Div. 

95 39 43 

V. Hlll,"3'8"Fe(i.'Rep."330l.. '866 
V. Michigan Cent. R. Co. 3 

Mich. 23 178 

Moore s. Midland R. Co. 9Ir. C. L. 

Rep. 30 260 

41. Wilson, 1 T. R. 659 1004 

Moran v. New Orleans, 112 U. S. 

69, 18L. ed. 653....506,530 
■B. Portland Steam Packet 

Co. 35 Me. 55 361 

e. Ross, 79 Cal. 549 537 

Mordecai «. Lindsay ("The Eddy") 

73 U. S. 5 Wall. 481, 18 

L. ed. 486.... 863, 868, 

938, 939, 940, 943, 966, 967 
Morewood v. PoUok, 1 El. & Bl. 

743 943 

Morewood, The, v. Enequist, 64 

U. S. 23 How. 491, 16 L. 

ed. 516 ....868,1047 

Morgan v. Donovan, 58 Ala. 241 -. 

443,443, 690,691 

V. Pike, 35 Eng. L. & Eq. 

387- 758 

Morgan's L. & T. R. & SS. Co. v. 

Louisiana Board of 

Health, 118 U. S. 455, 

30 L. ed. 337 

484, 486, 496, 510, 511, 850 
Moriarty v. Harnden's Express, 1 

Daly, 327 .- 80,203 

Morning Mail, The, 17 Fed. Rep. 

545 196 



TABLE OF CASKS. 



Iv 



Momingstar v. Cunningham, 110 
Ind. 328, 59 Am. Rep. 

211 .118, 385 

Morrill v. Boston & M. R Co. 55 

N. H. 531 461, 694 

Morris, Be, 2 Inters. Com. Rep. 617 229 
«. Delaware, L. & W. R. Co. 
2Inters. Com. Rep.617, 

40 Fed. Rep. 101 - 

....773, 774,779 

V. Piatt, 82 Conn. 85 159 

Morrison e. Davis, 30 Pa. 171, 57 

Am. Dec. 695 

...35,149,161,164, 175,176 

®. Gray, 2 Ring. 260 1005 

V. I. & V. Florio SS. Co. 36 

Fed. Rep. 569 345 

«. Phillips & C. Constr. Co. 

44 Wis. 405, 28 Am. 
Rep. 599 46, 281, 287 

Morris Run Coal Co. «. Barclay 
Coal Co. 68 Pa. 173, 8 
Am. Rep. 159 461, 694 

Morritt o. North Eastern R. Co. 
L. R. 1 Q. B. Div. 302, 

45 L. J. Q. B. 289 865 

Morse v. Slue, T. Raym. 230, 1 

Vent. 190, 238 18 

Jiloses V. Boston & M. R. Co. 34 N. 

H. 71,55 Am. Dec. 222, 

82 N. H. 523, 64 Am. 

Dec. 381 184, 

141, 206, 213, 285, 823, 892 

e. Norris, 4 N. H. 304 11 

V. Port Townsend S. R. Co. 

5 Wash. 594 408 

Mosher ». Southern Exp. Co. 38 

Ga. 87 399 

Moulton V. St. Paul, M. & M. R. 

Co. 31 Minn. 85, 47 Am. 

Rep. 781-204, 208, 254, 279 
Mount Pleasant Mfg. Co. i>. Cape 

Fear & Y. V. R. Co. 106 

N. C. 207, 42 Am. & 

Eng. R. Cas. 498... 409, 875 
'MX. Vernon Co. ®. Alabama G. S. 

R. Co. 92 Ala. 296.. 388, 391 

Mouse's Case, 12 Coke, 63 169 

Mower v. Leicester, 9 Mass. 247, 6 

Am. Dec. 63 1089 

Muddle V. Stride, 9 Car. & P. 380 189 
Mugler v. Kansas, 128 U. S. 623, 

81 L. ed. 205 937 

MuUarky ». Philadelphia, W. &B. 

R. Co. 9Phila. 114.... 366 
MuUer i>. Cincinnati, H. & D. R. 

Co. 2 Cin. Super. Ct. 

280 133 



Mulligan v. Illinois Cent. R. Co. 

38 Iowa, 181, 14 Am. 

Rep. 514 129 

Mumford «. Commercial Ins. Co. 5 

Johns. 262 334 

Munhall o. Pennsylvania R. Co. 92 

Pa. 150 710 

Munn V. Baker, 2 Stark. 255 127 

V. Commission Co. 15 Johns. 

44, 8 Am. Dec. 219 .108, 394 
V. Illinois, 94 V. S. 113, 24 

L. ed. 77 

497, 499, 500, 746, 755, 758 
Murphy v. Dunham, 38 Fed. Rep. 

503 359 

«. Staton' ¥ Munf .'339" 1 '. . Il027 
«. Wabash R. Co. 3 Inters. 

Com. Rep. 725... 594 

Murray ». Glasgow & S. W. R. Co. 

4 Ry. & Canal Traffic 

Cas. 456 613 

B. Vanderbilt, 39 Barb. 140 

.443, 691 

®. Warner, 55 N. H. 546, 30 

Am. Rep. 227 906 

Muschamp v. Lancaster & P. J. R. 

Co. SMees. & W. 421.. 

.364, 399 

Muser d. American Exp. Co. 1 Fed. 

Rep. 383 197,202 

V. Holland, 17 Blatchf. 412. 

45, 50, 202 

Musurius, The, 1 C. Rob. Adm. 80 359 
Mutton V. Midland R. Co. 4 Hurlst. 

&N. 515 364 

Myers v. Baymore, 10 Pa. 114, 49 

Am. Dec. 586 866 

V. PennsylvaniaCo. 2 Inters. 

Com. Rep. 403 551, 597 

Mynard v. Syracuse, B. & N. T. R. 

Co. 71 N. Y. 180, 27 

Am. Rep. 28 146, 147 

Myrick v. Michigan Cent. R. Co. 

107 U. S. 103, 27 L. ed. 

335 53 

Mytton V. Midland R. Co. 28 L. J. 

Exch. 385 899 



N. 

Nacoochee, The, 34 Blatchf. 99, 38 

Fed. Rep. 463 163, 350 

Napier v. Glasgow & S. W. R. Co. 

INev. &McN. 293.-.. 667 

Narcissus, The, 4 C. Rob. Adm. 

17 359 

Narragansett, The,'oic"o"tt,'246.'358, 360 



Ivi 



TABLE OF CASES. 



Nashua Lock Co. n. Worcester & 
N. R. Co. 48 N. H. 339, 

2 Am. Rep. 243 

— 396, 399, 413, 413 

Nashville & C. R. Co. b. David, 
6 Heisk. 261, 19 Am. 
Rep. 594. _ 161, 175, 327, 389 
v. Jackson, 6 Heisk. 271... 

- 43, 147, 16] 

V. King, 6 Heisk. 269 161 

Nashville, C. & St. L. R. Co. v. 
Alabama, 128 U. S. 96, 
32 L. ed. 352. 3 Inters. 
Com. Rep. 228, aff'g 83 

Ala. 71 484,522 

V. Heggie, 86 Ga. 210 244 

Nathaniel Hooper, The, 3 Sumn. 

543 853 

National Bank of Chester v. At- 
lanta & C. A. L. R. Co. 

25S. C. 216 78 

of Commerce v. Chicago, B. & 
N. R. Co. 9 L. R. A. 

263, 44 Minn. 224 

.- 143, 145, 926 

National Mercantile Bank ». Ry- 

mill, 44 L. T. N. S. 767 910 
National Steam Nav. Co. s. Dyer, 
(" The Scotland") 105 
U. S. 24, 26 L. ed. 100 
....34, 58, 59, 61, 357, 1041 
Nebeker v. Cutsinger, 48 Ind. 436 101 
Neil Cochran, The, 1 Brown, 

Adm. 162 1047 

Neilsen v. Jeaup, 30 Fed. Rep. 138 

133, 218,968 

Nelson v. Hudson River R. Co. 48 

N. Y. 498 49, 80, 136 

V. Iverson, 17 Ala. 216 910 

». Odiorne, 45 N. Y. 489... 339 
v. "Woodruff, 66 U. S. 1 
Black. 156, 17 L. ed. 97 

....95, 168, 919 

Nemesis, The, Edw. Adm. 50 359 

Nettles V. South Carolina R. Co. 
7 Rich. L. 190, 62 Am. 

Deo. 409 147 

New Albany & S. R. Co. v. Camp- 
bell, 12 Ind. 55 905 

Newborn ». Just, 2 Car. & P. 76. 197 
New Brunswick, 8. B. & C. 
Transp. Co. v. Tiers, 24 
N. J. L. 697, 64 Am. 
Dec. 394.... 11, 35, 174, 179 
Newburger ®. Howard & Co's Ex- 
press, 6 Phila. 174.... 203 
Newby v. Chicago, R. I. & P. R. 

Co. 19 Mo. App. 391.. 885 



Newell v. Norton, 70 U. S. 3 WalL 

357, 18 L. ed. 271 

.360, 363, lOOT 

New England Exp. Co. v. Maine 
Cent. R, Co. 57 Me. 188, 

3 Am. Rep. 31 571, 739, 

744, 746, 760, 763, 769, 885- 
New England Ins. Co. i>. Sarah 
Ann, The, 38 U. S. 13 
Pet. 387, 10 L. ed. 213 

310, 866, 867 

New England M. Ins. Co. ■». Dun- 
ham, 78 U. S. 11 Wall. 

1, 20 L. ed. 90 .1047 

New England Mut. L. Ins. Co. v. 
Woodworth, 111 U. S. 

138, 38 L. ed. 379 1043 

Newes v. Scott, 54 U. S. 13 How. 

268, 14 L. ed. 140 895 

Newhall b. Central Pac. R. Co. 51 
Cal. 350, 21 Am. Rep. 

713 109 

New Jersey, The, Olcott, 444 

156, 178, 358^ 

New Jersey Steam Nav. Co. v. 
Merchants Bank of Bos- 
ton, 47 TJ. S. 6 How. 

425, 12 L. ed. 465 

7, 13, 14. 43, 80, 

125, 175, 180, 182, 197, 
198, 746, 944, 1007, 104T 
New Orleans, The, 26 Fed. Rep. 

44 303, 304 

New Orleans Cotton Exch. v. Cin- 
cinnati, N. O. & T. P. 
R. Co. 2 Inters. Com. 

Rep. 389 

528, 572, 575, 590, 600, 794 
«. Illinois Cent. R. Co. 2 
Inters. Com. Rep. 777 

552, 658, 662. 663, 684 

0. Louisville, N. O. & T. R. 
Co. 3 Inters. Com. Rep. 

523 880,882 

New Orleans Gaslight Co. «. Lou- 
isiana Light & H. P. & 
Mfg. Co. 115 U. S. 650, 

29 L. ed. 516 489, 850 

New Orleans Mut. Ins. Co. v. New 
Orleans, J. & G. N. R. 
Co. 20 La. Ann. 302.43, 180 
New Orleans, St. L. & C. R. Co. 

s. Faler, 58 Miss. 911.. 186 
Newport, The, Swab. Adm. 

335 873 

Newson e. Thornton, 6 East. 

41 : 109' 

Newstadt «. Adams, 5 Duer, 43 .. 203 



TABLE OF CASES. 



Ivii 



New World, The, v. King, 57 U. 
S. 16 How. 469, 14 L. 
ed. 1019 11, 124 

New York v. Hamilton Ins. Co. 
39 N. T. 46, 100 Am. 

Dec. 400 220 

V. Miln, 36 U. S. 11 Pet. 155, 

9L. ed. 669 486, 496 

V. Pentz, 24 Wend. 668 1030 

New York & N. E. Co. ■». New 
York & N. B. E. Co. 3 
Inters. Com. Eep. 542 
417, 433, 423, 718 

New York & W. SS. Co. e. Mount 
("The Benefactor") 103 
U. S. 347, 26 L. ed. 466 
58, 63, B3, 1041, 1042 

New York Board of Trade & 
Transportation v. Penn- 
sylvania E. Co. Sinters. 
Com. Eep. 417. -..537, 
549, 552, 575, 680, 778, 879 

New York Cent. & H. E. E. Co. 
1). FralofE, 100 U. 8. 24, 

25 L. ed. 531 50, 202 

v. Standard Oil Co. 87 N. 

Y. 486 856 

New York Cent. E. Co. v. Lock- 
wood, 84 U. 8. 17 Wall. 

357, 31 L. ed. 637 

-2, 43, 45, 50, 

53, 78, 94, 146, 179, 181, 
294, 198, 278, 412. 895, 952 

New York, L. E. & W. E. Co. «. 
Atlantic Eef. Co. 139 
N. Y. 597, 49 Am. & 

Eng. E. Cas. 131 969 

V. National 88. Co. 37 N. 
Y.S. E. 731 847 

New York L. lus. Co. ■». Eoulet, 

34 Wend. 513... .1020, 1021 

New York Produce Exch. v. New 
York Cent. & H. E. E. 
Co. 2 Inters. Com. Een. 
558 649, 680, 880, 883 

New York, T. &M. E. Co. v. Gal- 

laher, 79 Tex. 685.. 766, 777 

Niagara, The, v. Cordes, 63 U. 8. 
21 How. 7, 16 L. ed. 41 

13, 14, 25, 103, 

149, 159, 187, 260, 301, 
339-336. 361, 887. 941, 1040 

Nicholas v. New York Cent. & H. 
E. E. Co. 89 N. Y. 370, 
55, 56, 146, 147, 965 

Nicholls «. Webb, 21 U. 8. 8 
Wheat. 330, 5 L. ed. 
638 954 



Nichols*. Clent, 8 Price, 547 1004 

«. DeWolf, 1 E. I. 277 .... 14 
Nicholson v. Great Western E. 

Co. INev. &McN. 121, 

5 C.B.N. 8. 366_ 

575,576,593, 

714, 735, 736, 748, 753, 

758, 759, 764, 771, 772, 785 
e. Willan, 5 East, 507. 

37,41. 203, 314 

Nickey v. St. Louis, I. M. & 8. E. 

Co. 35 Mo. App. 79 ... 909 
Nicoll V. East Tennessee, V. & G. 

E. Co. 89 Ga. 260 292 

Nifa, The [1892] Prob.411 870 

Nine Thousand Six Hundred & 

Eighty-One Dry Ox 

Hides, 6 Ben. 300 846 

Nith, The, 36 Fed. Eep. 86 85 

Nitshill etc. Coal Co. v. Caledonia 

E. Co. 2 Nev. & McN. 

39 559, 594, 735, 775, 785 

Noble t). Kennoway, 3 Dougl. 

513 119 

Noe®. Christie, 51 N. Y. 370.. ..1008 
Nora Costello, The, 46 Fed. Eep. 

869 356 

Norfolk & W. E. Co. ■». Pendleton, 

86 Va. 1004 519 

«. Pennsylvania, 136 U. S. 

114, 34 L. ed. 394, 3 

Inters. Com. Eep. 178. 530 
«. Suffolk, 89 W. Va. 703.. 358 
■B. Sutherland, 89 Va. 703.. 355 
Norfolk Southern E. Co. «. 

Barnes, 5 L. B. A. 611, 

104 N. C. 35 116, 913 

Norman v. Binnington, L. E. 35 

Q. B. Div. 475.137, 156, 333 
Norris v. Savannah, F. & W. E. 

Co. 33Fla. 182 

161,826, 327, 341 

North «. Merchants & M. Transp. 

Co. 146 Mass. 315_.393, 394 
Northampton, The, 1 Spinks, 

153 349 

North British & M. Ins. Co. v. 

London, L. & G. Ins. 

Co. L. E. 5 Ch. Div. 

569 1009, 1011 

Northern Belle, The, v. Eobson, 

76 U. S. 9 Wall. 536, 19 

L. ed. 748. ...32, 23, 26, 167 
Northern Packet Co. a. Shearer, 

61111. 263... 1007 

North German Lloyd ». Henle, 10 

L. K. A. 814, 44 Fed. 

Eep. 100 218, 878 



Iviii 



TABLE OF CASES. 



North Pennsylvania R. Co. ». Com- 
mercial Nat. Bank of 
Cliicago, 133 U. S. 727, 

31 L. ed. 287 

Ill, 327, 273, 407, 

887, 897, 898, 904, 907, 910 
Norwalk Bank ®. Adams Exp. Co. 

4 Blatchf. 455 915 

Norway Plains Co. v. Boston &M. 
R. Co. 1 Gray, 263, 61 
Am. Dec. 423 336, 891 

Northwestern Ins. Co. v. Phoenix 
Oil & Candle Co. 31 Pa. 
448.... 320,222 

Northwestern Iowa Grain & S. 8. 
Asso. ». Chicago & N. 
W. R. Co. 3 Inters. 

Com. Rep. 431 

590, 597, 637, 650 

Northwestern U. Packet Co. «. St. 
Louis, 100 U. S. 433, 
25 L. ed. 688- -496, 511, 597 

Norwich & N. Y. Transp. Co. ■». 
Wright, 80 U. S. 13 
Wall. 104, 30 L. ed. 585 
- 60, 61, 1040, 1041 

Notara v. Henderson, L. R. 6 Q. 
B. 346, L. R. 7 Q. B. 
335. 337,866 

Nounnan v. Sutter County Land 

Co. (Cal.)6L. R. A. 319 101 

Nudd D. Wells, 11 Wis. 408.. 831, 939 

Nugent «. Smith, L. R. 1 C. P. 
Div. 433, 45 L. J. C. P. 
607. 15, 74, 175 

Nutting 0. Connecticut River R. 

Co. 1 Gray, 503 388 



O. 

•Oakley v. Port of Portsmouth & 
R. U. S. Packet Co. 34 
Eng. L. &Eq.530 159 

■Oates v. First Nat. Bank of Mont- 
gomery, 100 U. S. 339, 
SSL. ed. 580... 895 

Oatting z. Grand Trunk R. Co. 13 

Allen, 381 343 

Oberc. Smith, 78 N. C. 313 913 

O'Brien v. Gilchrist, 34 Me. 554, 

56 Am. Dec. 676 93 

■Ocean Queen, The, 5 Blatchf. 

494 -.-357, 863 

O'Connell v. Reg. 11 Clark & F. 

155 - 438 

Oderkirk «. Fargo, 58 Hun, 347.. 7 
■B. Fargo, 61 Hun, 418 10 



Odiorne i>. New England Mut. M. 
Ins. Co. 101 Mass. 551, 

3 Am. Rep. 401 122 

O'Dougherty v. Boston & W. R. 

Co. 1 Thomp. & C. 477. Ill 
Oelricks d. Ford, 64 U. S. 33 How. 

63, 16 L. ed. 538. 302 

Ogden®. Parsons, 64 U. S. 33 How. 

167, 16L.ed. 410 75 

«. Saunders, 25 U. 8. 12 
Wheat. 213, 6 L. ed. 

606 483 

Ogdensburg & L. C. R. Co. ». 
Pratt, 89 TT. 8. 22 Wall. 
123, 31 L.ed. 827. .17, 18,73 
198, 331, 232, 394, 406, 412 
Ogle «. Atkinson, 1 Marsh. 333, 

5 Taunt. 759 IO04 

O'Hanlan v. Great Western R. Co. 
34 L. J. Q. B. 154, 13 

Week. Rep. 741 279 

Ohio & M. R. Co. V. Brown, 46 

111. App. 137 297 

■B. Dunbar. 20 111. 633, 71 

Am. Dec. 391... 5 

V. Emrich, 34111. App. 245.. 392 
■B. Hamlin, 42 111. App. 441. 128 
V. McCarthy, 96 U. S. 358, 

24 L. ed. 698 394, 406 

■0. Savage, 38 111. App. 

148 852 

■0. Selby, 47 Ind. 471, 17 

Am. Dec. 719 43, 1012 

■B. Yoke, 51 Ind. 181, 19 

Am. Rep. 727 928 

OhrlofE s. Briscall, L. R 1 P. C. 

331 188 

Olbers, The, 3 Ben. 150 95 

Olcotts. BanBU, 4 N. H. 537 746 

e. Fond du Lac County 
Suprs. 83 U. S. 16 Wall. 

678.31 L.ed. 382 896 

Old Colony R. Co. c. Tripp, 147 

Mass. 35 33 

■B. Wilder, 137 Mass. 536... 90B 
Oliver «. Maryland Ins. Co. 11 U. 
S. 7 Cranch, 487. 3 L. 

ed. 414 946 

Omslaer v. Philadelphia Co. 31 

Fed. Rep. 354 163 

Oneida Bank v. Ontario Bank, 21 

N. Y. 490 -. 703 

O'Neill «. New York Cent. & H. 
R.R. Co. 60N.Y. 188.. 

...77,83 

One Thousand Bags of Sugar e. 
Harrison, 53 Fed. Rep. 
828 854 



TABLE 01' OASES. 



lix 



Ontario Bank v. Hanlon, 23 Hun, 

283 103 

e. New Jersey S. B. Co. 59 
N.Y. 510_ ...^. 90 

Ontario Salt Co. ■». Merchants 

Salt Co. 18 Grant Ch. 

540.-.- 464 

Oppenheimer ■». Russell, 3 Bos. & 

P. 43 -. 936 

«. United States Exp. Co. 69 

111. 62, 18 Am. Rep. 

596. --:45, 50, 300, 213, 333 
Orange County Bank v. Brown, 

3 Wend. 158 1006 

V. Brown, 9 Wend. 85, 34 

Am. Dec. 139---34, 35, 312 
Order as to Publication of Joint 

Tariffs, 1 Inters. Com. 

Rep. 598 881 

O'Regan v. Cunard SS. Co. 160 

Mass. 356 307 

Oregon v. Jennings, 119 IT. 8. 74, 

SOL. ed. 323 100 

Oregon Short Line & U. N. R. Co. 

«. Northern Pac. R. Co. 

4 Inters. Com. Rep. 
249, 51 Fed. Rep. 465, 
51 Am. & Eng. R. Cas. 
145- 427, 489, 864 

B. Northern Pac. R. Co. 61 

Fed. Rep. 158-437, 439, 714 
D. Northern Pac. R. Co. 3 

Inters. Com. Rep. 805- - 

-438,712 

Oregon Steam Nav. Co. B.Winsor, 

87 U. S. 20 Wall. 61, 22 

L. ed. 315 464, 467 

Oriental SS. Co. ®. Taylor [1893] 

2 Q. B. 518 856 

Orient Mut. Ins. Co. v. Adams, 

133 U. S. 67, 31 L. ed. 

63 1009 

Oriflamme, The, 1 Sawy. 176 95 

Orizaba, The, 57 Fed. Rep. 

247 350 

Orndorfl v. Adams Exp. Co. 8 

Bush, 194, 96 Am. Dec. 

807 308, 319 

O'Rourke «, Chicago, B. & Q. R. 

Co. 44 Iowa, 536 914 

Ortt B. Minneapolis & St. L. R. 

Co. 36 Minn. 396.-379, 394 
Osborn v. Bank of United States, 

23 U. S. 9 Wheat. 738, 

6 L.ed. 204.-488,1074,1087 
Osborne v. Chicago & N. W. R. 

Co. 48 Fed. Rep. 49--. 

---683,650,719, 781 



Oscanyan v. "W Inchester Repeating 
Arms Co. 103 U. S. 376, 
36 L. ed. 545 73, 896 

Osceola, The, 33 Fed. Rep. 719--. 163 

Osgood V. Oroning, 2 Campb. 

471-- ..- 878 

Osterhout «. Shoemaker, 3 Hill, 

513 -..- 100 

Ostrander «. Brown, 15 Johns. 39, 

8 Am. Dec. 311 

892, 898, 938, 940, 964, 965 

Otis Co. B. Missouri Pac. R. Co. 

112 Mo. 633 183, 186 

Ottawa, The, 1 Brown, Adm. 356.. 1047 

Ottinger v. Southern Pac. R. Co. 
1 Inters. Com.Rep.607- - 
532, 533 

Ouachita & M. R. Packet Co. ». 
Aiken, 131 U. S. 444, 
30 L. ed. 976, 1 Inters. 

Com. Rep. 379 

- 496, 508,513, 514 

Overland Mail & Exp. Co. ■». Car- 
roll, 7 Colo. 43 8 

Owenr. Davis, 1 Bai!. L. 315.--- 703 
». Louisville & N. R. Co. 87 
Ky. 686 -..324, 337, 377, 378 

Ozlade v. Northeastern R. Co. 1 
C. B. N. S. 454, 26 L. 
J. C. P. 139, 1 Nev. & 

McN. 73 

749, 759, 764, 784, 785 

0. Northeaslern R. Co. 9 
Week. Rep. 273 85 



P. 

Pacific, The, Deady, 17... 84, 125, 147 
Pacific Coast SS. Co. v. Railroad 

Comrs. 9 Sawy. 253.- 528 
Pacific Exp. Co. v. Darnell, 63 

Tex. 639 7, 234 

V. Foley, 13 L. R. A. 799, 

46 Kan. 457 49, 801 

Pacific Mail SS. Co, «. Joliffe, 69 

U. S. 3 Wall. 450, 17 L. 

ed. 805 496 

Pacific R. Commission, Be, 38 

Fed. Rep. 241...: 1078 

Packard ». Getman, 6 Cow. 757, 16 

Am. Dec. 475..., 80, 88,886 
D. Taylor, 85 Ark. 403, 37 

Am. Rep. 37. 399 

Paee d. Cowasiee Bduljee, L. B. 

IP. C.137 867 

Paine v. Pennsylvania R. Co. 7 

Kulp,187 765 



TABLE OF CASES. 



Painter v. London, B. & S. C. R. 

Co. 3C. B. N. S. 703- . 611 
Palm «. New York, N. H. & H. 

R. Co. 42 N. T. S. R. 

319 603 

Palmer v. Atchison, T. & S. F. R. 

Co. 101 Cal. 187 390 

V. Chicago, B. & Q. R. Co. 

56 Conn. 187.. 313, 391, 393 
B. Great Western Ins. Co. 

116 N.Y. 599.. .1033 

V. Holland, 51 N. Y. 416, 10 

Am. Rep. 616 32 

D. Lorillard, 16 Johns. 348. 320 
». Pennsylvania Co. 2 L. R. 

A. 252, lllN. Y. 488 162 

Palmer, L. & S. W. R. Co. Be, 1 

Nev. & McN. 271, L. R. 

6 C. P. 194 436 

Pankey «. Richmond & D. R. Co. 

3 Inters. Com. Rep. 

33 *.. 393 

Paradine v. Jane, Aleyn, 36 339 

Paragon, The, Ware, 823 ....304, 868 
Paramore ». Western R. Co. 53 Ga. 

385 18 

Parcher v. Cuddy (" The Mamie") 

105 U. S. 773, 26 L. ed. 

937 .1043 

Pardington ». South Wales R. Co. 

1 Hurlst. & N. 396.254, 755 
Park V. Preston, 108 N. Y. 484... 183 
Parker v. Flagg, 26 Me. 181, 45 

Am.t)ec. 101 178 

«. Milwaukee & St. P. R. 

Co. 30 Wis, 689 893 

«. Overman, 59 TJ. S. 18 

How. 137, 15 L. ed. 318.1044 
Parkersburg & O. R. Transp. Co. 

1). Parkersburg, 107 TJ. 

U. 691, 37 L. ed. 584.. 

510-512, 517 

Parkinson b. Great Western R. Co. 

L. L. 6C. P. 554 435 

Parlin®. Small, 68 Mo. 290 101 

Parrott d. Barney, 2 Abb. (U. S.) 

197, 1 Sawy. 423, 1 

Deady, 405 809 

«. Knickerbocker Ice Co. 46 

N. Y. 361 357 

e. Wells, 83 U. S. 15 Wall. 

534, 21 L. ed. 206.. 16, 

85, 86, 309 

Farsons v. Hardy, 14 Wend. 215, 

38 Am. Dec. 531. .161, 

320, 321, 333, 338, 381, 939 
e. Monteuth. 13 Barb. 853.. 

41,45, 330 



Passaic Bridges, The, 3 Wall. 

appx. 782 49i 

Passenger Tariffs, Be, 3 Inters. 

Com. Rep. 445 879 

Passenger Tariffs and Rate Wars, 

Be, 3 Inters. Com. Rep. 

340 592 

Patapsco Ins. Co. ■». Coulter, 38 

U. S. 3 Pet. 232, 7 L. 

ed. 659... 182 

Patee s. Adams, 37 Kan. 133 238 

Paterson v. Dakin, 31 Fed. Rep. 

682 103 

Patrick u. Farmers Ins. Co. 43 N. 

H. 621, 80 Am. Dec. 

197 220- 

Patten v. Thompson, 5 Maule «& S. 

356 1005 

». Union Pac. R. Co. 29 

Fed. Rep. 590 313 

319, 387,393,863 

Patterson ■o. Clyde, 67 Pa. 500 

188, 1038,1030 

t. Kansas City, Ft: S. & M. 

R. Co. 47 Mo. App. 

570 40O 

V. Kentucky, 97 U. S. 501, 

34L. ed. 1115... 495 

®. Perry, 5 Bosw. 518, 10 

Abb. Pr. 83 1006 

Pattison v. Culton, 33 Ind. 240, 5 

Am. Rep. 199 109 

Paturzo B. Compagnie Francaise, 

31 Fed. Rep. 619 308 

Pavitt B. Lehigh Valley R. Co. 

153 Pa. 302 149, 221 

P. Caland, The [1892] Prob. 191.. 353 
Pearce b. Madison & I. R. Co. 62 

U. S. 21 How. 441, 16 

L. ed. 184 413 

B. Thomas Newton, The, 41 

Fed. Rep. 106 161, 

178, 327,337 

Pearae b. Quebec SS. Co. 24 Fed. 

Rep. 285 218 

Pease b. Gloahec, L. R. 1 C. P. 

219 109 

Peck B. Smith, 1 Conn. 105. 6 Am. 

Dec. 316.. 76 

o. Weeks, 84 Conn. 145 

-...146,337, 337,389.1038 
Peek e. North Staffordshire R. 

Co. 10 H. L. Cas. 473.. 

41, 42,44,46,47, 146 

Peerless, The, 48 Fed. Rep. 844.. 854 
Peet e. Chicago & N. W. R. Co. 

20 Wis. 594, 91 Am. 

Dec. 416.. 75, 325, 336, 1036 



TABLE OF CASES. 



M 



Pe& v. Chicago & N. W. R. Co. 
94 U. S. 164, 34 L. ed. 
97 499 

Pemberton Co. v. New York 
Cent. R. Co. 104 Mass. 
144 98 

Pembina Consol. 8. Min. & M. Co. 

«. Pennsylvania, 125 U. 

S. 181, 31 L. ed. 650, 3 

Inters. Com. Rep. 34-. 483 

Pence v. St. Paul, M. & M. R. Co. 

.38 Minn. 488 433 

Pendergast v. Adams Exp. Co. 101 

Mass. 120 95 

«. Kalorama The (" The 
Kalorama") 77 U. S. 
10 Wall. 304, 19 L. ed. 

941 874 

Peninsular & O. Steam Nav. Co. 
V. Shand, 8 Moore, P. 

C. N. S 273 ..35, 66 

D. Shand, 11 Jur. N. S. 771. 893 
Penn v. Buffalo & B. R. Co. 49 N. 
Y. 304, 10 Am. Rep. 

355 243, 253,354 

Pennewill «. CuUen, 5 Harr. (Bel.) 

838 3 

Pennsylvania b. Miller, 87 Pa. 395 189 
«. Wheeling & B. ' Bridge 
Co. 59 U. S. 18 How. 
421, 15 L. ed. 435.-490,497 
Pennsylvania Co. v. Clark, 8 Ind. 
App. 153, aff'g on re- 
hearing, 2 Ind. App. 

146 363 

e. Pairchild, 69 111. 360.... 893 

V. Louisville, N. A. & C. R. 

2 Inters. Com. Rep. 603 600 

Pennsylvania, D. & M. S. Nav. 

Co. ■». Danbridge, 8 

Gill. & J. 248, 29 Am. 

Dec. 548 4 

Pennsylvania R. Co. ®. Berry, 68 

Pa. 273 366 

B. Com. (Pa.) 4 Cent. Rep. 

495 443, 443,691 

«. Pries, 87 Pa. 334 179 

V. Henderson, 51 Pa. 315.. 48 
V. McCloskey, 33 Pa. 536-. 

_43, 131, 185 

e. Raiordan, 119 Pa. §77-- 

41,45, 51, 370,371 

V. St. Louis, A. & T. H. R. 
Co. 118 U. S. 290, 30 L. 

ed. 83 - 443 

«. Stern, 119 Pa. 24- ---111, 

113, 393, 907, 910 

Penoyer ». Hallett, 15 Johns. 333. 846 



Pensacola & A. R. Co. ■». State, 2 
Inters. Com. Rep. 533, 

8 L. R. A. 661, 35 Fla. 
310 538, 688 

Pensacola Teleg. Co. ». Western 

U. Teleg. Co. 96 U. S. - 

1, 34 L. ed. 708 487 

People 11. Albany, 11 Wend. 539, 

27 Am. Dec. 95 1089 

V. Boston & A. R. Co. 70 N. 

Y. 569 439 

V. Boston, H. T. & W. R. 

Co. 12 Abb. N. C. 330. 434 
®. Central Pac. R, Co. 43 

Cal. 404 486 

V. Chicago & A. R. Co. 155 

111. 95, 8 Am. Rep. 631 

32 762 
V. Chicago & A. R. Co. 130 

111. 175- 77 

«. Fisher, 14 Wend. 10, 28 

Am. Dec. 501.437, 461, 462 
®. New York, L. E. & W. 

R. Co. 23 Hun, 533.--- 76 
e. New York, L. E. & W. 

R. Co. 104 N. Y. 58, 58 

Am. Rep. 484 541 

e. North River Sugar Ref. 

Co. 2 L. R. A. 33, 54 

Hun, 355, note, aff'd 9 

L. R. A. 33, 131 N. Y. 

582 - 461, 691 

e. Rome, W. & O. R. Co. 

103 N. Y. 95 541 

®. Sheldon, 22 L. R. A. 221, 

139 N. Y. 351- 434 

9. Utica Cement Co. 33 111. 

App. 159 --.. 161 

Peoria & P. U. R. Co. v. United 

States Rolling Stock Co. 

136 111. 648, rev'g 36 

111. App. 553 888,439 

Peoria, M. & F. Ins. Co. v. Hall, 

13 Mich. 310-- 223 

v. Whitehill, 25 HI. 466.... 220 
Percival v. Hickey, 18 Johns. 289, 

9 Am. Dec. 210 178 

Perkins v. Hill, 3 Woodb. & M. 

158, 1 Sprague, 133.103, 846 

V. Lyman, 9 Mass. 523 464 

V. Nichols, 11 Allen, 543... 473 
V. Portland, S. & P. R. Co. 

47Me. 578,74Am. Dec. 

507 - - 365 

Perry v. Florida Cent. & P. R. Co. 

3 Inters. Com. Rep. 740 

591, 686 

V. Thompson, 98 Mass. 349. 95 



ixii 



TABLE OF CASES. 



Perth, The, 3 Hagg. Adm. 414... 349 
Peter der Grosse.The, L. R. 1 Prob. 

Div. 414 105 

Peterson v. Case, 21 Fed. Rep. 885 389 
V. Chicago, R. I. & P. R. 
Co. 80 Iowa, 92, 8 Ry. 

&Oorp. L.J. 95 413 

D. Watson, Blatchf. & H. 

487.. 1045 

Petitioners of Louisville & N. R. 
Co., Be, 1 Inters. Com. 

Rep. 278... 617 

Petrel, The, [1893] L. R. 3 Prob. 

Div. 320. 1043 

Peytona, The, 2 Curt. 23 303, 966 

Phelps B. Hill, 1 Q. B. 605 -. 947 

V. Illinois Cent. R. Co. 94 

111. 548 75 

o. Texas & P. R. Co. 4 
Inters. Com. Rep. 363. 

603, 859, 875, 879, 897 

Phenix Ins. Co., Me parte, 118 U. 

S. 610, 30 L. ed. 274... 1045 
Philadelphia & R. R. Co. ■». Barn- 
ard, 3 Ben. 39 218, 846 

B. Beck, 125 Pa. 620 815 

V. Derby, 55 U. S. 14 How. 

486, 14 L. ed. 509 .. . 124 
e. Pennsylvania {" State Tax 
on Railway Gross Re- 
ceipts") 82 U. S. 15 
Wall. 284, 21 L. ed. 

164 483 

n. Pennsylvania ("The State 
Freight Tax") 82 U. S. 
15 Wall. 232, 21 L. ed. 

146 482 

®. Wireman, 88 Pa. 264 889 

Philadelphia & S. Mail SS. Co. v. 
Pennsylvania, 122 TJ. S. 
326, 30 L. ed. 1200, 1 
Inters. Com. Rep. 308 

485,486,513, 1070 

Philadelphia Loan Co. v. Towner, 

13 Conn. 249 703 

Philadelphia, W. & B. R. Co. v. 
Lehman, 56 Md. 209, 40 
Am. Rep. 415.. 320, 321, 327 
«. Philadelphia & H. de G. 
Steam Tow Boat Co. 64 
U. 8. 23 How. 209, 16 

L. ed. 433 1045 

Philleo «. Sanford, 17 Tex. 227, 67 

Am. Dec. 654. 296 

Phillips V. Bingham, 26 Qa. 617.. 317 

V. Barle, 8 Pick. 183 212, 213 

V. Watson, 63 Iowa, 33 689 

Phippen v. Stickney, 3 Met. 384.. 473 



Phippa V. London, & N. W. R. ' 
Co. [1892] 2 Q. B. 229. 
614,735 

Phoebe, The, Ware, 263 868 

Phoenix Clay Pot Works v. Pitts- 
burg & L. E. E. Co. 139 

Pa. 284 56,149 

Phoenix Ins. Co. v. Atlas, The, 93 
U. S. 302, 23 L. ed. 863, 
Rev'g 10 Blatchf. 459. 
Reaff'd 4 Ben. 27.-357, 1023 
Phoenix Ins. Co. v. Erie & W. 
Transp. Co. 127 V. 8. 

312, 29 L. ed. 873 

73,202, 

293, 944, 1012, 1013, 1021 
Pickering v. Barkley, Style, 132, 2 

Rolle, Abr. 248 164, 171 

V. Weld, 159 Mass. 522.117, 122 

Pickett B. Downer, 4 Vt. 21 892 

Pickford v. Grand Junction R. Co. 

8 Mees. & W. 372... 74, 847 
D. Grand Junction R. Co. 10 

Mees. & W.399 759 

Pickman «. Woods. 6 Pick. 251.. 26 
Piedmont Mfg. Co. ■». Columbia & 
6. R. Co. 19 S. C. 353 

74, 129.400 

Pierce v. Columbia Ins. Co. 14 

Allen, 320 862 

s. Milwaukee & St. P. R. 

Co. 23 Wis. 387 856 

V. New Hampshire, 46 U. S. 

5 How. 504, 12 L. ed. 
256 937 

V. Ocean Ins. Co. 18 Pick. 

83- 867 

V. Winsor, 2 Sprague, 35, 2 

■ Cliff. 18 86,89,309 

Pike V. Balch, 38 Me. 302, 61 Am. 

Dec. 248 867 

Pilgrim, The, 57 Fed. Rep. 670.. 362 
Pindell o. St. Louis & H. R. Co. 

34 Mo. App. 675 119 

V. St. Louis & H. R. Co. 41 

Mo. App. 84 905 

Pingree v. Detroit, L. & N. R. Co. 

66 Mich. 143- 

14, 859, 928, 931 

Pitkin 0. Brainerd, 5 Coua. 451, 13 

Am. Dec. 79 26 

Pitlock V. Wells, Fargo & Co. 109 

Mass. 452 4, 74 

Pittsburg & C. R. Co. «. Bedford 

6 B. R. Co. 81 Pa. 104 440 
Pittsburg & O. R. Transp. Co. v. 

Parkeraburg. 107 U. S. 
691. 27L. ed. 584 496 



TABLE OF CASES. 



Ixiii 



Pittsburg, 0. & St. L. K. Co. v. 

Barrett, 36 Ohio St. 453 118 
B. Columbus, 0. & I. C. R. 

Co. 8 Biss. 456.. 432 

B. Morton, 61 Ind. 539, 28 

Am. Rep. 683.... 2, 74, 325 
Pittsburg, C. C. & St. L. R. Co. v. 

Bennett 9 Ind. App. 92 296 
». Racer, 5 Ind. App. 209.. 

263,265 

Pittsburg, Ft. W. & C. R, Co. v. 

Hazen, 84 111. 36, 25 

Am. Rep. 422...: 347 

Place V. Norwich & N. Transp. 

Co. (" City of Norwich, • 

The") 118 U. S. 468,30 

L. ed. 134 60-63, 1042 

V. Union Exp. Co. 2 Hilt. 

19- 7,75,224, 338,345 

Plaisted v. Boston & K. S. Nav. 

Co. 27 Me. 133, 46 Am. 

Dec. 587 156. 161, 179 

Planters Bank of Tennessee v. 

Union Bank of Louisi- 
ana, 83 U. S. 16 Wall. 

483, 31 L. ed. 473 703 

Plasters. Burger, 5 Ind. 232 691 

Piatt V. Hibbard, 7 Cow. 497 77 

41. Richmond, Y. R. & C. 

R. Co. 108 N. Y. 358.. 

1013, 1023 

Pollard V. Hagan, 44 U. S. 8 How. 

213, 11 L. ed. 565.. 481, 508 
®. Vinton,105U. S., 7, 26 L. 

ed. 998.93, 107, 137, 138, 141 
Polynesia, The, 30 Fed. Rep. 310.1083 
Popes. Nickerson, 3 Story, 465.. 

866, 867 

Portage County Mut. F. Ins. Co. 

». Stukey, 18 Ohio St. 

455 220 

V. West, 6 Ohio St. 599 220 

Portland Bank ». Stubbs, 6 Mass. 

432, 4 Am. Dec. 151.. 94, 96 
Portsmouth, The, ». Onondaga 

Salt Co. 76 U. S. 9 Wall. 

682, 19L.ed. 754 

.25, 165, 171, 311 

Portuense, The, 35 Fed. Rep. 670. 157 
Post «. Jones, 60 U. S. 19 How. 

150, 15 L. ed. 618.. 310, 866 
Potomac, The. v. Cannon, 105 U. 

S. 630, 26 L. ed. 1194.. 1021 
Potter V. Lansing, 1 Johns. 215, 3 

Am. Dec. 310. 1004 

V. Majestic, The, 26 L. R. A. 

746, 60 Fed. Rep. 625.. 

132, 167 



Potter o. Suffolk Ins. Co. 2 Sumn. 

197 ..164, 165, 171 

Potter Mfg. Co. ■». Chicago & G. 
T.R. Co. 4 Inters. Com. 

Rep. 223 598, 775 

Potts V. New York & N. E. R. Co. 
131 Mass. 455, 41 Am. 

Rep. 247 880 

e. Wabash, St. L. & P. R. 
Co. 17 Mo. App. 394.. 16, 18 
Poucher ii. New York Cent. R. Co. 
49 N. Y. 263, 10 Am. 

Rep. 364 51, 146 

Poughkeepsie Iron Co. v. New 
York Cent. & H. R. R. 
Co. 8 Inters. Com. Rep. 

248 .654,668,721, 835 

Pound V. Turck, 95 U. S. 459, 24 

L. ed. 526.... 486, 496 

Powell V. Buck, 4 Strobh. L. 437. 866 
®. Mills, 30 Miss. 231, 64 Am. 

Rep. 158 35 

1). Myers, 26 Wend. 591.891, 915 
V. Pennsylvania R. Co. 82 
Pa. 414, 75 Am. Dec. 

564 __42, 231, 396 

D. Thompson, 80 Ala. 51.118, 964 
Powers ». Harlow, 53 Mich. 507, 

51 Am. Rep. 154 87 

Powhatan S. B. Co. «. Appomat- 
tox R. Co. 65 U. 8. 34 
How. 247, 16 L. ed. 683. 387 
Pratt V. Grand Trunk R. Co. 55 
Me. 463, 93 Am. Dec. 

606- 82 

c. Grand Trunk R. Co. 95 

U. S. 43, 24 L. ed. 336. 391 
«. Ogdensburg & L. C. R. 
Co. 102 Mass. 557, 89 
U. S. 22 Wall. 133, 33 

L. ed. 847 16, 55, 331 

®. Parkman, 24 Pick. 42... 109 
V. Short, 79 N. Y. 437, 35 

Am. Rep. 531 703 

Presser v. Illinois, 116 U. S. 252, 

29 L. ed. 6.-.. 850 

Price V. Denver & R. G. R. Co. 13 

Colo. 403 318, 319 

V. Hartshorn, 44 N. Y. 94, 4 

Am. Rep. 645 54, 810 

«. Kansas Pac. R. Co. 68 

Mo. 314 - 324 

®. Oswego & S. R. Co. 50 
N. Y. 315, 10 Am. Rep. 

475 - 915 

®. Powell, 8 N. Y. 333 96 

V. Torringfon, 1 Salk. 385-. 954 
».Uriel,The,10 La. Ann. 413.1030 



Ixiv 



TABLE OF OASES. 



Priestly V. Northern I. & C. R. Co. 

26 111. 205. 1037 

Primula, The, [1894] Prob. 128. .. . 855 

Prince v. Boston & L R. Co. 101 
Mass. 542, 100 Am. Dec. 
129 904 

Printing & N. Reg. Co. ■». Samp- 
son, L. R. 19 Eq. 462.- 473 

Pritt o. Fairclough, 3 Campb. 305. 954 

Proctor V. Cincinnati, H. & D. R. 
Co. 3 Inters. Com. Rep. 
131... ..559,597 

Professor Morse, The, 23 Fed. 

Rep. 803.. .1047 

Prouty V. Lake Shore & M. S. R. 
Co. 6 Hun, 246, 64 N. 
Y. 641. 440 

Providence & N. Y. SS. Co. v. Hill 
Mfg. Co. 109 U. 8. 578, 

27L. ed. 1038 

59,178, 1040, 1042 

Providence Coal Co. v. Providence 
& W. R. Co. 1 Inters. 

Com. Rep. 363 119, 

576, 613, 730, 735, 753, 776 
V. Providence & W. R. Co. 
15 R. I. 303 520 

Providence Ins. Co. v. Morse, 150 

U. S. 99, 37 L.ed. 1013.1021 

Provident Inst, for Savings v. Mas- 
sachusetts, 73 U. S. 6 
Wall. 611, 18L.ed. 907. 495 

Pruitt V. Hannibal & St. J. R. Co. 

62 Mo. 527— -176, 177,401 

Public Opinion, The, 2 Hagg. 

Adm. 398 1045 

Pullman Palace Car Co. ■». Mis- 
souri Pac. R. Co. 115 
TJ. S. 587, 29 L. ed. 
499 — 668 

Pyle V. East Tennessee, V. & G. R. 
Co. 1 Inters. Com. Rep. 
767.. 559 



-Queen of the Pacific, The, 61 Fed. 

Rep. 213 870, 871 

Queensmore, The, 53 Fed. Rep. 

1022, affg 51 Fed. Rep. 

250 854 

Qaimby v. Boston & M. R. Co. 5 

L. R. A. 846, 150 Mass. 

365 215 

e. Vanderbilt, 17 N. Y. 306, 

72 Am. Dec. 469. -.395, 418 



R. 

Ragan n. Aiken, 9 Lea, 609, 43 
Am. Rep. 684... -519, 

734, 736, 740, 746, 749, 876 
Railroad Commission of Florida v. 

Savannah, P. & W. R. 

Co. 3 Inters. Com. Rep. 

688 --- 601 

Ralston t. State Rights, The, 

Crabbe, 22 358 

Randall d. Richmond & D. R. Co. 

108 N. C. 612 710 

Rankin c. Memphis & C. Packet 

Co.9Heisk.564, 24Am. 

Rep. 339 865,866 

Ransome «. Eastern Counties R. 

Co. 1 Nev. & McN. 63, 

1 C. B. N. 8. 437, 2 

Nev. & McN. 202.. 576. 

735, 749, 756,759,764,770,785 
V. Eastern Counties R. Co. 

4C. B. N. S. 185 

613,614.718,758 

Raphael v. Pickford, 5 Man. & Gr. 

551. 320, 321 

Raritan, The, 32 Fed. Rep. 847... 350 
Rate Sheets, Re, 1 Inters. Com. 

Rep. 316 881 

Rathbone v. New York Cent. & H. 

R. R. Co. 140 N.Y. 48- 204 
Rathbune. Citizens S. B. Co. 76 
N. Y. 876, 32 Am. Rep. 

321 116 

Rawls B. Deshler, 3 Keyes, 572.. 1005 
Raworth v. Northern Pac. R. Co. 
3 Inters. Com. Rep. 857 

-.-.651, 660,718 

Rawson e. Holland, 5 Daly, 155, 
afE'd 59 N. Y. 611, 18 

Am. Rep. 394 

-.80, 365, 885, 388, 393, 393 
V. Newport News & M. V. 
Co. 2 Inters. Com. Rep. 

626 600, 1053 

Raymond d. Chicago, M. & St. P. 
R. Co. 1 Inters. Com. 

Rep. 627 711,715 

Read e. Bonham, 3 Brod& B. 147. 867 
V. St. Louis, K. C. & N. R 

Co. 60 Mo. 199 

177.1027, 1030,1033 

V. Spaulding, 5Bosw. 39i, 30 
N. Y. 680, 86 Am. Dec. 
426.-7,11,159,161,315,325 
Reade o. Commercial Ins. Co. 3 
Johns. 353, 3 Am. Dec. 
495 26 



TABLE OF OASES. 



Ixv 



Keagan v. Farmers Loan & T. Co. 
4 Inters. Com. Eep. 560, 
154 U. S. 363, 38 L. ed. 

1014 578, 1051 

Eeaves «. Waterman, 2 Spears, L. 

197 179 

Rebecca, The, Blatchf. & H. 347. 358 

iBebecca, The, Ware, 188 .25, 868 

Rebecca Shepherd, The, 33 Fed. 

Rep. 936 163 

Tiledmond ®. Liverpool, N. T. & P. 
S. B. Co. 46 N. Y. 578, 

7 Am. Rep. 390 967 

Redpath i>. Vaughan, 52 Barb. 489 171 
Reed i>. Philadelphia, W. & B. R. 

Co. 3 Houst. (Del.) 176 310 
». United States Exp. Co. 48 
N. y. 462, 7 Am. Rep. 

561-- 365, 396 

Eeeslde, The, 3 Sumn. 567 

94, 118, 164, 165, 192 

Beg. e. Bradford Nav. Co. 6 Best 

&S. 631 -1090 

«. Grand Junction R. Co. 4 

Q. B. 16 ._ 755 

«. Great North of England 

R. Co. 9Q. B. 315 1089 

e. Manchester, 7 El. & Bl. 

453 -.1090 

u Railway Comrs. & D. I. 
Co. L. R. 33 Q. B. Div. 
643, 40 Am. & Eng. R. 

Cas. 59 485, 745 

"Regan v. Grand Trunk R. Co. 61 

N. H. 579 317, 318, 389 

Reid V. Evansville & T. H. R. Co. 

(Ind.App.)Dec.l5,1893, 340 

ReissnerB. Oxley, 80 Ind. 580 386 

Relative Tank & Barrel Rates on 
Oil, He, 3 Inters. Com. 

Rep. 245.... 596, 600 

Relf D. Rapp, 3 Watts & S. 31, 37 

Am. Dec. 528.. 50, 312, 296 
Religious Teachers, Be, 1 Inters. 

Com. Rep. 31 736 

Rend ». Chicago & N. W. R. Co. 
2 Inters. Com. Rep. 313 

578, 739 

Reno V. Hogan, 12 B. Mon. 63, 54 

Am. Rep. 513 41, 1013 

Rensselaer & 8. R. Co. v. Davis, 

48 N. Y. 187 439 

Retzer «. Wood, 109 U. S. 185, 27 

L. ed. 900 9 

-Reuben Doud, The, 46 Fed. Rep. 

800 869, 967 

Beynolds v. St. Louis, I. M. & 8. 

R. Co. 22 Mo. App. 609 273 
E 



Reynolds v. Toppan, 15 Mass. 370, 

8 Am. Dec. 110 25, 26 

«. Vanderbilt ("The North 

Star") 106 U. S. 17, 27 

L. ed. 91 62 

u. Western N. Y. & P. 
R. Co. 1 Inters. Com. 

Rep. 685 ..559, 836 

Rhodes v. Louisville & N. R. Co. 

9 Bush, 688- 50,231 

V. Ne-whall, 35 N. Y. S. R. 

415.-- 154 

Rice V. Atchison, T. & S. F. R. Co. 

Sinters. Com. Rep. 263 

660, 738, 883 

V. Baxendale, 30 L. J. Exch. 

371 379 

a. Cincinnati, W. & B. R. 

Co. 2 Inters. Com. Rep. 

584 -..571, 781 

4). Cincinnati, W. & B. R. 

Co. 3 Inters. Com. Rep. 

841 659, 714, 780 

c. Indianapolis & St. L. R. 

Co. 3 Mo. App. 27.... 878 
». Louisville & N. R. Co. 1 

Inters. Com. Rep. 722. 

.-533, 881 

V. Western N. Y. & P. R. 

Co. 3 Inters. Com. Rep. 

163.17, 18, 559, 575, 576, 

597, 695, 720, 779, 780, 837 
Rich V. Lambert, 53 V. S, 12 How. 

347, 13L. ed. 1017 1037 

Richards v. Doe, 100 Mass. 524--. 95 
». London & S. C. R. Co. 7 

C. B. 839 187 

Richardson b. Canadian Pac. R.Co. 

19 Ont. Rep. 369, 45 

Am. & Eng. R. Cas. 413 

406, 888 

«. Charles P. Chouteau, The, 

37 Fed. Rep. 533 413 

V. Goddard, 64 U.S. 23 How. 

28, 16 L. ed. 413 

891, 892,938, 

939, 940, 941, 942, 964, 967 
11. Goss, 3 Bos. & P. 119.-. 889 
V. Great Eastern R. Co. L. 

R. 10 C. P. 486 .- 407 

1). Mellish, 3 Bing. 252 458 

V. Midland R. Co. 4 Ry. & 

Canal Traffic Cas. 1... 714 
V. Winsor, 3 Cliff. 401... 14, 887 

«. Young, 38 Pa. 169 873 

Richelieu & O. Nav. Co. v. Fortier, 

5 Mont. L. Rep. 224... 

165,171 



Ixvi 



TABLE OF CASES. 



Rickerson Roller-Mill Co. v. Grand 

Rapids & I. R. Co. 67 

Mich. 110 391 

Richmond v. Dubuque & S. C. R. 

Co. 36 Iowa, 191 433 

v. Union S. B. Co. 87 JT. T. 

340 ...941,944 

Richmond & D. R. Co. v. Bedell, 

88 Ga. 591 338 

». Benson, 86 Ga. 303 

313, 919, 930 

V. Payne, 6 L. R. A. 849, 86 

Va. 481. -.46, 48, 303, 1013 
V. Trammel, 53 Fed. Rep. 

196 ...539, 540 

V. Trousdale, 99 Ala. 389.. 367 
». "White, 88 Ga. 805. 

174, 175, 364 

Riddle v. Baltimore & O. R. Co. 1 

Inters. Com. Rep. 778. 

533, 780 

o. New York, L. E. & W. 

R. Co. 1 lotera. Com. 

Rep. 787 30, 

105, 533, 574, 577 713 

o. New York, L. E, & W. 

R. Co. 3 Inters. Com. 

Rep. 330__ 1044 

c. Pittsburg & L. E. R. Co. 

1 Inters. Com. Rep. 

685 836 

Riddlesbarger v. Hartford F. Ins. 

Co. 74 U. S. 7 Wall. 386, 

19 L. ed. 357... 330 

Riley B. Home, 5 Bing. 317 

11,35, 75,86 

Ringgold V. Haven, 1 Cal. 108 1038 

Rintoul B. New York Cent. & H. 

R. R. Co. 31 Blatchf. 

439 1013, 1017 

Rio Grande R. Co. v. Cross, 5 Tex. 

Civ. App. 454 55 

Ripley b. .^tna Ins. Co. 30 N. Y. 

136, 86 Am. Dec. 363.. 330 
Rixford v. Smith, 53 N. H. 355, 13 

Am. Rep. 43... 11, 354, 396 
Roanoke, The, 53 Fed. Rep. 370.. 

180, 868 

Robbins o. Shelby County Tax. 

Dist. 1 Inters. Com. 

Rep. 45, 130 U. S. 489, 

SOL. ed. 694 

485, 486, 511, 533, 850, 1070 
Roberts d. Riley, 15 La. Ann. 103, 

77 Am. Dec. 183... 41, 1013 
Robertson v. Clarke, 1 Bing. 446. 867 
V. Kennedy, 3 Dana, 43, 36 

Am. Dec. 466 13 



Robertson v. National SS. Co. 43 

N. Y. S. R. 694.. 3U 

D. National SS. Co. 139 N. 

Y. 416. 316- 

«. National SS. Co. 14 N.Y. 

Supp. 313 313 

■B. Woodward, 3 Rich. L. 351 931 
Robins v. Ruff, 3 Hill, L. 406.... 933 
Robinson, Ex parte, 86 U. S. 19 

Wall. 505, 33 L. ed. 305.1088 
V. Baker, 5 Cush. 137, 51 

Am. Dec. 54.. 319, 861, 863 
«. Commonwealth Ins. Co. 3 

Sumn. 330 867 

D. Cornish, 34 N. Y. S. R. 

695... 3 

B. Dunmore, 3 Bos. & P. 416 3 
B. Memphis & C. R. Co. 9 
Fed. Rep. 139, 16 Fed. 

Rep. 1... ....110, 138 

V. Merchants Despatch 
Transp. Co. 45 lovfa, 

470 

7, 80, 183, 313, 315, 396, 898 
«. Stuart, 68 Me. 61... .107, 109^ 
Rockingham Mut. F. Ins. Co. «. 
Bosher, 39 Me. 353, 63 

Am. Dec. 618 14 

Rock Island & P. R. Co. v. Potter, 

36111. App. 590. 258 

Rodd o. Heartt ("The Lottawan- 
na") 88 U. S. 31 Wall. 
558, 33 L. ed. 654... 34, 495 

Roe V. Jerome, 18 Conn. 153 1085 

Rogers®. Hosack, 18 Wend. 319.-1020 
V. Long Island R. Co. SLaus. 

369 ..-- 78 

e. Weir, 34 N. Y. 6, 8 Am. 

Rep. 511.. 915,927 

f>. Wheeler, 53 N. Y. 262 

83 296 

Rohl«. Parr, 1 Esp. 445. 253 

Roland v. Gundy, 5 Ohio, 202.... 859 

s. Miln, 3 Hilt. 150 940 

Rolfe V. Boskenna Bay, The, 6 L. 
R. A. 172, 40 Fed. Rep. 

91 ....327,969 

Rome R. Co. «. Sloan. 39 Ga. 636. 920 

fl. Sullivan, 33 Ga. 400 343 

Romney jMarsh ij. Trinity House, 

L. R. 5Exch. 208 349 

Root B. Great Western R. Co. 45 

N. Y. 524 366.395, 395 

0. Long Island R. Co. 3 
Inters. Com. Rep. 576, 
4 L. R. A. 331. 114 N. 

Y. 300 

571, 706, 749. 756,765 



TABLE OF CASES, 



Ixvii 



Booth V. North Eastern R, Co. L. 

R. 2Exch. 173, 36 L.J. 

Exch. 83 44, 46 

Rosenfeld ®. Peoria, D. & E. R. 

Co. 103 Ind. 121, 53 

Am. Rep. 500 204,213 

Rosenfield v. Express Co. 1 Woods, 

131 927 

Roskell V. Waterhouse, 2 Stark. 

461 77 

Ross V. Kansas City, St. J. & C. B. 

R. Co. Ill Mo. 18-_540, 853 
V. Missouri, K. & T. R. Co. 

4 Mo. App. 582 296 

Rossiter «. Chester, 1 Dougl. 

(Mich.) 154 873 

Roth V. Hamburg- American Packet 

Co. 27 Jones &S. 49.. 

155, 1032 

Rothchild v. Wabash, St. L. & P. 

R. Co. 92 Mo. 91 877 

Rousillou v. Rousillon, L. R. 14 

Ch. Div.351.73, 464,473, 896 
Rowe B. City of Dublin, The, 1 

Ben. 56 888 

v. Pickford, 8 Taunt. 83, 1 

Moore, 526... 889 

Rowland ®. New York, N. H. & 

H. R. Co. 61 Conn. 103 

49 Am. & Eng. R. Cas. 

61 852 

Rubens v. Judgate Hill 8. S. Co. 

48 N. Y. S. R. 732.. 54, 101 
Ruggles V. Illinois, 108 U. S. 526, 

27 L. ed. 813 499,518 

Rushville v. Rushville Nat. Gas 

Co.l83Ind.575,15L.R. 

A 321 759 

Russia, The,' 3 Ben" "479"" '"'I^ 360 
Russell V. Southard, 53 U. S. 12 

How. 139, 13 L. ed. 937 895 
®. South Britain Soc. 9 Conn. 

522 1006 

Rutland & W. R. Co. ». Bank of 

Middlebury, 32 Vt. 639 909 
Ryan v. Missouri, K. & T. R. Co. 

65 Tex. 13, 57 Am. Rep. 

689 .- 893, 1030 



Sabine & E. T. R. Co. «. Cruse, 83 

Tex. 460 875 

Sack B. Ford, 13 C. B. N. S. 100.. 299 
Sackett's Harbor Bank v. Codd, 18 

N. Y. 248 703 



Sager v. Portsmouth, S. & P. &E. 
R. Co. 31 Me. 228, 50 

Am. Dec. 659 

....18, 43, 75, 125,148, 
185, 188, 254. 310, 1012, 1030 
St. Clair v. Chicago, B. & Q. R. 
Co. 80 Iowa, 304, 43 
Am. & Eng. R. Cas. 414 323 
St. John V. New York, 6Duer, 315 363 
St. Joseph, H. & St. J. R. Co. ». 

Saville, 39 Mo. 451 32 

St. Joze Indiano, The, 14 U. S. 1 

Wheat. 208, 4 L. ed. 73.1004 
St. Juan Baptista, The, 5 C. Rob. 

Adm. 36-. _ 359 

St. Louis, A. & T. H. R. Co. «. 
Montgomery, 39 111. 335 

- .77, 936 

St. Louis, A. & T. R. Co. v. John- 
son, 53 Ark. 383 918 

V. McKee (Tex.) Oct. 26, 

1889 931, 923 

«. Neel, 56 Ark. 279, 12 Ry. 

&Corp. L. J. 110 

299, 918, 1034, 1034 

e. Philadelphia F. Asso. 55 

Ark. 163 79 

11. Robbing (Tex. App.) Dec. 

14, 1889 57,196, 219 

B. Turner, 1 Tex. Civ. App. 

625 341, 375 

St. Louis & I. M. R. Co. v. Lamed, 

103111. 293... 143, 915 

St. Louis & 8. E. R. Co. v. Dor- 
man, 72 111. 504 231 

St. Louis & S. E. R. Co. v. Smuck, 

49 Ind. 303 46, 55 

St. Louis & S. F. R. Co. v. Clark, 

48 Kan. 321 253, 287 

u. Gill, 11 L. R. A. 452, 54 

Ark. 101 515 

V. Ryan, 56 Ark. 245 520 

St. Louis, I. M. & S. R. Co. v. 

Bone, 52 Ark. 26 189 

V. Commercial U. Ins. Co. 
139 U. 8. 223, 35 L. ed. 

154... 

77, 140, 141, 391, 1031, 1033 
«. Henderson, 57 Ark. 403.. 230 
V. Knight, 133 U. S. 79, 30 

L. ed. -1077 

90, 105, 138, 141, 155 

«. Lear, 54 Ark. 399 411, 876 

V. Lesser, 46 Ark. 236 303 

v. Mudford, 44 Ark. 439.360, 343 

V. Spann, 57Ark. 127 293 

c. Weakly, 50 Ark. 397.... 
-46, 130, 203, 207, 280, 404 



Ixviii 



TABLE OF CASES. 



St. Louis Ins. Co. v. St. Louis, V. 

T. H. & I. R. Co. 104 

U. S. 146, 26 L. ed. 679 

6, 389, 413 

St. Louis, K. C. & N. B. Co. v. 

Piper, 13 Kan. 505.359, 1013 
Salmon Falls Mfg. Co. v. Tangier, 

The,l Cliff, 396, 6 Am. 

L. Reg. 504 

938, 939, 941, 944 

Saltus «. Everett, 20 Wend. 367, 32 

Am. Dec. 541-.. - 

109,859, 860, 865 

®. Ocean Ins. Co. 12 Johns. 

107, 7 Am. Dec. 390-.. 853 
Samms v. Stewart, 30 Ohio, 69, 55 

Am. Dec. 445 3 

Samuel v. Cheney, 135 Mass. 378, 

46 Am. Rep. 467 915 

Samuel E. Spring, The, 29 Fed. 

Rep. 397 23, 307 

Samuels B.Louisville & N. R. Co. 4 

Inters. Com. Rep. 420, 

31 Fed. Rep. 57 

521,746, 757, 784 

San Antonio & N. P. R. Co. 

V. Bailey (Tex. App.) 

March 19, 1890 330 

San Barnardino Board of Trade v. 

Atchison, T. & S. F. R. 

Co. 3 Inters. Com. Rep. 

138 658, 717, 881 

Sanborn, Be, 148 U. S. 323, 37 L. 

ed. 429 -1082, 1094 

Sanborn o. Webster, 2 Minn. 523. 357 
Sandeman «. Scurr, L. R. 2 Q. B. 

98 - - 301 

Sanders «. Van Zeller, 4 Q. B. 260 817 
Sandford v. Cattawissa, W. & E. 

R. Co. 24 Pa. 378, 64 

Am. Dec. 667 27, 746 

Santa Clara Valley Mill & L. Co. 

V. Hayes, 76 Cal. 387.. 

_.-461, 694 

Santee, The, 48 Fed. Rep. 126 353 

Santee, The, 7 Blatcht. 186. ..945, 967 

Sarah, The, 2 Sprague, 80 871 

Sarah Christiana, The, 1 C. Rob. 

Adm. 287 860 

Sargent c. Morris, 3 Barn. & Aid. 

273 -. 1005-1007 

Satterlees. Groat, 1 Wend. 272... 3 
Saugerties, The, 44 Fed. Rep. 635 

23, 113, 307 

Savage v. Corn Exchange F. & I. 

Ins. Co. 36 N. Y. 655. 1008 
Savannah, The, cited in 1 Parsons, 

Ship. & Adm. 532.... 1047 



Savannah, F. & W. R. Co. v. Har- 
ris, 26 Fla. 148 365 

Savannah, G. & N. A. R. Co. e. 

State, 55 Ga. 557 431 

v. Wilcox, 48 Ga. 482 ..938, 935 
Saville v. Campion, 2 Barn. & Aid. 

503 • -.. 846 

Sayre v. Louisville Union Benev. 

Asso. 1 Duv. 143, 85 

Am. Dec. 613.. 442, 690, 692 

Say ward v. Stevens, 3 Gray, 101.. 303 

Scammon v. Kansas City, St. J. & 

C. B. R, Co. 41 Mo. 

App. 194 529 

■». Wells, Fargo & Co. 84 
Cal. 311, 42 Am. & Eng. 

R. Cas. 400 213, 928 

Scheu V. Benedict, 116 N. T. 510 . 968 
SchiefEelin v. Harvey, 6 Johns. 169, 

5 Am. Dec. 306 -.4, 28, 176 
Schloss V. Atchison. T. & S. F. R. 

Co. 85 Tex. 601 922 

Schneider v. Evans, 25 Wis. 341, 3 

Am. Rep. 56.-319, 398, 862 
SchoU v. Albany Iron Co. 101 N. 

Y. 602 -- 970 

School Dist. in Medfield v. Boston, 

H. & E. R. Co. 102 

Mass. 552, 3 Am. Rep. 

502... 43, 50, 131, 185, 1012 

Schroeder v. Hudson River R. Co. 

5 Duer, 55 888, 915 

Schultz c. Pietro 6, The, 40 Fed. 

Rep. 497 917 

Scofleld V. Lake Shore & M. S. R. 
Co. 43 Ohio St. 571, 54 

Am. Rep, 846 

...3, 511, 572,757,762, 
740, 741, 749, 770, 775, 785 
V. Lake Shore &M. S. R. Co. 
2 Inters. Com. Rep. 67 

.328, 778,781 

Scothorn v. South Staffordshire R. 

Co. 8Exch. 341 ...364, 856 
Scott V. Baltimore, C. & R. S. B. 

Co. 19 Fed. Rep. 56... 944 
«. Boston & N. O. SS. Co. 

106 Mass. 468. 343 

V. Pettit, 3 Bos. & P. 472 .. 889 
Scovill ®. Griffith, 13 N Y. 509.342, 968 
Scudder «. Union Nat. Bank, 91 U. 

S. 406, 23 L. ed. 245... 893 
Scull V. Briddle. 2 Wash.C. C. 150- 867 
Seaman ®. Crescent City, The, 1 

Bond, 123... 363 

V. Thames, The, 81 U. 8. 
14 Wall. 98, 20 L.ed. 804 90 
Searle v. Scovell, 4 Johns. Ch. 218. 334 



TABLE OF CASES. 



Ixix 



Sears u.Wills, 66 U. S. 1 Blaok.llS, 

17L. ed. 35 868 

v. Wlngate, 3 Allen, 103... 141 
Seavey «. Sburick, 110 Ind. 494 .. 118 
Seccoml) «. Provincial Ins. Co. 10 

Allen, 305 ___ 123 

Second Nat. Bank of St. Louis ®. 

Grand Lodge, F. & A. 

M. 98 U. S. 123, 25 L. 

ed. 75 _. -.954, 958 

Selby i>. "Wilmington & W. R. Co. 

113 N. 0.588 229, 278 

Seller v. Pacific, The, 1 Or. 409 . 1012 
Selway v. Holloway, 1 Ld. Raym. 

46 76, 83, 141 

Senator D. 0. Chase, The, 46 Fed. 

Rep. 874 355 

Serraino v. Campbell, L. R. 25 Q. 

B. Div. 501- 155 

Sewall V. Allen, 6 Wend. 346 ....3, 14 
Sewall's Falls Bridge v. Fisk, 23 

N. H. 171 _-.. 363 

Shackleford ». Wilcox, 9 Pa. 38.. 304 
Shamberg v. Delaware, L. & W. R. 

Co. 3 Inters. Com. Rep. 

502 _._. 886 

Shannon, The, 2 W. Rob. Adm. 

463 849 

Sharpless «. Philadelphia, 21 Pa. 

147, 69 Am. Dec. 759.. 

..744, 746, 769 

Shaw v. Great Western R. Co. 

[1894] 1 Q. B. 875 148 

V. Merchants Nat. Bank of 

St. Louis, 101 U. S. 557, 

35 L. ed. 892 

108, 109, 110,902 

V. York & N. M. R. Co. 13 

Q. B. 347... 17,96 

Shearer o. Pacific Exp. Co. 43 111. 

App. 641 6 

Sheets v. Wilgus, 56 Barb. 663 .. 1007 
Sheffield v. Paige, 1 Sprague, 285. 24 
Shelbyville R. Co. i). Louisville, C. 

& L. R. Co. 82 Ky. 541. 390 
Shellenberger v. Brinton, 53 Pa. 9. 848 
Shelton v. Merchants Despatch 

Transp. Co. 59 N. Y. 

258. 135,891 

Shenk «. Philadelphia Steam Pro- 
peller Co. 60 Pa. 109, 

100 Am. Dec. 541.. 938, 940 
Shepherd «. Nay lor, 5 Gray, 591 

105, 106 

Sheridan «. New Quay Co. 4 0. B. 

N. S. 618. -926, 927 

Sherlock v. Ailing, 92 U. S. 99, 23 

L. ed. 819 513 



Sherman ». Hudson River R. Co. 

64 N. Y. 254 393 

V. Inman SS. Co. 26 Hun, 

107 165 

Shipley v. Carroll, 45 111. 285 100 

Shipper v. Pennsylvania R. Co. 47 

Pa. 338 - 

739, 746, 755, 757, 763, 876 
Shipton V. Thornton, 9 Ad. & El. 

314 333 

Shoenberger v. Mulhollan, 8 Pa. 

134 441 

Shriver e. Sioux City & St. P. R. 

Co. 34 Minn. 506, 31 

Am. Rep. 353.188, 379, 1013 
Shulbrick «. Salraond, 3 Burr. 

1637 20, 21 

Sidney, The, 23 Fed. Rep. 88 ... 1013 
Silver v. Hale, 3 Mo. App. 557.318, 325 
Simkins e. Norwich & N. L. S. B. 

Co. 11 Cush. 102.. .-97, 316 
Simmes v. Marine Ins. Co. 3 

Cranch, 0. C. 618 846 

Simmons 0. Law, 3 Keyes, 319... 303 
Simms v. South Carolina R. Co. 26 

8. C. 490. 407 

Simons v. Great Western R. Co. 26 

L. J. C. P. 35 44 

Simpson v. Story, 145 Mass. 497.. 59 
Simson ®. Brown. 68 N. Y. 855--. 958 
Singleton v. Hilliard, 1 Strobh. L. 

303 14, 180 

V. Phosnix Ins. Co. 133 N. 

Y. 398 33 

Sinnot v. Davenport, 63 XJ. S. 22 

How. 227, 16 L. ed. 243 

486, 530 

Siordet v. Hall, 4 Bing. 607 176 

Sioux City & P. R. Co. «. First 

Nat. Bank of Fremont, 

10 Neb. 556, 35 Am. Rep. 

488 148 

Sisson V. Cleveland & T. R. Co. 14 

Mich. 489, 90 Am. Dec. 

252 329,345,413, 1036 

Six Hundred & Thirty Quarter 

Casks of Sherry Wine, 

14 Blatchf. 517 1033 

Skinner v. Hall, 60 Me. 477 365 

Skinninggrove Iron Co. ». North- 
eastern R. Co. 5 Ry. & 

Canal Traffic Cas. 344 835 
Skrainka «. Scharringhausen, 8 

Mo. App. 523 462, 464 

Slater v. Northern Pac. R. Co. 

2 Inters. Com. Rep. 243. 533 
V. South Carolina R. Co. 29 

S. C. 96 160, 161, 188 



Ixx 



TABLE OF CASES. 



Slayter «. Havward Rubber Co. 26 

Conn. 138 178 

Slayton, JSs porfe, 105 U. S. 451, 

26L. ed. 1066 1041 

Sleade v. Payne, 14 La. Ann. 453. 891 
Sleat e. Fagg, 5 Barn. & Aid. 342 314 
Slim ®. Great Northern R. Co. 26 

Eng. L. &Eq. 397 41 

Sloan V. Pacific R. Co. 61 Mo. 24, 

21 Am. Rep. 397 746 

Smith ». Alabama, 124 U. S. 465, 

31 L. ed. 508, 1 Inters. 

Com. Rep. 804 

53,484,512, 532, 533 

«. Cleveland, C. C. & St. L. 

R. Co. 93 Ga. 539.... 335 
D. Clews, 4 L. R. A. 392, 114 

N. Y. 190 118,385,386 

«. Condry, 42 U. S. 1 How. 

28, 11 L. ed. 35.357, 358, 363 

D. Jones, 7 Cow. 328 361 

B. McGuire, 27 L. J. Bxch. 

496 847 

D. Martin, 6 Binn. 262. 866 

«. Michigan Cent. R. Co. 

100 Mich. 148 243, 268 

«. Mobile Nav. & Mut. Ins. 

Co. 30 Ala. 167 118 

D. New Haven & N. R. Co. 

12 Allen, 531, 90 Am. 

Dec. 166.... 16, 231, 353, 254 
«. New York & N. Granite 

Pav. Block: Co. 56 Fed. 

Rep. 537, aff'g 56 Fed. 

Rep. 525 941 

V. New York Cent. R. Co. 

43 Barb. 255 1030 

«. North Carolina R. Co. 64 

N. C. 335 125, ISO, 188 

V. North Carolina R. Co. 68 

N. C. 107 1037 

D. Pyman [18911 1 Q. B. 742, 

rev'g [1891] 1 Q. B. 42. 855 
V. Rosario Nitrate Co. (1893) 

2Q. B. 328.. 324 

V. Shepherd, Abbott, Ship- 
ping, 383 161 

V. Turner, 48 U. S. 7 How. 

283, 12 L. ed. 702.. 481, 482 
e. Wright, 1 Cal. 43, 2 Am. 

Dec. 162. .169, 301, 310, 937 
Smitha v. Louisville & N. R. Co. 

86Tenn. 198 254, 278 

Smyrl v. Niolon, 2 Bail. L. 431, 33 

Am. Dec. 146 

35,161,177,336 

Snaw r>. Great Western R. Co. 

[1894] 1 Q. B. 378 153 



Snelling v. Hall, 107 Mass. 134... 123 
Snider «. Adams Exp. Co. 63 Mo. 

376 111,197,300,414 

Snow ®. Indiana, B. & W. R. Co. 
109Ind. 422...-94, 96, 
97, 130, 134, 316, 393, 1006 
D. Wheeler, 113 Mass. 179.. 463 
Societe, The, 13 U. 8. 9 Cranch, 

209, 3L. ed. 707 359 

Society for Savings v. Coite, 73 U. 
S. 6 Wall. 594, 18L. ed. 

897 495 

Solomon n. Philadelphia & N. Y. 
Exp. S. B. Co. 2 Daly, 

104.. 938,940 

Solomons d. Dawes, 1 Esp. 88 927 

Sorrell e. Central R. Co. 75 Ga. 509 877 
Soumet B. National Exp. Co. 66 

Barb. 284_ 131 

South «& North Ala. R. Co. 9. Hein- 
lein, 52 Ala. 606, 56 

Ala. 368 

45, 50, 203, 239, 240, 254, 283 
Southern Exp. Co. ■». Boullemet 

100 Ala. 275... 10 

s. Caldwell, 88 U. S. 21 
Wall. 264, 22 L. ed. 73 

198, 221,222 

V. Caperton, 44 Ala. 101, 4 

Am. Rep. 118 324 

«. Crook, 44 Ala. 468, 4 Am. 

Rep.140 7 

V. Dickson, 94 U. S. 549, 24 

L. ed. 285 103, 915 

V. Everett, 37 Ga. 6S8 295 

o. Glenn, 16 Lea, 472 8 

V. Hunnicutt, 54 Miss. 566, 

28 Am. Rep. 385 275 

o. Kaufman, 13 Heisk. 161. 

396 914 
e. McVeigh, 20"Gratt"264..' 7 

B. Moon, 39 Miss. 832 

...43,204,319,1012 

o. Newby, 36 Ga. 635, 91 

Am. Dec. 783 8,79 

e. Seide, 67 Miss. 609, 8 Ry. 

&Corp. L. J. 153 

196,197, 1013 

o. Shea, 88 Ga. 519 399 

«. VanMeter, 17 Fla. 783, 35 

Am. Rep. 107.. 7,915 

e. Womack, 1 Heisk. 356 .. 

7, 75,177 

Southern Pac. R. Co. •». Haas (Tex.) 

Nov. 3, 1891 411 

V. Johnson (Tex. App.) 45 

Am. & Eng. R. Cas. 338 347 
e. Maddox, 75 Tex. 300.136, 196 



TABLE OF OASES. 



Ixxi 



«. Stell (Tex. App.) Jan. 18, 
1890 347 

Southern R. & SS. Assiv. Be, 1 

Inters. Com. Rep. 278. 
417, 532, 574, 

601, 615. 647-649, 653, 663 
Southern 88. Co. t>. New Orleans 

Port Wardens, 73 U. 8. 

6 Wall. 31, 18 L. ed. 

749 488 

Southern Wire Co. v. St. Louis 

Bridge & T. R. Co. 38 

Mo. App: 191 851 

Spartali b. Benecke, 10 0. B. 223. 302 
Spartan, The, 25 Fed. Rep. 44.... 967 
Spartanburg Board of Trade v. 

Richmond & D. R. Co. 

2 Inters. Com. Rep. 193 

590, 600, 727 

Spears d. Ward, 48 Ind. 541 118 

Spence «. Chodwick, 10 Q. B. 517 873 

Spencer v. Daggett, 2 Vt. 92 160 

Spinetti v. Atlas SS. Co. 80 N. Y. 

71, 36 Am. Rep. 575. .. 51 
Spofford V. Boston & M. R. Co. 128 

Mass. 326 740, 749 

Sprague «. Missouri Pac. R. Co. 34 

Kan. 347 275 

Sproat V. Donnell, 26 Me. 187, 45 

Am. Dec. 103 302, 806 

Spurgin ». Traub, 65 111. 170 101 

Squire ». Michigan Cent. R. Co. 3 

Inters. Com. Rep. 515.. 

552, 556, 577,776,784 

e. New York Cent. R. Co. 98 

Mass. 239, 93 Am. Dec. 

162 46,80, 

95, 202, 209, 247, 254, 

383, 285, 287, 39fe, 1012, 1035 
Stacy ». Ross, 27 Tex. 3, 84 Am. 

Dec. 604 100 

Standard Oil Co. ■». Tierney, 14 L. 

R. A. 677, 93 Ky. 367.. 88 
Stanley v. Wabash, St. L. & P. R. 

Co. 3 Inters. Com. Rep. 

176 229 

Stanton u Allen, 5 Denio, 434^ 49 

Am. Dec. 282 

434, 437, 442,461, 690 

11. Eager, 16 Pick. 467 1003 

Starnes ». Louisville & N. R. Co. 

91 Tenn. 516 286 

Star of Hope, The, v. Church, 84 

U. 8. 17 Wall. 651, 21 

L. ed. 719 300, 303, 306 

State B. Atchison & N. R. Co. 34 

Neb. 143, 33Am.&Eng. 

R. Cas. 388 443,691 



State r. Chicago, B. & Q. R. Co. 

(Iowa) May 14, 1894... 541 
B. Chicago, M. & St. P. R. 

Co. 88 Iowa, 445 535 

B. Chicago, St. P. M, & O. 

R. Co. 2 Inters. Com. 

Rep. 519, 3 L. R. A. 

238, 40 Minn. 267 528 

B. Cincinnati, N. O. & T. P. 

R. Co. 7 L. R. A. 319, 

47 Ohio St. 130.. ..571, 

757, 763, 784 

B. Delaware, L. & W. R. Co. 

48 N. J. L. 55, 57 Am. 
Rep. 543 ...738, 757 

V. Fremont, E. & M. V. R. 

Co. 22 Neb. 313... 521, 540 
B. Qoss, 59 Vt. 266, 59 Am. 

Rep. 706 10 

e. Harrub (Ala.) 4 Inters. 

Com. Rep. 99, 15 L. R. 

A. 761 508 

B. Hartford & N. H. R. Co. 

39 Conn. 538 442, 

443,690, 691 

B. Hibernia Underground R. 

Co. 47 N. J. L. 47 689 

e. Indiana & O. Oil G-. & 

Min. Co. 2 Inters. Com. 

Rep. 758, 6 L. R. A. 

579, 120 Ind. 575 513 

«. Intoxicating Liquors, 3 

Inters. Com. Rep. 581, 

83 Me. 158 1003 

B. Kansas Cent. R. Co. 47 

Kan. 497, 49 Am. & 

Eng. R. Cas. 176. 542 

o. Kennedy, 19 La. Ann. 

397 ..I 481 

s. Lewis, 78 N. C. 138, 21 

Am. Rep. 461 913 

B. Missouri Pac. R. Co. 29 

Neb. 550, 42 Am. & 

Eng. R. Cas. 661 766 

B. Mobile & M. R. Co. 59 

Ala. 321 591, 852 

B. Moore, 104 N. C. 714.... 483 
B. Morris & E. R. Co. 33 N. 

3.L. 860 ..1089 

B. Murfreesboro, 11 Humph. 

217 - ....1090 

«. Newton, 2 Inters. Com. 

Rep. 63, 50 N. J. L. 

534 509 

B. Peck, 53 Me. 284 913 

B. Pensacola & A. R. Co. 27 

Fla. 403, 46 Am. & 

Eng. R. Cas. 704. 883 



Ixxii 



TABLE OF CASES. 



State «. Bichmond & D. R. Co. 
72 N. C. 634. 73 N. C. 
527, 21 Am. Hep. 478- 441 
B. Rogers, 22 Or. 348.-539, 645 
«. SuflEolk & C. R. Co. 100 

N. C. 158 80 

«. Vanderbilt, 37 Ohio St. 

590 441, 443, 691 

o. Woodruff Sleeping & Par- 
lor Coach Co. 1 Inters. 
Com. Rep. 798, 104 Ind. 

155 512, 523 

Steel V. State Line 8S. Co. L. R. 3 

App. Cas. 72 191 

Steele v. McTyer, 31 Ala. 667, 70 

Am. Dec. 516 3 

«. Thacher, 1 Ware, 93 1048 

V. Townsend, 37 Ala. 247, 

79 Am. Dec. 49 , 48 

Steers v. Liverpool, N. Y. & P. 88. 
Co. 42 N. Y. 1, 15 Am. 

Rep. 453 202, 203, 315 

Steinman v. Angier Line [1891] 1 

Q. B. 619- - 151 

Steinweg v. Erie R. Co. 43 N. Y. 
123, 3 Am. Rep. 678-. 

18, 19,96, 151, 185 

Stephens v. Elwall, 4 Maule & S. 

259 _ 908 

Stephenson v. Hart, 4 Bing. 476.. 

893, 966, 1004 

Sterling, The, «. Petersen, 106 IT. 

S. 647, 37L. ed. 98-.. 357 
Sternberger v. Cape Pear & Y. V. 
R. Co. 2 Inters. Com. 
Rep. 426, 3 L. R. A. 

105, 39 8. C. 510 538 

Stevens v. Boston & M. R. Co. 1 

Gray, 277 187 

«. Boston & W. R. Corp. 8 

Gray, 262 859, 861 

». NavigazioneGeneraleltal- 
iana, 39 Fed. Rep. 562. 

168, 333 

Stewart v. Erie & W. Transp. Co. 

17 Mian. 373 461, 473 

0. Lehigh Valley R. Co. 38 

N. J. L. 505.. 571, 749, 760 
«. Merchants Dispatch 
Transp. Co. 47 Iowa, 
339, 29 Am. Rep. 476 

7, 815 

Stickney v. Munroe, 44 Me. 197 . 908 
Stiles V. Davis, 66 U. 8. 1 Black. 

101, 17 L. ed. 83.. -927, 931 
V. Howland, 32 N. Y. 309- . 926 

Stimson v. Helps, 9 Colo. 33 100 

V. Jackson, 58 N. H. 138-.. 914 



Stockton e. Baltimore & N. Y. R. 
Co. 1 Inters. Com. Rep. 
411, 32 Fed. Rep. 9--. 491 
Stockton t>. Frey, 4 Gill, 407, 45 

Am. Dec. 138 11 

Stockton & D. R. Co. ■». Barrett, 

11 Clark &F. 590 591 

Stoddard v. Long Island R. Co. 5 

Sandf. 180 45 

Stoer «. Crowley, McClel. & Y. 

129 114 

Stokes V. Saltonstall, 38 U. S. 13 

Pet. 181, 10 L. ed. 115.1028 
Stollenwerck v. Thatcher. 115 

Mass. 224 108, 110, 112 

Stone ®. Detroit, G. H. & M. R. 
Co. 3 Inters. Com. Rep. 

60 ..707, 726 

V. Farmers Loan & T. Co. 
(' ' Railroad Commission 
Cases") 116 U. S. 307, 

29 L. ed. 636 

500,510, 518-521, 642. 

Storrs fl. Pensacola & A. R Co. 

29 Pla. 617. 542, 597 

Stoutenburgh «. Hennick, 129 TJ. 

8. 141, 32 L. ed. 6a7...1070- 
Straker ». Hartland, 2 Hera. & M. 

570 857 

Strick V. Swansea Canal Co. 16 C. 

B. N. S. 245-618. 758, 785 
Strieker v. Leathers, 13 L. R. A. 

600, 68 Miss. 803 966 

Strickland v. Barrett, 20 Pick. 415 

- _..910, 911, 914 

Strohn v. Detroit & M. R. Co. 31 
Wis. 554, 94 Am. Dec. 

564 129, 133, 389 

Strong V. A Certain Quantity of 
Wheat, 70 U. 8. 3 Wall. 

235, 18 L. ed. 194 889 

t>. Natally, 4 Bos. & P. 16.. 939 
Strouss T. Wabash, St. L. & P. R. 

Co. 17 Fed. Rep. 309.. 172 
Stump V. Hutchinson, 11 Pa. 533. 96 
Sturges V. Crowninshield, 17 U. 8. 
4 Wheat. 193, 196, 4 L. 

ed. 547 489, 496 

Suffolk, The, 31 Fed. Rep. 885... 368 
Sullivan v. Jernigan, 31 Fla. 364 

-117, 965 

Sultana, The, a. Chapman, 5 Wis. 

454 941, 914, 966 

Summer v. Hamlet, 12 Pick. 76.. 109- 
Sumner v. Walker, 30 Fed. Rep. 

261-_ 831 

Susquehanna & B. Turnp. R. Co. 

«. People, 15Wend. 267.108» 



TABLE OF OASES. 



Ixxiii 



SusquehanBa Fertilizer Co. ■». 

White, 66 Md. 444, 59 

Am. Rep. 186 117-119 

Sutherland v. Second Nat. Bank 

of Peoria, 78 Ky. 350.. 889 
Sutton V. Cieri, L. R. 15 App. Cas. 

144 _. 96 

Swain v. Shepherd, 1 Mood. & R. 

234 1004 

Swainston v. Garrick, 2 L. J. Exch. 

N. S. 355. 301 

Swann v. Swann, 21 Fed. Rep. 

399 ._ _ 460 

Sweatt V. Boston, H. & E. R. Co. 

5 Nat. Bankr. Reg. 243 13 
Sweeney «. Thompson, 39 Fed. 

Rep. 131 33 

Sweet V. Baruey, 23 N. Y. 335.. 

- Ill, 1007 

Swetland v. Boston & A. R. Corp. 

102 Mass. 376.. 176, 337, 337 
Swift V. Browneli, 1 Holmes, 467. 363 
V. Pacific Mail SS. 'Co. 106 

N. Y. 306 134, 

.-..135, 395, 411, 412, 1006 
V. Philadelphia & R. R. Co. 

58 Fed. Rep. 858... 509, 574 
s. Tyson, 41 U. 8. 16 Pet. 1, 

10 L. ed. 865 895 

Swindler v. Hilliard, 2 Rich. L. 

286, 45 Am. Dec. 732.35, 43 
Switzer ®. Pinconning Mfg. Co. 

59 Mich. 488_ 338 

Sword V. Young, 89 Tenn. 136 

....915, 916 

Symonds v. Pain, 6 Hurlst. & N. 

709 4 

Syracuse, The, v. Langley, 79 U. 

S. 12 Wall. 167, 20 L. 

ed. 382... 348 

T. 

Taff Vale R. Co. v. Giles, 33 L. J. 

Q. B. 43 339 

Tainter «. Clark, 5 Allen, 66 473 

Talbot V. Janson, 3 U. S. 3 Dall. 

133, 1 L. ed. 540 359 

Merchants Despatch 

Transp. Co. 41 Iowa, 

247, 30 Am. Rep. 589.. 

893, 894 

V. Wakeman, 19 How. Pr. 

86 871 

Tallis V. Tallis, 1 El. & Bl. 391.463, 473 

Tally «. Ayres, 3 Sneed, 677 87 

Tan Bark Case, The, 1 Brown, 

Adm. 154 95 



Tanco v. Booth, 39 N. Y. S. R. 83. 872- 

Tangier, The, 33 Fed. Rep. 280.. 855 

Tappan v. Albany Brewing Co. 

(Cal.) 5 L. R. A. 428... 101 

Tarbell v. Royal Exch. Shipping 

Co. HON. Y. 170 945 

Tarbox v. Eastern S. B. Co. 50 

Me. 339 1038 

Tariffs of Columbus &'W.R.Co. Be, 

3 Inters. Com. Rep. H. 575 

Tariffs of the Transcontinental 
Lines, Be, 3 Inters. 

Com. Rep. 303 

598, 715, 727, 733, 733, 881 

Tate V. Hyslop, L. R. 15 Q. B. 

Div. 368 .1011,1013 

V. Meek, 8 Taunt. 280 846 

Tattersall v. National SS. Co. L. 

R. 13 Q. B. Div. 297.. 356 

Taylor B. Ely, 35 Conn. 258 1035 

V. Great Northern R. Co. 

L. R. IC. P. 385... 320, 321 
V. Little Rock, M. R. & T. 

R. Co. 39 Ark. 148.... 403 
9. Liverpool & G. W. Steam 

Co. L. R. 2 Q. B. 546-. 127 

Taylor, B. & H. R. Co. v. Mont- 
gomery (Tex. App.) 

April 29, 1891 

219, 343, 245, 1035. 

i>. Sublett (Tex. App.) April 
39, 1891 319, 342, 1035 

Tebo 1). Jordan, 67 Hun, 393 354 

Tecumseh Celery Co. ». Cincinnati, 
J. & M. R. Co. 4 Inters. 
Com. Rep. 318 535, 561 

Telegraph, The, v. Gordon 
("Vaughan & Tele- 
graph, The") 81 U. 
S. 14 Wall. 358, 20 L. 
ed,807- 357, 1007, 1034 

Terre Haute & I. R. Co. ». Sher- 
wood, 17 L. R. A. 889, 

133 Ind. 139 51 

V. Struble, 109 U. S. 381, 37 
L. ed. 970 260 

Terry, Ex parte. 128 U. 8. 289, 32 

L. ed.405.. -1088 

Teutonia, The, L. K. 3 Adm. 394. 873 

Texas & P. R. Co. o. Clark, 4 Tex. 

Civ. App. 611 766 

«. Cuteman (Tex. App.) Oct. 

16, 1889 .- 104 

v. Klepper (Tex. Civ. App.) 

Dec. 20, 1893 274 

v. Kuteman, 54 Fed. Rep. 
547, 79 Tex. 465, dis- 
tinguished 655, 656, 1045 



Ixxiv 



TABLE OF CASES. 



Texas «. Southern Pac. R. Co. 41 

La. Ann. 970, 137 U. 

S. 48, 34 L. ed. 614 

689,'694 

3. Wood (Tex. Civ. App.) 

Nov. 1, 1893 922 

Thames, The, 5 C.Rob.Adm. 308.. 1045 
v. Seaman, 81 U. S. 14 

Wall. 98, 20 L. ed. 804, 

7 Blatchf. 226, 3 Ben. 

279....95, 102,109, 897,907 
Tharsis Sulphur & C. Co. o. Morel 

Bros. & Co. [1891] 2 Q. 

B. 047.... 869 

Thatcher «. Fitchburg & A. R. Co. 

1 Inters. Com. Rep. 22. . 648 
V. Fitchburg R. Co. 1 Inters. 

Com. Rep. 356 533, 648 

Thayer v. St. Louis, A. & T. H. 

R. Co. 22 Ind. 26, 85 

Am. Dec. 409 185 

Theatrical Rates, Be, 1 Inters. 

Com. Rep. 18_ 533 

Thingvalla, The, 48 Fed. Rep. 764. . 352 
Thomas «. Boston & P. R. Corp. 

10 Met. 472, 43 Am. 

Dec. 444 31, 35, 42, 891 

c. Day, 4 Esp. 262. 84 

V. Lane, 2 Sumn. 9... 1048 

V. Winchester, 6 N. T. 397, 

57 Am. Dec. 455 87 

Thomas Melville, The, 31 Fed. 

Rep. 486... ..1049 

Thommessen i>. Whitwell, 118 U. 

5. 523, SOL. ed. 156... 
60, 61, 1041 

Thompson v. Chicago & A. R. Co. 

22 Mo. App. 321. 220 

s. Dominv, 14 Mees. & W. 

408.: 110, 1006 

V. Stewart, 3 Conn. 172, 8 

Am. Dec. 168. 108, 394 

Thornley, The, 7 Jur. 659 349 

Thouron ®. East Tennessee, V. & 

6. R. Co. 90 Tenn. 609, 
5Ry.&Corp.L. J.77.. 

443 ggi 

Thrift o. Youle,"LV"R""2 C. P.' 

Div. 434 157 

Thurber v. New York Cent. & H. 

R. R. Co. 2 Inters. 

Com. Rep. 742. 

548,551,754, 785 

Thurman v. Wells, Fargo & Co. 

18 Barb. 500 35 

Tichburne v. White, 1 Strange, 

145 218 

Tiedeman s. Knox, 53 Md. 612... 110 



Tierney v. New York Cent. & H. 

R. R. Co. 76 N. Y. 305, 

10 Hun, 569 325 

Tigress, The, Brown & L. 38 102 

Tilden «. Minor, 45 Vt. 196 107 

Tilton, The, 5 Mason, 476. 867 

Timor, The, 46 Fed. Rep. 859.. 149, 167 
TIndal v. Taylor, 4 El. & Bl. 219.. 896 
Tippecanoe County Comrs. », 

Lafayette, M. & B. R. 

Co. 50 Ind. 85 443,691 

Tisloe e. Graeter, 1 Blatchf. 353.. 97 
Tison V. Howard, 57 Ga. 410.. 108-110 
Toledo, A. A. & N. M. R. Co. v. 

Pennsylvania Co. 19 L. 

R. A. 395, 54 Fed. Rep. 

746 423 

Toledo, F. & M. Ins. Co. «. Speares, 

16 Ind. 52 299 

Toledo, P. & W. R. Co. ■o. Merri- 

man, 52 111. 123, 4 Am. 

Rep. 590 . 397 

Toledo Produce Exch. e. Lake 
Shore & M. 8. R. Co. 3 

Inters. Com. Rep. 830.. 

598,687, 720 

Toledo, W. & W. R. Co. v. Beggs, 

85 111. 80, 28 Am. Rep. 

613 53,1012 

V. Elliott, 76 111. 67 749 

c. Hamilton, 76 111. 393 

239, 240,254 

e. Hammond, 33 Ind. 379, 5 

Am. Rep. 221 890 

«. Lockhart, 71 111. 627.... 75 
V. Roberto, 71 111. 540.. 851, 852 
c. Thompson, 71 111. 434... 

239,240,247 

Tomlinson ®. London & N. W. R. 

Co. 8 Ry. & Corp. L. 

J. 328 687 

Tonawanda Valley & C. R. Co. o. 

New York, L. E. & W. 

R.Co. 42 Hun, 496.. 441, 694 
Torgorm, The, 48 Fed. Rep. 584.. 394 
Toulmin v. Anderson, 1 Taunt. 227, 182 
Tozer «. United States, 4 Inters. 

Com. Rep. 245, 52 Fed. 

Rep. 917 783 

Tracey ». Good, 1 Pa. L. J. 473.. 909 
Tracy v. Talmage, 14 N. Y. 162, 

67 Am. Dec. 132 703 

Trade Mark Cases, 100 U. S. 82, 25 

L. ed. 550 495 

Traders & T. Union v. Philadel- 
phia & R. R. Co. 1 

Inters. Com. Rep. 371. 

533,534 



TABLE OF OASES. 



Ixxv 



Train v. Boston Disinfecting Co. 

144 Mass. 523, 59 Am. 

Rep. 113 484 

TrammellB. Clyde SS. Co. 4 Inters. 

Com. Rep. 120-534, 535, 

608, 612, 615, 619, 621, 

638, 637, 651, 653, 681, 683 
Transportation Cases, Whart. 

Free. No. 658 434 

Trask v. Duvall, 4 "Wash. C. C. 181 846 
Travis «. Thompson, 37 Bavb. 236 859 
Trent & M. Nav. Co. «. Wood, 4 

Dougl. 287, 3 Bsp. 137. 

13, 14, 16, 35, 151, 159, 177 
Trinacria, The, 43 Fed. Rep. 863. 168 
Tronson v. Dent, 36 Eng. L. & Eq. 

41.... 383 

Trowbridge «. Chapin, 33 Conn. 

595 78 

Troy & B. R. Co. b. Boston, H. T. 

& W. R. Co. 86 N. Y. 

107 440 

Troy Board of Trade v. Alabama 

Midland R. Co. 4 Inters. 

Com. Rep. 348 387 

Truax v. Philadelphia, W. & B. R. 

Co. 3 Houst. (Del.) 233 310 

Tufts 1. Sylvester, 73 Me. 313 926 

Turner v. Black Warrior, The, 1 

McAll. 181 95 

«. Maryland, 107 U. S. 38, 

27 L. ed. 370. .486, 496, 510 
V. Protection Ins. Co. 35 

Me. 515, 43 Am. Dec. 

294.. 165 

V. St. Louis & S. F. R. Co.- 

30 Mo. App, 632.94, 96, 402 
Turney s. Wilson, 7 Yerg. 340, 37 

Am. Dec. 515 

.■ 11, 13, 36, 1028, 1080 

Tuttle n. Becker, 47 Iowa, 486... 902 
Twenty-one Friends, The, 38 Fed. 

Rep. 190 163 

Tybee, The, 1 Woods, 358 

938, 940, 964 

Tygert Co. v. Charles P. Sinnick- 

son, The, 24 Fed. Rep. 

804 187, 1027 



U. 

Udell T. Illinois Cent. R. Co. 13 

Mo. App. 354 .- 19 

Umbria, The, 46 Fed. Rep. 927.. 1037 
Underbilling, Be, 1 Inters. Com. 

Rep. 813 783 



Union Bridge Co. v. Trdy & L. R. 

Co. 7 Lans. 240 489 

Union Exp. Co. v. Graham, 26 

Ohio St, 595.-75, 197, 1030 
Union Locomotive & Exp. Co. ■». 

Erie R. Co; 37 N. J. L. 

33 757, 770 

Union Mut. Ins. Co. v. Indianapo- 
lis & C. R. Co. 1 Disney, 

480 131, 185, 189 

Union Pac. R. Co. v. Chicago, R. 

I. &P. R. Co. 10 U.S. 

App. 98, 51 Fed. Rep. 

309 479 

o. Good ridge, 149 U. S. 680, 

87 L. ed. 896.. 760, 767, 874 

». Marston, 30 Neb. 241 185 

«. Moyer, 40 Kan. 184 914 

s. Myers ("Pac. R. Removal 

Cases") 115 U. S. 1, 29 

L. ed. 319 488 

«. Rainey, 19 Colo. 225. .52, 232 
V. United States ("Sinking 

Fund Cases") 99 U. 8. 

700, 23 L. ed. 496.755, 1073 
s. United States, 117 U. 8. 

355, 39 L. ed. 930 749 

Union R. & Transp. Co.«. Riegel, 

73 Pa. 73 906 

«. Yeager, 34 Ind. 1 109 

United Ins. Co. ■». Robinson, 3 Cai. 

280. 36 

V. Scott, 1 Johns. 106 26 

United States v. Armstrong, 3 

Curt. 446 458 

V. Baltimore & O. R. Co. 7 

Am. L. Reg. N. S. 757.1090 
a Bradley, 35 U. S. 10 Pet. 

343,9 L. ed. 448 963 

«. Cleveland, C. & S. R. Co. 

3 Inters. Com. Rep. 290.1090 
V. Combs, 37 U. S. 12 Pet. 

72, 9 L. ed. 1004 486 

D. Coppersmith, 4 Fed. Rep. 

198 458 

e. Davis, 2 Sumn. 482, 2 

Hale, P. C. 17. 1048 

®. Delaware Ins. Co. 4 Wash. 

C. C. 422... 109 

9. De Witt, 76 U. S. 9 Wall. 

41, 19 L. ed. 593 495 

V. Eagan, 3 Inters. Com. 

Rep. 583, 47 Fed. Rep. 

112 1093 

V. Ferreira, 54 U. S. 13 How. 

40, 14 L. ed. 43 1080 

V. Hodson, 77 U. S. 10 Wall. 

395, 19 L. ed. 937 963 



Ixxvi 



TABLE OF CASES. 



United States ». Hudson, 11 U. 8. 7 

Cranch,32, 3L. ed. 259.1088 

«. Jellico Mountain Coal & 
C. Co. 12 L. R. A. 753, 
46 Fed. Rep. 432 461 

«. Tiie Juniata ("Tlie Juni- 
ata") 93 U. S. 337, 23 
L. ed. 930 1023 

«. Knight, 3 Inters. Com. 
Ri'p.801. - 1092 

o. Magill.l Wasli. C. C. 468.1048 

V. Marigold, 50 U. S. 9 How. 
560, 13 L. ed. 257 481 

a. Mellen, 4 Inters. Com. 
Rep. 247, 53 Fed. Rep. 
229 655, 1092, 1093 

i>. Micliigan Cent. R. Co. 3 
Inters. Com. Rep. 287, 

43 Fed. Rep. 26 

-720, 782, 1090 

®. Montello, The, 78 U. S. 11 
Wall.411, 20L. ed. 191, 
87 U. S. 20 Wall. 430, 
22 L. ed. 391 494 

«. Morsman, 3 Inters. Com. 
Rep. 112, 43 Fed. Rep. 
448 _ 1092 

V. New Bedford Bridge, 1 
Woodb. & M. 431 486 

Nuestra Senora de Regla, 
The, 108 U. S. 93, 27 
L. ed. 662 359 

e. Railroad Bridge Co. 6 
McLean, 517_ 490 

». Saul, 58 Fed. Rep. 763 . 86 

0. Tingey, 30 U. S. 5 Pet. 
115, 8L. ed. 66.. 962 

e. Todd, 54 U. S. 13 How. 
53, 14 L. ed. 47.. 1080 

». Tozer, 2 Inters. Com. 
Rep. 422, 2 L. R. A. 
444, 37 Fed. Rep. 635. 
688, 1090 

e. Tozer, 3 Inters. Com. 
Rep. 597, 39 Fed. Rep. 
904, aff'g 2 Inters. Com. 

Hep. 540 425, 

599, 601, 686. 719, 753, 774 

ffl. Trans-Missouri Freight 
Asso. 53 Fed. Rep. 440 443 

V. Trans-Missouri Freight 
Asso. 34 L. R. A. 73, 68 
Fed. Rep. 58.. 436, 443, 480 

®. Winchester, 99 U. S. 373, 
25 L. ed. 479 1048 

e. Workmgmen's Amalga- 
mated Council, 54 Fed. 
Rep. 994 462 



United States Exp. Co. v. Back- 
man, 28 Ohio St. 144.. 

7, 313,1030' 

®. Harris, 51 Ind. 127 275 

c. Keefer, 59 Ind. 368.. 115, 116 
V. Kountze, 75 U. S. 8 Wall. 

342, 19 L. ed. 457 

9,121, 175,315 

«. Lucas, 36 Ind. ;h61 703 

V. Root, 47 Mich. 331 7 

Upshare v. Aidee, 1 Comyns, 35, 

Bull. N. P. 70 3 

Upton «. Tribilcock, 91 U. S. 50, 

23 L. ed. 205 .... 879' 

Utopia, The, e. Primula, The 

[1893] App. Cas. 492.. 35& 



V. 

Vanatta b. State Bank, 9 Ohio St 

27 703- 

Van Brocklin v. Anderson, 117 U. 

S. 151, 39 L. ed. 845... 489' 
Van Buskirk v. Purinton, 2 Hall, 

561 -. 859 

B. Roberts, 31 N. Y. 661.21, 366- 
Vandewater e. Mills, 60 U. S. 19 

How. 83, 15 L. ed. 554. 

9.5,868 

Van Etten v. Newton, 184 N. Y. 

143... _.-. 970- 

Van Natta ». Mutual Security Ins. 

Co. 2 Sandf. 490 13 

Van Norden v. Robinson, 45 Hun, 

567 348- 

Van Nostrand ®. Carr, 30 Md. 138, 

2 Nat. Bankr. Reg. 155 489 
Van Santvoord v. St. John, 6 Hill, 

157 383,964 

Van Schaack ». Northern Transp. 

Co. 3 Biss. 394 45, 128 

Van Tell v. Southeastern R. Co. 13 

C. B. N. S. 75 223 

Van Valkenburg a. Rouk, 12 

Johns. 337 100 

Van Winkle o. Adams Exp. Co, 3 

Robt. 59. 213 

e. South Carolina R. Co. 38 

Ga. 83 ....1028 

V. United States Mail SS. Co. 

87 Barb. 132 934 

Varble 8. Bigley, 14 Bush. 698, 39 

Am. Rep. 435 4 

Vass D. Riddick, 89 N. C. 6 913 

Vaughns. Providence & W. R. Co. 

13 R. L 578-... "...862, 863 



TABLE OF OASES. 



Ixxvii 



Teazle «. Moor, 55 IT. S. 14 How. 

568, 14 L. ed. 545... 482, 494 
Ventress v. Smitb, 35 U. S. 10 Pet. 

161,9 L. ed. 383 859 

Tenus, The, 18 U. S. 8 Cranch, 

353, 3L. ed. 553 1004 

Vernard «. Hudson, 8 Sumn. 406. 303 
Vertue «. Jewell, 4 Campb. 31... 1005 
VickBburg v. Tobin, 100 U. S. 430, 

35 L. ed. 690. 517 

Vicksburg & M. R. Co. v. Rags- 
dale, 46 Miss. 458 

161, 320- 

321, 333, 337, 1034, 1036,1037 
Vicksburg Liquor & T. Co. v. 

United States Exp. Co. 

68 Miss. 149 10 

Tidal «. Philadelphia, 43 U. S. 2 

How. 137, 11 L. ed. 305 460 
Ville De Paris, The, 3 Ben. 277.. 938 
Vincent v. Chicago & A. R. Co. 49 

111. 33. ...746, 727, 761, 763 
Viner z. New York, A. G. & W. 

SS. Co. 50 N. Y. 24... 

273, 909, 915 

Virgil, The, 2 W. Rob. Adm. 205 349 
Virginia & T. R. Co. v. Sayers, 26 

Gratt. 328 1012 

Virginia Cent. R. Co. ■». Sanger, 15 

Gratt. 237 177 

Virginia Ehrmau, The, s. Curtis, 

97 U. S. 309, 24 L. ed. 

890 348 

Vivid, The, 4 Ben. 319 1032 

Vlierboon «. Chapman, 13 Mees. 

&W. 330 - 866 

Tolunteer, The, 1 Sumn. 551 846 

Torley B. Cooke, 1 Gifl. 230 100 

Troman «. American Merchants 

U. Exp. Co. 5 Thomp. 

&C. 23.. ._ - 300 

Vrooman v. Turner, 69 N. Y. 280 958 
Vrow Henrica, 4 C. Rob. Adm. 343 360 



W. 

"Wabash, St. L. & P. R. Co. c. 

Black, 11 111. App. 465 43 
D. Illinois, 118 U. S. 557, 30 

L. ed. 244, 1 Inters. 

Com. Rep. 81.484, .500. 

512, 532, 537, 530, 835, 850 
0. Jaggerman, 15 111. 407... 

.72, 138,340 

«. Pratt, 15 111. App. 177... 239 
TVade «. Wheeler, 3 Lans. 201, 47 

N. Y. 658 84 



Wakeman v. Robinson, 1 Bing. 213 161 

Waldo, The, 4 Law. Rep. 382 25 

Waldo, The, 3 Ware, 161.301, 304, -871 
Waldrou i). Romaine, 23 N. Y. 368 889 
V. Willard, 17 K Y. 466__.1008 
Walker v. Maitlaud, 5 Barn. & 

Aid. 171 __1010 

0. New York & N. M. R. 

Co. 3 Car. & K. 279... 41 
®. Western Transp. Co. 70 
U. S. 8 Wall. 150, 18 L. 

ed. 173 124, 183 

Wallace v. Clayton, 42 Ga. 443.161, 337 
®. Long Island R. Co. 13 

Hun, 460 440 

V. Matthews, 39 Ga. 617, 99 
Am. Dec. 473_41, 185, 1013 

V. Sanders, 42 Ga. 486 125 

Walley v. Montgomery, 3 East, 

585 1005 

Walling «. Michigan, 116 U. S. 

446, 29L. ed. 691 

-..485,487, 850 

Wallingford v. Columbia & G. R. 

Co. 26 S. C. 258___148, 407 
Walls «. Bailey, 49 N. Y. 473, 10 

Am. Rep. 407 904 

Walston «. Myers, 50 N. C. 174.. 4 

Walters. Post, 6 Duer, 363 363 

V. Ross, 3 Wash. (C. C.) 383 109 
Walters v. Western & A. R. Co. 

56 Fed. Rep. 369 104 

Wanata, The, ®. Avery, 95 U. S. 

600, 34 L. ed. 461 59 

Wannell v. Kern, 57 Mo. 478 101 

Ward V. Chamberlain, 62 U. S. 21 

How. 573, 16 L. ed. 219 24 
®. Marvland, 79 U. S. 12 

Wall. 408, 20 L. ed. 449 482 
®. New York Cent. R. Co. 
47N. Y. 29, 7 Am. Rep. 

405 989, 1036 

Warden ». Mourillyan, 2 Esp. 693 893 
Warden v. Greer, 6 Watts, 424... 94 
Waring v. Claike, 46 D. S. 5 How. 

441, 12 L. ed. 326 1045 

v. Cox, 1 Campb. 369 1005 

V. Morse, 7 Ala. 343 301 

Warner «. New York Cent. & H. 
R. R. Co. 8 Inters. Com. 

Rep. 74 552, 558 

«. Western Transp. Co. 5 

Robt. 490 312 

Washington & G. R. Co. ■». Var- 
nell, 98 U. S. 479, 25 L, 

ed. 233 - 160 

Wasserberg v. Cunard Steamship 

Co. 8 Misc. 78 203 



Ixxviii 



TABLE OF CASES. 



Waters v. Merchants Louisville 

Ins. Co. 36 U. S. 11 

Pet, 213, 9L. ed. 691.. 

164,165, 1010 

c. Monarch, L. &F. Ins. Co. 

5 El. &BI. 870 -.1009 

V. Richmond & D. li. Co. 16 

L. R. A. 834, 110 N. C. 

338 .266,897, 937, 1024 

Watertown Thermometer Co. v. 

Pool, 51 Hun, 157.. 459, 465 
Watkinson b. Wrexham etc. R. 

Co. SNev. &McN. 5.. 715 
Watson ®. Ambergate, N. & B. R. 

Co. 3 Eug. L. & Eq. 497 864 
v. Hoosac Tunnel Line Co. 

13 Mo. App. 263 Ill 

Watts V. Boston & L. R. Corp. 106 

Mass. 466 84 

Wausau Boom Co. «. Dunbar, 75 

Wis. 153 117 

Wayland d. Mosely, 5 Ala. 430, 39 

Am. Dec. 335_ 94 

Weatherby, The, 48 Fed. Rep. 

734 : 1035 

Weaver®. Ward, Hob. 134 178 

Webb V. Anderson, Taney, 512... 109 
Webber v. Great Western R. Co. 

3 Hurlst. &C. 771 364 

Weed V. Saratoga & S; R. Co. 19 

Wend. 534 395 

Weiller v. Pennsylvania R. Co. 134 

Pa. 310. 42 Am. & Eng. 

R. Cas. 390 200, 1013 

Weinberg v. National SS. Co. 25 

Jones &S. 586 56 

Weir V. Adams Exp. Co. 5 Phila. 

355. 222. 275 

Welch V. Boston & A. R. Co. 41 

Conn. 333 50 

s. Hicks, 6 Cow. 504, 16 Am. 

Dec. 443 872, 873 

Wellington, The, 1 Biss. 280 94 

Wellington v. Apthorp, 145 Mass. 

603 69 

Wellman v. Chicago & G. T. R. Co. 

83 Mich. 592. 515 

Wells V. American Exp. Co. 55 

Wis. 23, 42 Am. Rep. 

695.... ......8,927 

«). Arm.strong, 29 Fed. Rep. 

216 ^. 350 

v. Maine SS. Co. 4 Cliff. 228 937 
«. Pittsburg, Ft. W. & C. R. 

Co. 10 Ohio St. 65, 75 

Am. Dec. 490. 42 

V. Steam Nav. Co. 8 N. Y 

380 53 



Wells*. Thomas, 37 Mo. 17, 73 

Am. Dec. 228 862 

«. Wilmington & W. R. Co. 

51 N. C. 47, 72 Am. 

Dec.556 80 

Wells City, The, 57 Fed. Rep. 

317 __ 32J 

Wells, Fargo & Co. v. FuIlVrr4 

Tex. Civ. App. 213 313 

V. Oregon, R. & Nav. Co. 32 

Fed. Rep. 51.. 898 

Welsh V. Pittsburg, Ft. W. & C. 
R. Co. 10 Ohio St. 65, 

75 Am. Dec. 490 

.- 16,18,43,53,231 

Welton v. Missouri, 91 U. S. 375, 

23 L. ed. 347 

..83,482,484,485 

Wencke i>. Vaughan, 60 Fed. Rep. 

448 31 

Wernwag «. Philadelphia, W. & 
B.R. Co. 117 Pa. 46... 

908,914,826 

Wertheimer v. Pennsylvania R. 
Co. 17 Blatchf. 421, 1 

Fed. Rep. 232 129, 189 

Westcott B. Fargo, 63 Barb. 349, 6 
Lans. 319. aff'd61N.Y. 
543, 19 Am. Rep. 300 
96, 147, 188, 200, 201, 1029 
Western & A. R. Co. v. Exposition 
Cotton Mills, 2 L. R. A. 

102, 81 Ga. 522 

73, 148, 306, 340, 405 

D. McElwee 6 Heisk. 208.. 399 
Western R. Co. v. Harwell, 91 Ala. 

340.. 188, 221, 283, 296,405 
V. Harwell, 97 Ala. 341.... 255 

V. Little, 86 Ala. 159 327 

Western Transp. Co. v. Barber, 56 

N. Y. 544 865, 927 

«. Downer, 78 U. S. 11 Wall. 
129, SOL. ed. 160. .171, 
175, 179.188,1028, 1030-1032 
«. Hawley, 1 Daly, 327.-938,940 
V. Hoyt, 69 N. Y. 330, 35 

Am. Rep. 175.. 873 

«. Newhall, 34 111. 466, 76 

Am. Dec. 760 197 

Western U. Teleg. Co. t. American 
U. Teleg. Co. 65 Ga. 
160, 38 Am. Rep. T31-. 

..462. 465,466 

e. New York, 2 Inters. Com. 

538, 38 Fed. Rep. 553.. 538 
«. Pendleton. 122 U. S. 347, 
30 L. ed. 1187, 1 Inters. 
Com. Rep. 206.484, 512, 522 



TABLE OF OASES. 



Ixxix 



Western IT. Teleg. Co. «. Texas, 
105 U. S. 460, 26 L. ed. 

1067 487 

c. Union Pac. R. Co. 1 Mc- 
Crary, 558, 3 Fed. Rep. 

423 - 703 

Weston o. Grand Trunk R. Co. 54 
Me. 376, 92 Am. Dec. 

553 1086 

V. Minot, 8 Woodb. & M. 

442 846 

Westray v. Miletus, 2 Int. Rev. 

Rec. 61 168 

West Virginia Transp. Co. «. Ohio 
River Pipe Line Co. 22 

W. Va. 600 465, 466, 688 

Wetzell D. Chicago & A. R. Co. 12 

Mo. App. 599 19 

D. Dinsmore, 54 N. T. 496. 218 
Weyand«. Atchison, T. & S. P. 
R. Co. 1 L. R. A. 650, 

75 Iowa, 573 900, 904 

Wheeler v. New Brunswick & C. 
R. Co. 115 U. S. 29, 29 

L. ed. 341 184 

V. Oceanic Steam Nav. Co. 
135N. Y. 155, Rev'g52 ' 

Hun, 75 15, 1040 

e. San Francisco & A. R. 
Co. 31 Cal. 46, 89 Am. 

Dec. 147 757 

Wheelwright ». Depeyster, 1 

Johns. 480 859 

Whitakerv. Howe, 3 Beav. 383.- 

459,464 

Whitcomb's Case, 120 Mass. 118, 

21 Am. Rep. 503 1084 

White®. Ashton, 51 N.Y. 280 

97, 316, 393 

r. Cincinnati, N. O. & T. P. 
R. Co. 7 L. R. A. 44, 89 

Ky. 478 - 297 

«. Franklin Bank, 22 Pick. 

181 - 703 

». Mary Ann, The, 6 Cal. 

462, 65 Am. Dec. 523.- 4 
V. Michigan Cent. R. Co. 3 

Inters. Com. Rep. 641- 533 
1. Missouri Pac. R. Co. 19 
Mo. App. 400.. 96, 339, 400 

e, Webb, 15 Conn. 305 361 

«. Winnisimmet Co. 7 Cush. 

155. --..._ 81 

Whitesides v. Russell, 8 Watts & 

8. 44 1028 

e. Thurlkill, 12 Smedes & 
M. 599, 51 Am. Dec. 
138 156 



Whitmore «. Caroline, The, 30 Mo. 

513 3 

Whitney v. Beckford, 105 Mass. 

267 863 

®. Merchants U. Exp. Co. 

104 Mass. 152, 6 Am. 

Rep. 207 32 

0. Peay, 24 Ark. 22 703 

Whitney Mfg. Co. ®. Richmond & 

D. R. Co. 38 S. C. 365 183 
Whltworth V. Erie R. Co. 13 .Tones 

& S. 602, aff'd 87 N. T. 

414 389, 403, 404, 1030 

Wlbert «. New York & E. R. Co. 

12 N. Y. 245 

..75, 262, 320, 321, 322, 325 
Wichita & W. R. Co. v. Koch, 47 

Kan. 753 277,278 

Wichita Sav. Bank o. Atchison, T. 

& S. F. R. Co. 30 Kan. 

519 .- 143 

Wickens v. Evans, 3 Younge & J. 

318. .._ 464 

Wiggins ». Erie R. Co. 5 Hun, 185 137 
Wiggins Ferry Co. v. Chicago <fc 

A. R. Co. 73 Mo. 389, 

39 Am. Dec. 519, 5 Mo. 

App. 347 433. 465, 467 

e. East St. Louis, 107 U. S. 

365, 27 L. ed. 419 504 

Wilby V. West Cornwall R. Co. 2 

Hurlst. & N. 703, 707.. 

364, 399 

Wilcox V. Chicago, M. & St. P. R. 

Co. 24 Minn. 269 401 

Wilde «. Merchants Dispatch 

Transp. Co. 47 Iowa, 

247, 29 Am. ReD. 479.. 7 
Wilhelm, The, 52 Fed. Rep. 602.. 355 

Wilhelmina, The, 3 Ben. 110 1033 

Wilkerson v. Rahrer, 140 U. S. 

545, 35 L. ed. 573 485 

Wilkinson n. King, 2 Campb. 335 

108, 393 

Willamette Iron Bridge Co. v. 

Hatch, 125 V. S. 1, 31 

L. ed. 629 492 

Willard v. Wood, 135 U. S. 309, 

34 L. ed. 210 957 

Wm. Marshall, The, 29 Fed. Rep. 

328 - 969 

Williams v. Branson, 5 N. C. 417, 

4 Am. Dec. 562 94, 165 

V. East India Co. 3 East, 

193 89 

V. Grant, 1 Conn. 487, 7 Am. 

Dec. 235. .11, 160, 164, 

170, 177, 178, 185, 833, 946 



Jxxx 



TABLE OF CASES. 



■Williams v. Holland, 22 How. Pr. 

137 966 

V. Tilt, 36 K T. 319 1005 

V. Vermont Mut. Ins. Co. 20 
Vt. 223 320 

V. WilmiDgton & W. R Co. 

93 N. C. 42_ -- 141 

"Williamson v. Barrett, 54 U. S. 13 

How. 101, 14 L. ed. 68 858 
Willis «. City of Austin, The, 2 

Fed. Rep. 412 967 

Wilmington & W. R. Co. •». Kit- 
chin, 91 N. C. 39 913 

Wilmshurst ®. Bowker, 5 Bing. N. 

C. 541, 7 Scott, 561, 2 

Man. & G. 792 1003 

Wilson D. Adams Exp. Co. 27 Mo. 

App. 360 915, 916 

D. Adams Exp. Co. 43 Mo. 

App, 659 273 

D. ^Aua. Ins. Co. 27 Vt. 99. 

- 220, 223 

«. Anderton, 1 Barn. & Aid. 

450 938 

■8. Atlanta & C. R. Co. 82 

Ga. 386, 40 Am. & Eng. 

R. Cas. 25 76,77,138 

V. Bauman, 80 111. 494 903 

V. Black Bird Creek Marsh 

Co. 27 U. S. 3 Pet. 345, 

7L. ed. 413 486, 496 

D. Dickson, 3 Barn. & Aid. 2 866 
V. Freeman, 3 Campb. 527-, 208 
v. Hamilton, 4 Ohio St. 

722 254 

V. Lancashire & Y. R. Co. 9 

C. B. N. S. 632 888 

V. McNamee, 103 U. S. 572, 

26 L. ed. 234 486,496 

e. Nason, 4 Bosw. 155 1005 

B. Wabash, St. L. & P. R. 

Co. 23 Mo. App. 50... 373 
Wing v. New York & E. R. Co. 1 

Hilt. 331 18, 190 

Winne v. Illinois Cent. R. Co. 31 

Iowa, 583. ...187, 1028. 1036 
Winona & St. P. R. Co. v. Blake, 

94 V. S. 180, 24 L. ed. 

99 3, 518, 746 

Winslow V. Vermont & M. R. Co. 

42 Vt. 700 915 

Winsor Coal Co. «. Chicago & A. 

R. Co, 52 Fed. Rep. 716 542 
Wise V. Great Western R. Co. 1 

Hurlst. &N. 63 296 

"Witbeck v. Holland, 45 N. Y. 17, 

6 Am. Rep. 28, 55 Barb. 

443.... 33, 888 



Witting V. St. Louis & 8. F. R. Co. 
10 L. R. A. 602, 101 Mo. 
631, 42 Alb. L. J. 511, 

note 188, 

1012, 1027, 1031, 1032, 1038 
Wolf V. American Exp. Co. 43 Mo. 
433, 97 Am. Dec. 406.. 

- 174,177 

«. Hough, 33 Kan. 659 863 

V. Western U. Teleg. Co. 63 
Pa. 83, 1 Am. Rep. 387 

319, 330,222 

Wolfe s. Missouri Pac. R. Co. 3 L. 
R. A. 539, 97 Mo. 473. 

910,937 

V. Myers, 3 Sandf. 7 94 

Wood V. Chicago, M. & St. P. R. 

Co. 59 Iowa, 196 401 

D. Chicago, M. & St. P. R 
Co. 68 Iowa, 491, 56 

Am. Rep. 861 239 

e. Crocker, 18 Wis. 345, 86 

Am. Dec. 773 893 

e. Milwaukee & St. P. R. 
Co. 37 Wis. 541, 9 Am. 

Rep. 465 386, 388, 389 

«. Roach, 3 U. S. 3Dall. 180, 

IL. ed. 340.,.. 109 

Woodburn s. Cincinnati, N. O. & 
T. P. R. Co. 40 Fed. 

Rep. 731 200,406 

Woodbury v. Frink, 14 III. 379.. .1028 
Woodland, The, 7 Ben. 110, 14 
Blatchf. 499, 104 U. 8. 

180, 26 L. ed. 705 64 

Woodlife's Case, Moore, 464, 1 

Rolle, Abr. 2 151 

Woodruffs. Berry, 40 Ark. 253.. 463 
V. Erie R. Co. 25 Hun, 246. 440 
Woods V. Devin, 13 111. 747, 56 

Am. Dec. 483. 84 

Woodstock Iron Co. v. Richmond 
& D. Extension Co. 139 
U. S. 644, 33 L. ed. 819 694 
Woodward v. Illinois Cent. R. Co. 

1 Biss. 447 131,405 

o. Illinois Cent. R. Co. 33 

111. App. 438 892 

Woodworlh v. Bennett, 43 N. Y. 

273, 3 Am. Rep. 706... 691 
Work V. Leathers, 97 U. 8. 379, 24 

. L. ed. 1012 23 

Wren i>. Eastern Counties R. Go. 

IL. T. N. S. 5 321 

Wright ®. Caldwell, 3 Mich. 51... 80 
V. Campbell, 4 Burr. 2046.. 109 
V. Cl.-.rk, 50 Vt. 130, 28 Am. 
Rep. 496. - 87 



TABLE or OASES. 



Ixxxi 



Wright B. Howe (Tex. Civ. App.) 

Dec. 7, 1893 921 

■0. Nagle, 101 U. S. 791, 25 

L. ed. 921 491 

Wyanoke, The, 40 Fed. Rep. 702. 350 
WyckofE V. Queens County Ferry 

Co. 52 N. Y. 32, 11 Am. 

Rep. 650- 81 

Wyld v. Pickford, 8 Mees. & W. 

442. .__ 41,42 

Wylde ». Northern R. Co. of N. J. 

63 N. Y. 156. 395, 412 



Xantho, The, L. R. 12 App. Cas. 

503 164, 175 



Y. 

Youl «. Harbottle, Peake, 68 908 

York Mfg. Co. v. Illinois Cent. R. 
Co. 1 Biss. 377, 70 U. S. 
3 Wall. 107, 18 L. ed. 

170 43, 

49, 80, 95, 96, 124, 181, 
178, 179, 185, 198, 392, 944 
E 



Young «. East Alabama R. Co. 80 

Ala. 100 927 

V. Smith, 3 Dana, 92, 28 Am. 

Dec. 57_ 891 

7>. Western U. Teleg. Co. 2 

Jones & S. 390 

.-.219,220, 222, 275 

9. Western U. Teleg. Co. 65 

N. Y. 163 96 

Z. 

Zacheman, The, 5 C. Rob. Adm. 

152 359 

Zambrino «. Galveston, H. & S. A. 

R. Co. 38 Fed. Rep. 

449 1044 

Zee Star, The, 4 C. Rob. Adm. 71 359 
Zenobia, The, 1 Abb. Adm. 80.... 177 
Zerega o. Poppe, Abb. Adm. 397. 94 
Zimmer v. New York Cent. & H. 

R. R. Co. 42 N. Y. S. 

R. 63 -.45, 55, 208, 1028 

D. New York Cent. & H. R. 

R. Co. 137 N. Y. 460- _ 136 
Zipsey «. Hill, 1 Fost. & F. 573.138, 140 
Zouch V. Chesapeake & O. R. Co. 

17 L. R. A. 116, 36 W. 

Va. 524 

...42, 45, 200, 208, 282, 287 



]^EGLIGEN"OE 

OF 



IMPOSED DUTIES, 

CARRIERS OF GOODS. 



CHAPTER I. 
LIABILITY AND DUTY TO PROVIDE SAFE TRANSPORTATION. 

§ 1. Who Are Common Carriers. 

a. Express Companies Liable as Common Carriers. 

§ 3. Distinction in Liability Between Carriers of Goods and Pas- 
senger Carriers. 

§ 3, Carriers by Rail Must Furnish Suitable Cars. 

§ 4. Cars Must be Adapted to their Intended use. 

§ 5. When Failure to Furnish Cars Excused. 

§ 6. Duty of Carrier by Water to Furnish Seaworthy Vessel, etc. 

§ 1. Carrier by Water Must Answer for Competency of Officers and 
Crew. 

§ 8. Duty of Carrier of Goods to Inspect Present Condition of Im- 
plements of Transportation. 

§ 9. Discrimination Between Express Companies in Furnishing 
Facilities. 

§ 1. Who are Common Carriers. 

The employment of a common carrier is a public one, charging 
him with the duty of accommodating the public in the line of his 
employment. He is such by virtue of his occupation, not by vir- 
tue of the responsibilities under which he rests. Even if the 
extent of those responsibilities is restricted by law or by contract, 
the nature of his occupation makes him a common earner still. 
A common carrier may become a private carrier or a bailee for 
hire when, as a matter of accommodation or special engagement, 
he undertakes to carry something which it is not his business to 
1 1 



2 LIABILITY AND DUTY TO PEOVIDB SAFE TEANSPOETATION. 

carry. For the carrier is only subject to the responsibility of a 
common carrier as to such goods as he is in the habit of transport- 
ing in that employment, and such other goods as he accepts with- 
out any limit of responsibility,' and over the route and by the 
method he usually employs." 

Whether a steamboat will be held liable as a common carrier 
for money delivered to the clerk to be paid over at another land- 
ing is still a question on which courts will differ." As will 
appear by an examination of the cases above cited, unless it 
can be shown that some compensation is paid at some fixed rate 
and the transfer is not undertaken in the mere hope of patron- 
age induced by the accommodation, the liability will not be es- 
tablished.' But a liability will be established where it is shown 
that, from usage and practice, this has grown to be part of the 
business.' And when a carrier has a regularly established business 
for carrying all of certain articles, and especially if that carrier is 
a corporation created for the purpose of the carrying trade, and 
the carriage of the articles is embraced within the scope of its 
chartered powers, it is a common carrier, and a special contract 
about its responsibility does not, in many jurisdictions, divest it 
of that character. The fundamental principle upon which the 
law of common carriers was established, was to secure the utmost 
care and diligence in the performance of their duties. That end 
was effected in regard to goods, by charging the common carrier 
as an insurer, and in regard to passengers by exacting the highest 
degree of carefulness and diligence.' 

All who undertake to carry goods indifferently for hire, are 
common carriers. A person who makes it a business to solicit 

^Eoneyman v. Oregon & C. B. Co. 13 Or. 352, 57 Am. Rep. 20; NewYork Cmt. 
R. Co. V. Loekwood, 84 D. S. 17 Wall. 357, 31 L. ed. 627; Centrai R. & Bkg. 
Co. V. LampUy, 76 Ala. 857, 52 Am. Rep. 334. 

• Coup V. Wabash, St. L. & P. R. Co. 56 Mich. Ill, 56 Am. Rep. 374; Pittsburg, 

C. & St. L. R. Co. V. Morton, 61 Ind. 539, 28 Am. Rep. 682; PUlock v. W&, 
Fargo & Co. 109 Mass. 452. 

^Bewail V. Allen, 6 Wend. 346; Lee v. Bargess, 9 Bush, 652; Citieem Bank v. 
Nanttuket 8. S. Co. 2 Story, 33; Cincinnati & L. M. L. Go. v. Boal, 15 Ind. 
345; WMtmore v. The Caroline, 20 Mo. 513. 

* ChMiteau V. The St. Anthony, 16 Mo. 216, 20 Mo. 519. 

^Eosea v. McCrory, 13 Ala. 349; Kirtland y. Montgomery, 1 Swan, 452. 
« Gulf, O. & S. F. R. Co. V. Oatewood, 10 L. R. A. 419, 79 Tex. 89. 



WHO AEE COMMON OAEEIBES. 3 

carriage of trunks and packages from place to place for hire is a 
common carrier.' Such persons were chargeable, in the general 
custom of the realm, for their faults or miscarriage," but a pri- 
vate person who carries for hire, although as an occupation, but 
selecting his customers, is not responsible as a common carrier.' 

The regularity of the trips or the fixed points between which 
the carriage is done, is not an absolute essential in determining 
whether the carrier be a private or common carrier,' and one 
who is only a carrier in a particular case and does not exercise the 
business of a common carrier, is only answerable for ordinary 
negligence, unless he assumes a greater liability by express con- 
tract." The cases of Gordon v. Hutchinson, 1 Watts & S. 285, 
37 Am. Dec. 464, and Moss v. Bettis, 4 Heisk. 661, 14 Am. Eep. 
1, have not extended the law of common carriers so as to include 
occasional volunteers who carry under special contract, as in Pow- 
ers V. Davenport, 1 Blackf. 497, 43 Am. Dec. 100. The cases 
are evidently founded on false premises and are not recognized as 
changing the rule." 

But truckmen, teamsters, cartmen, porters and the like, who 
undertake to carry goods for hire, as an employment, from one 
town to another or from one part of a town or city to another, 
are common carriers.' A railroad company is a common carrier 
and subject to judicial control.' 

Owners and masters of ships are common carriers by water, 
whether they are regular packet ships or carrying smacks or 

'BoUnson v. Cornish, 34 N. Y. S. R. 695; Oisbmrn v. Hurst, 1 Salk. 249; 

BwigU V. Brewster, 1 Pick. 50, 11 Am. Dec. 133. 
« TTpshare v. Aidee, 1 Comyns, 25; Bull, N. P. 70. 
^Bobinson v. Dunmove, 2 Boa. & P. 416; Batterlee v. Groat, 1 Wend. 272. 
*PennewiU v. CuUen, 5 Harr. (Del.) 238; Liver Alkali Co. v. Johnson, L. R. 7 

Exch. 267, L. R. 9 Exch. 338. 
' Robinson v. Dunmore, 2 Bos. & P. 416. 
'Samms v. Stewart, 20 Ohio, 69, 55 Am. Dec. 445; Steele v. MeTyer, 31 Ala. 

667. 70 Am. Dec. 516; Msh v. Clofl-h, 49 N. Y. 122; Allen v. Saekrider, 37 N. 

Y. 841 ; msh V. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Flautt v. LashUy, 36 

La. Ann. 106. 
' Oisbourn v. Burst, 1 Salk. 249. 

« Scofield V. Lake Shore & M. 8. B. Co. 43 Ohio St. 571, 54 Am. Rep. 846 ; Wi- 
nona & St. P. B. Co. V. Blake, 94 U. S. 180, 24 L. ed. 99; Atlantic & P. B. 

Co. V. Laird, 58 Fed. Rep. 760. 



4 LIABILITY AND DUTY TO PEOVIDE SAFE TEANSPOETATION. 

coasting ships or other ships taking on general freight.' Whether 
towboats are common carriers, in as much as they do not take 
possession of their tow as the carrier does of his goods, has 
been answered in the affirmative in Louisiana, North Carohna 
and California ; depending, however, upon the fact that the voy- 
age was a long one and the vessels ia tow placed completely un- 
der control of the towing vessel." Elsewhere this liability is 
denied.' 

A corporation which, being under no legal obligation to do so, 
voluntarily contracts to switch cars over its tracks, between two 
or more railways, for which service it collects a certain switching 
charge for switching the cars, loaded or empty, but charges no 
traffic rates on the freight transported or transferred in the cars 
in the performance of such service, assumes none of the responsi- 
bilities of a common carrier, but only those of a switchman. 
Where a railroad company, by contract with a bridge company, 
acquires the right to use a bridge, with its approaches, for the en- 
gines, cars and trains of the railway company, the first section of 
the "Act to Eegalate Commerce," regards the railway company 
as the owner, or operator of the bridge and approaches, for the 
time being, as to all freight transported by the railway company 
over the bridge. Apd as to all such traffic, the railway company, 
and not the bridge company, must be regarded as the common 
carrier. Such a bridge company is not, either in law or in fact, 
a common carrier of interstate traffic, within the scope and mean- 

^LaTourette v. Burton ["The Gommander-in-Ohief"), 68 U. 8. 1 Wall. 43, 17 
L. ed. 609; Schieffelin v. Hmwy, 6 Johns. 170; Elliott v. Bossell, 10 Johns. 
1; Sutton V. Osborne, 1 8elw. N. P. 407; Hastings v. Pepper, 11 Pick. 41; 
Jencks v. Goleman, 2 Sumn. 221; Coggs v. Bernard, 2 LA. Raym. 909; Orange 
County Bank v. Brown, 9 Wend. 85, 34 Am. Dec. 129; Chvsbv v. Fitch, 12 
Conn. 410, 31 Am. Dec. 745. 

• Olapp V. Stanton, 30 La. Ann. 495, 96 Am. Dec. 417; Busseff v. Mississippi 
Valley Transp. Co. 34 La. Ann. 165, 13 Am. Rep. 130; Walston v. Myers, 
50 N. C. 174; White v. The Mary Ann, 6 Cal. 462, 65 Am. Dec. 533; Ash- 
more V. Pennsylvania Steam Towing Transp. Go. 28 N. J. L. 180. 

^Arctic F. Ins. Co. v. Austin, 54 Barb. 559; Alexander v. Qreene,Z Hill, 9, 
7 Hill, 553; Eays v. Milla/r, 77 Pa. 238, 18 Am. Rep. 445; Eastern Transp. 
Linev. Hope, 95 U. S. 297, 24 L. ed. 477; T}ie Margaret v. Bliss, 94 U. 8. 
494, 24 L. ed. 146; The Julia, 14 Moore, P. C. 210; Pennsylvania, D. & M. 
S. Nav. Co. V. JDanbridge, 8 Gill. & J. 248, 29 Am. Deo. 543; Varble v. Big- 
ley, 14 Bush, 698, 29 Am. Rep. 435; Symonda v. Pain, 6 Hurlst. & N. 709. 



WHO AEE COMMON CAKEIEE8. 5 

ing of said section ; and it cannot invoke the provisions of said 
Act, to compel railway companies to transact business with, or 
through such bridge company. Between such a bridge company, 
and the railway carriers of the country, the Act establishes no 
such reciprocal relations, duties, and obligations, as require the 
latter to form business connections with the former.^ 

The common carriers named and referred to in the last clause 
of section 3 of the Act to Regulate Commerce are such alone as 
are subject to the provisions of that statute. Companies engaged 
in simply furnishing a roadway as bridge companies, turnpike and 
canal corporatione, are not common carriers.' 

"Where the cars are hired by the shipper, and motive power and 
use of the road is provided by the carrier railroad the question 
has arisen as to the liability assumed by the latter. In the Su- 
preme Court of the United States and the supreme court of New 
York, the liability of a carrier has been imposed.' But, in two 
or three of the states this liability has been denied.' And the 
same denial of liability was made where the consignor is the owner 
of the cars transported. ° 

It may be said as a general proposition that if the duties im- 
posed by statute are of the nature of a carrier of passengers, in 
the absence of any express limit of liability, it would be reason- 
able to assume that the intention was, in imposing a duty, that 
the one who undertook it should assume the ordinary liability of 
the carrier." 



' Kentucky & I. Bridge Go. v. LouumlU & N. B. Oo. 2 L. E. A. 389, 2 Inters. 

Com. Rep. 351, 37 Fed. Rep. 567. 
' Qrigsby v. Ghappell, 5 Rich. L. 443; Lake Superior & M. B. Oo. v. United 

States, 93 U. S. 444, 23 L. ed. 967; ExcTiange F. Ins. Co. v. Delaware & H. 

Canal Co. 10 Bosw. 180. 
'Hannibal & St. J. B. Oo. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 423; Mal- 

Uyry v. Tioga B. Oo. 39 Barb. 488. 
* Kimball v. Butland & B. B. Co. 26 Vt. 247, 62 Am. Dec. 567; East Tennessee 

& 0. B. Co. V. Whittle, 27 Ga. 535, 73 Am. Dec. 741; Ohio <& M. B. Co. v. 

Dunbar, 20 111. 623, 71 Am. Dec. 291. 
» Coup V. Wabash, St. L. & P. B. Co. 56 Mich. Ill, 56 Am. Rep. 374. 
' Oiibs V. Liverpool Docks Trustees, 3 Hurlst. & N. 164; Mersey Docks & H. 

Board v. &iJ>bs, L. R. 1 H. L. 93, 35 L. J. Exch. 225; Lancaster Canal Oo. 

V. Parnaby, 11 Ad. & El. 223; Mersey Docks db H. Board v. Penhallow, 7 

Hurlst. & N. 329, 30 L. J. Exch. 329. 



6 LIABILITY AND DUTY TO PEOYIDE SAFE TEANSPOETATION. 

a. Exjyress Companies Liable as Common Carriers. 

Although express companies avail themselves of the transporta- 
tion facilities afforded by other carriers, this in no sense releases 
them from liability ; but renders them, in fact, responsible for 
the agents which they employ. A railroad company carrying 
packages for an express company is the agent of the latter, and 
the express company cannot stipulate for exemption from liabil- 
ity for the railroad company's negligence." 

A transportation company not owning or controlling any means 
of conveyance itself, but engaging on its own behalf in the busi- 
ness of transporting goods through the agency and over the lines 
of other carriers of its own selection and employment, is a com- 
mon carrier, and subject to all the responsibilities attaching to 
that character.' 

An express company is bound at its peril to deliver packages 
consigned to its care ; and a failure to do so, not induced by any 
negligence of the consignor, will not excuse it, regardless of the 
fraud or imposition which induced a delivery to an impostor. It 
is liable for a package of money delivered to an impostor, although 
his telegram induced its shipment and the real consignee acted 
with him in conspiring to defraud.' 

An arrangement between a dispatch company in St. Louis, Mo., 
and sundry railroad companies whose lines terminated at 17ew 
York, whereby the latter separately agreed to carry all goods for 
the transportation of which the former should contract at the 
established rate or at any special rate furnished by the railroad 
does not involve joint liability upon the part of railroad compa- 
nies nor make them partners, either inter esse or as to third 
persons.* 

An express company carrying money, goods and parcels for 
hire, from one locality to another, is a common carrier.' And, 

' Bank of Kentucky v. Adams Exp. Go. 93 U. S. 174. 33 L. ed. 873. 

* Merchants Dispatch Transp. Co. v. Bhch, 86 Tenn. 393. 

» Shearer v. Pacific Exp. Go. 43 111. App. 641 . 

*Sl. Louis Ins. Go. v. St. Louis, V. T. H. & I. S. Go. 104 U. S. 146 36 L. ed. 
679. 

^Bank of Kentucky v. Adams Exp. Go. 93 U. S. 174, 23 L. ed. 872. 



EXPEBSS COMPANIES LIABLE AS COMMON CAEEIEES. 7 

though they assume the name of dispatch companies, forwarders, 
fast freight lines, — the business in which they engage being, in 
fact, that of common carrier, they assume its responsibilities.' 

In common law, the obligation of the carrier is not that he will, 
through his own agency, carry and deliver the goods entrusted to 
him. The real contract is, that the goods are to be carried to 
their destination, unless the fulfillment of this undertaking is pre- 
vented by the act of God, or the public enemy. This is the en- 
tire contract in fact, — whether the goods are to be carried by land 
or water, — by the carrier himself or by agencies employed by 
him. There is no personal ttust employed in the sense that the 
contract can not as well be executed through an agent and by 
means of transportation employed by it; — and yet not actually 
under its personal control. And, it is still true that the particu- 
lar mode or agency by which it is performed does not enter into 
the contract of the carriage with the owner or consignor.' 

Certainly the fact that express companies undertake to secure 
greater care and more speedy delivery, and that they cause this 
delivery to be made to the consignee personally, is not tO be held 
as waiving any duty already resting upon them as common car- 
riers.' 

' Buckland v. Adams Exp. Co. 97 Mass. 124, 93 Am. Dec. 68, 
' Merchants Dispatch Transp. Co. v. Bloeh, 86 Tenn. 392; Place v. Tlnion Exp. 
Co. 2 Hilt. 27; Bank of Kentucky v. Adams Exp. Co. and Buckland v. Adams 
Exp. Co. supra; United States Exp. Co. v. Backman, 28 Ohio St. 144. 
« OderUrk v. Fargo, 58 Hun, 347; Durgin v. American Exp. Co. (N. H.) 9 L. 
K. A. 453; New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 TJ. 
S. 6 How. 344, 13 L. ed. 465; Merchants Dispatch Transp. Co. v. Bloch, 86 
Tenn. 392; Christenson v. American Exp. Co. 15 Minn. 270, 2 Am. Rep. 122; 
Bead v. Spaulding, 5 Bosw. 395; Merdiants Despatch Transp. Co. v. Joest- 
ing, 89 111. 153; Merchants Dif patch Transp. Co. v. Cornforth, 3 Colo. 280, 
25 Am. Rep. 757; Baruyroft v. Merchants Despatch Transp. Co. 47 Iowa, 262, 
29 Am. Rep. 482; Wilde v. M&rehants Despatch Transp. Co. 47 Iowa, 247, 

39 Am. Rep. 479; Merchants Despatch Transp. Co. v. Leysor, 89 111. 43; 
Southern Exp. Co. v. McVeigh, 20 Gratt. 264; Robinson v. Merchants Des- 
patch Transp. Co. 45 Iowa, 470; Stewart v. Merchants Despatch Transp. Co. 
47 Iowa, 229, 39 Am. Rep. 476; Qrogan v. Adams Exp. Co. 114 Pa. 523, 60 
Am. Rep. 360; Bennett v. Northern Pac. Exp. Co. 12 Or. 49; Southern Exp. 
Co. V. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Mather v. American Exp. 
Co. 138 Mass. 55, 52 Am. Rep. 358; Southern Exp. Co. v. Womack, 1 Heisfe. 
256; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140; Boseowitz v. 
Adams Exp. Co. 93 111. 523, 34 Am. Rep. 191; Bernstine v. Union Exp. Co. 

40 Ohio St. 451; Pacijlc Exp. Co. v. Darnell, 62 Tex. 639; Hadd v. United 
States & C. Exp. Co. 52 Vt. 335, 36 Am. Rep, 757; United States Exp. Co. v. 



8 LIABILITY A2ID DUTY TO PEOVIDB SAFE TEANSPOETATION. . 

In a suit against an express company for the value of a pack- 
age of money received by it to be carried and delivered to the 
plaintiff, which it failed to do, — the answer was that the package 
was duly received at the office of the defendant at the town to 
which it was directed ; that the defendant, upon inquiry, could 
not find the residence of the plaintiff to be in the said town or its 
vicinity, and, being ignorant of his real place of business or post- 
office address, the defendant, on the day of the arrival of said 
package, wrote a notice informing the plaintiff of its arrival at 
said office and that it was ready for delivery, and inclosed said 
notice in an envelope addressed to said plaintiff at said town and 
duly stamped, and dropped the same into the postoffice at said 
town, and placed said package in a safe owned by the defendant, 
wherein defendant kept all money packages arriving by express 
for parties, and safely locked the same, the package remaining 
thus securely locked up for several days, and no one calling for 
it until it had been stolen by burglars, who in the night-time vio- 
lently broke into the office of defendant, where the safe was, and, 
without knowledge of the defendant, broke open said safe and 
feloniously stole, took, and carried away said package of money, 
without any fault or neglect of the defendant, — it was held, that 
the facts alleged in the answer were not sufficient to discharge 
the defendant from liability as a common carrier, and that if they 
could be so deemed, still, the answer failed to show that the de- 
fendant exercised reasonable care with the package as bailee, after 
the termination of such liability.' 

In a suit against an express company for the loss of a package 
by the delivery of it to the wrong person, the court declined to 
examine the question whether the liability of the company, under 
the contract, was that of a common carrier or of a warehouseman, 
— because, in either ease, the company was bound to deliver to 
the right person.' 

Boot, 47 Mich. 231; Southern Exp. Go. v. Qlenn, 16 Lea, 472; Southern Exp. 
Co. V. Newby, 36 6a. 685, 91 Am. Dec. 783; Bardwell v. American Exp. Co. 
35 Minn. 344; Overland Mail & Exp. Co. v. CarroU, 7 Colo. 43; Oali v. 
Adams Exp. Co., McArth & M. 124; Wells v. Am^-ican Exp. Co. 55 Wis. 23, 
42 Am. Rep. 695. 

' Amsriean Exp. Co. v. Sockett, 30 Ind. 350, 95 Am. Dec. 691. 
' Am^ican Exp. Co. v. Stack, 29 Ind. 27. 



EXPEES8 COMPANIES LIABLE AS COMMON OAKKIEES. U 

An express company is liable for damapjes to fruit by reason of 
unreasonable delay in transportation,' for an express business in- 
volves the idea of promptness and regularity as to route or time, 
or both." Where there are two routes for sending goods by ex- 
press, the one safe and the other hazardous, and yet the express 
company, in defiance of the wishes of the owner, rejects the safe 
route and adopts the hazardous one, and the goods are lost by 
robbery, the company is liable.' 

A stipulation in an express contract that claim for loss or dam- 
age shall be presented in writing at the olEee issuing the receipt, 
is not binding where the loss is by failure to forward the freight 
promptly, and therefore the negligence is necessarily known to 
that ofiice.'' A shipper is presumed to know and assent to the 
terms of an express company's receipt which is given him for 
goods, — especially where those terms are made prominent and 
noticeable, and a book of such blank receipts is in his own posses- 
sion.* Where the receipt or bill of lading given by an express com- 
pany provides that, in case of loss, proof shall be made within a 
limited time and in a particular manner, if notice of loss is given 
within the time limited and no objection is made to its sufficiency, 
but the objection to payment is put by the company upon other 
grounds, all defects in such notice will be regarded as waived/ 

An express company is not liable for a money package which 
the consignee fails to receive, where the latter for his own con- 
venience, by promising to relieve the agent from responsibility, 
causes the latter to depart from its known rule to require a re- 
ceipt before delivery, and to attempt delivery by throwing it to 
the consignee while he is standing on a car platform.' It is 
within the apparent scope of an express agent's authority to 
make an arrangement with the consignee of a trunk, before 

^Adorns Exp. Co. v. Williams (Ark.) June 4, 1890. 

'Retzer v. Wood, 109 U. S. 185, 27 L. ed. 900. 

^United States Exp. Oo. v. Eountze, 75 TJ. S. 8 Wall. 342, 19 L. ed. 457. 

' Baltimore & 0. Exp. Oo. v. Cooper, 66 Miss. 558, 40 Am. & Eng. R. Oas. 97. 

^Ballon V. Earle, 14 L. K. A. 433, 17 R. I. 441; Durgin v. American Mp. Oo. 

(N. H.) 9 L. R. A. 453. 
'Merrill v. American Exp. Co. 62 N. H. 514. 
' Carroll v. Southern Exp. Co. 37 S. C. 453. 



10 LIABILITY AND DUTY TO PEOVIDE SAFE TEANSPOETATION. 

the payment of the charges and the signing of the receipt there- 
for, to leave it in the express office until the next day, with a view 
to giving him a reasonable time to send for the trunk ; and such 
arrangement will bind the company in the absence of notice to 
the consignee of any restriction on the agent's authority.' An 
express company was not liable for the loss of a trunk which 
reached the Grand Central Depot in JSTew York about twenty- 
four hours ahead of the passenger, although its employes took it 
out of the baggage car on arrival, but left it in possession of the 
railroad company, in the baggage room, and an agent of the ex- 
press company obtained the check from the passenger upon the 
train, but when it was presented to the railroad employes within 
seven minutes after the arrival of the train the trunk could not 
be found." 

An express company is not liable for refusal to accept goods 
for shipment which are not packed according to its rules, though 
it had made a previous arrangement with the shipper to transport 
such goods not so packed, as it has the right to withdraw from 
such arrangement at any time.' 

It is within the scope of the authority of an express agent to 
give rates at which property shipped and reaching the point of 
destination over the company's line of carriage will be delivered 
to consignees at the latter point, and bind his company to deliv- 
ery at such rates ; and for a mistake in the rate at which a con- 
tract of shipment is made, the company, and not the consignee, 
is responsible and must bear the loss as between them.* 

An express company is not bound to transport and deliver any 
intoxicating liquor, if thereby it would incur a penalty, but an 
express company, as a general thing, is not bound to know the 
contents of packages offered for carriage, nor are its agents pre- 
sumed to know.' 



' OderTcirk v. Fm-go, 61 Hun, 418. 

ii Aikin v. Westcott, 123 N. Y. 363. 

3 Vicksburg liquor <b T. Co. v. United States Exp. Co. 68 Miss. 149. 

< Southern Exp. Co. v. BoulUmet (Ala.) Nov. 9, 1893. 

<- State v. Oosa, 59 Vt. 266, 59 Am. Rep. 706. 



DISTINCTION IN LIABILITY. ' H 

§ 2. Distinction in Liability tetween Carriers of 
Goods and Passenger Carriers. 

There is a plain distinction between the liabilities of carriers of 
goods and of passengers.' The duty of common carriers with re- 
spect to the transportation of persons and property is independent 
of contract." The liability of a carrier -of passengers, like that of 
a common carrier of goods, arises out of his duty, implied by law ; 
but, unlike that of the latter, it is not that of an insurer. He does 
not warrant the safety of the passengers at all events, but only 
that, so far as human care and foresight can reasonably be re- 
quired to go, their safe conveyance will be provided for.' 

In the case of the common carrier of goods, the responsibility 
of an insurer is superadded to the responsibility which arises out 
of his contract to carry for reward.* Carriers are insurers of the 
goods received by them to be carried against all casualties except 
those which arise from the act of God, the public enemy, the fault 
of the shipper, or the inherent quality of the property itself.* 
It is, however, not enough that the goods have been lost or 
injured by the act of God ; if the neghgence of the carrier him- 
self has in any measure contributed to bring about the injury, he 
is, nevertheless, liable." 

'Aston V. Heamn, 2 Esp. 533; Christie v. Ch'iggs, 1 Campb. 79; Dodge v. 
Boston & B. SB. Co. 2 L. R. A. 83, 148 Mass. 207; Atlantie Exp. Co. v. Wil- 
mington & W. B. Co. 18 L. B. A. 893, 111 N. C. 468. 

^Belcma/re, L. & W. B. Co. v. Trauiwein, 7 L. R. A. 485, 52 N. J. L. 169, 
41 Am. & Eng. R. Cas. 187. 

'Smith, Mercantile Law (7th ed.) 283; Anseli v. Waterhouse, 6 Maule & S. 
393; Crofts v. Waierho^ise, 8 Bing. 319. 

* Biley v. Some, 5 Bing. 220; Fox v. Boston & M. B. Co. 1 L. R. A. 703, 148 

Mass. 330; Bennett v. Button, 10 N. H. 4&\; Hawkins v. Boffman, 6 Hill, 
586, 41 Am. Dec. 767; Stockton v. Frey, 4 Gill, 407, 45 Am. Dec. 138; Tlie 

• New World v. KiTig, 57 U. S. 16 How. 469, 14 L. ed. 1019. 

'Harris v. Northern Indiana B. Co. 20 N. Y. 232; Bohannan v. Hammond, 
43 Cal. 327; Bixford v. Smith, 52 N. H. 355, 18 Am. Rep. 43; WilUt^ms v. 
Grant, 1 Conn. 487, 7 Am. Dec. 235; Moses v. Mrris, 4 N. H. 304; Harrell 
V. Owens, 18 N. C. 273; Turney v. Wilson, 7 Terg. 340, 27 Am. Dec. 515; 
Ewart v. Street, 2 Bail. L. 157, 23 Am. Dec. 131, this being an extension 
of the rule as laid down by Lord Holt in the leading case of Coggs v. Ber- 
nard, 2 Ld. Raym. 909. 

'Bead v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 436; Michaels v. New York 
Cent. B. Co. 30 N. Y. 564, 86 Am. Dec. 415; New Brunswick, S. & C. 
Tramsp. Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 394; Hill v. Sturgeon, 
28 Mo. 333. 



12 LIABILITY AUD DUTZ TO PEOVIDE SAFE TEANSPOKTATION. 

But there is no difference between carriers by land and carriers 
by water in respect to their rights, duties and obligations; each 
incurs the same liabilities and is subject to the same duties and is 
governed by the same rules of law.' All vessels employed in 
transporting goods from port to port are carriers, and as such are 
liable for the safe custody, due transport and right delivery of the 
goods.'' The master is bound to carry the goods on his own ship to 
their destination unless prevented by the act of God, the public 
enemy, or some peril excepted in the contract of shipment. In the 
absence of a special contract, the carrier is ordinarily liable under 
his common law obligation, without establishing negligence in 
the transportation of property.^ 

By the settled law, in the absence of some valid agreement to 
the contrary, the owner of a general ship carrying goods for hire 
whether employed in internal, in coasting or in foreign, com- 
merce, is a common carrier, with the liability of an insurer 
against all losses, except only such as arise from irresistible 
causes, as the act of God and public enemies.* Carriers of mer- 
chandise by water are insurers, and liable for every loss or dam- 
age to the merchandise, unless it happened by the act of God, the 
public enemy, the shipper, or by some other cause excepted in 
the contract of shipment.' 

A common carrier who insures a cargo, accepted by him to 
carry from New York to Buffalo, against aU losses excepting 
those occasioned by theft, robbery or barratry of the master or 
crew of the vessel on which they are shipped, or want of care and 

' King v. Shepherd, 3 Story, 349; Elliott v. RosaeU, 10 Johns. 1; Baxter v. Le- 
land, Abb. Adm. 350; Maury v. Talmadge, 2 McLean, 157; New Jersey 
Steam Mw. Oo, v. Merchants Bank of Boston, 47 U. S. 6 How. 428, 12 L. 
ed. 465; Dale v. Hall, 1 Wils. 281. 

'LaTourette v. Burton ("The Commander-in-Chief') 68 U. S. 1 Wall. 43, 17 
L. ed. 609. 

'Doan V. St. Louis, Z. <fc N. W. R. Oo. 38 Mo. App. 408. 

* Liverpool & Q. W. Steam Go. v. Phenix Ins. Co. ("The Montana") 129 TJ. S. 

397, 32 L. ed. 788; Bwrelay v. Oucullay Gana, 8 Dougl. 389; Tlie Niagara 

V. Cordes, 63 U. 8. 21 How. 7, 23, 16 L. ed. 41, 46; Germania Ins. Oo. v. 

The Lady Pike, 88 U. S. 11 Wall. 1, 14, 33 L. ed. 499, 503; 3 Bac. Abr. 

title "Carriers" a; 2 Kent, Com. 598, 599; Story, Bailm. § 501. 
' Germania Ins. Oo. v. The Lady Pike, and The Niagara y. Cordes, supra; 

Hannibal & St. J. B. Co. v. :iu>ft, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 



DISTINCTION m LIABILlTi-. 13 

skill, may recover the full value of the goods insured by him on 
showing a loss by fire, for which he is answerable.' 

By the general custom, or, as it is termed in England, the cus- 
tom of the realm, which is the foundation of the common law on 
the subject, the common carrier intrusted with goods for carriage 
is responsible at all events for every injury arising in any other 
way than by the act of God or of public enemies." Loss by flood 
or storm is loss by the act of G-od ; and a common carrier is excused 
when the damage resulted from this cause immediately.' His 
responsibility is established with a view to public policy, to the 
reward which he receives, to his character as an insurer and 
to the terms of his contract, express or implied.'' He must 
answer for all losses not caused by the act of God or the King's 
enemies.' The act of God means something quite different from 
what is expressed by the terms " inevitable accident" as these are 
ordinarily used. In fact, the carrier has been held answerable for 
losses caused by accidents which were to him entirely inevitable.' 
Where the loss happens in any way through the agency of man 
it cannot be considered the act of God.' 

The carrier of goods is liable in all events and for every loss or 
damage, unless it happens by the act of God, or the public enemy, 
or without fault on his part under some express exception in the 
bill of lading.' A freight carrier remains liable for loss through 
its negligence, under a contract of shipment of fruit providing 
that the same shall be at the owner's risk, where the contract does 

' Van Naita v. Mutual Security Ins. Co. 3 Sandf. 490; Edwards, Bailm. 356. 

' Goggs v. Bernard, 3 Ld. Raym. 919; Bale v. Hall, 1 Wils. 381. 

' Memphis & 0. B. Oo. v. Beeves, 77 U. S. 10 "Wall. 176, 19 L. ed. 909. 

^ Jeremy, Carriers, 31-38. 

^ Morse v. Slue, T. Eaym. 330, 1 Vent. 190, 238; Colt v. McMechen, 6 Johns. 

160, 5 Am. Dec. 300. 
'Abbott, Shipping, pt. 3, chap. 4, §1; Forwa/rdy. Pittard, 1 T. R. 34; Me- 

Arthur v. Sears, 31 Wend. 196; Trent & M. M,v. Oo. v. Wood, 3 Esp. 137. 
''Fm-wa/rd v. Pitta/rd, 1 T. R. 37; Campbell v. Morse, 1 Harp. L. 468: Elliott v. 

Bossell, 10 Johns. 1; Bobertson v. Kennedy, 3 Dana, 43, 36 Am. Dec. 466; 

Cordon v. Buchanan, 5 Yerg. 82; Turney v. Wilson, 7 Yerg. 340, 27 Am. 

Dec. 515; Amies v. Stevens, 1 Strange, 188; Edwards, Bailm. 456. 
'Sweati v. Boston H. & B. B. Co. 5 Nat. Bankr. Reg. 343; T7ie Lady Pike, 3 

Biss. 145; TheMoUy Mohler, 2Biss. 508; AmiesY. Stevens, 1 Strange, 128; Tlie 

Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 30 L. ed. 779; Elliott v. Bos- 



li LIABILITY AND DUTY TO PEOVIDE SAFE TBAN8P0BTATI0N. 

not ia clear and unmistakable terntis exempt it from sucli liability. 
It is liable for loss by fire produced from other than natural causes, 
whether accidentally or communicated from other vessels or from 
the shore, and whether it produces the moti ^e power or not.' The 
failure, however, of a cotton press company to perform its agree- 
ment with carriers to insure for its full insurable value, cov- 
ering all interests, including the owner's, all cotton delivered to it 
for compression, does not impose on the carrier any obligation to 
insure, or render it liable as an insurer of the cotton.' 

A carrier of goods is liable, whether he is careful or not, for 
any act or omission not caused by the act of God or the public 
enemy.* And although a common carrier is not responsible for 
the destruction or loss of goods by the act of the public enemy, he 
is, nevertheless, bound to use due diligence to prevent such destruc- 
tion or loss and if his negligence contributed thereto, he will be liar 
ble.' Where an obligation or duty is imposed upon a person by 
law, he wUl be absolved from liability for non-performance of the 
obligation, if such non-performance was occasioned by the act of 
God. The rule is illustrated in the case of common carriers in 
Central Trust Co. v. Wabask, St. L. & P- R. Co. 31 Fed. Eep. 

sell, 10 Johns. 1; The Magara v. Oordes, 62 U. 8. 21 How. 7, 16 L. ed. 41; 
Clark V. Barnwell, 53 U. S. 13 How. 272, 13 L. ed. 985; HolUster v. Nowlm, 19 
Wend. 234; New Jersey Steam Nav. Co. v. Merchants Sank of Boston, 47 U. 
8. 6 How. 428, 12 L. ed. 465; lYent & If. Nav. Co. v. Wood, 4 Dougl. 287, 
3 Esp. 127; Sewali v. Allen, 6 Wend. 385; Ashmole v. Wainright, 2 Q. B. 
837; Ansell v. Waterhouse, 2 Chitty, 1 ; Bretherton v. Wood, 3 Brod. & B. 54; 
Eide V. Trent & M. Nav. Go. 1 Esp. 36; Hinton v. Dibbin, 2 Q. B. 646; Bich- 
ardaon v. Winsor, 3 Cliff. 401; Colt v. McMechen, 6 Johns. 160, 5 Am. Dec. 
200; NiehoU v. DeWolf, 1 R. I. 277. 

> Giles V. Fargo, 43 N. Y. S. R. 65. 

' Garrison v. Memphis Ins. Co. 60 U. S. 19 How. 815, 15 L. ed. 657; Singleton 
V. MUlyard, 1 Strobh. L. 208; Hall v. Nashville & G. B. Go. 80 U. S. 13 
Wall. 372, 20 L. ed. 596; BocMngham Mut. F. Ins. Co. v. Bosher, 39 Me. 
253, 63 Am. Dec. 618; Gilmore v. Carman, 1 Smedes & M. 279, 40 Am. Dec. 
96; New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 TJ. S. 6 
How. 425, 12 L. ed. 465; Hale v. New Jersey Steam Nav. Go. 15 Conn. 539, 
39 Am. Dec. 398; The City of Norwich, 8 Ben. 579; HoUister v. Nowlen, 19 
Wend. 234, 32 Am. Dec. 455; Hunt v. Morris, 6 Mart. (La.) 676; MOest. 
Cattle, 6 Bing. 743; Lyon v. Mells, 5 East, 438; QriU v. General Iron Serew 
Collier Co. L. R. 1 C. P. 600. 

'Lancaster Mills v. Merchants 0. P. & 8. Go. 45 Am. & Ene. R Cas. 423, 89 
Tenn. 1. * 

* Pingree v. Detroit, L. & N. B. Go. 66 Mich. 143. and authorities cited. 
' Eolliday v. Eennard, 79 U. 8. 12 Wall. 254, 20 L. ed. 390. 



DISTINCTION IN LIABILITY. 15 

440. A carrier is not bound to the highest degree of diligence 
to preserve the property from injury resulting from the act of 
God, but is required to bestow such care as an ordinarily prudent 
person or carrier would use under like circumstances, and is liable 
for failure .to do so.' Eut it is liable where its negligence, 
mingled with the act of God, caused loss." Still, in the case 
of loss by flood or storm, if it is charged that the carrier's negli- 
gence contributed to the loss, proof of this must come from those 
who assert or rely upon it. Though a shipper assumes the duty 
of loading the property, the carrier is liable for the injury which 
was likely to result from moving the car by reason of the manner 
of loading." A common carrier of merchandise is an insurer 
of property and its liability is not relieved by the fact that the 
property was loaded by the owner or that he accompanies it.* 
A carrier's liability for freight arises from its failure to make 
an absolutely safe carriage and delivery which it assumes by its 
undertaking." In a contract for carriage, a common carrier is an 
insurer, until the transit is ended, and then liable only as ware- 
houseman during such reasonable time as the goods are in its cus- 
tody awaiting the call of the consignee.' But a common carrier 
cannot be held liable only as a warehouseman, until its contract 
as carrier has been fulfilled.' 

Where the transportation of an article or thing involves, in it- 
self, extraordinary risks, and an injury occurs in consequence 
thereof, the carrier is only liable where he has been negligent ;' 
as in transportation of animals by land or sea.' The explosion of 

^ Black V. Chicago, B. & Q. B. Co. 30 Neb. 197. 

' Eaney v. Kansas City, 94 Mo. 334, and authorities there collected. 

'Memphis & C. B. Co. v. Beeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909; Doan v. 

at. Louis, K. & N. W. B. Co. 38 Mo. App. 408. 
* Hannibal & St. J. B. Co. v. Bwift, 79 U. S. 12 "Wall. 263, 20 L. ed. 423. 
^Jacobs V. ThiU, 33 Fed. Rep. 412. 
'Bassett v. Connecticut Biiier B. Co. 145 Mass. 129; Blaisdell v. ConnMticut 

Birnr B. Co. 145 Mass. 132. 
' Wheeler v. Oceanic Steam Nav. Co. 52 Hun, 75. 
'^McDonald v. Highland B. Co. 2 Ct. of Ses3. (3d Series) 614. 
'Blower v. GreatWestern B. Go. L. R. 7 P. 0. 656; Kendall v. London & S. 

W.B Co L. R. 7 Exch. 373, 41 L. J. Exch. 184; Nugent v. Smith, L. E. 

1 C. P. Div. 423, 45 L. J. C. P. 697. 



16 LIABILITY AlTD DUTY TO PEOTIDE SAFE TKANSFOETATION. 

a package of nitro-glycerine while in the hands of a carrier who 
has received it without information as to its dangerous character, 
will not render the carrier liable.' But common carriers are 
responsible for the wrongful acts of mere strangers in regard 
to property committed to them for transportation.' 

§ 3. Carriers ly Bail Must Furnish Suitable Cars. 

One of the obligations of the common carrier of freight by 
railroad, universally recognized, is that requiring it to supply safe 
and suitable cars for the transportation of all freight usually 
transported over railroads.' A railroad company cannot discon- 
tinne an established switch connection with a coal mine, merely 
because the cars of another company may be taken upon its line 
over such switch, thereby endangering its property and the lives 
of its passengers and employes.* The company is required to 
have suitable brakes upon its cars and in suitable repair ; and if 
it neglects this duty and an accident results from such neglect, 
liability attaches for resulting injuries.' It will be liable for 
injury from the defects of a car, even if it belongs to another 
company, if it adopts it for the purposes of its own transit.' 

Where the shipper voluntarily makes his own selection of the 
means of transportation, unless the carrier fails to disclose some 
inherent defect known to him, he will be released from any loss 
occurring through a defect which does not charge him with neg- 
ligence.' If it furnishes unfit or insufficient vehicles, he is not 
ordinarily exempted from responsibility by the fact that the shipper 

^Pwrrott V. Wells, 82 U. S. 15 Wall. 524, 21 L. ed. 206. 

* Barclay -v. Oucullay Oana, 3 Dougl. 389; Trent & M. Nme. Co, v. Wood, 3 

Bsp. 127, 4 Dougl. 287. 

' Smith Y. New Sawn & N. B. Oo. 13 Allen, 531, 90 Am. Dec. 166; Prait v. 
Ogdenaburg & L. G. B. Co. 102 Mass. 557, 89 U. 8. 23 "Wall. 123, 134, 22 L. 
ed. 827, 831; Potts v. Wabash, St. L. & P. B. Co. 17 Mo. App. 394; Mason 
V. Missouri Pac. B. Co. 35 Mo. App. 478; Welsh v. PitUburg, Ft. W.&C.S. 
Co. 10 Ohio St. 65, 75 Am. Deo. 490. 

* Chicago & A. B. Co. v. Suffern, 27 111. App. 404, affirmed in 139 111. 274 
^Oostello V. Syracuse, B. & N. T. B. Co. 65 Barb. 92; lUinoia Cent. B. Co. v. 

BacTies, 55 111. 379. 
« Comie V. London <& S. W. B. Co. 31 L. T. N. S. 613. 
' Cam- V. Schafer, 15 Colo. 48. 



CAES MUST BE ADAPTED TO THEIfi INTENDED USE. 17 

knew them to be defective.' But when the owner of the prop- 
erty to be transported makes his selection of the vehicles under 
circumstances which charge him with full knowledge of all their 
capabilities and defects, there being safe vehicles offered him, at 
reasonable rates, the company is not responsible for any injury 
which may result exclusively from such defects." But it is suffi- 
cient if the company provides a carriage which, without extra- 
ordinary accident, will probably perform the journey.' 

It is a carrier's duty to equip its road with instrumentalities of 
carriage suitable for the traffic it undertakes to carry, and to fur- 
nish them aUke to all who have occasion for their use ; and its 
duty to furnish equipment cannot be transferred to or required 
of shippers.' The rule requiring a shipper to clean and repair 
cars furnished on a side track is unreasonable." 

A statute which provides for brakemen on trains, applies to 
passenger trains and freight trains considered separately, and 
cannot be applied to a mixed train ; but the duty in regard to 
such trains is to provide the usual and proper appliances." 

§ 4. Cars Must he Adapted to their Intended Use. 
See also § 58. 

A railway company is bound to provide cars reasonably fixed 
for the conveyance of the particular class of goods it undertakes 
to carry.' It is the duty of the carrier to provide suitable means 
of transportation adapted in each case to the particular class of 
goods he undertakes to transport. He must protect his goods from 
destruction or injury by the elements, from the effects of delay, 
from every source of injury which, in the exercise of care and 
ordinary intelligence, may be known or anticipated. The nature 
of the goods must be considered in determining the carrier's duty. 

' Ogdensburg & L. G. S. Oo. v. PraU, 89 U. S. 23 "Wall. 123, 22 L. ed. 827. 

'Harris v. Northern Indiana R. Oo. 20 N. Y. 232, 235. 

'Amies v. Stevens, 1 Strange, 128; OreatWestern B. Co. v. Blower, 41 L. J. C. 

P. 368, L. R. 7 C. P. 655. 
* Rice V. Western N. T. & P. B. Co. 3 Inters. Com. Rep. 163. 
'■Joyner v. South Cwrolina B. Co, 26 8. C. 49. 
'Macloon v. Chicago & N. W. B. Co. 8 Inters. Com. Rep. 711. 
''Lyon V. WeRs, 5 East, 428; Shaw v. York & N. M. B. Co. 13 Q. B. 347. 



18 LIABILITY AND DUTY TO PEOVIDE SAFE TEANSPOETATIOIT. 

Where the marks on the package and the waybill disclosed that 
the subject of shipment is such as should be transported in refrig- 
erator cars during warm weather, the carrier will be liable for 
neglect in providing such means of transportation.' 

A carrier's duty is not limited to the transportation of goods 
delivered for carriage. He must exercise such diligence as is re- 
quired by law to protect the goods from destruction and injury 
from any source, which may be averted and which, in the exer- 
cise of care and ordinary intelligence may be known or antici- 
pated. Many articles of commerce, when transported, must be 
protected from storms, rain, sunshine and heat, and must have 
cars suitable for their safe transportation. Thus, the sealing of a 
car containing butter, when received from a connecting carrier, 
is no excuse for failure to put ice in the car, if necessary to pro- 
tect the butter from the heat. Nor can a carrier that has accepted 
butter for transportation escape liability for damage to the butter 
from the heat during transportation by the fact that it did not 
have refrigerator cars which were ready for use ; at least when 
it could have been carried safely by the use of ice in the cars 
which were used. Where no specific agreement is shown for any 
specific class of cars, and nothing is said about the character of 
the cars to be used in the transportation of an article shipped 
which requires to be protected from heat, the railroad company is 
bound to provide refrigerator or other cars in which ice can be 
used to protect the commodity when necessary, although the rate 
of charges named is the rate for common cars." 

The carrier must guard the goods from injury from the effects 

^Biee v. Western N. Y. & P. R. Co. 3 Inters. Com. Rep. 163; Bea/rd v. Illiruns 
Cent. B. Co. 7 L. R. A. 280, 79 Iowa, 518; Mason v. Missouri Pac. R. Co. 
25 Mo. App. 473; Hannibal & St. J. B. Co. v. Sisift, 79 U. S. 12 Wall. 263, 
20 L. ed. 423; Hewitt v. Chicago B. & Q. B. Co. 63 Iowa, 612; Ogdensburg 
& L. C. B. Co. v. PraU, 89 U. S. 22 Wall. 123, 21 L. ed. 827; Botls v. Wa- 
bash. St. L. & P. B. Co. 17 Mo. App. 394; Boseowitz v. Adams Mcp. Co. 93 
111. 535, 34 Am. Rep. 191 ; Steinweg v. Erie B. Co. 43 N. Y. 123, 3 Am. Kep. 
673; Sager v. Portsmouth, S. dii P. & E. B. Co. 31 Me. 228, 50 Am. Dec. 659; 
Wing V. New York & E. R. Co. 1 Hilt. 241; Hawkins v. Great Western R. Go. 
17 Mich. 62, 97 Am. Dec. 179, 18 Mich. 437; Merchants Despatch & Transp. 
Co. V. Cornforth, 8 Colo. 380, 25 Am. Rep. 757; Welsh v. Pittsburg, Ft.W. 
& C. R. Co. 10 Ohio St. 65, 75 Am. Deo. 490; Paramore v. Western B. Co. 
53 6a. 385. 

* Beard v. lUinois Cent. B. Co. 7 L. R. A. 280, 79 Iowa, 518. 



WHEN FAILURE TO FUENISH CARS EXCUSED. 19 

of delay. Some articles may be transported safely in open cars, 
and others, when so carried, may prevent the carrier from avail- 
ing himself of an exception in his bill of lading. Thus, cotton, 
though its carriage be thus exempted from the peril of fire, must 
not be needlessly exposed to danger.' The failure to provide the 
appliances by which a locomotive was made to consume its own 
sparks, may avoid the exemption from the peril of fire in favor of 
the carrier.' But, this requirement does not impose upon the car- 
rier the use of every possible prevention not reduced to practical 
use, — but only such as the test of experience and reason has shown 
to be practicable." Indeed, there are cases which deny that it is the 
duty of a carrier to provide special cars, — such as are in use by 
other carriers — for the purpose of transporting special classes of 
freight.* 

4 

§ 5. When Failure to Furnish Cars Excused. 

'Refusing to furnish cars for transportation, when all cars are 
needed for transportation of freight which has accumulated along 
the line is not a violation of the Interstate Commerce Act. But it 
is the duty of the carrier to furnish cars ratably to shippers along 
its line until the emergency is passed. At times of special pres- 
sure, regular customers are not entitled to preference over occa- 
sional ones. Shipper need not make special contract with carrier 
to be entitled to transportation of goods. Less desirable freight 
must be accepted upon reasonable terms, as well as that which is 
more desirable. When equipment of carrier usually applied to 
transportation of a particular article is not equal to the demand, 
carrier must appropriate other cars to such service. Carrier is not 
justified in refusing cars for transportation of coal at certain points 

' Levering v. Union Transp. & Ina. Go. 43 Mo. 88, 97 Am. Dec. 330; Empire 
Transp. Co. v. Wamautta Oil M. & M. Go. 63 Pa. 14, 3 Am. Rep. 515; In- 
aumnce of N. A. v. 8t. Louia, I. M. & 8. B. Go. 8 McOrary, 333. 

'Steinweg v. Erie B. Go. 43 N. Y. 138, 3 Am. Rep. 678. 

» Field Y. NewTork Gent. B. Go. 33 N. Y. 339; Ford v. London & 8. W. B. Go. 
3 Fost. & F. 730. 

* Weizell V. Ghicago & A. B. Go. 13 Mo. App. 599; Udell v. lllinoia Gent. B. Go. 
13 Mo. App. 354. 



20 LIABILITY AND DUTY TO PEOVIDE SAFE TEANSPOKTATION. 

by the fact that it could make more money by using its regular 
coal cars on another portion of the line.' 

A railway corporation, when sued for its failure to furnish a 
shipper with cars on request, must show its inability to furnish 
such cars, even though plaintiffi has expressly pleaded the con- 
trary, the facts being peculiarly within the knowledge of defend- 
ant." Delivery of cars by a railroad company at any hour during 
the day for which they are ordered, though too late to be used that 
day, is sufBcient where no hour has been specified in the order.' 

An unavoidable accident is no excuse for breach of an express 
contract of a railroad company to furnish cars on a certain day.' 
Nor will heavy and unprecedented traffic release a carrier from the 
consequences that result from a breach of a contract to furnish cars 
at a specified time.' A contract binding a carrier to transport 
as many carloads of grain as the shipper may desire transported 
is valid as to acts done in performance of it, and until revoked.' 
A stipulation in a written contract of interstate shipment, re- 
leasing the carrier from liability for damages sustained by the 
breach of a prior verbal contract to supply cars for shipment, is 
unreasonable, oppressive, and invalid.' An oral contract to pro- 
vide transportation on a certain day is not, after a breach and 
damages, merged in a subsequent written contract of shipment 
duly performed, so as to deprive the shipper of his right to re- 
cover damages for the breach." 

A local railroad station agent's lack of authority of which the 
shipper had no knowledge, to make a verbal contract to supply 
cars for transportation, will not relieve the company from liabil- 
ity for a breach of such contract which is within the apparent 

^Riddle v. NewYork, L. B. &W. R. Go. 1 Inters. Com. Rep. 787." 

» Ayrei v. Chicago & N. W. R. Oo. 71 Wis. 372. 

' McOrew v. Missouri Pae. R. Oo. 109 Mo. 582. 

• Shulbrick v. Salmond, 8 Burr. 1637. 

' Gulf, 0. & 8. F. R. Oo. V. Hume, 6 Tex. Civ. App. 653. 

« Cleveland, 0. 0. <fc 1. R. Co. v. Closs^; 3 Inters. Com, Rep. 387 9 L. R A. 

754, 136 Ind. 348. 
' Missouri, K. (6 T. R. Oo. v. Graves (Tex. App.) May 8, 1890. 
' MeAbsher v. Richmond & D. R. Co. 108 N. C. 344. 



DUTY OF OAKEIEKS TO FURNISH SEAWOETHT VESSELS. 21 

scope of his general authority.' A station agent for a railroad 
company has authority to make a special contract binding upon 
the company, to furnish cars at the station for shipment on a 
specified day.' 

The act of the 20th Texas legislature imposing a penalty upon 
railroad companies for failure to furnish freight cars, after de- 
mand therefor in writing, does not abrogate the common law 
right to recover from a company damages caused by its breach of 
a verbal contract to furnish cars,' 

§ 6. Duty of Carrier hy Water to Furnish Sea- 
worthy Vessel, etc. 

The carrier by water must supply a seaworthy vessel, well 
furnished with proper motive power and necessary equipment.* 
Want of readiness of a vessel to receive cargo at the time a 
notice that she is ready is given, is waived by failure to object, 
where she could, at the time of giving the notice, have been put 
in readiness in two days by the work of three men.' But an ex- 
press covenant to have a ship at a certain port by a certain day 
is not excused by inability to fulfill it because of contrary winds 
and bad weather.' An act of God does not excuse a carrier for 
failure to perform its express contract to transport within a rea- 
sonable time.' Where there is nothing said on the subject, sea- 
worthiness is an implied condition of a hiring of shipping.' A 
warranty of seaworthiness is absolute in every contract for the 
carriage of goods by sea, unless otherwise expressly stipulated." 
Where the owner of a vessel charters her or offers her for trade, 
he is bound to show that she is seaworthy and suitable for the 

' Missouri, K. & T. JR. Co. v. Orates, supra. 

* Boston V. Dudley, 78 Tex. 236, 45 Am. & Eng. R. Gas. 340; McOarty v. 

Gulf, C. & 8. F. B. Co. 79 Tex. 33; Missouri, K. & T. B. Co. v. Graves, 
mipra. 

* Missouri Pae. B. Co. v. Hm-monson (Tex. App.) April 23, 1890. 

* Germania Ins. Co. v. The Lady Pike, 88 U. S. 21 Wall. 1, 32 L. ed. 499. 
' Wenche v. Vamghan, 60 Fed. Rep. 448. 

^ Shulln'ick v. Salmond, 3 Burr. 1637. 
« Van Buskirk v. Boberis, 31 N. Y. 661. 
^Lyony. Tiffany, K Mich. 158. 
» The Caledonia, 43 Fed. Rep. 681. 



22 LIABILITY AND DUTY TO PEOVIDE SAFK TEANSPOETATION. 

service in which she is employed. If there are defects known or 
unknown, he is not excused. He is obliged to keep her in proper 
repair unless prevented by perils of the sea or inevitable accident.' 

The owners of a vessel under charter are bound, under the cove- 
nant for seaworthiness, to have the vessel in proper condition for 
her voyage at the time of breaking ground ; and this obligation 
is not affected by an express warranty of seaworthiness of the 
vessel which contains no provision as to when it shall attach.' 

A clause in a bill of lading of cattle shipped upon a vessel, by 
which the shipper assumes all risk of the fittings, is void as against 
public policy, in so far as it relates to a defective condition of the 
fittings through insulfieient fastening due to the negligence of the 
employes of the vessel, and unknown to the shipper at the time 
of sailing.' Under a contract for the lease of shipping providing 
that the lessees assume all liability for loss or damage to the cargoes 
from whatever cause, and that neither the lessor nor the shipping 
itself shall be held responsible, nothing being said about seaworthi- 
ness, the lessor is liable for damage occasioned by an excessive leak- 
age.* To constitute seaworthiness of the hull of a vessel in respect 
to the cargo, the hull must be so tight, staunch and strong as to be 
able to resist all ordinary action of the sea, and to prosecute and 
complete the voyage, without damage to the cargo under deck.* 

A vessel is ordinarily presumed to have been seaworthy upon 
commencing her voyage ; but the presumption is othervme where, 
shortly after its commencement, without encountering any stress 
of weather or unusual peril, she becomes so leaky as to be obliged 
to put into a port of refuge for repairs.* 

Prima facie the fact of injury to a cargo from a leak in a vessel 
makes a case of negligence against the carrier ; throwing upon 
him the burden of proving that the direct cause was a peril of the 

' Wm-lc V. Leatrum, 97 U. S. 379, 24 L. ed. 1012; TU Keokuk v. Home Ins. Co. 

76 U. S. 9 Wall. 526, 19 L. ed. 746; The Nwihern Belle v. Bobson, 76 U. S. 

9 Wall. 526, 19 L. ed. 748. 
' Bowring v. Thebaud, 56 Fed. Rep. 520. 
' Tlie Imoa, 50 Fed. Rep. 561. 
*Lyon V. Tiffany, 76 Mich. 158. 

'Dupont V. Vance, 60 U. S. 19 How. 162, 15 L. ed. 584. 
^Broadnax v. Oheraw & 8. R. Co. 1 Pa. Dist. Rep. 251. 



DUTY OF OAEEIEES TO FUENISH SEAWOETHT VESSELS. 23 

sea.' But unseaworthiness in a vessel cannot be inferred from the 
mere fact of the slacking of a cargo of lime while on board.' 
A vessel cannot be deemed unseaworthy because her decks had 
a year before been repaired, and opened and leaked after being 
exposed to a Hurricane, where after recaulking she safely crossed 
the Mediterranean and Atlantic in much rough weather.' 

The fact of a welding defect at the place of the fracture of the 
sliaft of a ship's engine will not show unseaworthiness, if the solid 
part of the shaft at that place is mathematically established to 
have been nearly two and one half times the strength required 
for the performance of the ordinary duty in navigating the ship.' 
And where damage to cargo was caused by water taken aboard 
through a bilge pump hole, if there be any doubt upon the evi- 
dence whether the cap and plate covering that hole were in good 
condition and knocked off through extraordinary contingencies, 
that doubt must be resolved against the charterer.' Where 
a cargo of sugar in the hold of a vessel was injured by water, 
and the limber holes were stopped up, preventing the water 
from running into the wells, and the pumps were out of order 
and practically useless, and the windows through which it was 
claimed that some of the water came were not shuttered, the ves- 
sel is liable for the damages." A vessel is liable for damage to a 
cargo of ice, caused by the escape of steam from a defective drip 
valve.' A ship is liable for injuries sustained, by persons unload- 
ing a cargo, by the falling of a platform on account of a defective 
support which officers of the ship permitted to be used, although 
they advised the men not to put too much weight upon it.° The 
owner is liable for damage to the cargo from the sinking of an old and 
insufficient bridge or from the timber of the bridge being rotten.' 

' The Samuel E. Spring, 29 Fed. Rep. 397. 

• Singleton v. Plmnia Ins. Co. 133 N. Y. 298. 
» The Ma/rlborough, 47 Fed. Rep. 667. 

■• Suseeiiey v. Thompson, 39 Fed. Rep. 121. 

^Bradley Fertiliser Go. v. The Edwin I. Morrison, 153 U. S. 199, 38 L. ed. 688. 

• The Charles J. WUlard, 38 Fed. Rep. 759. 
' The SoAig&rties, 44 Fed. Rep. 635. 

« Eeliher v. The Nebo, 40 Fed. Rep. 31. 

*TU Keokuk v. Eorne Ins. Co. 76 U. S. 9 Wall. 526, 19 L. ed. 746; The 
Northern Belle v. Robson, 76 U. S. 9 Wall. 526, 19 L. ed. 748. 



24 LIABILITY AND DUTY TO PEOVIDB SAFE TEAN8P0KTATI0N. 

§ 7. Carrier hy Water Must Answer for Co-nvpe- 
tency of Officers and Crew. 

The owner of a vessel engaged in service as common carrier 
must see that the master is competent, skillful, of sound judg- 
ment and discretion and of sufficient knowledge and experience,' 
and that the crew is sufficient in numbers and qualified for its 
duties, as both the owners . and vessel are responsible for their 
want of skill and judgment, or for their negUgence." 

Owners 'of a vessel are guilty of negligence toward the owners 
of cargo in employing a master of such intemperate habits and so 
addicted to intoxication as to render him unfit for his position. 
The owners of a vessel are liable to the owners of cargo for dam- 
ages from a collision occuring in the master's watch while the 
navigation was in sole charge of the second mate, where such 
master was incompetent by reason of his habits of intoxication, 
and the owners were guilty of negligence in his appointment, and 
at the time of the collision there was instant need of a master's 
skill and experience, but the master was stupefied with drink, 
and when he got on deck a few minutes after the collision, gave 
a wrong order which the second mate was obliged to reverse." 
The owner of the vessel is responsible for the direct negligence 
or any wrong doing of the master which is done by him as mas- 
ter in the discharge of his duty and under the authority given 
him as master.'' 

The owner of the ship as well as the master, is responsible for 
the goods which he has undertaken to carry, if stolen or embez- 
zled by the crew, or by any other person, though no fault or 
negligence may be imputable to him.' 

The responsibility of owners for the acts of the master is not, 
however, universal, but is confined to cases within the scope of 

' the Guildhall, 58 Fed. Rep. 796. 

• Ward T. Chamberlain, 63 U. S. 31 How. 572, 16 L. ed. 219. 

• The Guildhall, 58 Fed. Rep. 796; Gfiamberlain v. Ward, 62 U. S. 21 How. 

548, 16 L. ed.. 311 ; Oermania Jna. Co. v. The Lady Pike, 88 U. S. 21 Wall. 
1. 23 L. ed. 499. 

• Sheifleld -7. Paige, 1 Sprague, 385; Hunt v. Oolburn, 1 Sprague, 215; Foster 

V. Sampson, 1 Sprague, 183; 3 Parsons, Ship. & Adm. 29. 
'Sehieffelin-v. Harvey, 6 Johns. 170, 5 Am. Dec. 206; Watkinson v. Laugh- 
ton, 8 Johns. 213. 



OOMPBTENOT OF OFFICERS AND CEEW. 25 

the authority confided to him.' They are not, therefore, liable 
for acts of piracy committed by him." A master cannot abandon his 
ship and cargo upon any grounds when it is possible by human 
exertions, skill and prudence to save them from impending peril. 
It depends upon the circumstances, whether the act of the master 
ia seeking shelter in a harbor, was reasonable and necessary, and 
if it was, then he is not in fault. Masters have a right and often 
it is their duty to seek shelter from a storm.* After stranding, it 
is the master's duty to take all possible care of the cargo.* The 
master was held guilty of the grossest negligence for not having 
made any effort himself or requested it of others, either to get his 
steamer o£E when stranded, or to remove and store the goods in 
port.* 

It is the duty of the master of a vessel to acquaint himself with 
the laws of the country with which he is trading and to conform 
his conduct with those laws. He cannot defend himself where 
he has been negligent iinder an asserted ignorance or erroneous 
information on the subject.' 

The rule of mercantile law, making the master of a vessel lia- 
ble for the negligent acts of those under his authority to the same 
extent as if he were the owner, applies without regard to the 
question whether the officers or men were employed by himself or 
the owners.' A steamship company which keeps medicines on hand 
for the use of passengers in case of sickness is bound to keep them 
arranged so that a physician of ordinary skill can select them when 
asked for, and is liable where, on account of their being badly 
arranged, the ship's physician gives a passenger a different medi- 
cine from that called for, from which the latter suffers permanent 
injuries.' 

' Eeynolds -7. Toppan, 15 Mass. 370, 8 Am. Dec. 110; The Bebecca, 1 Ware, 
188; The Druid, 1 W. Rob. Adm. 391; The Waldo, 4 Law. Rep. 382; The 
Oaseo, 4 Law. Rep. 471. 

'Diaa v. The Revenge, 3 Wash. C. C. 262; The Dundee, 1 Hagg. Adm. 109, 
113, 120. 

« The Niagcvra v. Cordes, 62 U. S. 21 How. 7, 16 L. ed. 41. 

« The Portsmouth v. Onondaga Salt Co. 76 U. S. 9 "Wall. 682, 19 L. ed. 754, 

• The Niagara v. Cordei, supra. 

'Howland v. Greenwa/y, 68 TJ. S. 23 How. 491, 16 L. ed. 391. 

' Kennedy v. Byall, 67 N. Y. 379. 

^Allcm V. State 88. Co. 29 N. Y. 8. R. 288. 



26 LIABILITY AND DUTY TO PEOVIDE SAFE TEANSPOKTATION. 

"Where the freighter hires the possession, command and nayi- 
gation of the ship for the voyage, he becomes the owner and is 
responsible for the conduct of the master and mariners ; and the 
general owner is not liable for the nondelivery of goods shipped 
or of goods lost.' In Massachusetts, the charterer of a vessel is 
declared to be the owner in respect to responsibility for embezzle- 
ment by the crew in case he navigates the vessel at his own ex- 
pense." In case of abandonment to indemnitors, the latter become, 
by relation, owners from the time of the loss on account of which 
the abandonment was made, and they are consequently liable for 
all repairs and necessary expenses incurred after the loss.' 

§ 8. Duty of Carrier of Goods to Inspect Present 
Condition of Implements of Transportation. 

The rule already stated as to the duty of inspecting the present 
condition and soundness of the machinery and means of transporting 
passengers is equally applicable to the common carriers of goods.* 
The failure of the owners to have a vessel thoroughly inspected 
after a prior accident to her, is inexcusable negligence. It is their 
duty to have her often examined, and thoroughly inspected.' 
After a freight tank car has just returned from one long jour- 
ney, it is the duty of the carrier, before permitting it to start out 
loaded on another distant run, in which the lives and safety of 
brakemen, trainmen, and the property of the shipper vrill be in- 
volved, to have such car carefully inspected by a competent in- 
spector, in order to ascertain whether it is in a safe condition for 

' Christie v. Lewis, 2 Brod. & B. 410; Marcardier v. Chesapeake Ins. Co. 12 U. 

S. 8 Wheat. 605, 5 L. ed. 696; Pitkin v. Brain&rd, 5 Conn. 451, 13 Am. 

Dec. 79; Latham v. Lawrence. 13 Conn. 299; Olarkson v. Edes 4 Cow 470; 

Reynolds v. Toppan, 15 Mass. 370, 8 Am. Dec. 110; .ffiniery v. Hersey 4 Me. 

407, 16 Am. Dec. 268; Lander v. Clark, 1 Hall, 855; Cainn v. Newberry, 6 

Bligh, N. S. 189; Pickman v. Woods, 6 Pick. 251. 
s Rev. Stat, of 1835, 1 1, cl. 82, § 3. 
' United Ins. Co. v. Robinson, 2 Cai. 280; United Ins. Co. v. Seott, 1 Johns. 

106; Reade v. Commereial Ins. Co. 3 Johns. 352, 3 Am. Dec 495- Leef. 

Boardman, 3 Mass. 238, 3 Am. Deo. 134; 3 Emerigon Ins 194, 196; 

Pothier, Contract d' Assurance, 138. 
<See "Imposed Duties Passenger Carriers," § 19. 
' The Northern BeUe v. Robson, 76 U. S. 9 Wall. 526, 19 L. ed. 748. 



DISCRIMINATION BETWEEN BXPEBSS COMPANIES. 27 

such service.' But a master of a vessel is not guilty of improper 
conduct in failing to have her decks renewed upon putting into 
port after passing through a hurricane, when everything recom- 
mended by the surveyors, one of whom represented the cargo 
as agent of the underwriters, was done." 

§ 9. Discrimination Between Express Companies 
in Furnishing Facilities. 

In New Hampshire, it was held that a railroad company was 
bound to furnish equal facilities to all express companies, for the 
transportation of their merchandise ; and that this rule existed at 
common law, without the aid of a statute.' In Pennsylvania, a 
special contract with an express company, giving it exclusive 
privileges of carrying freight upon its passenger trains, was or- 
dered to be canceled.' In IllinoiSj it is said that the duties and 
liabilities of common carriers are clearly defined by the common 
law, and have been settled for centuries. In accepting their 
charters which gave them an artificial existence as common car- 
riers, they necessarily accepted them with all the duties and lia- 
biUties, attached by the existing law to the functions of a com- 
mon carrier. While the law now imposes and always has 
imposed upon individuals exercising the vocation of a common 
carrier, the obligation of rendering service to all persons without 
injustice to any, how utterly unreasonable is it to claim that a 
corporation is to be permitted to discriminate in its tolls, at its 
own discretion, and without regard to justice, etc.' 

In New England Exp. Go. v. Maine Cent. R. Go. 57 Me. 188, 
2 Am. Eep. 31, an action in case for damages was brought under 
circumstances like those that gave the ground for injunction in 
the case cited from Pennsylvania. Defendant had refused to 

^Michigan Congress Water Go. v. Chicago & O. T. B. Co. 2 Inters. Com. Rep. 

428. 
' 27(6 Ma/rlborough, 47 Fed. Rep. 667. 

'McDuffee v. Portland & B. B. Co. 52 N. H. 430, 13 Am. Rep. 72. 
* Bandford v. CattaiDissa, W. & E. B. Co. 24 Pa. 378, 64 Am. Dec. 667. 
' Chicago & A. B. Co. v. People, 67 111. 11, 16, 16 Am. Rep. 599. 



26 LIABILITY AND DUTY TO PEOVIDE SAFE TEANSPOETATION. 

carry goods for plaintifE because, some years before it had made 
a contract with another express company to give it the exclusive 
right to carry express matter on its cars. The court says : "Com- 
mon carriers are bound to carry indifferently, within the range of 
their business, for a reasonable compensation, aU freight offered. 
For similar equal services, they are entitled to the same compen- 
sation. They cannot legally make unjust and undue preferences 
nor make unequal and extravagant charges. A toll is granted. 
But a toll implies uniformity of compensation for equality of ser- 
vice. The very definition of a common carrier excludes the idea 
of the right to grant monopolies or to give special or undue pre- 
ference. They owe an equal duty to each citizen. They are 
allowed to impose a toll but it is not to be so imposed as to spe- 
cially benefit one and injure another. Such is the common law 
on the subject. The legislation of the state has been in accord- 
ance with these views." Again the court says : " The very defi- 
nition of a common carrier excludes the idea of the right to grant 
monopolies or to give special and unequal preferences. It im- 
plies indifference as to whom they may serve and an equal readi- 
ness to serve all that may apply and in the order of their applica- 
tion. The defendants derived their chartered rights from the 
state. They owe an equal duty to each citizen." ' 

In Dinsmore v. St. Louis, C. d& Z. R. Co. 2 Fed. Hep. 465, 
two cases were disposed of by Judge Baxter, one in the circuit 
court of the United States for Kentucky, and the other for Tea- 
nessee. On p. 469, Judge Baxter, having treated of the duty to 
supply all the accommodations and facilities demanded by the 
business of the country, says : " And next in importance to this 
leading idea is the obligation to do exact and even-handed justice 
to everybody offering to do business with them. . . . The 
defendant, to the extent of its corporate authority, the Union 
Express Company and all other persons or companies wishing to 
engage in the carrying of express matter over defendant's road, 
can enter on that business on equal terms with the complainant. 
Neither the railroad companies nor the courts can discriminate in 
favor of one or more parties or against others. All are entitled 

' See aXso InUrnational Exp. Co. v. Chrand Trunk B. Co. of Canada, 81 Me. 92. 



DISOEIMINATION BETWEEN EXPRESS COMPANIES. 29 

to the same measure of accommodation who may offer to do the 
like business, and it is the duty of the court to enforce, whenever 
applied to this legal rule of impartial justice." 

Five cases reported in 10 Fed. Eep. 210, were decided before 
Justice Miller and Judges McCrary and Treat, arising in the 
various circuit courts of the United States for Mississippi, Ar- 
kansas, Kansas, and Colorado; and Justice Miller, on p. 214, 
states as the fifth point in his opinion : " I am of the opinion 
that it is the duty of every railroad company to provide such con- 
veyances, by special cars or otherwise, as are required for the safe 
and proper transportation of the express matter on their roads ; 
and that the use of their facilities should be extended on equal 
terms to all who are actually and usually engaged in the express 
business." In the case of Southern Exp. Co. v. Mem/pMs & L. 
R. Go. 8 Fed. Kep. 799, the complainant, an express company, 
had been for many years engaged in carrying on an express busi- 
ness over the defendant's railroad. No written contract was ever 
entered into between the parties, but the business was carried on 
without objection, and upon terms mutually satisfactory, until some 
time in the year 1880, when the defendant asserted its own right 
to transact all the express business upon its line, and" attempted to 
eject the complainant therefrom. Upon the application of com- 
plainant, a temporary injunction was granted ; and, upon a motion 
to dissolve the same, McCrary, J., said that it was the duty of 
the defendant, as a public servant, to receive and carry goods for 
all persons alike, without injurious discrimination as to rates or 
terms ; that railroad companies must carry express packages and 
the messenger in charge of them, for all express companies that 
apply, on the same terms, unless excused by the fact that so many 
apply that it is impossible to accommodate all. 

Some of these cases coming on appeal from the United States 
circuit courts, were considered together by the Supreme Court 
of the United States, and it was there decided, that in the 
absence of some special statute, there is no law or usage having 
the force of law, which requires railroad companies to furnish 
express facilities to all express companies which demand them.' 

is & L. B. B. Co. V. Southern Exp. Co. 117 U. S. 1, 39 L. ed. 791. 



30 LIABILITY AND DUTY TO PBOVIDE SAFE TEANSPOETATION. 

The car space that can he given to the express business on a pas- 
senger train is, to a certain extent, Hmited ; and as is well known, 
that which is to be allotted to a particular carrier must be, in a 
measure, under its exclusive control. No express company can 
do a successful business, unless it is at all times reasonably sure of 
the means it requires for transportation. On important lines one 
company will at times fill all the space the railroad company can 
well allow for the business. If this space had to be divided 
among several companies, there might be occasion when the pub- 
lic would be put to inconvenience by delays which could other- 
wise be avoided. So long as the public are served to their rea- 
sonable satisfaction, it is a matter of no importance who serves 
them. The railroad company performs its whole duty to the 
public at large and to each individual, when it affords the public 
all reasonable express accommodations. If this is done the rail- 
road company owes no duty to the public as to the particular 
agencies it shall select for that purpose. The public require the 
carriage, but the company may choose its own appropriate means 
of carriage, always provided they are such as to insure reasonable 
promptness and security. 

The inconvenience that would come from allowing more than 
one express company on a railroad at the same time, was appar- 
ently so well understood, both by the express companies and the 
railroad companies that the three principal express companies, — 
the Adams, the American, and the United States, — almost imme- 
diately on their organization, now some forty years ago, by 
agreement divided the territory in the United States traversed by 
railroads among themselves ; and since that time each has confined 
its own operations to the particular roads, which, under this di- 
vision, have been set apart for its special use. No one of these 
companies have ever interfered with the other, and each has 
worked its allotted territory, always extending its lines in the 
agreed directions as circumstances would permit. At the begin- 
ning of the late civil war the Adams Express Company gave up 
its territory in the southern states to the Southern Company, 
and since then the Adams and Southern have occupied, under 
arrangements between themselves, that part of the ground origi- 



DISCEIMINATION BE'i'vVJiEN EXrKKSS COMPANIES. 31 

nally assigned to the Adams alone. In this way, these three or 
four important and influential companies were able substantially 
to control, from 1854 until now, all the railway express business 
in the United States,except upon the Pacific roads and in certain 
comparatively limited localities. In fact, as was shown some 
ten years ago, the Adams then occupied 155 railroads, with a 
mileage of 21,216 miles, the American 200 roads with a mileage 
of 28,000 miles, and the Southern 95 roads, with a mileage 
age of 10,000 miles. Through their business arrangements with 
each other, and with other connecting lines, they have been able 
for a long time to receive and contract for the delivery of any 
package committed to their charge at almost any place of import- 
ance in the United States and Canada, and even at some places in 
Europe and the "West Indies. They have invested millions of 
dollars in their business, and have secured public confidence to 
such a degree that they are trusted unhesitatingly by all who 
need their services. The good will of their business is of very 
great value, if they can keep their present facilities for trans- 
portation. The longer their lines and the more favorable their 
connections, -the greater will be their own profit and the better 
their means of serving the public. In making their investments 
and in extending their business they have undoubtedly relied on 
securing and keeping favorable railroad transportation, and in 
this they were encouraged by the apparent willingness of the 
railroad companies to accommodate them ; but the fact still re- 
mains that they have never been allowed to do business on any 
road except under a special contract, and that, as a rule, only one 
express company has been admitted on a road at the same time. 
The simple transportation of property on a railway is but a 
small percentage — 40 per cent — of the express business. The 
remaining 60 per cent is of business done off the lines of railway, 
and is of a character not included even by implication in the right 
to transport passengers and goods, wares and merchandise on a 
prescribed line. Such service, it has been said, cannot lawfully 
be required from a railway company.' 

'Am&iican Merchants U. Exp. Vo. v. Wolf, 79 111. 430; American U. Mcp. 
Co. V. Bobimon, 73 Pa. 374; Tliomm v. Boston & P. B. Corp. 10 Met. 477, 



3ii LIABILITY AND DUTY TO PKOVIDE SAFE TEANSPOETATION. 

But, although ruling that railroads are not common carriers as 
to express companies so as to be compelled to transport their 
matter without any preference or discrimination between such 
companies, and that the question is admittedly one proper for legis- 
lative action, the Supreme Court of the United States is inclined 
to regard it as the duty of the railroad companies to furnish such 
facilities to the public and, in stating its rulings on the ques- 
tion of discrimination between express companies, it is said that 
the obligation of railroad companies either to carry express mat- 
ter themselves or to allow it to be carried by their trains is, 
however, a different question.' Still it may be said that a statute 
making it unlawful for any common carrier to give undue or 
unreasonable preference to any person, company, firm, corpora- 
tion, or locality, does not require equal facilities to be given 
to express companies for carrying on business over a railroad, 
unless it holds itself out as a common carrier of such companies.' 
But in granting the right, the interest of the carrier may be con- 
sidered. Justice Pratt, in the supreme court, Brooklyn, granted a 
temporary injunction restraining the New York & New England 
Railroad Company, and others, from executing and delivering any 
contract granting express privileges over the lines of the company, 
to the American Express Company, and from putting that com- 
pany in possession of any such facilities over the lines of the 
railroad company. The application for the injunction was made 
in behalf of a stockholder in the New York & New England 
Company. In his affidavit, on which the injunction is granted, he 
alleges that the railroad company rejected an offer which would m 
all other respects equal that made by the American Express Com- 
pany, and in addition guaranteed $22,000 more a year as a mmi- 

43 Am. Dec. 444; Witbeck v. Holland, 45 N. T. 17, 6 Am. Kep. 23 55 
Barb. 448; Hoagland v. Hannibal & St. J. B. Co. 39 Mo. 451; St. Joseph, B. 
& St. J. B. Co. V. Sanlle, 39 Mo. 460 ; People v. Ghieaga d: A. R. Co 55 111. 95 
Am. Dec. 631 ; Macon v. JUacon & W. R. Co. 7 Ga. 221 ; Abbott v. Baltimore £ 
B. Steam Packet Co. 1 Md. Oh. 543; Citizen's Bank v. mmtu<^t S B Co. 
2 Story, 17; Collender v. Dinsmore, 55 N. Y. 300, 14 Am. Rep. 234; Bland 
y. Bmitlm-nExp Co. 1 Hughes, 345; Knapp v. United States & C. Exp. Co. 
55 N. H. 348; Wlutney v. Merchant's U. Bkp. Co. 104 Mass. 152 6 Am. 
^^V:^;Pahner v. Holland, 5\ N. T. 416, 10 Am. Rep. 616;4»i«i'- 
ean Exp. Co. v. Eaire, 21 Ind. 4, 83 Am. Dec. 334. 

Us & L. B. B. Co. V. Southern Exp. Co. 117 U. S. 1, 29 L. ed. 791. 



DISCEIMINATION BETWEEN BXPKBSS COMPANIES. 33 

mum compensation for the privileges, and which would make a 
gain to the New York & New England Company of at least 
$110,000 for the proposed five years' contract. The railroad 
company would also lose certain incidental advantages which 
would accrue to it from making a contract with the United States 
Express Company, which had made the larger offer, by reason of 
its connections with the Reading Company, which directly con- 
nects with the New England Company at Hopewell Junction and 
at Hartford, and with which there now exist traffic contracts. 
The plaintifiE gave a bond of $5000. By the terms of the con- 
tract, the performance of which is thus enjoined, the American 
Express Company was to have assumed control of the. express 
business over the New York & New England road. Heretofore 
this business has been done by the Adams Express Company. 

A carrier allowing an expressman to occupy a stand at its 
depot is not required by common law to furnish equal facilities to 
all persons, nor will a statute be given such a construction in 
order to bring it within any express theory of public policy.' 

' Old Colony B. Co. v. 2>»j)p, 147 Mass. 35; Com. v. Carey, 147 Mass. 40 note. 
3 



CHAPTEE n. 
LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 

§ 10. The Oommon Law lAdbility of Freight Carriers. 

% 11. Limitation of lAdbility ly Notice. 

§ 12. Limitation of Liability in Particular Instances. 

§ 13. Release of Liability Must Best upon a Consideration. 

§ 14. Denial of Bight to Contract against Negligence. 

§ 15. Befusal of United States Courts to Becognize Contracts Re- 
leasing Liability for Negligence. 

§ 16. When Exemption by Contract is Permitted, it Must be Clear 
and Explicit. 

§ 17. Statutes Limiting Power of Carrier to Contract against its 
own Negligence. 

§ 18. Limitation of Amount of Liability by Statute — Act of Congress. 

§ 19. Law of Place of Contract of Affreightment. 

% 10. The Common Law Liability of Freight 
Carriers. 

In pointing out the distinction in liability between carriers of 
goods and passenger carriers, in § 2, ante, something has neces- 
sarily been said of the common law liability of the former, and 
what is now written is in continuation of the discussion pointing 
out the permitted modifications of such hability. What has been 
called the general maritime law is enforced in this country and 
other countries, so far only as it has been adopted by the laws or 
usages thereof ; and no rsle of general maritime law (if any ex- 
ists) concerning the validity of a stipulation authorizing a carrier 
upon water to contract against his liability for negligence has ever 
been adopted in the United States or in England or recognized 
in the admiralty courts of either.' 

' Liverpool & G. W. Steam Go. v. PJienix Ins. Co. (" The Montana ") 139 D. S. 
397, 82 L. ed. 788; Bodd v. Eeartt (" The Lottawanna") 88 U. S. 31 Wall. 
558, 32 L. ed. 654; National Steam Nav. Go. v. Dyer (" The Scotland") 105 

34 



THE COMMON LAW LIABJLITZ OF FEEIGHT CAEEIEES. 35 

But there is not, in fact, any general maritime law recognizing 
the right of a carrier of goods or passengers by water to stipulate 
for exemption from all liability for his own negligence. The de- 
cisions of courts and opinions of commentators in France, Italy, 
Germany and Holland, tending to show the existence of such a 
rule, do not appear to have been based on general maritime law, 
but largely, if not wholly, upon provisions or omissions in the 
codes of the particular countries, and it has been said by many 
jurists that the law of France, at least, was otherwise.' 

The common law charges the common carrier, whether by land 
or water, against all events but acts of Crod, of the king's enemies 
or of the shipper ; so that a common carrier is an insurer against 
all perils or losses not within the exception. This rule is part of 
the common law of this country, and it is not a defense to the 
claim of an owner that a carrier has done the best he could or 
that the accident causing the loss was unavoidable. He must 
bring himself clearly within one of these exceptions.' 

U. S. 34, 26 L. ed. 1001 ; The Belgenland v. Jensen, 114 U. 8. 355, 33 L. ed. 
153; The Harrisburg v. Bickards, 119 U. 8. 199, 30 L. ed. 358; The Ham- 
burgh, 3 Moore, P. 0. N. S. 289, 319, Brown & L. Adm. 253, 373; Lloyd v. 
Guibert, L. R. 1 Q. B. 115, 6 Best & S. 100, 136; T/ie Qaetano, L. R. 7 
Prob. Div. 137. 

^Liverpool & G. W. Steam Go. v. Phenix Ins. Co. {" The Montana") supra; 4 
Goujet & Meyer, Diet. Droit Com. (3d ed.); Voiturier, Nos. 1, 81; 8d Trop- 
lone, Droit Civile, Nos. 894, 910, 943, and other cases cited in Peninsular & 
0. Steam Nam. Co. v. Shand, 3 Moore, P. C. N. 8. 273, 378, 285, 286; Mel- 
Hsh, L. J., in Cohen v. Southeastern B. Go. L. R. 2 Exch. Diy. 253. 

> Ooggs V. Bernard, 2 Ld. Raym. 909; Trent & M. Nav. Go. v. Wood, 3 Esp. 
127; Biley v. Home, 5 Bing. 217; The Mama, 4 Rob. Adm. 348; LaTourette 
V. Burton (" 'The Gommander-in-Ghief") 68 U. S. 1 Wall. 48, 17 L. ed. 609; 
Leiohford-v. The Golden Eagle, 17 La. Ann. 9; Friend v. Woods, 6 Gratt. 
189; Orange Gounty Bank-J. Brown, 9 Wend. 85, 24 Am. Dec. 139; Thur- 
man v. Wells, Fargo <£ Go. 18 Barb. 500; Mershon v. Hobensack, 23 N. J. L. 
580; Thomas v. Boston & P. B. Corp. 10 Met. 476, 43 Am. Dec. 444; Crosby 
V. Fitch, 12 Conn. 419, 31 Am. Dec. 745; Lewis v. Ludwick, 6 Coldw. 368, 
98 Am. Dec. 454; Fish v. Chapman, 3 Ga. 349, 46 Am. Dec. 393; New 
Brunswick, S. B. & C. Transp. Co. v. Tiers, 24 N. J. L. 697, 64 Am. Dec. 
334; Swindler v. Hilliard, 2 Rich. L. 386, 45 Am. Dec. 732; Kiff v. Old 
Colony & N. E. Go. 117 Mass. 591, 19 Am. Rep. 439; Eagle v. WhiU, 6 
Whart. 517, 37 Am. Dec. 434; Smyrl-v. Niolon, 3 Bail. L. 421, 33 Am. Dec. 
146; Hannibal & St. J. B. Co. v. Swift, 79 U. S. 12 Wall. 262, 20 L. ed. 433; 
Merwphis & G. B. Co. v. Beeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909; Powell 
V. Mills, 30 Miss. 231, 64 Am. Rep. 158; Edwards v. White Line Transit Go. 
104 Mass. 159, 6 Am. Rep. 213; Morrison v. Dams, 20 Pa. 171, 57 Am. Dec. 
695; Central B. & Bkg. Go. v. Hines, 19 Ga. 203; Daggett \. Shaw, 3 Mo. 
264; Bohannan v. Hammond, 42 Cal. 337; Howe v. Oswego & 8. B. Go. 56 



36 LIMITATION OF LIABIUTT BY OONTEAOT AND BY STATUTE. 

A carrier which makes no inquiry as to the vahie of his baggage 
of a passenger who uses no device to escape injury is liable for the 
full value of jewelry and personal ornaments contained therein, 
unless they are in excess, in quantity or value, of articles usually 
taken by persons in like positions making like trips.' 

The rules of the common law are simple and well defined. The 
carrier was always liable for all losses, except those occasioned by 
the act of God, or the public enemy. He was an insurer of the 
property committed to his custody, even against fire and theft or 
robbery by armed men. This was on grounds of public pohcy, to 
prevent conspiracy of the carrier with the thief or trespasser.' 

Holt, Ch. J., in Coggs v. Bernard, 2 Ld. Kaym. 918, says : " This 
is a politic establishment, contrived by the policy of the law for the 
safety of all persons, the necessity of whose affairs oblige them to 
trust these sorts of persons, that they be safe in their ways of deal- 
ing." Lord Mansfield says' the carrier was held liable for such loss 
" to prevent litigation, collusion, and the necessity of going into cir- 
cumstances impossible to be unraveled. The law presumes against 
the carrier, unless he shows it was done by the Bang's enemies, or 
by such act as could not happen by the intervention of man; as 
storms, lightning, and tempests . . It appears from all the 

cases for a hundred years back that there are events for which the 
carrier is liable, independent of his contract. By the nature of 
his contract, he is liable for all due care and diligence, and for 
any negligence he is suable on his contract. But there is a fur- 
ther degree of responsibihty by the custom of the realm ; that is, 
by the common law, a carrier is in the nature of an insurer." 

% 11. Limitation of Liability hy J^otice. 

Burrough, J., in Smith v. Home, 8 Taunt. 144, says : "Tlie 
doctrine of notice was never known until the case of Forward v. 

Barb. 121; Turner v. WUson, 7 Yerg. 340; Emery v. Hersey, 4 Me 411, 16 
Am Dec. 268; Boyle v. McLaughlin, 4 Harr. & J. 291; Dunseih y. Wade, 3 
111. 285. 

' Bonner v. Blum (Tex. Civ. App.) Jan. 25, 1894. 

* Sartwell v. Nort?iern Pac. Exp. Co. 8 L. R. A. 848, 6 Dak. 463. 

*Fm-v>ard-7. Pittard,lt.'R.%n. 



LIMITATION OF LIABILITY BY NOTICE. 37 

Pittwrd," from which we quote the language of Lord Mans- 
field, which he says he argued many years before. An ex- 
amination of that case fails to show any such limitation, or to 
make any reference to the subject of notice. The doctrine seems 
first to have been recognized that the liability of the carrier could 
be limited by a special contract and notice brought home to the 
party in 1804,' by Lord Ellenborough, though the doctrine was 
expressly denied by Lord Kenyon in 1793, Hide v. Trent & M. 
NoAi. Proprs. 1 Esp. 36, in which he says : " Where a man is 
bound to any duty, and chargeable to a certain extent by the 
operation of law, in such case he cannot, by any act of his own, 
discharge himself." And again referring to the common carrier, 
he says : "They cannot discharge themselves by any act of their 
own, as by giving notice, for example, to that efEect." The doc- 
trine, however, announced by Lord Ellenborough in Nicholson 
V. Willa/Th, seems to have subsequently obtained, and to have 
been carried so far as to allow the common carrier to cast off 
all liability whatsoever. And in Having v. Todd, 1 Stark. 72, 
the defendant carrier having given notice that "he would not 
be responsible for loss by fire." Lord Ellenborough nonsuited the 
plaintiff; remarking, however, that "if this action had been 
brought twenty years ago, the defendant would have been liable 
since by the common law a carrier is liable in all cases except 
two — where the loss is occasioned by the act of God, or the King's 
enemies using an overwhelming force which persons with ordi- 
nary means of resistance cannot guard against" — thus showing the 
departure that the courts had made in so short a period. 

But liability of a steamship company for baggage is not 
affected by a limitation of a paper given a passenger when he is 
already at sea and powerless to repudiate the pretended contract.'' 

Judge Bronson in JSollister v. Nowlen, 19 Wend. 234-242, 32 
Am. Dec. 455, after reviewing the common law decisions, and 
referring to the innovation made by Lord Ellenborough upon the 
doctrine of notice, says that the doctrine (referring to the decis- 

' Niohohon v. Tf Store, 5 East, 507. 

' Leelwuitzer v. Hamburg- American Packet Co. 8 Misc. 213. 



38 LIMITATION OF LIABILITY BY OONTEACT AND BY STATUTE. 

ion of Lord EUenborough, swpra) in question was not received in 
"Westminster Hall without much doubt; and although it ulti- 
mately obtained something like a firm footing, many of the 
English judges have expressed their regret that it was ever sanc- 
tioned by the courts. Departing, as it did, from the simplicity 
and certainty of the common law rule, it proved one of the most 
fruitful sources of legal controversy which has existed in modern 
times. When it was once settled that a carrier might restrict his 
liability by a notice brought home to his employer, a multitude 
of questions sprung up in the courts which no human foresight 
could have anticipated. Each carrier adopted such a form of 
notice as he thought best calculated to shield himself from 
responsibility without the loss of employment, and the legal effect 
of each particular form of notice could only be settled by judicial 
decision. Whether one who had given notice that he would not 
be answerable for goods beyond a certain value, unless specially 
entered and paid for, was liable in case of loss to the extent of 
the value mentioned in the notice, or was discharged altogether ; 
whether, notwithstanding the notice, he was liable for a loss by 
negligence, and, if so, what degree of negligence would charge 
him ; what should be sufficient evidence that notice came to the 
knowledge of the employer ; whether it should be left to the jury 
to presume that he saw it in a newspaper which he was accus- 
tomed to read, or observed it posted up in the office where the 
carrier transacted his business ; and, then, whether it was printed 
in large or small letters, and whether the owner went himself or 
sent his servant with the goods, and whether the servant could 
read — these, and many other questions were debated in the courts 
while the public suffered an almost incalculable injury in conse- 
quence of the doubt and uncertainty which hung over this 
important branch of the law. See 1 Bell, Com. 474. After 
years of litigation, Parliament interfered, and relieved both the 
courts and the public, by substantially reasserting the rule of the 
common law. The Statute of 1 Wm. lY., chap. 68, among other 
things enacted: "No public notice or declaration heretofore 
made, or hereafter to be made, shall be deemed^ or construed to 
limit, or in any wise affect, the liability at common law of any 



LIMITATION OF LIABIIITT BY NOTICE. 39 

carriers, but that all and every such carrier shall be liable as at 
common law to answer for the loss or injury of the property, any 
public notice or declaration by them made and given contrary 
thereto, or in any wise limiting such liability, notwithstanding." 
It would seem, then, that the common law of England, as it 
existed up to the time of our Revolution, did not permit a carrier 
to limit his liability by notice. Under the Act of Parliament, 
requiring that stipulations exempting the common carrier from 
his common law liability must be reasonable to be valid, the 
English courts have held that stipulations which would have the 
effect of releasing the common carrier from loss caused by neg- 
ligence were unreasonable and void in tofo, leaving such common 
carrier under his fuU common law liability.' 

If, after a trial of thirty years, the people of Great Britain, 
whose interests and pursuits are not very dissimilar to our own, 
have condemned the whole doctrine of limiting the carrier's lia- 
bility by a notice; if after a long course of legal controversy they 
have retraced their steps, and returned to the simplicity and cer- 
tainty of the common law rule — we surely ought to profit by their 
experience, and should hesitate long before we sanction a practice 
which not only leads to doubt and uncertainty concerning the 
rights and duties of the parties, but which encourages negligence, 
and opens a wide door to fraud. 

The question in Hollister v. Nowlen, from which this quota- 
tion is made, was one of notice — whether the carrier by general 
notice could limit his liability for the luggage of the passenger ; 
and in discussing this question of notice the learned judge fui^ 
ther uses the following pertinent language : "The argument is 
that where a party delivers goods to be carried, after seeing a 
notice that the carrier intends to limit his responsibility, his assent 
to the terms of the notice may be implied. But this argument 
entirely overlooks a very important consideration. Notvrith- 
standing the notice, the owner has a right to insist that the car- 
rier shall receive the goods subject to all the responsibilities 
incident to his employment. If the delivery of goods under such 

^MeManus v. Lancashire & T. B. Co. 4 Hurlst. & N. 327-349; Moore v. 
(ireat Noi-thern B. Co. L. K. 10 Ir. Ch. Div. 95. 



40 LIMITATION OF LIABILITY BY OONTEAOT AND BY STATUTE. 

circumstances authorizes an implication of any kind, the pre- 
sumption is as strong to say the least, that the owner intended to 
insist on his legal rights, as it is that he was willing to yield to 
the wishes of the carrier. If a coat be ordered from a mechanic 
after he has given the customer notice that he will not furnish 
the article at a less price than $100, the assent of the customer 
to pay that sum, though it be double the value, may perhaps be 
implied; but if the mechanic had been under a legal obhgation, 
not only to furnish the coat, but to do so at a reasonable price, 
no such implication could arise." And, referring to the common 
law, he says that "the doctrine that a carrier may limit his respon- 
sibility by a notice was wholly unknown to the common law at 
the time of our Revolution. It has never been received in this, 
nor so far as I have observed in any of the other states.'" 

This subject received also, at the same time, a very careful con- 
sideration in Cole V. Goodwin, 19 Wend. 251, 23 Am. Dec. 470, 
in which the carrier sought to avoid his liability for a trunk of 
the passenger by notice brought home to him that " all baggage 
is at the risk of the owner." 

Judge Cowen, after a very elaborate review of all the common 
law decisions, announced his conclusion as follows : " I therefore 
think the defendants in the case at bar must take the conse- 
■ quences of their obligation as common carriers, notwithstanding 
the notice to the plaintiff. Admitting that the plaintiff acceded 
in the clearest manner to the proposition in the notice that his 
baggage should be carried on the terms mentioned, I think the 
contract thus made was void on his part, as contrary to the plain- 
est principles of public policy. In thus holding, we follow the 
law as it is expressly admitted by the English judges to have 
stood at the period when our ancestors declared themselves inde- 
pendent ; and, while we thus fulfill our constitutional duty, we 
are not, like "Westminster Hall, obliged to lament while we en- 
force the law." 

The doctrine of these cases was extended in Govld v. HUZ, 2 
Hill, 623, in which a majority of the court held that " common 

' HoUister v. Nowlen, 19 Wend. 248, 33 Am. Dec. 455. 



LIMITATION OF LIABILITY IN PAKTICULAE INSTANCES. 41 

carriers cannot limit their liability or evade the consequences of a 
breach of their legal duties as such, by an express agreement or 
special acceptance of the goods to be transported." In Moses v. 
Boston db M. R. Co. 24 IST. H. 90, 65 Am. Dec. 222, the court 
adhere to the rule that the legal responsibility of a common car- 
rier cannot be discharged by a public notice.' 

§ 12. Limitation of Liability in Particular In- 
stances. 

The court of appeals of New York" denies the doctrine 
of Go^dd V. Hill, 2 Hill, 623, and says : " That a carrier 
may, by express contract, restrict his common law liabil- 
ity, is now a well established rule of law ;" citing English and 
American cases. The case of Dorr v. New Jersey Steam Nwo. 
Co. was one of carriage of merchandise in which the car- 
rier sought, by notice contained in the bill of lading, to limit its 
liabihty as to fire, accidents, etc., holding itself liable only " for 
ordinary care and diligence.'" And the validity of an express 
contract between the owner of goods and a carrier, limiting the 
general responsibility of the latter, is, in some courts, recognized.' 
A special contract between the owner of goods and a common 
carrier, limiting the strict common law liability of the latter, has 
been held valid.* But without an express contract the law gov- 

' See also Jones v. Yoorhmi, 10 Ohio, 145; Vish v. OTiapman, 3 Ga. 349, 46 Am. 
Dec. 393; Wyld v. Piclcford, 8 Mees. & "W. 443; Hinton v. DibUn, 2 Q. B. 
646. See also chapter V. § 34. 

>Do7T V. New Jersey Steam Nam. Co. 11 N. T. 485, 63 Am. Dec. 125; affirm- 
ing the doctrine of EoUister v. Nowlen, 19 Wend. 234, 32 Am. Dec. 455, 
and Cole v. Goodwin, 19 Wend. 261, 82 Am. Dec. 470. 

• See also Parsons Y.Monteath, 18 Barb. 353; Mercantile Mut. Ins. Co. v. Chase, 
1 E. D. Smith, 115; Austin v. Manchester, S. & L. R. Co. 11 Bng. L. & Eq. 
506; Peek v. North StaffordsUre B. Co. 10 H. L. Gas. 473, 494. 

*EimbaU v. Rutland tS> B. B. Co. 26 Vt. 256, 62 Am. Dec. 567; Pennsylvania 
B. Co. V. Baiordon, 119 Pa. 577; Wallace v. Matthews, 39 Ga. 617, 99 Am. 
Dec. 478; Beno v. Hog'an, 12 B. Mon. 68, 54 Am. Dec. 518; Boberts v. BUey, 
15 La. Ann. 103, 77 Am. Dec. 183; Mobile & 0. R. Co. v. Weiner, 49 Miss. 
725; American Exp. Co. v. Sands, 55 Pa. 140; Camden & A.B. Co. v. Bald- 
auf, 16 Pa. 67, 55 Am. Dec. 481; Falkenau v. Fargo, 55 N. Y. 642; Walkffr 
V. NewTork & N. M. B. Co. 3 Car. & K. 279; Bim v. Great Northern B. Co. 
26 Bng. Ji. & Eq. 297; Crouch v. Londmi & N. W. B. Co. 14 C. B. 297. 

'Davidson v. Graham,, 2 Ohio St. 131; Nicholson v. Willan, 5 East, 507; Grace 
V. Adam*, 100 Mass. 505, 1 Am. Kep. 131, 97 Am. Dec. 117; Derwort v. 
Loomer, 21 Conn. 246. 



42 LIMITATION OF LIABILITY BT CONTEACT AND BY STAT0TE. 

erning common carriers both in England and America, is to-day 
as substantially as laid down by Lord Holt in the year 1703,. that 
" The law charges this person, thus intrusted to carry goods, against 
all events but the acts of God and the public enemy.'" As 
has been shown by the common law of England and America 
before the Declaration of Independence, recognized by the weight 
of English authorities for half a century afterwards, and upheld 
by decisions of the highest courts of many states of the Union, 
common carriers could not stipulate for immunity for their own 
or their servant's negligence. However particular such a con- 
tract might be in its terms, it could only have the effect of re- 
ducing the liability of a common carrier to that of a private car- 
rier for hire, who is bound to the use of ordinary care." 

The English Railway & Canal Traffic Act of 1854 (Stat. 17 & 
18 Vict. chap. 31, § 7) declaring void all notices and conditions 
made by those classes of common carriers, except such as should 
be held by the court or judge before whom the case should be 
tried to be just and reasonable, is to a substantial degree a return 
to the rule of the common law.' 

To protect themselves against the hardship of a rule of law 
which requires them to do a particular thing, whether or not that 
thing be possible to accomplish by the use of all diligence and 
every agency available to them, common carriers have adopted 
the custom of receiving and transporting freight under special 
contract. They are, with exceptions, as in New York and West 
Yirginia,* liable in any case for damages resulting from their neg- 
ligence, under the decided weight of authority.' But they 

' 19 Cent. L. J. 164; Wabash, St. L. & P. B. Co. v. Bladk, 11 111. App. 465; 
DaMi)on\. St. Louis, K. C. &N. B. Co. 76 Mo. 514; Moore v. OreatNorthem 
B. Co. L. R. 10 Ir. Ch. Div. 95. 

^New Jersey Steam Nav. Co. v. Merchants Bank of Boston, 47 U. S. 6 How. 
344, 12 L. ed. 465: Lyon v. MeUs, 5 East, 428; Wyld v. IHckford, 8 Mees. & 
W. 442; Einton y. Dibbin, 2 Q. B. 646; Thomas v. Boston & P. B. Corp. 10 
Met. 473, 43 Am. Dec. 444; Pennsylvania B Co. v. McCloskey, 23 Pa. 526; 
Powell V. Pennsylvania B. Co. 32 Pa. 414, 75 Am. Dec. 564; Welsh v. Pitts- 
burg, Ft. W. <£ C. B. Co. 10 Ohio St. 65, 75 Am. Dec. 490. 

» Brown v. Manchester, S. & L. B. Co. L. R. 10 Q. B. Div. 230; Peek v. il/ertt 
Staffordshire B. Co. 10 H. L. Gas. 473, 493; McAndrews v. Electric TeUo. Oo. 
33 Bng. L. & Eq. 180, 185. 

* Zouch v. Chesapeake & 0. B. Co. 17 L. R. A. 116, 36 W. Va. 524. 

' Laing v. Colder, 8 Pa. 479, 49 Am. Dec. 533; Camden & A. B. Co. v. Baldauf, 



LIMITATION OF LIABILITY IN PAETICtJLAE INSTANCES. 43 

are not liable, under such contract, for damages resulting from 
delay occasioned by any cause beyond their power to control 
by the use of all means reasonably available to them.' This 
exemption from liability for damages so occasioned is avail- 
able to the carrier whether the contract of shipment be inter- 
state, or whether it is to be performed wholly within the state.'' 
In the language of Mr. Justice Strong, in the opinion of the 
Supreme Court of the United States in the case of Southern Exj). 
Go. V. Cald/well, 88 U. S. 21 Wall. 264, 22 L. ed. 656: "Not- 
withstanding the great rigor with which courts of law have always 
enforced the obligations assumed by common carriers, and not- 
withstanding the reluctance with which modifications of that re- 
sponsibility imposed upon them by public policy have been 
allowed, it is undoubtedly true that special contracts with their 
employers limiting their liability are recognized as valid if, in the 
judgment of the court, they are just and reasonable — if they are 
not in conflict with sound legal policy.'" 

16 Pa. 67, 55 Am. Dec. 481; Ooldey v. Pennxylmnia B. Co. 30 Pa. 243, 72 
Am. Dec. 703; Pennsylvania R. Co. v. Henderson, 51 Pa. 315; Farnham v. 
Camden & A. B. Co. 55 Pa. 53; Empire Transp. Qo. v. Wamsutta Oil R. & 
M. B. Oo. 63 Pa. 14, 3 Am. Rep. 515; Knowlton v. Erie R. Co. 19 Ohio St. 
260, 2 Am. Rep. 395; Graham v. Dania, 4 Ohio St. 362, 62 Am. Dec. 285; 
Welsh V. Pittsburg, Ft. W. & G. R. Oo. 10 Ohio St. 65, 75 Am. Dec. 490; Ml- 
Ubrown v. Grand Trunk B. Go. 55 Me. 462, 92 Am. Dec. 606; Sager v. PorU- 
mouth, 8. (SiP.&E. R. Oo. 81 Me. 228, 50 Am. Dec. 659; Michigan S. & N. 
I. R. Go. V. Meaton, 37 Ind. 448, 10 Am. Rep. 89; Adams Eap. Go. v. Fen- 
drick, 38 Ind. 150; Ohio & M. R. Co. v. Selby, 47 Ind. 471, 17 Am. Dec. 719; 
School District in Medfield v. Boston, H. & E. B. Oo. 102 Mass. 552, 3 Am. 
Rep. 502; Adams Exp. Go. v. Steitaners, 61 111. 184, 14 Am. Rep. 57; Wash- 
vUU & O. B. Go. V. Jackxon, 6 Heisk. 271 ; Ketehum, v. American Merchants 
U. Eocp. Go. 62 Mo. 390; New Orleans Mut. Ins. Oo. v. N&w Orleans, J. & 
G. N. R. Oo. 20 La. Ann. 302; Southern Exp. Go. v. Moon, 39 Miss. 822; 
Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; Berry v. Cooper, 28 Ga. 
543; Swindler v. Milliard, 3 Rich. L. 286, 45 Am. Dec. 732; Flinn v. PJdla- 
delphia, W. & B. R. Oo. 1 Houst. (Del.) 469. 

' Gulf, 0. & S. F. R. Oo. V. Lem, 76 Tex. 337; Lake Shore & M. S. R. Go. v. 
Bennett, 89 Ind. 475, 6 Am. & Eng. R. Gas. 391; Bartlett v. Pittsburg, G. 
& St. L. B. Oo. 94 Ind. 281, 18 Am. & Eng. R. Gas. 549. 

» Gulf, 0. & S. F. B. Go. V. Gatewood, 10 L. R. A. 419, 79 Tex. 89. 

' This opinion, last above cited, was delivered in October, 1874, and scarcely 
more than substantially followed the earlier ones of York Mfg. Go. v. Illi- 
nois Gent. B. Go. 70 U. 8. 3 Wall. 107, 18 L. ed. 170, and Mw Fork Cent. 
B. Go. V. Lockwood, 84 U. 8. 17 "Wall. 357, 21 L. ed. 627; see Louisville & 
N. B. Go. V. Gi^ert, 7 L. K. A. 163, 88 Tenn. 430. 



44: LIMITATION OF LIABILITY BY CONTEAOT AND BY STATUTE. 

§ 13. Release of Liability Must Rest upon a, 
Consideration. 

Where a distinct option is given, under which the consignor 
may ship his goods under the ordinary liability of the carrier, or 
he may secure a cheaper rate by waiving all liability whatever, 
except for willful misconduct, the contract in England has been 
held efEective.' So, in England, a contract proposed by a car- 
rier, which seeks to release all liability, to the exclusion of any 
contract at a different rate, which wiU reserve the consignor's 
rights, has been held to be unreasonable." 

In Brown v. Manchester, S. & L. R. Co., it was said by Brett 
and Bagallay, L. JJ., that the condition extending to wiUful 
misconduct and exempting from all liability whatever, cannot be 
reasonable, and in Ashsnden v. London, B. <& S. G. B. Co., 42 
L. T. N. S. 586, it was held that the giving of an option would 
not render such a contract valid. By the carrier's act of 1830, 
Parliament declared that carriers should not be liable for loss or 
injury to certain goods above the value of ten pounds, unless their 
value be declared and an increased charge paid. These articles 
included gold or silver in coin, or manufactured or unmanufac- 
tured state bank notes, title deed, engravings, glass, china and 
silks, whether contained in any parcel, either to be carried for 
hire, or upon the person of any passenger. The act applies only 
where the loss takes place on land.' 

The statement that a common carrier may, by contract, limit its 
common law liability except where it is guilty of negligence has 
been made in a multitude of cases, and this has been repeatedly 
declared to be a well established doctrine. But a careful exami- 

' Broten v. Manchester, 8. & L. B. Oo. 10 Q. B. Div. 250, L. R. 8 App. Cas. 

703; Lewis v. Great Western B. Co. L. R. 3 Q. B. Div. 195: Simons y. Grtat 

Western B. Co. 36 L. J. 0. P. 25. 
' Brown v. Manchester, 8. & L. B. Go. supra; MeManus v. Lancashire & T. 

B. Co. 28 L. J. Exch. 353; Gregory v. West Midland Co. 38 L. J. Exch. 155; 

Allday v. Great Western B. Co. 84 L. J. Q, B. 5, 5 Beat. & S. 908; McGance 

V. London <& JV. W. B. Co. 31 L. J. Exch. 65; Booth v. Jfm-th Eastern B. Go. 

L. rs. 2 Exch. 173, 36 L. J. Exch. 83; Feek v. Mrth Staffordshire B. Co. 32 

L. J, Q. B. 241. 

« LeCouteur v. London & 8. W. B. Go. 85 L. J. Q. B. 40, L. R. 1 Q B. 54; Box- 
endale v. Great Eastern B. Co. 4 Q. B. 244, 38 L. J. Q. B. 137. 



EELBASE OF LIABILITY MUST BEST UPON A C0N8IDEEATI0N. 4:5 

nation of the numerous cases in which this doctrine has been laid 
down shows that in them the question of right to refuse the ship- 
per an option to pay to liave his goods carried without any Umi- 
tation of the carrier's liabihty at reasonable rates was not pre- 
sented.' 

A limitation of liability in the bill of lading will not control 
where the damage is an effect of the carrier's negligence and 
where it does not appear that the limitation was in consideration 
of a lower rate of freight." Or a carrier does not prove this fact 
on the trial." A carrier cannot wholly exempt himself from lia- 
bility for negligence, but may, by special contract fairly made 
with the shipper and signed by him in consideration of a reduced 
freight charge, restrict his liability for loss, even through his 
prima facie negligence, to a valuation fixed by the agreement.* 
A limitation of the liability of a carrier, to a specified amount, 
for property carried at a reduced rate, is valid.' 

It is not every special contract that is effective. To be valid, it 
must be fairly obtained, founded upon a consideration, and be 
just and reasonable.' The shipper should have the alternative of 

• Among the many such cases are the following: Dorr v. New Jersey Steam 

Na/B. Co. 11 N. T. 485, 63 Am. Dec. 125; Fibel v. Limngston, 64 Barb. 179; 

Parsons v. Monteaih, 13 Barb. 353; Stoddwrd v. lang Island B. Go. 5 Sandf. 

180; Moore v. Evans, 14 Barb. 524; Pennsylvania R. Co. v. Maiordon, 119 

Pa. 577; Grogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360; Van 

jBchaaek v. Northern Transp. Co. 3 Biss. 394; Indianapolis, D. & W. R. Co. 

V. ForsytJie, 4 Ind. App. 326; Adams Exp. Co. v. Fendriek, 38 Ind. 150; 

Cooper V. Berry, 21 Ga. 526; Kalbnan v. United States Exp. Co. 3 Kan. 805; 

Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Ohris- 

tenson v. American Exp. Co. 15 Minn. 270, 2 Am. Rep. 122; Davidson v. 

Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 363, 62 Am. Rep. 

285; Baltimore & 0. R. Co. v. SkeeU, 3 W. Va. 556. 
» Adams Exp. Co. v. Harris, 7 L. R. A. 214, 120 Ind. 73. 
» LouisvUle & N. R. Co. v. SoweU, 90 Tenn. 17, 9 Ry. Corp. L. J. 385. 
*Zouch V. Cliesu/peake & 0. R. Co. 17 L. R. A. 116, 36 W. Va. 524. 
^Zimmer v. New York Cent. & H. B. R. Co. 43 N. T. S. R. 63; Museir v. Hol- 
land, 17 Blatchf. 413; Earnest v. .ScpreM Co. 1 Woods, 578; Hopkins v. 

Westcott, 6 Blatchf. 64; Oppenheimer v. United States Exp. Co. 69 111. 63; 

South & Nmth Ala. R. Co. v. Henlein, 52 Ala. 606, 56 Ala. 368; Harvey v. 

T&rre Haute & I. R. Co. 74 Mo. 538. 
*LouiawMe & N. B. Co. v. Gilbeirt, 7 L. R. A. 162, 88 Tenn. 430; New York 

Cent. R. Co. v. Loekwood, 84 U. S. 17 Wall. 357, 21 L. ed. 627; Hart v. 

Pennsylvania R. Co. 112 U. S. 338, 28 L. ed. 720: Mwrr v. Western U. 

Teleg. Co. 85 Tenn. 542; Merchants Dispatch Tramsp. Co. v. Bloch, 86 Tenn. 

397. 



46 LIMITATION OF LIABILITY BY COMTBAOT AND BY STATUTE. 

sliipping under the common law liability, or a less or restricted 
liability, at his option." A condition to be reasonable must be 
coupled with compensating advantages. It may not contravene 
public policy.' It must be fairly obtained.' In numerous other 
cases where a limitation of liability by contract is held to be 
allowable, the report shows that there was, in fact, a considera- 
tion therefor in a reduction of rates, although this was not ex- 
pressly mentioned by the court as a reason for the decision.' 
The English doctrine, until it was modified by an act of Parliar 
ment, is generally said to be that the carrier may limit his liabihty 
to any extent by contract ; but that the English decisions to this 
effect do not mean to free the carrier from liability to carry the 
goods without limitation of liability on reasonable terms, clearly 
appears by examination of them. Thus, in Harris v. Packwood, 
3 Taunt. 271, in which a special acceptance limiting liability was 
held allowable, the court says that carriers " wiU not be insurers 
unless paid according to value," so in Wyld v. Pickford, 8 Mees. 
& "W. 443, it is declared that a carrier is entitled by common law 
to insist upon the full price of carriage, and that he may, if such 
price be not paid, refuse to carry upon the terms imposed by the 
common law and insist upon his own. A common carrier is bound 
to transport for a reasonable remuneration and if he offers to do 
so and at the same time offers to carry on condition that he shall 
assume no liability, and holds forth, as an inducement, a reduction 
of price, or some additional advantage which he does not give to 
those who employ him with a common law liability, the conditions 

' Peek V. North Btaffordshire B. Go. 10 H. L. Cas. 473; L(mw>ille <fc N. B. Go. 

V. Gilbert, supra; Manchester, S. & L. B. Co. v. Brown, L. R. 8 App. Cas. 

703; Seal v. South Devon B. 3 Hurlst. & C. 337; Umrpool & G. W. 

Steam Go. v. Phenix Ins. Go. (" T/ie Montana") 129 U. 8. 397, 32 L. ed. 788. 
' Glayton v. Gorby, 2 Q. B. 819. 
» Booth V. North Eastern B. Co. L. R. 2 Exch. 173. 
*8t. Louis, I. M. & 8. B. Go. v. Weakly, 50 Ark. 397; lUinois Gent. B. Go. v. 

Morrison, 19 111. 136; St. Louis & S. E. B. Co. v. Smuck, 49 Ind. 302; BarU 

Utt V. Pittsburg, O. & St. L. B. Co. 94 Ind. 281; Squire v. New York Cent. 

B. Co. 98 Mass. 239, 93 Am. Deo. 162; Durgin v. American Ex/p. Co. (N. H.) 

9 L. R. A. 453; Baltimore & 0. B. Go. v. Brady, 32 Md. 333; Lowe v. Booth, 

13 Price, 329; Morrison v. Phillipps & 0. Constr. B. Co. 44 Wis. 405, 28 Am. 

Rep. 599; Bichinond <& D. B. Co. v. Payne, 6 L. R. A. 849, 86 Va. 481; 

Louisville & N. B. Co. v. Sowell, 90 Tenn. 17, 9 Ry. & Corp. L. J. 385. 



EELEASB OF LIABILITY MUST BEST UPON A CONSIDERATION. 47 

thus offered are reasonable.' "Where the shipper knew that the 
carrier had two rates, according to the service desired, and he 
chose the lower terms, he must stand to his bargain.' 

The other English cases in which special acceptances, as they 
are termed, limiting liability, are upheld, are not opposed to this 
doctrine; but decisions allowing a restriction of the carrier's liabil- 
ity are clearly to be construed as permitting it only in case of a 
reduction of rates. So, in many American cases where the doc- 
trine is not clearly stated, it is fairly implied. Thus, in Little 
Rock c& Ft. S. jR. Co. v. Cravens, 18 L. K. A. 527, 57 Ark. 112, 
it was declared that a carrier cannot, by special contract, limit its 
common law liability for losses not occasioned by negligence where 
it does not afford the shipper an opportunity to contract for the 
service required without such restriction, even if he makes the spe- 
cial contract without objection or demand for a different one, and 
in Farnham v. Camden & A. R. Co. 55 Pa. 53, in which a limi- 
tation of liability was upheld, the court says : " "We are to pre- 
sume, of course, that the charge for transportation was in propor- 
tion to the risk." And in Judson v. Western R. Corp. 6 Allen, 
486, 83 Am. Dec. 646, the court says : " The carrier has not the 
option to accept or refuse the carriage of the goods at his pleas- 
ure, but the person seeking to have them transported can choose 
whether they shall be carried without any restriction of the 
carrier's duty as prescribed by law." And in I^ew Yorh Mfg. 
Go. V. Illinois Cent. R. Co. 70 U. S. 3 "Wall. 107, 18 L. ed. 170, 
the court says the carrier cannot " coerce the owner to yield as- 
sent to a limitation of responsibility by making exorbitant 
charges when such assent is refused," but that he may "fix a 
rate of charges proportionate to the magnitude of the risks." 
Likewise in Graham v. Damis, 4 Ohio St. 362, 62 Am. Dee. 
285, the court says the carrier is " still regarded as exercising a 
public employment and incapable by any act of his own of lim- 
iting or evading the responsibility which the law attaches to its 
exercise." 

In a few cases the courts have still more clearly and explicitly 

' Peek V. North Staffordshire B. Co. 10 H. L. Cas. 483. 

' Manchester, S. & L. E. Go. v. Brown, L. R. 8 App. Cas. 703. 



i8 LIMITATION OF LIABILITY BY CONTEACT AND BT STATUTE. 

announced the doctrine which may fairly be regarded as underly- 
ing all the decisions, even those in which the general statement of 
the right of a carrier to limit his liability may seem to deny it. 
Thus a condition in a bill of lading which limits the carrier's 
liability is reasonable if coupled with compensating advantages to 
the shipper, and the latter has the alternative of getting rid of the 
condition by paying a reasonably higher freight rate.' A stipu- 
lation by a carrier limiting its liability to a stated sum unless 
the value of the property is disclosed wiU not relieve the car- 
rier from liability, although the shipper refused to state the 
amount, where there was no consideration for the stipulation by 
reduction of charges or otherwise." 

In Atchison, T. <& S. F. R. Co. v. Dill, 48 Kan. 210, it is ex- 
pressly declared that a carrier cannot limit his liability unless the 
contract is freely and fairly made, and that he cannot exact as a 
condition precedent to carrying goods that the shipper shall sign 
a contract limiting or changing the common law liability. Also 
that if the carrier has two rates, one for the common law liability 
and the other for the special contract, the shipper must have real 
freedom in making his selection. So in McMillan v. Michigan 
S. (& JSf. I. B. Co. 16 Mich. 79, 93 Am. Dec. 208, it is said by 
Judge Cooley in the opinion of the court that "subject to reason- 
able regulations every man has a right to insist that his property, 
if of such description as the carrier assumes to convey, shaU be 
transported subject to the common law liability." Again, in 
Olwell V. Adams Exp. Co. 1 Cent. L. J. 186, it is said: "A 
stipulation limiting the common law liability of the carrier in or- 
der to be binding must be based on a special consideration such 
as a lower rate of freight or something equivalent." This is re- 
affirmed in Dillard v. Louisville <& N. R. Co. 2 Lea, 288, decid- 
ing that a lower rate of freight or something equivalent thereto 
will constitute a sufficient consideration for a limitation of liabil- 
ity. So is the decision in Louisville cfe N. R. Co. v. QHb^t, 7 
L. R A. 162, 88 Tenn. 430, that a " fire clause in a bill of lading 

' Louismlle & iV. M Oo. v. Manchester Mills, 88 Tenn. 653: Bichmond & O. B. 

Oo. V. Payne, 6 L. R. A. 84S, t6 Va. 481. 
» Oonover v. Pacific Mp. Oo. 40 Mo. App. 31. 



EBLBASE OF LIABILITY MUST REST UPON A CONSIDEEATION. 49 

exempting the carrier from liability for loss by fire is not valid 
where transportation under the rules of the common law is not 
offered as an alternative and no reduction of rates is made as a 
consideration for the exemption." The same principle in sub- 
stance is announced in Missouri Pac. R. Co. v. Faga/rv, 2 L. R. A. 
75, 72 Tex. 127, holding that a common carrier has no right to 
demand of a shipper a waiver of his rights as a condition prece- 
dent to receiving freight. 

Unquestionably there must be some consideration for a release 
by the shipper, of the carrier from liability which rests upon it 
under the common law. The rule has been stated, that where 
there is no evidence that a consideration was not given for the 
stipulation, a consideration expressed is suificient to support the 
contract ; the court presuming that the carrier probably had rates 
of charges proportioned to the risk they assumed from the nature 
of the goods carried, and that the exception must necessarily have 
effected the compensation demanded.' 

A carrier need not specifically tender a contract omitting the 
limited liability clause, in order to avail itself, in an action for 
damages to stock during transportation, of the defense that it was 
willing and ready to execute a contract with the shipper upon 
terms reasonable to the latter, where it sets up a contract limiting 
its liability to an agreed valuation, as the shipper should demand 
such contract if it prefers it." 

By statute in some places a limitation of a carrier's liability by 
contract is prohibited. Thus in Texas, by Rev. Stat. art. 278, and 
in several other states by similar provisions. And in England 
the Act of Parliament allows only such limitations as shall be 
found by the courts to be " just and reasonable." The same doc- 
trine which seems clearly to underlie the general current of de- 
cisions, appears in cases as to the limitation of the amount of 
liability, as to which, see §§ 50, 51.° 

^Tork Mfg. Co. v, Illinois Cent. B. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170; 

Louisville & N. JJ. Co. v. OAen, 80 Ala. 38; Nelson v. Hudson River R. Co. 

48 N. Y. 498. 
' Louisville & N. R. Co. v. Sowell, 90 Tenn. 17, 9 Ry. & Corp. L. J. 385. 
'Paeiflc Exp. Co. v. Foley, 13 L. R. A. 799, 46 Kan. 457; Georgia Pac. B. Co. 

V. Hugha/ri, 90 Ala. 36; Johnstone v. Bichmond & D. R. Co. 39 S. C. 55. 

4 



50 LIMITATION OF LIABILITY BY OONTEACT AND BY STATUTE. 

As a general rule, and in the absence of frand or imposition, a 
common carrier is answerable for tbe loss of a package of goods, 
though he is ignorant of its contents and though its contents are 
ever so valuable, if he does not make a special acceptance. But 
if the shipper is guilty of fraud or imposition, he destroys his 
claim to indemnity.' 

"Where the contract of carriage signed by the shipper is fairly 
made, agreeing on a valuation with the rate of freight based on 
the condition that the carrier assumes liability only to the extent 
of the agreed valuation, even in case of loss or damage by the 
negligence of the carrier, the contract •will be upheld as a proper 
and lawful mode of securing a due proportion between the amount 
for which the carrier may be responsible and the freight he re- 
ceives, and of protecting himself against extravagant and fanciful 
valuations." 

§ 14. Denial of Eight to Contract Against JVegU- 

gence. 

"While it is true that in some of the states the carrier may con- 
tract against its own negligence, as appears by the review of the 
authorities in Kay on Negligence of Imposed Duties, Passenger 
Carriers, § 80, yet the ancient rule is recognized in almost all of the 
courts that a carrier cannot contract against its own want of dili- 
gence.' "While it ifi admitted in some of the states that a carrier may 

' Hart V. Penmylmnia B. Co. 113 TJ. S. 331, 28 L. ed. 717, citing 3 Kent, 
Com. 603; Belfx. Ba/pp, 3 Watts & S. 31, 37 Am. Dec. 528; Dunlap v. In- 
ternational B. B. Co. 98 Mass. 317; NewTork Gent. & H. B. B. Go. v. Fror 
hff, 100 U. S. 24, 25 L. ed. 531; Gibbon v. Paynton, 4 Burr. 2298; Baimn 
V. Donovan, 4 Bain. & Aid. 21. 

*Mu3er V. Holkmd, 17 Blatchf. 412; Earnest v. Expess Go. 1 "Woods, 573; Eap- 
hin^ V. Westcott, 6 Blatchf. 64; QppenTteimer v. United States Exp. Go. 69 111. 
63; South d North Ala. B. Co. v. Henlein, 53 Ala. 606, 56 Ala. 868; fionwy 
V. Tm-e Saute & I. B. Co. 74 Mo. 538. 

« Boehl V. Chicago, M. & St. P. B. Co. 14 Minn. 191; Chicago & N. W. B. Co. 
V. Chapman, 8 L. R. A. 608, 133 111. 96; Welch v. Boston & A. B. Go. 41 
Conn. 333; Camp v. Hartford <& K T. S. B. Co. 43 Conn. 383; School JM. 
in Medfield v. Boston, H. & E. B. Co. 103 Mass. 552, 8 Am. Rep. 502; New 
York Cent. B. Co. v. Lockwood, 84 U. S. 17 Wall. 857, 31 L. ed. 627; In- 
dianapolis, P. & C. B. Go. V. Alkn, 31 Ind. 394; WMi v. Pittslmrg, Ft. W. 
& G. B. Co. 10 Ohio St. 65. 75 Am. Dec. 490; Bhodes v. LouisviUe & F. B. 
Co. 9 Bush. 688. 



DENIAL OF EIGHT TO OONTEACT AGAINST NEGLIGENCE. 51 

stipulate upon a sufficient consideration for exemption from lia- 
bility for the ordinary negligence of its servants — yet, this ex- 
emption will not be extended to an act of positive misfeasance. 
It need not necessarily be intentional wrong-doing, to prevent its 
excusing from responsibility, but it must be an affirmative act, 
not merely ordinary neglect in the course of the bailment, nor 
the omission of ordinary care in the safe keeping and carriage of 
the goods.' A carrier may, by special contract, free himself from 
many common law liabilities, although not from his own fraud or 
negligence." A common carrier is an insurer of property, and his lia- 
bility is not limited by the fact that the property was not loaded 
by the owner, or that the owner accompanies it.' 

From the cases from the various state courts except, perhaps, 
in New York* and West Yirginia, it would seem that a common car- 
rier cannot be exempted, by contract, from liability for loss of goods 
from his own negligence or that of his servants ; he can limit his 
liability only as an insurer of transportation as to every cause of 
injury except that arising from his own want of care," and become 
thus subject to the laws of bailment only." 

The apparent contradiction of this doctrine, as contained in 
HoA't V. Permmjhoania R. Go. 112 U. S. 331, 28 L. ed. 717, 
which Grogcm v. Ada/ins Exp. Co. 114 Pa. 523, refused to follow 
is referable to the fact that the shipper in that case was estopped 
by his own act. A common carrier cannot contract against lia- 
bility from loss from his own ordinary negligence. Such a con- 
dition is void as against public policy.' It cannot, by special con- 
tract, limit its liability so as to exempt it from responsibility for 
losses occasioned by its negligence.^ 

> Magnin v. Dinsmore, 70 N. Y. 410, 26 Am. Rep. 608. 

' Terre HomU & I. B. Go. v. Bherwood, 17 L. R. A. 339, 133 Ind. 129; Oal- 

veaton, H. & S. A. B. Co. v. Pa/rsley (Tex. Civ. App.) Jan. 3, 1894. 
"Hannibal & St. J. B. Co. v. iSwift, 79 U. S. 13 Wall. 363, 30 L. ed. 433. 
*Spinetti V. Atlas 88. Co. 80 N. Y. 71, 36 Am. Rep. 579; Cragin v. Mw rork 

Cent. B. Co. 51 N. Y. 61, 10 Am. Rep. 559; Poucher v. New York Cent. B. 

Co. 49 N. Y. 263. 
^Fwrnham v. Camden & A. B. Co. 55 Pa. 53; Pennsylvania B. Co. v. Baior- 

don, 119 Pa. 577. 
' Amei'icam, Mxp. Co. v. 8ands, 55 Pa. 140. 
' Indianapolis, P. & C. B. Co. v. Allen, 31 Ind. 894. 
« Johnstone v. Bichmond & D. B. Co. 39 S. C. 55. 



52 LIMITATION or LIABILITY BY CONTEACT AND BY STATUTE. 

The right of a carrier to limit its common law liability by 
special contract does not extend to acts which result from its 
negligence or the negligence of its employes.' It may, by special 
contract, limit its liability to the owner of stock or goods, so long 
as the limitation does not relate to its liability for negligence or 
misconduct.' ISTor can it limit its liability for the negligence of 
its employes by stipulating that those furnished to assist the 
shipper in loading and unloading freight shall be the employes of 
the latter.' A carrier cannot limit its liability for its own neg- 
ligence by contract, either as to the right or the amount of re- 
covery.' Nor can a common carrier in Colorado provide by 
contract against liability for its negligence.' It cannot restrict its 
liability for damages for its own negligence to less than the true 
value of the property by a provision that in case of loss the value 
at the place of shipment shall be the measure of damages ;' and a 
stipulation limiting the liability of a common carrier for the loss 
of goods delivered to it for transportation is void where it does 
not provide for full payment in case of its negligence.' An ex- 
press stipulation by any common carrier for hire, in a contract 
of carriage, that he shall be exempt from liability for losses 
caused by the negligence of himself or his servants, is unreason- 
able and contrary to public policy, and consequently void.' To 
be valid, a contract restricting a carrier's liability must be fairly 
obtained, just and reasonable.' The authorities almost universally 
concede the carrier's liability for losses accruing through his gross 
negligence under a contract that property shall be transported at 

' Louisville, N. A. & O. B. Co. v. Fayhr, 126 Ind. 126: Durqin v. American 

Exp. Go. (N. H.) 9 L. E. A. 453. 
*Al4Shison, T. <Sb 8. F. B. Co. v. Temple, 13 L. R. A. 362, 47 Kan. 7. 
'Missouri- Pac. B. Co. v. Smith, 84 Tex. 348. 
*Boehlv. Chicago, M. & St. P. B. Co. 44 Minn. 191, 45 Am. & Eng. R. Cas. 

351; Hutchinson v. Chicago, St. P. M. & 0. R. Co. 37 Minn. 534 
» Union Pac. B. Co. v. Bainey (Colo.) Dec. 4, 1893. 
« Fort Worth & D. C. B. Co. v. Oreathouse, 82 Tex. 104. 
' Galveston, H. & S. A. B. Co. v. Bail, 80 Tex. 603. 
8 Liverpool & G. W. Steam Co. v. Phenia Ins. Co. ("The Montana") 139 U. S. 

397, 33 L. ed. 788. 
• Louisville c£ M. B. Co. v. Gilbert, 7 L. R. A. 162, 88 Tenn. 430. 



EEFUSAL or FJSDMBAL COLETS TO EEC06NIZE COMTEACTS. 53 

the owner's risk,' and nnlesB in the excepted courts a common 
carrier cannot, even by express contract, exempt itself from liar 
bility from gross negligence or willful misconduct." 

§ 15. Refusal of Federal Courts to Recognize Con- 
tracts Releasing Liability for Jfegligence. 

On the question of the right of a carrier of goods or passengers 
by land or water, to stipulate for exemption from all liability for 
his own negligence, as in any question depending upon mercan- 
tile law and not upon local statute or usage, it is well settled that 
the courts of the United States are not bound by decisions of the 
courts of the state, but will exercise their own judgment, even 
when their jurisdiction attaches only by reason of citizenship of 
the parties in an action at law, of which the courts of the state 
have concurrent jurisdiction, upon a contract made and to be 
performed within the state." Upon a New York contract ex- 
empting a carrier from liability for negligence, the Circuit Court 
of the United States for the New Tork District is not bound to 
hold the exemption valid because of the decisions of the New 
York courts,' A stipulation in a charter or bill of lading for 
the adoption of the law of a foreign country, by which a carrier 
may be exempted from responsibility for negligence, is invalid in 
United States courts." And a provision of a bill of lading exempt- 
ing the ship from liability for damage caused by negligence will not 
be enforced by the United States courts, although the bill of lading 

' Oanjield v. Baltimore & 0. R. Co. 93 N. Y. 532, 45 Am. Rep. 268; Moore v. 
Evans, 14 Barb. 524; Wells v. Steam Noa). Co. 8 N. T. 380; French v. Buf- 
falo, N. Y. & E. B,. Go. 4 Keyes, 113; Higgina v. New Orleans, M. & 0. B. 
Co. 28 La. Ann. 183; Erie B. Go. v. WUcox, 84 111. 239, 25 Am. Rep. 451; 
Toledo, W. & W. B. Go. v. Beggs, 85 111. 80, 28 Am. Rep. 613; Arnold v. 
lUinois Gent. B. Go. 83 111. 273, 25 Am. Rep. 386. 

» Chicago & N. W. B. Go. v. Chapman, 8 L. R. A. 508, 133 111. 96. 

'Liverpool & Q. W. Steam Go. v. Phenix Ins. Go. {"The Montana") 129 U. S. 
897, 32 L. ed. 788; MyricTcv. Michigan Cent. B. Go. 107 U. 8. 102, 27 L. ed. 
335; Carpenter v. Providence Washington Ins. Go. 41 U. 8. 16 Pet. 495, 571, 
10 L. ed. 1044, 1078; Brooklyn City & N. B. Co. v. National Bank of New 
Torle, 103 U. B. 14, 36 L. ed. 61; Burgess v. Seligman, 107 U. 8. 20, 37 L. 
ed. 359; Smith v. Alaiama, 124 U. S. 465, 478, 31 L. ed. 508, 513; Bucher 
V. Clieshire B. Co. 125 Mass. 555, 583, 31 L. ed. 795, 798. 

*New Tork Gent. B. Co. v. Lockwood, 84 U. S. 17 "Wall. 357, 21 L. ed. 627, 

5 The Energia, 56 Fed. Rep. 124. 



54: LIMITATIOH OP LIABILITY BY OONTBACT AND BY STATUTE. 

provides that the contract shall be governed by the laws of the 
flag of the ship, and by such law such provision is valid.' 

% 16. When- Exemption iy Contract Permitted, 
Exception Must he Clear and Explicit. 

There is no public policy which prevents the carrier from as- 
suming enlarged liabilities ; indeed he may by contract become an 
absolute insurer. But, the same rule applies when the liability of 
the carrier is extended, that is enforced where he seeks to restrict 
his common law liability. There must be shown, in either case, 
a distinct contract expressed in clear and unmistakable terms.' 
There is no public policy, requiring exemptions from legal lia- 
bihty on the part of carriers to be sustained as far as possible.' 
The liability of common carriers as such is properly regulated 
by law and not by the contract of the carrier. Some courts, not- 
ably those of New York, hold as the English courts had come to 
hold before the Act of Parliament, that the common carrier may 
stipulate for total exemption from his common law liability as a 
carrier, but the New York court has expressed its regret over the 
adoption of that rule' and await the consideration of the legisla- 
ture to remedy it. The validity of a contract exempting a carrier 
from liability for negligence of its servants does not depend alone 
upon its granting reduced rates in consideration thereof; but its 
agreement to perform services respecting the goods is sufficient 
consideration therefor. A carrier is exempted from hability for 
the negligent stowage of oil in the same compartment with furs, 
in consequence of which the latter are damaged by a clause of the 
bill of lading exempting it from liabihty f or "injury from cor- 
ruption, frost, decay, stowage ... or from any act or omis- 
sion, negligence, default, or error in judgment of the pilot, master, 
mariners, engineers, stevedores, or other persons in the service of 
the ship's owners.'" 

' Lewiaohn v. National SS. Go. 56 Fed. Rep. 603. 

' ^^a "'• ■2«»'««'i«»-n. 44 N. Y. 94, 4 Am. Rep. 645; Oage v. nireU, 9 Men, 



1 V. Sartford <£ N. T. 8. B. Co. 43 Conn. 840 
«71 N. T. 185, 27 Am. Rep. 28. 
» Eubens v. Ludgate Bill SS. Oo. 48 N. T. S. R. 733. 



WHEN EXEMPTIOH BT CONTBAOT IS PEKMITTED. 55 

Snch courts require the carrier, if he desires to be exempt from 
the results of his negligence, so to state in the contract, " ipsissi- 
mis verMs.'" Every limitation of the responsibility of a common 
carrier should be expressed in each case in unequivocal terms." A 
shipping contract, though made at a reduced rate and pro- 
viding for the exemption of the carrier from liability for its neg- 
ligence, will not exempt it from any kind or sort of negligence 
not specifically and expressly stated in the contract.' A stipula- 
tion in a bill of lading for the shipment of money over a railroad 
and steamship line, that it is to be conveyed " upon said steam- 
ship " with certain limitations of liability, does not apply to its 
conveyance over the railroad.* 

Where general terms of exemption are employed, the special 
risks thereafter enumerated and excepted will limit the general 
exceptions to the class of risks especially mentioned, if such a 
construction can be reasonably placed upon the language em- 
ployed.* If a common carrier may limit his liability by express 
contract, the limitation must be reasonable in itself, and not such 
as to operate as a snare or fraud upon the public' 

Although a carrier of freight and passengers in the state of 
New York may lawfully stipulate for exemption from liability for 
negligence of itself and servants when supported by a good con- 
sideration, such as carrying the goods at the lowest rate made for 
this class of freight,' such stipulation is to be strictly construed, 
and the exemption must be expressed in terms ; and if general 
words of release are used, such construction as will exclude ex- 
emption from negligence must obtain, if the release is not thereby 

' Kennes v. New York Gent. & B. B. JR. Co. 135 N. T. 432; Mynard v. Syra- 
cuse, B. dk N. T. B. Go. 71 N. T. 180, 37 Am. Rep. 28; JSolsapple v. Rome, 
W. & 0. B. Go. 86 N. T. 275; Nicholas v. New York Gent. & B. B. B. Go. 
89 N. T. 370. 

'Bopkinsy. Westeott, 6 Blatchf. 67; PraU v. Ogdemburg & L. C. B. Go. 102 
Mass. 557. 

» Zimmer v. New York Cent. & B. B. B. Co. 42 N. Y. S. R. 63. 

*Bio Ch-ande B. Co. v. (^oss, 5 Tex. Civ. App. 454. 

* Si. Louis & S. B. B. Co. v. Smuek, 49 Ind. 303; Ba/rUr v. Wheeler, 49 N. H. 
9, 6 Am. Rep. 484; EdsaU v. Camden & A. B. & Transp. Co. 50 N. Y. 661. 

« Adams Exp. Co. v. Beagan, 29 Ind. 21, 93 Am. Dec. 383. 

■ Jennings v. Grand Trunk B. Co. 52 Hun, 237. 



56 LIMITATION OF LIABILITY BY CONTEACT AND BY STATUTE. 

rendered inoperative.' A contract releasing a carrier from all 
damage to goods from any cause not the result of collision or cars 
being thrown ofE the track, does not release from liability for 
negligence not resulting in collision or derailment." 

A bill of lading relieving a carrier of perishable goods, gener- 
ally, from all responsibility for delays, wiU not relieve it from lia- 
bility for the delays occasioned by the negligence of its own 
agents and servants where they are not expressly specified.' A 
common carrier which enters into a contract exempting it from 
liability for the negligence of its servants is not thereby exempt 
from liability for its own negligence.* An exception in a bill of 
lading, in regard to liability for injury to cargo of any neglect 
or default of the master, mariners, or others in the service of the 
owners, does not include negKgence of the owners themselves.' 
A shipping contract will not so operate unless the intent is so 
clearly expressed that the shipper could not be misled. It cannot 
be inferred from general words in the contract, such as " damages 
occasioned by delays from any cause or from change of weather.'" 

% 17. Statutes Limiting Power of Carrier to 
Contract against its own Jfegligence. 

In many of the states the power of the carrier to limit its com- 
mon law liability by special contract is restricted by statute or 
entirely denied. A railroad company operating a line of railroad 
in Nebraska is a common carrier, and cannot, under the provis- 
ions of the Constitution, limit its liability as such by special 
agreement with a shipper.' A stipulation in a contract of ship- 
ment, limiting the liability of the carrier to a certain amount in 

> miiott v. New York Gent. & H. B. B. Co. 33 N. Y. S. R. 861; Eenneg v. 

Neruo York Cent. & H. B. B. Co. 125 N. Y. 423, affirming 54 Hun, 143. 
» PTuenix Clay Pot Works v. Pittsburg & L. E. B. Co. 139 Pa. 284. 
» McKay v. New York Cent. & H. B. B. Co. 50 Hun, 563. 

* Weinberg v. National 8S. Co. 25 Jones & S. 586. 
' The Ouildhall, 58 Fed. Rep. 796. 

• Niclwlai V. New York Cent. & H. B. B. Co. 89 N. Y. 370; Canfield v. Balti- 

more & 0. B. Co. 93 N. Y. 533, 45 Am. Rep. 268; Mvnard v. Syracuse, B. 
& N. Y. B. Co. 71 N. Y. 183. 27 Am. Rep. 28. 
' Missouri Poo. B. Co. v. Vandeventer, 3 L. R. A. 129, 26 Neb. 223. 



STATUTES LIMITINa POVVEB OF OABBIEE TO CONTRACT. 57 

case of damage to the property shipped, is not valid and binding 
on the shipper ; and he may recover the damages to which he 
shows himself entitled under the measure of damages fixed by 
law in Texas.' 

And in Texas a statute enacted in 1860 is to the effect that car- 
riers within that state may not " limit or restrict their liability, by 
any general or special notice, nor by inserting exceptions in the 
biU of lading or memorandum given upon the receipt of the goods 
for transportation, nor in any other manner whatever. And no 
special agreement made in contravention of the foregoing pro- 
visions shall be valid." 

A provision limiting the liability of a railway company to its 
own line, in a bill of lading from a railway station in Texas to 
Galveston, in the same state, thence by steamer to Liverpool, pur- 
porting to be a foreign bill of lading and signed by one who signs 
as agent severally for the railway and the steamship companies, 
does not make it a domestic bill of lading so as to bring it within 
Tex. Rev. Stat. art. 278, forbidding carriers between points within 
the state from limiting their common law liability.' 

Since Christenson v. American Exjp. Co., 15 Minn. 270, it has 
been settled by judicial decision in that state that a common car- 
rier cannot exonerate himself by contract from liability for his own 
negligence, and this rule is now recognized by statute.* 

Under section 1308 of the Iowa Code, a contract between a 
railroad company and a shipper of horses, limiting the liability of 
the company for the horses to an amount less than their actual 
value, is invalid. The section of the Iowa Code which provides 
that all contracts by which carriers seek to limit their liability 
shall be declared invalid is not repugnant to the Constitution of 
the United States, as being a regulation of commerce." 

Under the Massachusetts Public Statutes, chap. 112, § 214, a 
railroad company is not liable for goods destroyed by fire while 

^8t. Lauii, A. &T. B. Oo. v. Bobbins (Tex. App.) Dec. 14, 1889. 

* Missouri Pae. B. Go. v. Sherwood, 17 L. R. A. 643, 4 Inters. Com. Rep. 640, 

84 Tex. 135. 
»Gen. Laws, 1885, chap. 188, § 36. 
*E(wtv. GTiicago & N. W. B. Co. 69 Iowa, 485. 
i Missouri Fob. B. Co. v. Morris, 67 Tex. 166; Qulf, O. & S. F. B. Go. v. 

Trawiek, 68 Tex. 314. 



58 LIMITATION OF LIABILITY BY CONTEACT AND BY STATUTE. 

in its possession, under a contract of carriage excepting this risk. 
"Where the goods are in its possession not under such exception 
in the contract, it is liable for their destruction by fire communi. 
cated by locomotives.' 

§ 18. Limitation of Amount of Liability hy Stat- 
ute— Act of Congress. 

The maritime law of the United States, as found in the stat- 
utes, is the same as the general maritime law of Europe. It is 
different from that of Great Britain in this : the former gauges 
the liability of the value of the ship and freight after the loss or 
injury, and the latter by their value before the loss or injury, not 
exceeding fifteen pounds per ton." 

The institution of proceedings in the district court of the 
United States, under the Limited Liability Act of 1851, super- 
sedes the prosecution in other courts of claims for the same losses 
and injuries. The first section of the Act exempts shipowners 
from liability for losses by fire, " unless such fire is caused by the 
design or neglect of such owner or owners." The second section 
relates to the shipping of precious metals and other valuables 
without giving notice of their character and value, and exempts 
the master and owners, in such cases, from liability as carriers.* 

The third section declares that the liability of shipowners for 
embezzlement, loss or destruction of goods on board ship by the 

*NoTE.— "Trinkets," within tlie meaning of U. S. Rev. Stat. § 4281, requir- 
ing shippers of certain articles to give written notice to the carrier of the true 
character and value thereof, include fans and parasols made of delicate and 
expensive materials, ornamented with carving, fragile in construction, and in- 
tended more for ornament than use, although possessing to some extent the 
quality of utility. A lady's shawl made exclusively of Chantilly lace is "lace" 
within the meaning of U. S. Rev. Slat. § 4381, requiring notice to carriers of the 
true character and value of certain articles shipped. Ocean 88 Co y Way. 
20 L. R. A. 123, 90 Ga. 747. 

^Bassett v. Oonneeiieut Biwr B. Go. 145 Mass. 139; Blaisdell v. Gonnecticut 
Biver B. Co. 145 Mass. 182. 

« National 8team Nav. Co. v. Byer {"The 8cotland") 105 U. S 24 26 L ed. 
1001; NewYork &W. 88. Co. v. Mount ("The Benefactor") 103 U S 339 26 
L. ed. 466. 



LIMITATION OF AMOUNT OF LIABILITY BY STATUTE. 59 

master, crew, passengers or others, or for loss or damage by col- 
lision, or for any act, matter or thing, loss, damage or forfeiture, 
done, occasioned or incurred, without privity or knowledge of the 
owner or owners, shall in no case exceed the value of the interest 
of such owner or owners in such ship and the freight then pend- 
ing. Section 4 prescribes the mode of proceedings to be taken 
by freighters and owners for the purpose of apportioning the sum 
for which the owner or owners may be liable amongst the parties 
entitled thereto. The last section declares that the Act shaU not 
apply to the owner or owners of any canal-boat, barge or lighter, 
or other vessel used in rivers or inland navigation.' 

In the words "Any vessel of any description whatsoever, used 
in river or inland navigation," excepting the owner of such vessel 
from the benefit of limitation of liability, given by the Act to 
owners of other vessels, the word " used " means " employed." ' 

The Federal Statutes of 1884:, chapter 121, section 18, did not, 
prior to the statute of 1886, chapter 21, extend the limitation of 
responsibility therein provided for to owners of fishing vessels 
and their actual liabOity remained.' The Limited Liability Act, 
reproduced in Eevised Statutes, § 5282, etc., applied to owners of 
foreign as well as domestic vessels, and acts done on the high seas 
as well as in the waters of the United States, except when a col- 
lision occurs between two vessels of the same foreign nation or 
perhaps of two foreign nations, having the same maritime law.* 
It applies to vessels navigating the high seas between ports and 
places within the same state. ^ It does not release the owners 
from the payment of costs in a district court beyond the amount 
of the stipulation filed therefor, if they appear and make defense, 
or on appeal to the circuit court or from interest in the nature of 
damages occasioned by the appeal.' 

'Providence & N. T. 88. Oo. v. Sill Mfg. Co. 109 U. S. 578, 27 L. ed. 1038, 
reversing 113 Mass. 495, 125 Mass. 292, Field, J., dissenting. 

'Moore v. American Transp. Co. 65 U. S. 24 How. 1, 16 L. ed. 674. 

'Simpson v. Stor;/, 145 Mass. 497. 

^ National Steam Nav. Oo. v. Dyer ("The Scotland") 105 U. S. 24, 26 L. ed. 
1001. 

'Lord V. OoodaU, N. & P. 88. Co. 102 XT. 8. 541, 26 L. ed. 224. 

• TfisWanata v. Atery, 95 U. S. 600, 24 L. ed. 461. 



60 LIMITATION OB LIABILITr BY OONTKAOT AND BY STATUTE. 

The Act of Congress of 1851 limiting the liability of shipown- 
ers, includes collisions as well as injuries to the cargo' and the 
limitation of liability under Eev. Stat. §§ 4282, 4287, in a 
case where a vessel is injured by a collision by causes over which 
it had no control, is applicable to proceedings m rem against the 
ship as well as to proceedings in personam against the owner. 
The limitation extends to the owner of property as well as to 
his person." Under the Act of 1851, the owners of ships and ves- 
sels are not liable for injury by collision occasioned without their 
knowledge beyond the amount of their interest in such ship or ves- 
sel.' The owners of a vessel stranded by negligence of the master 
are entitled to limitation of their liability, under U. S. Eev. Stat. 
§§ 4283-4287, if they were in no way privy to the faults that 
brought about the stranding.* 

The law of limited liability of shipowners applies to cases of 
personal injury and death, as well as to cases of loss of, or injury 
to, property. It extends to liability for every kind of loss and 
injury.' Limited liability may be claimed (1) by way of defense 
to an action, or (2) by surrendering the ship or paying the value into 
court. The latter method is only necessary when the owner de- 
sires to bring aU the creditors claiming damages into concourse 
for distribution.' The right to proceed for limitation of liabiUty is 
not lost or waived by a surrender of the ship to underwriters. Where 
the owner pays into court the amount of his liability it extinguishes 
the claims against the vessel in rem, as well as against him in 
personam. The time at which the amount or value of the own- 
er's interest in a ship and freight is to be determined, is the ter- 
mination of the voyage, in which the loss or damage occurred, 
which is terminated for that purpose when the ship is lost at sea 
or the voyage is otherwise broken up before arriving at the port 

> Norwieh & N. Y. Transp. Co. v. WngU, 80 U. 8. 13 Wall. 104, 20 L. ed. 585. 
^ Place V. Norwiah & N. 7. Ti-ansp. Co. {"The Gity of Norwick") 118 U S 468, 
80 L. ed. 134. 

» TheBaltkrwre v. Bowland, 75 U. 8. 8 Wall. 377, 19 L. ed. 463; The Cayuga 

V. Hoboken Land & Imp. Co. 81 U. 8. 14 Wall. 270, 20 L. ed. 828 
< TAe C% o/Paro, 44 Fed. Rep. 689. 

» Butler V. Boston & 8. BS. Co. 130 U. S. 527, 32 L. ed. 1017. 
« Themmetmn v. WhitwUl, 118 U. 8. 523, 30 L. ed. 156. 



LIMITATION OF AMOUNT OF LIABILITY BY STATUi'E. 61 

of destination.' "Where the offending vessel in a collision did not 
sink in consequence thereof, but was afterwards sunk and wrecked 
in the same voyage by negligent navigation, this was the termi- 
nation of the voyage for fixing the liability of her owners." 
Where a collision occurred by which an offending ship and her 
cargo were sunk at sea, but strippings from the ship were rescued 
before she went down, from which the owners afterwards realized 
several thousand dollars, it was decided, in awarding damages 
against the owners under Revised Statutes, sections 4283-4287, 
limiting liability to the amount of their interest in the ship, that 
the court is not bound to allow interest on the proceeds of the 
wreck, or strippings, but may in its discretion allow interest or 
not. Allowance of interest by way of damages, in cases of col- 
lision and other cases of pure damage, as well as the allowance of 
costs, is in the discretion of the court.' 

This liability of shipowners may be discharged by their surren- 
dering and assigning the vessel and freight for the benefit of the 
parties injured, in pursuance of section 4, although these may 
have been diminished in value by collision or other casualty dur- 
ing the voyage, and, it seems that for their total loss, the owners 
will be entirely discharged. The amount, if insufiicient to pay 
the damages caused, will be apportioned pro rata among the own- 
ers of the injured vessel, and the cargoes of both vessels, in pro- 
portion to their respective losses." 

Insurance is no part of the owner's interest in the ship or 
freight, within the meaning of the law and does not enter into the 
amount for which the owner is held liable.' 

In a case of collision occasioned by the negligence of the offi- 
cers or hands of one of the vessels, without any neglect, privity 
or knowledge of her owner, where such vessel took fire, and sank, 

' PloM V. Norwich & JV. T. Tranap. Co. ("The City of Norwich") 118 U. S. 468, 

30 L. ed. 134. 
' Thommessen v. Whiiwill, supra. 
'National Steam, Nav. Co. v. Dyer {"The Scotland") 105 U. S. 24, 26 L. ed. 

1001. 
'Norwich & N.Y. Trtmsp. Co. v. Wright, 80 U. S. 13 "Wall. 104, 20 L. ed. 585. 
« Thmimessen v. Whitwill, 118 U. S. 523, 30 L. ed. 156; The Bristol, 29 Fed. 

Rep. 867. 



62 LIMITATION OF LIABILITY BY COHTEAOT AUD BY STATUTE. 

with loss of the cargo, and therefore never completed her voyage, 
nor earned any freight, but was afterwards raised by her owner 
and repaired, and being then libeled and seized on behalf of the 
owners of her cargo, was claimed by him and bonded at her then 
value and an answer and a petition for limited liability filed, al- 
though he had received insurance on the ship for loss by fire, and 
he was held entitled to a limitation of liability to the value of his 
interest in ship and freight after she had sunk, under Revised 
Statutes, sections 4282, 4287 (Act of 1851).' 

As between two vessels, both of which are in fault in a collision) 
the statute as to the liability of the owners applies only to a claim 
for one half the difference between their respective losses, that 
being the extent of the owners' liability." 

The amount recovered in a collision suit, whether before limi- 
tation proceedings are commenced or afterwards, and whether ia 
a court of first instance or in an appellate court, will stand as a 
basis for priority of division when the fund is distributed. In 
all other respects, the proceedings for limitation of liability may be 
conducted within the ordinary coui-se.' The subsequent raising 
and repairing of a sunken vessel and giving her increased value 
has nothing to do with the amount of liability. JSTo freight is to 
be estimated in finding the amount except what is earned. The 
appraisement of a vessel upon which she is delivered to claimants 
upon a stipulation for her value in a colhsion suit, does not take 
away the jurisdiction of the court to allow a reappraisement for 
the purpose of fixing her value, in proceedings for limitation of 
liability.' Under the Limited Liability Act (U. S. Eev. Stat. 
§ 4283) the liability of a ship owner for the " freight then pend- 
ing " extends to passage money, and to freight prepaid at the port 
of departure.' 

' Place V. Norwich & N. Y. Tranm. Go. (" 2%s City of Norwich") 118 U. 8. 
468, 30 L. ed. 184. •' ' 

* Reynolds v. Vanderbilt (" ITie North Star") lOS U. S. 17, 27 L. ed. 91. 

'Place V. Norvmh & N. T. Transp. Go. (" The Gity of Norwich") 118 U. 8. 

468, 30 L. ed. 134; New Fork & W. SS. Go. v. Mount f" The Benefactm") 

103 U. S. 247, 26 li. ed. 466. 

«Pfac« V. Norwich & N. Y. Tranap. Co. (" The City of Norwich") 118 U. S. 
468, 30 L. ed. 134. 

' T!ie Main v. Williams, 152 U. S. 132, 88 L. ed. 381. 



LAW OF FLAOE OF OONTEAOT OF AEFBEIGHTMENT. 63 

The owners of a steamer are not relieved from their common 
law liability for failing to use appliances necessary for the protec- 
tion of property on shore, by United States Revised Statutes, sec- 
tion 4491, providing that no kind of instrument, machine, or 
equipment for the better security of life shall be used on any 
steam vessel, which shall not be first approved by designated per- 
sons, as such provision- is made for the benefit of the passengers.' 
The provision of the Act of Congress of Feb. 13, 1893, § 3, in 
terms exempting vessels and their owners from all liabilities what- 
ever if the vessel is seaworthy and properly manned, equipped 
and supplied, must be read with the limitation that it relates only 
to the rights and liabilities of owners and shippers as between 
themselves with respect to the cargo, which are the subjects of 
the Act, and does not abolish all liability and remedy for all 
marine torts of vessels transporting merchandise to and from any 
port in the United States." 

Proceedings taken by the owner of the vessel, by libel or lim- 
ited liability, are a bar to actions commenced to recover damages 
for losses sustained by means of the stranding and sinking of the 
vessel,' and the libelants and intervenors may be restrained from 
collecting or attempting to collect or enforce their respective de- 
crees in any other manner than by the ;pro rata distribution of 
the fund standing by stipulation, in place of the ship and freight.' 

% 19. Law of Place of Contract of Affreightment. 

Any contract of exemption of a common carrier must be proved 
as a matter of evidence, according to the law of the forum.* 
The general rule is that the law of a country where a contract 
is made, governs, as to the nature, the obligation and the inter, 
pretation of it. The parties to the contract, are either the sub- 
jects of the power there ruling, or as temporary residents, owe it 

' Ohsboygan iMrriber Co. v. Delta Tromsp. Co. (Mich.) April 10, 1894. 

» TU Berkshire, 59 Fed. Rep. 1007. 

» Butler V. Boston & 8. 88. Co. 130 U. S. 537, 33 L. ed. 1017. 

*iV"«w York & W. 88. Go. v. Mount (" The Benefactor") 103 U. S. 239, 26 L. 

ed. 351. 
» The GuUdhcai, 58 Fed. Rep, 796. 



64 LIMITATION OF LIABILITT BY CONTEAOT AND BY STATUTE. 

a temporary allegiance. In either case equally, they must be un- 
derstood to submit to the law there prevailing and to agree to its 
action upon their contracts. It is, of course, immaterial that such 
agreement is not expressed in terms. It is equally an agreement 
in fact, presumed de jure / and a foreign court, interpreting or 
enforcing it on any contrary rule, defeats the intention of the 
parties as well as neglects to observe the comity of nations. It 
was accordingly held in Peninsular dSa 0. SteaTn, Na/o. Co. v. 
Shand, 3 Moore, P. C. N. S. 272, 290, Lord Justice Turner de- 
livering judgment in the privy council, reversing the decision of 
the supreme court of Mauritius, that the law of England and not 
the French law in force at Mauritius, governed the validity and 
construction of a contract made in an English port between an 
English company and an English subject, to carry him thence by 
way of Alexander and Suez, to Mauritius ; and containing a stip- 
ulation that the company should not be liable for loss of passen- 
gers' baggage, which the court in Mauritius had held to be invalid 
by the French law. Justice Turner observed that it was a satis- 
faction to find that the court of cassation in France had pro- 
nounced a judgment to the same effect, under precisely similar 
circumstances in the case of a French officer taking passage at 
Hong Kong, an English possession, for Marsailles, in France, un- 
der a like contract, in a ship of the same company, which was 
wrecked on the Eed Sea, owing to the negligence of the master and 
crew." That decision was in accordance with an earlier one of Mr. 
Justice Story, in Pope v. Nickerson, 3 Story, 465, as well as with 
later ones in the privy council, on appeal from the high court of 
admiralty, in which the validity of a bottomry bond has been de- 
termed by the law prevailing at the home port of the ship, and 
not by the law of the port where the bond was given." 

' JvXim V. Peninsular & Oriental Co., imperfectly cited by 3 Moore, P. 0. N. 
S. 382, note, and fully reported in 75 Journal du Palais, 225, 1864. See 
the case of Lloyd v. Guibert, 6 Best & S. 100, L. R. 1 Q. B. 115, decided in 
the Queen's Bench above, and in the Exchequer Chamber, after the de- 
cision in the Privy Council just referred to. 

» TheKarnak L. R. 3 P. C. 505, 512; The Oaetano, L. R. 7 Prob. Div. 137; 
lAvei^ool &G W. S3. Go. v. P/jema Im. Oo. (" Ths Montana") 129 D. S. 

?nA'loo ,n. Vt™,?- ^^^ *'^° ^'"^ WoocOand, 7 Ben. 110, 118, 14 Blatchf. 
499-503, 104 U. 8. 180, 26 L. ed. 705. 



LAW OF PLACE OF CONTEACT OF AFFEEIGHTMENT. 65 

In Chartered Mercantile Bank v. NetKerlam,ds I. S. Nav. Co. 
L. E. 9 Q. B. Div. 118, L. E. 10 Q. B. Div. 521, 529, 536, a bill 
of lading issued in England in the English language to an English 
subject by a company described therein as an English company, 
and registered, both in England and in Holland for goods shipped 
at Singapore, an English port, to be carried to a port in Egypt, a 
Dutch possession, in a vessel with a Dutch name, registered in 
Holland, commanded by a Dutchman and carrying the Dutch flag 
in order to obtain the privilege of trading with Egypt, was held 
to be governed by the law of England and not by that of Hol- 
land, in determining the validity and construction of a clause ex- 
empting the company from liability for the negligence of the 
master and crew ; and Lords Justices Brett and Lindley both con- 
sidered it immaterial whether the ship was regarded as English oi 
Dutch. The general rule is that where a contract is made in one 
country between merchants carrying on business there, but to be 
performed elsewhere, the construction of the contract and all its 
incidents are to be governed by the law of the country where the 
contract is made, unless it is plain to see that the intention of the 
parties was that the law of the country where the contract is to 
be performed, should prevail. A contract for the conveyance of 
cattle from Boston to England, on a British ship, by a British 
company, made in English forms containing exceptions as to perils 
from " the Queen's enemies," must be considered to have been 
made with reference to the laws of England ; and the clause 
therein exempting the carrier for negligence, which are valid ac- 
cording to the English law, will be held valid by English courts.' 
The broad rule is that the law of a country where a contract is 
made presumably governs the nature, the obligation and interpre- 
tation of it, unless the contrary appears to be the express intention 
of the parties. A contract by a carrier limiting its liability for 
damages to freight shipped, from any cause whatever, to the val- 
uation agreed upon, made in the District of Columbia in regard 
to goods shipped from Washington to a point in another state, 
and valid in that district, is valid everywhere." 

'ife Missouri 88. Go. (Eng. Ct. App.) 7 Ry. & Corp. L. J. 5. 
^FairchUd v. Philadelphia, W. & B. E. Co. 148 Pa. 537. 
5 



66 LIMITATION OF LIABILITY BY OONTKACT AND BY STATUTE. 

"Where a bill of lading was made and dated in New York, and 
signed by the ship's agent there, acknowledging that the goods 
have been shipped " on the company's steamship called ' Montana' 
now lying in the port of New York, and bound for the port of 
Liverpool," and are to be delivered at Liverpool ; containing no 
indication that the owners of the steamship are English, or that 
their principal place of business is in England, the only descrip- 
tion of the line of steamships or of the place of business of their 
owners being in a memorandum in the margin as follows: 
" Guyon Line of U. S. Mail Steamers, New York, 29 Broadway; 
Liverpool, 11 Rumford St.," with a reservation of liberty in case 
of interruption of the voyage " to tranship the goods by another 
steamer," which would permit transhipment into a vessel of an- 
other line, English or American, the general average to be computed 
not by any local law or usage, but " according only to Antwerp 
rules," which are the rules drawn up in 1864: at York in England, 
and determined in 1877 at Antwerp in Belgium, at the intemar 
tional conference of representatives of the more important mer- 
cantile associations of the United States, as well as of the mari- 
time countries of Europe (Lown. Av. 3d ed. App. 9) it was 
held, that the contract, being made at New York, the shipowner 
having a place of business there, and the shipper being an Amer- 
ican, both parties must be presumed to have submitted themselves 
to the law there prevailing, and to have agreed to its action upon 
their contract. The contract was held a single one, and its prin- 
cipal object, the transportation of goods, to be one continuous act, 
to begin in the port of J^few York, to be chiefly performed on the 
high seas, and to end at the port of Liverpool. The facts that 
the goods are to be delivered at Liverpool, and the freight and 
primage therefor payable there in sterling currency, did not make 
the contract an English contract or refer to the English law the 
question of the liability of the carrier for the negligence of the 
master and crew in the case of a breach,' 

' Peninmiliw <fe 0. Sleam Nov. Co. v. Shand, 3 Moore P. G. N. S. 272, 290; 
Lloyd V. Guibert, 6 Best & 8. 100, L. R. 1 Q. B. 115; Chartered MerearUile 
Bank of India v. Netherlands I. 8. Nod. Uo. L. R 9 Q B Div. 118, and 
L. R. 10 Q B. Dly. 521. 



LAW OF PLACE OF OONTEAOT OF AFFEEIGHTMBMT. 67 

It was held also that there was even less ground for holding 
three bills of lading of cotton to be English contracts. Each of 
them was made and dated at Nashville, an inland city, and as a 
through bill of lading over the Louisville & Nashville Kailroad 
and its connections, and by the Williams & Guyon Steamship 
Co. from Nashville to Liverpool and the whole freight from 
Nashville to Liverpool is to be "at the rate of 54 tenths ster- 
ling per hundred pounds, gross weight," it is concluded that 
the liability of the Louisville & Nashville Eailroad and its con- 
nections, as common carriers, " terminates on the delivery of the 
property to the Steamship Company at New York, when the lia- 
bility of the steamship commences, and not before ;" and that 
" the property shall be transported from the port of New York 
to the port of Liverpool by the said steamship company, with lib- 
erty to ship by any other steamship or steamship line." On 
the margin is this significant reference to the provision of the 
statutes of the United States applicable to ocean transportation 
only, " Attention of shippers is called to the Act of Congress of 
1851, that any person or persons shipping oil of vitriol, unslacked 
lime, inflammable matches or gunpowder, on a ship or vessel tak- 
ing a cargo for divers persons on board, without delivering at the 
time of shipment a note in writing, expressing the nature and 
character of such merchandise, to the master, mate, or officer, or 
person in charge of the lading of the ship or vessel, shall forfeit 
to the United States one thousand dollars."' 

It was argued that as each bill of lading, drawn up and signed 
by the carrier, and assented to by the shipper, contained a stipu- 
lation that the carrier should not be liable for losses by perils of 
the sea arising from the negligence of its servants, both parties 
must be presumed to have entered into and to be bound by that 
stipulation, and must therefore (the stipulation being void by our 
law and valid by the law of England) have intended that their 
contract should be governed by the English law ; and one passage 
in the judgment in Penviisular & 0. Steam Na/o. Co. v. Shand, 
3 Moore, P. C. N. S. 272, 291, was said by the Supreme Court of 

' Act of March 3, 1851 (9 Stat, at L. 635, chap. 43, § 7) Rev. Stat. § 4288. 



68 LIMITATION OF LIABILITY BY CONTRACT AND BY STATUTE. 

the United States in deciding the case, to give some color to the 
argument ; but it was added that the facts of the two cases are 
quite different in this respect ; in the case cited, effect was given 
to the law of England where the contract was made, and both 
parties were English, and must be held to have known the law 
of their own country, while in the case in judgment, the con- 
tract was made in this country, between parties, the one residing 
and the other doing business here ; and the law of England is 
a foreign law which the American shipper is not presumed to 
know. Both parties, or either of them, it was said, may have 
supposed the stipulation to be valid, or either of them may have 
known that, by our law, as declared by the Supreme Court of the 
United States, it was void, but in either case it is not concluded 
that there is any ground for inferring that the shipper at least, 
had any intention, for the purpose of securing its validity, to be 
governed by a foreign law, which he has not been shown and can- 
not be presumed to have had any knowledge of. Accordingly, 
it was held that each of the bills of lading is an American and not 
an English contract, and so far as concerns the obligation to carry 
the goods in safety, is to be governed by the American law, and 
not by the law, municipal or maritime, of another country. That, 
as by the law of this country, the stipulation by which the appel- 
lant undertook to exempt itself from liability for the negligence 
of its servants, is contrary to public policy, and therefore, void, 
and the loss of the goods was a breach of the contract, for which 
the shipper might maintain a suit against the carrier, that this 
being so, the fact that the place where the vessel went ashore in 
consequence of the negligence of the master and officers in the 
prosecution of the voyage, was upon the coast of Great Britain, 
is quite immaterial.* 

In Jacobs v. Credit Lyonnais, L. E. 12 Q. B. Div. 589, a con- 
tract made in London between two English mercantile houses by 
which one agreed to sell to the other 20,000 tons of Algerine 
esparto, to be shipped by a French company at an Algerian port, 
in British vessels, furnished by the purchasers at London, and to 

' Liverpool & G. W. Steam Go. v. Phmnix Ins. Go. ("The Montana") 129 U. S. 
397, 33 L. ed. 788; TJie Brantfwd aty, 29 Fed. Rep. 378. 



LAW OF PLACE OF OONTEACT OF AFFKEIGHTMENT. 69 

be paid for by them in London on arrival, was held to be an 
English contract, governed by English law, notwithstanding that 
the shipment of the goods in Algiers had been prevented by vis 
major, which, by the law of France, in force there, excused the 
seller from performance of the contract. In Hale v. I^ew Jersey 
Steam Nam. Co. 15 Conn. 538, 546, 39 Am. Dec. 398, goods were 
shipped at New York for 'Providence in Ehode Island, or Boston 
in Massachusetts, on a steamboat employed in the business of trans- 
portation between New York and Providence ; and an exemption 
claimed by the carrier under a published notice, was disallowed 
by the supreme court of Connecticut, because, by the then law of 
New York, the liability of the carrier could not be limited by 
such a notice. Williams, OK. J., delivering judgment, said : "The 
question is, by what law is this contract to be governed ? The rule 
upon that subject is well settled, and has been often recognized by 
this court, that contracts are to be considered according to the 
laws of the state where made, unless it is presumed, from their 
tenor, that they were entered into with a view to the laws of 
some other state." There is nothing in this case, either from the 
location of the parties or the language of the contract, which shows 
that they could have had any other law in view than that of 
the place where it was made. Indeed, as the goods were shipped 
to be transported to Boston or Providence there would be the most 
entire uncertainty what was to be the law of the case, if any other 
rule was to prevail. "We have therefore, no doubt that the law 
of New York as to the duties and obligations of common carriers, 
is the law of the case." 

In DyTcs v. Erie R. Co. 45 N. Y. 113, 117, 6 Am. Eep. 
43, a passenger, traveling upon a ticket, by which a railroad 
corporation, established in New York, and whose road extended 
from one place to another in that state, passing through the 
states of Pennsylvania and New Jersey, by their permission, 
agreed to carry him from one to another place in New York, was 
injured in Pennsylvania, by the laws of which the damages in ac- 
tions against railroads for personal injury, were limited to $3000, 
the court of appeals in New York held that the law of Pennsyl- 
vania had no application to the case. Mr. Justice Allen, deliver- 



70 LIMITATION OF LIABILITY BY OONTEAOT AND BY STATUTE. 

ing the opinion, referred to the case of Peninsula <& 0. Steam 
Nam. Go. v. Bhrnid, 3 Moore, P. C. (N. S.) 272, as analogous in 
principle, and said : " The contract was single, and the perform- 
ance one continuous act. The defendant did not undertake for 
one specific act in part performance in one state, and another spe- 
cific and distinct act in another of the states named, as to which 
the parties could be presumed to have had in view the laws and 
usages of distinct places. Whatever was done in Pennsylvania 
was part of a single act of transportation from TJtica or "Waverly 
in the state of New York, to the city of IsTew York, and in per- 
formance of an obligation assumed and undertaken in this state, 
and which was indivisible. The obligation was created here, and 
by force of the laws of this state, and force and effect must be 
given to it in conformity to the laws of New York. The per- 
formance was to commence in New York, and to be fully com- 
pleted in the same state, but liable to breach, partial or entu-e in 
the states of Pennsylvania and New Jersey, through which the 
road of the defendant passed ; but whether the contract was 
broken, and if broken, the consequences of the breach should be 
determined by the laws of this state. It cannot be assumed that 
the parties intended to subject the contract to the laws of other 
states, or that their rates and liabilities should be qualified or 
varied by any of the different rates that might exist between the 
laws of these states and the lex hd contractus." 

In McDanid v. Chicago <& W. W. B. Co. 24 Iowa, 412, 417, 
cattle, transported by a railroad company from a place in Iowa to 
a place in Illinois, under a special contract made in Iowa, con- 
taining a stipulation that the company should be exempt from 
liability for any damage, unless resulting from collision or derail- 
ing of the trains, were injured in Illinois by the negligence of the 
company's servants, and the supreme court of Iowa (Chief Jus- 
tice Dillon presiding) held the case to be governed by the law of 
Iowa, which permitted no common carrier to exempt himself 
from the liability which would exist in the absence of a conti-act. 
The court said, "The contract being entire and indivisible, made 
in Iowa and to be partly performed here, it must, as to its vahd- 
ity, nature, obligation and interpretation, be governed by our law; 



LAW OF PLACE OF OONTEAOT OF AFFEEIGHTMBNT. 71 

and by our law, so far as it seeks to change the common law, it 
is wholly nugatory and inoperative. The rights of the parties 
then, are to be determined under the common law, the same as 
if no such contract had been made. In Pennsylvania Co. v. 
Fairchild, 69 111. 260, where a railroad company received in In- 
diana goods consigned to Leavenworth, in Kansas, and carried 
them to Chicago, in Illinois, and there delivered them to another 
railroad company in whose custody they were destroyed by fire, 
the supreme court of Illinois held that the case must be governed 
by the law of Indiana, by which the iirst company was not liable 
for the loss of the goods after they had passed into the custody of 
the next carrier in the line of transit. The reservation by the 
supreme court of New Hampshire of any expression of opinion 
in Gray v. Jackson, 51 N. H. 9, 39, 12 Am. Eep. 1, whether 
the liability of a railroad corporation for goods transported 
through parts of two states, was that of a common carrier or of a 
forwarder only, should be governed by the law of the state in 
which the loss happened, must be held to qualify the suggestion 
to that effect in Barter v. Wheeler, 49 N. H. 9, 29, 6 Am. Eep. 
434, that suggestion being unnecessary to the decision in that 
case. 

But courts often refuse to recognize contracts releasing liability 
for negligence, valid where made on the ground that they violate 
the state policy. That a carrier who stipulates not to be bound to 
the exercise of care and diligence, seeks to put off the essential 
duties of his employment. For those duties cannot be waived 
in respect to his agents or servants, especially where the carrier is 
an artificial being, incapable of acting except by agent and servants. 
The law demands of the carrier carefulness and diligence in per- 
forming the service; not merely an abstract carefulness and dili- 
gence in proprietors and stockholders who take no active part in 
the business. To admit such a distinction iu the law of common 
carriers, as the business is now carried on, would be subversive 
of the very object of the law. The carrier and his customer do 
not stand upon a footing of equality, and, since in many cases the 
latter has no alternative as to the kind of bUl he will receive, he 
should not be estopped by its contents.' 

• Lallande v. His Oreditors, 43 La. Ann. 705. 



72 LIMITATION OF LIABILITy BY OONTBAOT AND BY STATUTE. 

The individual customer has no real freedom of choice. He 
cannot afford to higgle or stand out and seek redress in the courts. 
He prefers to accept any bill of lading or to sign any paper that 
the carrier presents, and in most cases he has no alternative but 
to do this, or to abandon his business. Special contracts between 
the carrier and the customer, the terms of which are just and 
reasonable, and not contrary to public policy, are upheld ; such as 
those exempting the carrier from responsibility for losses happen- 
ning from accident or beyond its own line,' or from dangers of 
navigation that no human skill or diligence can guard against ; or 
for money or other valuable articles liable to be stolen or dam- 
aged unless informed of their character or value; or for perishable 
articles or live animals when injured without default or negli- 
gence of the carrier. But the law does not allow a public carrier 
to abandon altogether his obligations to the public, and to stipu- 
late for exemptions which are unreasonable and improper, 
amounting to an abnegation of the essential duties of his employ- 
ment. It being against the policy of the law to allow stipulations 
which will relieve the railroad company from the exercise of care 
or diligence, or which, in other words, will excuse it for negli- 
gence in the performance of its duty, the company remains hable 
for such negligence.' 

Where our law disallows a stipulation made in favor of carriers 
doing business in this country, our national policy cannot permit 
the adoption by a foreign carrier doing business and making con- 
tracts here with our citizens, of a law of such carrier's flag which 
permits such stipulations and enforces them.' A limitation 
of liability in a bill of lading absolving the owners of the ves- 

' Wabash, St. L. & P. R. Co. v. Jaggerman, 115 111. 407. 

* Liverpool & G. W. Steam Co. v. Fhenix Ins. Go. ("Tlie Montana") 129 TJ. S. 

397, 33 L. ed. 788; Ifevi York Cent. B. Co. v. Lockwood, 84 U. S. 17 TV'all. 

359, 363, 384, 31 L. ed. 634, 635, 642; Southern Exp. Co. v. Caldwea, 88 D. 

S. 21 "Wall. 264, 33 L. ed. 556; Ogdensburg & L. O. B. Co. v. IVatt, 89 U. 

8. 22 Wall. 123, 22 L. ed. 837; Bank of Kentucky v. Adams Sep. Go. 93 U. 

S. 174, 183, 23 L. ed. 872, 876; Canada Q. T. B. Go. v. Stevens, 95 U. 8. 

655, 24 L. ed. 535; Hart v. Pennsylvania B. Go. 112 U. S. 331, 338, 28 L. 

ed. 717, 720; Pliomix Ins. Go. v. Mrie & W. Transp. Go. 117 U. 8. 312, 322, 

29 L. ed. 873, 879; Inman v. South Carolina B. Co. 129 U. S. 128, 32 L. ed. 

613. 
' The Brantford GUy, 29 Fed. Rep. 373. 



LAW OF PLACE OF CONTEAOT OF AFFEEIGHTMENT. 73 

sel from any neglect or default of the master, mariners, or oth- 
ers in their service, though valid by the lavr of the country 
of such vessel and that of the port of departure, will not be en- 
forced in the United States where the obligation of the vessel as 
a common carrier was to deliver her cargo safely at the port of 
New York, since such a stipulation on the part of a common car- 
rier in a bill of lading is void as against public policy.' 

But a contract of carriage exempting the carrier from liability 
for negligence, which is valid under the law of the state 
where it is made, and is to be wholly performed, and in which 
the alleged breach occurs, has been enforced in another state 
although such a contract would be invalid under its law." 
A contract in a bill of lading for a shipment from Boston to 
Atlanta, although it would not have been a good contract if made 
in Georgia, can be enforced in that state if it is a good contract 
in Massachusetts and was not intended to take effect wholly in 
Georgia, but was to be partly performed in several different 
states, including Massachusetts.' But no state will enforce a 
contract injurious to good morals or public safety.* 

' The GuildMU, 58 Fed. Rep. 796. 

' Forepaugh v. Delaware, L. & W. B. Co. 5 L. B. A. 508, 128 Pa. 217. 

2 Westm-n & A. R. Co. v. Exposition Cotton Mills, 2 L. R. A. 102, 81 (Ja. 523. 

*Wliart. Conf. L. p. 388, §490; Story, Conf. L. p. 371, § 344; Bank of Au- 
gusta V. Earle, 38 U. S. 13 Pet. 519, 589, 10 L. ed. 274, 308; Hope v. Hope, 
8 DeG. M. & G. 731; BmisUlon v. Bousillon. L. R. 14 Ch. Div. 351; Oscan- 
yan v. Winchester Repeating Arms Co. 108 U. S. 376, 26 L. ed. 545; Flagg 
V. Baldwin, 38 N. J. Eq. 319, 48 Am. Rep. 308. 



CHAPTEE III. 

ACCEPTANCE OF GOODS BY CARRIER. 

§ 20. Duty of Carrier to Accept Goods. 

§ 31. What Constitutes Delivery, Fixing Responsibility of Carrier. 
§ 22. Liahility of Shippers for Goods of a Dangerous Character. 
§ 23. lAdbility of Shipper of Dangerous Goods to Employe of Car- 
rier. 

§ 20. Duty of Carrier to Accept Goods. 

The common carrier is liable to an action for a refusal to ac- 
cept and transport goods without a sufficient reason therefor.' 
But a common carrier is not necessarily a carrier of all descrip- 
tion of goods, and he is only bound to accept the class of goods 
which he proposes to transport, and a special contract under 
which he accepts other goods in a special instance, will reheve 
him from the obligation of the common carrier as to those goods ;' 
and the obligation resting upon him only extends to the accept- 
ance of goods which are to be carried along his usual route and 
by the ordinary means of transportation adopted by him.' 

If a reasonable sum is tendered, the carrier cannot refuse the 
carriage of the goods,' if within the class it usually carries, and if 
the carrier has good grounds for not receiving baggage or prop- 
erty he must insist on them ; if he receives them his liabihty is the 
same as though no ground of refusal existed." Goods which are 

^Nugent v. Smith, L. R. 1 C. P. Dlv. 423; Fish v. Chapman, 2 Ga. 349, 46 

Am. Dec. 393; Piedmont Mfg. Go. v. Columbia <6 ff. S. Co. 19 S. C. 853. 
'Eoneyman v. Oregon & C. B. Co. 13 Or. 352, 57 Am. Rep. 20- New Tork 

Cent. B. Co. v. Lockwood, 84 U. S. 17 Wall. 857, 21 L. ed. 627; Central R. 

& Bkg. Co. V. Lam/pley, 76 Ala. 857, 52 Am. Rep. 334; Kimball v. Rutland 

& B. B. Co. 26 Vt. 249. 

'Pittsburg, C. <6 St. L. B. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682; 
Coup Y.Wabash. St. L. «fi P. B. Co. 56 Mich. Ill, 56 Am. Rep. 374; Pit- 
lock V. WeUs, Fan-go & Co. 109 Mass. 452. 

* Piekford v. Grand Junction B. Co. 8 Mees. & W. 372. 

» Hannibal & St. J. B. Co. v. Bjoift, 79 U. S. 12 Wall. 262 20 L ed 423. 

74 



DDTT OF CAEEIBE TO ACCEPT GOODS. 75 

not in suitable condition for shipment, or are liable to injury from 
want of careful packing may be declined.' If goods are brought 
to the carrier at an unseasonable time or, by reason of his coach 
being full, he has no convenience for carrying the goods with se- 
curity, he will be excused from taking charge of them.' 80, an 
unusual flood of business may exhaust the carrier's means — tem- 
porarily — for transportation, and if he has provided reasonably 
for the expected demands of transportation, he will be excused,' 
provided no unnecessary delay occurs.' If delay from any cause 
occurs after the goods are accepted, notice must be given to the 
shipper. Otherwise, the carrier will render itself responsible, al- 
though the difficulty was unknown at the time of the acceptance 
of the goods.' An unexpected rush of freight will not excuse a 
carrier from an express contract to carry at a certain time." If, 
for any reason, the line of travel or the means of conveyance are 
for the time being especially dangerous, the carrier may decline, 
for that reason and while such conditions exist, to accept goods 
under his common law liability.' 

Where the charter party covenants for no specific amount to be 
received, what is " a full cargo " is a qiiestion to be solved by an 
experienced shipmaster.' 

Where, under the Interstate Commerce Act and by express 
statute, the duty to transport freight is directly imposed, the writ 

' Union Enp. Co. v. Graham, 26 Ohio St. 595. 

^Balson v. Donovan, 4 Barn. & Aid. 33; Lovett v. MoUia, 2 Show. 138: 

Anonymous, 13 Mod. 3; Edwards v. Slien-att, 1 East, 604; Zane v. Cotton, 

1 Ld. Raym. 646. 
'Siley V. Sorne, 5 Bing. 317; Peet v. Chicago & N. W. B. Co. 30 Wis, 594, 91 

Am. Dec. 446. 

* Toledo, W. & W. R. Co. v. Lockha/rt, 71 111. 637; Wibert v. Mw York & E. 

R. Co. 13 N. Y. 245; Ayres v. Chicago & N. W. R. Co. 75 Wis. 215: Con- 
diet V. Ch-and Trunk R. Co. 54 N. T. 500; Great Western R. Co. v. Bums, 
60 111. 284. 
'Southern Exp. Co. v. Womack, 1 Heisk. 256; East Tennessee & O. R. Co. v. 
Mlson, 1 Coldw. 273; Soger v. Portsmouth, 8. & P. & E. R. Co. 31 Me. 228, 
50 Am. Dec. 659; Empire Transp. Co. v. Wamsutta Oil R. & M. Co. 63 Pa. 
14, 3 Am. Rep. 515; Carter v. Peck, 4 Sneed, 203, 67 Am. Dec. 604; Place 
V. Union Exp. Co. 2 Hilt. 19. 

• Deming v. Grand Trunk R. Co. 48 N". H. 455, 2 Am. Rep. 267. 

''Phdps V. Illinois Cent. R. Co. 94 111. 548; Illinois Cent. R. Co. v. Ilornberger, 

77 111. 457; Edwards v. Sherratt, 1 East, 604. 
« Ogden v. Parsons, 64 U. S. 23 How. 167-170, 16 L. ed. 410. 



76 ACCEPTANCE OF GOODS BY CAEEIEE. 

of mandate has been granted to enforce the statutory daty and 
prevent irreparable injury from ' the continued and inexcusable 
refusal ;' but the court will ordinarily refuse to grant the writ to 
enforce the acceptance in an isolated instance.' Refusal by a 
shipper to enter into a contract that the carrier shall not be liable 
unless the owner shall insure for its benefit is no defense to an 
action to compel transportation by the carrier.' 

§ 21. Whobt Constitutes Delivery, Fixing Responsi- 
bility of Carrier. 

Delivery of goods to a common carrier for transportation in- 
volves exclusive possession in the carrier, and this possession in- 
cludes a surrender of custody and control for the time being by 
the consignor.* The delivery of goods to the carrier must be 
complete. The control cannot be shared.' "Wlien a delivery for 
shipment is complete, it marks the beginning of the carrier's re- 
sponsibility.' but a carrier cannot open a package or parcel of 
goods delivered to it for carriage to examine whether it contains 
other parcels addressed to different persons.' 

But, unless the carrier provide a place for the reception of 
goods he is not bound to accept them till he is ready to set out on 
his accustomed journey.' The delivery must be at the time and 
place designated by the carrier." It is not sufficient that goods 
be placed upon a platform, or even within the vehicle in which 
they are to be conveyed, unless notice be given to the carrier and 
its servants." Goods stored along the line of a railway, awaiting 

' Chicago, B. & Q. R. Go. v. Burlington, 0. S. & N. B. Go. 34 Fed. Eep. 481. 

« People V. New York, L. E. & W. B. Go. 32 Hun, 533. 

« Inman v. South Carolina B. Co. 129 U. S. 128, 33 L. ed. 613. 

' Wilson v. Atlanta & G. B. Go. 83 Qa. 386, 40 Am. & Eng. R. Cas. 25. 

' BrinO. v. Bale, 8 Car. & P. 207. 

* Mason v. Missouri Pac. B. Go. 25 Mo. App. 473. 

' Crouch V. London & N. W. B. Co. 2 Car. & K. 789. 

8 Lane v. Cotton, 1 Ld. Raym. 652; Peck v. Smith, 1 Conn. 105. 6 Am. Dec. 

216. 
' Buckman v. Levi, 8 Campb. 414; Selway v. HoUoway, 1 Ld. Raym. 46. 
^'>Leigh y. Smith, 1 Car. & P. 638; Qrosvenor v. New York Cent. B. Co. 39 N. 

Y. 34. 



WHAT CONSTITUTES DELIVEET FIXING EKSPONSIBILITY OF OAEEIBE. 77 

shipment, until the necessary means for transportation are pro- 
vided, are not delivered into possession of the carrier.' A 
place where for a long time there has been no depot, no freight, 
no agent, no employe stationed to attend to shipments, is not 
a "regular depot or station" at which a railroad company 
must receive articles for shipment when tendered, although it has 
occasionally and irregularly received the lumber from one per- 
son, and mail trains regularly stop there to deliver the mail, and 
the place is set down in circulars and orders of the company as a 
station.' A mere switch at which there is neither agent, station, 
nor platform, and where shipments are made by loading upon 
cars placed upon the switch by request, is not a depot so as to 
render the deposit of freight at the place, a delivery to the com- 
pany owning it, thereafter liable as a common carrier.' 

But where a railroad company erects a platform for the 
purpose of shipping cotton, and its course of business is such that 
it induces parties to store cotton on it, under a promise to ship by 
the next freight train, and it passes and neglects to take on said 
cotton, and it is afterwards destroyed by fire from a passing train, 
the company is liable for the value of the cotton.* But a court 
will not require by mandate a railroad carrier to establish a freight 
station for public convenience, even in a town upon its line, at 
which it has not made a practice of receiving or delivering pas- 
sengers and freight, when neither charter nor statute prescribe 
rules controlling the carrier in the location of its stations.' And 
where cotton is in a compress warehouse, and until its actual de- 
livery upon the loading platform for shipment, the carrier's re- 
sponsibility is only that of a warehouseman.' 

' Praaer v. Kansas City, St. J. & O. B. B. Oo. 48 Iowa, 571 ; Wilson v. Atlanta 
& G. B. Co. 83 Ga. 386; Little Bock & Ft. 8. B. Oo. v. Hunter, 43 Ark. 200; 
St. Louis, LM.&8. B. Co. v. Commercial U. Ins. Oo. 139 U. S. 323, 35 L. ed. 
154. 

^Land v. Wilmington &W. B. Co. 104 N. C. 48, 40 Am. & Eng. R. Cas. 18. 

" Kansas City, M. & B. B. Co. v. Lilly (Miss.) 45 Am. & Eng. R. Cas. 379. 

* Meyer v. Viehsburg, 8. & P. B. Co. 41 La. Ann. 639. 
^People V. Ohicago & A. B. Oo. 130 111. 175. 

• Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 126; O'Neill v. New York Cent. 

6 H. B. B. Co. 60 N. Y. 138; Michigan, 8. & N. I. B. Oo. v. Shurtz, 7 Mich. 
515; St. Louis, A. & T. H. B. Oo. v. Montgomery, 39 111. 335; Platte. Sibbard, 

7 Cow. 497; Boskell v. Waterhouse, 2 Stark. 461. 



7ji ACCEPTANCE OF GOODS BY CAKRIEB. 

A delivery of goods for shipment at a carrier's warehouse, in 
the presence of the carrier's agent, and receiving a bill of lading 
signed by the agent, is a delivery to the carrier, so as to render 
the latter liable for not shipping the goods within five days, as 
required by N. C. Code, § 1967." A railroad company is liable 
for the nonperformance of a contract to carry goods for which it 
has receipted by its own agent, although its road is in the posses- 
sion of a lessee." Delivery of a horse at a pen and on a chute 
provided by the company and designated by its agent for the use 
in loading a car is sufficient to charge the company if the chute 
proves rotten, and damages result.' 

The liability of a common carrier of goods and merchandise 
attaches when the property passes, with his assent, into his posses- 
sion, and is not affected by the question of ownership of the car- 
riage in which it is transported, nor by the fact that the carriage 
is loaded by the owner.* The duty of loading freight delivered 
to and accepted by a railroad company for transportation rests 
primarily upon the company ; and a rule by which the shippers 
of heavy and bulky freight are required to load it upon cars at 
most requires such shippers to furnish the necessary help to load 
it, and does not change the company's relation, in regard to prop- 
erty delivered to and accepted by it for the sole purpose of trans- 
portation, from that of a carrier to a warehouseman.' But the 
ways and means of loading, the car being in proper condition, 
and the burden of loading being by agreement upon the shipper, 
it is his duty to have the car loaded that the train may not be un- 
reasonably delayed.' 

The delivery must be made to some agent of the carrier, if not 
to the carrier in person, who is authorized to receive the goods.' 

> Earrell v. Wilmington &W. B. Go. 106 N. C. 258, 42 Am. & Eng. R. Gas. 417. 

» NationaX Bank of Olmter v. Atlanta & O. A. L. B. do. 25 S. C. 216. 

» McOuUough v. WabashWestern S. Co. 34 Mo. App. 23. 

*Eannibal & St. J. B. Co. v. Simft, 79 U. S. 12 Wall. 262, 20 L. ed. 423. 

s London <& L. F. Ins. Oo. v. Borne, W. & 0. B. Co. 68 Hun, 598. 

« Louisville, Jf. A. & C. B. Co. v. Oodman, 104 Ind. 490. See Franier v. Kan- 
sas City, St. J. & O. B. B. Co. 48 Iowa, 571. 

' Ford V. Mitchell, 21 Ind. 54; Earrell v. Wilmington & W. B. Co. 106 N. C. 258; 
Bogers v. Long Island B. Co. 2 Lans. 269; Trowbridge v. Chapin, 23 Conn. 
595. 



WHAT CONSTITUTES DELIVEBY PIXIN& EESPONSIBILITT OF OAEKIEE. 79 

But, if the place be distinctly designated, or adopted by usage, at 
which the deposit of goods may be made, the carrier, upon such 
deposit, will become responsible.' And a railroad company is lia- 
ble as a carrier, and not as a warehouseman, for hay delivered to 
it upon which the freight is paid, though no receipt, shipping bill, 
or bill of lading is delivered by it, and none of the bales are 
marked with the names of the consignees, but the marks are put 
upon the cars when shipped, where the hay is delivered for as 
early transportation as can be made in the course of the company's 
business, subject only to such delays as are necessary to enable it 
to procure cars for the transportation, and there is no omission to 
direct where it shall be shipped, or to load it, in accordance with 
the agreement, as fast as the cars are furnished, and no further 
orders are necessary to enable the company to forward the hay." 
One who places his property ready for shipment near the track 
of a railroad in an exposed and hazardous position, but where the 
company has been in the habit of receiving such goods, although 
assuming the risk of fire following the proper and lawful use of 
locomotives, does not assume the risks of the railroad company's 
negligence. It is not contributory negligence ^er se to place 
combustible goods for shipment on a platform erected for the 
purpose of receiving freight for shipment, near the track of a 
railroad, where the company has been in the habit of receiving 
such goods, and leave them without watch, although they will be 
exposed to danger from fire.' If the goods are delivered at the 
usual place of receiving goods for shipment, and the fact of their 
deUvery is brought home to the carrier or his duly authorized 
agents, there can be no question as to the responsibility accruing 
to the carrier as far as the end of his route, for he is bound to 
keep the goods safely after delivery to him for transportation, as 
well as to carry them safely.* 

* Oonmrse v. Norwich &N.Y. Transp. Co. 33 Conn. 166; Meyer v. Viekaburg, 8. <& 
P. E. Co. 41 La. Ann. 639; Merriam v. Eartford&N. H. B. Co. 30 Conn. 354, 
52 Am. Dec. 844; Montgonwry & M. M. Co. v. Kolb, 73 Ala. 396, 49 Am. Rep. 
54; Green v. Milwaukee & Si. P. R. Co. 38 Iowa, 100. 

» London & L. F. Ins. Co. v. Borne, W. & 0. B. Co. 68 Hun, 598. 

>8t. Louis, A. & T. B. Co. v. PhOadelphia F. Asso. 55 Ark. 163. 

*Dale V. SaU, 1 Wils. 281; Clark v. Needles, 25 Pa. 338; Southern Exp. Co. v. 
Newby, 36 Ga. 685, 91 Am. Dec. 783. 



8U ACCEPTANCE OF GOODS BY CABEIEB. 

In many of tlie cases it has been held that even where the de- 
livery was made in a customary place, yet it was requisite that 
notice should be given to the carrier of the facts of such deposit, 
and of the quantity and number of pieces of which it consisted. 
And it is undoubtedly true that the rule as to constructive deliv- 
ery, is one that should be applied vnth caution, and the question 
is often one for the determination of the jury." Of course, as the 
delivery may be to an agent of the carrier, it is not necessary that 
the shipper should himself make a personal delivery ; but this 
may be done through his agent, who for all purposes is empowered 
to direct the shipment and agree upon the terms.' 

Railway companies are accustomed to receive their freight at 
their freight depots, or at designated points where, during busi- 
ness hours, their agents are present to accept and receipt for 
woods. Of course, under such circumstances, no question of de- 
livery can be raised. But, when the delivery is attempted at 
unusual hours, notice should be given of the deposit of the goods. 
If the deposit be made at a place not specially designated, nor 
commonly used for that purpose, no delivery will be construed as 
having taken place, unless the carrier or its proper agent actually 
consents to receive them, or accepts them in fact." 

No well founded distinction can be made as to the liability of 

' Packard v. Oetman, 6 Cow. 757, 16 Am. Dec. 475; Wright v. OaldweU, 8 
Mich. 51. 

« Nelson v. Budson Biver R. Co. 48 N. Y. 498; Tork Mfg. Go. v. lUirwis Gent. 
B. Go. 70 U. S. 3 Wall. 113, 18 L. ed. 172; Eawson v. HoUand, 59 N. T. 
611, 18 Am. Bep. 394; Ohristenson v. American Mcp. Co. 15 Minn. 270, 2 
Am. Rep. 122; Ifew Jersey Steam Mav. Go. v. Merchants Bank of Boston, 47 
U. 8. 6 How. 344, 12 L. ed. 465; Mills v. Michigan Cent. B. Go. 45 N. Y. 
622, 6 Am. Rep. 158; London & N. TF. B. Go. v. BarOett, 7 Hurlst. & N. 
600; Bameti v. London &N. W. B. Co. 5 Hurlst. & N. 604; Bohinson v. 
Merchants Despatch Transp. Go. 45 Iowa, 470; Lewis v. Great Western B. 
Go. 5 Hurlst. & N. 867; Moriarty v. Harnden's Skcpress, 1 Daly, 227; jSjaire 
V. Mw York Gent. B. Co. 98 Mass. 239, 98 Am. Dec. 163; J«»ntn5'« v. Grand 
Trunk B. Go. 52 Hun, 227. 

'Dmghtv. Brewster, 1 Pick. 50, 11 Am. Dec. 133; Oronkite v. WeUs, 32 N. 
Y. 247; Blanchwrd v. Isaacs, 3 Barb. 388; Louisville, N. A. & G. B. Co. v. 
Flanagan, 113 Ind. 488; Fisher v. Geddea, 15 La. Ann. 14; StaU v. Safolk 
& 0. B. Co. 100 N. C. 158; Missouri Goal <fc Oa Go. v. Hannibal d St. J. B. 
Go. 35 Mo. 84=; Land V. Wilmington & W. B. Go. 104 N. C. 48; Wells v. Wil- 
mington & W. B. Co. 51 N. 0. 47, 72 Am. Dec. 556; East Line & B. R. B. Co. 
v. Hall, 64 Tex. 615; Kansas City, M. & B. B. Go. v. Lilly (Miss.) 45 Am. 
& Eng. B. Cas. 379; Illinois Cent. B. Co. v. Ashmead, 58 lU. 487. 



WHAT CONSTITUTES DELiVJiliY FIXING EESPONSIEILITY OF CABEIEfi. 81 

the owner of a vessel, between the case of the delivery of goods 
into the hands of the master at the wharf for transportation 
on board of a particular ship in pursuance of a contract of 
affreightment, and the case of loading the goods upon the deck 
of the vessel. Where the master of a vessel agreed to carry 700 bales 
"' cotton from Mobile to Boston for certain freight mentioned in the 
bill of lading, the vessel was bound for the safe shipment of the 
whole 700 bales from the time of their delivery by the shipper at 
the city of Mobile and acceptance by the master, and the delivery 
of 100 bales to a lighterman to deliver on board the vessel, was a 
delivery to the master, and the transportation by the lighter to 
the vessel was the commencement of the voyage, the same as if 
the one hundred bales had been placed on board the vessel at the 
city instead of the lighter. Where both parties understood that 
the cotton was to be delivered to the carrier for shipment at the 
wharf in the city, and to be transported thence to the port of dis- 
charge, and after the delivery and acceptance at the place of ship- 
ment, the shipper had no longer any control over the property, 
the ship is liable for the loss on the lighter of the 100 bales, the 
same as any other portion of the cargo." Where the delivery of 
a cargo to a lighter is equivalent to delivery to the owners of 
the steamer on which it is to be shipped, the steamer is liable for 
loss occasioned by negligence of those in charge of the lighter." 

A delivery upon a ferryboat has been held complete, when 
goods were deposited upon the slip of the boat and before placed 
in actual possession of those in charge of the ferry.' But it 
would seem, upon principle, that there should be some notice to 
the ferryman of the deposit, — even when it is made upon the 
boat itself." The liability as a common carrier only commences 
when the delivery to him is completed. If, according to the 
usage of business, the delivery is sufficient upon a dock or near 

'Bulkley v. Naumkeag Steam Cotton Co. 65 U. S. 24 How. 386-394, 16 L. ed. 

59y-G03. 
' The Gity of Alexandria, 24 Blatchf. 50, 28 Fed. Rep. 202. 
'Blakeley v. LeDtic. 19 Minn. 187; Miles v. James, 1 McCord, L. 157; OoTien 

Y. Hume, 1 McCord, L. 439; Cook v. Oourdin, 2 Nott. &McC. 19. 
« White V. Winnisimmet Co. 7 Cush. 155; Wyokoff v. Queens County Ferry 

Co. 53 N. Y. 82, 11 Am. Rep. 650. 



82 ACCEPTANCE OF GOODS BY CAEEIEK. 

the carrier's boat, express notice, nevertheless, it has been said 
must be given the carrier.' But if a common carrier agrees that 
property for transportation by him may be deposited at a par- 
ticular place without express notice to him, such deposit is a suffi- 
cient delivery. Such agreement may be shown by usage." 

A shipper's knowledge of directions to the carrier's agent, not 
to receive certain articles for transportation, will not relieve the 
carrier from liability, if their transportation is actually undertaken. 
If the shipper knew by report, when he delivered the property 
to the defendant, that its agents had been directed not to receive 
any game during a closed season, this was no limit of the com- 
pany's responsibility by special contract; or such knowledge 
should be brought home to the shipper and assented to by him, as 
necessary to limit such responsibility.* " A carrier may limit his 
responsibility for property intrusted to him," says Bigelow, Ch. 
J.* "by a notice containing reasonable and suitable restrictions, if 
brought home to the owner of goods delivered for transporta- 
tion, and assented to clearly and unequivocally by him. It is also 
settled that assent is not necessarily to be inferred from the mere 
fact that knowledge of such notice on the part of the owner or 
consignee of goods is shown. The evidence must go further, and 
be sufficient to show that the terms on which the carrier proposed 
to carry the goods were adopted as the contract between the 
parties, according to which the service of the carrier was to be 
rendered." It is undoubtedly the right of the carrier to require 
good faith on the part of those who deliver goods to be carried, or 
enter into contracts with him. The degree of care to be exercised, 
as well as the amount of compensation for the carriage of prop- 
erty, depends largely on its nature and value; and no fraud or 
deception should be used which would mislead the carrier as to 
the extent of his duties or the risks which he assumes. 

In a late case, where game prohibited by law to be in possession 

^ Packard -v. Oetman, 6 Cow. 757, 16 Am. Dec. 475; Selway v. 

Ld. Raym. 46; Cobban v. Bowne, 5 Esp. 41. 
» Prait V. Grand Trunk M. Go. 95 U. S. 43, 24 L. ed. 336. 
'Fillebrown v. Grand Trunk B. Co. 55 Me. 463, 93 Am. Dec. 606. 
*BucMand v. Adams Exp. Co. 97 Mass, 125, 93 Am. Dec. 68. 



WHAT CONSTITUTES DELIVEBY FIXINa RESPONSIBILITY OE OAEKIEE. 83 

of any one in the state, was delivered to the carrier, it was said 
that this property was lawfully the property of the shipper. It . 
was delivered to and accepted by the carrier company for trans- 
portation to a point beyond the limits of the state when received. 
Their liability as common carriers held them to a strict fulfill- 
ment of their obligation in relation to the property in their charge. 
That obligation was not merely to transport the property in the 
state when accepted, but to a point outside of its limits in another 
state. When it had lawfully commenced to move as an article 
of commerce from one state to another, from that moment it be- 
came the subject of interstate commerce, and, as such, was sub- 
ject only to national regulation, and not to the police power of 
the state. The same is unquestionably true in relation to what- 
ever- agency or instrumentality may be used as the means of 
transporting such commodities as may lawfully become the sub- 
ject of purchase, sale or exchange, under the commerce clause of 
the Constitution of the United States.' The transportation of 
the subject of interstate commerce, where it is such as may law- 
fully be purchased, sold, or exchanged, is without doubt a constit- 
uent of commerce itself, and is protected by and subject only to 
the regulation of Congress." 

If the property is received upon the premises of the carrier, to 
wait further instructions before transportation, his liability 
is that of a warehouseman only, until the instructions are re- 
ceived.' If the deposit of the goods on the premises of the car- 
rier is a mere accessory to the carriage, that is, if they are depos- 
ited solely for the purpose of being forwarded to their destination 
without further orders, the responsibility of the carrier begins 
from the time they are so received ; but when the property is 

' Bennett v. American Exp. Co. 13 L. R. A. 33, 83 Me. 286. 

2 The Daniel Ball v. United States, 77 U. 8. 10 Wall. 557, 565, 19 L. ed. 999, 

1002; Bowman v. Chicago & N. W. B. Co. 135 U. S. 465, 485, 31 L. ed. 700, 

707, 1 Inters. Com. Rep. 823; MoUU County v. Kimball, 10211. S. 691, 26 L. 

ed. 238; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Coe v. Bkrol, 116 TJ. 

S. 517, 29 L. ed. 715; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. 

Com. Rep. 36. 
» O'NeillY. NewTork Cent. & H. B. B. Co. 60 N. T. 138: Barron v. Mdredge, 

100 Mass. 455, 1 Am. Rep. 126; Bogers v. WJieeler. 52 N. Y. 262. And see 

"■'" rt V. NewTork Cent. &H. B. B. Co. 4 Hun, 378, 6 Thomp. & C. 662. 



84 ACCEPTANCE OF GOODS BT OAEEIEE. 

deposited subject to the further orders of the consignor, the rule 
is otherwise, as just stated.' 

Where a carrier receives goods in his own warehouse for the 
accommodation of his customers and himself so that the storage 
is to facilitate the carriage, his liability as carrier commences upon 
receipt of the goods." There is no necessity that the acceptance 
of the carrier should be evidenced by any written memorandum 
or receipt. It is sufficient that the goods are left with the car- 
rier without objection, at their proper place.' When the carrier 
attempts to load goods, all question of his responsibility is ended.' 



§ 22. Liability of Shippers for Goods of a Danger- 

! «?;■;,.,,, ^.;.v;v..^:;y.., ous Character. 

"The general rule that one engaged in business may refuse to 
have business relations with any person with whom he does not 
choose to deal, has a few exceptions of which several are compar- 
atively new, although somewhat analogous to the ancient instances 
of innkeepers and common carriers. The rule has long been rec- 
ognized as applying to carriers, and it is well settled that a common 
carrier cannot refuse to carry a proper article tendered at a rear 
so'nable time and place with an ofEer of usual and reasonable com- 
pensation.' This doctrine is assumed to be the law in a great 
multitude of cases, and is indeed involved in the deiinition of 
common carriers, but the obligation of a common carrier is only 
to carry according to its public profession and not necessarily to 

' Wade v. Wheeler, 3 Lans. 201, affirmed in 47 N. T. 658; Ladue v. Oriffill, 25 
N. T. 364, 82 Am. Dec. 360; Chase v. WasUui-n, 1 Ohio St. 244, 59 Am. Dec. 
623; Ma/ndng v. Todd, 1 Stark. 72: Michigan, S. & M.I. It. Go. v. Shurtz, 7 
Mich. 515; Blossom v. Gfriffin, IS N. Y. 569, 67 Am. Dec. 75; Mickox v. Nan- 
gatuck B. Co. 81 Conn. 281, 83 Am. Dec. 143; Watts v. Boston & L. S. OoJ'p. 
106 Mass. 466. See Illinois Cent. R. Co. v. McGlellan, 54 111. 58, 5 Am. Rep. 
83. 

" Forward v. Pittard, 1 T. E. 27. 

» Aiken v. Chicago, B. d Q. R. Co. 68 Iowa, 363; Illinois Cent. B. Go. v. Smy- 
ser, 38 111. 354, 87 Am. Dec. 301; Woods v. Devin, 13 111. 747, 56 Am. Dea 
483; Camden dh A. B. dk Fransp. Co. v. Belknap, 21 Wend. 354. 

*Merritt v. Old Colony & N. B. Co. 11 Allen, 80; Thomas v. Day, 4 Esp. 262. 

» Bennett v. Duiton, 10 N. H. 486. 



LIABILITY OF SHIPPBES FOE GOODS OF A DANGEEOUS CHAEACTEE. 85 

carry goods of every description.' But a common carrier of 
goods generally is liable in damages for an absolute refusal to re- 
ceive and carry goods ofEered without good reason for tbe refusal,' 
and it will not be accepted as a sufficient legal reason for the re- 
fusal, that a shipper declines to inform the carrier of the charac- 
ter of the goods and the contents of the packages ofEered, unless 
there be some reasonable grounds justifying such inquiry/ It is 
not a duty incumbent on the carrier to ask the contents in cases 
free from suspicion. It would be unreasonable in a master or 
mate, having no reason to suspect that goods ofEered to him for 
the general shipment can not safely be stowed away in the hold, 
— ^to ask every shipper the contents of every package.* 

But a stipulation in a charter party to take and carry merchan- 
dise, does not compel the master to take goods which, in his hon- 
est judgment, cannot be carried without injury to the rest of the 
cargo.' Where goods are ofEered to the carrier, which he has 
good reason to suppose are of a dangerous character and will in- 
jure other freight, he may require information upon this point, 
and upon refusal to give such information, he may refuse to take 
the goods.' By the 105th section o'f 8 & 9 Vict. chap. 20, car- 
riers may refuse to take any parcel they suspect contains goods of 
a dangerous nature, and require the same to be opened to ascer- 
tain the fact. It has been held that the shipper would not be liable 
for an accident resulting from the transportation of goods, unless 
he knew the character of the article shipped or was put upon in- 
quiry.' Maule, J., denied the accuracy of the remark made by Best, 
Ch. J., that a carrier has the right to know the value and quality 

' Johnson v. Midland B. Co. 4 Exch. 372. To similar effect Oxladie v. North- 

eastern B. Co. 9 Week. Kep. 373. 
^ Doty V. Strong, 1 Pinuey, 313, 40 Am. Dec. 773. 
'Parrott v. Wells, 82 TJ. 8. 15 "Wall. 534, 31 L. ed. 306; Crouch v. London &N. 

W. B. Co. 14 C. B. 356, 7 Exch. 705. 
* Brass v. Maitland, 6 El. & Bl. 412. 
''Boyd V. Moses, 74 U. S. 7 Wall. 316, 19 L. ed. 193. 
' The Nith, 36 Fed. Rep. 86; Parrott v. Wells, 82 U. S. 15 Wall. 524, 21 L. ed. 

206. 
''Parrott v. WelU, 82 U. 8. 15 Wall. 534, 21 L. ed. 206; Brass v. Maitland, 6 El. 

& Bl. 482; Hutchinson v. Quion, 5 C. B. N. S. 163; Piet'ce v. Winsor, 2 

Sprague, 35, on appeal, 2 ClifE. 27. 



86 ACOEPTANOE OF GOODS BY OAEEIEE. 

of what he is required to carry.' But if the owner of the goods 
will not tell him what the goods are, and what they are worth, the 
carrier may refuse to take charge of them.' 

As the carrier has the right to regulate his charges somewhat 
by the value of the articles transported, and the liability he thus 
incurs for their injury or loss — as wUl appear by the authorities 
hereafter cited — it is proper that he should inquire of the shipper 
as to the value of the articles consigned." 

Still only when there is good ground for believing that mer- 
chandise offered for shipment is of a dangerous character, from 
the appearance of the package or other circumstances, that the 
carrier is authorized — in the absence of any special legislation on 
the subject — to require a knowledge in fuU detail of the pack- 
ages offered, as a condition for receiving them for carriage.* A 
freight train upon which passengers are conveyed for compensa- 
tion, in any kind of car, by authority of the railroad company, is 
a passenger train vrithin U. S. Rev. Stat. § 5353, forbidding all 
transportation of nitro-glycerine from one state to another upon 
public conveyances employed in transporting passengers.' Where 
goods were so carelessly packed as to injure other portions of the 
cargo, and the carrier was unaware of their real character, the 
shipper will be liable." Where a general ship was put up for 
freight, and among other freight offered and taken was mastic, 
an article then new in commerce, and which was so affected by 
the voyage that it injured other parts of the cargo in contact with 
it and caused increased expenditure in discharge of the vessel, the 
court held the shipper and the charterer liable, for it was said 
that the storage of mastic was made in the usual way, and it was 
not disputed that it would have been proper if the article should 

> Crouch V. London & N. W. B. Co. 14 C. B. 256. 

' RUey V. Rome, 5 Bing. 217. 

» Merchants Despatch Tranap. Co. v. Bollea, 80 111. 473; Baldwin v. Liverpool 

& O. W. 8S. Co. 74 N. Y. 135, 30 Am. Rep. 277; Brown v. Camden & A. 

B. Go. 83 Pa. 316. 

^Parrott v. Wells, 82 U. S. 15 Wall. 524, 21 L. ed. 206; Pierce v. Winsor, 2 
Cliff. 18. 

= United States v. Saul, 58 Fed. Kep. 763. 

'Brass v. Maitland, 6 El. & Bl. 470; Eutchinson v. Guion 5 C B N. S. 149; 
Heame v. Qwrton, 2 El. & El. 66. 



LIABILITY OF SHIPPEES OF DANGEEOUS GOODS TO EMPLOYE. 87 

have been what it was supposed to be when it was received and 
placed on board. "Want of greater care in that behalf was not a 
fault, because the master had no means of knowledge that the 
article required any extra care or attention beyond what is usual 
in respect to other articles. It was true, in that case, that the 
dangerous character of mastic thus transported was unknown to 
the shipper, but he was, nevertheless, held liable to refund dam- 
ages to the owner of the vessel, for losses sustained by other ship- 
pers. It was said, that the law imputes to the shipper a knowl- 
edge of the dangerous character of the shipments ;' and he is not 
relieved from this responsibility although the goods may have 
passed through many hands." 

A manufacturing firm which through its duly authorized agents 
purchases the cargo of a canal boat, and charters another boat to 
transport it as refuse salt, and upon arrival refuses to receive it 
because it is salt cake, is liable to the owner of the boat chartered 
for damage to the boat from acids in the salt cake, although it 
was deceived in the purchase.' 

§ 23. LiaMlity of Shipper of Dangerous Goods to 
Employe of Carrier. 

Where the shipper of explosive or combustible substance fails 
to notify the carrier or his agent of the danger attending its use, 
when transporting it, and injury results to an employe of the car- 
rier, the owner is liable for the injury sustained. But, when the 
carrier is notified of the danger of the article or product, and 
there is marked on the head of the barrel or package that which 
must necessarily apprise the carrier of its dangerous nature, and 
the carrier, in his ordinary line of business, undertakes to trans- 

' Jeffrey v. Bigelow, 13 Wend. 518, 38 Am. Dec. 476; Binford v. Johmton, 82 
Ind. 426, 42 Am. Rep. 508; Dickson v. Bell, 5 Maule & S. 198; Powers v. 
Marlow, 53 Mich. 507, 51 Am. Rep. 154; Tally v. Ayrea, 3 Sneed, 677; Ba/r- 
ney v. BurnsMnUnder, 64 Barb. 213; Wright v. Clark, 50 Vt. 130, 28 Am. 
Rep. 496; Growhurst v. Amersimm, Bvmal Boa/rd, L. R. 4 Bxch. Div. 5. 

' Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec, 455; Lane v. Atlantic 
Works, 111 Mass. 141; Farrant v. Barnes, 11 C. B. N. S. 553; Illidge v. 
Goodwin, 5 Car. & P. 193. 

' Carroll v. Walton & W. Co. 48 Fed. Rep. 123. 



88 ACCEPTANCE OF GOODS BY OABKIEE. 

port it, and an injury occurs to one of its employes, the shipper 
cannot reasonably be held liable because knowledge was not 
brought home to the employe. 

In the shipment of a dangerous article there is an implied, if 
not a positive duty, on the part of both shipper and carrier, to 
notify those who handle the dangerous substance of its character, 
and no arrangement made between them, although entered into iu 
the best of faith, by which the dangerous substance may be 
shipped under the designation of a relatively harmless article, 
will protect either party from liability from the consequences 
which result from this deception. Thus, dynamite cannot innocent- 
ly be shipped as "Powder;" nor can naptha be transported as "Car- 
bon Oil." To protect either the shipper or the carrier from liabil- 
ity, the brand upon the package must contain sufficient notice of 
the dangerous substance within it. Thus, the dangerous character 
of naptha requires more vigilance and care in shipping and hand- 
ling it, than almost any other explosive substance; and as a means 
of greater protection, it would be prudent to give other warning 
than the mere name of the substance. As an explosive, it is said, 
the danger is ten times greater than that of gun powder. It ig- 
nites as soon as the blaze is applied to it, and becomes explosive 
when the vapor from it mingles with the atmosphere in which 
there happens to be a burning lamp or other light. 

"Where naptha is shipped, even so marked, the real danger may 
not be known ; but still the shipper, having truthfully marked it, 
might anticipate that it would put the carrier and its employes 
upon inquiry, and remove all question of negligence on the part 
of the shipper. And, in a case where the article was shipped 
marked " Carbon Oil, Unsafe, for illuminating purposes," it was 
held that this description in the freight bill and on the barrels was 
not sufficient notice to inform the employes of the carrier of the 
danger in handling it, and of their peril in exposing a lighted 
lamp near it. And, although this mark was in accordance with 
an agreement between shipper and carrier neither was released 
from their liability to answer to the employe for the dangerous 
injury to which they carelessly exposed him? 

' Standard Oil Co. v. Tierney, 14 L. R. A. 677, 92 Ky. 367. 



LIABILITY or SHIPPEES OF DAN6EE0US GOODS TO EMPLOYE. 89 

A ruling which holds the shipper liable for an injury to an em- 
ploye of the carrier, where actual notice of the dangerous charac- 
ter of the article shipped was given to the carrier, and by agree- 
ment the designation not warning the employe of the peril in 
handling the article, is grounded on a principal of law which 
clearly imputes liability to the owners of their property received 
by the carrier and thus injured ; and unquestionably requires the 
shipper to answer in damages to the carrier, where he fails, even 
without inquiry on the carrier's part, to notify it of the danger it 
incurs, to both its employes and its cargo, from the shipment." 

' Boston & A. R. Co. v. Shanly, 107 Mass. 568; Warrant v. Barnes, 11 C. B. N. 
S. 553; Brass v. Maiikmd, 6 Bl. & Bl. 470; WUUiams v. East India Co. 3 
East, 192; Pm'ce v. Winsor, 2 Cliff. 18. 



CHAPTEE IV. 

BILL OF LADING. 

§ 24. Definition of Bill of Lading. 

§ 25. Bill of Lading as a Contract and as a Receipt. 

§ 26. Fraud or Mistake in Bill of Lading. 

§ 27. Bill of Lading Should le Delivered. 

§28. "Contents and Value Unknown" — "Weight Unkrwwn"— 

" More or Less." 
§ 29. Assignment of Bill of Lading. 
§ 30. " Order " or " Assign " in Bill of Jjading. 
§ 31. Bill of Lading with Draft Attached. 
§ 32. " Charges to le Collected"—" C. 0. D." 
§ 33. Usage or Custom as Affecting Carrier's Liability. 

§ 24- Definition of Bill of Lading. 

A bill of lading is the written contract of the parties, and by 
its terms their rights and liabilities must be measured.' It is at 
once a receipt and a contract. It is an acknowledgment of the 
receipt of the property and a contract to carry safely and deliver.' 
It is as a receipt, that the bill of lading is chiefly treated as a quasi 
negotiable instrument: while the carrier remains bound bv it and 
must have his liabilities restricted by it, as a contract.' No par- 
ticular form or solemnity of execution of a bill of lading is re- 
quired to impose a liability on a common carrier to transport 
goods. It may be by parol or it may be in writing. In either 
case it is equally binding.* 

■ Fry V. Louimlle, N. A. & O. B. Go. 103 Ind. 265. 

2 St. Louis, I. M. & 8. B. Co. v. EnigM. 122 U. S. 79, 30 L. ed. 1077. See note 

to LouimiUe, E. <6 St. L. B. Co. v. Wilson (Ind.) 4 L. R. A. 244. 
^Blanchard V.Page, 8 Gray, 281; Lickbarrow v. Mason, 5 T. R. 683. See 

Abbott, Shipping, 326; Seaman v. The Thames, 81 U. S. 14 Wall. 98, 20 L. 

ed. 804; Eazard v. Ahel, 15 Abb. Pr. N. S. 413; Ontario Bank v. i\'e«> Jersey 

S. B. Co. 59 N. Y. 510; BaUey v. Hudson Biwi- B. Co. 49 N. Y. 70; Brandt 

V. Bowlby, 2 Barn. & Ad. 932; Dan. Neg. Inst. § 1728. 
* Mobile & M. B. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527. 

90 



DEFINITION OF BILL OF LADMa. 91 

The great need for uniformity in such contracts has impressed 
itself on the business community, and thirteen of the twenty-two 
of the prominent boards of trade, chambers of commerce, and 
freight associations, composing the National Transportation Asso- 
ciation, were represented at the regular quarterly meeting in Chi- 
cago on Thursday, May 21, 1891, at the Board of Trade. The 
Commercial Exchange of Philadelphia and the New Orleans 
Board of Trade were admitted to membership. Steps were 
taken to secure the adoption of an official uniform bill of lading 
for interstate commerce to supersede those now used by common 
cari'iers. The following form was adopted : 

"Received for transpoTtation from (shipper), in apparent good order, as 
noted, the packages described below," value unknown. Marked and con- 
signed as per margin and subject to carrier's liability as laid down by the 
common law in force in the several states, territories, provinces or countries 
through which the property must pass. "The rate of freight upon property 

herein described shall not exceed per between (shipping point) and 

(destination). 

"Marks and consignments . 

"Description of articles . 

"Weights, subject to correction . 

All attempts to secure more liberal bills of lading from railways 
having failed, this is to be the initial movement toward securing 
governmental aid. The Interstate Commerce Commission will be 
asked to ratify this bill of lading and its adoption by all railroads, 
as bills of lading over connecting lines to points beyond the state, 
issued by a railroad whose line is entirely within one state, are 
subj'ects of interstate commerce.' 

The legislature of New York created a corporate body known 
under the title of the New York Produce Exchange " to inculcate 
just and equitable principles in trade ; to establish and maintain 
uniformity in commercial usages ; to adjust controversies and 
misunderstandings between persons engaged in business. '^ In con- 
cert with the Liverpool Shipowners Association this New York 
Produce Exchange has presented the form of a bill of lading, 

^ Re Annapolis, W. & B. B. Co. 1 Inters. Com. Rep. 315. 
'Laws 1862, chap. 359, § 3; Laws 1868, chap. 30, § 1; Laws 1882, chap. 36, 
§2. 



92 BILL OF LADING. 

which to a limited extent has been accepted by other exchanges 
in this country. It is as follows : 

New Yokk 'Produce Exchange Steamship Bill op LADnta. 

Received in apparent good order and condition, by from , to be 

transported by the good steamsliip now lying at the port of and 

bound for , with liberty to call at being marked and numbered as 

per margin (weight, quality, contents and value unknown) and to be delivered 

in like good order and condition at the port of unto , or to his 

or their assigns, he or they paying freight on the said goods on delivery at 
the rate of and charges as per margin. General average payable accord- 
ing to York-Antwerp rules. 

It is mutually agreed that the ship shall have liberty to sail without pilots; 
to tow and assist vessels in distress; to deviate for the purpose of saving life 
or property; to convey goods in lighters to and from the ship at the risk of 
the owners of the goods but at ship's expense; and in case the ship shall 
put into a port of refuge for repairs, to transmit the goods to their destina- 
tion by any other steamship. It is also mutually agreed that the carrier shall 
not be liable for loss or damage occasioned by the perils of the sea or other 
waters, by fire from any cause on land or (jn water, by barratry of the master 
or crew, by enemies, pirates or robbers, by arrest and restraint of princes, 
rulers or people, by explosion, bursting of boilers, breakage of shafts, or any 
latent defect in hull or machinery, by collisions, stranding, or other accidents 
of navigation (even when occasioned by the negligence, default, or error in 
judgment of the pilot, master, mariners or other servants of the shipowner, 
not resulting, however, in any case, from want of due diligence by the owner 
of the ship or any of them, or by the ship's husband and manager); nor for 
decay, putrefaction, rust, sweat, change of character, drainage, leakage, break, 
age, or any loss or damage arising from the nature of the goods or the in- 
sufficiency of packages; nor for land damages; nor for the obliteration or 
absence of marks or numbers; nor for any loss or damage caused by the 
prolongation of the voyage. 

1. It is also mutually agreed that the carrier shall not be liable for gold, 
silver, bullion, specie, documents, jewelry, pictures, embroideries, works of 
art, silks, furs, china, porcelain, watches, clocks, or for goods of any descrip- 
tion which are above the value of $500 per package, unless bills of lading 
are signed therefor, with the value therein expressed, and a special agreement 
is made. 

3. Also, that shippers shall be liable for any loss or damage to ship or 
cargo caused by inflammable, explosive or dangerous goods, shipped without 
full disclosure of their nature, whether such shipper be principal or agent, 
and such goods may be thrown overboard or destroyed at any time without 
compensation. 

8. Also, that the carrier shall have a lien on the goods for all fines or 
damages which the ship or cargo may incur or sufEer by reason of the incor- 
rect or insufficient marking of packages or description of their contents. 



BILL OF LADING AS A OONTBACT AND AS A EEOEIPT. 93 

4. Also, that in case the ship shall be prevented from reaching her desti- 
nation by quarantine, the carrier may discharge the goods into any depot or 
lazaretto, and such discharge shall be deemed a final delivery under this con- 
tract, and all the expenses thereby incurred on the goods shall be a lien 
thereon. 

5. Also, that if the goods be not taken by the consignee within such time 
as is provided by the regulations of the port of discharge, they may be stored 
by the carrier at the expense and risk of their owners. 

6. Also, that full freight is payable on damaged goods; but no freight is 
due on any increase in bulk or weight caused by the absorption of water during 
the voyage. 

7. Also, that if on the sale of the goods at destination for freight and 
charges, the proceeds fail to cover said freight and charges, the carrier shall 
be entitled to recover the difference from the shipper. 

8. Also, that in the event of claims for short delivery when the ship reaches 
Tier destination, the price shall be the market price at the port of destination 
on the day of the ship's entry at the custom house, less all charges saved. 

And finally, in accepting this bill of lading, the shipper, owner and con- 
signee of the goods agree to be bound by all of its stipulations, exceptions 
and conditions, whether written or printed, as fully as if they were all signed 
by such shipper, owner or consignee. 

In witness whereof, the master or agent of the said ship has afSrmed to 
three bills of lading, all of this tenor and date, drawn as "first," "second" 
and "third," one of which being accomplished, the others to stand void. 

Dated in this day of , 188... 

§ 25. Bill of Lading as a Contract and as a 
Receipt. 

A bill of lading is two fold in its character. It is a receipt 
specifying the quantity, character and condition of the goods re- 
ceived, and it is also a contract by which the carrier agrees to 
transport the goods therein described to the place named, and 
there deliver them to the designated consignee upon the terms 
and conditions specified in the instrument.' So far as a bill of 
lading is in the nature of a receipt or an acknowledgment of the 
quantity and condition of the goods delivered it may, like any 
other receipt, be explained, varied, or even contradicted ; but as a 

' The Belawa/re v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 80 L. ed. 779; Pol- 
lard V. Vinton, 105 U. S. 7, 26 L. ed. 998; &ood/rich v. Norris, Abb. Adm. 
196; Chandler v. Sprague, 5 Met. 306, 38 Am. Dec. 405, and note; O'Brien 
V. Oilchriat, 34 Me. 554, 56 Am. Dec. 676; Desty, Ship. & Adm. § 220. 
Compare Knox v. The Ninetta, Crabbe, 534. 



94: BILL OF LADING. 

contract expressing the terms and conditions upon which the 
property is to be transported it is to be regarded as a merging of 
prior and contemporaneous agreements of the parties, and in the 
absence of fraud, concealment or mistake, its terms or legal im- 
port, when free from ambiguity, cannot be explained nor added 
to by parol.' 

In the absence of evidences of fraud or mistake, it must be con- 
clusively presumed that the oral negotiations respecting the terms 
and conditions upon which the goods were received, and the route 
by which they are to be forwarded are merged in the bill of lad- 
ing. This must be taken as a final repository, and the sole evi- 
dence of the agreement between the parties as to these matters.' 
As a contract it is conclusive between shipper and carrier ; but as 
a receipt for the goods, its statements are prima facie evidence 
only, and may be explained by parol evidence.' In so far as it is 
a contract, it cannot be explained by parol. But so far as it is a 
receipt, it may oe explained by parol, in a suit between the origi- 
nal parties to it.* It is not conclusive evidence of the receipt of 
the goods, or of their condition as between the owner and ship- 
per f and it may be contradicted as to ownership of the goods ;° or 

» 

' Snow V. Indiana, B. & W. B. Go. 109 Ind. 422. 

» Snow V. Indiana, B. & W. B. Co. 109 Ind. 422; Long v. N'ew York Gent. R. 
Co. 50 N. T. 76; Hinckley v. Neu> Tm-k Gent. & H. B. B. Go. 56 N. Y. 429; 
Turner v. St. Louis <& 8. F. B. Co. 20 Mo. App. 632. 

^Eing v. The Lady Franklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; The Dela- 
ware V. Oregon Iron Go. 81 U. S. 14 Wall. 601, 20 L. ed. 783; The J. W. 
Brown, 1 Biss. 79; The Martha. Olcott, 140; The WeUington, 1 Biss. 280; 
Baxter v. Leland, Abb. Adm. 348; T!ie Beeside, 2 Sumn. 567; Manchester t. 
Milne, Abb. Adm. 115; Zerega v. Poppe, Abb. Adm. 897; ' Wayland v. 
Mosely, 5 Ala. 430, 39 Am. Dec. 335; Barrett v. Bogers, 7 Mass. 297, 5 Am. 
Dec. 45; Barber v. Brace, 8 Conn. 9, 8 Am. Dec. 149; Hastings v. Pepper, 
11 Pick. 41; Portland Bank v. Stubbs, 6 Mass. 422. 4 Am. Dec. 151; MUs v. 
WiUard, 9 N. Y. 529; Wolfe v. Myers, 3 Sandf. 7; Galiero v. WeUh, 8 Phila. 
180; May v. Babcock, 4 Ohio, 834; Bean v. King, 22 Ohio St. 118; Warden 
V. Oreer, 6 Watts, 424; Williams v. Branson, S N. C. 417, 4 Am, Dec. 562; 
Edw. Bailm. 490. 

'King v. The Lady Franklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; I/ie Dela- 
ware V. Oregon Iron Go. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 

' Gibbons v. Bobinson, 63 Mich. 146; Merchants iVdJ. Bank of Cincinnati v. 
Bangs, 102 Mass. 291 ; Bostwiak v, Baltimore & 0. B. Co. 45 N. Y. 712. 

» Chouteaux v. Leech, 18 Pa. 224, 57 Am. Deo. 602; Maryland Ins. Go. v. 
Buden, 10 U. S. 6 Cranch, 338, 3 L. ed. 242, 



BILL OF LADING AS A CONTRACT AND AS A EBOEIPT. 95 

their quantity;' or their condition when shipped." But in so far 
as it is a contract, parol evidence is not admissible to vary its 
terms." The bill of lading delivered contains the contract be- 
tween the ship and the shipper, and shows the duty assumed by 
the vessel.* Stipulations to vary the law merchant in respect to 
obligations arising on a bill of lading must be in writing signed by 
the parties.' 

It is no longer open to question, that in the absence of fraud 
or Imposition, the rights of the carrier and shipper not involv- 
ing negligence of the carrier, are controlled by a contract in 
writing delivered to the shipper by the carrier at the time • 
of the receipt of the property for transportation." When the 
special contract is proved, the shipper cannot rely on the common 
law liability of the carrier.' The owner of the goods may rely 
upon the responsibility imposed by the common law ; but if he 
voluntarily agrees to a stipulation for exemption from liability, 
which does not cover losses from negligence or misconduct, it may 
be recognized and enforced.* The only remedy of the shipper in 

^Manning v. Hoover, Abb. Adm. 188; McGready v. Holmes (S. 0.) 6 Am. L. 
Reg. 229; The Columbo, 3 Blatchf. 521; Hunt v. Mississippi Cent. B. Co. 29 
La. Ann. 446; Baltimore & 0. B. Co. v. WUkena, 44 Md. 11, 22 Am. Rep. 
26; Louisiana Nat. Bank v. Zaveille, 52 Mo. 380. 

'Nelson v. Woodruff, 66 TJ. S. 1 Black, 156, 17 L. ed.97; Turner v. The Black 
Warrior, 1 McAU. 181; Zamir. Parkman, 1 Sprague, 343; The Tan Bark 
Case, 1 Brown, Adm. 154; The Orijlamme, 1 Sawy. 176; The Maggie Ham- 
mond, 76 U. S. 9 Wall. 459, 19 L. ed. 780; The Olbers, 3 Ben. 150; Arend v. 
Liverpool, N. T. & P. 88. Co. 64 Barb. 118; Clark v. Barnwell, 58 U. S. 12 
How. 272, 13 L. ed. 985; EUis v. Willwrd, 9 N. Y. 529; Keith v. Amende, 1 
Bush, 455; Richards v. Doe, 100 Mass. 534. 

^Butler V. The Arrow, Newb. 59; Bradley v. Dunipace, 1 Hurlst. & C. 521. 

* The Thames v. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804; Vanderwater v. 
Mau, 60 D. S. 19 How. 82, 15 L. ed. 554. 

'Briitan v. Barnahy, 63 U. S. 31 How. 537, 16 L. ed. 177; The Bird of Par- 
adise, 72 U. S. 5 Wall. 562, 18 L. ed. 666; How v. Kirchner, 11 Moore, P. 
C. 21; Kirchner v. Venus, 12 Moore, P. 0. 384. 

'Squire v. New York Cent. B. Co. 98 Mass. 239, 93 Am. Dec. 163; Perry v. 
Thompson, 98 Mass. 349; Grace v. Adams, 100 Mass. 505, 97 Am. Deo. 117, 
1 Am. Rep. 131; Pendergasty. Adams Exp. Co. 101 Mass. 120; Lawrence v. 
New York, P. & B. B. Co. 36 Conn. 63; Kallman v. United States Exp. Co. 
3 Kan. 205. 

''Michigan Cent. B. Co. v. Hale, 6 Mich. 343. 

' York Mfg. Co. v. Illinms Cent. B. Co. 70 U. S. 8 Wall. 107, 18 L. ed, 
170. 



96 BILL OF LADING. 

case of loss is to sue for the breach of the special contract.' If 
the shipper ignores the contract and sues upon the common law 
liability, he will, on proof of the special contract, be nonsuited.' 
An express receipt delivered at the time of shipment, is a con- 
tract.° So, a " domestic bill of lading " delivered to a shipper, is 
a contract whose terms are binding on both parties.* It must be 
construed according to its terms, like any other contract.' Thus 
" terra cotta busts " were held not to be " statuary " within the 
meaning of a carrier's contract.' 

A contract of shipment with exemptions, made after injury to 
property, but containing no release from past liability, does not 
relieve the carrier from such liability.' 

The rules which control the effect of written contracts, apply 
of course, to bills of lading; and the effect given to such 
contract in law is equally binding and conclusive, whether it be 
the result of an express stipulation, or one implied from the char- 
acter of the instrument. The obligation implied by law from the 
language employed, is as much part of the contract, as "though 
what the law implies has been fully expressed in words.' 

' Shaw V. York & N. M. R. Co. 13 Q. B. 347; Austin v. Manchester, 8. & L. 

R. Co. 15 Jur. 670; Kimball v. Rutland & B. R. Go. 26 Vt. 247, 62 Am. 

Dec. 567. 
» Latham v. Rutley, 2 Barn. & C. 20; Austin v. Manehester, 8. & L. R. Co. 15 

Jur. 670; Davidson v. Graham, 2 Ohio St. 131; Ferguson v. Cappeau, 6 

Harr. & J. 394; Stump v. Hutchinson, 11 Pa. 533. 
2 Collender v. Dinsmore, 55 N. T. 200, 14 Am. Rep. 224. 
" Ym-k Mfg. Go. v. Illinois Gent. R. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170; 

Kirkland v. DinMnore, 62 N. T. 171, 20 Am. Rep. 475; WestcoU v. Fargo, 

6 Lans. 319; Dillard v. Louisville & N. R. Go. 2 Lea, 288. See also Magnin 

V. Dinsmore, 56 N. Y. 168; Stdnweg v. Erie R. Go. 43 N. T. 123, 3 Am. 

Rep. 673; Dorr v. New Jersey Steam Nan. Go. 11 N. Y. 485, 62 Am. Dec. 

125; Breese v. United States Teleg. Go. 48 N. Y. 132, 8 Am. Rep. 526; Toung 

V. Western U. Teleg. Go. 65 N. Y. 163, cited in Wheeler, Carr. 227. 
» Bradstreet v. He/ran, Abb. Adm. 209; Portland Bank v. 8tiMs, 6 Mass. 422, 

4 Am. Dec. 151; Barrett v. Rogers, 7 Mass. 297, 5 Am. Dec. 45; Bastings v. 

Pepper, 11 Pick. 42; Pnce v. Powell, 3 N. Y. 322; ElUs v. WHlard, 9 N. Y. 

529; The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 601 20 L. ed. 783; 

McMUlan v. Michigan, S. <fe N. 1. R. Co. 16 Mich. 79, 93 Am. Dec. 20S; 

Oreery v. Edll;/, 14 Wend. 26; White v. Missouri Pac. R. Go. 19 Mo. App. 

400; Snow v. Indiana, B. & W. R. Co, 109 Ind. 422; Turner v. St. Louis ifc 

8. F. R. Go. 20 Mo. App. 632. 
' Sutton V. Oiceri, L. R. 15 App. Cas. 144. 
I McOuMough v. WaJyash Western R. Co. 34 Mo. App. 28. 
8 Long 7. Straus, 107 Ind. 94, 57 Am. Rep. 87. 



BILL OF LADING AS A CONTEACT AND AS A EBCEIPT. 97 

All contracts have imported into them legal principles which 
can no more be varied by parol evidence, than the strongest and 
clearest expressed stipulation. Undoubtedly, necessary implica- 
tion is as much part of an instrument, as if that which was im- 
plied was plainly expressed." Where the shipper of a carload of 
horses who received the bill of lading, in which no route was 
designated by which the cargo was to be forwarded after leaving 
the initial carrier's line, ofEered to prove that a particular line had 
been agreed upon, it was held that the silence of the bill of lading 
in respect to the route was the same in legal effect as if a provis- 
ion had been inserted therein authorizing the first carrier to select 
at its discretion, any customary or usual route, which was regarded 
as safe and responsible, by which to forward the car, and that the 
provision thus imported into the bill of lading was no more sub- 
ject to be assailed by parol than were any express terms of the 
contract." The cases which affirm this principle are very numer- 
ous. They proceed upon the theory that, in the absence of 
express stipulation, certain terms are annexed to every contract 
by legal implication, and that stipulations thus imported into the 
contract become as effectually a part of the written agreement as 
though they were expressed therein in terms.' Where a bill of 
lading specifies the rate per 100 pounds to be paid for goods car- 
ried but does not state their weight, which was readily ascertain- 
able, the sura to be paid is sufficiently specified to accomplish the 
object of an act whose purpose was to prevent a railroad from 
charging a greater sum for the transportation of freight than is 
specified in the bill of lading.* Where the bill of lading fails to 
state the amount of freight, the law supplies, by implication, that 

' Delaware & H. Canal Go. v. Pennsyhania Coal Co. 75 U. 8. 8 Wall. 276, 
288, 19 L. ed. 349, 353; TMoe v. QraeUr, 1 Blackf. 353; Hull v. Butler, 7 
Ind. 267; Jones v. Cla/rk, 9 Ind. 341; McEernan v. Mayhew, 31 Ind. 291; 
Foulks V. FalU, 91 Ind. 315. 

^Snow V. Indiana, B. & W. B. Co. 100 Ind. 423. 

' While V. AsMon, 51 N. T. 380; Hinckley v. New York Cent. & H. B. B. Co. 
56 N. y. 439; Simkins v. Norwich & N. L. 8. B. Co. 11 Cush. 103; Long v. 
Straus, 107 Ind. 94, 57 Am. Rep. 87; Delaware & H. Canal Co. v. Pennsyl- 
ionia Coal Co. 75 U. S. 8 Wall. 376, 385, 19 L. ed. 349-353; Hill v. Syra- 
cuse, B. & N. r. B. Co. 73 N. T. 351, 39 Am. Rep. 163. 

*Uttle Bock & Pt. 8. B. Co. v. Hanniford, 49 Ark. 291. 
7 



98 BILL OF LADING. 

it must be the amount usually charged for such freight, and 
completes the contract, and parol evidence is inadmissible to 
vary, control, or contradict the terms therein expressed, or those 
which the law certainly implies, in the absence of fraud or mis- 
take.' 

An apparent exception to the general rule occurs where 
proof of an agreement collateral to that contained in the bill of 
lading is offered." And the bill of lading and shipping note when 
executed at the same time, and simultaneously delivered, and 
relating to the same matter, constitute one agreement." Cross- 
ties were shipped and all the bills of lading contained a stipu- 
lation to the effect that cross-ties were to be transported over 
the defendant's road and that they were to be delivered as therein 
specified upon payment of freight and charges in par funds. In 
some of them the amount to be paid is not fixed, whUe in others 
the charges actually collected were inserted in the bills of lading 
before they were delivered and before the ties were transported. 
Plainly there can be no ground of recovery back of the sum paid, 
where the amount actually collected was stipulated in the bills of 
lading beforehand, and it is not competent to give evidence of an 
oral agreement concerning the amount of freight to be paid, with 
a view of establishing a right of recovery in respect to those bills 
of lading in which the amount is not fixed in express terms. The 
bills of lading must be regarded as either complete contracts into 
which all the early negotiations of the parties are merged, or they 
are entirely vdthout force or effect as evidence of the terms and 
conditions upon which goods were to be transported. While it 
is true that the contract of a common carrier to transport goods 
is equally binding whether it be by parol or in writing,' there is 
no reason to support a rule which should declare that part of tiie 
contract might be in writing, and part covering the same subject- 

' Peniberton Co. v. Neui York Cent. B. Go. 104 Mass. Ui; Indianapolu & O.R. 
Go. V. Semmy, 18 Ind. 518; Jeffersonville, M. & I. R. Go. v. WorUnd. 50 
Ind. 339; Louismlle, E. & St. L. S. Go. v. Wilson, 4 L. R. A. 244, 119 Ind. 
353. 

• Baltimore c6 P. S. B. Go. v. Brown, 54 Pa. 77. 
' Jennings v. Grand Trunk R. Co. 52 Hun, 337. 

* Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527. 



FRAUD OE MISTAKE IN BILL OF LADING. 99 

matter by parol. Either the bill of lading must be regarded as 
the sole repository of the agreement of the parties in special 
terms upon which the shipments were made, or it must be re- 
garded as a receipt and nothing more. As a contract, the bill of 
lading, like other written contracts, is presumed, in the absence 
of imposition or mistake, to embody the entire agreement of the 
parties.' 

§ 26. Fraud or Mistake in Bill of Lading. 

A statute declaring the liability of a carrier on bills of lading, 
does not give validity to stipulations therein which are the result 
of fraud or mistake. A statement made fraudulently or by mis- 
take in a bill of lading, representing the weight of freight to be 
less than it is in fact, will not prevent the carrier from recover- 
ing for the whole amount carried, according to the rate per hun- 
dred pounds stated in the bill." The shipper is not bound by a 
clause on the back of the shipping bill, which, apparently by 
inadvertence, was not struck out, or adapted to the terms of the 
special contract.' One of several independent steamers, consti- 
tuting a certain well known line belonging to different owners 
who are not interested in the business of any vessels except their 
own, which fails to take all the cotton specified in bills of lading 
given by the agent of the line, where the bills for the whole 
quantity were made out in the name of that vessel in exchange 
for shipping receipts which, by mistake of the employes of such 
agent, named that vessel instead of giving the agent an option 
between that and the vessel next following, as agreed on in a 
contract for shipment between the agent and the owner of the 
cargo, — ^is not liable for loss on account of a fall in the market 
price before the arrival of the next vessel, but is liable for the 
premium paid for insurance on the cotton which was not actually 
carried.* A receipt executed by a railway agent several months 

' Louismlle, E. & 8t. L. B. Co. v. Wilson, 4 L. R. A. 244, 119 Ind. 352; Long 

V. Mw Ym-k Cent. E. Co. 50 N. Y. 76. 
^Baird v. 8t. Louis, I. M. & S. B. Co. 41 Fed. Rep. 592, 42 Am. & Eng. R. 

Cas. 281. 
'Jennings v. Grand Trunk B. Co. 52 Hun, 227. 
< Crenshaw v. Pearce, 43 Fed. Rep. 803. 



100 BILL OF LADING. 

after the goods for which it was given were delivered, — especially 
if litigation is then contemplated or has become probable — is not 
evidence to affect the company, unless special authority in the 
agent is shown.' 

To sustain a defense at law, that defendant was induced to sign 
by fraudulent representations, the only fraud permissible to be 
proved is fraud touching the execution of the instrument." 
"Where the signature to a contract was obtained through fraudu- 
lently false representations of its contents, the defense of fraud 
may be set up in an action based upon the contract. Non est 
factAim aoTAdi have been pleaded at common law.' "Fraud" is 
the term which the law applies to certain facts ; and where upon 
the facts the law adjudges fraud, it is not essential that the com- 
plaint should in terms allege it. It is sufficient if the facts stated 
amount to a case of fraud.* Fraud or circumvention, which a 
statute embodying a rule of common law allows as a defense to 
written instruments against the guilty party or an assignee, is not 
that which goes merely to the consideration, but to the exeentiou 
or making ; and there must be a trick or device by which one 
kind of instrument is signed in belief that it is another Mnd, or 
the amount or nature or terms of the instrument must be misrep- 
resented." When one of two contracting parties is fraudulently 
induced to execute a written instrument upon the false represen- 
tation that it expresses the agreement which they have made, the 
party defrauded may defend against the enforcement of the 
fraudulent instrument by the other party, even though he may be 
chargeable with want of prudence in relying upon the false rep- 
resentations. This defense may also be made when a third party, 
for whose benefit the contract was made, seeks to enforce it." 

' Hematite Min. Co. v. Eoit Tennessee, V. & O. S. Co. (&a.) July 17, 1893. 

2 George v. Tate, 102 U. S. 564, 36 L. ed. 233; Hartshorn, y. Day, 60 U. S. 19 
How. 313, 15 L. ed. 605; OsierTwut v. Shoemaker, 3 Hill, 513- BelcUn v Da- 
vies, 3 Hall, 433; Prancliot v. Leach, 5 Cow. 506. 

»FonFaaewJitrffAv..B£m*,13Johns. 337;,Stocyv.ifcss,37Tex 8 84A.m Dqc, 
604; Foster v. MacUnnon, L. R. 4 C. P. 704; Vorley v. Cooke, 1 Gifl. 230. 

* Stimson v. Helps, 9 Colo. 83; Kerr, Fraud & Mistake, 866; 3 Estee, PI. 423. 

' Oregonv. Jennings, 119 U. S. 74, 30 L. ed. 333; Shipley v. GarroU 45 111. 285; 
Mhott V. Lemngs, 54 111. 213; Maxey v. Williamson County Ct. 72 111. 207. 

'Maxjield v. Sehwa/rtz, 10 L. R. A. 606, 43 Minn. 221. 



BILL OF LADING SHOULD BE DELIVEEED. 101 

Where the written instrument has not passed from the hands of 
the original holder, it does not lie in his mouth to say that the 
defendant was not in law defrauded, because he was careless in 
trusting to the representations made which induced its execution.' 
Where the parties to a transaction do not stand on an equal foot- 
ing, one induced to act to his prejudice by fraudulent representar 
tion of the other, is not precluded from recovering damages be- 
cause he did not prosecute diligent inquiry as to the truth or 
falsity of the representations." But a party on equal footing, who 
refuses to make diligent inquiry and exercise his own judgment, 
cannot complain that the other party practiced fraud upon him.' 
It is inexpedient upon grounds of public policy that a solemnly 
executed instrument should be set aside upon the ground of fraud, 
unless equitable and proof of the fraud be clear and strong.* 

§ 27. Bill of Lading Should he Delivered. 
Shippers should in all cases require a bill of lading, which should 
be signed by the carrier; or when the carriage is by water by the 
master, whether the contract of affreightment is by charter-party 
or without any such customary written instrument. The terms 
of a bill of lading not signed by or delivered at the time of ship- 
ment to the shipper or his authorized agent, are binding upon him 
when it is subsequently sent to a third person who indorses it 
over to him, and he enters the goods at the custom house there- 
on.' Where the goods of a consignment are not all sent on board at 
the same time, it is usual for the master, mate or other person in 
charge of the deck, and acting for the carrier, to give a receipt 
for the parcels as they are received, and when the whole consign- 

' Mackey v. Peterson, 29 Minn . 298, 43 Am. Rep. 211; Cole v. Williams, 13 Neb. 
440; NebekerY. Guisinger, 48 Ind. 436; Spurginy. Traub, 65 111. 170. 

«a)«nHv. -STtoot, lOOMo. 398; WosraneK v. Kern, 57 Mo. 478; Bigelow, Fr. 
534. 

^FmtNat. Bank of Cheyenne y. 8v)an(Wyo.) Feb. 5, 1890. 

* Cannon v. Jackson, 40 Ark. 417; Parlin r. Small, 68 Mo. 290; Brown v. Blunt, 
72 Me. 415; Martin v. Berens, 67 Pa. 459. False representation, see notes 
to Nounnan v. Bitter County Land Co. (CaX.) 6 L. R. A. 319; Tappan v. Al- 
bany Brewing Co. (Gal.) 5 L. R. A. 438; Dawe v. Morris (Mass.) 4 L. R. A. 
158; Finlaysonr. Mnlayson (Or.) 3 L. R. A. 801; Davis y. Nuzum (Wis.) 1 
L. R. A. 774. 

' Rubens v. LudgaU Hill 8. 8. Co. 48 N. T. S. R. 733. 



102 BILL OF LADING. 

ment is delivered, the master, upon those receipts being given up, 
will sign two or three, or, if requested, even four bills of lading 
in the usual form, one being for the ship and the others for the 
shipper. More than one is required by the shipper, as he usually 
sends one by mail to the consignee or vendee, and if four are 
signed he sends one to his agent, or factor, and he should always 
retain one for his own use. Where bills of lading are executed 
in triplicate in shipments by water, those retained by the shipper 
and his consignee control the triplicate which remains in posses- 
sion of the master.' The indorsee of first set obtains title as 
against subsequent indorsee of the others." And the same rule 
applies as to duplicates, the one delivered by the carrier being 
accepted in preference to the one retained, which has only the 
authority of a memorandum.' 

Such an instrument acknowledges the bailment of the goods, 
and is evidence of a contract for the safe custody, due trans- 
port and right delivery of the same, upon the terms as to 
freight, therein described, the extent of the obligation being 
specified in the instrument. Where no exceptions are made 
in the bill of lading, and in the absence of any legislative 
provisions prescribing a different rule, the carrier is bound to 
keep and transport the goods safely, and to make right delivery 
of the same at the port of destination, unless he can prove that 
the loss happened from the act of God or the pubUc enemy, or 
by the act of the shipper or owner of the goods. Stipulations in 
the nature of exceptions may be made limiting the extent of the 
obligation of the carrier, and in that event the bill of lading is 
evidence of the ordinary contract of affreightment, subject, of 
course, to the exceptions specified in the instrument ; and in view 
of that fact the better description of the obligation of such a car- 
rier is that, in the absence of any congressional legislation upon 
the subject, he is in the nature of an insurer, and liable, in all 
events and for every loss and damage, however occasioned, unless 

' 2U Thames v. Seaman, 81 U. S. 14 Wall. 105, 20 L. ed. 805. 
» The Tigress, Brown & L. 38 ; Glyn v. East <& West India Dock Co. L. R. 5 Q. B. 
Div. 129; MeyersieinY. Barber, L. R. 2 C. P. 38, L. R. 4 Eng. & Ir. App. 317. 
' Ontario Bank v. Hanlon, 23 Hun, 283. 



BILL OF LADING SHOULD BE DBLIVEKED. 103 

it happened by the act of God or the pubKc enemy, or by some 
other cause or accident, without any tault or negligence on the 
part of the carrier, and expressly excepted in the bill of lad- 
ing.' 

If the master has received a cargo on board he is bound to pre- 
pare and sign a bill of lading, or to put it ashore again at the ship's 
expense ; otherwise, for his neglect, he and the owners may be 
liable for a conversion. "Where no demurrage is due, a proper 
bill of lading should be made out, and the refusal or neglect of 
the master to give such an one, is a violation of shipper's legal 
right for which they are entitled to at least nominal damages. If 
demurrage is due, a proper bill of lading should be endorsed with 
protest and claim for demurrage." Such a contract is to be con- 
strued, like all other written contracts, according to the legal im- 
port of its terms. It becomes the sole evidence of an undertak- 
ing, and all antecedent agreements are extinguished by the writ- 
ing-' 

The obligation of the carrier extends only to acknowledge the 
receipt of the goods and the engagement to carry and deliver 
them." The owners are bound by the bill of lading, although the 
master does not add "master" to his signature.' But state- 
ments, although by an agent of a carrier, as to the contents 
of a record kept by the company, is inadmissible in evidence 
against it, where it relates to transactions long past, and the fur- 
nishing thereof is not within the scope of the agent's employ- 
ment. ° Shippers of goods by vessel, in the absence of notice of a 
charter party, have a right to assume that her captain and acting 

' TheNiagara v. Cordes, 62 U. S. 31 How. 23, 16 L. ed. 46; Olark-v. Barnwell, 
53 U. 8. 13 How. 373, 13 h. ed. 985; Mliott v. Bossell, 10 Johns. 7; The Dela- 
ware v. Oregon Iron Oo. 81 U. 8. 14 Wall. 579, 30 L. ed. 779. 

' Paterson v. Dakin, 31 Fed. Eep. 683. 

* Collender v. Binsmore, 55 N. Y. 300, 14 Am. Rep. 334; Southern Exp. Co. v 

Dickson, 94 U. 8. 549, 34 L. ed. 285; Bank of Kentucky v. Adams Exp. Go. 93 

U. 8. 174, 33 L. ed. 872; Kirkland v. Dinsmore, 62 N. Y. 171, 30 Am. Rep. 

475. 
■• Tlie May Flower, 3 Ware, 300; Perkins v. Hill, 2 Woodb. & M. 158, 1 

Sprague, 133. 
" Fox V. Holt, 36 Conn. 558. 

* Hematite Min. Oo. v. East Tennessee, V. & O.R. Oo. (Ga.) July 17, 1893. 



104 BILL OF LADING. 

agents of the charterer at the port of shipment, have authority to 
bind the owner by signing bills of lading." A railroad company 
is liable for the penalty prescribed by Tex. Kev. Stat. 1879, art 
280, for a failure and refusal to give upon demand a proper bill 
of lading of lumber shipped, where the bill of lading dehvered by 
it for the lumber shipped described it merely as a carload, whereas 
the shipper demanded the weight of the lumber." A railway 
company is liable for the value of cotton delivered to it and in its 
custody by virtue of a contract of shipment, that is destroyed by 
its negligence, even though it has given no bill of lading there- 
for.' 

A railroad company which makes one of a firm, which is almost 
the only consignee of goods delivered at a station, its agent at such 
station, charged with the responsibility of the business as between 
the company and the firm, and allows such business to be carried 
on for years in the office of the firm away from the station, with- 
out precaution to see that bills of lading for goods are canceled, 
— is liable to an innocent purchaser of a bUl of lading for goods 
consigned to such firm, which have been delivered to it without 
surrender of the bill of lading, and upon biUs of lading fraudu- 
lently issued by such agent.* Persons paying for goods on the 
faith of bUls of lading issued by a carrier to their agents, occupy 
towards such carrier the position of bona fide purchasers.' 

A master of a vessel cannot be required to state in his bills of la- 
ding the precise chemical character of the cargo, his authority being 
to bind his owners with regard to the weight, condition, and value 
of the goods, but not to estimate and state the particular mercan- 
tile quality of the goods before they are put on board. Since " dry 
phosphate rock " has two significations, one having reference to its 
commercial qualities, ascertained only by chemical analysis, and 
the second solely to its condition observable by the senses, a mas- 
ter of a vessel has a right to refuse to sign a bill of lading for 

' BaumvoU Manufaetur Von Scheibler v. Oilchrest ri891] 2 Q. B. 310. 
= Texas & P. B. Co. v. Cuieman (Tex. App.) Oct. 16, 1889. 
' Martin v. Ft. Worth & D. G. R. Co. 8 Tex. Civ. App. 556. 
^ Walters v. Wealern & A. R. Co. 56 Fed. Rep. 369. 
B r/je H. Q. Johnson, 48 Fed. Rep. 696. 



"contents and value, and weisht unknown." 105 

"dry phosphate rock," without any qualification to indicate con- 
dition, but not to refuse to sign for anything else but " phosphate 
rock," without any statement of its condition.' 

§ 28. " Contents and Value TJnhnown "—" Weight 
Unknown "—" More or Less." 

It may be stated as the general rule that the common carrier is 
not responsible for the difference in the quality of goods carried, 
as compared with that delivered in the bill of lading, if he safely 
delivers the very goods received by him for transportation. A 
bill of lading is at once a receipt and a contract ; it is the ac- 
knowledgment of the receipt of -the property, and the contract to 
carry safely and deliver. But, under the clause " Weight Un- 
known," a statement of the amount in the bill of lading, is not 
even prima facie evidence against the carrier, when it appears 
that all received was in, fact delivered." Where a shipment of 
cotton, in advance of its separation from the mass of bales, was 
receipted for in advance, reciting the receipt of the bales as, 
" Contents unknown. Marked and I^umbered as per Margin," and 
the bill of lading with a draft attached, was paid to the consignee, 
the fact that the cotton did not correspond in quality with the 
marks on the bill of lading, does not justify the consignee in re- 
fusing to accept and sell them, on account of the carrier.' The 
insertion of the words " Contents Unknown," expressly exoner- 
ates the carrier from all liability in regard to the quality of the 
goods carried ; and it cannot be held liable for nondelivery of a 
quality corresponding with that described in the bill of lading, 
where the actual article is thus delivered.* 

Where a bill of lading acknowledges the receipt of "the foUow- 

' The Kate V. Aitkin, 39 Fed. Bep. 328. 

' Henderson v. Three HunWreA Tons of Iron Ore, 88 Fed. Rep. 36; Lebeau v. 

Genial Bteam' Jfav. Co. L. R. 8 0. P. 88; Tfi£ Peter Der Grosse, L. R. 1 

Prob. Div. 414. 
^8t. JjMis, I. M. & S. B. Go. V. Knight, 133 U. S. 79, 30 L. ed. 1077. 
*St. Louis, 1. M. & 8. B. Go. v. Knight, supra; HoMow v. Parry, 3 Taunt. 

303; Jessel v. Bath, L. R. 3 Exch. 367; Olarh v. Barnwell, 53 U. S. 13 How. 

273, 13 L. ed. 985; Tlie Golumbo, 3 Blatchf. 531; Bissel-v. Price, 16 111. 408; 

Barrett v. Sogers, 7 Mass. 397, 5 Am. Dec. 45; Sheplierd v. Naylor, 5 Gray, 

591; MiUer v. Hannibal & St. J. B. Go. 90 N. Y. 430, 43 Am. Rep. 179. 



106 B[LL OF LADING. 

ing described packages " in apparent good order (" Contents and 
value unknown ") it imports only that the defendant had received 
the number of packages mentioned, which purports to contain the 
property thereinafter mentioned in the receipt. And, where ad- 
vances are made upon the shipment, the party making the ad- 
vances is chargeable with knowledge of the contents of the bill of 
lading, and must be held to have relied, not upon the admission 
in the bill of lading, but upon the assurances of the shipper, as to 
the contents of the packages.' So where " weight unknown " 
precedes the carrier's signature, it will control the statement pre- 
ceding it of the weight." A bill of lading for 400 pine piles 
" more or less," expressly made subject to a charter-party which, 
on its part, showed that no definite number was agreed to be car- 
ried, will prevent a consignee who has accepted drafts drawn on 
400 piles, from claiming damages for a deficiency where the vessel 
carried all that the charter-party required.' 

%B9. Assignment of Bill of Lading. 

A bill of lading is an instrument well known in commercial 
transactions, and its character and effect have been defined by ju- 
dicial decision. In the hands of the holder it is evidence of 
ownership, special or general, of the property mentioned in it, 
and of the right to receive said property at the place of dehvery. 
iSTotwithstanding it is designed to pass from hand to hand, with 
or without indorsement, and it is efficacious for its ordinary pur- 
poses in the hands of the holder, it is not a negotiable instrument 
or obligation in the sense that a bill of exchange or a promissory 
note is. Its transfer does not preclude, as in those cases, all in- 
quiry into the transaction in which it originated, because it has 
come into the hands of persons who have innocently paid value 
for it. The doctrine of bona fide purchasers only applies to it in 
a limited sense. It is an instrument of a twofold character. It 
is at once a receipt and a contract. In the former character it is 

' Miller v. Hannibal <£ St. J. B. Go. 90 N. Y. 430, 43 Am Rep 179 reversing 

24 Hun, 607; Haddow v. Pairy, 3 Taunt. 303. 
« Sliepherd v. Naylor, 5 Gray, 591; Jessel v. Bath, L. R. 2 Exch. 867. 
» Tlw Dixie, 46 Fed. Rep. 403. 



ASSIGNMENT OF BILL OF LADING. 107 

an acknowledgment of the receipt of property on board Ms vessel 
by the owner of the vessel. In the latter it is a contract to carry 
safely and deliver. The receipt of the goods lies at the founda- 
tion of the contract to carry and deliver. If no goods are actually 
received, there can be no valid contract to carry or to deliver.' 
Bills of lading represent the goods they call for, and a delivery of 
the bill of lading is equivalent to a constructive delivery of the 
goods themselves; as they thus represent a delivery of the goods, 
they differ from contracts which are merely assignable." When 
the bill of lading is transferred and delivered as collateral secur- 
ity, the rights of the pledgee under it are the same as those of an 
actual purchaser, so far as the exercise of those rights is necessary 
to protect the holder." A bank which makes advances on a bill 
of lading, has a lien to the extent of the advances on the property 
in the hands of the consignee, and can recover from him the pro- 
ceeds of the property consigned, even though the consignor be 
indebted to the consignee on general account ; and the consignee 
cannot appropriate the property or its proceeds to his own use in 
payment of a prior debt.* 

Yerbal mortgage or pledge of goods accompanied by a delivery, 
is good, at least as against the consignee to receive and sell the 
goods and to whom they are shipped, but who did not advance 
any money on account of the shipment. A consignee who had 
notice that a draft had been drawn by the owner against the goods 

' Missouri Pae. B. Co. v. MaFadden, 154 U. S. 155, 38 L. ed. 944 ; Pollard v. Vin- 
ton, 105 U. S. 7, 26 L. ed. 998. See King v. Tlie Lady Franklin, 75 U. S. 8 
Wall. 325, 19 L. ed. 455. 

« MeyersUin v. Barber, L. R. 2 C. P. 42; Hazard v. Fiske, 83 N. Y. 287; Tilden 
V. Minor, 45 Vt. 196 ; Dodge v. Meyer; 61 Oal. 405 ; Mobinson v. Stuart, 68 Me. 
61; Michigan Cent. B. Co. v. Phillips, 60 111. 198; Means r. Bank of Bandall, 
146 U. S. 620, 86 L. ed. 1107. 

*Means v. Bankof Bandall, 146 U. 8. 620, 86 L. ed. 1107; Halsey v. Warden, 25 
Cal. 138; Emery v. Irmng Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; 
Bows'iv. National Exch. Bank of Milwaukee, 91 U. 8. 618, 33 L. ed. 214; Damn- 
port Nat. Bank v. Homeyer, 45 Mo. 145, 100 Am. Dec. 363; Mrst Nat. Bank of 
Oreen Bay v. Dearborn, 115 Mass. 319, 15 Am. Rep. 92; Bank of Bochester 
V. Jones, 4 N. Y. 497, 55 Am. Deo. 390; Holmes v. German Security Bank, 87 
Pa. 525. 

* Means Y. Bankof Bandall, supra; Gonard v. Atlantic Ins. Co. ofN. T. 26 U. S. 
1 Pet. 386, 7 L. ed. 189; GiJsow v. Stevens, 49 U. 8. 8 How. 384, 12 L. ed. 1123, 
8 Parsona, Cout. 487. 



108 BILL OF LADING. 

consigned, and had been indorsed to the plaintiff, and this 
several hours before the goods were sold by the consignee, does 
not occupy the position of an innocent purchaser of the goods.' 
But bills of lading are not commercially negotiable instruments 
like bills of exchange.' As the bill of lading represents goods, 
and as no title passes to the receiver or purchaser of goods lost or 
stolen, even to a bona fide purchaser ; so the bill of lading, — a 
symbol of the goods — can, when lost or stolen, have no effect in 
transferring title to what it symbolizes ; although the true owner 
may, by his negligence, put it into the power of another to so 
represent himself as the owner and clothe himself with apparent 
title, as to estop the true owner from denying the pretended title.' 
An indorsement of a bill of lading without the authority, consent 
or knowledge of the owner of the goods, transfers no title even 
to an indorsee in good faith. An indorser having no title to the 
goods cannot convey any.* 

If possession of goods be given for a specific purpose, as to a 
carrier or wharfinger, the property is not changed by the sale of 
such a bailee, and the owner may recover them even from the 
bona fide buyer.' An agent constituted for a particular purpose, 
and under a limited power, cannot bind his principal if he exceeds 
that power.' But where the holder of a bill of lading transfers 
itj intending to pass the title, such transfer wiU be effective al- 
though procured by fraudulent misrepresentation.' 

An indorsement or written transfer of a bill of lading is not 
necessary. Delivery, with intent to pass title to the goods, is suf- 
ficient. The possession of a bill of lading, whether indorsed or 

' Means v. Bank of Randall, supra. 

' Siollenwerck v. Thacher, 115 Mass. 224. 

^Vried.lander v. Texas & P. B. Co. 130 U. S. 416, 33 L. ed. 991; Shaw v. Merch- 
ant's Nat. Bank of St. Louis, 101 U. S. 557, 25 L. ed. 893. 

*Brower v. Peabody, 13 N. T. 131; Dows v. Perrin, 16 N. T. 325; First Nat. 
Bank of Toledo v. Shaw, 61 N. T. 283; Tison v. Howard, 57 Ga. 410; Decan 
V. Shipper, 85 Pa. 239, 78 Am. Dec. 834. 

' Wilkinson v. Kirig, 3 Campb. 385. 

'Munn V. Commission Co. 15 Johns. 44, 8 Am. Dec. 319; Beals v. Allen, 18 
Johns. 363, 9 Am. Dec. 231 : Thompson v. Stewart, 3 Conn. 172, 8 Am. Dec. 
168; Andrews Y. Kimland, 6 Cow. 354; Blane v. Proudfit, 3 Call, 207. 

' Dows V. Greene, 34 N. T. 638. 



ASSIGNMENT OF BILL OF LADING. 109 

act, is prima facie evidence of title as against any person not 
showing; a better title." The bill of lading passes the property 
when it is indorsed and intended so to operate, in the same man- 
ner as a direct delivery of the goods would do if so intended ; 
and it operates no further." By the custom of merchants, bills of 
lading are transferable by indorsement and delivery so as to pass 
the title to the goods as effectually as if the goods were delivered, 
so long as they are in transit.' A mere indorsement of a bill of 
lading, without a delivery thereof, does not transfer the property 
in the goods.* The assignment of a bill of lading bona fide and 
for value, will vest the legal interest of the consignee in the 
assignee, although made after the arrival of goods.' A bill of 
lading is transferable by the custom of merchants so as to vest 
the title of the assignor in the transferee. Consignee may trans- 
fer a bill of lading by indorsement." Still a bill of lading is not at 
common law technically negotiable, like a bill of exchange.' 

^Michigan Cent. B. Co. v. Phillips, 60 111. 190; Tisson v. Soward, 57 Ga. 410; 
Qlidden v. Lucas, 7 Cal. 26; Pratt v. Parkman, 24 Pick. 42; Adams v. O'Con- 
nor, 100 Mass. 515, 1 Am. Rep. 137; First Nat. Bank of Qreen Bay v. Dear- 
born, 115 Mass. 219, 15 Am. Rep. 92; Fifth Nat. Bank of Chicago v. Bayley, 
115 Mass. 228; Allen v. Williams, 12 Pick. 297; Low v. DeWolf, 8 Pick. 101- 
City Bank v. Borne, W. & 0. E. Co. 44 N. Y. 136; Merchants Bank of Can- 
ada V. Union R. & Transp. Co. 69 N. T. 878; Bates v. Stanton, 1 Duer, 85; 
Indiana Nat. Bank v. Colgate, 4 Daly, 41; Jeffersonville, M. & L R. Co. v. 
Inin, 46 Ind. 180. 

^Newson v. Thornton, 6 East, 41; Oa/rdner v. Hbwland, 2 Pick. 599; Mears v. 
Waples, 3 Houst. (Del.) 582; Empire Transp. Co. v. Steele, 70 Pa. 190; Brower 
V. Pedbody, 13 N. Y. 121 ; Indiana Nat. Bank v. Colgate, 4 Daly, 41. 

* Lickbarrow v. Mason, 1 Smith, Lead. Cas. 848, and noie,2T. R. 63: The Thames 

V. Seaman, 81 U. S. 14 Wall. 98, 20 L. ed. 804; Shaw v. Merchants Nat. Bank 
of 81. Louis, 101 U. S. 557, 25 L. ed. 892; Pease v. Gloahec, L. R. 1 0. P. 219; 
Meyerstein v. Barber, L. R. 2 C. P. 45, L. R. 4 Eng. & Ir. App. 817; Union 
R. & Transp. Co. v. Yeager, 34 Ind. 1; Robinson v. Stuart, 68 Me. 61; Ralli- 
day V. Hamilton, 78 U. S. 11 Wall. 510, 20 L. ed. 214; Crapo v. KeUy, 83 U. 
S. 16 Wall. 610, 21 L. ed. 430; Gibson v. Stevens, 3 McLean, 562; Walter v. 
Ross, 3 Wash. C. C. 287; United States v. Delawa/re Ins. Co. 4 Wash. C. C. 
422; mibrook v. Wight, 24 Wend. 169, 35 Am. Dec. 607; Atlantic Ins. Co. v. 
Conard, 4 Wash. C. C. 676; Marsh v. Redder, Holt, 74; Webb v. Anderson, 
Taney, 512; Sumner v. Hamlet, 13 Pick. 76; Pratt v. Parkman, 24 Pick. 42; 
Caldwell v. Ball, 1 T. R. 205 ; Brand v. Lisley, Yelv. 164; Wright v. Campbell, 
4 Burr. 2046; Wood v. Boaeh, 2 U. S. 2 Dall. 180, 1 L. ed. 340. 

■* Buffington v. Curtis, 15 Mass. 527, 8 Am. Dec. 115. 

' Chandler v. Belden, 18 Johns. 157, 9 Am. Dec. 193; Mrst Nat. Bank of Cairo 
V. Crocker, 111 Mass. 168. 

• Saltus V. Everett, 30 Wend . 267, 32 Am. Dec. 541 ; Newhall v. Central Pac. R. 

Co. 51 Cal. 350, 31 Am. Rep. 713; Walterv. Ross, 2 Wash. (C. C.) 283. 
■■ Hale V. Milwaukee Dock Co. 29 Wis. 482, 9 Am. Rep. 603; Pattison v. Culton, 



110 BILL OF LADING. 

The statute of a state making bills of lading negotiable, means 
tbat they may be transferred by indorsement and delivery, so as 
to give to the indorsee the right to sue on them in his own name ; 
but it does not charge the negotiator of them with all the conse- 
quences which follow the negotiation of bills or notes. It is 
only a legislative sanction given to the commercial law of univer- 
sal application, that a bill of lading, legally transferred, gives title 
to the property it represents.' No statute is to be construed as 
altering the common law, further than its words plainly import. 
The purchaser of a bill of lading, with reason to believe that his 
vendor was not the owner of the bill, or that it was held to secure 
the payment of an outstanding draft, is not a bona fide purchaser, 
and is not entitled to hold the merchandise covered by the bill 
against its true owner.' Where, however, such a construction had 
been placed upon the state statute, and subsequent legislation 
having, in view of such decision, declared that they should be ne- 
gotiable, so as to vest title unaffected by any rights or equities 
between prior holders, having no actual notice thereof, — such 
statute will be effective, and the courts must recognize the legis- 
lative intent and execute it.' 

§ 30. " Order" or "Assign " in Bill of Lading. 

It is settled by the decisions in New York, that the words to 
" order " or " assign " are not necessary for the passing of a title 
of a bill of lading,' although this is not uniformly admitted.' 

"Where, as between buyer and seller, the title may be changed 
by transfer of the bill of lading, it does not follow that the 

33 Ind. 240, 5 Am. Rep. 199; Howard v. Shepherd, 9 0. B. 297; Thompsons. 

Dominy, 14 Mees. & W. 408; Tkon v. Howard, 57 6a. 410; Dowa v. Qreeiie, 

24 N. Y. 688; StoUenwerck v. Thacher, 115 Mass. 234. 
' Mrst Nat. Bank of Sta/rksmlle v. Meyer, 43 La. Ann. 1. 
» Shaw V. Merchants' Nat. Bank of St. Louis, 101 U. S. 557, 25 L. ed. 892; 

Qurney v. Behrend, 8 El. & Bl. 633. 
s Tiedeman v. Knox, 53 Md. 612. 
< Oity Bank v. Rome, W. & 0. B. Go. 44 N. Y. 136. 
« See 3 Kent, Com. *307; Dan. Neg. Inst. § 1730. This distinction as to the 

effect of the words " order" and "assign" is noticed in Bank ofBatavia v. 

New York, L. M. & W. B. Oo. 33 Hun, 589. See Robinson v. Memphis & 

G. B: Go. 9 Fed. Rep. 129; Blanchard v. Page, 8 Gray 281 



BILL OF LADING WITH DBAFT ATTACHED. Ill 

contract or liability of the carrier is changed. The carrier 
is entitled to treat the consignee, in the absence of any advice 
to the contrary, as the owner.' The words to " order " or " as- 
sign " are not to be treated as insignificant. They are words, the 
presence or absence of which are often held to determine the ne- 
gotiability of instrunients." And, where the goods are shipped to 
the order of the shipper or the consignee, the one claiming the 
goods, if not the consignee, must produce such order properly in- 
dorsed upon the bill of lading. "Where the shipper makes the 
goods transferable to his order, he reserves the property in him- 
self and it can only be divested in the manner indicated, to relieve 
the carrier from responsibility.' 

§ 31. Bill of Lading with Draft Attached. 

Bills of lading in this form are often used for the purpose of 
raising money, and frequently the bill of lading has a draft at- 
tached to it ; and such drafts are discounted and the bills of lading 
indorsed to secure the payment. The document the shipper re- 
ceives, is a muniment of title quasi negotiable, and on the faith of 
which he may borrow money ; it is a contract and not merely a 
receipt* The pledgee of a bill of lading as security for a bill of 
exchange drawn on the consignee has a valid common law title to 
the goods, independent of the English Bills of Lading Act, en- 
titling him to sue the shipowner for damages for the nondelivery 
of the goods on presentation of the bill of lading, after the con- 
signee's default ; and it is no defense that they are not in such 

^BaiUy v. Hudson Biver R. Co. 49 N. T. 70; 8v>eet v. Barney, 33 N. Y. 335; 

Rotchkiss V. Artisan's Bank, 2 Abb. App. Dec. 403; O'Dougherty v. Boston 

& W. B. Co. 1 Thomp. & C. 477; Krulder v. Mlison, 47 N. Y. 87, 7 Am. 

Rep. 402; Fiithugh v. Wiman, 9 N. Y. 559; Uverett v. Saltus, 15 Wend. 475. 
'Dan. Neg. Inst. § 105; Mechanics Bank v. Straiton, 3 Keyes, 365; Forbes y. 

Boston & L. B. Go. 133 Mass. 154. 
^Pennsylvama B. Go. v. Stern, 119 Pa. 24; Lihiy v. IngaUs, 124 Mass. 503; 

North Pennsylvania B. Go. v. Gommercial Nat. Bank of Chicago, 133 U. S. 

737, 31 L. ed. 387; Watson v. Eoosae Tunnel Line Go. 13 Mo. App. 363. 
* Logan v. Mobile Trade Go. 46 Ala. 514; Snider v. Adams Exp. Go. 68 Mo. 

376; Huntingdon v. Dinsmore, 4 Hun, 66; Long v. New York Gent. B. Go. 

50 N. Y. 76; McMahon v. Macy, 51 N. Y. 155; Barnham v. Gqmden & A. 

B. Go. 55 Pa. 58; American Exp. Go. v. Second Nat. Bank of Titusville, 69 

Pa. 394, 8 Am. Hep. 368. 



112 BILL OF LADING. 

owner's possession, where he wrongf ally delivered them to the 
consignee without requiring him to produce the bill of lading.' 
The transferee of bills of lading as security for the payment of a 
draft upon the consignee acquires a right of pledge, and there- 
fore, in legal contemplation, has a valid constructive possession 
superior to that of the consignee or any other actual possessor of 
the goods, which continues until the goods pass into the hands of 
innocent third parties. A bona fide creditor of a consignor, who 
holds the latter's draft for value, to which bills of lading trans- 
ferred in blank are attached to secure its payment, is to be deemed 
the owner of the goods so far as to give validity to the jdedge 
created by the forwarder ; and on presentation of the draft with 
the annexed bills to the consignee, before he has accepted the 
consignment, the creditor becomes entitled to the delivery of the 
property, on the payment of his draft by the consignee." 

Where the shipper attaches the biU of lading to a draft for 
the price ; and indorses same to one who discounts the draft, 
the goods are thereby pledged for the payment of the draft, 
and a special property therein passes to the transferee.' The 
holder of abill of lading indorsed to him as security for such 
draft, may replevin the goods or sue for conversion, where goods 
are delivered to consignee without payment of di-aft.* Possession 
obtained by a consignee of consigned goods, against which a 
draft has been drawn accompanied by a transfer of the biUs of 
lading as security, after presentation of such draft with the bills 
attached by a bona fide creditor of the consignor, is unauthorized 
and unjustifiable.' 

1 Bristol & West of England Bank v. Midland S. Co. L. R. 3 Q. B. Div. 653. 

' First Nat. Bank of StarksmMe v. Meyer, 43 La. Ann. 1. 

'Holmes v. German Security Bank, 87 Pa. 535; Holm^ v. Bailey, 93 Pa, 57; 
First Nat. Bank of Cairo -v. Crocker, 111 Mass. 163: Mafhawayv. Haynes, 
124 Mass. 311; Joslyn v. Grand Trunk R. Go. 51 Vt. 92; Emery y. Irving 
Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Indiana Nat. Banky. Col- 
gate, 4 Daly, 41; Commercial Bank of Keokuk v. Pfeiffer, 32 Hun, 327; 
Marine Bank of Chicago v. Wright, 48 N. Y. 1; Seiskell v. Farmers & M. 
Nat. Bank, 89 Pa. 155, 38 Am. Rep. 745; Farmers <fe M. Nat. Bank of Buf 
falo V. Hazeltine, 78 N. Y. 104, 34 Am. Rep. 518. 

» Marine Bank of Chicago v. Wright, 48 N. Y. 1; Seiskell v. Farmers <£ M. 
Nat. Bank, 89 Pa. 155, 33 Am. Rep. 745; Slollenwerck v. Thacher, 115 
Mass. 234; First Nat. Bank of Green Bay v. Dearborn, 115 Mass. 319, 15 
Am. Rep. 93. 

» First Nat. Bank of Starksville v. Meyer, 43 La. Ann. 1. 



BILL OF LADING WITH DEAFT ATTACHED. 113 

Where an invoice is sent to the purchaser, which states on its 
face that the goods are shipped with draft, — which • draft is at- 
tached to the bill of lading — and sent with the collection, the 
exhibition by the purchaser to the carrier of the invoice, will not 
authorize the delivery of the goods without the presentation of 
the bill of lading.' Presentment to a consignee of indorsed bills 
of lading, with a draft upon the consignee, makes unnecessary 
any further notice from the consignor to the consignee of the 
drawing of the draft, or any instruction in regard thereto, as it 
proves conclusively that the consignor had parted with his inter- 
est by transferring the same to another." A shipper of ice taking 
a bill of lading to his own order, under a contract with one who 
furnishes the vessel for transporting it, to sell it on a joint ad- 
venture and to pay a certain amount on a sight draft, cannot cut 
off the latter's rights, notwithstanding the nonpayment of the sight 
draft, by selling the ice to another and transferring the bill of 
lading.' A consignee of goods is not entitled to a preference for 
a balance of advances made by him to the consignor, over the 
claims of a holder of a draft to secure which bills of lading for 
the goods have been transferred by the consignor, when the goods 
were not shipped in payment of such advances.* 

In the case of The Thames v. Seaman, 81 U. S. 14 Wall. 98, 
20 L. ed. 804, it appeared that the purchaser of cotton at Savan- 
nah delivered it there to a vessel to be carried to New York, 
taking bills of lading in which it was stated that the cotton was 
shipped by one Gilbert Van Eelt, and was to be delivered " unto 
order or to his or their assigns." Yan Pelt was a member of a 
firm in New York for which he purchased the cotton. Against 
the shipment he drew a draft on his firm, payable fifteen days 
after sight, and delivered it, with the bills of lading, to parties 
who obtained the discount of the draft from a bank in Atlanta. 
The draft and bills were at once forwarded to New York, to an 

' Pmnsylvania B. Go. v. Stern, 119 Pa. 34; Doissy. National BxcTi, Bank of Mil- 
waukee, 91 IT. 8. 618, 33 L. ed. 314. 
'First Wat. BankofSiarksviUey. Meyer, 43 La. Ann. 1. 
' The Saugerties, 44 Fed. Rep. 625. 
* Mni Nat. Bank of Starksville v. Meyer, supra. 
8 



114. BILL OF LADING. 

agent of the bank, to procure their acceptance by the firm. Be- 
fore the draft became due, the vessel arrived at New York and 
gave notice to the firm of the arrival of the cotton. That vessel 
had previously brought cotton in the same way for the firm, and 
the master of the vessel, knowing that the cotton was intended 
for the firm, and having no information from the bank's agent, 
or from any other source, or of any other consignee or claimant, 
delivered to it the cotton, taking its receipt. When the draft 
became due, two weeks afterwards, and was not paid, the cotton 
was demanded of the owner of the vessel by the bank's agent. In 
the action which followed, it was contended by the owner that 
the delivery was justified, and that the vessel had discharged its 
obligation ; but the court held that, though the delivery had been 
made in ignorance of any outstanding claim to the cotton, it was 
nevertheless, a breach of the contract of affreightment, and that 
the agent of the bank could libel the vessel, which was bound for 
the proper delivery of the property, for the loss sustained." 

§ 32. " Charges to he Collected"-" C. 0. B." 
Where the carrier undertakes, not only to transport goods, but 
to collect from the consignee their value, — and it fails, upon ten- 
der to the consignee, to receive the payment demanded, it is its 
duty to notify the consignor of the goods, and when this is done, 
the responsibility as common carrier ends and the goods are held 
subject to the order of the consignor, but not before.' If there 
is an absolute refusal by the consignee to receive the goods, the 
carrier would be justified, if he so elected, in returning 'hem at 
once, with this information to the consignor.' He is not bound, 
in any event, to repeat a tender.' But it will be the duty of the 
carrier to give the consignee reasonable time — if demanded — to 
prepare himself to accept and pay for the goods and freight.' 

' Halsey v. Warden, 25 Kan. 138 ; Boatmen's Sav. Bank v. Western & A. B. Co. 81 

Ga. a21 ; Pm-man v. Union Pac. B. Go. 106 N. Y. 579. 
« American Merchants JJ. Exp. Co. v. Wolf, 79 111. 430; Adarns Exp. Go. v. Mo- 

Gonnell, 27 Kan. 238. 
^ Adams Exp. Go. v. McConnell, supra. 
*Stoer V. Crowley, McClel. & Y. 129. 
' Great Western B. Go. v. Crouch, 3 Hurlst. & N. 183. 



"CHAEGES TO BE COLLECTED, " " C. O. D." 115 

And the same rule applies, where an opportunity to inspect the 
goods is demanded. A carrier's contract to collect the money on 
goods shipped, before delivering to the consignee, is not broken, 
in the absence of express prohibition, by allowing the consignee 
to inspect the goods before acceptance ; and the consignee's re- 
fusal upon inspection to accept the goods will not render the car- 
rier liable to the shipper.' The carrier is justified in returning 
money paid by the consignee, where it has been used to perpe- 
trate a fraud by sending a package " C. 0. D." with charges pur- 
porting to be the value of the article, where they are grossly in 
excess of the actual value, or the package is utterly valueless." 

The liability of the carrier, in case of losses by fire, after the 
goods arrive at their destination, is not in any way affected by the 
fact that it had undertaken the collection of their value for the 
consignor.' A bill of lading recited, that the goods " were to be 
delivered without delay, etc., at the port of, etc., to, etc., or as- 
signs, as, he or their paying freight for said goods at the rate of, 
etc., charges payable when collected by boat ; " charges to be col- 
lected" a certain sum, being the value of the goods, and it was 
decided that if the carrier delivered the goods without collecting 
such charges, he was liable therefor to the person who so con- 
tracted with him and delivered the goods to him.' "Where a note 
is taken for collection by the carrier and its failure to collect is 
due to its negligence, it is liable for the damage resulting." But, 
where it was guilty of no negligence, the failure of a bank upon 
which it took a check for collection, imposed no liability." It has 
Been said, that the letters " 0. O. D." have acquired in the com- 
merce of the country, when used upon goods in the possession of 
the carrier for transportation, such a fixed and determinate mean- 
ing, that courts and juries, from their general information, may 
readily understand what they mean.' But this has been denied 

^Am-on V. Adarrn Exp. Oo. 27 Ohio L. J. 183; Lyons v. Hill, 46 N. H. 49. 

'Eerrwk v. Qallagher, 60 Barb. 566. 

' Gibson V. American Merchants XT. Exp. Co. 1 Hun, 387. 

* Meyer v. Lemcke, 31 Ind. 308. 

» Enapp V. United States & 0. Exp. Oo. 55 N. H. 348. 

"Eiswald v. Southern Exp. Co. 60 Ga. 496. 

''United Slates Exp. Oo. v. Keefer, 59 Inti. 263. 



116 BILL OF LADING. 

in another case." Where goods are marked " C. O. D.," the con- 
tract of the common carrier is " collect on delivery," and return 
to the consignor the charges for the goods ; and, under such a con. 
tract, the consignor may bring his action for failure to comply 
with it, against the carrier ; although the ordinary rule is, that an 
action for the loss of goods must be brought in the name of the 
consignee." 

The act of the carrier in accepting conditional payment, may 
be ratified by the consignor and relieve it from responsibihty.' 
If the carrier accepts a check, which the consignor receives and 
sends for collection, this act of the consignor will be a ratifica- 
tion.* Where goods are sent " C. O. D." an action for replevin 
may be maintained by the carrier against the consignee, who ob- 
tained them by fraud, without payment." If the .goods have been 
received from the carrier by the consignee, through the negli- 
gence of the carrier, without payment, and have been transferred 
to a bona fide purchaser, there can be no recovery from such pur- 
chaser.' This duty of collection, cannot be imposed upon a car- 
rier if it has not been accustomed to thus receiving goods, nor, 
under such circumstances will it be responsible, although the 
goods are marked " C. O. D." for the value of the goods, where 
it delivers them without collecting the value.' 

§ 33. Usage or Custom as Affecting Carrier's Lia- 
bility. See also § 74. 

A usage, custom, and course of dealing should, to affect a con- 
tract in the absence of actual knowledge thereof, be so long con- 
tinued and so well known and established, and so unif oi-mly acted 
upon, as to raise a presumption that it was known to both con- 
tracting parties, and that their contract was made in reference to 

' McMchol V. Paaifia Exp. do. 12 Mo. App. 401. 
« United States Exp. do. v. Keefer, 59 Ind. 263. 

* Brooks v. American Exp. Go. 14 Hun, 864. 

" Eathbun v. Gitkens S. B. Go. 76 N. Y. 376, 32 Am. Rep. 321. 
' American Merchants U. Exp. Co. v. Willsie, 79 111. 92. 

• NovfoU Soutliem B. Go. v. Banes, 5 L. R. A. 611, 104 N. C. 25, 
' Chicago & N. W. R. Go. v. Merrill, 48 111. 425. 



USAGE OE CUSTOM AS AFFECTING OAEEIEe's LIABILITY. 117 

it.' A certain river boom company receives and handles all logs 
coming down the Mississippi river to Minneapolis, and its 
methods of business and usage in receiving and surveying, turn- 
ing out logs, and collecting charges, are well established and gen- 
erally known ; and dealers of logs in that market are therefore 
presumed to contract with reference to such usage, where there 
is nothing in the agreement to exclude the inference.' 

Usages of trade, Mr. Greenleaf says, should be sparingly 
adopted by the courts as rules of law. " Their true office is to in- 
terpret the otherwise indeterminate intentions of parties, and to 
ascertain the nature and extent of their contracts arising, not from 
express stipulation, but from mere implications and presumptions 
and acts of a doubtful and equivocal character, and to fix and ex- 
plain the meaning of words and expressions of doubtful or vari- 
ous senses.'" Usages of trade are admissible, however, to show 
the relative duties and rights of parties as incidents of contracts 
and transactions ; but the usage sought to be invoked must have 
all the elements of a usage as to certainty, uniformity, notoriety 
and reasonableness, and it must not be contrary to law. The ex- 
istence or nonexistence of a custom is a question of fact for a 
jury. Its validity or invalidity is a question of law for a court.' 
Usage must not be in restraint of trade nor conflict with public 
, policy or the law of the land. It must be reasonable and not pro- 
ductive of any injustice in its practical operations.' A usage can- 
not override an express contract, nor can a usage be valid which 
is in contravention of an established rule of law." While it is 
true that a usage of trade may sometimes be proved in order to 
ascertain the manner of discharging some duty, or performing an 
act stipulated to be performed in a contract, such proof is never 
competent, however, when the effect of it would be to prove a 

' Wausau Boom Co. v. Dunbar, 75 Wis. 153. 

» Clarke v. Hall & D. Lumber Co. 41 Minn. 105. 

»2areenl. Ev. §351. 

♦ SuUivan v. Jernigan, 21 Fla. 364. 

^ Susquehanna Fertilizer Co. v. White, 66 Md. 444, 59 Am. Rep. 186; Mitchell 

V. Beynolds, 1 P. Wms. 181; Bowen v. Stoddard, 10 Met. 381; Metealf v. 

Weld, 14 Gray, 310. 
' Pickering v. Weld, 159 Mass. 533. 



118 BILL OF LADING. 

usage inconsistent with the express terms of the contract.' 
Neither usage nor custom can be set up to absolve the carrier 
from his ordinary duties, which the public policy, his general un- 
dertaking or his special promise may have bound him to do.' 
Custom cannot change a definite contract ; and no custom is bind- 
ing which is not certain, definite, uniform and notorious." 

Any practice at a particular place, however general it may have 
become, has not the force of a custom to release its merchants from 
the obligation of an ordinary bill of lading.* Where the language 
of the bill of lading has a definite legal meaning, proof of a cus- 
tom cannot change it." Evidence as to usage is inadmissible where 
its plain eflEect would be to vary or contradict the written con- 
tract.' Evidence of usage cannot be admitted to control or vary 
the positive stipulations of a bill of lading, or to substitute for its 
express terms, an implied agreement or usage that the carrier shall 
not be bound to keep, transport, and deliver the goods in good 
order and condition.' When the meaning of words is not ambig- 
uous, proof of usage will not be received in the interpretation of 
contracts.' A usage, or even an agreement between the parties, 
that the defendant should deliver its consignments to plaintiff on 
a side track near the station, will not discharge defendant from 
liability upon a claim of actual delivery, where the car was placed 

' Mbrningsiar v. Cunningham, 110 Ind. 328, 59 Am. Rep. 211; Spears y. 
Ward, 48 Ind. 541; Sea/ney v. Shwick, 110 Ind. 494; Smith v. Clems. 4 L. R. 
A. 392, 114 N. Y. 190. 

' Pittsburg, O. & St. L. B. Co. v. Bam-ett, 86 Ohio St. 453. 

»iamft V. Henderson, 63 Mich. 302, citing Harvey v. Oady, 3 Mich. 481; Er- 
win V. Gltirk, 13 Mich. 10; Hutchings v. Ladd. 16 Mich. 493; Advertiser & 
T. Co. V. Detroit, 43 Mich. 116; Ledyard v. Hibbard, 48 Mich. 421; 42 Am. 
Rep. 474; Oreenstine v. Borcha/rd, 50 Mich. 434, 45 Am. Rep. 51. 

* Briltan v. Barnaby, 62 U. S. 21 How. 527, 16 L. ed. 177. 

» Garrison v. Memphis Ins. Co. 60 U. S. 19 How. 313, 15 L. ed. 656. 
'Barlow v. Lambert, 38 Ala. 704, 65 Am. Dec. 374; Smith v. Mobile Mv. & 

Mut. Ins. Co. 30 Ala. 167; Cox v. Peterson, 30 Ala. 608, 68 Am. Deo. 145; 

PoweU V. Thompson. 80 Ala. 51. 

' The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 606, 20 L. ed. 784; The 
Beeside, 2 Sumn. 567; Garrison v. Memphis Ins. Go. 60 U. S 19 How. 316. 
15 L. ed. 657. 

• Susquelianna Fertilizer Co. v. White, 66 Md. 444, 59 Am. Rep 186; Macm- 

ber V. Parker, 13 Pick. 175; The Beeside, supra; McArthur v. Sears, 21 
Wend. 190; Cage v. Meyers, 59 Mich. 300 



USAGE OE CUSTOM AS ATPECTING CAEJJIEe's LIABILITY. 119 

on the side track without notice to plaintiff, and permitted to re- 
main there two days and until it was destroyed by fire.' The lia- 
bility of a common carrier cannot be limited by a custom not 
brought to the knowledge of the party dealing with it." Evidence 
of usage should be admitted with extreme caution, and not until 
the party offering it has distinctly stated what usage he intends to 
prove." In an action to recover damages for injury to cattle, 
caused by negligence, in defendant railroad company, if its 
method of transportation was unsafe, the fact that it was usual 
with the defendant cannot exonerate it from its contract to safely 
transport. Its own usage would have no tendency to show that 
it had adopted a safe method.* That a railway company for some 
time paid cost of hauling coal from complainant's wharf to station 
is not ground for compelling such payment by the company.' 

A usage cannot be a good usage if it is contrary to law or public 
policy. For example, the defendant offeres to show a custom of 
railroads not to receive for transportation any live stock unless 
under certain conditions, modifying their common law liability. 
Such a custom would be bad, because railroads cannot legally re- 
fuse to ship live stock. A common carrier has no right to de- 
mand of a shipper a waiver of his rights as a condition precedent 
to receiving freight. If such a custom should be ever so common 
and uniform it could not be sustained because it, the custom, 
would be against law. The custom required the owner to go 
along on the same train with his stock, to feed and water them at 
his own risk and expense. The law imposes this duty on the car- 
rier, and the carrier cannot transfer it to the shipper by custom. 
The shipper might agree to go with his stock, and to feed and 
water them at his own expense, but he could not be compelled to 
do so by custom, because the law requires this duty of the car- 
rier. This custom also required that the owner of the stock 
would hold the railroad harmless against ordinary delays in tak- 

' Pindell v. St. Louis & 3. B. Go. 34 Mo. App. 675. 

^ Little V. Fargo, 43 Hun, 233; Noble v. Kennoway, 2 Dougl. 518. 

' Susquehanna Fertilizer Co. v. WMte, supra. 

* Leonard v. FitcKbury B. Co. 143 Mass. 307. 

' Providence Goal Co. v. Fromdence & W. B. Co. 1 Inters. Com. Rep. 363. 



120 BII^L OF LADING. 

ing up freight. If the law held the railroad harmless for such 
delays, a custom would not be necessary. If the law held it hable 
a custom could not repeal or suspend the law. 

It was also required by the custom proposed, that the shipper 
should expressly agree that, as a condition precedent to his right 
to any damages for any loss or injury to his stock during trans- 
portation, he should give notice of his claim therefor, verified by 
his affidavit, to some general officer of the railroad, or the nearest 
station agent, before the stock was removed from the point of 
shipment or destination. If the shipper should make a contract 
to give such notice, it might be binding, if it was shown that there 
was such officer or agent at the point of destination upon whom 
the notice could be conveniently served. If the custom did not 
propose to show that there was such officer or agent at the point 
of shipment or destination, it would be an unreasonable custom. 
It would be an unreasonable stipulation in a contract limiting the 
carrier's liability, and as an express contract for that reason it 
could not be enforced." 

A custom cannot require that a shipper shall expressly agree to 
a limitation of his right to damages. The law of the land regu- 
lates such matters, and fixes liability upon failure to perform du- 
ties and obligations of carriers ; and when so fixed a custom can- 
not extinguish it, or require the injured party to limit it by 
agreement. The same may be said of the stipulation in a custom 
requiring the shipper to agree, as a condition to ship his stock on 
a railroad, that, in case of total loss of stock, the measure of dam- 
ages should not be more than the cash value of the same at the 
place of shipment. Such a custom would be illegal, and the car- 
rier could not require that the shipper should make such a spe- 
cial contract." In a case recently decided by the supreme court 
of Massachusetts the appeal was by plaintiff from a judgment of 
the superior court in favor of defendant in an action brought to 
cover possession of two horses shipped by plaintifE over the Old 

' Missouri Pac. R. Co. v. Earns, 67 Tex. 166; Missouri Pac R Co v. Faqan, 
2 L. R. A. 75, 72 Tex. 127. See also § 70. 

^ Oulf, 0. &8.F. R. Co. V. Trawick, 68 Tex. 314; Missouri Pac. R. Co. v. Fa 
gan, supra. See also § 71. 



USAGE OB CUSTOM AS AFFECTING CAEKIEE's LIABILITY. 121 

Colony Eailroad from Boston to New Bedford. The transporta- 
tion of the plaintiff's horses was under an express contract. This 
contract was prepared by the railroad company, and called " Live 
Stock Keceipt." In it the company acknowledged the receipt of 
the two horses marked for the plaintiff at New Bedford, Mass., 
" which the company promises to forward by its railroad, and de- 
liver to or order at its depot in . He or they first 
payuig freight for the same." "N. B. If merchandise be not 
called for on its arrival, it will be stored at the risk and expense 
of the owner." Then followed the rates for transporting differ- 
ent kinds of animals ; after which were certain rules and regula- 
tions in regard to freight. Among these rules were the follow- 
ing : " Nor will they [the company] hold themselves liable as 
common carriers for such articles after their arrival at their place 
of destination and unlading in the company's warehouses or de- 
pots." " Machinery . . . and live animals will only be taken 
at the owner's risk of fracture or injury during the course of 
transportation, loading and unloading, unless specially agreed to 
the contrary." " All articles of freight arriving at their place of 
destination must be taken away within twenty-four hours after 
being unladen from the cars." The plaintiff paid for the trans- 
portation of the horses on their arrival at New Bedford, and took 
a receipt which contained the same rules and regulations copied 
above, and applied for his horses ; and the agent of the railroad 
company refused to unload the horses, and required the plaintiff 
to unload them. In the opinion of a majority of the court the 
railroad company was held, under this contract, to have under- 
taken to unload the horses, though at the owner's risk. This 
contract, it is said, was made out with express reference to the 
carriage of live animals. The railroad company promised to de- 
liver them, and this implies unloading them. The company 
would also store them, unless called for, and this also implies un- 
loading them. There are three several stipulations as to unload- 
ing goods, one of which in express terms includes live animals, 
and each of which implies that the company will unload them. 
It must therefore be held that the company undertook to unload 
them. 



122 BILL OF LADING. 

This being so the rule is recognized that a usage of the 
company's agent at New Bedford to require the owner or con- 
signee to unload live animals is of no consequence. The usage 
cannot override the contract.' A rule and regulation of the 
company can have no greater e£Eect. The company's rule re- 
quiring consignees to unload live stock was not otherwise 
known to the plaintiff than this ; he knew that the company's 
agent at New Bedford had been accustomed to require consignees 
to unload their horses. But if well known, it must still give way 
to the contract. It was a matter of contract between the plaintiff 
and the railroad company that the company should unload the 
plaintiff's horses. This being so, neither a usage nor a rule to 
the contrary will avail to excuse the company from the perform- 
ance of its undertaking. In this respect, the case differs from 
Miller v. Mansfield, 112 Mass. 260, and other cases, where there 
was no such contract.'' 

Proof of usage on part of a carrier in giving bills of lading ex- 
empting it from certain classes of losses, is not competent to limit 
its liability.' But it is within the legitimate and proper scope of 
a usage of trade, to regulate the time, place, and manner of the 
delivery of a cargo when there is no express contract upon the 
subject ; and under such circumstances the usage enters into and 
forms part of the contract. A general custom of a port that 
after a vessel arrives thereat and goes to a wharf designated by 
the consignee, and the cargo is taken off and distributed upon the 
wharf according to the numbers and marks, the care of the goods 
devolves upon the consignee, is not contrary to any well estab- 
lished and general rule of law ; and the parties to a contract of 
shipment must be deemed to have contracted with reference to it.' 

' Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656; Seecomb v. Promndal Ins. 
Co. 10 Allen, 305, 310; Dodd v. Farlow, 11 Allen, 426, 429, 87 Am. Dec. 726; 
JBoardman v. Spooner, 18 Allen, 353, 359, 90 Am. Dec. 196; Odiorrw v. New 
E-ngland Mut. M. Ins. do. 101 Mass. 551, 3 Am. Rep. 401; SmUing v, HaU, 
107 Mass. 134; Raskins v. TFinTere, 115 Mass. 514, 535, 536: Hedden v. i&4- 
erts, 134 Mass. 38, 45 Am. Rep. 276; Emery v. Boston M. Ins. Oo. 138 Mass. 
398; Oollender v. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 224. 

'Benson v. Gray, 13 L. R. A. 262, 154 Mass. 391. 

^Illinois Cent. R. Co. v. Smyser, 38 Rl. 354, 87 Am. Dec. 301. 

* Pickering v. Weld, 159 Mass. 522. 



USAGE OE OUSTOM AS AFFECTING OAEEIEE's LIABILITY. 123 

A deposit of goods designed for immediate transportation, in a 
condition to be carried in pursuance of the usage of the parties, 
which the local agent had permitted, at the usual place of load- 
ing, constitutes a delivery to the common carrier, making it liable 
for the loss of the goods by fire at such place, although the super- 
intendent of the railroad does not know of such usage and it is 
contrary to the positive order of the management.' 

' EvanmUe & T. H. B. Co. v. Keith (Ind. App.) Nov. 7, 1893. 



CHAPTEK Y. 

VALIDITY OF BILL OF LADING— ITS LIMITATIONS OF LIABILITY. 

§ 34. WJiether Notice or Acceptance of Bill Constitutes Contract. 

§ 35. When Acceptance of Bill Concludes Contract. 

§ 36. Bill Delivered after Accepting Goods. 

§ 37. Limitation Consented to iy Agent. 

§ 38. Validity of Bill Depends on Reception of Goods ly Carrier. 

§ 39. Exceptions in Bill Waived hy Negligence. 

§ 40. Effect of Exception in Bill. 

§ 34- Whether JVotice or Acceptance of Bill Con- 
stitutes Contract. 

A contract with a carrier is not to be construed most strongly 
against it merely because such contracts are generally drawn up 
by the carrier or its agents.' A common carrier may limit his com- 
mon law liability as insurer, but under the ruling in many of the 
courts there must be an express agreement, not a mere notice {anie 
§ 11) and the limitation, it is generally declared, cannot extend to ex- 
empt him from damages for actual negligence of himself or his 
servants.' It has been held that a public notice, although brought 
home to the shipper, will not discharge the common carrier from 
its legal liability for accidental loss or destruction of goods." 
There are other authorities, however, while admitting that the 
general notice will not free the carrier from all liability for prop- 

' Louisville & N. R. Co. v. Touart, 97 Ala. 514. 

» Tlie Pacific, Deady, 17; PhilndelpUa & R. R. Co. v. Derby, 55 U. S. 14 How. 

486, 14 L. ed. 509; York Mfg. Co. v. lUinois Cent. R. Co. 70 U. S. 3 Wall. 

107, 18 L. ed. 170; Walker v. Western Ti-ansp. Co. 70 U. S. 3 Wall. 150, 18 L. 

ed. 173; United States E}-p. Co. v. Eo^intze,16 U. S. 8 Wall. 342. 19 L. ed. 

457; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 318, 

31 L. ed. 897; The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; 

Mobile & 0. R. Co. v. Hopkins, 41 Ala. 496, 94 Am. Dec. 607, anie § 14. 
'Moses V. Boston & M. R. Co. 34 N. H. 71, 55 Am. Dee. 322, 32 N. H. 533. 64 

Am. Dec. 881 ; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co. 83 U. S. 16 

Wall. 318, 31 L. ed. 397; Michigan Cent. R. Co. v. Bale, 6 Mich. 243; Kim- 

ball V. Rutland & B. R. Co. 26 Vt. 347, 63 Am. Dec. 567; Blummthai v. 

Brainerd, 38 Tt. 403, 91 Am. Dec. 350; Mann v. Birehard, 40 Vt. 326. 

124 



■VSHBTHEK NOTICE OE ACCEPTANCE OE BILL CONSTITUTES CONTEAOT. 125 

erty, yet hold that the notice brought to the knowledge of the 
owner, may reasonably qualify its liability." 

The fact that the bill of lading contained words limiting the 
liability is not enough, without inference that consignor assented." 
An unsigned notice given on the back of a receipt, by a carrier 
for goods to be transported by it, that all goods and merchandise 
are at the risk of the owner's thereof while in the company's 
warehouses, does not relieve such company from its obligations 
as a common carrier.' A pamphlet hanging in a railroad com- 
pany's office, containing freight rules and rates, although the law 
requires them to be posted, is not of itself constructive notice of 
its contents.* A carrier and his customer do not, with respect to 
bills of lading, stand on the same plane or footing of equality, 
since in many cases the latter has no alternative as to the kind of 
bills he will receive, and cannot, in such a case, be estopped by 
its contents." Nothing short of an express stipulation by parol or 
in writing will be permitted under the decision of the Supreme 
Court of the United States, to discharge a carrier from duties 
which the law has annexed to his employment.' A carrier can- 
not limit his liability by any act of his own,' but if the act have 
the consent of the shipper, the stipulation becomes a contract.' 
It has been held that the assent of a shipper to the conditions in 
a receipt or bill of lading, whereby the common law liability of 
the carrier is restricted, will not be inferred by the mere fact of 
acceptance of the bill or receipt without. objection.' Perhaps the 

^BmUn V. North Ca/rolina M. do. 64 N. C. 335; Sager v. Portsmouth, 8.&P.& 
E. E. Co. 31 Me. 328, 50 Am. Dec. 659. 

' The Padfla, Deady, 17; Bostwick v. Baltimore & 0. B. Co. 45 N. T. 713; Bill 
V. Syraause, B. & N. T. B. Co. 8 Huq, 396. 

'Miohigan Cent. B. Co. v. Mineral Spi-ings Mfg. Co. 83 U. S. 16 Wall. 318-330, 
31 L. ed. 297, 308. 

* OouplaTid v. Housatonic B. Co. 15 L. E. A. 534, 61 Conn. 531. 

' Lallande v. His Creditors, 43 La. Ann. 705, 45 Am. & Eng. R. Gas. 801. 

<> Michigan Cent. B. Co. v. Minerca Springs Mfg. Co. 83 U. S. 16 Wall. 818-330, 
31 L. ed. 397-303. 

''Wallace v. Sanders, 4:2 Ga. 486; Mw Jersey Steam Wav. Co. v. Merchants Bank 
of Boston, 47 U. S. 6 How. 344. 13 L. ed. 465. 

^Sager v. Portsmouth, S. & P. & E. B. Co. 81 Me. 338, 50 Am. Dec. 659; Mlle- 
brown v. Grand Trunk B. Co. 55 Me. 463, 93 Am. Dec. 606; Judson v. West- 
ern B. Corp. 6 Allen, 486, 83 Am. Dec. 646; Mann v. Birehard, 40 Vt. 336. 

'Erie &W. Transp. Co. v. Dater, 91 111. 195, 33 Am. Rep. 51. 



126 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 

weight of authority in this country is, that public notice, although 
brought home to the knowledge of the shipper, will not restrict 
the liability of the common carrier.' A shipping receipt, it is 
said, to lessen or abridge the common law liability, must be 
signed by the shipper as well as the carrier." To be valid, a con- 
tract restricting a carrier's liability must be fairly obtained, just, 
and reasonable. Mere acquiescence by shippers in the use of 
bills of lading containing a clause exempting from liabihty for 
fires, will not show the reasonableness of the exemption, where 
the shippers have not had an opportunity of selecting between 
bills of lading with and those without this clause.' 

A ticket issued by the Indianapolis & C. K. Co. secured a right 
of passage from Indianapolis to Shelby ville, and the traveler's bag- 
gage was taken charge of by the company for delivery at Shel- 
byville, and a check given him for it, on one side of which was 
stamped these words : " In consideration of free carriage, its 
value is agreed to be limited to one hundred dollars and on the 
others, "I. & C. E. E., 583, Indianapolis and Shelby ville." The 
passenger could have read the words and figures on the check. 
The value of the baggage exceeded one hundred dollars and was 
lost by the company. It was held in this case, that the limitation 
expressed in the words stamped on the check could not, in any 
case, apply to a loss resulting from the company's want of care ; 
and that if such a limitation of the liability imposed by law could 
be secured by the carrier, it could only be by an express contract.' 
Courts which recognize the right of the carrier to limit its liabil- 
ity by notice, agree, however, that the terms of the notice must 
be clear and explicit, and the person with whom the carrier deals 
must have knowledge of the terms of the notice ; and, where the 
notice is in a different language from that familiar to the party 

'Mobile & 0. B. Go. v. Weiner, 49 Miss. 725; Erie R Co. v. WUcoa;, 84 111. 239, 
25 Am. Rep. 451; Brown v. Adams Exp. Co. 15 W. Va. 813. 

' Burrouglm v. Grand Trunk B. Co. 

» Louisville & N. B. Go. v. Gilbert, 7 L. R. A. 163, 88 Tenn. 430; Batik of Ken- 
tucky V. Adams Exp. Co. 93 U. 8. 174, 33 L. ed. 873; Michigan S. <& ST. 1. B. 
Co. V. Heaton, 37 Ind. 448, 10 Am. Rep. 89; Erie B. Go. v. Loekwood, 28 Ohio 
St. 358; Grey v. Mobile Trade Co. 55 Ala. 387, 

* Indianapolis & C. B. Co. v. Cox, 29 Ind. 360. 



•WHBTHEE NOTICE OB ACCEPTANCE OF BILL CONSTITUTES CONTEAOT. 127 

who is to be bound by it, some proof of Icnowledge, on his part, 
of its terms, must be shown.' Where exemption is claimed under 
an exception, not signed by the shipper, the carrier must allege 
and prove, at least inf erentially, the assent of the latter.' Certainly 
a notice limiting the responsibility of the carrier must be une- 
quivocal and published to the world.' Where a carrier, attempt- 
ing to limit his liability by notice, gives two notices, he will be 
bound by that which is least beneficial to himself.' And the 
same rule obtains in bills of lading.' 

By the statute of Illinois the mere acceptance of the receipt 
for the freight does not import assent to its exceptions without 
additional proof. The act in respect of common carriers, ap- 
proved March 27, 1874, provides " that, whenever any property 
is received by a common carrier to be transported from one place 
to another within or without this state, it shall not be lawful for 
such carrier to limit his common law liability safely to deliver 
such property at the place to which the same is to be transported, 
by any stipulation or limitation expressed in the receipt given for 
such property." This is substantially re-enacted in § 82, chap. 
114, relating to railroads.' These statutes do not in terms pro- 
hibit common carriers from limiting their common law liabilities 
by contract with the owner of property delivered for transporta- 
tion. Formerly the restriction of a carrier's liability, when ex- 
pressed in a mere receipt, often gave rise to the question as to 
whether the shipper had knowingly assented thereto, and this en- 
actment was doubtlessly intended to obviate the difficulty grow- 
ing out of that condition. In many respects a railway carrier 

' Camden & A. R. Go. v. Baldmif, 16 Pa. 67, 55 Am. Dec. 481; Edsall v. Cam- 
den &A.B.& Tramp. Co. 50 N. Y. 661. 

" Gaines v. Union n-ansp. & Ins. Co. 28 Ohio St. 418; MerohanU Despatch 
Transp. Co. v. TTieiWar, 86 111. 71. 

* Butler V. Eeane, 2 Oampb. 415. 

*Munn v. Saker, 3 Stark. 255; Cdbdeny. Bolton, 2 Campb. 108; Burton v. Bn- 
glish, L. R. 2 Q. B. Div. 218; Norman v. Binnington, L. R. 25 Q. B. Div. 475; 
Tayhr v. Liverpool & G. W. Steam Co. L. R. 9 Q. B. 546. 

» Kansas aty, M. & B. E. Oo. v. HoUand, 68 Miss. 351; Little Bock, M. B. & T. 
B. Co. V. Talbot, 39 Ark. 534; Black v. Goodrich Transp. Co. 55 Wis. 319, 42 
Am. Rep. 713. 

" Rev. Stat. 1889, chap. 114, § 88. 



128 VALIDITY OJf BILL OP LADING ITS LIMITATIONS OF LIABIUXY. 

may, by express contract, limit its strict common law liability. It 
may by special contract limit the liability to such damage or loss 
as may occur on its own line of carriage.' The carrier may limit 
its liabilities against loss by fire without his fault,' and the liabil- 
ity may thus be limited as an insurer, and against other loss, not 
attributable to its negligence or that of its servants, and may re- 
quire the value of goods offered for transportation to be fixed by 
the shipper, to protect itself against fraud in case of loss. A 
shipper is not then bound by the conditions of a bill of lading 
signed neither by himself nor his agent.' 

Under Dak. Civ. Code, § 1261, providing that the obligations 
of a common carrier cannot be limited by general notice, and 
§ 1263, providing that, except as to the rate of hire, time, place, 
and manner of delivery, the acceptance of a ticket, bill of lading, 
or written contract shall not constitute an acceptance of provisions 
modifying the carrier's obligations, unless the person accepting it 
manifests his assent by his signature, a provision in an express 
company's contract or receipt, exempting the company from lia- 
bihty unless a claim should be presented in writing within ninety 
days from that date, is of no effect, where such contract or receipt 
was signed only by the company's agent.* An agreement restrict- 
ing the carrier's liability except as " to the rate of hire, the time, 
place, and manner of delivery," can only be manifested under S. 
D. Comp. Laws, § 3888, by the signature of the passenger, con- 
signee, or person employing such carrier." A railroad company 
cannot avail itself of any limitation or restrictions of its general 
liability expressed in bills of lading, not assented to by the ship, 
per except by acceptance of such bills of lading, under 6a. Code, 
§ 2068, declaring that a common carrier cannot limit his liability 



' lUinoia Cent. B. Co. v. FrarikeTiberg, 54 111. 88, 5 Am. Rep. 92; Ohieago & 
N. W. B. Co. V. Montfort, 60 111. 175; mM v. Ohieago & B. I. B. Go. 71 
111. 458; Erie B. Go. v. WOcom, 84 111. 239, 25 Am. Rep. 451; Wabash, St. L. 
& P. B. Go. V. Jaggerman, 115 111. 407. 

' Van Schaack v. Northern Transp. Go. 3 Bias. 394. 

• Ohio & M. B. Go. v. Hamlin, 42 111. App. 441. 

* HartweU v. Northern Pac. Exp. Go. 8 L. R. A. 342, 5 Dak. 463. 
» Kirby v. Weatem U. Teleg. Co. (S. D.) 55 N. W. Rep. 759. 



WHEN AOOEPTANOB OF BILL OONOLUDES CONTKAOT. 129 

by any notice given either by publication or by entry on receipts 
given or tickets sold, but may make an express contract.' 

I 35. WTien Acceptance of Bill Concludes Con- 
tract. 

The owner's consent to conditions in a receipt is not always 
•conclusively evidenced by his acceptance of the receipt. It is 
■often only prima facie evidence that he assented to the condi- 
tions. Thus, if a verbal agreement had been made as to the ship- 
ment, it might be assumed that the shipper supposed no other 
<!onditions were inserted in the receipt." Bat the acceptance of a 
receipt from the carrier containing conditions limiting its liability, 
which the law permits, with full knowledge on the part the ship- 
per of such conditions, and by his acceptance intending to assent 
to the restrictions, becomes his contract as fully as though exe- 
cuted in form.' 

The rule often stated is that, in the absence of fraud or mistake, 
the acceptance of the bill of lading precludes the shipper from 
alleging that he was not advised of the contents of the bill ; ' that 
in order to establish the acceptance by the shipper of his assent to 
the bill of lading, it is not necessary to show his signature to the 
bill ; ' that all previous parol agreements are merged where a bill of 
lading is made out by the carrier and accepted by the shipper;" 
that a shipper's acceptance of a bill of lading without objection raises 
a prima facie presumption that he knew its contents and assented 
to its stipulations in the carrier's favor.' 'So special contract is 
to be implied from the general course of dealing of a railroad 
■company in delivering to shippers receipts containing a provision 

' Central B. & Bkg. Co. v. Eamlkus (Ga.) April 24, 1893. 

' St/rohn v. Detroit & M. B. Co. 31 Wis. 554, 94 Am. Dec. 564 

* Illinois Cent. B. Co. v. Frankenberg, 54 111. 88, 5 Am. Rep. 93. 

* Wertlieimer v. Pennsylvania B. Co. 1 Fed. Rep. 333; Mulligan v. Illinois 

Cent. B. Co. 36 Iowa, 181, 14 Am. Rep. 514; Qermania F. Ins. Co. v. Mem- 
phis & C. B. Co. 7 Hun, 333. 

'Piedmont Mfg. Co. v. Columbia & Q. B. Co. 19 S. 0. 353. 

■'Bostwick V. Baltimore & 0. B. Co. 55 Barb. 187; Long -v. New York Cent. B. 
Co. 50 N. y. 76. 

^ Merchants Despatch Transp. Co. v. Bloch, 86 Tenn. 393. 

19 



130 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITT. 

exempting it from liability for damages from certain causes, ex- 
empting it from liability for loss, by fire, of hay delivered to and 
accepted by it for transportation, without delivery of any shipping 
bill, receipt, or shipping orders.' It has been held, that the ac- 
ceptance of a bill of lading without reading it and without ob- 
jection or protest against the limitations therein from liabihty, 
creates a presumption of assent.' This presumption, however, is not 
always conclusive.' It is a question of fact for the jury, whether 
the shipper had knowledge of and assented to, the limitation.' 

A shipper of goods who fills out one of the blank receipts con- 
tained in a book previously furnished by an express company for 
his use, and obtains the signature of the company's agent thereto 
upon delivering to him a package for transportation, will be pre- 
sumed to know the contents of the receipt ; and if he receives 
such receipt without objection his assent to its conditions will, in 
the absence of fraud, be conclusively presumed.' A special con- 
tract limiting the liability of a carrier is binding upon the shipper 
when freely and fairly executed by him, although it was not read 
to him, and he was ignorant of its contents, — especially when he 
receives a duplicate or copy.' A shipper who signs a contract 
limiting the carrier's liability cannot evade its effect on the 
ground that he did not know of its contents, and signed it under 
a misapprehension thereof, where he had opportunity to read it 
or hear it read.' 

In ISTew York where, upon delivery of goods and before ship- 
ment, a carrier delivers a bill or receipt limiting his liability, and 
the shipper receives the same without objection, he is chargeable 

> London & L. F. Ins. Go. v. Borne, W. & 0. B. Go. 68 Hun, 598. 

» Louimlle & N. B. Go. v. Brownlee, 14 Bush, 590; DiUard v: Zouimlle <6 iV. 

B. Go. 2 Lea. 288. 
" Merchants Despatch Transp. Go. v. Leysor, 89 111. 43. 
*meU V. Ghieago & B. I. B. Go. 71 HI. 458; Boscowits v. Adams Exp. Co. 93 

111. 523, 34 Am. Rep. 191. 
» Durgin v. American Exp. Go. (N. H.) 9 L. R. A. 453. 
• Atchison, T. & 8. F. B. Go. v. DUl, 48 Kan. 210. 
' St. Louis, I. M. <fe 8. B. Go. v. WeaMy, 50 Ark. 897. See Ouitlaum v. 

General Transp. Go. 100 N. Y. 491; Germania F. Ins. Go. v. Memphis & G. 

B. Go. 72 N. Y. 90, 28 Am. Rep. 118; Snow v. Indiana, B. <& W. B. Co. 

109 Ind. 422. 



WHEN AOOBPTANOE OF BILL OONCLtTDBS OONTKAOT. 131 

with notice of its contents and is bound by its terms; and prior parol 
negotiations in regard to immediate shipment of goods, cannot be 
resorted to, to vary its terms.' The acceptance by the shipper, of 
a bill of lading, limiting the responsibility of the carrier, signed 
by its agent, and sent by the shipper to their agent as authority 
to receive the goods, — shows the terms on which the goods were 
received by the carrier." 

In a recent case in the United States Circuit Court for the 
Southern District of ISTew York, the questions in the case which 
&,re of general importance arise upon alleged limitations of the 
carrier's liability, which were expressed in the contract printed 
on the ticket. The court finds that the tickets were purchased in 
England; that they were maritime contracts; that the part of the 
agreement which is important to the case is contained in that part 
of the notice to cabin passengers printed on the tickets which re- 
lates to the care of baggage and valuables. At the bottom of the 
face of the ticket are the words in conspieious black-faced type. 
"See back." At the top of the other side is the sentence, "This 
contract is subject to the following conditions." Seven of these 
follow. Nos. 3, 4 and 7 bear on the case. No. 3 reads: "H^either 
the shipowner, the passage broker, nor agent is responsible for 
the loss or injury to the passenger or his luggage or personal ef- 
fects, or delay on the voyage arising from latent defects in the 
steamer, her machinery, gear, or fittings; or from act of God or 
the Queen's enemies; perils of the sea or rivers; restraint of 
princes, rulers, and people; barratry, or negligence in navigation 
of the steamer or of any other vessel." The fourth condition is: 
"l^either the shipowner nor the passenger agent is in any case 
liable for the loss of or injury to or delay in the delivery of lug- 

'EUl V. Syracuse, B. & N. T. B. Co. 73 N. Y. 351, 29 Am. Rep. 163, revers- 
ing 8 Hun, 396; to the same effect, KirUandy. Dinamore, 63 N. Y. 171, 30 
Am. Kep. 475; Oermania F. Ins. Co. v. Memphis & C. B. Co. 73 N. Y. 90, 
28 Am. Rep. 113; Soumet v. National Exp. Co. 66 Barb. 284. 

' Zamb V. Camden & A. B. & Trtmsp. Co. 2 Daly, 454; Pennsylvania B. Co. 
V. McOloskey, 33 Pa. 536; School JHst. inMedfield v. Boston, H. <fe E. B. Co. 
103 Mass. 553, 3 Am. Rep. 502; TTnion Mut. Ins. Co. v. Indianapolis & G. 
B. Co. 1 Disney, 480; Tm-k Mfg. Co. v. Blinois Cent. B. Co. 1 Biss. 377; 
Woodwa/rd v. Illinois Cent. B. Co. 1 Biss. 447; Fa/mUom, v. Camden & A. B. 
Co. 55 Pa. 53. 



132 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 

gage or personal effects of the passenger beyond the amount of 
£10, unless the value of the same in excess of that sum be de- 
clared at or before the issue of this contract ticket, and freight at 
current rates for every. kind of property (except pictures, statu- 
ary, and valuables of any description upon which a percentage 
will be charged) is paid." The last condition is that aU questions 
arising on the ticket shall be decided according to the English 
law with reference to which that contract is made. The court 
finds that neither the father of the two young women passengers, 
who purchased the tickets, nor either of the women, read this no^ 
tice on the back of the tickets, or knew its contents, and that no 
declaration of the extraordinary value of their property had been 
made, as was required under the fourth condition. Judge Ship- 
man, who tried the case, discusses the matter at great length. He 
objects to the contract and conditions because they were clumsily 
drawn and because they were not on the face of the ticket, where 
they would have been more conspicious, but he holds, neverthe- 
less, that they were binding, provided they were brought to the 
attention of the purchaser. In effect he says that if they were 
not so brought to the knowledge and attention of the purchaser 
they would not be binding and the company could not save itself 
by them. It was not asserted by the company that the conditions 
of the contract were read to the father, when he purchased the 
tickets, but the judge held that as he had had the tickets in his 
possession some time before they were used he had sufficient op- 
portunity to read them, and he should have done so. He also 
had sufficient opportunity to look up the law and find just how 
far the company could be held liable in case of damage. "There- 
fore," the judge says, "the regulation was distinctly brought to 
the knowledge of Mr. Potter, the father." The judgment of the 
district court was reversed, with instruction that the damage 
awarded to each of the passengers be reduced to $43.67 and in- 
terest to date.' 

It has been held (March, 1894) that a change made by the car- 
rier in the name of the place of deliTOry, before the return of the 

• Potter V. 37w Majestie, 23 L. R. A. 746, 60 Fed. Rep. 625. 



BILL DBLIVEEED AFTEE AOOEPTING GOODS. 133 

bill of lading to the shipper, is a rejection by the carrier of the 
terms proposed in the bill of lading; and, unless the shipper gives 
notice within reasonable time of his dissent from the alteration, 
he will be held to have accepted the change, — although in fact, 
it was unnoticed by him.' The consignee and endorsee of a bill 
of lading who is owner of the goods and the bill of lading and 
accepts the goods thereunder, is bound by its terms.' 

A receipt by a carrier for goods delivered to it for shipment, 
merely calling attention to unsigned conditions printed on its 
back, and stating that a bill of lading is to be given thereafter, is 
not a contract of shipment such as to merge an oral agreement 
for shipment.^ 

§ 86. Bill Delivered after Accepting Goods. 

After the goods are shipped, it is too late to impose upon the 
shipper a clause exempting the carrier from liability from loss by 
fire, after such fire has occurred." The acceptance by the shipper 
of a receipt for goods, containing a clause limiting the carrier's 
Uability, is only " prima facie " evidence of the shipper's assent to 
the condition. The shipper may show previous delivery of 
goods.' A carrier cannot contract for a limitation of liability for 
loss of property through its negligence while in its possession for 
transportation." While a bill of lading is prima facie evidence of 
the truth of its contents, the carrier may show any injury, loss, 
fraud or deceit occasioned or practiced by the shipper, or any 
previous carrier.' And where goods are delivered to carrier un- 
der agreement not restricting its common law liability, it cannot 
thereafter insert in bill of lading clauses restrictive of its usual 
liability.' 

' Muller V. (Mneinnati, S. & D. E. Co. 3 Cin. Super. Ct. 380. 

^ Neilsm v. Jeaup, 30 Fed. Rep. 138. 

' MereharM Dispatch Transp. Oo. v. VwrtTimann, 149 111. 66, Aff'g 47 HI. App. 

561. 
* Lwmb V. Camden & A. B. Go. 4 Daly, 483. 
' Slrohn v. Detroit & M. B. Oo. 31 Wis. 554, 94 Am. Dec. 564. 
'■International & 9. N. B. Co. v. Folts, 3 Tex. Civ. App. 644. 
' Great Western B. Co. v. McDonald, 18 111. 172. 
« Park v. Preston, 108 N.T. 434. 



134 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITT. 

A bill of lading limiting liability signed only by carrier sent to 
shipper after receipt of goods without any contract hmitation, will 
not bind shipper.' After the delivery of goods under a verbal agree- 
ment, the delivery to the shipper of a bill of lading, partly writ- 
ten and partly printed, will not have the effect of merging the 
verbal stipulations therein, so far as they limit the liability of the 
carrier. The omission by the shipper, through inadvertence, to 
examine the printed conditions, will not conclude him as having 
accepted under the bill of lading, nor prevent his showing what 
the actual agreement under which the goods were shipped, was.' 
Presumption of assent by the shipper will not be indulged where 
it is shown that before the delivery of the bill of lading, goods 
have been sent forward, so that the shipper could not have re- 
claimed them had he objected to the contents of the bill.' 

The rule may be thus stated : The carrier can not abrogate or 
alter a contract, under which goods have been shipped, by merely 
signing and mailing bills of lading which did not reach the plaia- 
tiffis until after the goods had left, and much, if not all, the loss 
has accrued. Where there was not conclusive evidence that the 
plaintiffs consented to accept the bills of lading in place of the 
prior contract, that contract must control.' 

Where the evidence warrants a finding that the merchandise 
transported was delivered to and accepted by the carriers under a 
special contract, and there is no conclusive evidence that the con- 
signor consented to accept the bills of lading in place of such 
contract, the carrier's liability is fixed by such special contract 
and can not be abrogated or altered by the subsequent signing 
and mailing of bills of lading by the carriers which did not reach 
the consignor (who was also the consignee) until after the loss oc- 
curred.' Thus, a stove broken en route is at the carrier's risk, 

' Central R. Co. v. Bw^ht Mfg. Go. 75 Ga. 609; GuUlaume v. Qeneral Transp. 

Go. 100 N. T. 491 ; Snow v. Indiana, B. & W. B. Go. 109 Ind. 422. 
'Bostwick V. Baltimore <6 0. B. Co. 45 N. Y. 712; Baker v. Michigan 8. d N. 

I. B. Co. 42 111. 73. " 

» Germania F. Ins. Co. v. MempliU <fi G. B. Go. 72 N. Y. 90, 28 Am. Rep. 113. 
* Bostwick V Baltimore & 0. B. Co. 45 N. Y. 712; Guillaume v. General Tramrp. 

Go. 100 N. Y. 491; Wheeler v. Jfew Brunswick & 0. B. Go. 115 U. S. 39, 29 

L. ed. 341; Buift v. Pacific Mail 88. Go. 106 N. Y. 206. 
» Swift V. Pacific MaU SS. Go. 106 N. Y. 206. 



BILL DELITEEBD AFTEE AOOEPTING (JOODS. 135 

where the freight agent applied to for shipment of that and other 
office furniture informed the shipper that it was customary for 
shippers to release stoves, but advised him to pay extra and send 
at the carrier's risk, to which the shipper assented, and after the 
goods were shipped the agent handed him a bill of lading condi- 
tioned that stoves should be at the owner's risk, telling him that 
it was a receipt for the goods, the shipper putting it in his pocket 
without examination.' So, a special contract limiting the liability 
of a carrier, signed by a shipper of horses after they are aboard 
the train, upon a demand of the agent of the carrier, combined 
with a statement that otherwise the horses will not go on that 
train, — ^is not binding upon him ;" although the refusal to receive 
or forward goods for carriage, except upon the conditions limiting 
the carrier's common law liability, is sufficient ground for an ac- 
tion at law." Where the goods are delivered to the carrier and 
accepted, under a verbal contract, the subsequent sending of a bill 
of lading to the shipper — without special attention being called 
to the conditions varying the verbal contract — will not bind the 
shipper.* But a previous course of dealing being shown, under 
which goods were received by the carrier, and it being in proof 
that after such delivery a bill of lading was delivered to the ship- 
per containing like stipulations, this evidence would create a pre- 
sumption of consent by the shipper to the limitations.' 

The acceptance of a bill of lading without assenting to its con- 
ditions does not conclude one who has shipped goods under a 
verbal agreement before the bill of lading was tendered." 

' Union Paa. S. Co. v. Mwrston, 30 Neb. 241. 

' Atchuon, T. & S. F. B. Co. v. DiU, 48 Kan. 310. 

* Leonard v. American Mcp. Co. 26 U. C. Q. B. 533. 

*Bosiwiek v. Baltimore & 0. B. Co. 45 N. T. 712; Wheeler v. New Brunswick 
& C.B. C0.115U.8.39, 29L.ed. ?,^\;McGullougTiy.Waba»}iWe«lernB. Co. 
34 Mo. App. 23; Suiift v. Pa^fie Mail BS. Co. 106 N. Y. 206. 

* Bhelton v. Merchants Dispatch Transp. Co. 59 N. T. 258. 

*Merchants' Dispatch Transp. Co, v Bki,rthm,ann, 149 111. 66, AfE'g 47 111. App. 
561. 



136 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 

% S7. LimitatioTb Consented to hy Agent. 

The power of the agent to agree with the carrier upon a limitar 
tion of the latter's liability has been discussed in the courts.* 
And it has been held that knowledge by the carrier that he was 
contracting with an agent, put him upon inquiry as to the extent 
of the agent's authority." But the general rule is that where a 
shipper entrusts an agent with the care of the goods for trans- 
portation, he is presumed to have clothed him with all necessary 
authority for contracting. A shipping contract limiting the ha- 
bility of a carrier to a certain sum in consideration of a reduced 
rate of transportation is binding upon a shipper whose agent to- 
make the shipment assented to the stipulation, although the limi- 
tation is not brought to the knowledge of the shipper himself.' 
The shipper has been bound, by his acceptence of the bill of lading, 
with the condition stated thereon limiting the liability of the car- 
rier.' General authority to a consignor to deliver goods to a car- 
rier for transportation includes power to agree on exemptions 
from liability.' An agent authorized to contract for the ship- 
ment has presumptive authority to agree, without special consid- 
eration, that the carrier shall have the benefit of any insurance 
that may have been efEected upon the goods to be transported." 
The exceptions to the common law liability being made in the 
bill of lading, and delivered to the agent of the plaintiff, must be 
deemed to have been agreed upon by the parties.' 

But a bill of lading first issued by the shipper ajid delivered by 
his agent to the owner of the boat after it had started on its voy- 
age, and under which the voyage was thereafter performed, must 
be deemed to be the contract binding upon the parties and the 
cargo, as against a bill sent to the consignee and signed by one of 

' Southern Pac. B. Go. v. Maddox, 75 Tex. 300. 

« Hayes v. Campbell, 63 Oal. 143. 

» Zimmer v. Mw York Gent. <& H. B. B. Go. 137 N. T. 460. 

■* Nelson v. Hudson Bitter B. Go. 48 N. T. 498. See ante § 29, note 3. 

» Brown v. Louisville & M. B. Go. 36 111. App. 140. 

• Missouri Paa. B. Go. v. International M. Ins. Go. 84 Tex. 149. 

iBorr V. New Jersey 8. Nav. Go. 11 N. T. 485, 62 Am. Dec. 125; Griffith -v. 

Ingledew, 6 Serg. & R. 429, 437, 9 Am. Dec. 444: Nelson v. Hudson Biver 

B. Co. 48 N. Y. 498. 



VALIDITY OF BILL DEPENDS ON EEOEPTION OF GOODS BY OAEEIBE. 1ST 

the firm of shippers as agent of the master, without authority, and 
never exhibited to the master or owner before the completion of 
the voyage;' and a shipper to whom through rates have been stated 
by the station agent of a railroad, without mention of any condi- 
tions, is not bound by conditions upon shipping bills executed 
without his knowledge by the persons who delivered for him the 
property to the railroad company •' for an agent of the shipper 
cannot, without consideration to his principal, release the carrier 
from its common law liability after a contract is made for the car- 
riage of goods.' A notice limiting the liability of the carrier 
which is effective, known by the principal, binds him in respect 
to all his agents sending goods by the same carrier, and a notice- 
to a known agent who ships the goods will bind the principal as 
to such acts, although he be personally ignorant of the restric- 
tion.* 

§ 38. Validity of Bill Depends on Reception of 
Goods hy Carrier. 

While a bill of lading covers goods subsequently delivered and 
received to fill it, and will represent the ownership of the goods,' 
yet a carrier, in issuing a bill of lading, for property delivered to 
him for transportation, does not warrant the title of the shipper. 
The receipt of the goods lies at the foundation of the contract to 
carry and deliver. If no goods are actually received, there can 
be no valid contract to carry or to deliver.' The obligation be- 
tween the ship and the cargo is mutual and reciprocal, and does- 
not attach until the cargo is on board, or in the custody of the 
master.' Delivery of goods to a common carrier for transporta- 

' CoiteUo V. 734,700 Laths, U Fed. Eep.105. 

» Jennings v. Grand Trunk B. Co. 127 N. T. 438, 49 Am. & Eng. K. Cas. 98. 

' Wiggins v. Brie B. Co. 5 Hun, 185. 

*Mayhew v. Barnes, 3 Bam. & 0. 601; Clarke v. Suichins, 14 East, 475; Mamng' 
V. Todd, 1 Stark, 72. 

*Eeniz v. The Idaho, 93 U. S. 575, 23 L. ed. 978. 

*PoVm-d V. Vinton, 105 U. 8. 7, 26 L. ed. 998. 

''King v. The Lady Franklin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; The Free- 
man T. Buckingham, 59 U. S. 18 How. 192, 15 L. ed. 345. 



I'dS VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LUBILHT. 

tion involves exclusive possession in the carrier, and this posses- 
sion involves a surrender of custody and control for the time be- 
ing by the consignor.' 

There is an unbroken line of authorities in England that even 
as against a bona fine consignee or indorsee for value, the carrier 
is not estopped by the statements of the bill of lading, issued by 
his agent, from showing that no goods were in fact received for 
transportation.' And this has not been at all changed by the 
" Bills of Lading Act." 18 & 19 Vict. chap. Ill, § 3. It is also 
the settled doctrine of the Federal courts.' A railroad company 
which has issued bills of lading in advance of the receipt of the 
goods is not liable thereon until the goods are actually received, 
and is not bound to refuse the goods when tendered, if they do 
not correspond in grade and quality with those described in the 
bills of lading.' 

One who accepts a bill of lading for a designated amount of 
cotton issued by the agent of a railway company in favor of a 
firm having no real existence, without any indorsement by such 
firm, is necessarily put on inquiry as to who such firm is, and is 
not protected by the provisions of Ala. Code 1886, § 1179, pro- 
viding that any carrier which issues a bill of lading or receipt for 
property which it has not received is liable to any person injured 
thereby, for all damages resulting therefrom.' 

A carrier is not liable on a bUl of lading for property which at 
the time of the signing of the bill remained in the hands of the 

' Wilaon V. Atlanta & O. B. Oo. 82 Ga. 386. 

"Zipiey V. BiU, 1 Post. & P. 573; Qraait v. Norway, 10 0. B. 665; OoUman v 
BicTiea, 16 0. B. 104; Eublersty v. Ward, 8 Exch. 330; Brown v. PovbM 
Duffryn Steam Coal Oo. L. R. 10 C. P. 563; McLean v. Fleming L R 3 
H. L. 128; Cox v. Bruce, L. R. 18 Q. B. Div. 147; Meyer v. Dresaa-. 16 C 
B. N. S. 646; Jeatel v. Bath, L. R. 2 Exch. 267. 

* The Freeman v. Buckinghcm, 50 U. 8. 18 How. 183, 15 L. ed 341- Kiwi v 
The Lady Franklin, 75 IT. S. 8 Wall. 825, 19 L. ed. 455; Pollard v. Vinton, 

-««. Louie, I. M. <6 8. B. Co. v. Knight, 123 U. S. 79, 80 L. ed. 1077; Fried- 
lander V. Texas d P. B. Co. 180 U. S. 416, 82 L. ed. 991; Thi Joseph 
Grant, 1 Bias. 193; Bobmson v. Memphis & G. B. Co. 9 Pad Rep 129 
141, 16 Ped. Rep. 57; The Alice, 12 Fed. Rep. 496; Law v. 'Bot^ird. 26 
Ped. Rep. 651. ■' ' 

*Jaig?6r Trust Oo. v. Kansas City, M. <Sk B. B. Co. (Ala.) 14 So. 646. 



VALIDITY 01' BILL DEPENDS ON EBGEPTION OF GOODS BY OAEEIEE. 139 

shipper for the purpose of being compressed for the shipper's 
account, and was destroyed by fire before the delivery to the car- 
rier had been consummated.' 

What was said on the subject in The Freeman v. JBuchmgham 
was probably obiter, for in that case it was sought to hold the in- 
terests of the general owner in a ship liable on a bill of lading 
issued by the special owner, who was not the agent of the former. 
But. what is there said is important both as being the utterance 
of so eminent a jurist as Curtis, J., and also because so often 
quoted with approval by the same court in subsequent cases. 
The case of the Lady Franklin did not involve the question of 
a bona fide purchaser, but is important as announcing that the 
principle is the same, whether the false biU of lading is issued 
fraudulently or by mistake. It is said where a bill of lading was 
given by mistake for goods not actually shipped, there can be no 
lien for nondelivery of the goods." An instrument stating that 
cotton is received on dock to be transported by a certain steamer 
of a line, or any other steamship of the line, is not a bill of lading 
proper, binding upon such steamer, but only an executory con- 
tract to ship. A steamship chartered to run as part of a line is 
not liable m rem for missing bales of cotton never received on 
board, under a bill of lading reciting only their receipt on dock 
and not signed by the master but by the agent, — especially where 
the latter was the agent of the charterer.^ In view of the later 
cases cited above, there is no room to doubt that the Supreme 
Court of the United States is firmly committed to the doctrine in 
its broadest scope. 

A common carrier is not estopped from denying that it 
has clothed its agent with apparent authority to do the act, 
where he, having authority to sign bills of lading, has, acting 
in collusion with another person solely for a purpose of their own, 
issue a biU of lading for goods which never came into the pos- 
session of the carrier.* Bills of lading signed by the master of a 

^Missown P. B. Oo. v. MFoMen, 154 U. S. 155, 38 L. ed. 944. 
'King v. The Lady M-anklin, 75 U. S. 8 "Wall. 335, 19 L. ed. 455. 
» The Ga/roUne Miller, 53 Fed. Rep. 136. 
*M-iecaander v. Texas & P. B. Oo. 130 U. S. 416, 33 L. ed. 991. 



140 VALIDITY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 

vessel and issued to persons who have contracted to furnish the 
charterers with a certain number of bales of hemp, but who have 
actually put on board a less number, while the bills of lading 
were made out for the fuU contract number, are not subject to 
the order of the shippers so as to put the charterers in the posi- 
tion of bona fide indorsees, where the master and owners of the 
ship are ignorant of the arrangement, and the mistake in the bill 
of lading arises from a mistake in the tally of the bales taken 
aboard as made by the mate.' A railway company does not, by 
giving its bills of lading for cotton in the sheds of another com- 
pany, take possession of the cotton, and does not make the other 
company its agent to hold the cotton. It does not merely, by 
giving bills of lading for cotton in sheds of a compress company 
in exchange for the receipts of the compress company, become 
responsible for a nuisance resulting from the manner and the 
place in which the cotton is kept by the express company." The 
inclusion in a bill of lading signed by the master of a vessel, of 
more goods than were actually shipped, does not make the vessel 
liable for any greater amount than the actual shipment, even to a 
bona fide indorsee of the bill of lading.' 

Bills o^ lading, when signed by the master, duly executed m 
the usual course of business, bind the owners of the vessel, if the 
goods were laden on board or were actually delivered iuto the 
custody of the master, but it is well settled law that the owners 
are not liable, if the party to whom the bill of lading was given 
had no goods or the goods described in the bill of lading were 
never put on board or delivered into the custody of the carrier or 
his agent.* The carrier's liability as such wiU not attach on issu- 
ing the bill in a case where not only is there a failure to dehver 
but there is also an understanding between the parties that deliv- 

' The Asphodel, 53 Fed. Rep. 835. 

' St. Louis, I. M. & S. B. Co. v. Commercial U. Ins. Co. 189 U. S. 223, 35 L. ed. 
154. 

' The Asphodel, supra. 

* T7ie Freeman v. Buckingham, 59 U. S. 18 How. 187, 15 L. ed. 343; Orant v. 
Norway, 10 C. B. 665; Zipsey v. HiU, 1 Fost. & F. 573; Meyer yr. Dresser, 16 
C. B. N. 8. 657; Tlie Delaware v. Oregon Iron Co. 81 TJ. S. 14 Wall. 579, 20 
L. ed. 779; Maude & P. Shipping, 233. 



•VALIDITT OF BILL DEPENDS ON EEOEPTION OF GOODS BY OAEKIEE. 141 

«ery shall not be made till a future day, and that the goods until 
then shall remain in the custody of the shipper." This doctrine is 
isanctioned by a unanimous course of English and American de- 
cisions." Indeed, the citations might be multiplied indefinitely. 
Whilst the authorities may difEer upon the point of what consti- 
tutes delivery to a carrier, the rule is nowhere questioned that 
-when delivery has not been made to the carrier, but, on the con- 
trary, the evidence shows that the goods remained in the posses- 
•■sion of the shipper or his agent after the signing and passing of 
the bill of lading, the carrier is not liable as carrier under the 
hill.' The same rule obtains in Massachusetts, Maryland, Louisi- 
■aua, Mississippi, Missouri, North Carolina, and apparently Ohio.* 
A bill of lading is not a representative of money, used for the 
■transmission of money or for the payment of debts, but is merely 
-a contract for the performance of a certain duty, or a representar 
"tive of goods and personal property to be delivered. Bills of 
lading, although made negotiable in fact by statute, are not pos- 
;sessed of all the incidents of negotiability that are attributes of 
bills and notes, Non-negotiable bills of lading are merely assign- 
able, the same as other choses in action.' But clear proof will be 
required of the non-receipt of the goods, where a bill of lading is 
,-shown.' The text-writers all agree that the overwhelming weight 



^ Missouri Pae. R. Go. v. McFadden, 154 TJ. 8. 155, 38 L. ed. 944. 

' TheFreeman v. Buckingham,, 59 U. S. 18 How. 182, 15;L. ed. 341 ; Kirig v. The 
Lady Franldin, 75 U. S. 8 Wall. 325, 19 L. ed. 455; The Delaware v. Ore- 
gon Iron Co. 84 U. 8. 14 Wall. 579, 30 L. ed. 779; Pollard v. Vinton, 105 U. 
S. 7, 26 L. ed. 998; St. Louis, L M. & 8. B. Co. v. Knight, 123 U. 8. 79, 30 L. 
ed. 1077; Pnedlander v. Texas & P. R Co. 130 U. 8. 433, 33 L. ed. 994; St. 
Louis, L M. & 8. R. Go. v. Commercial U. Ins. Go. 139 U. S. 339, 35 L. ed. 
159; Barron v. Eldredge, 100 Mass. 455, 1 Am. Rep. 136; Moses -v. Boston & 
M. R. Go. 24 N. H. 71; Brind v. Dale, 8 Car. & P. 207; 8elway v. BoUoway, 
1 Ld. Eaym. 46; Buckman y. Levi, 3 Campb. 414; Leigh v. Smith, 1 Car. & 
P. 638; Grant Y. Nwway, 10 C. B. 665; Mubbersty v. Waa-d, 18 C. B. 551; 
Colemmn v. Riches, 16 C, B. 104. 

* Missouri Paa. B. Go. v. McFadden, 154 TJ. 8. 155, 38 L. ed. 944. 

* Sears v. Wingate. 3 Allen, 103; Baltimore & 0. R. Co. v. Wilkens, 44 Md. 11, 23 

Am. Rep. 26; Fellows v.TheR. W. Powell, 16 La. Ann. 316, 79 Am. Dec. 581; 
Hunt V. Mississippi Gent. R. Go. 39 La. Ann. 446. 
'Lalande v. His Creditors, 42 La. Ann. 705; Louisiana Nat. Bank v. Laveille, 
53 Mo. 380; Williams v. Wilmington <bW. B. Go. 93 N. C. 42; Dean v. King, 
23 Ohio 8t. 118. 
■*LittU Miami, C. & X. R. Co. v. Dodds, 1 Cin. Super. Ct. 47. 



142 VALIDITY OF BILL OF LADING ITS LIMITATIONS OK UABILITT. 

of authority is on this side.' The reasoning by which this doctrine is 
usually supported is tliat a bill of lading is not negotiable in the 
sense in which a bill of exchange or promissory note is negotiable, 
where the purchaser need not look beyond the instrument itself; 
that so far as it is a receipt for the goods it is susceptible of ex- 
planation or contradiction, the same as any other receipt; that the 
whole question is one of the law of agency; that it is not within 
the scope of the authority of the shipping agent of a carrier to 
issue bills of lading where no property is in fact received for 
transportation; that the extent of his authority, either real or ap- 
parent, is to issue bills of lading for freight actually received; 
that this real and apparent authority — i. e., the power with which 
his principal has clothed him in the character in which he is held 
out to the world — is the same, viz, to give bills of lading for goods 
received for transportation and that this limitation upon his au- 
thority is known to the commercial world, and therefore any per- 
son purchasing a bill of lading issued by the agent of a carrier 
acts at his own risk as respects the existence of the fact (the re- 
ceipt of the goods) upon which alone the agent has authority to 
issue the bill, the rule being that if the authority of an agent is 
known to be open for exercise only in a certain event, or upon 
the happening of a certain contingency, or the performance of a 
certain condition, the occurrence of the event, or the happening 
of the contingency, or the performance of the condition, must be 
ascertained by him who would avail himself of the results ensu- 
ing from the exercise of the authority. An examination of the 
authorities also shows that they apply the same principle whether 
the bill of lading was issued fraudulently and coUusively or 
merely by mistake. A carrier is not precluded from denying 
that goods represented by a bill of lading were never received by 
it, where it accepted warehouse receipts as evidence of the ship- 
per's goods, in the faith that they would be delivered." 

A railroad company is not estopped to deny that it had possession 
of cotton lying in the sheds or warehouse of a compress company, 

' See 38 Am. Dec. 410, note to Chandler v. Bprague. 
' Hazard v. lUinm Cent. R. Co. 67 Mias. 82. 



VALIDITY OF BILL DEPENDS ON EEOEPTION OF QOODS BY OAEKIEB. 14:3 

for which it had issued bills of lading in exchange for receipts of 
the compress company, by reason of a statute prohibiting carriers 
from issuing bills of lading except for goods actually received 
into their possession.' A bill of lading issued by a station or 
shipping agent of a common carrier, without receiving goods for 
transportation, imposes no liability upon the carrier, even to an 
innocent consignee or indorsee for value; and the carrier is not 
estopped by the bill from showing that no goods were in fact 
received." The states in which a contrary rule has been adopted are 
New York, Kansas, Nebraska, apparently Illinois, and perhaps 
Pennsylvania.' Thus where defendant's agent, upon a forged ware- 
house receipt, issued bills of lading stating the receipt of certain 
articles consigned to the plaintiS in New York, and the agent 
was informed by the shipper that he intended to use them in 
banks, and he drew sight drafts on the plaintiff, which he attached 
to the bill of lading, which were paid on presentation, it was held 
that carrier was estopped from denying the receipt of the prop- 
erty.' And, where a carrier gives a bill of lading reciting that 
the property is then lying at a depot in a certain place, and agrees 
to forward the same to the consignee, and money is advanced on 
the bill of lading, the carrier cannot defeat the action for failure 
to deliver the goods by showing that, at the time of giving such 
bill of lading and its indorsement, the goods were in the adverse 
possession of another.' 

The reasoning of these cases is in substance that the question 
does not at all depend upon the negotiability of bills of lading, 
but upon the principle of estoppel wi pais; that where a prin- 
cipal has clothed an agent with power to do an act in case of 
the existence of some extrinsic fact, necessarily and peculiarly 

' Mwrtin V. St. Louis, 1. M. & 8. B. Co. 55 Ark. 510. 

'National Bank of Commerce v. Chicago, B. & N. B. Co. 9 L. R. A. 263, 44 

MiDD. 224. 
' Bank of Baimma v. New York, L. B. & W. B. Co. 106 N. T. 195, 60 Am. 

Rep. 440; Wichita Sav. Bank v. Atchison, T. & 8. F. B. Co. 20 Kan. 519; 

Bioux City & P. B. Co. v. Mrst Nat. Bank of Fremont, 10 Neb. 556, 35 Am. 

Rep. 488; St. Louis & I. M. B. Co. v. Ijwned, 103 111. 293; Brooke v. New 

York, L. E. & W. B. Co. 108 Pa. 539, 56 Am. Rep. 235. 
'Armmr v. Michigan Cent. B. Co. 65 N. Y. 111. 22 Am. Rep. 603. 
» 8t. Louis <& L M. B. Co. v. Larned, 103 111. 293. 



144 TALIDITT OF BILL OF LADING ^ITS LIMITATIONS OF LIABILITY. 

"within the knowledge of the agent, and of the existence of 
which the act of executing the power is itself a representation, 
the principal is estopped from denying the existence of the fact, 
to the prejudice of a third person, who has dealt with the agent or 
acted on his representation in good faith in the ordinary course 
-of busiaess. It is said that the carrier is estopped from denying 
the acts of its local freight agent with power to issue bills of lading,, 
■only upon actual receipt of the property for transportation, in 
fraudulently issuing bills of lading whereby third persons suffer 
damage by advances thereon.' It is urged that force is added to 
this reasoning in view of the fact that bills of lading are viewed 
^nd dealt with by the commercial world as quasi negotiable, and 
consequently it is desirable that they should be viewed with confi- 
•dence and not distrust; and that for these considerations it is bet- 
ter to cast the risk of the goods not having been shipped upon 
the carrier, who has placed it in the power of agents of his own 
•choosing to make these representations, rather than upon the in- 
nocent consignee or indorsee, who, as a rule, has no means of aa- 
-certaining the fact. 

But, on the other hand, it may be said that carriers are not 
in the business of issuing and dealing in bills of lading in 
the same sense in which bankers issue and deal in bills of 
-exchange; that their business is transporting property, and 
that, if the statement in the receipt part of bills of lading issued 
by any of their numerous station or local agents is to be held con- 
-clusive upon them, although false, it would open so wide a door 
for fraud and collusion that the disastrous consequences to the 
•carrier would far outweigh the inconvenience resulting to the 
commercial world from the opposite rule. It is also to be ad- 
mitted that it requires some temerity to attack either the policy 
■or the soundness of a rule which seems to have stood the test of 
-experience, which has been approved by so many eminent courts, 
and under which the most successful commercial nation in the 
world has developed and conducted her vast commerce ever since 
tthe inception of carriers' bills of lading. And on questions of 

' Bank of Batavia v. Ifev) York, L. E. & W. R. Co. 106 N. T. 195. 60 Am. 
Rep. 440. 



TALIDITT OF BILL DEPENDS ON EECEPTION OF GOODS BT OAEEIEE. 145 

■commercial law it is eminently desirable that there be uniformity. 
It is even more important that the rule be uniform and certain 
than that it be the best one that might be adopted. Moreover, 
on questions of general commercial law the Federal courts refuse 
to follow the decisions of the state courts, and determine the law 
according to their own views of what it is. It is therefore very 
desirable that on such questions the state courts should conform 
to the doctrine of the Federal courts. The inconvenience and 
confusion that would follow from having two conflicting rules on 
the same question in the same state, one in the Federal courts and 
■another in the state courts, is of itself almost a sufficient reason 
why the latter adopt the doctrine of the Federal courts on this 
question. To do otherwise, so long as the jurisdiction of those 
•courts so largely depends on the citizenship of suitors, would 
really result in discrimination against citizens of the state by its 
■own courts. 

The overwhelming weight of authority, seems to sustain the rule 
■that a bill of lading issued by a station or shipping agent of a 
railroad company or other common carrier, without receiving the 
goods named in it for transportation, imposes no liability upon 
the carrier, even to an innocent consignee or indorsee for value, 
and that the rule is the same whether the act of the agent was 
fraudulent and collusive, or merely the result of mistake. Of 
■course this is predicated upon the assumption that the authority 
of the agent is limited to issuing bUls of lading for freight re- 
ceived before, or concurrent with, the issuing of the bills, which 
would be the presumption in the absence of evidence to the con- 
trary. No doubt a carrier might adopt a different mode of doing 
business by giving his agents authority to issue bills of lading for 
goods not received, so as to render him liable in such cases to 
■third parties.' 

' National Bank of Commerce v. Chicago, B. & If. B. Co. 9 L. K. A. 368, 4A 
Hinn. 224. 

10 



146 VAT.TTITTY OF BILL OF LADING ITS LIMITATIONS OF LIABILITY. 

§ S9. Exceptions in Bill Waived by Jfegligence. 

While no exception of a private nature not contained in the 
contract of affreightment itself, can be an excuse for its nonper- 
formance, and the carrier must furnish evidence to discharge it- 
self for a failure to perform its contract,' yet that a common car- 
rier may exempt himself from liability for loss occasioned by 
ordinary negligence has been held by many of the courts." But 
these exemptions from liability by contract must be such only, 
under the strong current of authority as are just and reasonable 
in the eye of the law.' 

A signed contract purporting to relieve a railway company 
from liabihty for every kind of negligence or default, however 
caused and however completely the loss may be unconnected with 
the fact of the goods being valuables, without any equivalent or 
beneficial alternative, will not avail the company under the En- 
glish Railway and Canal Traffic Act, § 7, providing that the com- 
pany shall be liable for the loss of any goods by the neglect or 
default of the company or its servants, in the absence of a signed 
and reasonable contract for exemption.' 

In New York it has been held that a common carrier may stip- 
ulate the exemption from losses through his own negligence or 
that of his servants.' But contracts shoidd not be held to include 
negligence from general words, nor will it be so construed unless 
expressed in unequivocal terms.' If the general words can be 

^Sowland v. Cheenway, 63 U. 8. 22 How. 491, 16 L. ed. 391. 

^Ante, chap. II. See also, Baltimore & O. S. Co. v. Brady, 32 Md. 333; 
Ashmore v. PenmyVoania Steam Towing Ti-anap. Go. 38 N. J. L. 180; Law- 
rence V. New York. P. & B. B. Co. 36 Conn. 63; Peck v. Weekt, 34 Conn. 
145; Hawkins v. Great Western B. Co. 17 Mich. 57, 97 Am. Dec 179; Adams 
Exp. Co. V. Haynes, 43 111. 89; American Exp. Co. v. Perkins, 42 111. 458; 
Mann v. Birchard, 40 Vt. 326; Kina)aM v. Butland & B. B. Co. 26 Vt. 247, 
62 Am. Dec 567. 

' Stat. 17 & 18 Vict. chap. 31, § 7; Peek v. Ifbrth Staffordshire B. Co. 10 H. 

L. Cas. 473, 493; New Tork Cent. B. Co. v. Loekwood, 84 U. S. 17 Wall. 

357, 21 L. ed. 627, 10 Am. Rep. 366, note; Ante, chap. II. § 10 et al. 
* Shaw V. Great Western B. Co. [1894] 1 Q. B. 373. 
' Magnin v. Dinsmore, 56 N. T. 168; Poacher v. New Tork Cent. B. Co. 49 N. 

Y. 263, 10 Am. Rep. 364; KneU v. United States & B. 8S. Co. 1 Jones & 3. 

423. 



V. Syracuse, B. * N. T. B. Co. 71 N. T. 180, 27 Am. Rep. 28, re- 
versing 7 Hun, 399; Nicholas v. New Tork Cent, (g H. B. B. Co. 89 N. 
Y. 870. 



EXCEPTION IN BILL WAIVED BY NEGLIGENCE. 147 

given effect without including negligence, tlie contract will not 
release from it.' In those states where it is admitted that the 
carrier may exempt itself from the negligence of its servants, the 
contract securing such exemption must be in explicit terms." The 
carrier remains liable for loss through its negligence, under a con- 
tract of shipment of fruit providing that the same shall be at the 
owner's risk, where the contract does not in clear and unmistak- 
able terms exempt it from such liability.' A special contract 
stamped upon a bill of lading is not so certain and specific as is 
required to free the carrier from liability.* The words in a bill 
of lading " not accountable for contents," do not constitute an 
agreement for exemption from liability.' Provisions in a contract 
of affreightment, that the carrier will not be responsible for delay 
in the transit of the property, do not relieve it from the conse- 
quences of delay occasioned by its negligence, where exemption 
from liability from that cause is not expressed in the contract." 
Although excused by an exception for delay, yet he will be liable 
for injury to the goods by negligent handling while so delayed.' 
If the delay is excused, the carrier is not liable for decline in price 
of cargo,' nor for loss in quality.' 

^HoUapple v. Borne, W. & 0. B. Oo. 86 N. Y. 375; Mynard v. Syracuse, B. & 
M. T. B. Oo. supra. 

' Magnin v. Dinsmore, 56 N. T. 168; Isdsall v. Camden & A. B. & Transp. 
Co. 50 N. T. 661 ; Westcott v. Fmgo, 6 Lana. 319; Mynard v. Syracuse, B. 
& N. T. B. Co. n N. T. 180, 27 Am. Rep. 28; Holsapple v. Borne, W. & 0. 
B. Co. 86 N. T. 275; m-ench v. Buffalo, N. T. & E. B. Go. 4 Keyes, 108; 
Nicholas v. New York Cent. & E. B. B. Co. 89 N. T. 370; Cornfield v. Bal- 
timore & 0. B. Co. 93 N. T. 532, 45 Am. Rep. 268; Baltimore & 0. B. Oo. 
V. Bathbone, 1 W. Va. 87, 88 Am. Dec. 664; Nashville & 0. B. Co. v. Jack- 
son, 6 Heisk. 271; Mobile & 0. B. Co. v. Jofrboe, 41 Ala. 644; Bostwick v. 
Baltimore & 0. B. Oo. 45 N. T. 712; Ouillaume v. Samburg & A. Packet 
Co. 42 N. Y. 212, 1 Am. Rep. 512; Lamb v. Camden & A. B. & Transp. 
Oo. 46 N. Y. 271, 7 Am. Rep. 337; Kamsas City, M. & B. B. Oo. v. Hol- 
land, 68 Miss. 351. 

• OUes V. Fa/rgo, 43 N. Y. 8. R. 65. 

*MerriwAin v. TAe May Queen, Newb. Adm. 464; Michigan Cent. B. Co. v. 
Mineral Springs Mfg. Co. 83 U. S. 16 Wall. 330, 21 L. ed. 303; McMillan 
V. Michigan S. & N. I. B. Oo. 16 Mich. 88, 93 Am. Dec. 308. 

» The Patifie, Deady, 17. 

* Jennings v. Qrand Trunk B. Co. 127 N. Y. 438. 

' Galena & O. U. B. Oo. v. Bae, 18 111. 488, 68 Am. Dec. 574; Lipford v. 

Chmhtte & 8. 0. B. Co. 7 Rich. L. 409. 
'Black V. Baxiendale, 1 Exch. 410; Nettles v. South Ca/rolina B. Oo. 7 Rich. 

L. 190, 62 Am. Deo. 409. 
' Glasscock v. Chicago & A. B. Oo. 69 Mo. 589. 



148 TALIDITT OF BILL OF LADIITQ ITS LIMITATIONS OF LIABILITY. 

But, although a common carrier is not responsible for the de- 
struction or less of goods by the act of a public enemy, he is, nev- 
ertheless, bound to use due diligence to prevent such destruction 
or loss. If his negligence or want of proper attention contributed 
thereto, he would be liable therefor." Ordinary dUigence is aU 
that is required of the carrier to avoid or remedy the effects of 
an overpowering cause." A stipulation releasing a carrier from 
damages that " might happen " will not release it from the effect 
of negligence or misconduct.' A carrier who receives a cask of 
wine in good order to transport, and the cask reaches its destiua- 
tion empty, is liable for the loss unless he shows an exemption 
under his bill of lading.* A special contract providing that plain, 
tiff " shall accept the cars provided by the company," does not 
exempt from liability for injuries to the goods shipped resulting 
from defective cars.' Provisions in a contract of affreightment, 
that the carrier will not be responsible for delay in the transit of 
the property, do not relieve it from the consequences of delay oc- 
casioned by its negligence, where exemption from liability from 
that cause is not expressed in the contract.* 

If a shipper of machinery agrees that it may be transported 
upon open cars, the carrier may still be liable for damage by rust 
or by the weather during a detention on the road, if ordinary dil- 
igence required the carrier to cover the cars during such deten- 
tion and it fails to do so.' Limitations in a contract of shipment 
upon the liability of the carrier are rendered inoperative and the 
carrier is subject to its full common law liability as an insurer, 
where it deviates from the contract by carrying the property by 
freight, instead of complying with the provision that it shall be 

^HolladatJ v. Kennard, 79 U. S. 13 Wall. 254, 30 L. ed. 390. 

9 



— .f 0. R. Go. V. Beeves. 77 U. 8. 10 "Wall. 176, 19 L. ed. 909; Beard 

V. lUtrum Cent. B. Oo. 7 L. R. A. 380, 79 Iowa, 618. 

* Soger v. Portismouth, & db. P. & E. B. Go. 31 Me. 328. 50 Am. Dec. 659. 
*Arerid v. Liver-pod, N. Y. & P. SS. Co. 6 Lans. 457, 64 Barb. 118, affirmed 

in 53 N. T. 606. 

• WaMingford v. Golumbia cfe Q. B. Go. 36 8. C. 258. 

*Jenning» v. Grand Trunk B. Go. 127 N. T. 438, 49 Am. & Eng. K Cas. 98. 
' Western & A. B. Go. v. Ekeposition Cotton MiUi, 2 L. R. A. 102, 81 Qa. 523. 



EXCEPTION m BILL WAIVED BY NEGLIGENCE. 14& 

carried by passenger train service.' A contract releasing a carrier 
from all damage to goods from any cause not the result of col- 
lision or cars being thrown off the track, does not release from lia- 
bility for negligence not resulting in collision or derailment." A 
provision in a shipping contract, that the carrier in case of loss 
shall have the benefit of any insurance effected by the shipper, 
does not apply to a loss from the carrier's negligence, where the 
policy expressly provides that it shall not cover the carrier's com- 
mon law liability, although it provides for advancing to the ship- 
per the insured value of the goods, to be repaid upon a recovery 
against the carrier.' In courts where contracts releasing liability 
for negligence are not given effect, the exception is of no avail in 
favor of a permitted exemption, where customary precautions are 
not shown. Thus, a vessel which did not take the usual and neces- 
sary precautions against damage by rats to a cargo known to be 
liable thereto, during a voyage of ordinary duration in which only 
the customary stops were made, is liable for extraordinary damage 
thereto, notwithstanding exceptions in the bill of lading as to ver- 
min and negligence.' 

When unable to carry the goods to their place of destination 
from causes over which he has no control, as by the stranding 
of the vessel, the master is still bound to take all possible care 
of the goods, and is responsible for perils or injury which might 
have been prevented by human skill and prudence.' But the 
carrier is only answerable for the ordinary and proximate conse- 
quences of neglect, and not for those that are remote and extra- 
ordinary.' When owing to defective machinery, goods did not 
arrive for six days after they were due, and then were destroyed 
by a flood, the court said : " The negligence of the carrier was 
remote ; it had ceased to operate as an active, efficient and pre- 
vailing cause as soon as the wool had been carried beyond Syra- 

• Pamtt V. Lehigh Valley B. Oo. 153 Pa. 302. 

« Phmnix Clay Pot Works v. Pittsburg <& L. B. B. Co. 139 Pa. 284 

' Qulf, O. & 8. F. B. Co. V. Zimmerman, 81 Tex. 605. 

^ The Tinun; 46 Fed. Kep. 859. 

5 The Niagara v. Cm-dez, 62 TJ. 8. 21 How. 7, 16 L. ed. 41, 

* Morrison v. Dams, 20 Pa. 171, 57 Am. Deo. 695. 



150 VALIDITY OF BILL OF LADING ^IT8 LIMITATIONS OF LIABILITY. 

cnse, and therefore cannot subject the carrier to a responsibility 
for an injury to the property resulting from a subsequent inevita- 
ble accident, which was the proximate cause by which it was pro- 
duced.' In a case decided by the supreme court of New York, 
where the liability of the carrier was maintained, the damage 
beiag occasioned by a flood, the decision was placed expressly upon 
the gross neglect of the company.' Though the proximate cause 
may be occasioned by inevitable accident, the carrier is still bound 
to use care and diligence. Yet no greater foresight of extraordinary 
perils is expected of him than of other men, and no greater pen- 
alty visited for his failure. When he discovers himself in peril 
the law requires of him ordinary care, skill and foresight. This 
is defined to be the common judgment, which men of prudence 
and heads of families, usually exhibit in matters that are interest- 
ing to them. It means, as difficulties increase — Ln great danger — 
great care is the ordinary care of a prudent man.' 

§ JfO- Effect of Exception in Bill. 

The printed part of a bill of lading is controlled by the written 
part,' for the bill of lading is a contract which must be construed 
by the court like any other written contract, — according to its 
true meaning." The ordinary rule is that the validity of a contract, 
its interpretation, nature and obligation, is to be governed by the 
law of the place of performance ; the contract being invalid there, 
will be so treated in other jurisdictions. If a contract is entire, 
and made to be particularly performed in one state, it must be in- 
terpreted in accordance with the laws of that state.' But a stipula- 
tion of a bill of lading, substituting for the law of the United States 
that of Great Britain in respect to the validity of a stipulation 
relieving a carrier from liability for the negligence of its servants, 

' Denny v. NewTork Cent. B. Co. 13 Gray, 487, 74 Am. Dec. 
'MicTuxels v. NewTork Cent. B. Co. SO K. T. 575, 86 Am. Dec. 4. 
^Morrison v. Davis, supra. 

* ^f*Fl' ■^'^""'*^ * ^*- *^- ^- ^"^ 24 Hun, 607; Mkins v. Empire Ib-ansp. Co. 

» Lucesco OU Co. v. Pennsylvania B. Co. 3 Pittsb. 477. 
'McDaniel v. Chicago & N. W. B. Co. 24 Iowa, 412. 



EFFECT OF EXCEPTION IN BILL. 151 

is, with the latter stipulation, invalid in the courts of the United 
States.' 

A common carrier cannot legally exact an agreement limiting 
its liability as a condition precedent to receiving or carrying the 
offered freight or message. It is under a legal duty to accept 
and carry whatever is offered to it at a reasonable time and place, 
of a kind that it undertakes or is accustomed to carry, subject to the 
full liability of a common carrier, unless such liability is restricted 
by a valid agreement between such carrier and its employer.'' 
1^0 greater operation will be given to a contract limiting the lia- 
bility of a carrier, than the language used plainly indicates that 
the parties intended it should have.' But where a loss occurs 
from one of the perils clearly excepted in a bill of lading deliv- 
ered to the shipper and accepted by him, and the carrier has acted 
under the bUl, as delivered, no recovery can be had for the loss.* 
And exceptions permissible in the bUl of lading, exempting the 
carrier for loss from certain causes, are in New York conclusive 
upon the shipper as a special contract between the parties, where 
the bill was delivered to the carrier.' The enemies mentioned in 
the bill of lading, are to be understood as public enemies, not 
merely robbers, thieves or private depredators, but losses by 
pirates on the high seas are deemed within it." An exception 
clause in a bill of lading, by which a ship is exempted from liabil- 
ity in respect of losses caused by {jmt&r aMd) " pirates, robbers or 
thieves of whatever kind, whether on board or not, or by land or 
sea," does not apply to thefts committed by persons in the service 
of the ship.' But a railway company may protect itself by 
special contract against liability for loss of goods by the theft of 



' The Hugo, 57 Fed. Eep. 403. 

^Kirby v. Western JJ.Tdeg. Co. (S. D.) 55 N. W. Eep. 759. 

• Men'seU v. Chicago & N. W. B. Co. 1 Dill. 531. 

■* Bostwick V. Baltimore & 0. B. Co. 55 Barb. 137. 

^Steinweg v. ErieB. Co. 43 N. Y. 123, 3 Am. Rep. 673. 

'Barclay v. Mygena, cited 1 T. R. 33, reported under the name of Barclay v. 

Ouculla T Oana, 3 Dougl. 389; Morse v. Slue, 1 Vent. 190, 238; Trent & M. 

Nav. Co. V. Wood, 3 Esp. 127. 4 Dougl. 287; Cogga v. Bernwrd, 2 Ld. Raym. 

909-918; Woodlife's Case, Moore, 462, 1 Rolle, Abr. 2. 
''Steimum v. Angier Line [1891] 1 Q. B. 619. 



152 VALIDITY OF BILL OF LADINQ ITS LIMU'ATIONS OF LIABILITY. 

its servants without negligence on its part, although such contract 
is not reasonable within the EngUsh Railway and Canal Traffic 
Act, § 7, providing that a railway company shall be liable, in the 
absence of a signed and reasonable contract for exemption, for 
the loss of any goods, occasioned by the neglect or default of such 
company or its servants, since such loss is not a loss occasioned 
by the neglect or default of such company or its servants.' 

In a recent case decided by the supreme court of Pennsylvania* 
the defendant is sued as a common carrier for its failure to deliver 
a quantity of whiskey shipped over its line of road. The bill of 
lading stipulated that, " the carrier shall not be liable for loss 
or damage by causes beyond its reasonable control, by fire, explo- 
sion from any cause, and wheresoever occurring ; by riots, strikes, 
or stoppage of labor, or for any of the causes incident to transpor- 
tation, such as chafing, heating, freezing, leakage, rust, or any 
other reason not directly traceable to the negligence of the 
carrier's servants." The defense set up is that the whiskey was 
lost in the Johnstown flood. The train was overtaken bv the 
flood, but it was not swept away. After the avalanche of water 
caused by the breaking of the South Fork dam had passed, the 
train was left upon the traiek, and the cars were iminjured. The 
track above and below it were injured, so that the train could not 
resume its journey at once, but remained in the same place until 
the necessary repairs were made. The whiskey claimed for was 
not destroyed by a flood. Part of it was stolen by thieves after 
the flood subsided, and the rest of it was destroyed by a volunteer 
guard of citizens, who had watched and protected the train dur- 
ing the night following the flood and part of the next day, as the 
easiest way of keeping it from falling into the hands of the same 
dangerous class of men who had gotten a taste of it on the previ- 
ous afternoon. The flood was therefore not the cause of the loss, 
but the occasion the opportunity for its plunder by bad men. 
The thieves came in the wake of the flood to pick up and appro- 
priate what the more merciful waters had spared. They came to 
this train, and began to force open the doors of some of the cai-s. 

' Lang v. Pennaylmnia R. Go. 20 L. R. A. 360, 154 Pa. 342. 
« 8naw V. Qaeat Western R. Co. [1894] 1 Q. B. 373. 



EFFECT OF EXCEPTION IN BILL. 15S 

The conductor, and part, if not all, of Ms crew, came upon the 
ground at about the same time. They saw an ax being used to 
open one or more of the cars, but they made no efEort to defend 
the train or drive away the thieves. They did not so much as to 
remonstrate with them, or order them away, but, turning their 
backs, they surrendered the train and its freight to the tender 
mercies of the vagabonds who had attacked it, and went away 
from the neighborhood. Private citizens came soon after, drove 
the thieves out of and away from the train, and stood guard over 
it all night and until the middle of the next day ; but the train- 
men seem to have had neither part nor lot in the efEort to save 
the property of their employer. The reason was given by one of 
them while on the witness stand with a cool, deliberate heartless- 
ness not often met with in the most hardened criminals. He said 
he did not try to help the citizens save the cars and their con- 
tents because he " had no orders to do so." He stood and looked 
on. He saw the peril of his employer's property. He saw citi- 
zens, with no personal interest involved, trying to save it, but he 
did not help, because " he had no orders." Whether he and others 
like him were cowards shivering with fear in the presence of a 
few thieves, whom unarmed citizens drove away, or were thieves 
at heart, and in fuU sympathy with those who were trying to loot 
the cars that they should have defended, the court say, is a mat- 
ter of no consequence. In either case they neglected their obvi- 
ous duty. The railroad company was represented in the carriage 
and safe keeping of the freight on the train by the men to whom 
the train had been committed. If they deserted their posts, and 
left the goods uncared for, and they were stolen or destroyed,, 
their employer must sufEer for their inefficiency. Under the facts 
the loss sued for did not arise from inevitable accident or the act 
of God. It did not result from insurrection or the public enemy. 
It was not the work of a mob. It was due in part to plain steal- 
ing, done in daylight, in the presence of the trainmen, and with- 
out the slightest resistance or remonstrance on their part. For 
the rest, it was due to the action of citizens who, after having 
guarded what remained for nearly twenty-four hours, destroyed 
it, when they could no longer keep up their watch over it, rather 



154 VALIDITY OF BILL OF LADING ITS LIMITATIOIirS OF LIABILITT. 

than see it consumed by the human brutes to whom it had been 
abandoned by the trainmen. 

The words "taken at the owner's risk" only release the carrier 
from its liability as an insurer.' A clause in the bill of lading, 
exempting the carrier from loss on perishable property, cannot be 
applied to mature merchantable corn.'' A stipulation requiiing 
notice of any claim for damages before removal of the property 
from the place of destination, does not apply to a removal by the 
carrier.' Although a bill of lading of olive oil from ^tna to 
New York, exempted the carrier from responsibility from break- 
age or leakage, where it was shown that the libelant had long 
been accustomed to import such olive oil from the same place of 
origin in Italy, and from the same consignors, put up in the same 
manner, and no similar leakage had before occurred, and the cases 
were shipped in good condition, and the loss which occurred was 
evidently caused by some person tampering with the cases for the 
purpose of extracting oil, while the cases were in the carrier's cus- 
tody — the carrier is responsible." 

A clause in a bill of lading that the vessel is not responsible 
for the number of pieces or the weight, removes the ship's pre- 
sumptive liability for the weight as stated in the bill of lading, 
and she is liable only for the number of pounds proved to have 
actually been put on board.' But a clause in a bill of lading, 
whereby the carrier agrees that any deficiency in the cargo shall 
be paid for by him and deducted from the freight, concludes liim 
as to the amount therein stated to have been delivered to him for 
shipment, and as to the right to deduct from freight charges for 
deficiency in the quantity delivered at the destination, in the 
absence of proof of fraud or mistake at the place of lading." An 

' MohOe & 0. B. Go. v. Jarboe, 41 Ala. 644; OMey v. JP^nsvlvania M. Co. 30 
Pa. 342, 72 Am. Dec. 703. 

' lUinois Cent. S. Go. v. MeOlella/n, 54 111. 58, 5 Am. Kep. 83. 

• Baker v. Mismuri Poui. B. Co. 34 Mo. App. 98. 

* The Oiglio v. The Britannia, 81 Fed. Rep. 433. 

» Eaton V. Neumark, 33 Fed. Rep. 891; Abbott v. National SS. Co. 88 Fed. 
Rep. 895. 

< BlwdM V. Newhall, 35 N. T. 8. R. 415, affirmed in 126 N. T. 574. 



EFFECT OF EXCEPTION IIT BILL. 155 

exception in the bill of lading, releasing the carrier from defi- 
ciency "in packages" — has no application to the shipment of corn 
in bulk.' The term "31 bars on ship" in a bill of lading, means 
so many less the number previously stated." 

Where the master stamps the bill of lading "weight unknown," 
the presumption arising from the weights stated on the margin 
of the bill of lading is removed.' The words "contents unknown" 
annexed to a bill of lading acknowledging the receipt of the 
goods in good order, imply that the master intends to confine the 
acknowledgment to the external condition of the goods.* A bill 
of lading expressly stating that the contents of the packages are 
unknown is no warranty of the quality of the goods described 
therein, and binds the carrier only for the safe dehvery of the 
goods which he actually receives for transportation.' A recital 
in a bill of lading of casks enveloped in linen covers, that they 
are "in apparent good order and condition," refers only to the 
linen covers, and creates no presumption as to the degree of 
strength of any particular cask.' The words, "all other condi- 
tions as per charter," in a bill of lading for delivery of goods, 
"the act of God, the Queen's enemies, fire and all and every other 
dangers and accidents of the seas, rivers, and naviga,tion, of what- 
ever nature and kind soever excepted, unto order or to assigns, 
they paying freight for the said goods, and all other conditions as 
per charter, with average accustomed," — do not incorporate into 
the bill of lading the exception of "strandings occasioned by the/ 
negligence of the master," which exception is contained in the! 
charter-party; and therefore indorsees of the bill of lading, who ,^ 
are strangers to the charter-party are not affected by the latter 
exception.' 

^ McCoy V. Brie & TT. Tramp. Go. 43 Md. 498. 

« Ahbott V. National 88. Go. 33 Fed. Rep. 895. 

' MaUhiessen & W. Sugwr Bef. Go. v. Q-uei, 29 Fed. Rep. 794. 

' Gla/rk v. Barnwell, 53 U. 8. 12 How. 272, 18 L. ed. 985. 

'«. iMuis, LM. &8. B. Go. v. Knight, 122 U. 8. 79, 30 L. ed. 1077; Louis- 
ville, E. & St. L. B. Go. V. Wilson, 4 L. R. A. 244, 119 Ind. 352. 

• Both V. Hamburg- American Packet Go. 27 Jones & 8. 49. 

' 8erraino v. Gampbell, L. R. 25 Q. B. Div. 501, affirmed in [1891] 1 Q. B. 283. 



156 VALIDITT OF BILL OF LADING ITS LIMITATIONS OF LIABILITT. 

The exception in a bill of lading, of "steam boilers, machinery^ 
or defects therein," inserted in the midst of a long enumeration 
of various causes of damage, all the rest of which relate to mat- 
ters happening after the beginning of a voyage, does not affect the 
warranty of seaworthiness at the time of leaving port.' A clause 
in a bill of lading excepting loss from "restraint of princes, rul- 
ers, or people," and also from prolongation of the voyage "by 
causes beyond the carrier's control," covers quarantine detention.' 
An exemption from a shipowner's liability for injury to cargo by 
negligence of persons in the service of the ship, whether "in 
navigating the ship or otherwise," and loss or damage arising 
from rain, storage, or contact with other goods, includes damage 
to goods after being placed on board, by reason of negligently 
exposing them to rain and contact with other wet goods. The 
words "or otherwise" are not confined to damages in navigating 
the ship, or something akin thereto.' Bills of lading purporting 
to exempt the owner from liability for "collision, . . . even 
when occasioned by the negligence of the master or other serv- 
ants of the shipowners," do not exempt from risks of damage 
from all other vessels and other masters and servants of the same 
owners, who had nothing to do with the contract of transporta- 
tion.* 

Without such condition or where it is not recognized as valid, 
Lwhere a loss arises from collision, if his own vessel, or if both 
^essels are at fault, the carrier is liable. If the other vessel is 
'wholly or if their vessel is at all in fault, it is a "peril of the sea." 
[A carrier is liable unless exempted by contract' "Blowing" as 
an exception wiU protect the carrier from "blowing" of bilge 

* The Oaledonia, 43 Fed. Rep. 681. 
« The Bohemia, 38 Fed. Rep. 756. 

* Norman v. Binnmgton, L. R. 25 Q. B. Div. 475. 

* The Brittannie, 89 Fed. Rep. 395. 

» Converse v. Brainerd. 27 Conn. 607; Onll v. General Iron Screw Colliery Co. 
L. R. 1 C. P. 600; Jonea^. Packer, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 
716; Whitesides v. ThurlhiU, 12 Smedes & M. 599, 51 Am. Deo. 128; The 
New Jersey, Olcott, 444; Bays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627; 
Marsh v. Blythe, 1 McCord, L. 360; Buller v. Mslwr, 8 Esp. 67; Piatsted 
V. Boston & K, a. Nov. Co. 27 Me. 132, 46 Am. Dec 587 



EFFECT OF EXCEPTION IN BILL. 157 

Trater.' So, a loss from sweating or over-heating may be ex- 
•empted." "Leakage" whicli applies to the cargo, is a proper 
■exemption, if there is no failure on the part of the carrier in 
properly stowing." Leaking from other goods, however, and in- 
juring a portion of the cargo, does not come within the exemp- 
tion.* 

' East Tennessee, V. & Q. B. Co. v. Wright, 76 Ga. 533. 

« Wolff Y. The Vaderland, 18 Fed. Rep. 733; The Portuense, 35 Fed. Rep. 670; 

MaUhiessen & W. Sugar Bef. Co. v. Oust, 89 Fed. Rep. 794. 
^ECa-v. Sturgeon, 28 Mo. 333; MarxT. The Britanma, 34 Fed. Rep. 906; 

Mans V. Bpreckela, 45 Fed. Rep. 265. 

! T. Ymile, L. R. 2 C. P. Div. 434. 



CHAPTER TL 

"ACT OF GOD"— "PERILS OF THE SEA"— "FIRE CLAUSE"— 
NEGLIGENCE— PRESUMPTIONS. 

§ 41. "Act of God," what Constitutes. 

§ 42. Inevitable Accident Not Resulting from Natural Causes, 

% 43. "Perils of the Sea;" "Dangers of the River," "of Lales," 

"of Waters," or " of Navigation." 

§ 44. When "Act of God" or other Inevitable Cause No Excuse. 

§ 45. "Mre Clause." 

§ 46. Statutory Provisions Regarding "Mre Clause." 

§ 47. Goods in Transit or Depot — "Mre Clause." 

§ 48. Negligence Defeats "Mre Clause." 

§ 49. Burden of Proof for Loss Under Exceptions. 

§ 41- "•^ct of God," what Constitutes. 

Such inevitable accidents as cannot be prevented by human 
care, skill or foresight, but which result from natural causes, such 
as lightning and tempest, floods and inundations, are termed the 
acts of God.' All causes of inevitable accident may be divided 
into two classes, those which are occasioned by the elementary 
forces of nature unconnected with the agency of man, whether in 
acts of commission or omission, of nonfeasance or misfeasance, or 
from any other cause independent of the agency of natural forces. 
It is obvious that it would be altogether incongruous to apply the 
term " Act of God " to the latter class of inevitable accidents. It 
is equally clear that storm and tempest belong to the class to 
which the term " Act of God " is properly applicable. An acci- 
dent is an occurrence which happens unexpectedly from uncon- 
troUat^ operations of nature alone, and without human agency, 

' Anderson, Law Diet. 23, citing Mc^nry v. PhiladelpTtia, W. & B. B. Co. 4 
Hair. (Del.) 449; Ghioago t& IT. W. B. Oo. v. Sawyer, 69 111. 389, 18 Am. 
Rep. 613; Fergusion v. Brent, 12 Md. 33, 71 Am. Dec. 582; The Oarloita, 9 
Ben. 6. 

158 



"act of god, what constitutes. 159 

or resulting undesignedly and unexpectedly from human agency 
alone, or from the joint operation of both.' 

While the act of God will excuse the nonperformance of a duty 
created by law, it will not excuse a duty created by contract." 
Where a duty is imposed upon a person by law, he will not be 
absolved from liability for nonperformance occasioned by an act 
of God, unless he has expressly stipulated for the exemption.' 
There can be no question that a party may by an absolute con- 
tract bind himself or itself to perform things which subsequently 
become impossible, or pay damages for the nonperformance, and 
such construction is to be put upon an unqualified undertaking, 
where the event which causes the impossibility might have been 
anticipated and guarded against in the contract, or where the im- 
possibility arises from the act or default of the promisor. But 
where the event is of such a character that it cannot be reasonably 
supposed to have been in the contemplation of the contracting par- 
ties when the contract was made, they will not be held bound by 
general words, which, though large enough to include, were not 
used with reference to the possibility of the particular contin- 
gency which afterwards happens.* 

A common carrier is bound safely to carry the goods to their 
destination, unless prevented by some cause arising from irresist- 
ible force, over which he has no control and which cannot be 
guarded against by the watchful exertion of human skill and pru- 
dence.' No matter what degree of prudence may be exercised by 
the carrier and his servants, although the delusion by which it is 
baffled, or the force by which it is overcome is inevitable, yet, if 
it be the result of human means, the carrier is responsible.' 

' Morris v. Piatt, 33 Conn. 85. 

' M&riwefher v. Lowndes County, 89 Ala. 363. 

' Central Frust Go. v. Wabash, St. L. & P. B. Co. 31 Fed. Rep. 441, 

* Chicago, M. & St. P. B. Co. v. Hoyt, 149 U. S. 1, 37 L. ed. 625. 

« The Niagara v. Gordes, 62 TJ. B. 21 How. 24, 16 L. ed. 46; Gordon v. Bu- 
chanan, 5 Yerg. 71; Oakley v. Port of Portsmouth cfc B. JJ. S. Packet Co. 84 
Eng. L. & Eq. 580. 

* Me Arthur v. Sean-a, 31 Wend. 196; Trent <& M. Nob. Go. v. Wood, 3 Esp. 

127; Camipbell v. Morse, 1 Harp. L. 468; Charleston & C. S. B. Co. v. Bason, 
1 Harp. L. 363; The Niagara v. Gardes, 62 U. S. 21 How. 36, 16 L. ed. 47. 
See Bead v. SpoMlding, 30 N. 630, 86 Am. Dec. 426. 



160 "act of god" — "perils of the sea." 

JDmmy v. New York Cent. R. Go. 13 Gray, 481, 74 Am. Dec. 
M5, is not against these cases, because the court there held that 
when the damages by flood occurred, the defendants no longer 
held the goods as common carriers. The expression "Act of 
•God " denotes natural accidents such as lightning, earthquake and 
tempest, and not accidents resulting from the negligence of man. 
There is a nicety of distinction between the act of God and in- 
evitable necessity.' An earthquake is an act of God.' Carriers 
by water are liable in all the strictness and extent of the rule un- 
less the loss happens by one of the accepted perils, with no act of 
negligence contributing thereto.' But where the injury can be 
apportioned to each cause, this is done.* Loss by flood or storm 
is loss by the act of God, and a common carrier is c xc ised when 
damages result from this cause immediately." But delay by low 
water wUl not excuse failure to deliver from loss by fire while the 
goods are stored." A snow storm of such violence as to prevent 
the moving of trains is an act of God which will exempt a carrier 
:from hability for loss of or damage to property shipped, ocea- 
:sioned thereby without the carrier's fault.' A carrier is not re- 
sponsible for delay on the voyage on account of disastrous weather 
or adverse winds, low tides or the like, over which he has no con- 
trol.' An unexpected freshet or inundation which causes delay 
or loss is within the exception to the carrier's liability.' A storm, 

' Trent & M. Nivo. Co. v. Wood, 3 Bsp. 137; Coggs v. Bernard, 2 Ld. Raym. 
909; Forward v. Pittard, 1 T. R. 27; WiUiceim v. Grant, 1 Conn. 487, 7 
Am. Dec. 235; Story, Bailm. §§ 511, 525. 

" Slater v. South Ca/roUna R. Go. 29 S. C. 96. 

3 The Costa Bica, 3 Sawy. 540; Chtlf, C. & S. P. B. Co. y. McCm-guodals, 71 

Tex. 41; Spencer v. Daggett, 2 VI. 93; Mliott v. BosseU, 10 Johns. 1, 6 Am. 

Dec. 306; Kem^ v. Coughtry, 11 Johns. 107; lleArthur v. Sean, 21 "Wend. 

193; Bills v. 2feu) York Cent. B. Co. 84 N. Y. 5; General Mut. Ins. Go. v. 

Slierwood, 51 U. S. 14 How. 351, 14 L. ed. 452; Afiirup v. Lewy, 19 Fed. 

Rep. 536; Washington <6 Q. R. Co. v. VameU, 98 U. S. 479, 25 L. ed. 233; 

Story, Bailm. §§ 497, 510, and notes. 

■* Illinois Gent. B. Co. v. Owen^, 53 111. 391. 

» Memphis & C. M. Co. v. Beeves, 77 tJ. S. 10 WaD. 176, 19 L. ed. 909. 

• Cox V. Peterson, 30 Ala. 608, 68 Am. Dec. 145. 

' Black V. Chicago, B. & Q,. B. Co. 30 Neb. 197; Memphis & G. B. Go. v. 
Beeves, supra. 

» Clark v. Barnwell, 58 U. S. 13 How. 272, 18 L. ed. 985. 

■^Memphis «fc C. B. Co. v. Beeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909; Wai- 



"act of god," what OONSTIT0TE8. 161 

flood or freshet, to constitute an act of Providence, need not be 
unprecedented, if it is unusual, extraordinary and unexpected." 
A carrier which has provided a place for storage is not liable for 
damage caused by a flood such as occurs but twice in a genera- 
tion.^ The fact that such a flood had occurred once in each of 
two preceding years, is not sufficient to make the carrier liable.' 
Losses occasioned by the freezing up of canals and rivers are to 
be attributed to the act of God.* A collision, will not excuse the 
loss of goods on the ground that it is an " Act of God.'" Of 
course, if the collision is caused by a tempest, it is the tempest to 
which the loss must be attributed, and not the collision.' But, a 
rain of not unusual violence, and the result thereof, in the soften- 
ing of the superficial earth, have not been so construed.' Sudden 
deaths and illnesses have been held to be " acts of God." 

lace V. Clayton, 42 Ga. 443; Benny v. New York Cent. B. Oo. 13 Gray, 481, 
74 Am. Dec. 645; Hoadley v. Northern Jranap. Co. 115 Mass. 804, 15 Am, 
Rep. 106; Viclesburg & M. B. Co. v. Bagsdale, 46 Miss. 458; Bead v. Spauld- 
ing, 30 N. Y. 630, 86 Am. Deo. 426; American Exp. Go. v. Smith, 33 Ohio 
St. 511, 31 Am. Rep. 561; Morrisons. Dam, 20 Pa. 171, 57 Am. Dec. 695; 
Zipford V. CMrlotte & S. C. B. Co. 7 Rich. L. 409; Nashville & G. B. Co. v. 
David, 6 Heisk. 261, 19 Am. Rep. 594; Nashville & 0. B. Co. v. Jackson, 
6 Heisk. 271. 

■'^People V. mica G&ment Co. 22 111. App. 159; Smyrl v. Niolon, 2 Bail. L. 421, 
23 Am. Dec. 146; Faulkner v. Wright, 1 Rice, L. 107. 

•> Pearce v. The Thomas Newton, 41 Fed. Rep. 106. 

'Norrisr. Savannah, F. & W. B. Co. 23 Fla. 182. 

^Bowman v. Teaa, 23 Wend. 806; Parsons v. Hardy, 14 Wend. 215, 28 Am. 
Dec. 521; Harris v. Band, 4 N. H. 259, 17 Am. Dec. 421; Crosby v. Mich, 
12 Conn. 410, 31 Am. Dec. 745. 

' Amies Y. Stevens, 1 Strange, 128; Plaisied v. Boston & K. S. Nav. Co. 27 Me. 
133, 46 Am. Dec. 587. 

• Amies v. Stevens, supra. See Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 
627. As to extraordinary floods, see Nashville & C. B. Co. v. King, 6 
Heisk. 269; Memphis & C. B. Co. v. Beeves, 77 U. S. 10 Wall. 176, 19 L. ed. 
909; Nashville & 0. B. Co. v. David, 6 Heisk. 261, 19 Am. Rep. 594. Storms 
of unusual violence, Blythe v. Denver & B. Q. B. Co. 11 L. R. A. 615, 15 
Colo. 333. For sudden tempests and snow storms, examine Black v. CJii- 
cago, B. & Q. B. Co. 30 Neb. 197; Feinberg v. Delawwre, L. & W. B. Oo. 52 
N. J. L. 451; OhapinT. Chicago, M. St. P. B. Co. 79 Iowa, 582. For 
severe frosts, consult Crosby v. Fitch, 13 Conn. 410, 31 Am. Dec. 745; 
Bowman v. Teall, 23 Wentl. 306, 35 Am. Dec. 562; Harris v. Band, 4 N. 
H. 259, 17 Am. Dec. 421, and for great drouths, lightnings, earthquakes, 
refer to Slater v. South Carolina B. Co. 29 S. C. 96. 

■' Gleeson v. Virginia Midland B. Co. 140 IT. S. 435, 35 L. ed. 458; Smith v. 
Shepherd, Abbott, Shipping, 383; Merritt v. Earle, 29 N. T. 115, 86 Am. 
Dec. 293. 

11 



162 " ACT OF GOD " " PEEILS OF THE SEA." 

§ 4^. Inevitable Accident JVot Resulting from J^at- 
ural Causes. 

By unavoidable accident, in legal phraseology, is not meant an 
accident which it was physically impossible in the nature of things 
to prevent, but merely that it was not occasioned in any degree, 
either remotely or directly, by want of care or skill, such as the 
law holds every man bound to exercise." It is an occurence 
which was not anticipated by the parties when the contract was 
entered into, and which gives an undue advantage to one of them 
over the other in a court of law." 

The definition limiting the term "accident" to the elementary- 
forces of nature, was objected to as too narrow by Judge Story, 
who says that by the term " accident " is intended, not merely in- 
evitable casualty or the act of Providence, or what is technically 
vis major, or irresistible force, but such unforeseen events, mis- 
fortunes, losses, acts or omissions as are not the result of any neg- 
ligence or misconduct in the party affected thereby.' When a 
casualty occurs which might have been prevented by the use of 
known and proper means, it is not "inevitable" accident.' An 
" inevitable accident " is distinguishable from " an act of God," 
as the collision of two vessels in the dark which is an "inevitable" 
accident not resulting from natural causes but by the agency of 
man.' " An opinion characterized by fine discrimination and by 
accurate research."" Carriers are not liable for injuries arising 
from inevitable accident.' An error of judgment in extremis is 
not a fault.' A mere error of judgment in the excitement of a 

' Dygert v. Bradley, 8 Wend. 473, citing Wakeman v. Bcbinaon, 1 Bing. 213. 

' 3 Jeremy, Eq. Jur. pt. 2. 

* 1 Story, Eq. § 78, criticised in 2 Pom. Eq. 823, where it is defined as follows: 
"It is an unforeseen and unexpected event, occurring externally to the 
party affected by it, and of which his own agency is not the proximate 
cause." 2 Pom. Eq. 285; Smith, Eq. Jur. 86; Kopper y.Ih/er, 59 Vt. 477, 
59 Am. Rep. 742. 

*Laddv. Foster, 31 Fed. Rep. 827. 

» Alliance Ins. Go. v. The Morning Light, 69 U. 8. 2 Wall. 500, 17 L. ed. 864; 
Fergusaon v. Brent, 12 Md. 33, 71 Am. Dec. 582. 

« 1 Smith, Lead. Cas. 413. 

' See note to Palmer v. Pennsylvania Co. (N. Y.) 2 L. R. A. 252. 

« The Osceola, 33 Fed. Rep. 719. 



"perils of the sea," "dangbes of the bivee," etc. 163 

peril in extremis, the peril being caused by the other vessel, is not 
a fault.' The defense of inevitable accident set up as the cause 
of a collision implies that the accident was not avoidable by the 
exercise of all reasonable precautions, adequate to the emergency." 
Where a steam tug had caught upon a gas pipe negligently ex- 
posed on the bottom of a river, the waters of which were rapidly 
falling, endangering the safety of a vessel, and the opinion of ex- 
perienced persons employed by the vessel, apprehended danger 
in the attempt to ward the vessel off the obstacle, they were not 
to be held responsible for a mere mistake of judgment.' Collision 
between two schooners sailing in thick foggy weather with a fresh 
wind from the southwest, both maintaining a vigilant lookout and 
frequent signals by horn, and both having the same general course, 
and being closehauled, one being at the time on her starboard 
tack headed southeast by south and the other on her port tack 
headed southwest, neither being able to see or hear the other till 
immediately before the collision, when they both acted promptly 
and came to the starboard — is inevitable accident.* Where the 
lookout of respondent who ran into a vessel having the right of 
way divided his attention between looking out and reefing sail, 
respondent's plea of inevitable accident should not be sustained.' 

§ 4.3. "Perils of the Sea;" "Dangers of the River," 
"of Lakes," "of Waters," or " of Kavigation." 

The common law liability is usually limited by the contract 
contained in the bill of lading, and "perils of the sea," "dangers 
of the sea," or " dangers of rivers or of the lakes or of water or 
of navigation," -which are held the same in their effect are usually 
excepted." " Perils of the sea " includes such losses only as are 

' The Oily of BpringfieU, 39 Fed. Rep. 923. 

"> The NacoocTiee, 24 Blatchf. 99, 28 Fed. Rep. 462. 

' Omalaer v. Philadelphia Co. 31 Fed. Rep. 354. 

* The Rebecca Shepherd, 32 Fed. Rep. 926. 

' The Twenty-one Friends, 33 Fed. Rep. 190. 

« Story, Bailm. §§ 512 et seq.; Haslings v. Pepper, 11 Pick. 41; Bell v. Heed, 4 

Binn. 127; Eollingsworth v. Brodrick,! Ad. & El. 50; Jones v. Pitcher, 3 

Stew. & P. (Ala.) 135, 24 Am. Dec. 716; Gordon v. Buchanan. 5 Yerg. 71; 

FairchUd v. Slocwm, 19 Wend. 329, 7 Hill, 292; Baat&r v. Leland, 1 Abb. 

Adm. 348. 



164: "act of god" "PEEILS OF THE SEA." 

of an extraordinary nature or arise from irresistible force or from 
some overwhelming power which cannot be guarded against by 
the ordinary exercise of skill and prudence.' Of course the car- 
rier may render himself liable for all such inevitable accidents by 
contract." Eut these words are evidently of broader compass 
than the words, " Act of God," and although it was supposed, by 
a very learned judge, that they were but commensurate ; " and, 
therefore, whatever was a perU of the sea, would excuse the car- 
riers acting under his general liability, yet, it is evident, under 
the authorities, that they are not always so. The distinction was 
adverted to, but not much examined by Story, J., in The Heeside, 
3 Sumn. 571. But perils of the sea do not include the violence of 
mobs and depredators, other than pirates, or loss from theft, em- 
bezzlement or robbery, whether committed by strangers, or by 
the crew or passengers,* and the collision of ships without the 
fault of either party.' 

Where a collision occurs without the fault of the carrier, he is 
entitled to avail himself of the loss resulting to his cargo, under 
the term "dangers of navigation."" The exceptions of the "dan- 
gers of the river" include risks arising from natural accidents 
peculiar to the river, which do not happen by the intervention of 
man, nor are to be prevented by human prudence; and have been 
extended to comprehend losses arising from some irresistible force 
or overwhelming power, which no ordinary skill could anticipate 
or evade. They exonerate the carrier from a liability for a loss 
arising from an attack of pirates, or from a collision of ships 

' 3 Kent, Com. 299; Story, Bailm. §513, a; The Beeside, 3 Sumn. 567; Putter 
V. Suffolk Ins. Co. 3 Sumn. 197; Waters v. Merchants LouisviUe Ins. Co. 36 
U. 8. 11 Pet. 313, 9 L. ed. 691; Crosby v. Mich, 13 Conn. 410, 31 Am. Dec. 
745 ; Pairchild v. Slocum, 19 Wend . 839 ; Sazard v. iVew England M. Ins. do. 1 
Sumn. 318, 33 U. 8. 8 Pet. 557, 8 L. ed. 1043; CoU v. McMechen, 6 Johns. 
160, 5 Am. Dec. 300. For the distinction between "perils of the sea" and 
"acts of God," see McArthur v. Sears, 31 Wend. 190, 198; Dibble v. Morgan, 
1 Woods, 407. 

' Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695. 

'Gould, J., in Williams v. Qrant, 1 Conn. 487, 7 Am. Dec. 285. 

* The Gold Hunter, 3 Blatchf. & H. 300; King v. ShepUrd, 3 Story, 349; Pick 

ering v. Ba/rkley, Style, 133, 3 RoUe, Abr. 348. 
» Hays T. Kennedy, 41 Pa. 378, 80 Am. Dec. 637. 

• Bays V. Kennedy, supra; The Qarston Co. v. Hichie, L. R. 18 Q. B. Div. 17; 

TheXantho, L. R. 12 App. Gas. 503; Buller v. Fisher, 3 Esp. 67. 



ETC. 165 

when there is no negligence on the part of the master or crew. 
Latterly, the courts have shown an indisposition to extend the 
comprehension of these words. The destruction of a vessel by 
worms at sea, is not accounted a loss by the "perils of the sea," 
nor was a damage by bilging arising in consequence of the insuf- 
ficiency of the tackle for getting her from the dock; — nor was 
damage arising to the vessel by her props being carried away by 
the tide, while she was undergoing repairs on the beach, excused, 
as falling under that exception.' "Dangers of the river" only 
excepted among natural accidents, extend to river navigation." 
"Perils of the sea" include such losses only to the goods on board 
as are of an extraordinary nature or arise from some irresistible 
fgree, or from some overwhelming power which could not be 
guarded against by the ordinary exercise of human skill and pru- 
dence.' By "dangers of navigation," or "unavoidable dangers of 
navigation," in a bill of lading, are meant latent dangers, and not 
such as are or ought to be patent dangers which could be avoided 
by skill and foresight." The exception, in a bill of lading, of 
"dangers and accidents of the seas, rivers, and navigation, of 
whatsoever nature and kind," covers only such losses as are of an 
extraordinary nature, or arise from some irresistible force which 
cannot be guarded against by the ordinary exertion of human 
skill and prudence.' An exception, in the bill of lading, of perils 
of the sea or other specific perils, does not exempt the carrier 
from liability for loss or damage from one of those perils, to 
which the negligence of himself or his servants has contributed.' 
After all proper effort to save life has been made, the safety of 
the cargo is the master's or carrier's duty.' The exception in- 

' Gwrrison v. MempJiis Tns. Oo. 60 U. S. 19 How. 313, 15 L. ed. 656. 
^'WilUams-v. Branson, 5 N. 0. 417, 4 Am. Dec. 562. 

* TTie Beeside, 2 Sumn. 567; Potter v. Suffolk Ins. Co. 2 Sumn. 197; HoUin^s- 

wm'th V. Brodrick, 7 Ad. & Bl. 40; Waters v. Merchants Louisville Ins. Co. 
36 U. S. 11 Pet. 213, 9 L. ed. 691. 

* Cosiigan v. Michael Tram,sp. Go. 83 Mo. App. 269, 38 Mo. App. 219. 
» Richelieu & 0. Nam. Oo. v. Fortier, 5 Mont. L. Kep. (Q. B.) 224. 

* Liverpool & O. W. Steam Co. Y.PhenizIns. Oo. ("The Montana") 129 TJ. S. 

397, 32 L. ed. 788. 
' Turner v. Protection Ins. Oo. 25 Me. 515, 43 Am. Dec. 294; Sherman v. In- 
man 88. Co. 26 Hun, 107; The Portsmouth v. Onondaga Salt Co. 76 U. S. 9 
Wall. 682, 19 L. ed. 754. 



166 "act of god" — "PESILS OF THE SEA." 

eludes only the dangers or accidents of the sea or navigation prop- 
erly so-called, — that is, one caused by the violence of the winds 
and waves, a vis m(yor, acting upon a seaworthy and substantial 
ship, — and does not cover damages by rats, which is a kind of 
destruction not peculiar to the sea or navigation, but one to which 
such a commodity as cheese is ■ equally liable in a warehouse on 
land as in a ship at sea.' 

It may be stated generally, that the "dangers of navigation" 
include winds, lightning, shoals, rocks, collisions and waves — 
whether the natural motion of the water under tide, or storm, or 
caused by a passing vessel, — against which the skill of the navi- 
gator cannot guard." "Where a carrier, in order to land his cattle, 
places them after the customary manner, secured on a lighter, 
tieing them in the usual manner, — and the cattle become fright- 
ened and break away, and some of them perish, such loss is cov- 
ered by an exception in the bill of lading — "peril of the sea."' 

An important decision has been rendered in the United States 
circuit court, March, 1894, by Judge Shipman touching the lia- 
bilities of a steamship company and common carriers generally 
for the baggage of passengers that may be damaged in transit 
through no fault of the passenger. The baggage of plaintiffs was 
stored in a forward compartment in the ship Majestic, and on the 
way over the glass in the portholes of that compartment was 
smashed and the salt water got in and damaged the baggage of 
the plaintiffs who were passengers. They recovered a judgment 
for $2824 in the United States district court, and the case came 
before the circuit court on appeal by the White Star Company. 
The company claimed immunity, under the ordinary ticket con- 
tract, from liability to a greater amount than £10. Everybody 
who has ever ridden on railroad trains or steamships is more or 
less familiar with the conditions printed on the ticket under 
which the selling company disclaims liability, and it has been gen- 
erally understood that these conditions were merely formal and 
would not hold, especially in a case where neglect on the part of 

' Oarriaon v. Memplm Ins. Co. 60 TT. 8. 19 How. 313, 15 L. ed. C56. 
' Graluim v. Davis, 4 Ohio St. 363, 63 Am. Dec. 285. 
* Anthony-^, ^tnalns. Go. 1 Abb. (U. S.) 343. 



"PEEILS OF THE SEA," " DA.NGEES OF THE EIVEE," ETC. 167 

the company was shown. The tickets on which the plaintiffs 
traveled were purchased in England by the father who is himself 
a frequent traveler. On the voyage to this country the Majestic 
passed through wreckage, and the probability was that the glass 
was smashed by some of this wreckage being dashed against it. 
The district court, in awarding damages, held that the fact that 
the steamship did not slow up while passing through this wreck- 
age constituted an act of negligence. Judge Shipman reversed 
that opinion, and held that the meeting of the wreckage came 
under the "peril of the sea" clause of all carrying contracts. "It 
was an unanticipated peril of the sea," he said. "If such an injury 
could have been anticipated the speed of the ship should have 
been slackened, but it is apparent that the injury was of such an 
extraordinary character that the probability of taking such pre- 
cautions to avoid it would not naturally have occurred to the 
mind."' 

The carrier must furnish a seaworthy vessel, well equipped, 
and suitable for the purpose for which it is employed, and he is 
responsible for damages arising from failure to do so." But the 
words " inevitable dangers of the sea," as affecting the liability of 
the carrier, may be varied by proofs of usage," and it has been held 
that if there be no default in the carrier the loss occasioned by 
rats at sea comes within the perils of the sea.' But a vessel 
which did not take the usual and necessary precautions against 
damage by rats to a cargo known to be liable thereto, during a 
/ voyage of ordinary duration in which only the customary stops 
were made, is liable for extraordinary damage thereto, notwith- 
standing exceptions in the bill of lading as to vermin and negli- 
gence.' Indeed, damage to a cargo of cheese, occasioned by ratfe 
is not within the exception of the dangers or accidents of the sea 

' Potter -v. ITis Majestic, 23 L. K. A. 746, 60 Fed. Rep. 625. 

'Bell V. Seed, 4Binn. 127, 5 Am. Dec. 398; Clark v. Bichnrds, 1 Conn. 54; Day 

V. Ridley, 16 Vt. 48, 42 Am. Dec. 489; Kellogg v. La, Crosse & M. Packet Co. 

3 Bias. 496; The NortUrn Belle v. Bobson, 76 TJ. S. 9 Wall. 526, 19 L, ed. 

748. 
*Adam v. Hay, 7 N. C. 149. 

* Garrigues v. Coxe, 1 Binn. 592, 2 Am. Deo. 493. 

• The Timor, 46 Fed. Rep. 859. 



168 "act of god" "perils of the ST5A." 

or navigation, within the usual acceptation of the terms.' If goods, 
are gnawed by rats or cockroaches, carrier is liable, or if rats 
gnaw a hole in vessel causing it to leak." A loss occasioned by 
worms is not a peril of the sea.' A stipulation in a bill of lading, 
exempting the shipowner from liability for damage or loss by 
vermin, or from any act, neglect, etc., of the officers or crew, will 
not relieve the shipowner from liability for injuries by rats, re- 
sulting from neglect to fumigate the ship before loading the 
cargo.* Cuts in drums of glycerine shipped, through which a 
portion of the glycerine escapes, in consequence of long continued 
heavy weather on the voyage, are sea perils for which the ship 
is not liable where the bill of lading excepts such perils.' Sweats 
ing of bags of sugar, is a peril of the sea.' Shipping water comes 
within this exemption as a " peril of the sea.'" If goods are prop- 
erly stowed, injury caused by the motion of the boat is also a 
" peril of the sea.'" Damages to cotton thread put up in boxes 
caused by dampness without negligence or lack of proper precau- 
tionary measures on the part of the carrier, must be attributed to 
dangers of the sea." 

Where the contract of a bill of lading was that the goods should 
be delivered in good order, dangers of the sea excepted, sweating 
produced in consequence of negligence in stowage, is not one of 
the dangers of the sea. Leakage and diminution owing to exist- 
ing but not apparent causes, are not within the risks guaranteed 
against by the bUl of lading." A fire, though accidental and with- 
out fault of the owners, is not within the exception of the dan- 

' Laveroni v. Drury, 8 Exch. 166. 
, ^Aymar v. Astor, 6 Cow. 266; Kay v. Wheeler, L. R. 3 C. P. 302; Laveroni v. 

Drui-y, 8 Exch. 166, 16 Eng. L. & Eq. 510; Westray v. Miletus, 3 Int. Rev. 

Rec. 61; Dale v. Hall, 1 Wils. 281; Oarrignes v. Coxe, 1 Binu. 593, 2 Am. 

Dec. 493; Hunter v. PotU, 4 Campb. 203. 
« Martin v. Salem, Ins. Co. 2 Mass. 421; DePeyster v. Columbian Ins. Co. 2 Cai. 

85. 
* Stevens v. Ifavigaeione Generate Italiana, 89 Fed. Rep. 562. 
» TJie Tiinacria, 43 Fed. Rep. 863. 

« Matthiessen & W. Svgar Bef. Go. v. Qusi, 29 Fed. Rep. 794. 
' Tlie Cliasca, 23 Fed. Rep. 156. 
' Christie v. Tlie Oraigton, 41 Fed. Rep. 63. 
« Clark V. Barnwell, 53 U. 8. 12 How. 273, 13 L. ed. 985. 
>« Nelson v. Woodruff, 66 U. S. 1 Black. 156, 17 L. ed. 97. 



"PEEILS OF THE SEA," " DANGEE8 OE THE EIVEE," ETC. 169 

gers of the river in a bill of lading.' The explosion of a steam 
boiler is not a peril within the exception of dangers of navigation 
in the bill of lading." Live stock injured solely through the efEeet 
of a storm will not render the carrier liable.' The breaking of a 
rope, either attaching the vessel to a dock, or a tiller rope, comes 
within the exemption of a "peril of the sea," or "unavoidable 
danger of navigation." * A collision caused by a tempest, is a 
loss by the " perils of the sea." ' A carrier will not be answer- 
able for goods thrown overboard to lighten the ship and boat, and 
preserve life where the necessity arises.' But if this is done as 
the result of negligence, without necessity, or imprudently or 
rashly, the master wUl be liable,' and he may so contract and not 
subject the ship to general average." 

A ship is not liable for damage at sea to a cargo of tea stored 
in a watertight compartment, from water entering around a bolt 
holding a stanchion, which is not due to any original fault of con- 
struction, because of the bolt becoming worn upon the breaking 
of another bolt, and the bending of the stanchion in heavy 
weather, where those in charge of the ship are not negligent in 
not seasonably discovering the water and removing it from the 
hold.' The inflow of water through a leak occasioned by the 
working loose of a rivet in the foot of a bulwark stanchion is a 
peril of the sea and an accident of navigation, within the mean- 
ing of a charter party and bill of lading excepting those perils 
and accidents " even when occasioned by the negligence " of the 
master ; and therefore the shipowner, under the English or New 

' Oa/rriaon v. Memphis Ina. Co. 60 U. S. 19 How. 312, 15 L. ed. 656, 

2 Barren v. TJie Mo'nawk, 75 TJ. 8. 8 Wall. 153, 19 L. ed. 406; OaldioeU v. iVaw 

Jersey S. B. Co. 56 Barb. 425. 
' Oabay v. Lloyd, 8 Barn. & C. 793; Lawrence v. Aberdein, 5 Barn. & Aid. 107. 

* Laurie v. Douglas, 15 Mees. & W. 746; The Morning Mail, 17 Fed. Eep. 545. 
' T7ie Bergensereh, 36 Fed. Rep. 700; Lawrence v. Minturn, 58 TJ. S. 17 How. 

100, 15 L. ed. 58; OilleU v. EllU, 11 111. 579. 
^Mouse's Case, 12 Coke, 63; Barcroft's Case, cited mEenrig v. Eggleaton, Aleyn, 

93; Smith v. WrigM, 1 Cai. 43, 2 Am. Dec. 162. 
' The Bergen Seiien, 36 Fed. Rep. 700; Bird v. Astcock, 2 Bulst. 280; Barcroft's 

Case, mpra; Gillett v. Bllis, 11 111. 579, 2 Hurlst. Abr, 517, 520, 531. 
' The Enrique, 5 Hughes, 275. 

• The Exe, 57 Fed. Rep. 399. 



170 "act of god' 

York and perhaps West Virginia rule, is not liable for damage 
caused by the leakage or the master's negligent failure to stop it.' A 
loss occasioned by the sudden change of wind, there being no lack 
of prudent care, will excuse the carrier as a loss by the act of God.' 
The result of storms and tempests in causing a ship to spring a 
leak or to ship a sea resulting in damage to the cargo, comes 
within the phrase " perils of the sea.'" A stipulation in a biU of 
lading given by a steamship company, for its exemption from lia- 
bility for damage occasioned by " blowing," as well as by other 
" perils of the seas," is binding upon a consignee receiving it.* If 
a vessel is obliged to use extraordinary press of sail in a gale of 
wind in following her tow, the injury to her cargo may be said to 
be caused by one of the perils of the sea.' So the stranding of a 
vessel comes within this exception.' Where a vessel was negli- 
gently run ashore, and, a storm coming on, was voluntarily 
scuttled to save her from total loss, and other general average ex- 
penses were subsequently incurred, the stranding, and not the 
storm, was the proximate cause of the loss ; and the loss was 
within an exception in an insurance policy against want of ordi- 
nary care.' The. clause in a bill of lading, that the carrier shall 
not be responsible for loss or damage by the perils of the sea, 
arising from the negligence of the master and crew of the ship, 
do not relieve him from such responsibility, except in New York 
or in English courts." If the master be not guilty of want of 
prudence or skill he will not be answerable for the loss of his ship 
from striking on a hidden rock, the existence of which was not 
generally known." An obstruction which has suddenly appeared 
in navigable waters comes within the exception of the " dangers of 

' The Oressington [1891] Prob. 153. 

« Colt V. MeMeehen, 6 Johns. 160, 5 Am. Deo. 200. 

'1 Bell. Com. 560, § 501. 

« East Tennessee, V. & O. B. Co. v. Wright, 76 Ga. 533. 

' Eagedom v. Whitmore, 1 Stark. 157. 

iLiverpool & O. W. Steam, Co. v. Phenix Ins. Co. (" The Montana") 129 U. 

S. 397, 32 L. ed. 788. 
' The Ontario, 37 Fed. Rep. 330. 

' Liverpool & Q. W. Steam Go. v. PJienit Ins. Co. (" The Montana ") supra. 
• "WiMmms v. Grant, 1 Conn. 487, 7 Am. Dec. 235. 



"PBEILS OF THE SEA," " DANGEE8 OF THE EITEE," ETC. 171 

navigation.'" And if, without fault, a ship should be run aground 
and wrecked, this provision in the bill of lading, will protect the 
carrier." "When the contract in a bill of lading, that the goods 
are to be delivered at New Orleans without delay, contains an ex- 
ception of the dangers of navigation and unavoidable accidents, 
and the goods are lost by the vessel striking an unseen obstruc- 
tion and sinking, the loss occurs through a danger of navigation, 
if the navigation is in its course according to the usage of the 
trade.' 

The term " dangers of lake navigation," in a bill of lading, in- 
clude perils from shallowness of water at the entrance to a harbor; 
but where the danger might have been avoided by proper care 
and skill, the loss should be attributed to the negligence of the 
carrier, notwithstanding the exception in the bill of lading.* A 
loss from a mistake of port and attempting to enter at night in- 
stead of remaining on the lake till morning, is the result of the 
fault of the carrier and not a danger of lake navigation.' If a 
ship properly moored in a harbor strikes hard on the bottom from 
the swell or reflux of the tide, and her knees are injured, and the 
cargo damaged, the loss comes within the expected " perils of the 
sea." ° The sinking of a steamer at the entrance of a canal, on a 
calm, clear night, is not included in an exception of dangers and 
accidents of the seas, etc' A loss occasioned by pirates, falls 
within " perils of the sea.° All vessels employed in transporting 
goods from port to port, are carriers and, as such, liable for the 
safe custody, due transport and right delivery of the goods. 
IS'othing can discharge them from the undertaking specified in 
the bill of lading but the unanticipated perils of the sea or the act 

'Bedpathy. Yaughan, 53 Barb. 489; Oordon v. Buchanan, 5 Terg. 71; Ohou- 

teaux V. Leech, 18 Pa. 224, 57 Am. Dec. 603. 
' The Juniata Paton, 1 Biss. 15. 
^EosUttefry. Pcvrk, 137 U. 8. 30, 34 L. ed. 568. 

* Wettern Tramp. Co. v. Downer, 78 U. S. 11 Wall. 139, 24 L. ed. 160. 

» The PorUmouth v. Onondaga Salt Co. 76 U. S. 9 Wall. 682, 19 L. ed. 754. 

* Fletcher v. Inglis, 3 Barn. & Aid. 315; Mngsfordy. Marshall, 8 Bing. 458; 

Potter V. Suffolk Ins. Co. 2 Sumn. 197. 
''Richelieu & 0. Nav. Go. v. Fortier, 5 Mont. L. Rep. (Q. B.) 224. 
«3 Kent, Com. 216; Gage v. Tirrell, 9 Allen, 299, 310; Pickering v. Ban'k- 

ley, 3 RoUe, Abr. 248, Style, 132; Barton v. WaUifwd, Comb. 56. 



172 "act of god" "PBEILS OF THE SEA." 

of God or the public enemy.' Under a contract to deliver a cargo 
safely, the perils of the sea only excepted, nothing will excuse the 
carrier for a non-performance except he has been prevented by 
some one of those perils, the act of libelants or the law of the 
country. They are responsible for the miscarriage of their mas- 
ter or agent." 

§ Ji-4- WTien "Act of God" or other Inevitable 
Cause no JExcuse. See also § 73. 

The fact that the loss was caused by some " vis mcyor," as by 
a flood, is sufficient, without affirmative proof that the carrier was 
not guilty of negligence, and this may be shown under a general 
denial.' It is not essential to the exemption of a carrier from 
liability for the loss of or injury to goods during their transportar 
tion, that the damages result solely from any one of the excep- 
tional causes, such as the act of God or a public enemy, or the 
sole fault of the owner, it not being liable if two or all of such 
causes combine to produce the injury, if the carrier itself is with- 
out fault.* On the other hand, it must be admitted that it is not be- 
cause an accident is occasioned by the agency of nature, and there- 
fore by what may be termed " act of God," that it necessarily 
follows that the carrier is entitled to immunity ;° the rain which 
fertihzes the earth and the wind which enables the ship to navi- 
gate the ocean, are as much within the term " act of God " as the 
rainfall which causes the river to burst its banks and carry de- 
struction over the whole district, or the cyclone, which drives a 
ship against a rock and sends it to the bottom. Yet the carrier, 
who, by the rule, is entitled to protection in the latter ease, would 
clearly not be able to claim it in case of damage occurring in the 
former. The exception of perils of the sea does not exonerate 

>ias Tourette v. Burton, 68 U. S. 1 Wall. 43, 17 L. ed. 609; Germania Ins. 

Oo. V. Tlie Lady Pike, 88 U. S. 21 Wall. 1, 22 L. ed. 499. 
'SowlandY. Gh-eenway, 63 U. S. 22 How. 491, 16 L. ed. 391. 
« Davia v. Wabash, St. L. & P. B. Co. 89 Mo. 349; Memphis & G. B. Go. v. 

Beeves, 77 U. S. 10 Wall. 176, 19 L. ed. 909. 
* McCarthy v. LouismUe & N. B. Co. (Ala.) 14 So. 870. 
'Birouaa v. Wabash, St. L. <& P. B. Oo. 17 Fed. Eep. 209. 



WHEN "act of god" NO EXCUSE. 173 

the shipowner from liability for loss or damage from one of those 
perils, to which his negligence or that of his servants contributed.' 
For another principle may be involved. The carrier is bound to 
do his utmost to protect the goods committed to his charge, from 
loss or damage, and if he fails herein, he becomes liable, from the 
nature of his contract. In the one case, he can protect the goods 
by proper care, in the other, it is beyond his power to do so. If, 
by his default in omitting to take the necessary care, loss or dam- 
age ensues, he remains responsible, though the so-called " act of 
<3-od " may have been the immediate cause of the mischief." 

The fact that a carrier is not liable for damage to goods caused 
by a flood, will not exempt it from liability for negligence in fail- 
ing to dry them, especially where it had refused to surrender 
them to the owner on his demand." And a common carrier is 
•entitled to reimbursement in case that flood, storms, or the like, 
require immediate expense for the preservation of his cargo.* 
Failure to examine the cargo under the after hatches of a vessel, 
■aiter notice of the damage to the cargo under the forward hatches 
by collision, is negligence attributable to the carriers, which wiU 
render them liable for such subsequent damages, as proceed from 
the lack of examination and reconditioning of the cargo under 
the after hatches, which had in fact been damaged by such col- 
lision." A railway company is liable for the destruction of so 
much of a carload of wheat as it could have saved by ordinary 
■care and diligence, where, although the car was partly submerged 
in water by a flood or freshet, a part of the wheat was above 
water and could have been saved if removed before it became 
damp.' tinder the Georgia statute, a carrier is boiind to exercise 
•extraordinary diligence in protecting from damage by flood, while 
they are in his cars or warehouse, goods which arrive too late to 

" Bradley Fertilizer Co. v. l%e Edwin I. Morrison, 153 TJ. S. 199, 38 L. ed. 

688. 
•' Qleeson v. Virginia Midland R. Co. 140 U. S. 435, 85 L. ed. 458. 
^Fearcey. The Thmnag Newton, 41 Fed. Rep. 106. 

* The Oraiitudine, 8 C. Eob, Adm. 255, 258. 
« T7i£ GuOdhaU, 58 Fed. Rep. 796. 

* Baltimore & 0. B. Co. v. Keedy, 75 Md. 320, 49 Am. & Eng. R. Gas. 124. 



m "act otf god" — "perils of the sea." 

give the usual notice to the consignee before the flood occurs, but 
is excused if they were damaged in spite of such diligence.' 

A carrier is negligent if he fails to take precaution against such 
rise of high water, as is usual and ordinary, and reasonably to be 
expected at certain seasons of the year," or if he attempt to cross 
a stream or river when a rise is to be expected immediately.' So, 
while the sudden failure of the wind is an "act of God," there is 
a degree of negligence imputable to the master in sailing so near 
the shore, under a light variable wind, that a failure in coming 
about would cast him aground. And, in the same way, the mas- 
ter may incur liability by bringing his ship under the influ- 
ence of the tide.* Or in putting to sea in the face of a plainly 
impending storm, or any act which plainly incurs a needless peril 
from the elements.' Common carriers are only to be excused 
from losses happening in spite of all human effort and sagacity.' 
'No one is responsible for the act of God, or "inevitable accident," 
except where human agency is combined with it, and neglect oc- 
curs in the employment of such agency.' Where the master of a 
wrecked vessel abandons her to the underwriters without the ex- 
ercise of due diligence to save the cargo, the fact that the under- 
writers take possession, and sell a part of the cargo which is not 
insured, does not exempt the carrier from liability to the shipper 
for his loss.' The liability of a vessel for the sale by the master 
of cargo at a port of refuge, is to be determined by the law of the 
flag carried by the vessel. Under German law, a vessel is not lia- 
ble for cargo sold at a port of refuge by the master in the honest 
belief that it is in the best interests of the owners, after taking 

' Biehmond <& D. B. Co. v. White, 88 Ga. 805. 

« Ewwrt V. Street, 2 Bail. L. 157, 23 Am. Dec. 131; Moffat v. Strong, 10 Johns. 
12; New Brunswick, S. B. & G. Transp. Co. v. Tiers. 24 N. J. L. 697, 64 
Am. Dec. 394; OreatWesUn B. Oo. v. Braid, Moore, P. C. N. S. 101. 



! V. Morse, 1 Harp. L. 468, 

* Charleston & C.,8. B. Co. v. Bason, 1 Harp, L, 263. 
'Tfoi/v. American Exp. Co. 43 Mo. 423, 97 Am. Dec. 406. 

• Kent, Ch. J., in Coll v. McMeehen, 6 Johns. 160, 5 Am, Dec. 200; Amies v, 

Stevens, 1 Strange, 128. 
' Chidenier v. Consolidated Ditch Co. 59 Cal. 203. 
>Bixbyy. Dumwr, 54 Fed. Rep. 718, 



WHEN "ACT OF GOD " NO EXCUSE. 175 

the best advice he can get on the spot.' Where a casualty occurs 
which might have been prevented by the use of known and proper 
precautions against the danger, it is not inevitable accident.'' A 
carrier of goods is bound to use extraordinary diligence, both to 
avoid needlessly exposing the goods to injury or destruction by 
an unforeseen act of God, and to use measures for their protec- 
tion and preservation after the peril has become apparent, under 
Ga. Code, § 2066.° An exception, in the bill of lading, of perils 
of the sea or other specified perils, does not excuse him from that 
obligation, or exempt him from liability for loss or damage from 
one of those perils, to which the negligence of himself, or his 
servants, has contributed.* 

If the ship is unseaworthy, and hence perishes from the storm, 
which it otherwise would have weathered, — if the carrier, by un- 
due deviation or delay exposes himself to the danger which he 
otherwise would have avoided or if, by his rashness, he unneces- 
sarily encounters it— as by putting to sea in a raging storm, — the 
loss cannot be said to be due to the act of God alone, and the 
carrier cannot have the benefit of the exception. This being 
granted, the question arises as to the degree of care which is re- 
quired of him, to protect him from liability in respect of loss aris- 
ing from the "act of God;" and if he uses all the known means 
which prudent and experienced carriers ordinarily have recourse 
to, he does all that can be reasonably required of him, and if, 
under such circumstances, he is overpowered by a storm or other 
natural agencies, he is within the rule that gives immunity from 
such vis major, as the "act of God."" If, while the carrier is in 

' The August [1891] Prob. 328. 

» LaM V. Foster, 31 Fed. Rep. 837. 

'Bichmond & D. JS. Co. v. White, 88 Ga. 805. 

*New Jersey BteamNwo. Co. v. Merchant's Bank of Boston, 47 TJ. S. 6 How. 844, 
12 L. ed. 465; United States Exp. Co. v. Kountze, 75 U. S. 8 Wall. 342, 19 
L. ed. 457; Western Transp. Co. v. Downer, 78 U. S. 11 Wall. 139, 30 L. ed. 
160; Grill v. Qeneral Iron Screw Colliery Co. L. R. 1 C. P. 600, L. R. 3 C. P. 
476; TheXantho. L. R. 12 App. Gas. 503, 510,515. 

'^Nugent v. Smith, L. R. 1 C. P. Div. 423; Blach v. Chicago, B. & Q. B. Co. 30 
Neb. 197; Gillespie v. St. Louis, E. C. & N. B. Co. 6 Mo. App. 554; Morn- 
son V. Bams, 30 Pa. 171, 57 Am. Dec. 695; Mem/phis & C. B. Co. v. B^ews, 
77 U. S. 10 Wall. 176, 19 L. ed. 909; Nashmlle & C. B. Co. v. Bairid, 6 



176 "act of god" "PEEILS OF THE SEA." 

fanlt in departing from its contract and line of duty, goods are 
injured in consequence of that fanlt by an "act of God," — which 
would not otherwise have produced the injury — the carrier is 
answerable.' "When failure of the carrier without excuse to start 
the goods at a time when they would have escaped peril from in- 
evitable accident, will prevent his availing himself of the plea 
that the injury or loss was caused by the "act of God," is a ques- 
tion upon which the decisions have not been uniform. In many 
cases this delay is considered so remote as to preclude the car- 
rier from availing himself of the exception." If the "act of God" 
be the proximate cause, the carrier will not be liable for the loss, 
although its own negligence may have contributed — as a remote 
cause.^ Where the negligence of the defendant concurs in and con- 
tributes to the injury, he is not exempt from liability because the 
immediate damage seems to result from the act of God, or inevi- 
table accident.* But, this concurring negligence of the carrier 
must be such as is in itself a real producing cause of the iujury, 
and not a mere fanciful or speculative negligence, which may not, 
in fact, in the least degree, have caused the injury.' Though un- 
doubtedly the act of God which will excuse the carrier must be 
the proximate, and not the remote, cause of the loss." 

But other courts have held an inexcusable delay sufficient to pre- 

Heisk. 261, 19 Am. Rep. 594; Denny v. New York Cent. B. Go. 13 Gray, 
481, 74 Am. Dec. 645; Swetland v. Boston & A. B. Corp. 102 Mass. 276; 
PruittY. Hannibal & Bt. J. B. Go. 62 Mo. 527. 

^MichaelsY.Mw York Gent. B. Go. 30 N. T. 564, 86 Am. Dec. 415. 

' Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Eoadley v. N<n-them Transp. 
Go. 115 Mass. 304, 15 Am. Rep. 106; Oleeson v. Virginia Midland B. Go. 140 
U. S. 435, 35 L. ed. 458; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. 
Rep. 264; Michigan Gent. B. Go. v. Burrows, 33 Mich. 6; Denny v. Nea 
York Gent. B. Go. 13 Gray, 481, 74 Am. Dec. 645. 

'Memphis & 0. B. Go. v. Beeves, 77 TI. S. 10 Wall. 176, 19 L. ed. 909. 

*Prmlt V. Hannibal & St. J. B. Go. 62 Mo. 527. 

* Baltimore & 0. B. Co. v. Sulphur Springs Independent School Dist. 96 Pa. 65, 

42 Am. Rep. 529. 

• King v. Shepherd, 3 Story, 356; Schieffelin v. Harvey, 6 Johns. 169, 5 Am. Dec. 

206; Mliott v. Bossell, 10 Johns. 1, 6 Am. Dec. 306; Merritt v. Earle, 29 N. 
Y. 117, 86 Am. Dec. 292; Michaels v. New York Cent. B. Go. 30 N. T. 571, 
86 Am. Dec. 415; Hartr. Allen, 2 Watts, 114; Ewart v. Street, 3 Bail. L. 157. 
23 Am. Dec. 131 ; Campbell v. Morse, 1 Harp. L. 468; Siorda v. Hall, 4 Bing. 
607; Deaty, Commerce & Navigation, | 250. 



WHEN "act of god" NO EXCUSE. 177 

■elude the carrier from availing himself from what would otherwise 
he a sufficient defense.' Thus it is said the act of God must not 
■only be the proximate, but the sole, cause of the loss, for, if mingled 
with a negligent delay of the carrier, he is still responsible." 

"Where human agency intervenes, the act of God cannot be ef- 
fective as a defense ; as, where a steamer was sunk by running 
upon the mast of a sloop capsised a day or two previously, the 
.squall which sunk the sloop was too remote." So, where a vessel 
was stranded by being driven against a concealed bar, the 
light of a stranded vessel misleading the pilot.' Any act or 
omission on the part of the carrier contributing to the loss 
takes away the protection of the defense that the loss was occa- 
sioned by the act of God.° Under same authorities, a snag swept 
into the usual channel of the river, is an obstruction placed there 
by the act of God." So is an obstruction unknown to navigators 
in open waters — as a sunken rock.' 

Eecent authorities are not inclined to excuse the carrier, where 
human skill could avoid the result which may arise from a sud- 
den storm. Thus, a railroad company is bound to prevent a land 
.slide in a cut made by it, which ordinary skill would enable en- 
.gineers to foresee, and is liable for accidents occurring therefrom. 

' Oondict V. Grand Trunk B. Go. 54 N. Y. 500; Pruitt v. Hannibal & St. J. B. 
Co. 62 Mo. 527; Southern Exp. Co. v. 'Womaak, 1 Heisk. 256: Michigan Cent. 
B. Co. V. Curtis, 80 111. 324. 

^Wolfv. American Exp. Co. 43 Mo. 421, 97 Am. Bee. 406; Bead v. Si. Louis 
E. C. & N. B. Co. 60 Mo. 199; Pruitt v. HamnibaX & St. J. B. Co. 62 Mo. 527; 
Dans V. Wabash, St. L. & P. B. Co. 89 Mo. 340; Dunsbaeh v. HoUister, 49 
Hun, 352; Daniels v. Ballantine, 23 Ohio St. 532, 18 Am. Rep. 264; Michi- 
gan Cent. B. Co. v. Burrows, 33 Mich. 6. See notes to Hull v. Chicago, St. 
P. M. & 0. B. Co. (Minn.) 5 L. B. A. 587; Insurance Co. of Worth America 
V. Easton (Tex.) 3 L. R. A. 424; Hartwell v. Northern Pae. Exp. Co. (Dak.) 
3 L. R. A. 342; Fox v. Boston & M. B. Co. (Mass.) 1 L. R. A. 702. 

'Merritt v. Earle, 29 N. T. 115, 86 Am. Dec. 293, 31 Barb. 38. 

* Trent & M. Nav. Co. v. Wood, 3 Esp. 137; Merslum v. Hobensack. 22 N. J. L. 

373; Backlumse v. Sneed, 5 N. C. 173; McArthur v. Sears, 21 Wend. 190. 
'Dibble v. Morgan, 1 Woods, 412; The Zenobia, 1 Abb. Adm. 80, 95. As to 
careless stowage, see §§ 73 to 77. 

* Graham v. Dams, 4 Ohio St. 362, 62 Am. Dec. 385; Smyre v. Molon, 2 Bail. 

L. 421, 23 Am. Dec. 146; Faulkner v. Wright, Rice, L. 107. 
"Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 335; Hosteller v. Pa/rk, 137 U. S. 
30, 34 L. ed. 568. But, see, FViend v. Woods, 6 Gratt. 189, 53 Am. Dec. 119; 
Virginia Cent. B. Co. v. Sanger, 15 Gratt. 237; Trent & M. Nav. Co. v. 
Wood. 3 Esp. 127. 

12 



178 "act of god" "PEEILS OK THE SEA." 

The fact that the slide was produced by the loosening of the earth 
by the rain, where there is no proof that the rain was of an extraor- 
dinary character, or that extraordinary results followed it, but 
that it was a common natural event, such as not only might have 
been foreseen as probable, but also must have been foreknown as 
certain to come, is not embraced by the technical phrase, " act of 
God." ' If injury is occasioned by inevitable accident, no action 
will lie for it, but if any blame is imputable to the defendant^ 
though he had no intention to injure the plaintiff or any other 
person, he is liable for the injury suffered." But in an action for the 
loss of goods shipped, where the defense is " an act of God," the 
burden of showing that the negligence of the carrier co-operated, 
is on the shipper, and this may be shown under a general denial.'' 

§ 45. "Fire Clause." 

Fire, unless produced by lightning, does not come within the 
common law exception to a carrier's liability.^ But it may come 
within the terms of a statute exempting the carrier from loss. 
caused by " accidents."' But, unless there be an exception of 
" fire," the explosion of a boiler, nor collision, not caused by peril 
excepted, nor the wreck of the vessel by unknown obstruction, or 
shifting of a buoy, nor the explosion of part of the cargo, causing 
the fire, will not relieve the carrier though he be not guilty of 

' Oleemn v. Virginia Midland B. Co. 140 0. S. 435, 35 L. ed. 458. 

' Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 335: Pereivai v. HicJcey, 18 Johns. 
289, 9 Am. Dec. 310; Bullock v. Babcoek, 3 Wend. 391; The MoUie Molder, 
3 Bias. 508; The New Jersey, Olcolt, 448; Tlie Lady Pike, 3 Biss. 145; Amies 
V. Stevens, 1 Strange, 138; Weaver v. Ward, Hob. 134; Learnt v. Bray, 3 
East, 593. 

» Davis V. Wal)ash, St. L. & P. B. Co. 89 Mo. 849. 

* Forward v. Pittard, 1 T. R. 33; American Tranap. Co. v. Moore, 5 Mich. 368; 
Condiat v. Grand Trunk B. Co. 54 N. T. 500: Mei-shon v. Eobensack, 22 N. 
J. L. 372; Sibler v. McCartney, 31 Ala. 502; York Mfg. Co. v. llUnm Cent. 
B. Co. 70 U. 8. 3 Wall. 107, 18 L. ed. 170; ChevaUier v. Stralmm, 2 Tex. 
115, 47 Am. Dec. 639; Hyde v. IVent <£ M. Nav. Co. 5 T. R. 389; Providence 
&N.T. SS. Co. V. mil Mfg. Co. 109 U. S. 578, 27 L. ed. 1038; Sail v. Ohmey, 
36 N. H. 26; Slayter v. Sayward Bubber Co. 26 Conn. 128; Cox v. Peterson, 
30 Ala. 608, 68 Am. Dec. 145; Parker v. Flagg, 26 Me. 181, 45 Am. Dec. 
101: Moore v. Michigan Cent. B. Co. 8 Mich. 83: Miller v. Steam Nav. Co. 10 
N. Y.431. 

'EuntY. Morris, 6 Mart. (La.) 676, 18 Am. Dec. 489. 



179 

negligence.' A contract exempting the carrier from liability for 
a loss by lire not due to negligence, and based upon a sufficient 
consideration, the shipper having the right to elect between a lia- 
bility with or without the fire clause, is valid." The authorities 
are practically unanimous concerning a loss by fire under a bill of 
lading containing a fire clause, and they establish the relation of 
bailor and bailee. An action cannot be brought on the implied 
agreement of the common law for the loss by fire, without the 
carrier's negligence, of goods shipped under a bill of lading by 
which the carrier is freed from liability for loss by fire.' Con- 
tracts when based upon a sufficient consideration, have been held 
to be valid, and to protect the company from liability for loss by 
fire, caused otherwise than by the negligence of the company or 
its agents.' In the case last cited the court said : " A lower rate 
of freight, or something equivalent, will be a sufficient considera- 
tion for the stipulation." ' Fire, unless caused by the negligence 
of the carrier, is one of the things against which the carrier may 
by contract exonerate himself from responsibility.' 

Where, however, an excepted occurrence causes the fire, this 
wUl be taken to be the proximate cause, and the fire but an inci- 
dent, — and the carrier will be excused.' A furious wind which 
blows a car from the track is the proximate cause of the loss of 

' BulkUy v. Naumkeag Steom, Ootlon Co. 65 U. 8. 34 How. 386, 16 L. ed. 599; 

PlaUted v. Boston it K. 8. Nav. Co. 37 Me. 133; Houston & O. Nav. Co. v. 

Bwyer, 39 Tex. 376; Brouaseau v. The Hudson, 11 La. Ann. 437; Heaves v. 

Waterman, 3 Speara, L. 197; Agnew v. The Oont/ra Costa, 37 Cal. 435, 87 

Am. Dec. 87; Friend v. Woods, 6 Gratt. 189, 53 Am. Dec. 119: Merritt v. 

Ea/rle, 39 N. T. 115, 86 Am. Dec. 393; Mw Brunswick 8. B. & C. Transp. 

Co. V. Tiers, 34 N. J. L. 697. 64 Am. Dec. 394. 
^DUlard v. Louismlle & N. B. Go. 3 Lea, 288; Louisville &N. B. Co. v. Gilbert, 

7 L. R. A. 163, 88 Tenn. 430. 
'Indianapolis, D. &W. B. Go. v. Forsythe, 4 Ind. App. 326; Memphis & G. B. 

Co. V. Beeves. 17 U. S. 10 Wall. 176, 49 L. ed. 909; Gla/rk v. Barnwell, 53 TJ. 

S. 18 How. 274, 13 L. ed. 985; Western Transp. Go. v. Downer, 78 U. S. 11 

Wall. 139, 20 L. ed. 160; Wheeler, Carr. 254. 355. 
^Tork Mfg. Co. v. Illinois Cent. B. Go. 70 U. S. 8 Wall. 107, 18 L. ed. 170; Dil- 

lard V. Louisville & N. B. Co. 2 Lea, 288. 
' Billard v. Louisville & N. B. Go. supra. 
^Indianapolis, D. & W. B. Go. v. Forsythe, 4 Ind. App. 336; York Mfg. Go. y. 

Illinois Cent. B. Co. 70 U. S. 3 Wall. 104, 18 L. ed. 170; Mw York Cent. B. 

Co. V. Uekwood, 84 U. S. 17 Wall. 376, 377, 31 L. ed. 639. 
' Pennsylvania B. Co. v. Fries, 87 Pa. 334. 



180 "act of god" "PEEILS OF THE SEA." 

goods contained therein which are destroyed by fire which im- 
mediately follows, without negligence on the part of the carrier, 
as the result of the overturning of the car, in which were burning 
a lamp and a coal fire.' Principle establishes a liability against 
the carrier for a loss by fire, arising from other than a natural 
cause, whether occurring on the steamboat accidently, or com- 
municated, from another vessel or from the shore; — and the fact 
that fire produces the motive power of a ship, does not affect the 
case." "The dangers incident to railroad transportation, fire and 
all other unavoidable accidents excepted," are effective as a limi- 
tation on the common law liability of the carrier for loss by fire.' 
A notice by carrier by rail — unprovided with means for arresting 
sparks — that it would transport cotton at half rate, if relieved 
from risk as to fire, is sufficient to relieve it from habihty on 
bringing proof of destruction by fire while being transported.' 
But where in a bill of lading given by a carrier by water, he eon- 
tracts to deliver the goods over a land route, "the damages of 
navigation, fire or colHsion on the lakes, rivers and canals ex- 
cepted," such carrier will not be discharged for a loss occurring 
through fire on a railroad.' A bill of lading providing that the 
carrier shall not be liable for any loss or damage from fire, wetting, 
combustion, or heating, unless affirmatively caused by its negli- 
gence, does not exempt the carrier from liability to general aver- 
age upon destruction of the cargo by wetting to extinguish a fire 
therein, — especially where the stipulations are printed in very 
small type." 

It is now well settled that the common law liability of carriers 

> Blythe v. Denver & R. Q. B. Co. U L. R. A. 615. 15 Colo. 333. 

' Sfew Jersey Steam Sfav. Oo. v. MerclianU Bank of Boston, 47 U. S. 6 
How. 344, 381, 12 L. ed. 465, 481; Hale v. New Jersey Steam Nm. Co. 15 
Conn. 639, 39 Am. Dec. 398; Singleton v. HiUiard, 1 Strobh. L. 203; Gfl- 
more v. Oa/rman, 1 Smedes & M. 279, 40 Am. Dec. 96j Oarrison v. Mem- 
phis Ins. Oo. 60 TJ. S. 19 How. 312, 15 L. ed. 656. 

» CoUon v. Cleveland & P. B. Co. 67 Pa. 211, 5 Am. Rep. 424. 

* Smith V. North Carolina B. Co. 64 N. C. 235. See also. New Orleans Uvi. 
Ins. Co. V, New Orleans, J. & Q. N. B. Co. 20 La. Ann. 302; Levy v. Pont- 
chartrain B. Co. 23 La. Ann. 477. 

'BarUr v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434. 

« TheBoanoke, 68 Fed. Rep. 270. 



181 

may be limited by special contract, even to the extent of denud- 
ing them of the character of insurers, except as against their own 
negligence, and the limitation may be embraced in the bill of 
lading. To be valid, it must be fairly obtained, and just and rea- 
sonable. Under the English Railway and Canal Traffic Act of 
1854, such stipulations are called "conditions" and are upheld 
only when they are . . . just and reasonable. The same cri- 
terion is uniformly applied in this country, and no limitations of 
the carrier's common law liability will afford protection, unless 
"just and reasonable" in the eyes of the law.' The burden of 
proving the reasonableness of a condition lies upon the company. 
The most cogent evidence in favor of reasonableness is to show 
that the condition was not forced upon the customer, but that he 
had a fair alternative of getting rid of the condition, and yet 
agreed to it." It has been held that a "fire clause" in a bill of 
lading exempting the carrier from liability from loss by fire, is 
not valid where transportation under the rules of the common 
law is not offered as an alternative, and no reduction of rates is 
made as a consideration for the exemption.^ A carrier cannot 
by special contract limit its common law liability for losses not 
occasioned by negligence, where it does not afford the shipper an 
opportunity to contract for the service required without such re- 
striction, even, it is said, if he makes the special contract without 
objection or demand for a different one.* After the delivery of 
goods to the carrier, the sending of the receipt to the shipper — 
containing a clause exempting the carrier from liability from loss 
by fire — where such exemption is not brought to the notice of the 
shipper until after the property is destroyed, will not discharge 
the carrier from liability.' 

^New York Cent. B. Go. v. Loekwood, 84 U. 8. 17 Wall. 357, 21 L. ed. 627; 
Ha/rt V. Pmnsyhania B. Oo. 112 U. 8. 338, 28 L. ed. 720; Marr v. Western 
XT. Teleg. Oo. 85 Tenn. 542. 

* Redman, Can. (2d ed.) 66. citing Letoisv. Cfreat Western B. Oo. 47 L. J. Q. 

B. K S. 131. 

" LmiismUe d W. B. Oo. v. Gilbert, 7 L. R. A. 162, 88 Tenn. 430. 

* Little Bock & Ft. S. B. Co. v. Ormens, 18 L. R. A. 537, 57 Ark. 112. 
'iamJ V. Camden & A. B. Oo. 4 Daly, 483. 



182 "act of god" "PEEILS OF THE SEA." 

§ 4-6. Statutory Provisions Regarding "Fire 
Clause." 

Unless the carrier complies with the requirements of the Act 
of Congress, and provides, not only a seaworthy vessel but proper 
appliances for the extinguishment of fire, he cannot claim the 
benefit of the exceptions in his bill of lading.' The Act of Con- 
gress of March 3, 1851, relieves the ship owner from liability for 
loss to goods on board by fire, to which he has not contributed, 
either by his own design or negligence.' An accidental fire on 
a vessel, not owned or chartered by the carrier who uses it as 
part of its line, which injures the goods shipped, will not relieve 
the carrier from liability by the New Tork Statute of 1851, chap- 
ter 43.° A provision in a bill of lading of goods to be shipped 
from Texas to Massachusetts, that the carrier shall not be liable 
for loss by fire, is valid notwithstanding a Texas statute making 
a stipulation of that character void, as that statute does not apply 
to interstate or foreign shipments.* 

§ 4'^. Goods in Transit or Depot— " Fire Clause." 

Where the exemption was from loss by fire, and the goods 
were unloaded in transit, awaiting reshipment, and were lost by 
fire, the carrier is held liable,' though he be guilty of no neglect, 
but not when it is caused by lightning.' The ordinary car- 
rier bill of lading exempting the carrier for loss by fire on cotton, 
does not exempt the carrier from loss by fire while the cotton is 
in the possession of a compress company to which it has been de- 
livered as the agent of the carrier, instead of at the carrier's own 

' New Jersey Steam Nam. Co. v. Merchants Bank of Boston, 47 U. S. 6 How. 344, 

12 L. ed. 465. 

^Walker -7. Western Transp. Go. 70 U. S. 3 Wall. 150, 18 L. ed. 173. 

* Hill Mfg. Co. V. Boston & L. B. Corp. 104 Mass. 122, 6 Am. Rep. 302. 
« Otis Go. V. Missouri Pac. B. Co. 113 Mo. 633. 

» Bobinson v. Merchants Despatch Transp. Co. 45 Iowa, 470. 

• New Jersey Steam Nav. Go. v. Merchants Bank of Boston. 47 IT. S. 6 How. 425, 

13 L. ed. 500; King v. Shepherd, 3 Story, 349; Elliott v. Bossell, 10 Johns. 
1, 6 Am. Dec. 306; Patapscolns. Go. v. Coulter. 33 U. S. 3 Pet. 222, 7 L. 
ed. 659; Toulmin v. Anderson, 1 Taunt. 337, 385; McArthur v. Sears, 21 
Wend. 190; ^de v. Trent <& M. Nov. Go. 5 T. R. 889. 



GOODS IN TRANSIT OE DEPOT. 183 

■depot.' A provision in the bill of lading exempting the railroad 
company from loss or damage "by fire or other casualty, while in 
transit, or in depots or places of transhipment," to goods shipped, 
will be sustained." A contract that the carrier "shall not be 
liable for loss or damage ... by fire, or other 
■casualty while in transit, or while in depots or landings at point 
of delivery," will relieve the carrier from responsibility for goods 
■destroyed by the burning of the depot at which they wer3 re- 
ceived for shipment, where ordinary care has been used.' Goods 
awaiting transhipment in a railroad depot are within the clause 
■of a bill of lading exempting the carrier from liability for loss by 
fire from any cause, on land or water, or while awaitin,<y tranship- 
ment at any port.* 

A railroad company is not liable for the loss by fire, not 
due to its negligence, of cotton transported by it and de- 
livered on a switch, under an arrangement by which the con- 
signee has the right to open the cars, and it is no longer to 
guard the property, where the waybill has been delivered up 
to it, although the property still remains in its car.° A bill 
of lading issued for cotton shipped, reserving to the carrier 
the privilege, at its own expense, of compressing the cotton for 
convenience of carrriage, and exempting the carrier from liability 
for loss or damage by fire while at the depots, stations, ware- 
houses, or in transit, exempts the company from loss by fire with- 
out negligence while the cotton is warehoused for compression, 
■although the warehouseman is agent of the company.' The burn, 
ing of cotton while awaiting compression as provided by a bill of 
lading, in a compress not owned or operated by the carrier, is 
within a clause in the bill exempting the carrier from loss by fire 
while the property is on deposit in place of transhipment or 
depots or landings or at points of delivery.' 

^BemingY. MerchanU Cotton Press & 8. Co. 13 L. R. A. 518, 90 Tenn. 306. 

'Louisrille & W. JR. Co. v. Oden, 80 Ala. 88. 

'LouisviUe &N. B. Co. v. Brownlee, 14 Bush, 590. 

* Brown v. Louisville & N. B. Co. 36 111. App. 140. 

' Whitney Mfg. Co. v. Bichmond & D. B. Co. 38 S. C. 365. 

'Lamcasler Mills v. Merchavts Cotton Press & 8. Co. 89 Tenn. 1, 45 Am. & 

Bng. R. Cas. 423. 
''Missouri Pac. B. Go. v. Sherwood, 17 L. R. A. 643, 84 Tex. 135. 



184: 

A railway company will not be liable for goods destroyed on a. 
steamboat connected with the railway at a wharf, where the goodB- 
are transferred from the boat to the cars, and the employes of the 
steamboat and the railway company are both engaged in the trans- 
fer, the boat itself, with the ears and goods and wharf, being des- 
troyed during the process of transporting the goods in different 
loads.' After the goods are put into the sheds of the carrier, on its 
wharf, guarded by a watchman, a fire occurring from an unknown 
cause on the steamboat, while fully manned, lying at the wharf, 
which consumed the goods, will not render the carrier liable, unless 
there be proof of its negligence." A receipt from the Pennsylvania 
Railroad Company for oil to be delivered " Leech, at the com- 
pany's freight station at Philadelphia," with a memorandum ap- 
pended to the receipt " Eate to Eed Hook, 65 cts.," also " this oil 
is carried only on open cars, and entirely at the owner's risk from 
fire and leakage, whilst in the possession of the railroad company,, 
or carriers, while standing or in transit," the freight to be paid at 
Ked Hook, contained only an engagement to forward to Eed 
Hook as the ultimate destination, and the lunitation, as to the lia^ 
bility, applied only to the carrier giving the receipt ; and another 
railroad company having accepted the oil and given a receipt to 
" Leech, Agent of the Pennsylvania E. Co.," for the oil to be 
transported to New York, and it having been destroyed by fire 
between Philadelphia and Eed Hook, it became liable as a com- 
mon carrier, there being no other contract with it than its receipt, 
which did not limit its liability.' A railroad company to which a 
quantity of apples is delivered as warehouseman was held as a 
common carrier, when a sufficient quantity to make a carload has 
been delivered, and a car has been asked for and promised by the 
company, so as to be responsible for their loss by fire after the car 
should have been furnished, although the shipping contract which 
the shipper would have been required to sign, provides that the 
company shall not be Hable for damages occasioned by fire. This 
decision was affirmed on appeal, the court being equally divided.*" 

> Oats V. New York, P. & B. B. Co. 99 Mass. 220, 96 Am. Dec. 743. 

' Farnha/m v, Owmden & A. B. Co. 55 Pa. 53. 

* Camden & A. R. Go. v. Forsyth, 61 Pa. 81. 

*MUloy v. Grand Trunk B. Co. 23 Ont. Rep. 454, 55 Am. & Eng. R. Cas. 579. 



NEGLIGENCE DEFEATS " I'lEE CLAUSE." 185 

§ 48. Jfegligence Defeats " Fire Clause." 

A bill of lading stipulating that release " from damage or loss 
of any article from or by fire or explosion of any kind," simply 
releases the carrier's common law liability as an insurer, but does 
not release from a loss occurring through a fire or explosion caused 
by the carrier's negligence.' When a carrier contracts for ex- 
emption from liability for injury from fire he is bound to exercise 
ordinary diligence to prevent such injury.' The moment a faulty 
negligence begins, the carrier becomes an insurer against the con- 
sequences therefrom, both ordinary and extraordinary.' The pre- 
sumption attends every fault connected with the management of 
a vessel, and every omission to comply with a statutory require- 
ment, or with any regulation deemed essential to good seaman- 
ship, that such fault or omission contributed to the colHsion.' A 
stipulation in a contract of shipment, exempting the carrier from 
liability from loss by fire or other casualty while the goods are in 
transit or in depots or places for reception, does not exempt it 
from liability for such loss resulting from its own negligence or 
want of due care." A railroad company which undertakes to 



r V. Brie B. Co. 43 N. T. 123, 3 Am. Rep. 673; Larrib v. Camden & 

A. B. & Transp. Co. 46 N. T. 271, 7 Am. Rep. 327; Colton v. Cleveland & 
P. B. Co. 67 Pa. 211, 5 Am. Rep. 424; Baltimore & 0. B. Co. v. Skeels, 8 
W. Va. 556; Hannibal & St. J. B. Co. v. Swift, 79 U. S. 12 "Wall. 263, 20 
L. ed. 423; Missouri Valley B. Co. v. Caldwell, 8 Kan. 244; Baltimore & 0. 

B. Co. V. BatMone, 1 W. Va. 87, 88 Am. Dec. 664; Wallace v. Matthews, 39 
Ga. 617, 99 Am. Dec. 473; Thayer v. St. Louis, A. & T. H. B. Co. 22 Ind. 
26, 85 Am. Dec. 409; Illinois Cent. B. Co. v. Wranhenberg, 54 111. 88, 5 
Am. Rep. 93; Montgomery & TP. P. B. Co. v. Edmonds, 41 Ala. 667; In- 
dianapolis, P. & O. B. Co. V. Alien, 31 Ind. 394; Michigan S. & N. I. B. 
Co. V. Heaton, 37 Ind. 448, 10 Am. Rep. 89; Lamb v. Camden & A. B. & 
Transp. Co. 2 Dalv, 454; Pennsylvania B. Co. v. McOloskey, 23 Pa. 526; 
School District in Medfleld v. Boston, H. & E. B. Go. 102 Mass. 552, 3 
Am. Rep. 502; Union Mut. Ins. Co. v. Indianapolis & C. B. Co. 1 Disney, 
480; York Mfg. Co. v. lUinois B. Cent. Co. 1 Biss. 377, 70 U. S. 3 "Wall. 107, 
18 L. ed. 170; Farnliam v. Camden & A. B. Co. 55 Pa. 53; Sager v. Poj-te- 
mauth, S. & P. & E. B. Co. 31 Me. 228, 50 Am. Dec. 659; Blume7ithal v. 
Brainerd, 38 Vt. 402, 91 Am. Dec. 350; Mann v. Birchard, 40 Vt. 826; 
Levering v. Union Transp. & Ins. Co. 42 Mo. 88. 

^Uttle Bock, M. B. & T. B. Go. v. Talbot, 47 Ark. 97. 

'Davis V. Garrett, 6 Bing. 716; Bell t. Beed, 4 Binn. 127, 5 Am. Dec. 398; 

Hart v. Allen, 2 Watts. 114; Williams tt. Grant, 1 Conn. 492, 7 Am. Dec. 

23; Crosby 7. Fitch, 12 Conn. 410, 81 Am. Dec. 145. 
■• TU Martdlo v. Willey, 153 U. S. 64, 38 L. ed. 637. 
''Louisville & N, B. Co. v. Tovart, 97 Ala. 514; Lamb v. Camden & A. B- 

& Transp. Co. 46 N. Y. 271, 7 Am. Rep. 327. 



186 " ACT OF GOD " " PERILS OF THE SEA " 

transport a quantity of cotton, but reserves to itself the privilege 
of compressing it, by placing the cotton in the hands of a com- 
press company constitutes such company its agent, and is liable 
for the destruction of the cotton by fire through its negligence.' 
A delay of six days in shipment, by reason of a disagreement be- 
tween the carrier and a connecting line, is unreasonable ; and the 
carrier will be liable for losses occurring by fire during such delay, 
notwithstanding an exception in its bill of lading.' 

Where cotton is shipped in open flat cars, it is the duty of the 
carrier to take additional precaution for the protection and safety 
of the cotton, although its shipment in this manner may not be 
in itself such negligence as would make the carrier liable under 
all contingencies.' Still the carriage of cotton upon open cars 
has been held to be such a negligent act, as prevents the carrier 
from availing itself of a contract releasing its liability for a loss 
by fire.* But a steamer is not negligent so as to render it liable 
for the destruction of cotton by fire, in having it piled upon a 
landing a mile away from the nearest town, which is of but 250 
population, and on a point with water on both sides within 1 or 
2 feet, although it is stored in the open air and there is no watch- 
man employed, in the absence of any reason to anticipate its de- 
struction by fire.' The jury may properly find, as a question of 
fact, that the failure of a carrier to rescue goods from a car which 
had been overturned by the force of the wind, before they were 
consumed by fire, started by the stove fire and lights within the 
car, was not negligence, where the evidence shows that the wind 
was so strong as to render it almost impossible for men to stand 
or walk, while the air was so full of dust and flying material that 
scarcely anything could be seen, and the fire succeeded the over- 
turning almost instantaneously, so that even the messengers within 
the car escaped with great difficulty.' Where goods were plainly 

> Otis Co. V. Mmouri Pae. B. Co. 113 Mo. 623. 
» Oondict V. Orand Trunk B. Co. 54 N. Y. 500. 

* Insurance Co. of North America v. St. Louis. 1. M. <C 5. B. Co. 3 McCrary, 

333. 
*Nm Orleans, St. L. & C. B. Co. v. Valer, 58 Miss. 911. 
» The Guiding Star, 53 Fed. Rep. 986. 

• Blythe v. Denver & B. Q. B. Co. 11 L. R. A. 615, 15 Colo. 333. 



BUEDEN OF PROOF FOE LOSS UNDER EXCEPTIONS. 187 

marked " J. Weil & Bro.," but were entered by the station agent 
on the waybill, as " T. Weil & Co.," and on the consignee calling 
for the goods, he was informed that they had not arrived, and the 
mistake was not discovered until the goods were destroyed, with 
the depot, by fire, the carrier was liable for the loss.' 

Where a defect in the coupling prevented a car, containing 
merchandise shipped under an exception exempting the carrier 
from loss by fire, from being uncoupled, and the car and its eon- 
tents was therefore consumed, the carrier was refused the benefit 
of the exemption on the ground of negligence in the defective 
coupling.^ A railroad company is liable for cotton burned in its' 
car while entrusted to it for shipment, where the cotton would 
not have been destroyed but for the breaking of a drawbar in 
attempting to draw the train out of danger, although its bill of 
lading contains a valid clause exempting it from liability for loss 
by fire.= 



§ 4-9. Burden of Proof for Loss under Exceptions. 

The burden of proof is on the carrier to show that losses were 
occasioned by the " act of God " or the public enemy.* A carrier 
must bring the cause of the loss, by proof, within one of his ex- 
ceptions, in order to secure immunity." It is for the carrier to 
show any modification of the responsibility." 

Where the loss or injury to goods occurs, admittedly, through 
what is called an " act of God," and it is sought to hold the car- 
rier liable for negligently bringing the goods within the peril of 
this casualty, afiirmative proof must be introduced to sustain the 

' Meyer v. Chicago &N.W.II. Co. 24 Wis. 566, 1 Am. Rep. 207. See also, Ste- 
vens V. Boston & M. R. Co, 1 Gray, 277. 

« JEmpire Transp. Co. v. Wamsutta Oil B. S M. Co. 63 Pa. 14, 3 Am. Rep. 515 

^Deming v. Merchants Cotton Press & 8. Co. 13 L. E. A. 518, 90 Tenn. 306. 

^Winne v. Illinois Cent. R. Co. 31 Iowa, 583; Bansemer v. 2'oledo & W. B. Co. 
25 Ind. 434, 87 Am. Dec. 367. 

» Tygert Co. v. Tlie Charles P. SinnicJcson, 24 Fed. Rep. 304; TTie Charles J. 
Willard, 88 Fed. Rep. 759. 

•See also dwmberlain v. Western Transp. Co. 45 Barb. 218; The Niagara v. 
Cm-dea, 62 TJ. S. 21 How. 26, 16 L. ed. 47; Elliott v. Bossell, 10 Johns. 7, 6 
Am. Dec. 806; Bieltards v. London &B. C. B. Co. 7 C. B. 889. 



188 "act of god" — "perils of the sea." 

averment.' The preponderance of authority is in support of the 
rule that where it clearly appears that the loss is' occasioned by an 
accepted peril, the one alleging negligence, either in negligently 
bringing the goods within the peril, or negligently omitting a 
care which would have preserved them, notwithstanding the 
casualty, must produce proof in support of his averment." Where, 
by special contract, a carrier has limited its liability in certain 
cases, the burden of proof of negligence, where a loss occurs, is 
on the shipper." Where a loss occurs which is within an excep- 
tion of the bill of lading, it is the duty of the shipper, if he seeks 
a recovery, to show that the loss was the result of the carrier's 
negligence.' 

Negligence is a positive wrong and will not be presumed, though 
it may be inferred from circumstances. When the carrier brings, 
himself within the exception, there no longer exists any liability. 
Such liability can only be imposed by affirmative proof establish- 
ing negligence, which excludes the carrier from the benefit of 
the exception which has, prima facie, released him." In the ab- 
sence of proof of negligence, a carrier will not be responsible un- 
der a contract excusing it from loss by fire, excepting in case of 

• Louisville &N.R.C0. v. Oden, 80 Ala. 38; Western S. Co. v. Harwell, 91 Ala. 

340; Brown v. Adams Exp. Co. 15 W. Va. 812; Missouri Pae. B. Co. v. China, 

Mfg. Go. 79 Tex. 26; Oaines v. Union Transp. & Ins. Co. 28 Ohio St. 418; 

SlaUr V. South Carolina B. Co. 29 S. C. 96; Berry v. Cooper, 28 Ga. 543; 

Bhriver v. Sioux City & P. B. Co. 24 Minn. 506, 31 Am. Rep. 353; Chicago, 

St. L. & JT. 0. B. Co. V. Moss, 60 Miss. 1003, 45 Am. Rep. 428: Jiicago, B. & 

Q,. B. Co. V. Manning, 23 Neb. 552; Boies v. Hartford & N. H. B. Go. 37 

Conn. 272; Dunseth v. Wade, 3 III. 285, 2 Greenl. Ev. § 219. Examine, 

The Martello v. Willey, 153 U. S. 64, 38 L. ed. 637. 
' Clark V. Barnwell, 53 U. S. 12 How. 272, 13 L. ed. 985; Memphis & G. B. Co. 

V. Beeves. 77 U. S. 10 Wall. 176, 19 L. ed. 909; Western Tramp. Co. v. 

I)owner,'78 U. S. 11 Wall. 129, 20 L.ed. 160; Christie v. The Craigton, 41 

Fed. Rep. 62; Ohrloffv. BriscaU, L. R. 1 P. C. 231. 
'Kansas Pae. B. Co. v. Beynolds, 8 Kan. 639: Sager v. Portsmouth, S. di P. it 

E. B. Co. 31 Me, 228, 50 Am. Dec. 659; Westcott v. Fargo, 61 N. Y. 542, 19 

Am. Rep. 300; Patterson v. Clyde, 67 Pa. 500; Hubbard-^. Harnden Sep. Co. 

10 R. 1. 244; Smith v. North Carolina B. Co. 64 N. C. 235; Louisville & N. 

B. Co. V. Manchester Mills, 88 Tenn. 653. 
« Cotton V. Cleveland <& P. B. Co. 67 Pa. 211, 5 Am. Rep. 424; MitcheU v. United 

States Exp. Co. 46 Iowa, 214; Little Bock. M. B. & T. B. Co. v. Haiper, 44 

Ark. 208; Kdham v. The Kensington, 24 La. Ann. 100; Kansas Pae. B. Co. 

v. Beynolds, 8 Kan. 623; Witting v. St. Louis & S. F. B. Co. 28 Mo. App. 

103, 10 L. R. A. 602, 101 Mo. 631. 
^Witting v. St. Louis <Sb S. F. B. Co. supra. 



BUJBDEN OF PEOOff FOB LOSS UNDEB EXCEPTIONS. 189 

negligence, where the property is destroyed by fire through the 
act of a mob.' Where goods shipped under a bill of lading ex- 
empting the carrier from liability from loss by fire are burned in 
the car after delivery to the consignee, there can be no recovery 
from the carrier except upon proof of its negligence causing the 
fire." But, where the carrter refuses to advise the shipper of the 
•circumstances under which the loss occurs, it has been held that 
this refusal creates a presumption of negligence and wrong, and 
the fact that the loss occurred from an excepted cause, beino- 
fihown on the trial, is not sufficient in itself to relieve the carrier 
from this presumption which his own conduct has created, of 
.some act of negligence or omission on his part." Still, it may 
be said generally, that where the evidence placed before the 
jury leaves in doubt whether, the negligence of the carrier 
•contribtited to the injury, which, to some extent at least, re- 
-sulted from the " act of God," the carrier will not be held liable.* 
But under the exception, "unavoidable casualty," the carrier 
is bound to show the origin and cause of the fire which destroyed 
the goods, in order to bring himself within the exception. In it- 
self, fire is not considered an unavoidable danger, and the de- 
fendant is bound to show the origin or cause of the fire, to bring 
itself within the exception.^ The fact that goods shipped were 
burned while in transit on the cars of the carrier raises the pre- 
sumption that the fire and consequent loss were caused by the 
•carrier's negligence.' 

In excusing itself from liability, where such proof is required, 
the carrier must show that it has done what is necessary to be 
done, under all the circumstances; and it is not sufficient that it 
has done what is usual. Thus, where a quantity of potatoes were 
shipped in barrels to New York, and in the process of transpor- 
tation were delivered by the first carrier to another, — and while 

' Wertheimer v. Pennsylvania R. Oo. 17 Blatchf. 421. 

' Bt. Louis, I. M. & 8. B. Oo. v. Bone, 53 Ark. 26. 

'Pennsylvania R. Oo. v. Miller, 87 Pa, 395. 

^Muddle V. Stride, 9 Car. & P. 380. 

' Union Mut. Ins. Co. v. Indianapolis & O. R. Oo. 1 Disney, 480. 

■* Qidf, 0. & 8. F. R. Oo. V. Zimmerman, 81 Tex. 605. 



190 

in the custody of tlie latter and while on the deck of a barge in 
the North river, they were frozen, — the last carrier was held re- 
sponsible.' In the recent case of Bradley Fertilizer Co. v. The 
Edwin I. Morrison, decided by the Supreme Court of the United 
States, April 30, 1894 (153 U. S. 199, 38 L. ed. 688) Mr. Chief 
Justice Fuller, uses this language: "Assuming, as we must, that 
the damages awarded by the district court resulted from the loss 
of the cap and plate covering the bilge pump hole, the question 
to be determined is whether that loss was occasioned by a peril 
of the sea, or by the condition of that covering as it was when 
the vessel entered upon her voyage. If, through some defect or 
weakness, the plate and cap and the screws which secured it came 
off or if the cap and plate were so made or so fastened as to be 
liable to be knocked off by any ordinary blows from objects 
washed by the sea across the decks, then the vessel was not sea- 
worthy in that respect, and the loss could not be held to come 
within the exception of perils by the sea, although the vessel en- 
countered adverse winds and heavy weather ... as said on 
circuit by Mr. Justice Gray in The Caledonia, 43 Fed. Eep. 681, 
685, 'In every contract for the carriage of goods by sea, unless 
otherwise expressly stipulated, there is a warranty on the part of 
the ship-owner that the ship is seaworthy at the time of beginning 
her voyage, and not merely that he does not know her to be un- 
seaworthy, or that he has used his best efforts to make her sear 
worthy. The warranty is absolute that the ship is, or shall be, in 
fact seaworthy at that time, and does not depend on his knowl- 
edge or ignorance, his care or negligence.' 

In The Gl'enfruin, 10 Prob. Div. 103, the same rule is thus ex- 
pressed by Butt, J.: 'I have always understood the result of the 
cases from Lyon v. Mells, 5 East, 428, to Eopitoff v. Wilson, L. E. 
1 Q. B. Div. 377, to be that under his implied warranty of sea- 
worthiness, the shipowner contracts, not merely that he will do his 
best to make the ship reasonably fit, but that she shall really he 
reasonably fit for the voyage. Had these eases left any doubt in my 
mind, it would have been set at rest by the observations of some of 

' Wing V. New York & E. R. Co. 1 Hilt. 231. 



BURDEN OF PROOF FOR LOSS UNDER EXCEPTIONS. 191 

the peers in the opinion they delivered in the ease of Steel v. State 
Line SS. Co. L. E. 3 App. Cas. 72.' Perils of the sea were excepted 
. . . but the burden of proof was on the respondents to sbow that 
the vessel was in good condition and suitable for the voyage at its 
inception, and the exception did not exonerate them from liability 
for loss or damage from one of those perils to which their negli- 
gence, or that of their servants contributed." It was for them to 
show affirmatively the safety of the cap and plate; and that they 
were carried away by extraordinary contingencies, not reasonably 
to have been anticipated. "We do not understand from the find- 
ings that the severity of the weather encountered by the Morrison 
was anything more than was to be expected upon a voyage, such 
as this, down that coast and in the winter season, or that she was 
subjected to any greater danger than a vessel so heavily loaded, 
and with a hard cargo, might have anticipated under the circum- 
stances. The especial peril which seemed at one time to have 
threatened her safety, was directly attributable to the water taken 
aboard through the uncovered bilge punap hole, which rose from 
eighteen inches about 5 a. m. to seven feet at about 9 a. m., so 
that she was necessarily sinking deeper and deeper, while the ab- 
sorption by the guano added to the dead weight, .and increased 
the danger of her going down. 

If, however, the vessel had been so inspected as to establish 
her seaworthiness when she entered upon her voyage, then upon 
the presumption that that seaworthiness continued the conclusion 
reached might follow, but we are of opinion that precisely here 
respondents failed in their case. From the 6th and 7th findings 
it appears that the vessel was built in 1873; that the bilge pump 
hole had not been used for four or five years, if at all; and that 
the cap and plate were painted over whenever the waterway was 
painted; and, from the findings above quoted, that these holes 
were dangerous unless the caps and plates were kept tight and 
secure; that the hold of the wood might become weakened by the 
formation of verdigris about the brass screws; that tapping with 
a hammer or unscrewing the cap might have developed any inse- 

^ Liverpool & Q. W. Steam Go. v. Plienix Ins. Co. {"The Montana") 129 U. S. 
397, 438 [32: 788, 791]. 



192 "act of god" — "perils of the sea." 

curity, if there were any; that no such tests were applied; but 
that the caps and plates appeared all right to visual observation. 
But this was not enough to establish the fact of security; and the 
12th finding, that examination by the eye is such that a reason- 
ably prudent master or owner might be expected to give such 
coverings in order to determine their seaworthiness, does not give 
it that effect. The obligation rested on the owners to make such 
inspection as would ascertain that the caps and plates were se- 
oure. Their warranty that the vessel was seaworthy in fact "did 
not depend on their knowledge or ignorance, their care or negli- 
gence." The burden was upon them to show seaworthiness, and 
if they did not do so, they failed to sustain that burden, even 
though owners are in the habit of not using the precautions which 
would demonstrate the fact. In relying upon external appear- 
ances in place of known tests, respondents took the risk of their 
inability to satisfactorily prove the safety of the cap and plate if 
loss occurred through their displacement. The court are unwill- 
ing by approving resort to mere conjecture as to the cause of the 
disappearance of this cap and plate to relax the important and 
salutary rule in respect of seaworthiness.' 

' The Beeside, 2 Sumn. 567, 574; Douglas v. ScmgaU, 4 Dow. P. C. 269. 



CHAPTEK VIL 

FREIGHT CHARGES REGULATED BY VALUE OP ARTICLE. 

§ 50. Charges and Liability Proportioned to Value. 

§ 51. Tariff Value and Liability Must be in Reasonable Proportion. 

§ 52. Tariff Based on Value Without Stating Limit of Liability. 

% 53. Fraud or Imposition Respecting Value and Estoppel. 

§ 54. Carrier May Recover Where Value of Goods Concealed. 

§ 55. When Limit Applies to each Article. 

§ 56. Statutory Provisions Respecting Statement of Value. 

;§ 57. Limiting Time for Commencing Action. 

a. Stipulation Regarding Notice to Consignee. 

% 50. Charges and Liability Proportioned to 

Value. 

To what extent is a common carrier entitled to contract in lim- 
itation of his common law liability ? This is a question, in so far 
as it applies to carriers by land, upon which there has been great 
contrariety of opinion in different courts, the earlier cases holding 
that it was against public policy, and hence impossible, for com- 
mon carriers to guard themselves by any stipulations whatever 
against liability from loss arising from any other cause than the 
act of God or the public enemy. While the later cases have ma- 
terially modified this rule in the carrier's favor, and while he 
could not become either an ordinary bailee or a private carrier, 
permitted him not only to contract so as to change the extent of 
his liability as fixed by the common law, but such contracts — 
within the reasonable limit recognized by modern decisions — when 
made with his employer, became almost entirely the measure of 
his responsibility, in case of loss, although they do not change his 
status as a common carrier nor his duty as such in any other re- 
gard, for nothing the carrier can do will change his actual position 
SB a common .carrier, in his relation to his employer. But all 
13 193 



194 FREIGHT CHARGES REGULATED BY VALUE OF ARTICLE. 

stipulations in contracts by carriers amounting to a denial or re- 
pudiation of the duties which are of the very essence of their em- 
ployment will be regarded as unreasonable, contrary to public 
policy, and void.' 

The decided weight of the authorities, as well as the better rea^ 
son, favors the rule that a common carrier may, to a great extent 
at least, contract in limitation of his common law liability, " pro- 
vided," as stated in Southern Exp. Co. v. CcMweU, 88 U. S. 21 
Wall. 264, 22 L. ed. 556, "the limitation be such as the law caa 
recognize as reasonable and not inconsistent with sound public 
policy." The shipper and the common carrier are thus authorized 
to enter into an express agreement, within certain limits, as to- 
the terms upon which the latter will transport and convey for the 
former a certain article of personal property of an agreed value 
to a designated place for an agreed price. The recognition of the 
validity of such an agreement is not violative of any sound rule 
of public policy. Indeed, public policy requires the upholding of 
such an agreement as tending to the honest disclosure of value on 
the part of the shipper, and the exercise of that degree of dili- 
gence on the part of the carrier which is commensurate with the 
value of the particular article conveyed, and the price paid for 
such conveyance. To illustrate : A has a box of tinware of the 
value of five dollars, which be wishes to send to Boston by B, a 
common carrier. The box is delivered to B, under an agreement 
that no sum beyond $50 shall be collected in case of loss, at which 

^Zouismlle, If. A. & 0. S. Oo. v. Faylor, 126 Ind. 186; The Hugo, 57 Fed 
Rep. 403; Galveston. H. & 8. A. JR. Co. v. Ball, 80 Tex. 603; BoeMv. Chi- 
cago, M. & St. P. B. Oo. 44 Minn. 191; Davidson v. Chraham, 3 Ohio St. 
131; New York Cent. B. Oo. v. Loekwood, 84 U. 8. 17 Wall. 857, 21 L.ed. 
627; Eooper v. Wells, Fargo & Co. 37 Cal. 11, 85 Am. Dec. 211; Missouri, 
K. & T. B. Co. V. Qraws (Tex. App.) May 3, 1890; Fwt TToriA & D. C. 
B. Co. V. Cheathouse, 82 Tex. 104; Christenson v. American Eacp. Co. 15 
Minn. 270, 2 Am. Rep. 122; Atchison, T. & S. F. B Co. v. Tem^e, 13 L. R. 
A. 362, 47 Kan. 7; Durgin v. American Exp. Co. (N. H.) 9 L. R. A. 453; 
Bank of Kentucky v. Adams Exp. Oo. 93 U. S. 174, 180, 23 L. ed. 872, 875; 
Sirby v. Adams Exp. Co. 2 Mo. App. 369; Missouri Pae. B. Co. v. Smitk, 
84 Tex. 348. But see EUiott v. New York Gent. & H. R. B. Go. 33 N. 
Y. 8. R. 861; Kenny v. New York Cent. & H. B. B. Co. 125 K. Y. 423; 
American Exp. Co. v. Sands. 55 Pa. 140; Orogan v. Adams Exp. Co. 114 
Pa. 523, 60 Am. Rep. 360; Johnson v. Alabama d> V. B. Co. 69 Miss. 191; 
Louisville & N. B. Go. v. Owen, 14 Ky. L. Rep. 118; Alabama 0. S.B. Co. 
V. Thomas, 83 Ala. 343. 



OHABGBS AND LIABILITY PBOPOETIONED TO VALUE. 195 

sum the article is valued, unless another value is expressly fixed in 
the agreement, no information being given as to the contents of 
said box. What is the degree of care which B is expected to ex- 
ercise in the transportation of this box ? Manifestly that degree 
of care which is commensurate with a box whose value does not 
exceed that stipulated in the contract, to wit, $50. B's maximum 
liability in ease of loss being known to him beforehand, he will 
naturally exercise such a degree of care as would ordinarily insure 
the safe delivery at its destination of an article of this value. 
Moreover, he is only paid for assuming a risk to the extent of $50, 
and he has graduated his charge for carriage accordingly. Such 
an agreement certainly strikes one as eminently fair and reason- 
able. If either party is deceived or misled thereby. The shipper 
on the one hand is insured of the safe delivery of his goods at 
their destination, or their value in money, in case of loss, and the 
carrier, on the other hand, proportions his care to the liability 
which he has assumed. Both parties thus act understandingly 
and intelligently. There is little opportunity for fraud on the 
part of the shipper, and none for overcharge on the part of the 
carrier. To illustrate again : A wishes to send a box of diamonds, 
valued at $500, to Boston, Mass., and employs B, a common car- 
rier, to transport the same thence under an express agreement 
which stipulates, among other things, that the value thereof is 
$50, the charge for expressage being based upon that valuation. 
As in the former case, B assumes, and has the right to assume, 
that the value of this package does not exceed the sum of $50, 
and he therefore proportions his care accordingly. The package 
is lost by B, whereupon A seeks to hold him liable for the actual 
value of said package, which was many times larger than that 
agreed upon. B was only paid for the care and transportation of 
a package of the value of $50, and the degree of care which he 
used was sufficient for a transaction of that sort, while it was quite 
insufiBcient for a transaction of the sort which he was induced by 
misrepresentation on the part of A to undertake. Had he been 
apprised of the actual value of this package, he would have ex- 
ercised that degree of care which was commensurate therewith, 
and would also have graduated his charge accordingly. To allow 



lyd FEEIGHT CHAEGES EEGULATED BY VALUE OF AKTICLE, 

A to repudiate his contract with B in case of loss, and hold the 
latter to his strict common law liability, under the circumstances, 
is little less than to permit him to perpetrate a fraud under the 
guise of enforcing a legal right. This illustration fairly shows 
the unreasonableness and injustice of any other rule of Kability. 
But the main contention adverse to this position is that a common 
carrier cannot limit its liability for loss of goods occasioned by its 
own negligence, and, in support thereof, several cases may be 
cited. Thus, it is said that a shipper may agree, in consideration 
of special rates or privileges, on values in case of loss or injury, 
if the agreed values are not unreasonable or arbitrary and no 
agreement is made exempting the carrier from the consequences 
of negligence or bad faith.' And that a stipulation in a freight 
receipt limiting the amount for which the carrier will be liable, 
can exempt the carrier from a greater responsibility only when a 
loss occurs without the carrier's negligence or fault.* A con- 
tract between a carrier and an importer, providing that the 
liability of the carrier for damage to valuable livestock shall 
not exceed $100 for each animal except by special agreement, is 
void as regards damages to the animals shipped, by the carrier's 
negligence, and cannot be sustained as a valuation placed upon 
the property," and a decision in a court of common pleas in Ohio 
seems to deny that any incidental qualification of the carrier's 
negligence is permissible, declaring that an agreed valuation of 
property to be transported by a public carrier, forming the basis 
for freight charges under a stipulation that no more than such 
valuation shall be recovered by the shipper in case of loss or in- 
jury to the property, even if caused by the negligence of the car- 
rier, is not binding upon the shipper, and cannot defeat his right 
to recover the market value of the property at the time and place 
of shipment upon its loss by the carrier's negligence.* There are 

' Georgia Poo. B. Co. v. Hugluvrt, 90 Ala. 36. 

« Southern Exp. Co. v. Seide, 67 Miss. 609. See also Southern Pae. B. Go. v. 
Maddox, 75 Tex. 300; St. Louis, A. & T. B. Co. v. BobUm (Tex. App.) 
Dec. 14, 1889; Doan v. St. Louis, K. & N. B. Co. 38 Mo. App. 408; The 
City of Jforwich, 4 Ben. 271. 

» Mlh V. St. Louis, K. & N.W. B. Go. 53 Fed. Rep. 903. 

* Ambach v. Baltimore <fc 0. B. Co. 30 Ohio L. J. 111. 



CHARGES AND LIABILITY PKOPOETIONED TO VALUE. 197 

many authorities that state the general rule that a carrier's liabil- 
ity for negligence cannot be limited by a contract made directly 
for that purpose.' 

Unquestionably the better rule and the one sustained by the 
best reason and authority, is that it is not competent for a common 
carrier to stipulate for exemption from loss occasioned by his own 
negligence or that of his servants. Such an exception is not just 
and reasonable in the eye of the law. Eor is it necessary to ad- 
mit such an exception, for a stipulation, fixing the value of live- 
stock in a carrier's contract, if fairly made as the basis of the rate 
of compensation for the carrier's services and risks, will constitute 
the limit of recovery for loss of the stock, although it is caused 
by the carrier's negligence ; but such limitation is invalid in case 
of negligence, if its purpose was merely to limit the amount of 
the carrier's liability;" a carrier cannot fraudulently exempt 
itself by contract from paying the full value of goods destroyed 
or lost by its negligence, — as, by stipulating in a contract of ship- 
ment that the amount of recovery for a stallion worth several 
thousand dollars shall not exceed $200.' For, as stated by Blatch- 
ford, J., in Sart v. Pennsylvania R. Co. 112 U. S. 331, 340, 28 
L. ed. 717, 721, " The limitation as to value has no tendency to 
exempt from liability for negligence. It does not induce want of 
care. It exacts from the carriers the measure of care due to 
the value agreed on. The carrier is bound to respond in that 
value for any negligence. The compensation for carriage is 
based on that value. The shipper is estopped from saying that 
the value is greater. The articles have no greater value for the 
purposes of the contract of transportation between the parties 
to that contract. The carrier must respond for negligence up to 
that value. It is just and reasonable that such a contract fairly 

' Orogan v. Adcmg Exp. Co. 114 Pa. 533, 60 Am. Rep. 360; Newborn v. Just, 2 
Oar. & P. 76; New Jersey Stewm Na/e. Go. v. MerehanU Bank of Boston, 47 
TJ. S. 6 How. 344, 12 L. ed. 465; Bnidsr v. Adams Exp. Co. 63 Mo, 876, 383; 
Union Exp. Co. v. Oraham, 26 Ohio St. 595, 598; Michigan Cent. R. Co. v. 
Hale, 6 Mich. 248; Western Tramp. Co. v. Newhall, 24 111. 466, 76 Am. Dec. 
760; Graham v. Davis, 4 Ohio St. 863, 62 Am. Dec. 385; Muser v. Ameri- 
can Exp. Co. 1 Fed. Kep. 882; Southern Exp. Co. v. Seide, 67 Miss. 609. 

^Alair v. Northern Pae. B. Co. 19 L. R. A. 764, 53 Minn. 160. 

« Baughman v. LouismUe, E. & Bt. L. B. Co. 14 Ky. L. Rep. 268. 



198 TEEIGHT OHAEGES EBGULATED BY VALUE OF AETIOLB. 

entered into, and where there is no deceit practiced on the ship- 
per, should be upheld. There is no violation of public policy. 
On the contrary it would be unjust and unreasonable, and would 
be repugnant to the soundest principles of fair dealing, and of 
the freedom of contracting, and thus in conflict with pubhc pol- 
icy, if a shipper should be allowed to reap the benefit of the con- 
tract if there is no loss, and to repudiate it in case of loss." The 
case from which we have thus quoted was one in which the loss 
happened from the negligence of the defendant. The court 
had previously declared in the same case (page 338) that "it 
is the law of this court that a common carrier may by special 
contract limit his common law liability ; but he cannot stipulate 
for exemption from the consequences of his own negligence, or 
that of his servants," thus expressly aflSrming the doctrine previ- 
ously laid down by that learned court in New Jersey Steam, Nam. 
Co. V. Merchants Bank of Boston, 47 U. S. 6 How. 344, 12 L. 
ed. 46S; York. Mfg. Co. v. Illinois Cent. E. Co. 70 U. S. 3 "Wall. 
107, 18 L. ed. 170; New York Cent. R. Co. v. Zoekwood, 84 U. 
S. 17 Wall. 357, 21 L. ed. 627; Southern Exp. Co. v. Caldwell, 
88 U. S. 21 Wall. 264, 22 L. ed. 556; Ogdensburg <& L. G. R. 
Co. V. Pratt, 89 TJ. S. 22 Wall. 123, 22 L. ed. 827; Bank of Ken- 
tucky V. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872; Gramd 
Trunk R. Co. v. Stevens, 95 U. S. 655, 24 L. ed. 635; The Lyd- 
ian Monarch, 23 Fed. Eep. 2. But although the loss did occur 
from the negligence of the defendant, the court upheld the 
agreement as to the value of the property on the ground, as 
forcibly stated in the opinion, that there is no justice in allow- 
ing the shipper to be paid a large value for an article which 
he has induced the carrier to take at a low rate of freight on 
the assertion and agreement that its value is a less sum than tha; 
claimed after a loss. It is just to hold the shipper to his agree- 
ment, fairly made, as to value, even where the loss or injury has 
occurred through the negligence of the carrier. 

A stipulation of value, if fairly made as the basis of the rate of 
carriage for the risk involved and the care exacted, will Hmit the 
recovery, although it is caused by the carrier's negligence ; but if 
its purpose was merely to limit the amount of the carrier's liabil- 



OHAEGES AND LIABILITY PKOPOETIONED TO VALUE. 199 

ity for his negligence, it is invalid.' The effect of the agreement 
is to cheapen the freight and secure the carriage, if there is no 
loss ; and the effect of disregarding the agreement, after a loss, is 
to expose the carrier to a greater risk than the parties intended 
he should assume. 

The agreement as to value, in such case, stands as if the carrier 
had asked the value of the property, and had been told by the 
plaintiff the sum inserted in the contract. The rule laid down in 
Orogan v. Adams Exp. Co. 114 Pa. 523, 60 Am. Rep. 360, that 
" an express company cannot by special contract or special accept- 
ance limit its liability for loss of goods, resulting from the negli- 
gence of the company or its servants," is not in conflict with the 
case just quoted from upon this point, and it seems that the 
learned court which rendered this decision, misapprehended the 
ruling in Hart v. Pennsylvania E. Co. 112 U. S. 331, 28 L. ed. 
717, in declaring that that case had decided that a common car- 
rier could limit its liability even as against its own negligence. 
The real distinction between these two cases is not in the rule 
adopted by each, but in the application thereof. In the Grogan 
case the court holds that an agreement as to value in case of loss 
by negligence is not binding on the parties, on the ground that 
to hold the contrary would be to uphold the carrier in stipulating 
against his own negligence, although it holds at the same time 
that an agreement as to value " would be a protection against lia- 
bility beyond that amount except for negligence." In this re- 
spect the. court followed the case of American Exj>. Co. y. Sands, 
55 Pa. 140, and Farnhami v. Camden dc A. JR. Co. 55 Pa. 63, 
that is to say, these cases hold that an agreement as to value in 
case of loss is valid and binding, excepting only where the loss is 
occasioned by the negligence of the common carrier or his servant ; 
while in the Hart case, before referred to, the court holds that 
the agreement as to value is also valid and binding where the loss 
is occasioned by the negligence of the common carrier, and that 
fio to hold " has no tendency to exempt from liability for negli- 
gence." The reasoning in the last named case is cogent and con- 

' Alair v. Northern Pac. B. Co. 19 L. R. A. 764, 53 Minn. 160. 



200 FREIGHT CHARGES REGULATED BT VALUE OF ARTICLE. 

vincing, and will be generally accepted in preference to the au- 
thorities which hold to the contrary.' 

In a court which had followed the Grogan case to some extent, 
a recent decision is to the effect that while a carrier cannot wholly 
exempt himself from liability for negligence, he may, by special 
contract fairly made with the shipper and signed by him in con- 
sideration of a reduced freight charge, restrict his liability for 
loss, even through his prima facie negligence, to a valuation fixed 
by the agreement." Where a shipping receipt, signed by the car- 
rier's agent only, limited the amount for which damages would 
be paid, while a special agreement under seal signed by the ship- 
per was void as against public policy because attempting to re- 
lease the carrier from all liability, if both papers constitute but 
one contract both are tainted by the illegality, and are therefore 
void." And to shield the carrier in case of his neglect, that cause 
must be expressly stated or distinctly expressed. A clause in a 
bill of lading which contains a stipulation as to the value of the 
property and a contract to carry it at reduced rates, that such 
valuation shall cover loss or damage from "any cause whatever," 
does not limit the amount of recovery to such valuation, where 
the loss is due to the carrier's negligence.* But the rate of 
charges as shown by the waybill for an article requiring special 
care, if it does not expressly contract to excuse the carrier from 
the exercise of the care required by law, although it is the rate 
for transportation by ordinary cars, will not limit the care to be 
exercised by the carrier or restrict its liability.' General words 
limiting the amount of liability wiU not extend to losses occa- 

' See also Opperiheimer v. Vmted States Exp. Co. 69 111. 62, 18 Am. Rep. 596; 
Kallman v. United States Mxp. Go. 3 Kan. 205; Brehme v. Adams Exp. Go. 3d 
Md. 328; Snider v. Adams Exp. Co. 63 Mo. 376; Levy v. Southern Exp. Co. 
4 S. C. 234; Boorman v. American Exp. Co. 21 Wis. 154; BaUou v. Earle, 
14 L. R. A. 433, 17 R. I. 441. 

' Zouch V. Chesapeake & 0. R. Co. 17 L. R. A. 116, 86 W. Va. 524. 

'Woodburn v. Cincinnati, N. 0. <& T. P. B. Co. 40 Fed. Rep. 731. 

< Weillej- V. Pennsylvania B. Co. 134 Pa. BID; Westcott v. Fargo, 61 N. T. 542, 
19 Am. Rep. 300; B'ack v. Goodrich, 55 Wis. 319, 42 Am. Rep. 713; /»- 
diana/polis & G. B. Co. v. Cox. 29 Ind. 360, 95 Am. Dec. 640; Vroman v. 
American Merchants U. Exp. Co. 5 Thomp. & C. 22. 

' Beard v. lUinois Cent. B. Co. 7 L. R. A. 280, 79 Iowa, 518. 



TARIFF VALUE AND LIABILITY MUST BE IN PBOPOKTION. 201 

sioned by negligence. Such a limitation as to negligence must 
be clear and explicit.' 

§ 51. Tariff Value and Liatility must he in Rea- 
sonable Proportion. 

There must not be an unreasonable difference between the 
charges made with and without the limitation of liability." A 
consideration such as a reduction of rates or some other advantage 
or benefit is necessary to support a special agreement limiting the 
amount of liability in case of negligence." A stipulation placing 
an agreed valuation upon goods delivered to an express company 
for transportation, which is inserted in the shipping receipt and 
is designed to fix the extent of the company's liability in case the 
goods are lost, is binding on the shipper if he understands it& 
purpose and knows that the freight charges are proportioned to 
the nature and extent of the risk; and the fact that neither the 
value of the goods nor the race of charges is asked in a particular 
ease is immaterial.'' Where the receipt or contract of a common 
carrier contains a stipulation that the company is not to be held 
hable for any loss or damage, except as forwarders only, nor for 
any loss or damage of any box, package or thing for over $50, 
unless the just and true value thereof is stated in such receipt, 
and where the receipt fails to show any value of the box or goods 
shipped, the receipt or contract, if fdrly and voluntarily entered 
into, wiU be upheld as a proper and lawful mode of seciiring a 
-due proportion between the amount for which the carrier may 
be responsible and the freight he receives, when the loss or injury 
to the box or goods carried results only from slight, common, or 
ordinary negligence on the part of the carrier, its agents or serv- 
ants.' A limitation of amount of liability is valid also in respect 
to baggage where extra compensation is required for greater 

' Black V. Goodrich Transp. Go. and Westeott v. Fargo, supra. See, ante, § 16. 

' Harrison v. London, B. & 8. 0. R. Go. 3 Best & S. 123. 

» Bonn V. St. Louis, K. & N. W. B. Go. 38 Mo. App. 408; Adams Exp. Oo. v. 

fforra, 120 Ind. 73; McFadden, v. Missouri Pac. R. Go. 92 Mo. 343. 
*Durgin v. American Exp. Go. (N. H.) 9 L. R. A. 453. 
» Pacific mep. Co. v. Foley, 12 L. E. A. 799, 46 Kan. 457. 



202 FREIGHT CHAKGES EEGULATED BY VALUE OF AETICLE. 

value.' But a passenger who pays extra freight for a package 
after disclosing the contents to the agent is not limited in recov- 
ering for the loss of the same, by the provisions in her ticket that 
no more than £5 can be recovered for the loss of baggage.' A 
carrier may contract for exemption from liability for freight be- 
yond a stipulated sum unless its just and true value is stated.' 
According to the decided weight of modern authority, a vaUd 
contract limiting the liability of a carrier to a certain agreed 
valuation of the property carried, may be made where it is just and 
reasonable in its terms and a reduced rate of freight is made the 
consideration for it.' A shipper of goods who by special contract 
agrees upon a value to be placed upon them in case of loss, and in 
consideration thereof obtains a reduced rate of transportation, is 
bound by his agreement, and is estopped from showing that the 
real value of the goods was greater than that specified in the con- 
tract.' A limitation of the liability of a carrier, to a specified 
amount, for property carried at a reduced rate, is valid.* A stip- 
ulation in the contract of shipment by the railroad company, that 
in the event of the loss or damage to goods the company will only 
be responsible for their value at the place and time of shipment, 
is just and reasonable.' A limitation of liability as to amount in 

> JTeto York Cent. & H. B. R. Co. v. Frdloff, 100 U. 8. 24, 25 L. ed. 531; Eop- 
kinsY. Wesicoit, 6 Blalchf . 64. 

' Wasserberg v. Cunard Steamship Co. (N. Y. City Ct.) 8 Misc. 78, 58 N. T. 
S. R. 838. 

» Boorman v. American Exp. Co. 21 Wis. 154. 

*BuihmMnd & D. R. Co. v. Payne,' ^ L. R. A. 849, 86 Va. 481 : LouimiCle <6 N. 
M. Co. V. Mnncheiter Mills, 88 Tenn. 653; Louisville & N. li. Go. v. Sherrod, 
84 Ala. 178; Hart v. Pennsylvania R. Go. 112 U. S. 331, 28 L. ed. 717; 
Bradford v. Gurmrd 88. Co. 147 Mass. 58 ; Berger v. Dinsmare, 51 N. Y. 
166, 10 Am. Rep. 575; Brown v. Wabash, St. L. & P. R. Co. 18 Mo. App. 
568; 8i. l/mis, I. M. & 8. R. Go. v. WeaUy, 50 Ark. 897; 8t. Louis, I. M. & 
8. R Co. .V. Lesser, 46 Ark. 236; 8quire v. New York Cent. R. Co. 98 Ma.s8. 
239, 93 Am. Dec. 162; Earnest v. Southern Exp. Co. 1 Woods, 573; Murnr 
V. Holland, 17Blatchf. 412; Muser v. Amei-ican Exp. Co. 1 Fed. Rep. 382; 
Zimmer v. New York Cent. <£ H. R. R. Co. 42 N. Y. S. R. 63; Steers v. Liv- 
erpool, N. Y. & P. 88. Go. 57 N. Y. 1, 15 Am. Rep. 453; Nicholson v. Wit- 
Ian, 5 East, 507; Itett v. Mountain, 4 East, 371; Clay v. WiUan, 1 H. Bl. 
298; M'Cance v. London & N. W. R. Co. 7 Hurlst. & N. 477; Kallman v. 
Umted States Exp. Go. 8 Kan. 205. 

• Johnstone v. Richmond & D. R. Go. 39 8. C. 55. 

*Zirrwur v. Neu) York Gent, d K R. R. Co. 42 N. Y. S. R. 08. 

^ Louisville & N. R. Co. v. Oden, 80 Ala. 88; PluBnix Ins. Co. v. Erie & W. 
Tramp. Go. 117 U. S. 314, 322, 29 L. ed. 873, 878. 



TARIFF VALUE AND LIABILITY MUST BE IN PEOPOETION. 2U3 

case of loss of the goods shipped is valid if agreed to by the ship- 
per.' 

A common carrier may by special contract limit his liability for 
loss of goods to an amount agreed on as the value, in consideration 
of a reduced rate of freight, provided no extortion or coercion is 
practiced or threatened, and no undue advantage taken of the 
shipper; but such special contract does not protect the carrier 
against liability for fraud, nor for intentional, wanton, or reckless 
negligence." That a fair bona fide valuation of goods as a basis 
for the charges of a carrier is binding on the shipper, is decided 
in many cases, and no well considered case is to the contrary.' A 
limitation of the recovery to the amount of the invoice or de- 
clared value of the goods, is reasonable, and may be enforced al- 
though the loss was occasioned by negligence.* Where the car- 
rier, by contract, limits his liability to a certain amount, unless 
the value of goods is stated at time of shipment, silence as to 
value on part of shipper, although no inquiry is made by carrier, 
and no artifice used to deceive him or conceal the value, will 
operate to relieve him from liability for ordinary negligence be- 
yond the amount limited.' 

It is proper for the carrier to make inquiry as to the value of 
the goods delivered to him, and the consignor must answer at his 
peril ; and if such inquiry is not made, and the goods are received 
at such valuation as is asked with reference to its bulk, weight 

^Fayv. The New World, 1 Cal. 348; Lawrence v. New Y(yrk,P.&B. R. Co. 36 

Conn. 63; Chicago, B. I. &P. B. Co. v. Harmon, 17 111. App. 640; Brown v. 

Wabash, St. L. & P. B. Co. 18 Mo. App. 568; Newstadt v. Adams, 5 Duer, 

43; Moria/rty v Harnden's Express, 1 Daly, 237; Belger v. Dinsmore, 51 N. 

T. 166, 10 Am. Rep. 575; Elkinav. Empire Transp. Co. 81* Pa. 315. 
' LouisvUle & N B. Co. v. Bhm-od, 84 Ala. 178. 
^ Newburger v. Howard & Co's Express, 6 Phila. 174; South & North Ala. B. 

Co. V. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Durgin v. American Exvress 

Co. (N. H.) 9 L. R. A. 453; Louisville & N B. Co. v. Oden, 80 Ala. 38;"ffiK 

V. Boston, H. T. & W.B. Co. 144 Mass. 284; Harmy v. Terre Haute &L R. 

Co. 74 Mo. 588; Gravesr. Lake Shore & M. 3. B. Co. 137 Mass. 33, 50 Am. 

Rep. 282. 
*TheLydian Monarch, 23 Fed. Rep. 298; TheHadji, 18 Fed. Rep. 459; Alair 

V. Northern Pac. B. Co. 19 L. R. A. 764, 53 Minn. 160. 
*Magmn v. Dinmwre, 70 N. Y. 410, 26 Am. Rep. 608, affirming 60 N. T. 35, 

20 Am. Rep. 442, 50 How. Pr. 457. See, also, Belger v. Dinsmore, 51 N. 

Y. 166, 10 Am. Rep. 575; Steers v. Liverpool, N. T. & P. SS. Co. 57 N. Y. 

1; Landsberg v. Dinsmore, 4 Daly, 490. 



204 FEEIGHT CHARGES EEaULATED BY VALUE OP AETICLE. 

or external appearance, the carrier has been held liable for 
the loss, irrespective of its value.' ISToncompliance with condi- 
tions in a shipping receipt, that the carrier will not be liable for 
loss of statuary unless a memorandum in writing stating the char- 
acter and value of the articles is delivered by the shipper and an 
extra compensation paid, and that marble, unless otherwise ex- 
pressly agreed, is taken at owner's risk, will not relieve the car- 
rier from liability for negligence, if he is informed before ship- 
ment of the special and unusual value of the goods shipped.' If, 
after the refusal to state the value, the carrier does not insist on 
a higher rate, his liability may, if the circiimstances justify it, be 
treated as a waiver, and his liability treated as at common law.' 
Thus, a stipulation limiting the amount of liability did not pre- 
vent recovery for the full value in case of loss by negligence, 
where the shipper refused to state the value, although a larger 
charge would have been made if he had stated it.* An agree- 
ment in a bill of lading that, in case of loss of the goods shipped, 
damages shall be recovered at the rate of $5 per 100 pounds, 
without reference to the actual value of the goods, is both unrea- 
sonable and arbitrary and is not binding on the shipper.' In 
other cases which also deny the validity of such contracts, the lim- 
itation did not purport to be based on the value of the property." 
An arbitrary valuation put upon goods by the carrier, without any 
request or any valuable consideration will not be binding on the 
shipper.' So an amount inserted in a bill of lading by the car- 
rier's agent without any questions as to the value of the property, 

1 Gorfiam Mfg. Co. v. Fargo, 45 How. Pr. 90, 3 Jones & S. 434. 

2 Bathbone v. MwTork Cent. & H. R. R. Co. 140 N. T. 48. 
s Behreno v. Great Northern R. Co. 31 L. J. Exch. 299. 

* Conmer v. Pacific Exp. Co. 40 Mo. App. 31. 

» Georgia Pac. B. Co. v. HugMrt, 90 Ala. 36; Lang v. Pennsylvania S. Co. 154 
Pa. 343. 

« Moulton Y. St. Paul, M. <& M. R. Co. 31 Minn. 85, 47 Am. Rep. 781; Southern 
Mxp. Co. V. Moon, 39 Miss. 832; Chicago, St. L. <fe N. 0. R. Co. v. AbeU, 60 
Miss. 1017; Louimlle & N. B. Co. v. Wi/nn, SS Tenn. 330; Georgia Pac. R 
Co. V. Bughart, 90 Ala. 36; Levy v. Southern Exp. Co. 4 S. 0. 234. 

' Bisenfeld v. Pewia, D. <fi E. B. Co. 103 Ind. 121, 53 Am. Rep. 500; Bavgh- 
man v. Lovisville, E. & St. L. R. Co. 14 Ky. L. Rep. 268. 



TAEIFP VALUE AND LIABILITY MUST BE IN PEOPOETION. 205 

and without notice to the shipper of any difierence in rates in 
•case of such limitation, was held not to limit the carrier's liability.' 
The rule and the reason thereof is well stated in Dv/rgin v. 
Amencam, Miip. Co. (IST. H.) 9 L. R. A. 453. Defendant's agent 
Teceived from the plaintiff a box weighing thirty-seven pounds, 
and containing silverware of the value of $680.20, to be carried 
by the defendants to the city of New Tork, and there delivered 
"to Theodore B. Starr. There was in the plaintiff's possession a 
book of blank receipts furnished him by the defendants, to be 
filled up and signed by the defendants on the delivery of the 
goods to them for carriage. At the time of the reception of the 
box in question, one of these receipts was signed and delivered to 
the plaintiff by the defendant's agent. The printed portion of 
the receipt contains the following, among other stipulations : " It 
is further agreed that this company is not to be held liable or re- 
sponsible for any loss of or damage to said property, or any part 
"thereof, from any cause whatever, unless, in every case, the said 
loss or damage be proved to have occurred from the fraud or 
gross negligence of said company, or their servants ; nor in any 
■event shall this company be held liable or responsible, nor shall 
any demand be made upon them, beyond the sum of $50, at which 
sum said property is hereby valued, unless the just and true value 
thereof is stated herein." The value of the box and contents was 
not stated, nor was any inquiry concerning its value made by the 
■defendants or their agent, and neither the defendants nor their 
agent had knowledge of the value thereof. The sum to be charged 
for carrying the box was not mentioned, and no charge therefor 
was paid by the plaintiff, it being understood that the express 
charges were to be paid by the consignee upon delivery. The 
■goods were never delivered, but were lost or stolen. The price 
fixed by the defendants for the carriage of this box was 75 cents, 
but the plaintiff was not informed what the charge in this partic- 
ular instance would be. If the actual value of the goods had been 
stated, the regular express charge would have been $3.75. The 
jplaintiff is, and for many years has been, a manufacturer of and 

• Chicago & N. W. Co. v. CTMpman, 8 L. R. A. 508, 133 111. 96. 



206 FEEIGHT CHARGES BEGULATED BY VALUE OF ARTICLE. 

dealer in silverware, at Concord, and during that time the defenc'- 
ant company has received from him, to be carried by express, 
thousands of packages and boxes, the value of which in many in- 
stances was more than $50, giving receipts like that given on this 
occasion, in which the value of the box or package was not in- 
serted, and concerning which no information was given or inquiry 
made. The receipt signed by the defendant's agent and servant 
at the time of the delivery of the package was taken by the plain- 
tiff as evidence of the fact "and purpose of its delivery, and of the 
terms and conditions on which the defendants received it. The 
receipt was contained in a book of blank receipts previously fur- 
nished by the defendants for the use of the plaintiff, and the writ 
ten portions were in his handwriting, and the court declared that 
the law presumes that the contents were known to him. The 
plaintiff understood it to be the shipping contract, and, in the ab- 
sence of fraud, by receiving it without ob jection,he was conclusively 
presumed to assent to its conditions.' It is recognized that it is 
now generally held that the responsibility imposed on the carrier 
of goods by the common law may be restricted and qualified by 
express stipulation, where such stipulation is just and reasonable ; 
and a stipulation that the carrier shall be informed as to the value 
of the goods delivered to him for carriage, as affecting the risk, 
and the degree of care required, is clearly reasonable. 

In Moses v. Boston cfe M. R. Go. 34 IST. H. 90, while adhering 
to the rule that the legal responsibility of a common carrier can- 
not be discharged by a public notice, the court says: "We do 
not mean to hold that there are no cases in which the carrier may, 
by notice, define and qualify his responsibility. It may be quite 
reasonable that he should insist on proper information as to the 
value of the article which he carries. This would not seem to be 
any infringement upon the principle of the ancient rule. He 
must have a right to know what it is that he undertakes to carry, 
and the amount and extent of his risk. "We can see nothing that 
ought to prevent him from requiring notice of the value of the 
commodity delivered to him, when, from its nature, or the shape 

^ Merrill T. Amei-iean Exp. Co. 63 N. H. 514; Oraee v.Adains, 100 Mass. 505, 
97 Am. Dec. 117, 1 Am. Rep. 131. 



TABIFF VALUE AND LIABILITY MUST BE IN PKOPOKTION. 207 

and condition in which he receives it, he may need the infornaa- 
tion ; nor why he should not insist on being paid in proportion to 
the value of the goods, and the consequent amount of his risk." 
In conformity with these views, conditions and stipulations de- 
signed to secure to carriers information as to the character and 
value of the articles delivered to them, and to limit their respon- 
sibility to the amount and extent of the risk apparently assumed 
by the carrier and paid for by the customer, are upheld as just 
and reasonable.' In Dutgin v. American Exp. Co. (N. H.) 9 L. 
R. A. 453, the stipulation as to an agreed valuation inserted in 
the shipping receipt taken by the plaintiff was designed to deter- 
mine the extent of the defendants' liability in case of loss of the 
goods, and the plaintiff so understood it. The plaintiff also knew 
that the freight charges were proportioned to the nature and ex- 
tent of the risk, and, although in this instance the express charges 
were not mentioned, the presumption is conclusive that the plain- 
tiff knew that the rate would be largely increased if it was fixed 
by the actual value of the package. The case states that the 
plaintiff had previously sent thousands of packages and boxes by 
the defendants, the value of which in many instances exceeded 
$50, and that the price fixed by the defendants for the carriage 
of the box in controversy was 75 cents, when, if the actual value 
of the goods had been stated, the regular express charge would 
have been $3.75. In the opinion of the court it does not change 
the case that the price of carriage was not mentioned, or that no 
inquiries were made as to the value of the contents of the box. 
Plaintiff understood that the rate would be according to the reg- 
ular express rates for the carriage of a box agreed to be of the 
value of $50. The plaintiff understood that he was securing 
transportation of the box to New York at a reduced rate (in fact, 
at one fifth of the regular rate) by calling the value $50 and as- 
suming a portion of the risks of carriage himself ; and, having 
agreed upon a valuation for the purpose of fixing the express 

^DuntUy v. Boston & M. B. Co. (N. H.) 9 L. R. A. 449; Hart v. Pennsyl- 
vania B. Co. 113 U. S. 331, 28 L. ed. 717; Graves v. Lake Shore & M. 8. 
B Co. 137 Mass. 33; Little v. Boston & M. B. Co. 66 Me. 389; Magnin v, 
Blnsmore, 63 N. Y. 35, 30 Am. Rep. 443; St. Louis, L M. & S. B. Co. v. 
WeaUy, 50 Ark. 397. 



208 FREIGHT CHAEGES EBGULATED BY VALUE OF AETIOLB. 

charges, he cannot insist that the goods are of greater value, for 
the purpose of increasing his claim for damages for the loss. Nor 
is it material whether the loss arose from the negligence of the 
■defendants, or some other cause. The defendants agreed to re- 
respond in a sum not exceeding $50 in case of loss, and for the 
purpose of the contract of transportation between the parties to 
the contract the goods have no greater value.' But the rule has 
■this qualification, that an arbitrary limitation of the amount of 
liability which is not made with reference to the actual value of 
"the property is not valid in case of the loss by the carrier's negli- 
gence.' And a general provision limiting the amount of liability 
will not apply in case of the negligence of the carrier where the 
amount is not fixed with reference to the value of the property." 
And a shipper who enters into an agreement with a carrier to ship 
^oods at reduced rates, in consideration of placing a valuation on 
his property, is estopped in case of loss from claiming a higher 
valuation, unless the loss results from the intentional, waaton, or 
reckless negligence of the carrier.* A verbal statement of value 
ias been held sufficient.' 

§ S^. Tariff Based on Value, without Stating 
Limit of Liahility. 

It is a rule established by some of the best authorities, and one 
which may be recognized as expressing the law, that when a con- 
tract is fairly made between shipper and carrier agreeing on the 
valuation of the property carried, with the rate of freight based 
on the condition that the carrier assumes liability only to the ex- 
tent of the agreed valuation, even in case of loss or damage by the 

' Ha/rt V. Pennsylvania B. Co. 113 U. S. 331, 341, 28 L. ed. 717, 721; Graves 

V. Lake Shore & M. S. R. Co. supra; Sill v. Boston, H. T. <fe W. S. Co. 

144 Mass. 284. 
'Moultony. St. Paul, M. & M. B. Co. 31 Minn. 85. 47 Am. Rep. 781; Georgia 

Pac. B. Co. V. HugJiart,90 Ala. 36; Levy v. Southei-n Ej^. Go. 4 S. 0. 234. 
"Adams Exp. Co. v. Slettaners, 61 111. 184, 14 Am. Rep. 57; Alabama, 0. S. 

B. Go. v. Little, 71 Ala. 611; Mobile & 0. B. Co. v. Eopkins, 41 Ala. 486; 

Orndorff v. Adams Exp. Go. 3 Bush, 194, 96 Am. Dec. 207; Sirby v. Adams 

Exp. Co. 2 Mo. App. 369. 
* Zouch V. Chesapeake & 0. B. Co. 17 L. R. A. 116, 36 W. Va. 534. 
' Wilson V. JP'reeman, 3 Campb. 527. 



TAKIFF BASED ,0N VALUE, WITHOUT STATING LIMIT. 209 

negligence of the carrier, the contract will be upheld as a proper 
•and lawful mode of securing a due proportion between the amount 
for which the carrier may be responsible and the freight he re- 
■ceives, and of protecting himself against extravagant and fanciful 
valuations of the property after a loss has occurred.' But there 
is a further question. In case of loss through negligence of the 
carrier, is the shipper bound by the valuation which he, in answer 
to the carrier's inquiry, gave to the property when shipped, and 
which value was thereupon inserted in the bill of lading, although 
the bill of lading is silent as to the effect of such valuation upon 
the shipper's liability, and he had no actual information, and did 
not suppose, that his statement of value would afEect the liability • 
of the company in respect to the damage they would be liable to 
pay in case of loss ? K the shipper, through his agent, signed a 
bill of lading in ■v?hich the value of the property was stated, in ac- 
-cordance with his own valuation, at $100, which in fact, was worth 
$2000, does the fact that his first valuation was an honest mistake 
afEect the question of the carrier's liability? If he knew the 
property to be worth a much larger sum when he gave the value 
at $100, there was, at least, concealment, even though he did not 
know or believe that such incorrect valuation would affect the 
-carrier's liability for damage in case of loss, and perhaps thought 
it would only enable him to get a lower rate of freight. That the 
valuation made by the shipper affects the care required to be taken 
of it in transportation by the carrier, without an express, distinct 
agreement to that effect, will not be questioned. No one but un- 
derstands that his property, valued at $50, will get, and the law 
will require, less care and protection in transporting it than prop- 
erty valued at $1000, and that he will pay less for such trans- 
portation, though it is of equal bulk. Upon the question whether 
the carrier was negligent in transporting the property, its value, 
as stated by the shipper, and relied on by the carrier, in the ab- 
sence of anything which should cause him to discredit such valu- 

^Hart V. Pennsylvania B. Co. 113 U. S. 331, 28 L. ed. 717; Squire v. New 

York Cent. & H. B. B. Co. 98 Mass. 239, 98 Am. Dec. 162; Qrmes v. 

Lake 8lm-e & M. 3. B. Co. 137 Mass. 33, 50 Am. Rep. 282; Schouler, 
Bailm. § 457. 

U 



210 FREIGHT CHARGES REGULATED BY VALTTB OF ARTICLE. 

ation, would be conclusive, so far as value is an element of the 
inquiry. It lias been held that, if the owner conceal the value or 
nature of the article, the carrier will not be liable for its loss. 
Thus, Judge Kent (vol. 2, pt. 6, § 40) after stating the general 
rule that a common carrier is answerable for the loss of a box of 
goods though ignorant of its contents, and though those contents 
be ever so valuable, unless he has made a special acceptance, says: 
" But the rule is subject to a reasonable qualification, and, if the 
owner be guilty of any fraud or imposition in respect to the car- 
rier, — as by concealing the value or nature of the article, — he can- 
not hold him liable for the loss of the goods. Such an imposition 
• destroys all just claims to indemnity, for it goes to deprive the 
carrier of the compensation which he is entitled to in proportion 
to the value of the article intrusted to his care, and the conse- 
quent risk which he incurs ; and it tends to lessen the vigilance 
that the carrier would otherwise bestow. Says Schouler, in his 
work on Bailments & Carrier (§ 423) : " A carrier is to be charged 
with no responsibility beyond what the thing appears on its face 
and the proof at command to deserve ; and the sender whose con- 
duct induces him to relax his guard, or goes to deprive him of his 
just compensation, puts himself without the pale of justice." 
That the value of the article, as stated by the owner, is a proper 
element to be considered in measuring the care to be bestowed 
upon it by the carrier, is beyond question. The reasoning of the 
court in Eia/rt v. Pennsyl/oania R. Co. 112 TJ. S. 331, 28 L. ed. 
717, tends very strongly to uphold the position that, in the case 
of loss through its negligence, the shipper is bound by his own 
valuation of the property when delivered for transportation, 
though there was no express agreement to that effect. There was 
an express agreement in that case, but the court seems to discuss 
the question upon general principles. After quoting the above 
passage from Kent respecting it, it says : " This qualification of 
the liability of the carrier is reasonable, and is as important as the 
rule which it qualifies. There is no justice in allowing the ship- 
per to be paid a large value for an article, which he has induced 
the carrier to take at a low rate of freight, on the assertion and 
agreement, that its value is a less sum than that claimed after a 



TARIFF BASED ON VALUE, WITHOUT STATIN& LIMIT. 211 

loss. It is just to hold the shipper to his agreement, fairly made, 
as to value, even when the loss or injury has occurred through the 
negligence of the carrier. The effect of the agreement is to 
cheapen the freight, and secure the carriage, if there is no loss ; 
and the effect of disregarding the agreement after a loss is to ex- 
pose the carrier to a geater risk than the parties intended he 
should assume." The limitation as to value has no tendency to 
exempt from liability for negligence. It does not induce want of 
care. It exacts from the carrier the measure of care due to the 
value agreed on. The carrier is bound to respond in that value 
for negligence. The compensation for carriage is based on that 
value. The shipper is estopped from saying that the value is 
greater. The articles have no greater value, for the purposes of 
the contract of transportation, between the parties to that con- 
tract. The carrier must respond for negligence up to that value. 
It is just and reasonable that such a contract, fairly entered into, 
and where there is no deceit practiced on the shipper, should be 
upheld. There is no violation of public policy. On the con- 
trary, it would be unjust and unreasonable, and would be repug- 
nant to the soundest principles of fair dealing and of the freedom 
of contracting, and thus in conflict with public policy, if a shipper 
should be allowed to reap the benefit of the contract if there is 
no loss, and to repudiate it in case of loss. 

It would seem as if good morals required that the same rule 
should hold good in respect to a statement of value made by a 
shipper, even though there is no express contract that any loss 
that might occur should be measured by such statement, as would 
apply in case of an agreement that a statement of value should 
govern in case of loss. A shipper should not be allowed to reap 
the benefit of his statement of value, the natural consequence of 
which causes the carrier to treat freight in a certain way, resulting 
in its loss. Actual notice, given by a common carrier to his cus- 
tomer, specifying the terms on which he receives and carries 
goods, becomes parcel of the contract when it is proved that the 
property was delivered on the terms thus offered. And, though 
it be not made the basis of a contract, it often becomes effective 
to shield the carrier from liability for things of special and pecu- 



212 FEEIGHT OHAJEGES REGULATED BY VALUE OF AETICLE. 

liar value, not disclosed at the time of delivery ; for it appears to 
be agreed that the carrier may in this manner require the shipper 
to state the nature or value of the property, at the risk of having 
it received and carried as an article of ordinary value. The car- 
rier does not impose an illegal condition. He asks for reasonable 
information bearing on the transaction ; and the shipper is left free 
to act on his own discretion, accepting the legitimate consequences 
of his conduct." Why is it not a legitimate consequence of his 
conduct to hold him to his own valuation when he sues for loss of 
the property so valued ? And why may not the carrier require 
the shipper to state the nature or value of the property at the risk 
of being obliged to stand by the value so stated, in reliance upon 
which it has been accepted and carried, even though it is not made 
the basis of a contract, as well as at the risk of having the prop- 
erty carried as an article of ordinary value ? There is no reason 
why the carrier should not make the demand and the shipper be 
bound by his answer, and such is the rule of law." 

§ 53. Fraud or Imposition Respecting Value and 

Estoppel. 

The principle which governs the compensation of carriers is 
that they are to be paid in proportion to the risk they assume. 
It is the duty of every person sending goods by a carrier to make 
use of no fraud or artifice to deceive him, whereby his risk is in- 
creased, or his care and diligence may be lessened.' Fraud, im- 
position or unfair concealment as to the contents or value of the 
goods, will relieve the carrier of responsibility.* The owner of 
gold dust represented to be of a certain value less than its real 
value, who pays the carrier for its transportation according to the 
smaller value, and after it is lost by highway robbery accepts the 
amount which he had represented it to be worth, and gives a re- 

' Edw. Bailm. § 569. 

» Coupland v. Bousatonie B. Go. 15 L. R. A. 534, 61 Conn. 531. 

» Humphreys v. Perry, 148 U. S. 627, 37 L. ed. 587. 

*PhiUip8 V. Earle, 8 Pick. 182; Orange County Bank v. Brown, 9 Wend. 116, 

24 Am. Dec. 139; Warner v. Western Tratm>. Co. 5 Robt. 490: Self v. Bapp, 

3 Watts & 8. 81, 87 Am. Bee. 528. 



^BAUD OK IMPOSITION EESPEOTING VALUE AND ESTOPPEL. 213 

ceipt therefor, cannot recover the difference between that sum 
and its real value, after the carrier has at large expense succeeded 
in recovering the property.' The acceptance, without suit, of 
an amount offered in payment of goods lost in transportation, 
passes the title to the carrier. 

A value voluntarily fixed by the shipper with a view to obtain 
a low rate of freight without the carrier's knowledge that the 
property was of greater value, will be binding where the contract 
limits the recovery to the sum agreed upon." So a general limi- 
tation of the amount of liability, unless the value of the goods is 
stated, is valid where the shipper undertakes to send articles of 
much greater value without notice to the carrier.' If the shipper 
be guilty of any fraud or imposition in respect to the carrier as 
by concealing the value or nature of the article, or delude him by 
his own carelessness in treating the parcel as a thing of no value, 
he cannot hold the carrier liable for the loss of the goods.^ Where 
a trunk shipped on a steamship, contained jewelry, which fact 
the shipper did not disclose, and the bill of lading contained a 
provision that the carrier would not be responsible for the loss of 
valuable articles unless their value was expressed in the bill of 
lading and the shipper paid extra freight therefor, the carrier was 
not liable for the loss of the jewelry caused by the trunk being 
broken open and the jewelry stolen.' The like rule applies to 
the carrier, where the articles are plainly of much greater value 
than the limit named in the receipt. In such case, no voluntary 
statement of their actual value is required to enable the shipper 
to recover that amount." 

' Smmmon v. Wells, Fargo & Co. 84 Cal. 311, 42 Am. & Eng. E. Cas. 400. 
*Harmy v. T&rre Haute & I. B. Go. 74 Mo. 538; BosenfeU v. Peoria, B. & E. 

B. Oo. 103 Ind. 131, 53 Am. Rep. 500. 
» Oppenfwimer v. Vhitea States Exp. Oo. 69 111. 63, 18 Am. Rep. 596; Brehme 

V. Adams Ea^. Go. 25 Md. 328; Magnin v. Dinsmm-e, 63 N. Y. 35, 30 Am. 

Eep. 443. 
* Tmlibwrne v. White, 1 Strange, 145; PhMlipa v. Earle, 8 Pick. 182; Malpica 

V. McKown, 1 La. 248, 20 Am. Deo. 379. 
= TU Bermuda, 39 Fed. Rep. 399. 
'Down V. Fromont, 4 Campb. 40; Boscomtz v. Adams Exp. Go. 93 111. 533, 34 

Am. Rep. 191; VanWinkle y. Adams Exp. Co. 3 Robt. 59; Moses\. Boston 

& M. B. Oo. 34 N. H. 71, 55 Am. Dec. 333; Kansas City, Si. J. & 0. B. B. 

Go. V. Simpson, 30 Kan. 645, 46 Am. Rep. 104; United States Exp. Go. v. 

Backman, 28 Ohio St. 144; Beck v. Evans, 16 East, 243. 



214 FEEIGHT CHAEGES EEGULATED BY VALUE OF ARTICLE. 

In a recent case' the action was in assumpsit to recover the sum 
of $579, being the value of a box of diamonds which the plain- 
tiff delivered to the servant and agent of the defendants to be by 
them transported by express to New Bedford, in the state of 
Massachusetts. A jury trial was waived, and the case was tried 
by the court on the law and the facts. The defendants, who are 
common carriers of merchandise for hire, received from the plain- 
tiff at Providence, on the 26th day of July, 1890, a package con- 
taining diamonds of the value aforesaid, to be by them delivered 
to the consignee, at New Bedford, Mass. The plaintiff had, and 
for a considerable time previous to the above-named date had 
had, in his possession and constant use a book of the defendants' 
contract receipt blanks, at the top of each page of which -was 
printed what purports to be a mutual agreement between the 
shipper and the common carrier, which agreement, in so far as it 
is material, provides that the defendants "are not to be held liar 
ble or responsible for any loss or damage to said property . . . 
unless in every case the same be proved to have occurred from 
the fraud or gross negligence of said express company, or their 
servants; nor in any event shall the holder hereof demand beyond 
the sum of $50, at which the article forwarded is hereby valued, 
unless otherwise herein expressed, or unless especially insured by 
them, and so specified in this receipt, which insurance shall con- 
stitute the limit of the liability of Earle & Frew's Express." One 
of these blanks the plaintiff filled out for the addressed package 
in question, but gave no value thereof, although there was a 
blank column in said receipt marked "value." This receipt was 
signed by the defendants' agent when the plaintiff gave the pack- 
age to the agent. The defendants had no knowledge of the con- 
tents or value of said package except as stated in said receipt at 
the time of its delivery to them, nor did they make any inquiry 
of the plaintiffi concerning the same. This package was lost by 
the negligence of the defendants' servant before it reached their 
ofl5ce, and said defendants admit their liability therefor under said 
agreement, and offer to pay the said sum of $50, which, they con- 

' Ballou v. EarU, 14 L. R. A. 433, 17 R. 1. 441. See post, chapter. VIII. § 72, 
on "Contributory Negligence of Shipper." 



FKAUD OB IMPOSITION EBSPEOTING VALITB AND ESTOPPEL. 215 

tend, is the limit of their liability. The plaintiff testifies that his 
reason for not giving any value to the package was because the 
€xpressage was to be paid by the consignee. The defendants, on 
the other hand, testify that the reasons given them by the plain- 
tifiEfor not giving any value to the package in said receipt were 
that it cost more money, and that the consignee had previ- 
ously complained of the charges of expressage in cases where the 
values had been given, and that he adopted this mode to lessen 
said charges. The court concludes that the purpose of the plain- 
tiff in not giving any value to the package was to save, either to 
bimself or to the consignee, and it matters not which, the addi- 
tional expressage which would have been charged by the defend- 
ants if the real value had been given; for it must be presumed 
from the terms of the receipt that, as the defendants assume a 
liability only to the extent of the valuation therein named, the 
rate of expressage is graduated by said valuation. Under this 
state of facts the plaintiff's contention is that the express assent 
of the owner of the goods to the restriction of the carrier's liabil- 
ity must be found to give effect to it in any case. But the opin- 
ion of the court is that the decided preponderance of the authori- 
ties is to the contrary; and that the well settled rule now is, that 
in the absence of fraud, concealment, or improper practice, the 
legal presumption is that stipulations limiting the common law 
liability of common carriers contained in a receipt given by them 
for freight were known and assented to by the party receiving it.' 
In the case at bar a printed ,/ao simile oi the receipt in question 
is produced, which shows in the opinion of the court that the 
terms and conditions upon which the defendant received the goods 
in question must have been well known to the plaintiff. And more 

^Belger-7. Dinsmore, 51 N. T. 166, 10 Am. Rep. 575; Steers v, lAverpool, N. 
Y. &P. 88. Co. 57 N. Y. 1, 15 Am. Rep. 453; Htwris v. GreatWestern R. 
do. L. R. 1 Q. B. Div. 515; GermaniaF. Ins. Co. v. Mem/phis & C. R. Co. 73 
N. Y. 90, 28 Am. Rep. 113; Quimby v. Boston & M. B. Go. 5 L. R. A. 846, 
150 Mass. 365; Burke v. South Eastern B. Co. L. R. 5 C. P. Div. 1 ; Maghee 
V. Camden & A. B. Transp. do. 45 N. Y. 514, 6 Am. Rep. 134; Grace v. 
Adams, 100 Mass. 505, 1 Am. Rep. 131, 97 Am. Dec. 117; Monitor Mut. F. 
Ins. Co. V. Buffum, 115 Mass. 343; Hill m Syracuse, B. & N. T. B. Co. 73 
N. Y. 351, 29 Am. Rep. 163. For a full discussion of the contrary doctrine, 
see HoUister v. Nowlen, 19 Wend. 234, 33 Am. Dec. 455, and cases cited. 



216 FBEIGHT CHAEGES EEGULATED BY VALUE OF ABTIOLE. 

especially is this to be taken for granted from the fact that a book 
of the defendants, filled with receipt blanks identical with this,, 
was in the plaintiff's possession, and in almost daily use by him. 
From an examination of said foe simile it is evident that there 
was not only no attempt to conceal the terms and conditions of 
the bailment on the part of the defendants, but, on the other 
hand, that it had been their purpose to make the same specially 
prominent and noticeable. It is all printed on one side of the 
paper, and at the top thereof. It is headed by the caution^ 
printed in bold type, " Eead the Conditions of this Eeceipt," and 
all the printed matter precedes the signature of the agent of the 
defendants. The conclusion is reached, therefore, that the re- 
ceipt in question ought to be regarded as having received the as- 
sent of the plaintifE, and as being, as its language purports, the 
mutual agreement of the parties touching the package in ques- 
tion. 

§ 54- Carrier May Recover Where Value of Goods 

Concealed. 

The right of the carrier to be compensated according to a stip- 
ulation for payment of freight, based on the actual value of the 
goods transported, was ruled in the United States District Court 
for the Southern District of New York in a recent case. The 
libel was filed to recover an alleged balance of freight due on an 
importation of diamonds received by the respondent, and entered 
by him at the customhouse under the bill of lading. The biU of 
lading stated the value as 7000 francs, and upon receipt of the 
goods by the respondent the freight on that valuation was paid. 
The bill of lading stated that an additional freight of 5 per cent 
should be paid on the total value should the real value be discov- 
ered to be greater than was declared in the bill of lading. "When 
the freight upon the valuation of 7000 francs, as stated in the 
bill of lading, was paid to the libelants, and the goods delivered 
by them to the respondent, they had no knowledge that the real 
value of the diamonds in the package was any greater. The re- 
spondent, however, had knowledge of their greater value, and 



OAERIEE MAY BECOVEB WHBBB VALUE OF GOODS CONCEALED. 217 

entered them at the cuBtomhouse upon the same bill of lading- 
and upon an invoice that stated the value of the diamonds to be 
27,616 francs. The libelants claim to recover the additional 
freight of 5 per cent on the actual value, in accordance with the 
stipulation of the bill of lading. The lawfulness of stipulations 
of this character in favor of common carriers, to protect them 
against unknown responsibilities, and to adjust the freight accord- 
ing to the value and the responsibilities assumed, has been re- 
peatedly upheld.' But for the respondent it is urged, in that 
case, that he is not liable beyond the amount of freight paid, be- 
cause he was only an agent to sell the goods on commission. The- 
vessel, however, it was answered by the court, had no knowledge 
of this fact. The circumstances sufficiently show that it was the 
intention of all parties that the respondent, as consignee, receiv- 
ing the goods under the bill of lading, should pay whatever 
freight was payable, according to the terms of the biU of lading. 
It is not a case of any claim outside of the bill of lading, but of a, 
claim strictly pursuant to its express stipulation. The respondent 
had full knowledge of its terms, and of the real value of the 
goods, which determined the amount of freight actually payable. 
There was a manifest attempt by the shipper to defraud the ship 
of a part of its rightful freight. The consignee had notice of 
this, and was bound to protect himself before turning over the 
proceeds of sale. Under such circumstances it was of course un- 
necessary to discuss theoretical questions as to the liability of a 
mere agent as consignee to pay freight, where the circumstances 
are different and of doubtful import." But it was decided that 
in cases where a consignee, though a factor only, has full notice 
of all the facts, and obtain the goods under the bill of lading,, 
and on the obvious undertaking to pay the freight, and does pay 
on the carriers' requirement at the time of delivery all the freight 
that the carriers suppose to be due, the consignee is properly held 
for any balance of freight, as well as demurrage, that may be 

' See Ha/rt v. Pennsylvania B. Co. 112 U. S. 331, 28 L. ed. 717; Lkerpool <& 9. 

W. Steam Oo. v. Phenix Ins. Co. {•'The Montana") 129 U. S. 397, 442, 32 L. 

ed. 788, 792; The Denmark, 27 Fed. Rep. 141; Tlie Bermuda, 29 Fed. Rep. 

399, and cases there cited. 
» See EtweU v. 8kiddy, 77 N. T. 282; Sanders v. Van Zeller, 4 Q. B. 260, 294. 



218 FEEIGHT OHAEGBS EEGT7LATED BY VALUE OF AKTIOLE. 

actually owing according to the terms of the bill of lading upon 
the actual value of which he had knowledge.' 

§ 55. When Limit Applies to Each Article. 

"Whether the stipulation is to be limited to each article making 
up the shipment must, in many cases, be determined by the par- 
ticular facts and circumstances. Thus a limitation "for any loss 
or damage of any box, package or thing for over $50 " in the 
case of a shipment of three bales of cotton was held to apply to 
each bale, making $150 for the shipment. So, a limit of damages 
to the invoice price of goods is to be held as the invoice price of 
each piece damaged." But where three articles were enclosed in 
one, the limit included all the packages as one.° The limit in the 
absence of any special circumstances to control the matter, must 
be applied to the package and not to each article therein.' 

§ 56. Statutory Provisions Respecting Statement 

of Value. 

A stipulation is effective under U. S. Kev. Stat. § 4281, that 
the carrier will not be liable for specified valuable articles on the 
back, unless their value be expressed.' Limiting the amount of 
recovery for wearing apparel to $100 in case of the loss of bag- 
gage is invalid under Iowa Code, §§ 1308, 2184.* A contract 
limiting the liability of a carrier to an amount less than the actual 
value of the property carried is invalid where a statute prohibits 
contracts exempting a carrier from the liability which would ex- 

' The Bermuda and The Denmark, supra; Philadelphia d; B. R Oo. v. Bar- 
na/rd, 3 Ben. 39; NeUaen v. Je»up, 30 Fed. Rep. 138; Gates v. Ryan, 37 Fed. 
Rep. 154, and cases there cited; Allm v. Goltart, L. R. 11 Q. B. Div. 782, 
785; North Qerman Uoyd v. EenU, 10 L. R. A. 814, 44 Fed. Rep. 100. 

» Brown v. Ounwrd SS. Co. 147 Mass. 58; Pearse v. Quebec SS. Go. 24 Fed. 
Rep. 385. 

'Wetzel V. JHnsmore, 54 N. Y. 496. 

" Baxendale v. Great Eastern B. Co. L. R. 4 Q. B. 244; Bernstein v. BaamdaJe, 

6 C. B. N. S. 251; Sendee-son v. London d> N. W. R. Go. L. R. 5 Bxch. 90. 
« The Bermuda, 29 Fed. Rep. 899. 
« Davis V. Chicago, R. I. & P. R. Co. 88 Iowa, 744. 



LIMITIN& TIME FOB OOMMBNOING ACTION. 219 

ist without a contract.' Limitation of a carrier's liability for 
goods lost in transportation to the value at the place of shipment 
is invalid under the Texas statute.' A stipulation in a contract 
of shipment, limiting the liability of the carrier to a certain 
amount in case of damage to the property shipped, is not valid 
and binding on the shipper ; and he may recover the damages to 
which he shows himself entitled under the measure of damages 
:fixed by law.' 

I 57 . Limiting Time for Commencing Action. See 
also post, § 70 a, b. 

The carrier is bound to perform the service upon being paid 
therefor, and it is a policy, the propriety of which has been ques- 
tioned in the highest courts, whether it should be allowed to exon- 
erate itself, even from its full liability at common law, by an arti- 
fice at the risk of injury of those who are, in the ordinary course 
of business, compelled to employ its services." In a case where 
one of the conditions of a telegraph company, printed in their 
blank forms, was that the company would not be liable for dam- 
ages in any case where the claim was not presented in writing 
within sixty days after sending the message, it was ruled that the 
condition was binding on an employer of the company who sent 
his message on the printed form.' The condition printed in the 
form was considered a reasonable one, and it was held that the 
employer must make claim according to the conditioii before he 
could maintain an action.' A condition in a receipt that an ex- 
press company should not be liable for damage, unless a claim 
should be asserted within ninety days, will not limit a company's 

' Sart V. Chicago & N. W. S. Co. 69 Iowa, 485. 

» Gulf, 0. & S. F. B. Co. V. Booton (Tex. App.) March 18, 1891; Taylor, B. & 

H. B. Co. V. Montgomery {Tex. App.) April 29, 1891; Taylor, B. & H. B. 

Co. v. Sublett (Tex. App.) April 29, 1891. 
»<S«. Louis, A. & T. B. Co. y. Bobbins (Tex. App.) Dec. 14, 1889. 
'FUlebrown v. Grand Trunk B. Co. 55 Me. 462, 92 Am. Dec. 606, and cases 

cited; Blossom v. Dodd, 43 N. T. 264, 3 Am. Rep. 701; Southern Exp. Co. v. 

Moon, 39 Miss. 822; Orndorffv. Adams Mp. Co. 8 Busli, 194, 96 Am. Dec. 

207; Jones v. Voorhees, 10 Ohio, 145. 

* Wolf^r. Western U. Teleg. Co. 62 Pa. 83, 1 Am. Rep. 387. 

* Tmng v. WesUrn U. Teleg. Co. 2 Jones & S. 390. 



220 FEBIGHT OHAEGES BEGULATED BY VALUE OF AETIOLE. 

liability for refusal to pay money received on a draft taken for 
collection.' And a similar doctrine has been applied to the con- 
ditions printed at the head of a telegraphic blank." Early adju- 
dications, notably that of Gould v. Hill, 2 Hill, 623, and Jone» 
V. Voorhees, 10 Ohio, 145, were in contravention of the estab- 
lished English rule, and held that a common carrier could not 
limit his liability by recitals in the contract of carriage which 
would absolve him from the results of negligence, however gross. 
This doctrine, however, must be regarded as having been, in New 
York, expressly repudiated.' 

It is no longer an open question whether the conventional lim- 
itation stipulated for and agreed upon in a contract in bills of lad- 
ing is reasonable and binding. Contracts limiting the time within 
which suit shall be brought for any cause of action by the shipper 
have been sustained where the time limited has been five days, 
thirty days, and sixty days.* It is usual in policies of insurance 
to contract, that after the right of action has accrued action must 
be brought within some shorter period than that fixed by the 
statute of limitations, and that the lapse of this period before ac- 
tion is brought shall be conclusive evidence against any claim un- 
der the policy. Such a condition is valid and binding.* A carrier 

' Bardwell v. American Exp. Go. 35 Minn. 344 

2 Breese v. United States Teleg. Go. 48 N. Y. 133, 8 Am. Rep. 526; Young v. 

WesUrn U. Teleg. Go. 2 Jones & S. 390; Wolfw. Western U. Teleg. Go. 62 Pa. 
83, 1 Am. Rep. 387; MacAndrew v. Electric Teleg. Co. 17 C. B. 3, cited in 
2 Am. L. Rev. 615, where the authorities are collected. 

3 Burr V. mw Jersey 8. Nav. Go. 4 Sandf. 136, 11 N. T. 485, 62 Am. Dec. 

135; Parsons v. Monteath.lZ Barb. 353; Mereantile Mut. Ina. Go. v. Ghase, 1 
B. D. Smith, 115. 

* Thompson v. Ghieago & A. R. Co. 22 Mo. App. 321. 

' Sipley V. ^tna Ins. Co. 30 N. T. 186, 86 Am. Dec. 362; Amei v. Neiu) Tort 
U. Ins. Co. 14 N. T. 253; New York v. HamUton F. Ins. Go. 39 N. T. 46. 
100 Am. Dec. 400; WilliamJi v. Vermont Mut. Ins. Go. 20 Vt. 222; WiUon v. 
.^tna Ins. Co. 27 Vt. 99; Amesbury v. Bowditeh Mut. F. Ins. Go. 6 Gray, 
596; Fullam v. New Yoi-k U. Ins. Go. 7 Gray, 61, 66 Am. Dec. 463; Peoria 
M. & F. Ins. Go. V. Whitehill, 35 111. 466; Brown v. Boger Williams Ins. 
Go. 7 R. I. 301; Patrick v. Farmers Ins. Go. 48 N. H. 621, 80 Am. Dec. 
197; Portage County Mut. F. Ins. Co. v. West, 6 Ohio St. 599; Portage 
County Mut. F. Ins. Co. v. Siukey, 18 Ohio, 455; Merchants Mut. Ins. Co. 
V. Lacroix, 35 Tex. 249, 14 Am. Rep. 370; Carter v. Euiribom F. Ins. Co. 
12 Iowa, 287; Biddlesbarger v. Hartford F. Ins. Go. 74 XJ. S. 7 Wall. 386, 
19 L. ed. 257; Brown y. Savannah Mut. Ins. Go. 24 Ga. 97; Northwestern 
Ins. Co. V. Phmnix Oil & Candle Co. 31 Pa. 448; Edwards v. Lycoming 
County Mut. Im. Co. 75 Pa. 378; Leadbetter v. uSltna Ins. Go. 13 Me. 367, 



LIMITING TIME FOE COMMENCING ACTION. 221 

may lawfully require that it shall not be held liable for damages 
to goods carried by it, unless the shipper or consignee gives notice 
■of his claim for damages within a reasonable time.' A notice 
within such reasonable time after removal of freight as secures 
ihe carrier from fraud is sufBcient under a stipulation that the 
shipper must give written notice before removing the freight from 
the place of delivery, if he could not discover the injury before 
removal.' A provision in a bill of lading, that the shipowner is 
not liable for any claim of which notice is not given before the 
removal of the goods, is reasonable and valid, especially where the 
goods at the time of landing show indications of having been 
■damaged.' 

So a stipulation in a bill of lading which requires that damages 
for the loss of goods while in transitu or before delivery, shall be 
■adjusted before their removal from the station, and the claim 
therefor made within thirty days to the " trace agent " of the car- 
rier, is a reasonable provision to protect the carrier against ficti- 
tious and fraudulent claims. A clause contained in the bill of 
lading, which provided that no claim for deficiency, damage or 
detention will be allowed unless made within three days after the 
■delivery of the goods, nor for loss, unless made within seven days 
from the time they should have been delivered — has been held 
valid.* A provision of a contract of shipment, for notice by the 
■shipper to the carrier of any claim for damages thereunder within 
five days from the time the property is unloaded, is a reasonable 
one and is not rendered inoperative by a deviation from the pro- 
visions of the contract as to the mode of transportation.' A clause 
virtually prescribing a statute of limitations of thirty days was 

39 Am. Dec. 505; Cray v. Swrtford F. Ins. Co. 1 Blatchf. 280; Southern 
Mxp. do. V. Caldwell, 88 TJ. S. 21 Wall. 364, 23 L. ed. 556; contra. Eagle 
Ins. Co. V. Lafayette Ins. Co. 9 Ind. 443; French v. Lafayette Ins. Co. 5 
McLean, 461. 

' CoUs V. Louisville, E. & St. L. B. Co. 41 111. App. 607. 

» Western B. Co. v. Ha/rweU, 91 Ala. 340, 45 Am. & Eng. R. Cas. 358. 

' Angel v. Cuncvrd SS. Co. 55 Fed. Rep. 1005. 

* Lewis -7. Great Western B. Co. 5 Hurlst. & N. 887. 

"^PavittY. Lehigh VaUey B. Co. 153 Pa. 302. 



222 JEEIGHT CHARGES EEGULATED BT VALUE OF AETIOLE. 

sustained by the coart.' And in other cases, if the claim was not 
presented within sixty days." The question has been much 
mooted, and it has been vigorously contended that the law alone 
should estabhsh limitations of actions. This view was urged upon 
the attention of the court in FuUam v. New York U. Ins. Go. 7 
Gray 61, 66 Am. Dec. 462, but the court then denied the doctrine, 
and asserted that the opposite Adew had so long obtained there as 
to become the settled law of the state.' 

It is claimed that the earlier decisions of New York took the 
other view, which was adopted by the commissioners; but the 
later view in New York and other states seems to be adopted by 
the Supreme Court of the United States." There are, however, 
very respectable authorities which announce the rule laid down 
by the earlier decisions of New York.' In Southern JExp. Co. 
v.Galdwdl, in which a company provided in its receipt that 
it would not be liable for loss on any package, etc., delivered to 
it, unless claim should be made within ninety days, the Supreme 
Court held that such contract was valid; and in an elaborate opin- 
ion Justice Strong, referring to "the conflict existing in modem 
decisions," as to how far the carrier may by contract limit his 
common law liability, says: "All the modern authorities concur 
in holding that, to a certain extent, the extreme habUity exacted 
by the common law originally may be limited by express con- 
tract. The difficulty is in determining to what extent, and here 
the authorities diSer. Certainly it ought not to be admitted that 
a common carrier can be relieved from the full measure of that 
responsibility which ordinarily attends his occupation without a 

' Weir V. Adams Exp. Co. 5 Phlla. 355; Boorman v. Ameriean Exp. Co. 21 

Wis. 153; Oppenhdmer v. United States Basp. Co. 69 111. 63, 18 Am. Rep. 

596; Lewis v. Chreat Western B. Co. 5 Huilst. & N. 867; Van ToU v. 

Southeastern Jt. Co. 12 C. B. N. S. 75. 
' Wolf V. Western U. Tdeg. Co. 63 Pa. 83, 1 Am. Rep. 387; Toung v. Western 

V. Teleg. Co. 2 Jones & S. 390. 

* And the same view is held in Brown v. Roger Williams Ins. Co. 5 R. I. 394; 

Northwestern Ins. Co. v. Phoenix OH & Candle Co. 31 Pa. 448; Wilson y. 
^tna Ins. Co. 27 Vt. 99; Ames v. New York U. Ins. Go. 14 N. T. 353. 

* Southern Exp. Co. v. Caldwell, 88 U. S. 31 Wall. 364, 23 L. ed. 556. 

' Eag!.e Ins. Co. v. LafayetU Ins. Co. 9 Ind. 448; Sh-moh v. Lafayette Ins. Co. 
5 McLean, 461. •' 



LIMITING TIME FOE COMMENCING ACTION. 223 

clear and express stipulation to that effect obtained by him from 
his employer. And even when such a stipulation has been ob- 
tained, the court must be able to see that it is not unreasonable. 
. . . Hence, as we have said, it is now the settled law that the 
responsibility of the common carrier may be limited by an ex- 
press agreement made with his employer at the time of his ac- 
cepting goods for transportation, provided the limitation be such 
as the law can recognize as reasonable, and not inconsistent with 
sound public policy." The reasonableness of such a limitation was 
settled in the affirmative by the decision in the case of Gulf, G. 
&S.F.R. Co. V. Trawick, 68 Tex. 314, in which it was held 
that such limitation was valid, though the contract was to be per- 
formed wholly within the state. If the suit is not brought with- 
in the forty days after the injury occurred, it is barred, and can- 
not be maintained unless the plaintiff could show some reasonable 
excuse for the delay. If the defendant, by negotiations for set- 
tlement or otherwise, so acted as to justify reasonable belief on 
the part of the plaintiff that his claim would be settled without 
suit, and the plaintiff, acting on such belief, did not institute 
suit until after the expiration of the forty days, the defendant 
would be estopped from invoking the limitation. 

A Umitation by contract must, upon principles governing con- 
tracts, be liable to be rejected or extended by any act of the 
defendant which has prevented the plaintiff from bringing his 
action within the prescribed period.' A promise by a carrier to 
look up and adjust a claim made by letter is a waiver of a require- 
ment that notice should be sworn to." A provision in a shipping 
contract, limiting the time for action thereon, is waived by in- 
ducing the shipper by promise to pay to delay suit until after the 
time expired." A statement by a carrier upon the delivery of 
part of a shipment of merchandise, that the remainder was miss- 
ing and would be delivered in a few days, is a waiver of a clause 
in the bUl of lading providing that claims for loss or damage 

' Pem^a M. & F. Ins. Co. v. Sail, 12 Mich. 210-212. 
' Eeas V. Missouri Pae. R. Co. 40 Mo. App. 202. 
« Qulf, 0. & S. P. B. Co. V. Trawiak, 80 Tex. 270. 



22i FEEIGHT CHAEGBS EEGULATED BY VALUE OF AETIOLE. 

■fihall be made in thirty-six hours after delivery.' The clause in a 
bill of lading requiring suit to be brought in forty days after the 
damage shall occur, may be, under the facts, unreasonable, against 
public policy, and null and void." A clause in a bill of lading, 
providing that any claim for loss or damages shall be made within 
thirty-six hours after delivery, does not apply to a claim for the 
value of a portion of a shipment of goods not delivered.' If the 
plaintiff in any case shows that without fault or blame on his 
•part he was not able to discover the amount of his damages or 
the nature and character of suit to bring, the law wUl excuse such 
delay in bringing suit, and will not harshly hold that plaintiff has 
forfeited his damages, suffered and caused by the neghgence of 
-the defendant, and more especially will this be the case, when 
the facts show that the delay was caused by, or resulted from, the 
fault or neglect of the defendant.' The time of the limitation is 
to be reckoned, not from the day when the loss occurs, but from 
Jthe day when the plaintiff learned the nature, character and 
-amount of his loss.' If it be construed that the contract requires 
-suit to be brought from the time when the loss occurred, and the 
plaintiff was not informed of the character and amount of loss at 
that time, and it was not the plaintiff's fault that he was not so 
informed, then such a clause would be but an instrument of fraud 
.and would be unreasonable and void." 

But where it clearly appears from the evidence that the plain- 
-tiff presented his claim for damages in March, that he received 
the account of the sale of his cattle on the 12th day of April, by 
Tvhich he was as fully informed as to the extent of his damage as 

' Gaheston, B. & 8. A. B. Co. v. Ball, 80 Tex. 602. 

^ Missouri Pae. B. Co. v. Harris, 67 Tex. 168; Owen v. Louiseille <£ N. B. Co. 
87 Ky. 636; Baltimore & 0. Exp. Co. v. Cooper, 66 Miss. 558; Bennett v. 
Northern Pac. Exp. Co. 12 Or. 49; Price v. Kansas Pae. B. Co. 63 Mo. 314. 
See Pacific Exp. Co. v. Darnell, 63 Tex. 639; Qlenn v. Southern Exp. Co. 86 
Tenn. 594; Capehart v. Seaboard & B. B. Co. 81 N. C. 438; Adams En/p. 
Co.^.Bmgan, 29 Ind. 21, 92 Am. Dec. 332; Place v. Union -ffirp. Oo. 2 
Hilt. 19; Soutlwrn Ex/p. Oo. v. Gaperton, 44 Ala. 101, 4 Am. Rep. 118. 

» Galveston, S. & S. A. B. Oo. v. Ball, 80 Tex. 602. 

• Olenn v. Southern Exp. Oo. 86 Tenn. 594. 

• Ohormley v. Dinsmore, 19 Jones & S. 196. 

• Longhurst v. Star Ins. Co. 19 Iowa, 364. 



LIMITING TIME FOK OOMMENCING ACTION. 225 

he ever was afterwards, and his suit was not brought until the 
21st day of June, and there is no pretense that any act of the 
defendant induced the delay, nor could there be such pretense in 
the face of the uncontroverted fact, that the plaintiff was in- 
formed by the defendant as early as the 1st day of May that his 
claim for damages would not be paid, and the contract required 
the suit to be brought within forty days, the evidence conclu- 
sively shows that plaintiff's cause of action was barred by the 
limitation agreed upon in the contract at the time the suit was 
brought.' 

A condition in a contract of affreightment, that no claim for 
damages to, loss of, or detention of goods, shall be allowed unless 
notice in writing and particulars of the claim are given to the 
station freight agent at or nearest to the place of delivery, within 
thirty-six hours after the goods are delivered, applies to the place 
of delivery beyond the carrier's own line, but when applied to a 
carload of potatoes containing 400 bushels, is unreasonable and 
void as giving insufficient time for examination." A promise by 
a station agent to waive a provision in a contract of shipment, 
requiring suit to be brought within forty days after the loss or 
damage occurs, will not excuse the shipper from bringing suit 
within that time, where he knows that the station agent has no 
authority from the company to adjust the claim without first ob- 
taining consent.' A stipulation in a shipping contract, requiring 
the shipper to give written notice of his claim for dam- 
ages does not apply to damages which accrued prior to the 
making of the contract.' "Where a package was shipped 
from Clayton, Ind., to Savannah, Ga., during the war, when 
transportation was much interrupted, it was held that a con- 
dition that the carrier should not be liable for any loss, un- 
less a claim therefor was presented within thirty days after the 
shipment at Clayton, was void.' A conti-act of shipment requir- 

' Gulf. G. & 8. F. n. Go. V. Gatewood, 10 L. R. A. 419, 79 Tex. 89. 

^ Jennings y. Grand Trunk B. Go. 137 N. Y. 438. 

^QulS, G. & 8. V. R. Co. V. Brown (Tex. Civ. App.) 24 S. "W. Rep. 9l8. 

^Missouri, K. & T. B. Go. v. Graves (Tex. App.) May 3, 1890; McCarty v. 

Gulf. G. & 8. F. R. Go. 79 Tex. 33. 
* Adams Exp. Go. v. Beagan, 29 Ind. 21, 93 Am. Dec. 333. 
15 



226 FEEIGHT OHAEGBS REGULATED BY VALUE OF AETICLE. 

ing not only that suits shall be commenced, but also that citations 
shall be served within forty days next after damage or loss occurs 
is unreasonable and invalid.' A stipulation in a bill of lading 
which exempts the carrier from liability unless notice is given 
of the damage within a specified time, is within Ga. Code, § 2068j 
declaring that a common carrier cannot limit his legal Hability by 
any notice given either by publication or by entry on receipts 
given or tickets sold, and is void unless expressly assented to by 
the shipper.' Section 958 of the Civil Code of Dakota reads as 
follows: "Every stipulation or condition in a contract, by which 
any party thereto is restricted from enforcing his rights imder 
the contract by the usual legal proceedings in the ordinary tribu- 
nals, or which limits the tim/e within which he may thus enforce 
his rights, is void." The first part of the section contains nothing 
new, and is substantially the common law doctrine, as pretty uni- 
formly announced by the decisions of all the courts; but the lat- 
ter clause, which declares unlawful every stipulation or condition 
in a contract, "which limits the time within which the party may 
enforce his rights," is perhaps against the great weight of modern 
authority. Under the statute, a provision in an express com- 
pany's conti-act or receipt, exempting the company from habihty 
unless a claim should be presented in writing within ninety days 
from that date is of no effect, where such contract or receipt was 
signed only by the company's agent.' 

a. Stipulation Regarding Notice to Consignee. 

Where by custom a delivery on the dock is held to be a deliv- 
ery to the carrier, it should always be accompanied with notice.* 
The purchaser of a bill of lading is chargeable with facts to put 
him on inquiry, and hence with notice of the rights of one who, 
a memorandum on the face of the bill states, is to be notified of 
the arrival of the goods.' But it is not unlawful to stipulate, in 

> Qulf, 0. & a. W. R. Co. V. Hume, 6 Tex. Civ. App. 653. 

' Centrals. & Bkg. Oo. v. Ha»selkus (Ga.) April 24, 1893. 

8 Eartwelly. Northern Pac. Exp. Co. 3 L. R. A. 343, 5 Dak. 463. See "Notice 

of Claim for Damages." 
* Packard V. Qetman, 6 Cow. 757, 16 Am. Dec. 475. 
' Jncob Bold Packing Co. v. Ober & Som Co. 71 Md. 155. 



LIMITING TIME FOE COMMENCING ACTION. 227 

a bill of lading which requires a ship to use reasonable care in 
discharging goods at a proper time and place, that no notice of 
discharge need be given to the consignee. A condition in a bill 
of lading by which the consignee agrees to be ready to receive 
his goods when the ship is ready to unload, that in default there- 
of the ship may land, warehouse, or place them in a lighter with- 
out notice, immediately, at his risk and expense, after the goods 
leave the deck of the ship, exempts the ship from the duty of 
giving him any notice, but not from the duty of exercising rear 
sonable care to discharge them at a suitable place.' A stipulation 
in a bill of lading, that the carrier's responsibility as a common 
carrier shall terminate when the goods are transported and safely 
stored in the depot of the carrier, is not opposed to public policy, 
and operates to limit the liability thereafter to that of a ware- 
houseman.'' A direction in a bill of lading to notify certain per- 
sons, is notice that they are not consignees, and does not qualify 
the carrier's duty to deliver to the consignee.' A carrier, having 
notified the owner of goods that they have arrived and that he must 
pay the freight and receive them, must know whether they have 
in fact arrived or not, and is guilty of conversion if , upon demand 
after the goods have arrived, he tells the owner that they have 
not come, and fails to deliver them, although he does not in ex- 
press words refuse to deliver them." "Where consignees of fruit, 
by a bill of lading which bound them to receive it from the ship's 
side, are aware that a discharge is to be made on a certain day, 
but make no attempt to remove the fruit from the wharf or pro- 
vide for its care, but allow it to remain on the wharf over night, 
under a shed, they take all the risk of so leaving it.° Under Tex. 
Eev. Stat. arts. 281, 282, the liability of the carrier of freight, as 
such, continues until the thing carried is actually delivered to the 
owner or consignee, unless due diligence has been used to give 
notice to such persons of the arrival at destination." 

■ Bolfe V. The Boskenna Bay, 6 L. R. A. 172, 40 Fed. Rep. 91. 

'Western B. Co. v. Little, 86 Ala. 159. 

' Furman v. Union Pac. B. Co. 106 N. T. 579 ; Worth Pennsylvania B. Go. v. 

CommsreialNat. Bank of Chicago, 123 U. S. 727, 31 L. ed. 287. 
*Louisviile & N. B. Go. v. Lawson, 11 Ky. L. Rep. 38. 
'Bonanno v. The Boskenna Bay, 36 Fed. Rep. 697. 
' Missouri Pac. B. Go. v.Saynes, 72Tex. 175. 



CHAPTEE VIII. 

TRANSPORTATION OF CATTLE. 

§ 58. Duty to Furnish Suitable Cars. 

% 59. Acceptance of Car by Shipper. 

§ 60. Duty to Provide Place to Receive and Deliver Stock, 

a. Texas Fever. 
§ 61. Carrier Must not Discriminate between Shippers. 
§ 62. Duty to Feed, Water and Care for Stock. 
§ 63. Extraordinary Unloading of Livestock in Transitu. 
§ 64. Carrier's Responsibility for Livestock. 
§ 65. Forwarding by Connecting Line. 
§ 66. Damages for Refusal or for Failure to Transport. 
§ 67. Delay in Shipment and Delivery of Livestock. 

a. Breach of Contract for Cars. 

b. Damages to Livestock by Delay in Transportation. 

c. Opinion of Expert Witnesses as to Damages. 
§ 68. Damages for Negligent Loss of or Injury to Cattle. 

§ 69. Liability for Miscarriage and Wrongful Delivery of Livestock. 
§ 70. Stipulation for Notice of Injury to Livestock. 

a. Limit of Time for Notice. 

b. Forbidding Removal before Notice. 
§ 71. Restricting Liability for Livestock. 

§ 72. Contributory Negligence of Shipper. . 

§ S8. Duty to Furnish Suitable Cars. See also, § i. 

A railroad company engaged, in the business of transporting 
livestock is bound to furnish suitable cars therefor upon reason- 
able notice, whenever it is within its power to do so without 
jeopardizing its other business.' It is its duty to exercise care, 
skUl, and diligence to furnish safe cars and appliances to those for 



; V. Lake Shore & M. S. B. Co. 2 Inters. Com. Rep. 67; Ayrea v. Chi- 
cago & N. W. R. Co. 71 Wis. 372. 

228 



DUTY TO FURNISH SUITABLE CABS. 229 

■whom it undertakes to transport property.' But, it is said, it is 
not bound to provide cars strong enough to withstand vicious ani- 
mals." A railroad company in the carriage of livestock is not 
required to use the safest and best motive power, with the best 
appliances in use, but is only required to use such cars and motive 
power and appliances as are suitable, safe and sufficient.' 

A shipper is not entitled to have his cattle carried in cars of a 
special construction of his selection, belonging to a third party 
and superior to ordinary cattle cars, by reason of the fact that the 
carrier transports some cattle in other cars, available to all ship- 
pers equally, which have some of the improvements of the former, 
but are furnished by another party under a special contract, and 
which, unlike the cars desired by the shipper by reason of their 
peculiar construction, can be used in the chief business of the 
road, — that of carrying coal,— when not in use for cattle. The 
refusal to use the cars desired by the shipper does not constitute 
unjust discrimination.* A statute requiring railroad companies 
to furnish double decked cars for carrying sheep, when requested, 
and providing a penalty for refusal, although held by the state 
court constitutional as a proper regulation of common car- 
riers,' is declared to be void as an attempt to regulate commerce.' 
The presumption in favor of the ability of a carrier to furnish 
cars for the shipment of stock as promised, can only be overcome 
by the evidence of some person having knowledge of the general 
resources of the company at the time in question ; and testimony 
of persons not shown to have any special knowledge on that point 
is inadmissible.' A carrier sued for damages caused by furnish- 
ing for the shipment of cattle a car infected with the germs of 
Texas fever cannot escape liability on the ground that the bill of 
lading was not signed by its agent, where the contract of ship- 

'Eoosier Stone Co. v. Zouimlle, N. A. & O. B. Co. 131 Ind. 575; Coupland v. 

Uousatonic B. Co. 15 L. R. A. 534, 61 Conn. 531. 
^Belby v. Wilmington &W. B. Co. 113 N. 0. 588. 
'jniinms Cent. B, Co. v. Haynes, 63 Miss. 485. 
*Ee Morris, 3 Inters. Com. Rep. 617. 
s Emerson v. 8t. Lmis & H. B. Co. Ill Mo. 161. 
« Stanley v. Waiash, St. L. & P. B. Co. 3 Inters. Com. Rep. 176. 
■> Ayrea v. Chicago & N. W. B. Co. 71 Wis. 372. 



230 TEANSPOBTATION OF CATTLE. 

ment contemplated that it was to carry the cattle a greater part 
of the distance, and it not only furnished the car, but fixed the 
rate of compensation for the entire route.' The rule requiring a 
shipper to clean and repair cars furnished on a side track is un- 
reasonable." 

The utmost that can be required of a vessel contracting to carry 
livestock, with regard to ventilation, is that it shall be such as is 
usual and as experience has demonstrated to be sufficient. A ship 
cannot be held at fault for not providing unusually wide spaces 
for cattle contracted to be carried, where she is obliged to have 
the fittings ready in anticipation of the arrival of the cattle, and 
no notice is given her agent that such spaces wiU. be required, 
and the shipper, on examining the ship and fittings before the 
cattle go aboard, expresses no dissatisfaction.' A steamship is li- 
able for cattle carried upon its deck, which are forced overboard 
without reasonable or apparent necessity, and solely from mere 
apprehension of danger.* 

The penalty of $25 per day imposed by Sayles's Tex. Civ. Stat. 
art. 4227a, § 3, is the only penalty prescribed for refusal by a 
raUroad company to furnish a car on demand.' But damages 
may be recovered for the breach of a verbal contract to furnish 
cars for the transportation of cattle at a specified time, as it is not 
an action for the penalty prescribed by Sayles's Tex. Civ. Stat, 
art. 4227a, for a failure to supply cars on written application.' 

Notwithstanding a special contract limiting its liability, a car- 
rier may be held hable under the finding of a jury, where a wheel 
in the car in which the cattle were being transported, took fire, 
and the shipper requested that the ear should be changed ; but 
this being refused, upon the fire being extinguished, the trans- 
portation was continued and the fire breaking out agaia, the 

' 8t. Louis, I. M. & 8. B. Co. v. Senderson, 57 Ark. 403. 

' Eaeel Mill. Co. v. St. Louis, A. & T. H. R. Co. 6 Inters. Com. Rep. 701. 

» The Mondego, 56 Fed. Rep. 268. 

4 The Hugo, 57 Fed. Rep. 403. 

' San Antonio tS> W. P. B. Co. v. Bailey (Tex. App.) March 19, 1890. 

« Missouri, R. & T. B. Co. v. Cfraves (Tex. App.) May 3, 1890. 



ACCEPTAJSOE OF OAK BY 8HIPPEE. 231 

wheel broke and the animals were injured.' Where a wheel of a 
car, broken on a track, was in good repair, and no flaw could be 
detected, and there was no evidence of negligence — except the 
breaking of the wheel — a direction by the court to return a ver- 
dict for the defendant was sustained on appeal.' 

§ 59. Acceptance of Car ly Shipper. 

The carrier is bound to furnish suitable, safe, and properly 
constructed cars in which to transport livestock, — suitable in ref- 
erence to the kind and value of stock carried. It is said that the 
•carrier cannot escape this obligation by calling attention to the 
defective condition of the car at the time the stock is received on 
board. The rule that a common carrier may not by contract ex- 
empt himself frota the consequences of his negligence applies to 
an attempt by a common carrier to shoulder off upon a shipper, 
by a contract, the results of the carelessness of the carrier in fur- 
nishing unsuitable cars.' If the shipper has not by contract as- 
sumed the risk of the car, he is entitled to recover, if the jury 
should find that the carrier's negligence in failing to furnish a 
suitable car was the primary cause of the injury, although but for 
the nature and propensities of the animal carried, no loss would 
have resulted.* 

It has been held in a later case than the one last cited from 
Massachusetts, by the court of that state, that a trial court erred 
in telling the jury that if they did not find any " distinct agree- 
ment," the plaintiff was entitled to a verdict, if negligence in fur- 

^ Austin v. Manchester, 8. & L. B. Co. 16 Q. B. 600. 

'Morrison v. Phillips & C. Const. Co. 44 Wis. 405, 28 Am. Rep. 599. 

» Ogdensburg & L. C. B. Co. v. Pratt, 89 V. S. 33 "Wall. 123, 33 L. ed. 837; 
Welsh V. PitUbv/rg, Ft. W. & C. B. Go. 10 Ohio St. 65, 75 Am. Dec. 490. 

* Evans v. Fitchburg B. Co. Ill Mass. 143, 15 Am. Rep. 19; Indianapolis & 
. 8t. L. B. Co. V. Jurei/, 8 111. App. 160; Illinois Cent. B. Co. v. BreUford, 13 
111. App. 251; Maslin v. Baltimore & 0. B. Co. 14 W. Va. 180, 35 Am. Rep. 
748; Powell v. Pennsylmnia B. Co. 33 Pa. 414, 75 Am. Dec. 564; St. Louis 
& 8. E. B. Go. V. Dorman, 72 111. 504; Indianapolis, B. &W. B. Co. v. Strain, 
81 111. 504; Welsh v. Pittsburg, Ft. W. & C. B. Co. 10 Ohio St. 65, 75 Am. 
Dec. 490; dreatWestern B. Go. v. Hawkins, 18 Mich. 427; Mawkins v. Great 
'Western B. Go. 17 Mich. 57, 97 Am. Dec. 179; Clarke v. Boehester c6 8. B. 
Co. 14 N. Y. 570, 67 Am. Dec. 205; Smith v. New Haven & N. B. Co. 12 
Allen, 531, 90 Am. Dec. 166; Bhodes v. Louisville & N. B. Co. 9 Bush, 688; 
PraU v. Ogdensburg & L. C. B. Go. 102 Mass. 557. 



232 TKANSPOETATION OF OATTLIS. 

nishing an nnsuitable car " was the primary cause of the injury, 
although but for the nature and propensities of the animal car. 
ried, no loss would have resulted.'" A stipulation in a printed 
livestock transportation contract, that the shipper has examined 
the cars provided for the transportation and found them in good 
order, and accepts them and agrees that they are suitable and suf- 
ficient, will not estop, him from setting up that they were not safe 
or in repair.' A railroad company which has accepted animals 
for transportation, selecting cars for such purpose, cannot escape 
responsibility for its negligence in furnishing a car with the slats 
at the side too far apart, upon the ground that the consignor 
should have noticed the defect and rejected the car.' 

An agreement by a shipper of livestock whereby he assumed 
all risk of injury to the animals " in consequence of heat or suffo^ 
cation, or other ill effects of being crowded in the cars," does not 
relieve a railroad company from liability for injury in consequence 
of insufficient ventilation in the car furnished and used.* The 
fact that the shipper of livestock procured the agent of the rail- 
way company with which the transportation contract was made 
to get for his use a " palace horse car " owned by an independent 
company, which was paid for by the shipper, and which, after be- 
ing loaded with his stock, was put in the train of the contracting 
company, will not relieve the latter from liability for injuries to 
the stock caused by a defect in the car, since a carrier cannot es- 
cape liability by carrying its freight in cars furnished or owned 
by another carrier." It is the duty of the carrier to furnish suit- 
able vehicles for transportation, and if he furnishes nnfit or unsafe 
vehicles, he is not exempt from liability from the fact that the 
shipper knew them to be defective and used them.' 

Where through a defect in a truck, cattle becoming alarmed, 
broke out and were injured, it was held that there was no imphed 

' Emns V. Fitehburg B. Oo. Ill Mass. 142, 15 Am. Rep. 19. 

« Loumille & N. R. Co. v. Dies, 91 Tenn. 177. 

» Union Pac. B. Go. v. Bainey 19 Colo. 325. 

* Kansas City, M. & B. B. Co. v. SoUand, 68 Miss. 851. 

» Louisville & N'. B. Co. v. Dies, 91 Tenn. 177. 

6 Ogdensburg & L. 0. B. Oo. v. PraU, 89 TJ. S. 22 Wall. 123, 23 L. ed. 827. 



ACCEPTANCE OF CAE BY SHIPPER. 23S 

stipulation that the truck should he fit for the conveyance of 
cattle, where the agreement which the shipper signed, stipulated 
that the owner undertook all risks of conveyance, and the com- 
pany was not liable for any injury or damage, however caused, 
and occurring to livestock of any description. In this case the 
shipper saw the truck when the cattle were put into it.' But it 
has been ruled that a clause in a bill of lading of cattle shipped 
upon a vessel by which the shipper assumes all risk of the fittings, 
is void as against public policy, in so far as it relates to a defective 
condition of the fittings through insufficient fastening due to the 
negligence of the employes of the vessel, and unknown to the 
shipper at the time of saiUng." And a stipulation in a printed 
live stock transportation contract, that the shipper has examined 
the cars provided for the transpbrtation and found them in good 
order, and accepts them and agrees that they are suitable and suf- 
ficient, will not estop him from setting up that they were not safe 
or in repair.' If, however, the defect relates to the commodious- 
ness of the car, and the possible effect of larger accommodations 
upon the particular animal to be carried, and the question is dis- 
cussed between the shipper and the carrier, who informs him that 
a more commodious car will be furnished if the shipper is willing 
to pay a larger rate of freight (such larger rate not being unrea- 
sonable) and the shipper decides to take the cheaper car, himself 
attempting to guard against the want of room, it is a matter for 
careful consideration and examination. Under such a state of 
facts a charge unduly limited the field of inquiry, which instructed 
the jury, that mere suspicion, without notice to the shipper's 
agent, " that the car ofEered for the transportation of the animals 
was not suitable for the purpose, and the mere use of the car after 
efforts on his part to guard against the defects in the car by pad- 
ing the head of one of the horses and the cross pieces, did not ex- 
empt the defendant from liability for loss caused while the animals 
were in the course of transportation by the defendant's negligence 
in furnishing such defective car, without proof of a distinct agree- 



V. Lancaster & Y. B. Co. 21 L. J. Q. B. N. S. 22. 
» The Iowa, 60 Fed. Rep. 561. 
^LmiiaviUe & N. B. Co. v. Dies, 91 Tenn. 177. 



234 TEANSPOETATION OF CATTLE. 

ment on tlie part of the agent of the plaintiff, to assume the risk 
arising from the defects of the car." In the case where this charge 
was given, the preamble that mere suspicion, without notice to 
the plaintiff's agent, that the car was not suitable, etc., it was 
thought by the appellate court, was not adapted to the facts of 
the case, and might easily mislead the jury. It was not, as de- 
veloped by the trial, a case of mere suspicion without notice. 
The plaintifE's agent knew that the car in which it was proposed 
to ship the animals was an ordinary box freight car. The finding 
states that it appeared in evidence that the agent, before shipping 
the animals, saw the car which was used, and knew of the alleged 
defects in its construction, namely, of the alleged fact that the 
roof and rafters of the car were so low that a horse on hfting its 
head was liable to strike the same, and that the car was without 
stalls or partitions in the inside, and the agent caused precautions 
to be taken for their protection by padding the rafters of the car, 
and placing a stuffed hood upon the mare, and by constructing a 
pen for the colt. Instead of a ease of mere suspicion, therefore. 
It was a matter of actual knowledge of the existence of the very 
defects which were claimed to constitute the defendant's negli- 
gence, and an attempt by the plaintiff's agent to guard against 
them. Then,^ again, it appeared in evidence that the agent was 
informed that the defendant had two special horse cars, which 
were provided with passenger car springs and buffers, and which 
had padded stalls and arched rafters, and that the animals could 
be shipped in one of those cars at the same rate and upon the 
same terms as by the box freight car, upon payment of the ad- 
ditional sum of 10 cents per mile for the use of such special car. 
In other words, according to the defendant's claim, the plaintiff 
tendered a mare and colt, which he stated were worth $100, for 
transportation, and before the animals were shipped, he 
saw the box car in which they were subsequently shipped ; knew 
of its alleged defects ; was informed that the defendant had spe- 
cial horse cars, free from the alleged defects, in which the animals 
could be shipped for an additional charge ; did not avail himself 
of the special car, but attempted to remedy the defects of the box 
car, and the animals were sent in it without his objection. Now, 



AOOEPTANOB OF OAE BY SHIPPER. 235 

had not the jury a right to find, from these facts alone, that the 
agent of the plaintiff, assumed the risk arising from those defects 
of the car ? It was not necessary to prove that he expressly said : 
"I see that the car is low from floor to roof, and I hear your offer 
of better accommodations for a higher price, but decline it, and 
will myself assume the risk arising from such defects of the box 
car ;" nor words of like import. His acts, viewed in the light of 
the surrounding circumstances, might evidence his assumption of 
the risk as clearly as his distinct agreement so to do. The de- 
fendant was bound to furnish a suitable car for the transportation 
of horses. It was still the duty of the jury to inquire whether it 
did so. If the box car was unsuitable for the transportation of 
ordinary horses of the value placed by the plaintiff's agent on 
these, then the defendant might be liable though it informed the 
plaintiff of its better accommodations for a higher price. But if 
the jury found that the box car was suitable for the ordinary busi- 
ness of transporting horses, though lower between joists than the 
special cars furnished at a higher price ; that the plaintiff was 
aware of such defects, and was informed about such special cars, 
and the additional price charged for them was not unreasonable ; 
and that, thereupon, he attempted to guard against the possible 
effect of the lower space, and acquiesced in the use of the car 
which was used, — then it was competent for them to further find, 
from such facts alone, that the plaintiff assumed the risks inci- 
dent to the defect in question. Under these existing facts the 
defendant was entitled to a charge to that effect, and the instruc- 
tions given were too restrictive in this particular.' 

A railroad company is not liable for injuries caused by negli- 
gence in loading livestock drawn over its road in a car owned 
and loaded by the owner of the stock, though it is the general 
duty of its conductors to see that trains under their control are 
properly loaded.' Where there is a provision that the shipper 
load and unload, carrier's servants to be subject to the order of 
the shipper, it is the duty of the shipper to secure the doors, and 
of carrier to allow time therefor.' 

' Ooupland v. Bousatonie R. Co. 15 L. R. A. 534, 61 Conn. 531. 
^Vm&yce^. McVlynn, 56 Ark. 424. 

r V. OTiieago, B. I. & P. R. Co. 19 Mo. App. 391. 



236 TEANSPOETATION OF CATTLE. 

% 60. Duty to Provide Place to Receive and De- 
liver Stoch. 

A railroad company as a carrier of livestock is obliged to pro- 
vide necessary means and facilities for receiving livestock of- 
fered it for shipment, and for its delivery to the consignee, and 
cannot without special contract require compensation from the 
shipper or consignee for providing such means and facilities, in 
addition to the charges for transportation. "When a railroad 
company , does not provide suitable facilities for the delivery of 
livestock contracted to be carried by it, it may be compelled to- 
deliver through facilities furnished by the consignee.' A 
railroad company contracting to deliver to a particular stock 
yard, all the livestock coming over its line to a certain point, 
enters into an illegal contract. It is its duty to transport over 
its road and deliver to all stock yards reached by its tracks or 
connections, all livestock consigned upon the same terms, and in 
the same manner as under like conditions, it transports and de- 
livers to their competitors. This duty may be enforced by in- 
junctions." The legal duty of carriers is not fully discharged by 
receiving on, and discharging from their cars Hvestock at a 
depot, access to which must be purchased.' Railroad companies 
cannot absolve themselves from liability under their statutory 
duty to keep suitable pens for the shipment of cattle, by show- 
ing that they were so badly kept or constructed as to make it con- 
tributory negligence upon the part of the shipper to use them. 

Cattle are to be considered as having been received by the car- 
rier for shipment and held by it as a common carrier, where 
they have been placed in a pen by direction of the carrier's 
agent, and the work of putting them on the cars has begun,' 
and a carrier cannot avoid liabihty for failure to provide suitable 
pens for stock, simply because the shipper was looking after his 
stock and saw the pens.' A railroad company, by consent to the 

' Oomngton Stock Yards Co. v. KeitJi, 139 TJ. S. 128, 35 L. ed. 73. 
' McCoy V. Gindnnati, I. St. L. & 0. B. Co. 13 Fed. Rep. 3. 
^Kdth V. Kentucky Cent. R. Co. (Ky.) 1 Inters. Com. Rep. 601. 
« &ulf, 0. & S. F. B. Co. V. Trawick, 80 Tex. 270. 
' Mason v. Missouri Pac. B. Co. 25 Mo. App. 478. 



DtJTT TO PEOVIDE PLACE TO EEOEIVB AND DELIVBE STOCK. 237 

use of ground in loading cars by several persons, impliedly in- 
vites others having occasion to load cars at that place, to use the 
ground for that purpose. It is liable for injury to a horse from 
stepping into a hole left by it at a place which it has expressly 
*r impliedly invited persons to use in loading cars, although the 
loading might have been done more speedily by other means than 
1;he use of horses, where their use is reasonably well adapted to 
the work.' If, under any circumstances, a carrier can be excused 
from liability for injuries to a horse by reason of a defect in a 
platform from which it is loading the horse upon a car, it cannot 
be excused in the absence of full diligence to discover the de- 
fect before exposing the horse to the risk of injury.' 

A railroad company is guilty of negligence rendering it liable 
to a shipper of cattle accompanying them in their transportation, 
in failing to plank and provide proper guard rails upon a bridge 
■constituting part of its station grounds, upon which such shippers 
will have occasion to go in looking after their stock, in conse- 
quence of which omission such shipper falls off the bridge and is 
injured.' It is the duty of a carrier of stock by railroad to pro- 
vide a safe mode of delivery, by having a platform suitable for 
the purpose of unloading stock." 

a. "Texas Fever." 

In several of the states, statutes are in force, prohibiting any 
person from bringing into such states, cattle in such a condition 
as to communicate Texas fever to other cattle, under severe pen- 
alties, both civil and criminal. These statutes relieve the com- 
mon carrier from the duty, as to animals thus conditioned, other- 
"wise imposed upon it as to cattle in general, of accepting them 
for transportation. In several instances attempts have been made 
to hold the carrier liable for damages resulting from the trans- 
portation by it of such cattle. But the courts have uniformly 
permitted the carrier to defend, on the ground that it acted in 

' Chicago & I. Coal B. Co. v. De Baum, 3 Ind. App. 381. 
^East Tennessee, V. & G. B. Co. v. Herrman, 92 Ga. 384 
'IlUnms Cent. B. Co. v. FoUy, 53 Fed. Rep. 459. 
■» Owen V. Louisville &N. B. Co. 87 Ky. 626. 



238 TEANSPOKTATION OF CATTLE. 

ignorance of the condition of the animal carried, and that such 
condition could not have been discovered by the exercise of 
proper care and caution.' 

§ 61. Carrier Must not Discriminate between 

Shippers. 

Carriers cannot make the yards of a certain company their ex- 
clusive stock depot at a certain place, there being other stock 
yards near by charging lower rates." A firm of cattle dealers in 
the city of New York, who procure their cattle on a large scale 
from Chicago and other western points for domestic consumption, 
as well as for export, made an arrangement with two interstate 
rail carriers, constituting a through line from Chicago to a^ew 
York, that the said firm will, under the name of an express com- 
pany of their own creation, furnish not less than 200 or more 
than 400 improved livestock cars for the transportation of these 
cattle. For the rental of these improved stock cars the carriers 
pay this express company three fourths of a cent per mile, whether 
loaded or empty. Extraordinary facilities and rights of way are 
given these cars to enable them to make a large mileage, and 
they make more than twice the mileage of ordinary stock cars. 
Besides this, the carriers pay 50 cents for the loading of each of 
said cars with cattle at the Union Stock Yards, in Chicago, for 
which no charge is made against the express company or the firm 
represented by it. In addition to this the carriers pay this firm 
yardage at the rate of 3^ cents per hundred pounds on all their 
cattle, and upon all other cattle hauled for other firms in the care 
of this firm, owning the express company, to its yard at pier 45, 
East Eiver. This yardage charge is thus paid to the said firm by 
the said carriers for keeping their cattle in the firm's own yards 
after delivery of them to the firm, and then this yardage charge 
is deducted from the tarifE rate charged by the carrier. The 
amount of these rebates to this firm in rates on these cattle by 

' Furley v. Chicago, M. <Sb St. P. B. Co. (Iowa) 23 L. R. A. 73; Patee v. Adcms, 
37 Kan. 133; Missouri Pae. B. Go. v. Finley, 88 Kan. 550. 

' Keithf. Kentucky Cent. B. Co. 1 Inters. Com. Rep. 601 : McCoy y. Cincinnati, 
1., St. L. & C. B. Co. 13 Fed. Rep. 81. 



DUTY TO FEED, WATEE AND CAKE FOE STOCK. 239 

these carriers more ttan pays the entire cost of the improved 
stock cars within two years after operations are commenced with 
them, including the expenses of operation, leaving said firm own- 
ing the cars and still operating them with all these advantages in 
rates and facilities. It was ruled by the Interstate Commerce 
Commission that this is an unlawful preference to the firm owning 
these improved stock cars and a violation of the Act to Regulate 
Commerce,and that it was an unlawful and unjust prejudice to other 
cattle firms and dealers in New York who are competitors in the 
business of said firm owning said improved stock cars.' 

§ 62. Duty to Feed, Water and Care for Stock. 

The carrier, among his other duties, is primarily bound to pro- 
vide food and water, a place for sleeping, and, if necessary, a 
place for exercise." But he may transfer such duty to the owner 
by express contract.' He may even then become liable for fail- 
ure to furnish proper facilities to the consignor for such purposes.' 
Proper attention must be given to the food, water and ventilation 
of livestock, unless that duty has been assumed by the owner 
under contract with the carrier.' If the carrier intrusted with a 
living animal of any description for transportation should suffer 
it to die from starvation or thirst, or for the want of ordinary 
care and attention in any respect which it required, he would be 



C V. Delaware, L. & W. R. Co. S Inters. Com. Rep. 502. 

^lUinoU Gent. B. Co. v. Adams, 42 III. 474, 92 Am. Dec. 85; Toledo, W. & W. 
B. Co. V. Thompson, 71 111. 434; Dunn v. Hannibal & St. J. B. Co. 68 Mo. 
268; Harris v. Northern Indiana B. Co. 20 N. Y. 232; Oragin v. Wew York 
Cent. B. Co. 51 N. T. 61, 10 Am. Rep. 559; TaffVale B. Co. v. Giles, 23 L. 
J. Q. B. 43; Great Northern B. Co. v. Bwaffield, L. R. 9 Exch. 132. 

'Bmith & North Ala. B. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Heine- 
man V. Grand Trunk B. Co. 31 How. Pr. 430; Oragin v. New York Cent. 
B. Co. supra. 

* Wabash, St. L. & P. B. Co. v. Pratt, 15 111. App. 177. 

^Toledo,!?. <bW. B. Co. v. EamUton, 76 111. 393; Kinnick v. Chicago, B. 1. & 
P. B. Co. 69 Iowa, 665; Gulf. C. & 8. F. B. Co. v. Wilhelm (Tex. App.) 
April 29, 1891; Oragin v. New York Cent. B. Co. supra; Toledo. W. & W. B. 
Co. v. Thompson, 71 111. 434; Illinois Cent. B. Co. v. Adams, 42 111. 474, 92 
Am. Dec. 85; Dunn v. Hannibal & St. J. B. Co. 68 Mo. 268; Harris v. 
Northern Indiana B. Co. 20 N. Y. 232; Bryant v. Southwestern B. Co. 68 Ga. 
805; Dawson v. St. Louis, K. C. & N. B. Co. 76 Mo. 514; Wood v. Chicago, 
IL & St. P. B. Co. 68 Iowa, 491, 56 Am. Rep. 861. 



24:0 TEAJSSFOETATION OF CATTLE. 

liable, unless he should be relieved from the duty by contract 
with his employer.' A steamship is not justified in sailing with- 
out taking on board fodder provided for cattle carried by her 
under an agreement that she will supply conveyance for the nec- 
essary fodder, by a conversation with the drover in charge of the 
•cattle, in which he states that there is fodder enough, and that 
the steamer should go on without waiting to take aboard the 
remainder, — especially where, after she hauls into the stream, she 
waits there a time long enough to bring the "lighter haviag the 
fodder aboard alongside and unload, and the owners of the cattle 
demand that the remaining fodder be taken aboard and agree to 
pay the towage of the lighter." 

If a railroad company accepts hogs for transportation, which, 
from the crowded manner in which they are necessarily carried 
upon its cars, are liable to die from overheating, it is the duty of 
the agents of the road to apply water to them externally when 
it is found necessary to prevent such overheating, and if they fail 
to do so the company will be liable.' It is not relieved from the 
duty of exercising proper care and diligence in seeing to the needs 
of animals on its train, by reason of the rush of business.* A 
contract for the transportation of cattle upon a vessel imphes 
that the space to be allotted them for the voyage shall be suffi- 
ciently ventilated, and a contract for the shipment of cattle upon 
a vessel, requiring the ship to insure, means that the number of 
cattle specified, if carried in the space allotted by the ship for 
their transportation, can be insured ; and if insurance cannot be 
•effected upon cattle placed in the space allotted, without addi- 
tional ventilation, which the master refuses to provide, the ship- 
per is justified in refusing to ship more than the number of cattle 
which can be insured, and may recover from the ship the dam- 
.ages sustained by reason of the nonshipment of the number of cat- 



' South & North Ala. B. Co. v. Menlein, 52 Ala. 606, 23 Am. Rep. 578. 

^The Connemara (D. C. S. D) 51 Fed. Rep. 304. 

'Illinois Cent. R. Co. v. Adams, 42 111. 474, 92 Am. Dec. 85; Toledo, W. diW. 

M. Co. V. Thompson, 71 111. 434; Toledo, W. & W. B. Co. v. Hamilton, 76 111. 

893. 

^International d O. N. B. Co. v. Lewis (Tex. Civ. App.) Oct. 4, 1893. 



DtTTT TO FEED, WATER AND OAEE FOE STOCK, 241 

tie shut out by the master's refusal to supply sufficient ventilators.' 
Contract that it sliall not be liable for anything beyond its own line 
will not relieve it from liability for injuries resulting from a re- 
fusal to feed and water the stock at its terminus, although the in- 
jury does not appear until after delivery to a connecting line." 

A carrier has the duty to feed and water stock during trans- 
portation, and cannot transfer it to the shipper by a custom re- 
quiring him to go along on the same train with the stock to feed 
and water them at his own risk and expense.' In case of special 
contract whereby the owner agrees to and does take charge of 
the stock, the burden of proving negligence is on him.'' The du- 
ties of carriers of live stock, and their responsibilities has been 
repeatedly stated by the courts.' A shipper of live stock may 
avail himself of a contract with a carrier to look after the stock, 
using due care and caution, without losing his status as a passen- 
ger, notwithstanding such contract does not relieve the carrier 
from its duty to look after the stock.' Consent by a shipper of 
cattle that they need not be fed and watered at a certain station 
does not estop him from setting up damages to them by an un- 
usual delay of the carrier caused by its negligence in not making 
the customary time to the next feeding station.' Although the 
shipper undertakes the feeding and watering of stock, yet if the 
animals are carried beyond their destination ....d there detained 
for some time before they are returned, the carrier will be re- 
sponsible for its failure to properly care for the stock, after the 
destination is passed." 

A carrier is liable for injuries to stock delivered it for trans- 
portation, arising from failure to furnish the proper facilities for 

^TheAlmh, (D. C. E. D. N. T) 59 Fed. Bep. 630. 

s Galveston, H. & 8. A. B. Co. v. Imy (Tex. Civ. App.) Oct. 4, 1893. 

» Missmiri, Pac. B. Co. v. Fagan, 2 L. R. A. 75, 73 Tex. 127. 

*McBeath v. Wabash, B. L. & P. B. Co. 20 Mo. App. 445; Clark v. St. l.ovis, 

K. a. & N. B. Co. 64 Mo. 440; Buddy v. Wabash, St. L. & P. B. Co. 30 Mo. 

App. 206. 

* See notes to International & C N. B. Co. v. TisOaU (Tex.) 4 L. R. A. 545; 

Missouri Pae. B. Co. v. Fagan (Tex.) 3 L. R, A. 75. 

* International & Q. iV. B. Co. v. Armstrong (Tex. Civ. App.) Sept. 30, 1893. 
'jSS. Louis, A. & T. B. Co. v. Turner, 1 Tex. Civ. App. 625. 

* Bryant v. Southwestern B. Co. 68 Ua. 805. 

16 



242 TEANSPOETATIOIT OF CATTLE. 

feeding and watering, though the shipper has agreed to accom- 
pany his stock and feed and water them at his own risk.' But a 
shipper of livestock by railway, under an agreement that he shall 
feed, water, and take care of the stock at his own expense in case 
of accidents or delays of time from any cause whatever, cannot 
recover damages resulting from his failure so to do, although un- 
necessary time is consumed in the transportation, and increased 
expense is made necessary thereby." The fact that one of two 
trains carrying cattle was more than twenty-eight hours on the 
road without feeding or watering them, in violation of U. S. Eev. 
Stat. § 4386, wiU not make the company liable for damages to 
the cattle during shipment, where the shipper had a special con- 
tract binding him to take care of, feed and water them on the 
road, and there is nothing to show what part of the damage to 
them was caused by failure to feed and water them.' Under the 
statute prescribing a penalty to be recovered by the owner against 
a carrier who shall fail to sufficiently feed and water Hvestock 
during transportation and until delivery, in order to authorize a 
recovery of such penalty the statutory grounds must be particu- 
larly set forth and clearly established by proof.* 

Tex. Eev. Stat. art. 284, imposing a penalty upon any carrier 
who shall fail to sufficiently feed and water livestock conveyed 
by it, unless otherwise provided by special contract, -is a legitimate 
exercise of the state's police power, and not an illegal interference 
with the Interstate Commerce Act, even when appHed to an in- 
terstate shipment. Neither is it invahd on the ground that it is 
vague, indefinite, and uncertain. And the statutory penalty for 
failure to sufficiently feed and water livestock conveyed by a 
common carrier, authorized by this statute, is not included in a 
contract for the shipment of cattle providing that suit for dam- 
ages must be brought within forty days next after the damages 
shall occur." A carrier of stock who is guilty of a breach of duty 

' Taylor, B. & H. B. Co. v. Montgomery (Tex. App.) AprU 29, 1891; Taylor, 

B. & H. R. Co. V. Sublett (Tex. App.) April 29, 1891. 
^Boaz V. Central B. & Bkg. Go. 87 Qa. 463. 
» Missouri Pae.B. Co. v. Texas & P. B. Co. 41 Fed. Kep. 319. 
^ Good V. Galveston, H. & 8. A. B. Co. (Tex.) 4 L. R. A. 801. 
» Oidf, C. & S. V. B. Co. V. Cray (Tex. Civ. App.) Jan. 24, 1894. 



BXTEAOEDINAEY UNLOADING OF LIVESTOCK IN TRANSITU. 243 

in failing to feed and water the same at its terminus is liable for 
an injury to the stock caused thereby, although the damage does 
not appear until the stock are upon a connecting line, and the 
contract of shipment limits its liability to injury occurring on its 
own line.' Under a declaration in an action against a railroad 
company, which charges delay in a train in which horses are 
shipped, and also failure to furnish opportunity for feeding and 
watering them, the plaintiff is entitled to recover upon showing 
that defendant omitted to perform its duty in the latter respect, 
although it was not liable for the delay of the train.' 

§ 6S. Extraordinary Unloading of Livestock in 

Transitu. 

A provision, in a contract for the transportation of cattle, that 
the shipper should load and unload them at his own risk, does not 
deprive the carrier of its just, rational and necessary discretion of 
determining when the exigencies of transportation require them 
to be unloaded.' Where the contract for the transportation of 
cattle placed the entire risk of the journey and the duty of load- 
ing and unloading upon the shipper, requiring the carrier only to 
furnish assistance, the train having been delayed by a snowstorm, 
the carrier is under no obligation to unload the cattle when the 
shipper had charge of them and might himself have unloaded 
them." But a railroad company cannot make a valid contract 
exempting itself from liability by reason of its own negligence or 
the negligence of its employes in failing to furnish a shipper of 
stock opportunities for loading and unloading it for the purpose 
of feeding, watering, and taking care of it.' Where the transit 
of a consignment of livestock is delayed without justifiable ex- 
cuse, the carrier is liable for damages resulting from a refusal to 
allow the shipper to unload and water the stock." 

' Gaheston, S. & 8. A. JR. Oo. v. Herring (Tex. Civ. App.) Jan, 10, 1894. 

* Smith V. Michigan Cent. B. Co. (Mich.) April 17, 1894. 
'McAlister v. Chicago, B. I. & P. B. Oo. 74 Mo. 351. 

*Penn v. Buffalo & E. B. Co. 49 N. Y. 204, 10 Am. Rep. 355. 
^Alyrams v. Milwmkee, L. 8. & W. B. Oo. 87 Wis. 485. 

* Harris v. Northern Indiana B. Co. 20 N. Y. 233. 



244: TEANSPOETATION OF CATTLE. 

Notwithstanding a contract for transportation of livestock ex- 
empted the carrier from any liability for damages resulting from 
delay, it is the duty of the carrier, upon reasonable request of the 
shipper, after the train is stopped by a flood, to so place the ears 
as to be convenient to the usual and accessible means of unload- 
ing, if that is practicable, and failure to do so carries with it the 
liability for resultant damages. In such a case, if the conductor 
has no reason to believe that he can run the train through the 
high water, of which he has been warned, his refusal of the re- 
quest of the shipper to have the cars placed so that the stock 
can be unloaded at a station, before the high water was reached, 
is negligence which renders the carrier liable for damages caused 
by the train being delayed at a point where the stock could not 
be unloaded.' The carrier's refusal to lay out at a way station 
a car loaded with cattle and hogs, upon the request of the ship- 
per who discovers some of the cattle in a bad condition, on the 
ground that the stock pen at that station will not hold the hoge 
safely, is not justified where the cattle might have been unloaded 
into the pen and the hogs retained in the car, — especially if it 
was the carrier's duty to have a safe pen for hogs as well as for 
cattle at that station." 

Section 4386 of the United States Eevised Statutes, prohibit- 
ing a carrier from transporting livestock in the same ears for 
more than twenty-eight consecutive hours without unloading, does 
not give the carrier the right to confine stock in cars for such 
time, whether it would be negligent or not so to do.' A carrier 
who violates such statute is liable, not only for the penalty pre- 
scribed thereby, but is negligent per se and liable for the damages 
resulting therefrom. The fact that the stock yards of the carrier 
at the regular station for unloading and feeding were on fire when 
the train passed is no excuse for not unloading the stock at some 
adjacent point.' Although by the contract for the transportation 
of livestock the shipper is to feed, water, and care for them while 



i V. Ifew York Cent. M. Co. 84 N. Y. 5. 
» Johnson v. Alabama <& V. B. Co. 69 Miss. 191. 
* Missouri Pac. S. Co. v. Ivy, 79 Tex. 444. 
^NashviOe, 0. <fe St. L. B. Co. v. Heggie, 86 Ga. 210. 



EXTEAOEDINAKT UNLOADING OF LIVESTOCK IN TEANSITtJ. 246 

in transit, if they are detained to such an extent that it is neces- 
sary, in order to avoid injury, to unload, water and feed them, the 
carrier is liable for damages arising from its failure to provide the 
shipper with suitable facilities for so doing.' A railroad company 
which fails to comply with TJ. S. Kev. Stat. § 4386, imposing a 
penalty for keeping live stock in the cars more than twenty-eight 
consecutive hours, except in certain cases, is liable to the owner 
of the stock in damages, as well as to the penalty, where such . 
keeping does not result from any of the exceptions mentioned.'' 
A carrier undertaking to transport stock in cars which are not 
properly constructed for feeding and watering, is bound to furnish 
places where the stock may be unloaded, watered, and fed, with- 
out injury, in all kinds of weather, under Tex. Rev. Stat. art. 284, 
requiring carriers to feed and water livestock during transporta- 
tion unless otherwise provided by special contract.' 

The relative duty of carrier and shipper is discussed in an in- 
teresting ease on appeal. Under a special contract under which 
the appellee seeks a recovery, the defendant corporation let to 
appellee an entire car, to be used by him in the transportation of 
what is denominated " emigrant movables;" consisting, in this in- 
stance, of six horses and a lot of miscellaneous property, — corn, 
feed stuff, furniture, etc. The car was under the charge and in 
the care of appellee, was loaded by him at his own discretion, and 
was held in the defendant's yards at Chicago, to meet appellee's 
wishes, for about three days, in order to permit him to complete 
his load ; and this while the horses were all on the car, they hav- 
ing been loaded at a point thirty miles north of Chicago. The 
contract stipulated, for the railroad company, against liability on 
its part, except for injuries resulting from collisions or derailment 
in transportation. The railroad did not hmit its liability for will- 
ful injuries or gross negligence. By this special contract the ap- 
pellee agreed to feed, water and take care of his stock, and to 
load and xmload the animals, and to exempt the raHroad company 

' DunuY. Hannibal & St. J. B. Co. 68 Mo. 268; Taylor, B. c§ H. B. Co. v. 

Montgomery (Tex. App.) April 39, 1891. 
» Bale V. Missouri Pac. B. Co. 36 Neb. 266. 
^International & Qt. N. B. Co. v. McBae, 83 Tex. 614. 



246 TEANSPOBTATIOJf OF OATTLE. 

from loss occurring by jumping from the cars, delay of trains, or 
any damage the stock might sustain, except such as should result 
from collisions or derailment of cars in course of transportation. 
Suitable provision was made for feeding and watering the stock 
on the car, and they were properly fed and watered by appellee, 
who accompanied the stock, without further charge than the price 
paid for the use of the car. After the stock had been loaded and 
, kept confined in the car for nearly three days, the appellee com- 
pleted his additional loading, and the car was taken in charge by 
appellant, to be transported on its route to Jackson, Miss. The 
next day after leaving Chicago appellee discovered that one of the 
young stallions was down in the car. He got it up, but before 
reaching Centralia and about a day after the journey had been 
begun, the same young animal was found down again and, as was 
thought by appellee, to be down finally, as he expresses it. On 
reaching Centralia appellee made application to the raih-oad com- 
pany's agent to be laid out for twenty-four hours, to the end that 
he might rearrange his load (then plainly seen to have been im- 
properly loaded) and to rest his stock, which application was not 
accepted and complied with, though the car of appellee was actu- 
ally taken out of the train in which it was being carried, and was 
permitted to lie at Centralia for a few hours, — a time too short, 
however, as appellee thought, to afford him opportunity to un- 
load, rest his stock and rearrange the load. 

The question, then, considered by the court is. Had the appel- 
lee the right to demand that he be laid out at Centraha ? If 
he had this right, how was it acquired ? Was it an imphed ob- 
ligation resting upon the railroad ? If it finds rest under the 
contract, it wiU be found by implication. There is no express 
obligation of this character appearing on the face of the instru- 
ment. If it was an implied obligation on the railroad, how is 
the implication raised ? If it was the custom of the railroad com- 
pany to lay out cars in which a few horses were carried, then 
there was an implied obligation assumed to comply with such 
custom on the part of the railroad. But the undisputed evidence 
perfectly shows that, while it was the custom to lay out carload 
lots of animals every twenty-four or twenty-eight hours, in order 



EXTRAOKDINAET UNLOADING- OF LIVESTOCK IN TEANSITU. 247 

that they might be fed, watered, and cared for, no such custom 
prevailed or existed in cases where a few animals only were loaded 
in a car, and where provision was made thereon for watering and 
feeding the animals. The custom was unknown in cases of the 
latter character. JSTor does the absence of the custom seem un- 
natural, there being no necessity, apparently, in ordinary cases, 
for any unloading. The cases of Illinois Gent. R. Co. v. Adams, 
42 111. 474, 92 Am. Dec. 85, and Toledo, W. da W. E. Co. v. 
Thompson, 71 111. 434, — raised an implied obligation on the car- 
rier to throw water on hogs crowded in a car, because of the 
known custom of railroads to so apply water to that particular 
animal. In the case of Kinnick v. Chicago, R. 1. <& P. R. Co. 
69 Iowa, 665, the railroad company received a carload of hogs 
from plaintiff, and, after loading and starting them on their jour- 
ney, there was such delay, by reason of the wrecking of another 
train, that a number of the hogs died; and the court held, as- it 
was a natural propensity of hogs to struggle to get near to or 
away from the doors of a car, when it is left standing, and to 
"pile up" on each other in such struggles, and thereby produce 
injury or death, and as it appeared that the injuries complained 
of were attributable to the failure of the railroad company to 
give the animals any attention during the twelve hours during 
which the train was standing still because of the obstructing 
wreck, that the company was liable because of its negligence, in 
this extraordinary danger to the animals, in failing to do what 
the delay and consequent peril to the animals required should be 
done. In Squire v. New York Cent, db H. R. R. Co. 98 Mass. 
243, 93 Am. Dec. 162, it was held that the court erred in charg- 
ing as matter of law, that if the plaintiff's agent informed the 
conductor that the mare was acting badly and in danger of being 
killed if carried further, and asked him to switch off the car, the 
conductor was bound to switch off, if it could reasonably have 
been done; and in Bills v. New York Cent. R. Co. 84 N. T. 5, it 
was said that if the plaintiff by his agent observed that the ani- 
mals were not being safely transported, and requested that the 
car which had no freight, and the use of which had been pre- 
paid, be set out on the side track, so that he could resume pos- 



24:8 TEANSPOETATION OF CATTLE. 

session of the animals, and if it could reasonably have been done, 
and this request was refused, such conduct of the carrier was 
grossly negligent. But there is no support in any of these cases 
for the proposition that there was an implied obligation in this 
case upon the railroad company to lay out the ear, which appellee 
had hired, for twenty-four hours at Centralia. The contrary is 
involved in these decisions. 

In the absence of any custom imposing obligation to lay out 
on the request of the appellee, what is there in the conduct of 
the parties to the contract which will authorize the conclusion 
that any purpose to lay out the car, after it had been started on 
its way to its destination, was in the minds of the company and 
the appellee ? What is the foundation for implying that the 
minds of the parties ever dwelt upon or met in any unexpressed 
agreement that appellee should have such right ? There appears 
no circumstance, even, which tends to support that proposition. 
On the other hand, there is much in the evidence of the appellee 
which strongly shows that he regarded the use of the car as con- 
fined to one continuous trip. He placed three horses in each end 
of the car, and then partitioned both ends in front of the horses, 
their heads being towards the middle doors of the car. He like- 
wise made stalls for the horses, respectively, within the parti- 
tioned spaces, and then he proceeded to fill up the vacant space 
in the middle of the car with a large quantity of corn and other 
feed stuff, household goods, etc. The whole arrangement of the 
carload, as made by the appellee, precluded the unloading of the 
car, unless with much labor and considerable time. It is per- 
fectly apparent that neither when the contract was executed nor 
when the car was loaded was there any thought of having a lay- 
out accorded him while on the way, in the mind of appellee him- 
self even. There is no ground for maintaining that there was 
any implied obligation, under the contract, to give appellee the 
desired layout. 

It is said that by section 4386, U. S. Kev. Stat., a definite rule 
for the transportation of animals is created, and penalties pre- 
cribed for disregard of the rule. With this rule and its enforce- 
ment the courts of the state are no way concerned. But the Act 



caeeier's eesponsibilitt foe livestock. 24.9 

itself, in a subsequent section, provides for the recovery of the- 
penalty in a civil action in the proper Federal court. Is there 
an obligation, founded in common humanity, which required the 
railroad company to lay out appellee's car, in order that dumb 
brutes may have relief from suffering and rescue from death ? 
The evidence proves that the appellee did not himself think the 
stock in the condition indicated in the foregoing question when 
he madS his request at Centralia to be laid out. Surely it cannot 
be believed that, if he then knew, or had reason to know, that 
very valuable stallions (one of which he had paid $800 for) and 
valuable mares were in peril of impending death or serious in- 
jury, self-interest as well as humanity, would not have constrained 
him to make a new contract for longer use of his car, or, if neces- 
sary, to abandon altogether his then contract with the railroad 
company, and take the chances of the trifling loss of $60, which 
he had bound himself to pay the railroad, by then and there un- 
loading his car and leaving the train. It is manifest that by keep- 
ing his stock on the car for three days before starting them south- 
ward from Chicago, and by so loading the car as to render it 
impossible to take the stock out without great trouble and delay, 
the appellee had placed himself in the unfortunate situation 
which confronted him at Centralia, and from which he could only 
extricate himself by making a new contract for the use of the car 
for a longer time than originally thought needful, or by abandon- 
ing his contract altogether, and removing his stock from the train.' 

§ 64- Carrier's Responsibility for Livestoch. 

The joint committee on railroad transportation, appointed by 
the railroads of the United States, have adopted, taking effect 
January 1, 1895, the following : 

Property shipped not subject to Uniform Bill of Lading Conditions, will be 
'charged twenty (20) per cent higher than as herein provided (subject to a 
minimum increase of one (1) cent per 100 lbs.) and cost of Marine Insur- 
ance. (See Rule 1, Appendix Uniform Bill of Lading.) 

.Station 189 

This Agrbbmbnt, made this day of 189 , by and be- 

' Illinois Cent. R. Co. v. Petersen, 14 L. R. A. 550, 68 Miss. 454. 



250 TEANSPOETATION OF CATTLE. 

tween the . Company, hereinafter called the carrier, and 

(Shipper's name) hereinafter called the shipper: 

WITNESSETH, That the said shipper has delivered to the said carrier Live 
Stock of the kind and number, and consigned and destined by said shipper as 
follows: 



Consignee, Desti- 
nation, ETC. 


Number and Description or 
Stock. (Shipper's Load and Count.) 


Weight. Subject 
to cokrection. 




















Advance Charges, 
Car Kos. and Xniti 


$ 


als 







for transportation from to destination, if on the said carrier's line 

of railroad, otherwise to the place where said Live Stock is to be received by 
the connecting carriers for transportation to or toward destination, and that 
the same has been received by said carrier for itself and on behalf of con- 
necting carriers, for transportation, subject to the official tariffs, classifications 
and rules of the said company, and tjpon the Following Terms and Con- 
ditions, WHICH ABE Admitted and Accepted by the said Shipper as 
JirsT AND Ebasonablb, viz: 

That said shipper, or the consignee, is to pay freight thereon to the said 

carrier at the rate of per which is the lower published 

tariff rate based upon the express condition that the carrier assumes liability 
on the said live stock to the extent only of the following Agreed Valua- 
tion, UPON WHICH Valuation is Based the Rate Charged for the Trans- 
portation OF THE said Animals, and beyond which valuation neither the 
said carrier nor any connecting carrier shall be liable in any event, whether 
the loss or damage occur through the negligence of the said carrier or con- 
necting carriers or their employees or otherwise: 

If Horses or Mules— not exceeding one hundred dollars each. 

If Cattle or Cows — not exceeding seventy-five dollars each. 

If Fat Hogs or Fat Calves— not exceeding fifteen dollars each. 

If Sheep, Lambs, Stock Hogs, Stock Calves, or other small animals— not ex- 
ceeding five dollars each. 

And in no event shall the carrier's liability exceed twelve hundred dollars 
upon any carload. 

That said shipper is to pay all back charges and freight paid by said carrier 
or connecting carrier upon or for the transportation of said live stock. 

That the said shipper is at his own sole risk and expense to load and take 
care of, and to feed and water said stock whilst being transported, whether de- 
layed in transit or otherwise, and to unload the same; and neither said carrier, 
nor any connecting carrier, is to be under any liability or duty with reference 
thereto, except in the actual transportation of the same. 



caeeiee's eesponsibility fok livestock. 251 

That the said shipper Is to inspect the body of the car or cars in which 
said stock is to be transported, and satisfy himself that they are sufiBcient 
and safe, and in proper order and condition, and said carrier or any connect- 
ing carrier shall not be liable, on account of any loss of or injury to said 
stock happening by reason of any alleged insufficiency in or defective condi- 
tion of the body of said car or cars. 

That said shipper shall see that all doors and openings in said car or cars are 
at all times so closed and fastened as to prevent the escape therefrom of any of 
the said stock, and said carrier or any connecting carrier shall not be liable on 
account of the escape of any of the said stock from the said car or cars. 

The said carrier or any connecting carrier shall not be liable for or on ac- 
count of any injury sustained by said live stock, occasioned by any or either 
of the following causes, to wit: Overloading, crowding one upon another, 
kicking or goring, suffocating, fright, burning of hay or straw or other ma- 
terial used for feeding or bedding, or by fire from any cause whatever, or by 
heat, cold, or by changes in weather, or for delay caused by stress of weather, 
by obstruction of track, by riots, strikes or stoppage of labor, or from causes 
beyond their control. 

That in the event of any unusual delay or detention of said livestock, 
caused by the negligence of the said carrier, or its employees, or its connect- 
ing carriers, or their employees, or otherwise, the said shipper agrees to accept 
as full compensation for all loss or damage sustained thereby the amount 
actually expended by said shipper in the purchase of food and water for the 
said stock, while so detained. That no claim for damages which may accrue 
to the said shipper under this contract shall be allowed or paid by the said 
carrier, or sued for in any court by the said shipper, unless a claim for such 
loss or damage shall be made in writing, verified by the affidavit of the said 

shipper or his agent, and delivered to the (Railroad Agent's title) 

Agent of the said carrier, at his office in (Agent's ad- 
dress) within five days from the time said stock is removed from 

said car or cars; and that if any loss or damage occurs upon the line of a con- 
necting carrier, then such carrier shall not be liable unless a claim shall be 
made in like manner, and delivered in like time, to seme proper officer or 
agent of the carrier on whose line the loss or injury occurs. 

That whenever the person or persons accompanying said stock under this 
contract, to take care of the same, shall leave the caboose and pass over or 
along the cars or track of said carrier, or of connecting carriers, they shall 
do so at their own sole risk of personal injury, from whatever cause, and 
neither the said carrier, nor its connecting carriers, shall be required to stop 
or start their trains or caboose cars at or from the depots or platform, cr to 
furnish lights for the accommodation or safety of the persons accompanying 
said stock to take care of the same under this contract. 

And it is further agreed by said shipper, that in consideration of the prem- 
ises and of the carriage of a person or persons in charge of said stock upon 
a freight train of said carrier or its connecting carriers without charge, other 
than the sum paid or to be paid for the transportation of the livestock in 



252 TEANSPOETATION OF CATTLE. 

charge of which he Is, that the said shipper shall and will indemnify and 
save harmless said carrier and every connecting carrier, from all claims, liabil- 
ities and demands of every kind, nature and description, by reason of personal 
injury sustained by said person or persons so in charge of said stock, whether 
the same be caused by the negligence of said carrier or any connecting car- 
rier, or any of its or their employees, or otherwise. 

And (Skipper's name) do (does or do) hereby 

acknowledge that (he or they) had the option of ship- 
ping the above-described live stock at a higher rate of freight according to 
the official tariffs, classifications and rules of the said carrier and connecting 
carriers and thereby receiving the security of the liability of the said carrier 
and connecting railroad and transportation companies as common carriers of 
the said live stock upon their respective roads and lines, but ha., {luu or 
have) .- voluntarily decided to ship same under this contract at the reduced 
rate of freight above first mentioned. 

The Company, 

By 

[Station Agent.] 

Witness my hand 

[Shipper.] 
By -- 

[Shipper's Agent.] 



[Witness.] 

Contract with Man ob Men in Charge. 

In consideration of the carriage of the undersigned upon a freight train 
of the carrier or carriers named in the within contract without charge, other 
than the sum paid or to be paid for the carriage upon said freight train of 
the live stock mentioned in said contract, of which live stock.. (J om or we are) 
..in charge, the undersigned do.. ((foes or <?o).. hereby voluntarily assume aU 
risk of accidents or damage to..(^is or ih^ir).. peison and property and do.. 
(does or rfo).. hereby release and discharge the said carrier or carriers from 
every and all claims, liabilities and demands of every kind, nature and descrip- 
tion for or on account of any personal injury or damage of any kind sustained 
by the undersigned so in charge of said stock, whether the same be caused by 
the negligence of the said carrier or carriers or any of its or their employees 
or otherwise. . 

..'e*. ) [Signature 

[• of Man 

) in CMrgeJ] 



[Witness.] 



oaeeiee's eesponsibility foe livestock. 253 

The duties and responsibilities of railway companies as shippers 
•of live animals are precisely those of a common carrier with re- 
spect to other property committed to its care for transportation, 
•except that they are not insurers against losses and injuries re- 
sulting from the inherent nature, propensities, or habits of the 
animals themselves.' A carrier of livestock is not an insurer 
against injuries unavoidabty resulting from the inherent nature 
or propensities of the animals, or against loss caused by the act of 
God." It is not an insurer of livestock, but must provide suit- 
able means for its conveyance, and use all reasonable diligence 
and forethought in the varying circumstances arising in the busi- 
ness.' They incur the responsibilities of common carriers as to 
such freight ; but, at the same time, where an injury has hap- 
pened to them it is competent for the carrier to show that it oc- 
curred through the " proper vice " of the animal, and not from 
any negligence on his part." As insurers they are not liable for 
accidents happening through the inherent vice of the thing in- 
jured, but only for such as happen through adventitious causes.' 
While common carriers are insurers of inanimate goods against 
all loss and damage except such as is inevitable or caused by pub- 
lic enemies, they are not insurers of animals against injuries aris- 
ing from their nature and propensities, and which could not be 
prevented by foresight, vigilance and care." In the transporta- 
tion of livestock, in the absence of negligence, the carrier is re- 
lieved from responsibility for such injuries as occur from or in 
■consequence of the vitality of the freight. In all such cases, the 

> LouhmOe & IT. E. Co. v, Wl/nn, 88 Tenn. 330; Atlantic & P. B. Co. v. Laird, 

58 Fed. Rep. 760. 
'Black V. Chicago, B. & Q,. R. Co. 30 Neb. 197; Boehl v. Chicago, M. & St. P. 

B. Co. 44 Minn. 191, 45 Am. & Eng. R. Cas. 351; St. Louis & S. F. B. Co. 

V. Clark, 48 Kan. 321. 
» Coupland v. Sousaionie B. Co. 15 L. B. A. 534, 61 Conn. 531. 
*Michigan S. & N. L B. Co. v. McBonough, 21 Mich. 165. 
'^Bohl V. Parr, 1 Esp. 445; Hunter v. Potts, 4 Oampb. 208; Boyd v. Dubois, 3 

Campb. 133; KendaU v. London & S. W. B. Co. L. R. 7 Exch. 373. 
■*Pmn V. Buffalo <& E. B. Co. 49 N. Y. 204, 10 Am. Rep. 355; Clarke v. Boc7i- 

ester & S. B. Co. 14 N. Y. 570, 67 Am. Dec. 205; Michigan S. & N. 1. B. Co. 

V. McDonough, supra; Bissell v. New York Cent. R. Co. 25 N. Y. 443, 32 

Am. Dec. 369; Smith v. New Haven & N. B. Co. 12 Allen, 531, 90 Am. Dec. 

166. 



25i TBANSPOETATION OF CATTLE. 

carrier is relieved from responsibility if he can show that he lias 
provided all suitable means of transportation, and exercised that 
degree of care which the nature of the property requires.' 

A carrier is not liable for an injury inflicted by a live animal 
upon himself during transportation, or by other animals properly 
shipped in the same car, without fault on the part of the carrier." 
Where the carrier has provided proper cars, food, water, and the 
care which the particular class of animals he is transporting re- 
quire, he is relieved from the responsibility for injury which may 
occur through other causes than his own negligence ; — as from the 
disposition of the animals, which may result in their own injury, 
notwithstanding all proper precautions, or from the effects of the 
climate." 

Where the owner has a man in charge of the stock, this essen- 
tially qualities the obligation of the carrier.* But in many of the 
courts it is held that a railroad company drawing livestock in a 
car belonging to the stockowner is liable as a common carrier, 

' Cragin v. New York Cent. B. Go. 51 N. Y. 61, 10 Am. Rep. 559; LindsUy v. 
Chicago, M. & St. P. R. Co. 36 Minn. 539; Mmmuri Pac. B. Co. v. Pasam, 
2 L. R. A. 75, 73 Tex. 137. 

2 LoumUte, N. 0. & T. B. Co. v. Bigger, 66 Miss. 819. 

3 Blower v. OreatWestern B. Co. L. R. 7 C. P. 655; Mans v. FUchimrg B. Co. 

Ill Mass. 142, 15 Am. Rep. 19; Movlton v. St. PcmU, M. & M. B. Co. 31 
Minn. 85, 47 Am. Rep. 781; Pm-dington v. South Wales B. Co. 1 Hurlst. & 
N. 896; Boehl v. Chicago, M. ilk St. P. B. Co. 44 Minn. 191; Penn v. Buffalo 
& E. B. Co. 49 N. T. 304, 10 Am. Rep. 855; LouisviUe, JT. 0. & T. B. Co. v. 
Bigger, 66 Miss. 819; llliTum Cent. B. Co. v. BreUford, 18 111. App. 251; Cra- 
gin V. NewTorh Cent. B. Co. 51 N. T. 61, 10 Am. Rep. 559; Kendall v. Lon- 
don & S. W. B. Co. L. R. 7 Exch. 878; Michigan S. d: JT. I. B. Co. v.Mc- 
honough, 31 Micli. 265; McManus v. Lancaster diT. B. Co. 2 Hurlst. & N. 
702, 4 H. & N. 346; Louisville & N. B. Co. v. Wynn, 88 Tenn. 320; Squire 
V. NewTork Cent. & H. B. B. Co. 98 Mass. 389, 93 Am. Dec. 162; Louisville, 
C. & L. B. Co. V. Eedger, 9 Bush, 645; McCoy v. Keokuk <£ D. M. B. Co. 
44 Iowa, 424; Lee v. Baliegh & &. B. Co. 72 N. C. 386; South & JSorth Ala. 
B. Co. V. Henlien, 52 Ala. 606, 28 Am. Rep. 578; EmnsiMe & C. B. Co. v. 
Toung, 28 Ind, 516; McFadden v. Missouri Pac. B. Co. 92 Mo. 343; East 
Tenneiisee,V. & (?. B. Co. v. Hale, 85 Tenn. 69; Hart v. Pemn^lmma B. 
Co. 118 U. 8. 381, 28 L. ed. 717; Kansas City, St. J. & G. B. B. Co. v. Smp- 
son, 30 Kan. 645, 46 Am. Rep. 104; Smitha v. Louisville & N. B. Co. 86 
Tenn. 198: Soger v. Portmouth, S. & P. & E. B. Co. 31 Me. 228, 50 Am. 
Dec. 659; Missouri Pac. B. Co. v. Harris, 67 Tex. 166; Chicago, St. L. d W. 
0. B. Co. V. Abels, 60 Miss. 1017; Ayres v. Chicago & N. W. B. Co. 71 Wis. 
372; Indianapolis & St. L. B. Co. v. Jurey, 8 111. App. 160; Toledo, W. &W. 
B. Co. V. Hamilton, 76 111. 398; Bixford r. Smith, SZ N. H. 355, 18 Am. Rep. 
43; Wilson v. Hamilton. 4 Ohio St. 732. 
* Smith V. New Haven & N. B. Co. 12 Allen, 631, 534, 90 Am. Dec. 166. 



cakbiee's eesponsibilitt foe livestock. 255 

and cannot by contract exempt itself from liability for negli- 
gence.' Every limitation of the responsibility of a common car- 
rier should be expressed in each case in clear and unequivocal 
terms, and a limit of value may be applied to one animal only of 
a shipment." The mere fact of giving a pass, so that a servant 
of the owner may go with cattle which are shipped, does not re- 
lieve the carrier from responsibility for them.' 

Stipulations in a stock transportation contract entered into be- 
tween a shipper and an initial carrier are not available to a con- 
necting carrier unless ratified by some act or course of conduct 
on its part between its receipt and delivery of the stock, where it 
is left to the option of' connecting carriers either to accept or re- 
ject such stipulations. It is not the duty of a connecting carri- 
er's car inspector, to remove animals from a car received by it from 
the initial carrier in order to examine the car from the inside for 
dangerous projections, such as nails or spikes, where the shipper, 
who is traveling with the stock, stipulated in the transportation 
contract that he had examined the car, and that , it was suitable 
and sufficient.* A railroad company receiving cattle for transpor- 
tation, is liable for their loss by becoming mingled with other cat- 
tle, and being loaded in the wrong car at a station where all the 
cattle are unloaded to be fed under the exclusive charge of its 
agents.' The liability of a railway company as a common carrier 
of stock attaches from the time of an actual delivery to and ac- 
ceptance by the company, although the bill of lading is not signed 
until the following day, as Tex. Rev. Stat. art. 283, providing 
that the liability of common carriers shall attach, as at common 
law, after such signing, does not change the common law rule 
under which the liability began upon delivery.' 

Where a railroad company receives for shipment a car of hogs 
which is overloaded, it assumes all the responsibilities of a com- 

' Pordyee v. MeFlynn, 56 Ark. 424. 
» Eopkins v. Westeott, 6 Blatchf. 67. 
^Feinberg v. Delaware, L. & W. B. Co. 53 N. J. L. 451. 
^Western B. Co. v. Harwell, 97 Ala. 341. 
^Norfolk &W.R. Co. v. Suffollc, 89 Va. 703. 

'International & Q. N. B. Go. v. Dimmit County Pasture Co. 5 Tex. Civ. App. 
186. 



356 TEANSPOETATION OF CATTLE. 

mon carrier with reference to it, and cannot escape liability for 
■damage to the property, on the ground that the car was over- 
loaded.' "When a carrier fails, without good excuse, to deliver 
the goods on demand after they have reached their destination, 
he continues to hold them as carrier at his own risk and periL In 
the absence of statutory regulations, the liability of a common 
carrier continues after the goods have reached their destination, 
until the consignee has had a reasonable time to remove them; 
and after that time he is liable only as a warehouseman, or bailee 
for hire." Where the carrier does not hold itself out as a com- 
mon carrier of dogs, nor assume their transportation in that 
character, but, as a matter of accommodation to a passenger 
who was notified of its rules, permits its servant to receive them 
in its car, and accept pay for their transportation, such arrange- 
ment at most can only charge the carrier as a bailee, or private 
<3arrier.° Under a complaint charging the defendant as a com- 
mon carrier, no recovery can be had upon proof of a UabUity as 
a private carrier only.* 

The loss of animals through disease caused by negligence of the 
-carrier, in fumigating or cleansing his means of transportation, 
after carrying diseased animals liable to spread the contagion, 
will render the carrier liable.' "While the shipper is not bound 
to communicate to the carrier particulars in regard to the ani- 
mals transported, which are evident to the most casual obser- 
vation,' yet, peculiarities or defects in the animal not thus appa- 
rent, which would increase the risk and against which the carrier 
might adopt precautions, must be disclosed. A shipper of cattle 
.is not bound to comply with all the requirements of the Texas 
ilevised Statutes as to procuring and recoi'ding a certificate of 

^Mnnick-7. Chicago, S. I. dk P. B. Co. 69 Iowa, 668. 

'Zouisville &N. R. Co. v. Meduire, 79 Ala. 395. 

^Honeyman v. Oregon & C. B. Co. 13 Or. 353, 57 Am. Rep. 20. 

*Honeyman v. Oregon & 0. B. Go. supra. See note to International & 6. A". 
jB. Co. v. Tisdale (Tex.) 4 L. R. A. 545. 

• Tattersall v. National 8S. Go. L. R. 13 Q. B. Div. 397. 

*&iiU V. iVeM York, L. E. & W. B. Co. 41 Fed. Rep. 849: MeCum v. Bur- 
lington, C. B. & N. B. Go. 53 Iowa, 600. 



FOE WARDING BY CONNECTING LINE. 257 

inspection before delivering them to a carrier for shipment, but 
it is sufficient if the cattle have in fact been inspected.' 

§ 65. Forwarding ly Connecting Line. 

A carrier that receives cattle consigned to a point beyond its 
own road, with an agreement to deliver to a connecting line, has 
the duty to deliver them to the connecting carrier safely, whether 
in the original cars or in ears furnished by the connecting road; 
and this duty includes providing suitable bedding for the cars, 
partitions to keep the cattle apart and proper care in not unduly 
crowding them. The authority of the agent of a railroad com- 
pany to keep cattle in the original cars, or transfer them to others 
furnished by a connecting road, involves the duty of putting cars 
furnished by the latter in suitable condition, or else allowing the 
shipper to do so, under his contract to care for them during trans- 
portation." A clause in a, contract for the shipment of stock, 
limiting the liability of the carrier to its own line, enures to the 
benefit of each carrier over whose line the stock is shipped, and 
exempts it from liability for a connecting carrier's refusal to de- 
Hver the stock.' A carrier which receives horses for transporta- 
tion under a contract that it shall not be liable for injuries sus- 
tained after delivery to a connecting line is not liable for injuries 
received by them on such line." But if animals escape because 
of defective cars furnished by the initial carrier, beyond the 
limits of its own road, it will be liable, notwithstanding a con- 
tract limiting its hability to the end of its own line.' 

A provision in a contrg,ct for the transportation of cattle, ex- 
empting the carrier from liability for the cattle after they pass 
into the hands of another carrier, except to protect the through 
rate of freight, is valid and available to a lessor railway company 
sued for injuries to cattle during transportation on a contract 

^International &G.N. B. Go. v. Wright, 3 Tex. Civ. App. IPS. 
'Alabama G. S. B. Go. v. Tlwmas, 89 Ala. 294. 
' Iniei-national & O. N. B. Go. v. Mahula, 1 Tex. Civ. App. 183. 
*Gulf, e. &8. F. B. Go. V. AOcorn (Te«. Civ. App.) Sept. 13, 1893; Beau- 
mont r. Ganadian Pae. B. Go. 5 Mont. L. Rep. (Sup. Ct.) 355. 
liM, B. d W. B. Co. V. Strain, 81 III. 504. 
17 



258 TKANSPOKTATION OF CATTLE. 

made by its lessee.' The failure of a railroad company to trans- 
fer stock immediately to a connecting line, or to notify the con- 
signees or the agents of the connecting line for three hours aft6r 
the arrival thereof, notwithstanding repeated inquiries therefor, 
constitutes gross negligence." Loss of cattle delivered to a rail- 
road company by its own negligence, committed before the cattle 
are delivered to a connecting carrier, is not within Ya. Code, 
§ 1295, providing that the liability of a carrier accepting anything 
for transportation beyond its own line shall extend to the point 
of ultimate destination, unless there is a contract in writing to the 
contrary signed by the shipper or his agent, and that even in such 
case the carrier shall be liable for the whole route unless within 
a reasonable time satisfactory proof shall be given to the consig- 
nor that the loss or injury did not occur while the thing was in 
its charge, although written contracts are signed by the shipper.' 
Under a contract for the shipment of horses, stipulating that 
the carrier shall not be liable at all after the horses are delivered 
to its connecting line, except to protect the through rate of 
freight, the carrier is not liable for injuries received after it has 
delivered them in good condition at the stockyards of a connect- 
ing road.' A common carrier which has entered into a contract 
for the shipment of stock stipulating that its liability as a carrier 
shall cease upon delivery of the stock to a connecting line is not 
relieved from responsibility by delivering the animals to a stock- 
yards company for delivery to the connecting carrier.' A car- 
rier seeking to enforce a provision of a contract of shipment of 
livestock, that notice of damage to them shall be given, before 
their removal, to the station master at the station where they are 
delivered to a connecting road, must have afforded reasonable 
time, opportunity, and facilities for complying therewith," 

' International & O. N. R. Co. v. Thornton, 3 Tex. Civ. App. 197. 

2 Bock Island & P. B. Co. v. Potter, 36 111. App. 590. 

» Nm-folk & W. B. Co. v. Sutherland, 89 Va. 703. 

" Gulf, 0. & 8. F. B. Co. V. Tennant (Tex. Civ. App.) June 8, 1893; Alabama 
G. B. Co. V. Thomas, 83 Ala. 343. 

» Gulf, a & 8. F. B. Co. V. JEddins (Tex. Civ. App.) April 35, 1894 

« Gulf, C. & 8. F. B. Co. V. Wright, 1 Tex. Civ. App. 402. 



rOEWAEDING BY CONNECTING LINE. 259 

Where a contract is made for the transportation of cattle to a 
point beyond the line of the road of the company with which the 
contract is made, the liability of the contracting road to cease at 
its terminus, a connecting company to which the cattle, after 
being transported over several roads, are finally delivered and by 
which they are delivered at their destination and all charges col- 
lected for carriage, is not liable as a partner or joint contractor 
for iajuries received by the cattle on roads other than its own.' 

A railroad company is liable for damages to stock caused by 
negligence, although the damage occurs on another line and the- 
contract of shipment states that it will be liable only for injuries, 
received on its own line, where the relationship of partners exists 
between the two companies." A railroad company receiving 
horses from a connecting line, with notice that the shipper has 
attempted to prepay the freight for the whole transportation, but 
has not paid it in full at the regular rates, and also that he con- 
templates a continuous and speedy passage, has the right to carry 
the horses through to their destination, and claim a lien on them 
for the balance of the freight.' An initial railroad carrier con- 
tracting to "forward" cattle over its own and other lines, stipu- 
lating that the consignor should take care of the cattle while on 
the trip, and that it and connecting lines over which such freight 
should pass, should not be responsible for any loss, damage or 
injury which might happen in loading, forwarding or unloading, 
by sufEocation or by any other cause, except gross negligence, — 
such carriers being deemed merely forwarders and only liable for 
gross negligence — are not released by such contract from their 
liability as a carrier for the entire distance, from any loss result- 
ing from ordinary negligence from itself or a connecting carrier.* 

A contract by a railroad carrier exempting itself from liability 
for the negligence of a packet company, with which it makes 
connection to complete a through route over which it has con- 
tracted to carry the cattle, is reasonable, and is not affected by the 

' m. Worth & D. 0. B. Co. v. Williams, 77 Tex. 131. 
» Gulf, 0. &8. F. R. Co. V. WiT,son (Tex. Civ. App.) April 35, 1894. 
« Oroasan v. New York & N. B. Co. 3 L. R. A. 766, 149 Mass. 196. 
* 8t. Louis, K. a. & N. B. Co. v. Piper, 13 Kan. 505. 



260 TKANSPOETATION OF CATTLE. 

" Railway and Canal Traffic Act," of 1854.' Under a contract 
with the initial carrier which, by its running arrangements, was act- 
ing in fact as the agent for a connecting carrier, but under which 
no responsibility was assumed for any loss or injury to cattle iuthe 
delivering, — ^if such injury should be occasioned by McMng, 
plunging or restiveness, — the contracting carrier was held liable 
where, in the act of delivery against the protest of the consignee, 
the cattle were unnecessarily released and were killed by the ears 
of the connecting carrier.' 

§ 66. Damages for Refusal or for Failure to 
Transport. 

For refusal of railroad company to transport stock, the measure 
of damages is the diJfference between the market value at the 
place of shipment and the place of delivery." But it is said that 
it is error to consider their value at the market or place of desti- 
nation, in the absence of evidence or averment in the complaint 
that defendant's agent, at the time of contracting to furnish cars, 
was informed that the cattle were intended for sale at such place.' 
if there has been a conversion of the property, the recovery is for 
the value at the time it should have been delivered.' In an ac- 
tion for damages for the breach of an agreement by a railroad 
company to bring all live stock transported over its road to plain- 
tiS's stock yard, evidence of the number of cars loaded with stock 
and transported by the company is admissible in determining the 
question of damages." Accidents and other causes which excuse 
delay, do not relieve from the duty to transport, which must be 
done as soon as the obstruction can reasonably be removed.' A 

' Doolan v. Midland R. Oo. 10 Ir. C. L. Rep. 47; overruling Moore v. Midland 

R. Oo. 9 Ir. 0. L. Rep. 20. 
» Oai V. Manehe»ter, 8. & L. B. Co. L. R. 8 Q. B. 186. 
^Birney v. Wabash, St. L. & P. R. Oo. 20 Mo. App. 470; Odvin v. Kansas 

City, St. J. & G. B. B. Co. 31 Mo. App. 373. 
* Oelvin v. Kansas City, St. J. & 0. B. B. Co. supra. 
'Baltimore & 0. R. G. v. O'DonneU, 49 Ohio St. 489; St. Louis, I. M. & S. 

B. Go. V. Mudford, 44 Ark. 439; Card v. StTie, 39 Fed. Rep. 818. 
« Terre Saute & 1. B. Co. v. Strubk, 109 U. 8. 881, 37 L. ed. 970. 
''Baltimore & 0. B. Oo. v. O'Donnell, 49 Ohio St. 489; Elliott v. Bossell, 10 

.Johns. 7, 6 Am. Dec. 306; King v. Sheplierd, 3 Story, 349; The Niagara 

V. Cordes, 63 U. 8. 21 How. 7, 16 L. ed. 41. 



DBLAT IN SHIPMENT AND DBLIVEEY OF LIVESTOOK. 261 

common carrier which wrongfully refuses to receive stock prop- 
erly tendered to it from a connecting line, thereby contributing 
to an injury to it, will be liable to the owner for the entire dam- 
age, even though the other line may have been guilty of negli- 
gence rendering it also liable.' Failure to forward freight by 
another line as contracted, will render the carrier liable." 

A boat employed by the purchaser of coal to carry it from the 
place where it was purchased, and which has an order for the 
coal, which is accepted by the seller, with a provision that no Har 
bility is to be incurred for delay or failure in furnishing a load, is 
nevertheless entitled to be loaded in its turn ; and the exception 
from liability for delay does not include a willful or negligent 
disregard of the contract.' A shipper is not in fault for failure 
to furnish cars under a contract of shipment providing that he 
shall furnish the cars and load them at a certain station, where he 
notifies the railroad company that cars to be used in the business 
are at certain other stations, that he desires the company to take 
them from another company in whose possession they are and 
which had been directed to turn them over, and the railroad com- 
pany does not decline to get the cars, or claim that the shipper is 
bound to make any other delivery of them, or that there is any 
difficulty in getting them, but merely fails to accept them and 
commence the shipment within the time specified in the contract.' 
Proof that the next carrier would not receive the goods from 
it at the termination of its line will not excuse the carrier for 
failure to deliver to a particular place.* 

§ 67. Belay in Shipment and Delivery of Live- 
stock. 

Where a carrier is delayed in delivering livestock to market, it 
may excuse the delay by proof of misfortune or accident, although 
not inevitable or produced by the act of God. But evidence of 

' Qulf, a & 8. F. B. do. V. Qodair, 3 Tex. Civ. App. 514. 

^Michigan 8. & N. I. B. Co. v. Bay, 20 III. 375, 71 Am. Dec. 278. 

'Melloy V. Lehigh & W. Coal Co. 37 Fed. Rep. 377. 

* Lawrence v. Milwaukee, L. 3. & W. B. Go. 84 Wis. 437. 

<■ East Tennessee & G. B. Go. v. Welson, 1 Coldw. 272. 



262 TEANSPOETATION OF CATTLE. 

such accident and delay is not admissible to excuse the delivery 
of the stock in bad order, unless there is offered with it evidence 
to prove that it used the highest degree of care during the delay 
for the preservation and safety of the animals/ A railroad com- 
mon carrier stands upon the same footing as other common car- 
riers, and may excuse delay in the delivery of cattle by accident 
or misfortune not inevitable or produced by acts of Grod, and all 
that can be required of it in any emergency is that it shall exer- 
cise due care and diligence to guard against delay." 

The failure of an engineer in charge of a train containing a car- 
load of stock, to receive orders for the movement of the train, 
caused by atmospheric or other influences beyond the carrier's 
control rendering unavailable the telegraph wires, is excusable so 
as to prevent a recovery for damages to the stock by delay in its 
shipment, where it was in fact transported and delivered, whether 
the failure of the wires to transmit the message was attributable 
to the act of God or not.' A railroad company receiving live 
stock for shipment is not necessarily obliged to send it on the &st 
train thereafter leaving, but merely to send it within a reasonable 
time.* But a carrier of livestock is bound to foi-ward the animals 
with reasonable despatch, and is not relieved from liability merely 
by the fact that the ear containing the animals was forwarded by 
the next regular train, regardless of the time when the train left 
and of the facilities possessed by it for avoiding delay,' and a carrier 
of livestock is liable for damages caused by delay in shipment 
resulting from a washout on the main line, if it makes no efEort 
to carry them by a way which it has around the washout, over 
which it has carried other cattle pending the washout.' A carrier 

' Einnich v. Chicago, B. I. & P. R. Co. 69 Iowa, 666. 

' Oreismer v. Lake Shore & M. S. B. Co. 102 N. T. 563, 26 Am. & Eng. R. 

Cas. 290; Wibert v. Neic York & E. B. Co. 12 N. Y. 245; Blaekstock v. Nea 

York & E. B. Co. 20 N. Y. 48, 75 Am. Dec. 372; Lake Shore & M. 3. B. 

Co. V. Bennett, 89 IncJ. 457, 6 Am. & Eng. R. Cas. 391; Bartktt v. B'to- 

burg, C. & St. L. R. Co. 94 Ind. 281. 
'International & O. N.B. Co. v. Hynes, 3 Tex. Civ. App. 30. 

* Pennsylvania Co. v. Clark, 2 Ind. App. 153, aflarming on rehearing, 2 Ind. 

App. 146. 

• Oaheston, S. dh S. A. B. Co. v. luchett, (Tex. Civ. App.) Feb. 7, 1894. 
' Missouri, K. & T. B. Co. v. Olke (Tex. Civ. App.) Oct. 4, 1893. 



DELAY IN SHIPMENT AND DELIVERY OF LIVESTOCK. 263 

is not bound to furnish cars to carry livestock on Sunday ; yet 
having received stock into pens for transportation it becomes its 
duty to ship without unreasonable delay.' Cattle loaded on the 
cars at 6 o'clock p. na. on Friday, which are not moved by the 
railroad company until 4 o'clock on Saturday, when it is too late 
for them to reach their destination in time for the Saturday mar- 
ket, are not shipped within a reasonable time, and the company is 
liable for the delay." 

A carrier which accepts livestock for shipment, cannot excuse 
itself from liability for injuries resulting from delay in transpor- 
tation, on the ground that there was an unusual rush of business 
on its road.' But a carrier is relieved from liability for failure to 
furnish cars for the transportation of stock, where it has sufficient 
cars to meet all ordinary demands, and an unusual demand has 
put all its cars in use, rendering it unable to furnish those de- 
manded, and it furnishes them as soon as it can with due regard 
to the rights of other shippers who had previously or at the same 
time demanded transportation.'' 

That the carrier is liable for damages arising from the failure 
to transport stock within a reasonable time is well settled, but 
what is a reasonable time, under the particular facts of the case, 
or what circumstances will excuse the failure to deliver, within a 
reasonable time, the carrier would have the right to show, in or- 
der to relieve itself of liability for this element of damage. Evi- 
dence offered to relieve a carrier of liability caused by the deten- 
tion of a horse was that " a strike existed, during the existence of 
which no freight or livestock trains could be or were run over 
the lines, by reason of the interference of strikers and those act- 
ing in concert with them." This was held admissible, for the 
purpose of showing a sufficient excuse for the failure of the carrier 
to deliver the horse during the period of his detention. If it 
could be shown that " no freight or live stock trains were or could 
be run over the road, because of the uiterference of the strikers," 

' Ouinn v. Waiash, 8t. L. & P. R. Co. 20 Mo. App. 453. 
' Oindnnati, I. St. L. & 0. B. Co. v. Case, 123 Ind. 310. 
'International & O. N. B. Co. v. Anderson, 3 Tex. Civ. App. 8. 
* Pittsburg, C. C. & St. L. B. Co. v. Bacer, 5 Ind. App. 209. 



264 TKANSPOETATION OF CATTLE. 

it might have shown that the horse was, under the circumstanceo, 
delivered within a reasonable time, or a sufficient excuse for the 
failure to deliver within such time ; and in either event, would 
have relieved the carrier of liability.' Where livestock — cows 
and calves — were accepted, freight paid, and receipt given, for 
transportation, without express contract or limitation, and, being 
delayed by a snowstorm, were put in a stockyard, where they 
died, and others were injured by cold and exposure, the railroad 
company was liable for damages as a common carrier." Failure 
of a railroad company to unload horses transported by it, at the 
time agreed upon by the company's agent, renders it liable for 
damages resulting to the horses from such failure, although the 
conductor of the train on which they were shipped stated to the 
owner a few minutes before the train started that he did not 
think they could be unloaded at the time agreed upon.' Where 
plaintiff was induced to ship a consignment of horses so that they 
would arrive at their destination in the night time, by the assui'- 
ance of the carrier's agent that there would be no delay in un- 
loading them, the carrier is liable for damages suffered by reason 
of the horses taking cold on account of such delay, they having 
become heated by fright and excitement during transportation.' 
A carrier who, contrary to his uniform usage, fails to give no- 
tice of the arrival of goods, or wrongfully detains them after they 
have been applied for by the consignee, is guilty of such uegU- 
gence in exposing them to loss or damage by a subsequent freshet, 
occurring while they are in his possession, and before giving no- 
tice of their arrival, as to deprive him of excuse by the act of 
God.' A contract by a railroad company for the transportation 
of horses and their delivery at its depot, providing for their stor- 
age unless called for, and containing stipulations in relation to 
unloading which imply that the company wiU unload them, re- 
quires the company to unload the horses at the place of destina- 

' LouimUe, N. A. & C. B. Go. v. Hart, 4 L. R. A. 549, 119 Ind. 373. 
» Feinberg v. Delaware, L. & W. B. Co. 52 N. J. L. 451. 
» GwrleU v. Ohicago, St. P. M. & 0. B. Co. 86 Wis. 83. 
*Lake Erie JkW. B. Co. v. Bosenberg, 81 111. App. 47. 
'Bichmond <Sb D. B. Co. v. TT/iite, 88 Ga. 805. 



DELAY IN SHIPMENT AND DELIVEKY OF LIVESTOCK. 265 

tion, notwithstanding a usage of its agent there, known to the 
shipper, of requiring owners of animals to unload them.' 

a. Breach of Coni/ract for Gars. 

A carrier is liable to a shipper of livestock in damages for 
breach of its agreement to furnish cars for shipment thei-eof at a 
certain time and place, and is not excused by reason of an accumu- 
lation of livestock received from connecting carriers and local 
shippers." It cannot plead ignorance of the existence of a con- 
tract of shipment made by letters and recognized as such by it, 
on the ground that it was misled by the promise of the shipper 
to make out a contract at a specified time, where, after notice by 
the latter to obtain the cars which he was to furnish, it fails un- 
reasonably so to do, so as to relieve it from* liability in damages 
for the consequences of its delay.' A shipper's order to a com- 
mon carrier of livestock for a certain number of cars, to be fur- 
nished at a specified time and place, when accepted by the carrier, 
constitutes a contract binding the carrier to furnish the cars and 
the shipper to furnish the stock to load them ; and the fact that 
the shipper did not own or have the stock when the contract was 
made does not affect the liability of the carrier for failure to pro- 
vide the cars, on the ground that its promise so to do was without 
consideration.* The station agent of a railroad company has pre- 
sumptively authority to receive and forward freight, and may bind 
the company by a contract to furnish, on a certain day named, 
cars for the transportation of livestock, although in making such 
contract he may have, unknown to the shipper, exceeded his au- 
thority.' 

A carrier is liable to a shipper of cattle for delay in compliance 
with a contract to ship them, where such delay is caused by the 
presentation for shipment of cattle by a third person, and the use 

^Benson v. Gray, 13 L. R. A. 263, 154 Mass. 391. See post, chap. XI., on 

"Delay in Carriage and Transportation of Qoods." 
' Cross V. McFaden, 1 Tex. Civ. App. 461. 
' Lawrence v. Milwaukee, L. 8. & W. B. Go. 84 Wis. 427. 
'Pitteburg, O. 0. & St. L. R. Co. v. Bacer, 5 Ind. App. 309. 
' Oekin v. Kansas City, St. J. & 0. B. B. Co. 21 Mo. App. 273. 



266 TKANSPOETATION OF CATTLE. 

of the cars contracted for to ship the latter's cattle, although such 
shipment was necessary." No excuse for the breach by a carrier 
of its contract to furnish a car and transport cattle to a certain 
place by a certain day is furnished by the fact that the shipper's 
object in naming that day was to enable him to ojEEer the cattle 
for sale on Sunday contrary to law, unless that object entered 
into the contract as part of the inducement or consideration.' 
Delivery of cars by a railroad company at any hour during the 
day for which they are ordered, though too late to be used that 
day, is sufficient where no hour has been speci&ed in the order.' 

b. Damages to Livestock hy Delay in Tramsportation. 

Notice of damage^to stock, required by a shipping contract to 
be given before the removal of the stock from the possession of 
the carrier, is not required in the case of a claim for damages for 
delay in transportation." The measure of damages for loss, by 
, reason of the delay and by fall in the price of the cattle, is the 
difference between the market value at the place of delivery at 
the time the cattle would have arrived there if defendant had 
kept its contract, and their value at the same time at the place of 
shipment. But it is error to consider their value at the market 
or place of destination in the absence of evidence or averment in 
the complaint that defendant's agent, at the time of contracting 
to furnish cars, was informed that the cattle were intended for 
sale at such place.' In an action against a carrier by a shipper of 
cattle for delay in carrying them to a certain market, proof that 
the carrier's agent knew at the time of shipment that the cattle 
were being shipped to such market for immediate sale shows 
knowledge of the carrier. A provision in a contract for the ship- 
ment of cattle, limiting the shipper's damages, in case of loss or 
partial loss, to the value of the cattle at the place of shipment, 

' International & O. N. E. Co. v. Wright, 1 Tex. Civ. App. 403. 

« Waters v. Richmond & D. B. Co. 16 L. R. A. 834, 110 N. C. 338. 

'McCfrew v. Missouri Pac. B. Co. 109 Mo. 582. 

< Louisville & N. B. Go. v. Bell, 18 Ky. L. Rep. 393. 

" Qelvin v. Kansas City, St. J. & C. B. B. Co. 21 Mo. App. 273. 



DELAY IN SHIPMENT AND DELIVEBY OP LIVESTOCK. 267 

cannot affect the shipper's right to recover the true value, if loss 
is caused by the carrier's negligence, and where cattle, with the 
carrier's knowledge, are shipped to a certain market to be imme- 
diately sold there, in determining their value, in an action against 
the carrier for loss, where, by the negligence of the carrier such 
cattle are delayed by a wreck, the shipper is entitled to recover 
the difference in the state of the market at the time the cattle 
are. and at the time they should have been, delivered, and the 
shrinkage in weights caused by the wreck and delay, to be ascer- 
tained by reference to the destined market when the cattle should 
have reached there. Interest may be allowed on the amount of 
damages sustained, though it is not asked for in the pleading. 
An instruction that defendant is not liable for injuries done to 
the cattle by each other by reason of their inherent viciousness is 
properly refused, if defendant has not raised such issue by plead- 
ing and proof, and no evidence of such injuries is brought out 
by plaintiff.' Where, on account of a carrier's negligence, live- 
stock arrives at its destination too late for the market that week, 
and there is no market until the first of the following week, when 
a portion of the stock is sold, and the rest, which might also have 
been sold at the same time, is kept by the owner till later in the 
week, when it is sold at a less price than it would have brought 
on the day when the former portion was sold, the owner is not 
■entitled to recover for the depreciation in value up to the day of 
the final sale, but only to the day of the sale of the former por- 
tion." 

A common carrier is liable for all damage to live-stock from 
negligent delay in its transportation and delivery whereby they 
are reduced in weight more than they would have been had 
prompt carriage and delivery been made, and whereby they in- 
jure each other in consequence of viciousness aroused by the ex- 
cess of their confinement beyond the time necessary for their 
transportation and delivery.' A railroad company which as a 
bailee for hire receives horses for transportation under a contract 

' Ft. Worth- & B. B. Co. v. Oreathouse, 83 Tex. 104. 

« Ayres v. Chicago & N. W. R. Co. 71 Wis. 373. 

> Richmond & D. B. Co. v. Trousdale, 99 Ala. 389. 



268 TEANSPOKTATION OF CATTLE, 

providing that it shall not be liable for any loss to the shipper by 
reason of delay of the trains, and that the stock is to be fed, wa- 
tered, and cared for while on the cars by the shipper at his own 
expense and risk, is bound to furnish the shipper an opportunity 
to feed and water the horses, where the train is delayed.' A 
vessel is liable for the keep and loss of weight on cattle and 
sheep during the delay in sailing after notice to the shipper that 
she would sail on a certain day. But a shipper of cattle cannot 
recover damages for delay in the sailing of a vessel on which 
they are carried, if, after knowing of the delay, they could have 
been sold without loss.' Where, during a wrongful detention 
of cattle by ship owners, to compel the payment of an un- 
founded claim for one day's demurrage, the market price de- 
clined, the ship owners were liable for the loss in the price of the 
cattle." 

c. Opinion of Expert Witnesses as to Damages. 

Beef cattle were shipped over a railroad to Chicago, to be there 
sold immediately on arrival. In an action against the carrier for 
negligence in carrying the cattle, by which they lost in weight, 
it was shown that by reason of a wreck they were shaken up and 
bruised, and were confined in the cars several hours longer than 
they would otherwise have been. Their weight when they ar- 
rived in Chicago was proven, but their weight at the point of 
shipment was not known. It was held, that a witness familiar with 
the shipment of cattle from such point to Chicago, who was with 
the cattle in transit, and was present and saw the effect of the 
wreck, was properly allowed to give his opinion as to the loss of 
the cattle in weight by reason of the wreck and of the consequent 
delay. In such a case a witness who has had large experience in 
the shipment of cattle, though he may have no personal knowl- 
edge of the cattle in controversy, may give his opinion as to their 
loss in weight, after the fact of the wreck and its results as to the 

• Smith V. Michigan 0. B. Go. (Mich.) April 17, 1894. 
« Goldsmith v. Tower Sill SS. Co. 37 Fed. Rep. 806. 
'T/ie Suffolk, 31 Fed. Rep. 835. 



DAMAGES FOE MEGLIGBNT LOSS OF OE INJUEY TO CATTLE. 269 

injury and delay of the cattle are stated to him as a hypothetical 
case; and it is immaterial that the case as stated does not cover 
the full range of the facts, provided enough is given to enable 
the witness to formulate an intelligent opinion.' 

§ 68. DcuTnages for JVegligent Loss of or Injury to 

Cattle. 

A shipper of cattle is entitled to recover from the carrier for a 
loss in value of the stock caused by the gross negligence and care- 
lessness of the agent of the shipper in handling and transporting 
the cattle, consisting of unnecessary delay in transportation, need- 
less confinement in the cars at the different stations on the road, 
and bruising and bumping caused by improper transportation." 
In an action to recover damages for injury to cattle caused by 
negligence in the defendant railroad company, if its method of 
transportation was unsafe, as omitting means of ventilation and 
cleats on the floors to furnish footing, the fact that it was usual 
with the defendant cannot exonerate it from its contract to safely 
transport. Its own usage would have no tendency to show that 
it had adopted a safe method.' 

Notice to a carrier that cows shipped are pregnant is not neces- 
sary in order to recover damages for miscarriages caused by in. 
juries (not chargeable to the inherent nature or disposition of the 
animals) in transportation.* Where mares being with foal are 
shipped, they constitute freight having what is called an inherent 
defect; and if they lose their foal on the way from causes for 
which the carrier is responsible, the measure of damages is not 
the difference in their market value as they are and what it would 
have been had they arrived in good condition; but if the loss is 
total, it is the price, less freight charges, they would have brought 
if delivered in reasonable time, having had due and necessary 
care while in the carrier's possession; and if the loss is partial, it 

' Fl. Worth (& D. 0. S. Go. v. Greaihouse, 83 Tex. 104. 

« Good V. Galveston, H. & 8. A. B. Oo. (Tex.) 4 L. R. A. 801. 

* Leonard v. FitcKburg B. Co. 143 Mass. 307. 

* EstiU V. New York, L. E. & W. B. Oo. 41 Fed. Rep. 849. 



270 TKANSPOKTATIOJJ OF OAITLB. 

is the difference between such price, less freight, and the actual 
value of the animals as delivered.' Suit was brought to recover 
damages for injury to horses shipped by rail. The owner, for 
two days, refused to receive the horses at the place of destina- 
tion, owing to some extra charges. It was held that no expense 
thereafter incurred could be properly charged to defendants." 

It is not sufficient to hold the carrier responsible to introduce 
proof of the death of live stock ; but there must be shown some* 
injury to the animal, not presumably the result of its inherent 
disposition and nature ; or that the injiiry shown has aggravated 
what may have resulted from such inherent causes.' A carrier 
is not liable for the death, a few days after its delivery, of a calf 
alleged to have been injured during transportation, where it was 
sick when it was delivered to the company, and there is no evi- 
dence that it sustained any injury while in the company's posses- 
sion or that it was not properly fed and watered, or to show that 
its sickness, if its death was caused thereby, was not occasioned 
by natural causes, or to show whether it died from such sickness 
or from injuries which occasioned bruises found on its after its 
death, but not on it when delivered by the company to the owner.' 
On an issue in an action against a carrier for the killing and ia- 
juring of cattle during transportation, as to whether or not the 
manner in which the shipper loaded the cars with the cattle was 
the cause of at least some of the injuries sustained, and, if so, to 
what extent, it is error to refuse an instruction that no recovery 
can be had for injuries resulting from the promiscuous interming- 
ling of the cattle.' 

A carrier transporting a mule in a suitable car with adequate 
equipments and appliances, without culpable delay or negligence 
or want of care on the part of its employes in handling the stock, 
over a track in good condition, is not liable for an accident to 
the mule by which his hoof is torn off, in the absence of evidence 

• Missouri Pac. B. Co. v. Fagan, 2 L. R. A. 75, 72 Tex. 127. 
^Louisville & N. B. Co. v. Trent, 16 Lea, 419. 

' Pennsylvania B. Co. v. Baiordon, 119 Pa. 577. 

* Missouri Pac. B. Co. v. Heath (l^x.) Dec. 1, 1891. 
» Missouri Pac. B. Co. v. Edwards, 78 Tex. 807. 



DAMAGES FOB NEGLIGENT LOSS OF OE INJDEY TO OAiTLB. 27i 

Blowing how it occurred. A carrier is not liable for an injury 
inflicted by a live animal upon himself during transportation, or 
by other animals properly shipped in the same car, without fault 
on the part of the carrier.' A special charge requested in an ac- 
tion against a carrier for cattle alleged to have been killed and in- 
jured during transportation, that there must be evidence of the 
exact number of the dead and injured cattle to entitle plaintiil to 
recover, is properly denied as too restrictive where there is evi- 
dence showing the average value of the killed and injured cattle,, 
and also evidence from which the number of each could be ascer- 
tained by the jury. The mere fact that cattle shipped died after 
their delivery at the point of destination is not sufficient to relieve 
the carrier of liability on the ground that the damage is too re- 
mote, if the death of the cattle resulted solely from injuries re- 
ceived by reason of the carrier's negligence while transporting 
them." 

The mere fact of giving a pass so that a servant of the owner 
may go with cattle which are shipped, does not relieve the carrier 
from responsibility for them.^ But where by special contract the 
owner agrees to and does take charge of the stock, the burden of 
proving negligence is on him.* Where the shipper by the bill of 
lading, assumes the risk of transportation^ except for the carrier's 
negligence, and accompanies the train, and one of the horses is 
found dead upon arrival at the destination, but the caiise of death 
is not shown, the carrier is not responsible.' 

A complaint against a railway company to recover a stated sum 
as damages for its alleged negligent injury of plaintiff's horse, not 
alleging that the company is a common carrier or that the horse 
was delivered to it to be transported, or setting up any contract 
of affreightment, or that anything was paid or promised to be paid 
for transportation, — is insufficient to warrant a recovery against 
the company as a common carrier. ISTo recovery can be had 

' Louisville, N. 0. & T. B. Co. v. Bigger, 66 Miss. 319. 
? MisHouri Pae. B. Go. v. Edwards, 78 Tex. 307. 
8 Feinberg v. Delaware, L. & W. B. Co. 53 N. J. L. 451. 
'McBeath v. Wabash, St. L. & P. B. Co. 30 Mo. App. 445. 
' Pennsykania B. Co. v. Baiordon, 119 Pa. 577. 



27iJ TEANSPOKTATION OF CATl'LE. 

against a railway company sued on an implied contract to trans- 
port a horse, constituted by its acceptance and transportation ac- 
cording to the shipper's directions, without proof of any reward 
paid or promised, except for damages to the horse occasioned by 
its gross negligence ; and such negligence is not shown where the 
evidence is uncontradicted that it exercised reasonable and proper 
care to avoid injuring the animal.' But the generally accepted 
rule that some injury to the animal, not presumably the result of 
its inherent nature or disposition ; or that if any injury resulted 
from such inherent causes, it has been aggravated by other in- 
juries, is not universally accepted." In an action for damages for 
injury and loss of cattle by negligence of the carrier, brought 
against the lessee of the road with which the contract of ship- 
ment was made, notice of loss given to the general freight agent 
of the lessor road, in pursuance of the terms of the contract, and 
service of summons upon the proper station agent of defendant 
company, is sufficient.' 

§ 69. Liability for Miscarriage and Wrongful 
Delivery of Livestock. 

A carrier must deliver cattle to the party designated by the 
terms of shipment, or to his order, at the place of destination : 
and where it delivers them to one not entitled to receive them, it 
is accountable. Direction on waybills to notify a third party 
named does not qualify the duty of the carrier to deliver cattle to 
the order of the consignee. The last carrier in connecting line? 
must deliver cattle at the place of destination, and to the coti- 
signee there, if he was made known to it on receiving the freight 
from the preceding connecting company. The custom of a com- 
pany of delivering cattle without requiring the production of the 
bUl of lading or authority of the shipper, does not relieve it from 
liability for cattle wrongfully delivered. Indorsement, by the 
shipper to plaintiff, of receipts taken on the shipment oi cattle, 

' LouisviUe & N. R. Oo. v. Qerson (Ala.) Feb. 13, 1894. 
» Louisville & N. B. Oo. v. Wynn, 88 Tenn. 320; Lindsley v. Chicago, M. <£ St. 
P. B. Go. 36 Minn. 539. But see Hussey v. T>ie Taragossa, 3 Woods, 8S0. 
» Bej/nolda v. St. Louis, L M. & 8. B. Co. 22 Mo. App. 609. 



STIPULATION rOE NOTICE OF INJUET TO LIVESTOCK. 273 

transfers their title and gives plaintiff the right to their posses- 
sion, and, if necessary, to sell them for payment of drafts taken 
by him against the shipper.' Where the agent pointed out the 
car upon which hogs were to be loaded, and plaintiff loaded them 
on the car pointed out, but by mistake of the agents and em- 
ployes of the company the consignment miscarried, the company 
is hable." The carrier becomes liable as for a conversion the 
moment it makes an unauthorized delivery to another than the 
person designated.' 

§ 70. Stipulation for JSfotice of Injury to Live- 
stock. 

A stipulation in a contract for the shipment of stock from one 
state to another, requiring notice of damage to be given to an 
agent at the point of shipment as a condition precedent to a re- 
covery, without specifying or naming any particular agent either 
at the point of shipment or of destination, to whom such notice 
may be given, — is unreasonable.' Texas Act of March 4, 1891, 
providing that no provision in a contract limiting the time within 
which to sue to less than two years shall be valid, and that no 
stipulation in any contract requiring notice to be given of any 
claim for damages as a condition precedent to the right to sue 
thereon shall be valid unless the stipulation is reasonable, is not 
invalid as attempting to interfere with or regulate interstate com- 
merce." 

a. Limit of Time for NoUoe. 

"When, on shipping cattle by a railroad, a written contract is 
•entered into between the carrier and the shipper, that in case of 
loss no damages shall be paid unless a claim in writing for such 

' North Pennsylvania S. Co. v. Commercial Wat. Sank of Chicago, 133 TJ. S. 

727, 31 L, ed. 387. 
'WiUon V. Waiash, Bt. L. & P. B. Co. 23 Mo. App. 50. 
'Fulton V. Lydecker, 41 N. T. S. R. 457: Wilson v. Adams Map. Co. 43 Mo. 

App. 659; Baltimore & 0. B. Co. v. O'Donnell, 49 Ohio St. 489; Claflin v. 

Boston & L. B. Go. 7 Allen, 341; Yiner v. NewTork, A. &. &W. S3. Co. 50 

N. Y. 23. 

* Galveston. S. & 8. A. B. Go. v. Short (Tex. Civ. App.) Feb. 7, 1894. 

* Gulf, 0. & 8. F. B. Go. V. Eddins (Tex. Civ. App.) April 25, 1894. 

18 



274 TEANSPOETATION OF CATTLE. 

damage shall be delivered to the carrier in five days after the re- 
moval of the cattle from the cars, no recovery can be had for a 
loss unless such written claim shall be so delivered.' 

A contract by a common carrier requiring suit for damages to 
livestock to be instituted within forty days after the injury occurs 
is supported by a suificient consideration if the stock is transported 
under such contract at less than the regular rates according to 
actual weight." A stipulation in a common carrier's contract of 
interstate shipment, requiring notice of a claim for damages' to be 
given within a specified time, is valid, in the absence of any stat- 
ute to which the contract is subject, where such time is reason- 
able and adapted to the circumstances of the particular case.' A 
condition of a contract for the shipment of horses, that no claim 
for loss or damage shall be valid unless made in writing withiu 
thirty days after the same occurs, is reasonable and binding upon 
the owner when made or authorized by him.* And a stipulation 
in a contract of shipment, that a carrier shall not be liable for 
damages unless action is commenced within forty days after the 
damages occur, is binding upon the parties unless subsequently 
waived.' 

If oncompliance with a stipulation in a contract for carrying live- 
stock, that notice of claims for injuries must be made within 
twenty-four hours after arrival at destination, wiU not prevent a 
recovery if at that time the injuries appear to be slight, but the 
animal, after receiving proper care, proves to be seriously and 
permanently injured, shortly after which the agent of the com- 
pany is notified and answers that the claim is being investigated 
and will be settled on its merits.' A stipulation in a shipping 
contract requiring the shipper to give written notice of his claim 
for damages does not apply to damages which accrued prior to 

' McBeath v. Wabash, St. L. & P. B. Co. 20 Mo. App. 445. 

2 Texas & P. B. Co. v. Klepper (Tex. Civ. A.pp.) Dec. 20, 1893. 

8 Galveston, H. & 8. A. R. Go. v. WUliame (Tex. Civ. App.) Feb. 7, 1894. 

''Armstrong v. Glmago, M. & St. P. B. Go. 53 Minn. 183. 

' Galveston, H. tfi 8. A. B. Go. v. SUegman (Tex. Civ. App.) Oct. 4, 1893. 

' Earned v. Mmcmri Poo. B. Go. 51 Mo. App. 482. 



STIPULATION FOE NOTICE OF INJtTEY TO LIVESTOCK. 275 

the making of the contract.' ITor will a linaitation in a shipping 
contract as to the time within which actions must be brought for 
damage to the property apply to an action for damages for the 
escape of stock before loading, due to the failure of the company 
to provide a sufficient pen, although the liability of the railroad 
company is that of a carrier." The oral notice is not a sufficient 
compliance with the condition.' "Where a shipper fails to comply 
with a condition in the contract of carriage requiring such a 
written notice, he is not entitled to recover." 

A contract requiring the shipper of livestock to give notice of 
injury thereto, to the station agent or some general officer of the 
carrier at the delivering station, is unreasonable and cannot be 
enforced, unless it is made to appear that the person to be noti- 
fied is so conveniently accessible to the person who is to give the 
notice, that the latter can reasonably discharge the duty within the 
time limited by the contract." Such a contract is unreasonable 
and void where the stock is to be delivered at a place where the 
earner has a large number of agents and officers, when it leaves 
upon the shipper the responsibility of deciding which is the au- 
thorized officer, but not when the delivery is to be made at a place 
where the carrier has but one agent, easily to be distinguished and 
easy of access." It is unreasonable where the carl-ier's line is not 
a through one, and it has no agents at such destination, and no 
reasonable facilities for giving such notice, and the shipper would 
be obliged to go to another state in search of someone on whom 
to serve the notice.' 



^Missouri, K. & T: R. Co. v. Graves (Tex. App.) May 3, 1890. 
' 9ulf, 0. & 8. F. B. Co. V. Trawick, 80 Tex. 275. 

* Goggin v. Kansas Pac. B. Co. 13 Kan. 416. 

* Spi'ague v. Missouri Pac. B. Co. 34 Kan. 847. See also Massengale v. West- 

ern U. Teleg. Co. 17 Mo. App. 257; Wdr v. Adams Exp. Co. 5 Phila. 355; 
Cole V. Western TJ. Teleg. Co. .88 Minn. 337; HirsKberg v. Dinsmore, 18 Daly, 
429; Young v. Western U. Teleg. Co. 2 Jones & 8. 390; United Slates Exp. 
Co. V. Harris, 51 Ind. 127; Southern Exp. Co. v. Sunnicuit, 54 Miss. 566, 
28 Am. Rep. 385. ^ 

' Missouri Pae. B. Co. v. Paine, 1 Tex. Civ. App. 631. 

' Missouri Pae. B. Co. v. Childers, 1 Tex. Civ. App. 303. 

''St. Louis, A. <£ T. B. Co. v. Turner, 1 Tex. Civ. App. 625. 



276 TEANSPOETATION OF CATTLE. 

b. Forbidding Removal "before Notice. 

A stipulation ia a contract of shipment requiring notice of a 
written demand for damages claimed, to be presented before the 
property is removed from the point of destination and mingled 
with other property, is not as a matter of law an unreasonable 
one.' But whether or not it may be doubted if a contract is vahd, 
containing a precedent condition to a shipper's right of action to 
recover for injury to his cattle, caused by the carrier's negligence, 
requiring a written notice to some officer or nearest station agent, 
before the injured cattle are removed or mingled with other 
stock, certainly if a carrier sets up a claim to notice of a given 
fact as a condition upon which its liability to a shipper is to de- 
pend, then it is incumbent on it, when the notice was to be given 
to one of its officers or agents, to show that it had an officer or 
agent at or near the place where the notice is to be given, in any 
case where the shipper, by the terms of the contract, is to hold the 
property shipped at the place of delivery, to be inspected by some 
agent of the carrier, at his own expense and risk.' A custom can- 
not require that a shipper should expressly agree as a condition 
precedent to his right to damages for injury to stock during trans- 
portation^ that. he would give notice before removing the stock.' 

A contract between a railroad company and a shipper of stock 
stipulated that, as a condition precedent to his right to recover 
damages for any loss or injury to such stock, he should give no- 
tice in writing to some officer of the railroad company, or its 
nearest station agent, before the removal of such stock from the 
place of delivery. In an action to recover damages for injuries to 
such stock while en route, where the condition of the stock was 
made known to the station agent of the railroad company at the 
place of destination, and such agent consented to the removal of 
the stock from the car, and had an opportunity to examine and 
inspect the animals after such removal, and before they had 
mingled with other stock, or been removed from the place of des. 

' Oaliieston, H. & 8. A. B. Go. v. Williams (Tex. Civ. App.) Feb. 7, 1894. 
« Missoun Pac. B. Go. v. Sarris, 67 Tex. 168; Good v. Galveston, H. &S. A. 
B. Go. (Tex.) 4 L. R. A. 801. 

^ Missouri Pac. B. Go. v. Fagan, 2 L, R. A. 75, 73 Tex. 127. 



STIPULATION FOE NOTICE OF INJURY TO LITESTOOK. 277 

tination, and a written notice for damages was transmitted to the 
claim agent of the railroad company within four days after the 
removal of the stock from the car, and ten days thereafter, upon 
the death of one of the animals, a subsequent notice for damages 
was given to the railroad company, it was decided that there had 
been a sufficient compliance with the contract upon the part of 
the shipper.' 

A railroad company is not absolved from liability for injuries 
to stock transported by it, occasioned by the negligence of its em- 
ployes, by a clause in the shipping contract providing that it shall 
not be liable unless written notice is given before removal of the 
property from the car, where it had a good, fair, and reasonable 
opportunity to inspect the stock before removal." Such a con- 
tract was sufficiently complied with by notice in writing two weeks 
after delivery, where the loss was one of weight by delay in de- 
livery, was not apparent at or before the time of delivery, and its 
extent could only be determined by the shipper after his return 
home by a comparison of the actual weight of the animals when 
sold with that when bought as it appeared upon his books, and 
such letter was sent within a reasonable time after his return.' 
So notice of such injury given to the agent of the connecting car- 
rier at the point of destination is a sufficient compliance and per- 
formance.* 

Where a railroad company accepts cost of transportation for an 
injured horse, with the full knowledge of his condition, and fur- 
nishes cars and the same agents to bring back the horse to the 
place of shipment who had charge of him when shipped to the 
place where he was injured, a stipulation in the contract by which 
the shipper agrees not to remove the horse if injured before no- 
tice of a claim for damages, is waived.' In such an action a pro- 
vision in the contract of shipment requiring the shipper, in case 

' Atchison, T. & 8. F. B. Co. v. Temple, 13 L. R A. 362, 47 Kan. 7. 
'Atchison, T. & 8. F. E. Co. v. Temple, supra; Atchison, T. & 8. F. B. Co. v. 

Collins, 47 Kan. 11. 
' Lmismlle, N. A. & C. B. Co. v. 8teele, 6 Ind. App. 183. 
* Wichita & W. B. Co. v. Koch, 47 Kan. 753. 
» Owen V. Louisville S N. B. Co. 8 Ky. 636. 



278 TBANSPOETATION OF CATTLE. 

of loss or injury, to give the carrier notice of his claim therefor 
before removing the cattle from the place of delivery, so that the 
claim may be investigated, will not be enforced against plaintiff, 
in the absence of pleading and proof, on the part of defendant, of 
facts showing that the provision is reasonable." The contract it- 
self, where it is based upon a special rate, has been generally sus- 
tained." A carrier of livestock under a contract providing that 
notice of claim of loss or injury be given its nearest station agent 
before removal of the stock from the place of delivery is relieved 
from liability by failure of the shipper to give such notice until 
twelve days after removal, when there was an agent at the place 
of delivery to whom notice could have been given.' 

§ 71. Restricting Liability for Livestock. 

In the United States, at least since the case of New Jersey 
Steam Nom. Co. v. Merchants^ Bank of Boston^ 47 U. S. 6 How. 
344, 12 L. ed. 465, it has been the universal law of this country 
that, in the absence of a statute prohibiting it, any common car- 
rier may by special contract limit the common law habihty, pro- 
vided the contract is " just and reasonable in the eye of the law," 
for in all the cases the ultimate test applied by the courts in de- 
termining whether a condition limiting the common law liability 
was or was not against public poKcy has been whether, under all 
circumstances, it was or was not just and reasonable in the eye of 
the law. In a leading case' the court placed its decision that a 
carrier could not stipulate for exemption from responsibility for 
the negligence of himself or his servants upon that express 
ground. 

By section eight of the English Railway & Canal Traffic Act, 
companies coming under the act are declared liable for the loss 
or injury to any horse, cattle, or other animals or goods, occa- 

" m. 'Wortlh & D. 0. B. Co. v. Greathouse, 83 Tex. 104. 

» SeWy V. Wilmington &W. S. Go. 113 N. C. 588; Owen v. LouimiOe & N. R 

Go. 87 Ky. 636. la direct conflict with this is the case of Smitlia v. laui^ 

mile & N. B. Co. 86 Tenn. 198. 
'Wichita &W. B. Go. v. Koch, 47 Kan. 753. 
*New Tm-k Cent. B. Co. v. Lockwood. 84 U. S. 17 Wall. 357, 21 L. ed. 627. 



EESTEIOTING LIABILITY FOE LIVESTOCK. 279 

sioned by the default or neglect of the company and its servants, 
notwithstanding any notice limiting the liability ; but the compa- 
nies were authorized to make reasonable conditions, adjudged to 
be such, and a special limitation as to recovery was fixed, unless a 
higher value is declared upon it, and a percentage might be re- 
covered by the carrier, proof of the value to be made by the 
shipper. The measure of damages was the value of the goods at 
the place and at the time of the delivery.' The carrier was thus 
rendered liable for the falling of prices." "Where a carrier had 
been informed of special circumstances that would have increased 
the value requiring corresponding care, he was liable for a negli- 
gent loss.' This could not be extended however, to the general 
laws of business, or profit or wages.* The English statute, in 
using the expression "just and reasonable," adopted the exist- 
ing rule of law. The right of the common carrier to limit his 
common law liability by special contract was fully recognized.* 
But, in accord with the great weight of authority in this country, 
it is held that he cannot contract for exemption, either in whole 
or in part, from liability for the negligence of himself or his ser- 
vants ; that such an exemption is against public policy, because it 
would enable him to put off the essential duties of his public em- 
ployment.' The case, therefore, when the limit is as to value, 
comes down to a question of the construction to be placed on the 
stipulation. If the purpose of it was merely to place a limit on the 
amount for which the carrier should be liable, then clearly, as to 
losses resulting from negligence, it is not just or reasonable, and 
is not binding on the shipper. 

' O'Hanlan v. OreatWesiem B. Co. 34 L. J. Q. B. 154, 13 Week. Rep. 741 ; Mice 

V. Baxmdale, 30 L. J. Exch. 371. 
' Collard v. Southeastern R. Co. 30 L. J. Exch. 893; Barries v. Evichinson, 34 

L. J. C. P. 169. 
« Hadley v. Baxmdale, 9 Exch. 341; Cory v. Thames Iron Works & 8. B. Co. 37 

L. J. Q. B. 68. 

* Crouch V. Great Northern R. Co. 11 Exch. 743; Home v. Midland B. Co. 

L. R 8 C. P. 131, 42 L. J. 0. P. 59. 
' Christenson v. American Exp. Co. 15 Minn. 370, 2 Am. Rep. 133. 

* Christenson v. American Exp. Co. sv/pra; Shrimr v. 8ioux City & St. P. R. 

Co. 24 Minn. 506, 31 Am. Rep. 353; Ortt v. Minneapolis & St. L. R Co. 36 
Minn. 396; Moulton v. St. Faul, M. & M. R. Co. 31 Minn. 85, 47 Am. Rep. 
781; Boehi v. Chicago, M. & St. P. R. Co. 44 Minn. 191. 



280 TEANSPOETATION OF CATTLE. 

Thus, a stipulation that a stallion worth $5000 is only valued 
at $200, is void.' But, on the other hand, a fair agreement, in 
consideration of a reduced freight rate, limiting the carrier's lia- 
bility to $50 for injury or death to any animal shipped under the 
contract, will be enforced, although the value of the animal 
killed may be $800." A livestock shipping contract containing a 
clause that in case of damage the carrier is to pay a certain named 
amount which, it is agreed, is what the stock is reasonably worth, 
is not void as against public policy as an attempt by the carrier 
by contract to exempt itself from liability for its own negligence.' 
One who ships a horse as an ordinary horse, understanding that 
the carrier has a regulation limiting its liability in case of injury 
to a certain sum for an ordinary horse, and if a higher value is 
given a higher rate will be charged, cannot insist upon a higher 
valuation in case of loss or injury.* If it was a stipulation as to the 
value of the property, fairly and honestly made as the basis of 
the carrier's charges and responsibility, then it ought to be upheld 
as a just and reasonable mode of securing a due proportion be- 
tween the amount for which the carrier may be responsible and 
the freight he receives, and of protecting himself against extrava- 
gant and fanciful valuations. There is no difference between a 
case where the stipulation is that the value of the property does 
not exceed a specified sum, and one where the value is stipulated 
to be a specified sum. It makes no difference whether the valua- 
tion expressed in the contract is one previously named by the 
shipper on requirement of the carrier, or one inserted in the con- 
tract by the carrier without being named by the shipper, but ac- 
quiesced in by him. In either case it becomes a part of the con- 
tract on which the minds of the parties meet, and on which they 
act. Such a stipulation inserted in the shipping receipt is bind- 
ing on the shipper if he understands its purpose and knows that 
the freight charges are proportioned to the nature and extent of 

' Baughman v. ZouiaviUe, E. & St. L. B. Co. 14 Ky. L. Rep. 775. 
» St. Louis, I. M. & S. B. Co. v. Weakly, 50 Ark. 397. 
» Louismlle & 2f. B. Co. v. Sowell, 90 Tenn. 17. 
*Duntley v. Boston & M. B. Co. (N. H.) 9 L. R. A. 449. 



KESTKICTIJSTG LIABILITY FOE LIYBSTOOK. 281 

the risk ; and the fact that neither the value of the goods nor the- 
rate of charges is asked in a particular case is inamaterial.' 

A shipper of horses is not reHeved from the binding effect of 
a special contract signed by him fixing their value in case of loss, 
in consideration of which he obtained reduced rates, by the fact 
that the contract was not ready for the shipper's signature until 
he went to get his ticket to enable him to leave on a passenger 
train, and that he signed the contract hurriedly and without read- 
ing it." A statement of the value of a horse shipped, made by 
the shipper in answer to the carrier's inquiry, which value is in- 
serted in the bill of lading, is conclusive on him as to the value of 
the horse in an action against the carrier for its loss, although the- 
bill of lading is silent as to the effect of such valuation upon th& 
shipper's liability, and he has no actual information, and did not 
suppose that his statement would affect the amount of the com- 
pany's liability." Where a shipper, after putting his horse in a 
car, asks for a receipt, and, when one containing a contract re- 
stricting the liability of the company is shown to him, he signs it 
without reading it, although there was no reason for his not read- 
ing it, he is bound by the provisions of the contract contained 
there.' If the purpose of the stipulation is a la-wf ul and proper 
one, the mere fact that it may incidentally have the effect of 
limiting the amount of the carrier's liability in case of loss caused 
by negligence will not render it invalid. Contracts of this kind 
relating to the transportation of livestock are very common, and 
their reasonableness, at least as applied to that class of property, 
seems quite apparent. Every one may be presumed to know ap- 
proximately the average value of ordinary domestic animals, and 
a regulation of a carrier with respect to the transportation of live 
animals, fixing the ordinary value of horses at $200, and requir- 
ing an extra charge for transporting animals of a greater value, 
is reasonable and not in conflict with the general rule that a car- 
rier cannot discharge himself of legal responsibility by general 

' Durgin v. American Exp. Co. (N. H.) 9 L. K. A. 453. 

' Johnstone v. Ricfanxynd & J>. B. Co. 39 S. C. 55. 

» Coupland v. Eousatonic R. Oo. 15 L. R. A. 534, 61 Conn. 531. 

« Sutchinson v. CMcago, St. P. M. & 0. B. Co. 37 Minn. 524. 



282 TEANSPOETATION OF CATTLE. 

notice,' but it is well known that many animals have a special 
value because of some peculiar qualities — such as speed or pedi- 
gree — which are not apparent from mere inspection. For ex- 
ample, a horse which, to one not acquainted with it might not 
appear to be worth more than any ordinary horse, might, because 
of speed, be worth $10,000. The agents of common carriers 'are 
not expected to be, and usually are not, experts as to the special 
or peculiar value of particular animals. Ordinarily they would 
know nothing about the matter except what they learned from 
the shipper's statement. Presumably, the charges for transporta- 
tion are to a considerable extent based on the value of the prop- 
erty. Moreover, the measure of care on part of the carrier will 
naturally be commensurate with the value of the property in- 
trusted to him. Consequently the law always required entire 
good faith on part of the shipper in stating the nature and value 
of property delivered to a carrier for transportation. 

A common carrier is entitled to be fairly informed as to the 
value of the property confided to his care; and where a shipper 
enters into an agreement with a carrier as to the value of the 
property shipped, and receives the benefit of low rates by reason 
of placing a low valuation upon the property, he is estopped from 
claiming or recovering another and higher valuation after the loss 
occurs, although said loss may be the result of negligence on the 
part of the carrier, provided the same is not gross, wanton, or 
willful." Even when the common law liability of carriers was 
enforced most rigorously, the courts always upheld limitations of 
it, imposed for the purpose of procuring a full disclosure of the 
value of the property, especially of articles of unusual value, or 
subject to extra hazard. This is illustrated in that numerous class 
of cases where packages whose contents were not open to inspec- 
tion were delivered to an express company or other carrier by the 
owner, who accepted a receipt therefor containing a condition 
that in case of loss the holder should not demand beyond a spe- 

' DunUey v. Boston & M. R. Co. (N. H.) 9 L. R. A. 449. 

« Zouch V. Chesapeake <& 0. B. Co. 17 L. R. A. 116, 36 W. Va. 524; Hill v. 

Boston, H. T. & W. B. Co. 144 Mass. 284; Graves v. Lake Shore & M. S. B. 

Go. 137 Mass. 83, 50 Am. Rep. 282. 



EESTEICTING LIABILITY FOE LIVESTOCK. 283 

cified sum, at wliicli the article was thereby vahied, unless a 
greater value was expressed or declared. Ante §§ 50-54. But 
there is no difference in principle between a case where the value 
of the property is unknown to the carrier because inclosed in a 
box, and one where it is unknown because dependent on latent 
qualities not ordinarily ascertainable by inspection. Courts are 
justified in taking judicial notice of the fact that the maximum 
values placed by a contract on different kinds of domestic ani- 
mals are approximately those of average ordinary animals in the 
country through which the carrier does business. A stipulation 
in a contract for the shipment of mules in consideration of a re- 
duced rate of freight, that in case of damage to the mules the 
amount claimed for each mule shall not exceed $100, is lawful, 
the amount fixed not being disproportioned to the reduced rate.' 
By executing the contract the shipper stipulates and in effect 
represents to the carrier that his horses are not worth to exceed 
an ordinary value each, and that the charges for transportation 
should be based on that valuation. Assuming that the contract 
was fairly made for the purposes expressed in it, it ought to be 
upheld as just and reasonable. It is not in any proper sense a 
contract for exemption from the consequences of negligence. 
This view is sustained by the great weight of authority." 

In Hart v. Pennsylvania B. Co. 112 U. S. 331, 28 L. ed. T17, 
which was an action to recover damages from a railroad for in- 
juries received by the plaintiff's horses during transpoi'tation by 
the defendant as a common carrier, the bill of lading issued by 
the defendant, and signed by the plaintiff, contained a stipulation 
thai the carrier assumed a liability to the extent of an agreed val- 
uation not exceeding $200 for each horse, and the rate of freight 
was based upon that condition, and it was held that even in case 

' Western B. Co. v. Eimoell, 91 Ala. 340, 45 Am. & Eng. R. Cas. 358. 

' Alair v. Northern Poo. B. Oo. 19 L. R. A. 764, 53 Minn. 160; Hart v. 
Pennsylmnia B. Oo. 112 U. S. 831, 28 L. ed. 717; Squire v. New York 
Cent. & B. B. B. Co. 98 Mass. 239, 93 Am. Dec. 162; Graves v. Lake 
Share & M. S. B. Co. 137 Mass. 33, 50 Am. Rep. 283; Hill v. Boston H. 
T. & W. B. Co. 144 Mass. 284; South & North Ala. B. Co. v. Henlein, 52 
Ala. 606, 23 Am. Rep. 578; Louisville & N. B. Go. v. Sherrod, 84 Ala. 178; 
Ha/rvey v. Terre Haute & I. B. Co. 74 Mo. 538; Lomsville & N. B. Co. v. 
Smell, 90 Tenn. 17; Duntley v. Boston & M. B. Co. (N. H.) 9 L. R. A. 449. 



284 TEANSPOBTATION OF CATTLE. 

of loss or damage by the negligence of the carrier, the contract 
should be upheld as a proper and lawful mode of securing a duft 
proportion between the amount for which the carrier may be re- 
sponsible and the freight received. In that case, the plaintiif 
claimed and offered to prove that his horses were worth much 
more than $200, but it was held that his recovery must be hmited 
to the amount stated in the bill of lading. The basis of the de- 
cision was that a common carrier may prescribe just and reason- 
able regulations to protect himself against fraud, and fix a rate of 
charges proportionate to the magnitude of the risk he assumes. 
A shipper cannot claim full value of stock injured during trans- 
portation under a contract limiting damages to an agreed valuar 
tion, unless upon tender of such contract he demanded one with- 
out the limited liability clause.' In a late case before the supreme 
court of New Hampshire, referees found that the plaintiff shipped 
his horse as an ordinary horse, understanding that the railroad had 
a regulation limiting its liability in case of injury to $200 for an 
ordinary horse, and, if a higher valuation was given, a higher rate 
would be charged. Knowing that the freight charges were meas- 
ured by the valuation put upon the property, and that the rate 
was fixed upon the basis that the liability assumed by the defend- 
ant would not exceed $200 in ease of loss or injury, the plaintiff, 
by shipping his horse as an ordinary horse, it was said, fixed his 
value for transportation purposes, at $200, and, having elected to 
treat his value as $200 for the purpose of securing a low rate of 
freight, he cannot insist upon a higher valuation in case of loss or 
injury. In fixing the freight charges on the assumed valuation 
of $200, both parties understood that the liability assumed by the 
defendant was limited to $200. The plaintifiE's conduct was, in 
effect, a declaration as to the value of his horse, and an admission 
that the defendant's liability as carrier would not exceed $200. 
The case is as if, upon inquiry by the defendant, the plaintiff had 
stated the value of his horse to be $200, the sum named in the 
defendant's regulation as determining the freight charges, and the 
liability assumed in the transportation of a horse of ordinary value. 
The rule or regulation of the defendant, of which the plaintiff 

' LouiamUe <6 N. B. Co. v. Sowell, 91 Tcnn. 17. 



EESTKIOTING LIABILITY JOE LIVESTOCK. 285 

had notice, was not designed and did not purport to relieve the 
■defendant from its common law responsibility as a carrier. The 
purpose was to secure information as to the value of the animals 
received for transportation, and compensation proportionate to 
the risk incurred. As such the regulation was a reasonable one, 
and not in conflict with the general principle that a common carrier 
cannot discharge himself of legal responsibility by a general notice.' 
Such a stipulation is not prohibited on grounds of public policy. 

In Rart v. PennsyVoania R. Co. 112 U. S. 331, 340, 341, 28 
L. ed. 717, 721, the court says : " The limitation as to value has 
no tendency to exempt from liability for negligence. It does not 
induce want of care. It exacts from the carrier the measure of 
care due to the value agreed on. The carrier is bound to respond 
in that value for negligence. The compensation for carriage is 
based on that value. The shipper is estopped from saying that 
the value is greater. The articles have no greater value for the 
purposes of the contract of transportation between the parties to 
that contract. The carrier must respond for negligence up to 
that value. It is just and reasonable that such a contract, fairly 
entered into, and where there is no deceit practiced on the ship- 
per, should be upheld. There is no violation of public policy. 
On the contrary, it would be repugnant to the soundest principles 
■of fair dealing, and of the freedom of contracting, and thus in 
■conflict with public policy, if a shipper should be allowed to 
reap the benefit of the contract if there is no loss and to repudiate 
it in case of loss." 

There is no injustice in restricting the shipper's claim for dam- 
ages to the value he places upon his property for transportation. 
If the plaintifE obtained the lowest rate of freight by shipping his 
horse as of ordinary value, it is not unreasonable that his recovery 
should be restricted to $200, which was the amount of the risk 
the parties imderstood the plaintiff paid for and the defendant 
assumed as carrier." Indeed, it has been ruled that a common 

*Mom V. Bostm & M. M. Go. 34 N. H. 71, 90, 91, 55 Am. Dec. 233. 

*I)untleyy. Boston & M. R. Oo. (N. H.) 9 L. R. A. 449; Magninv. Dinsmore, 
62 N. Y. 35, 30 Am. Rep. 443; Squire v. Mw Toj-k Cent. & H. B. B. Go. 98 
Mass. 239, 345, 93 Am. Dec. 162; Graves v. Lake SIm-e & M. 3. B. Go. 137 
Mass. 33, 50 Am. Rep. 382; BUI v. Boston, H.T.&W. B. Go. 144 Mass. 284. 



286 TEANSPOETATION OF CATTLE. 

carrier is liable for the actual damages to horses injured in trans- 
portation, not exceeding the sum named in a stipulation in a con- 
tract of shipment limiting its liability and fixing such sum as their 
value, — though the horses in their damaged condition sold for 
more than such sum.' The ruling is exceptional that a contract 
by which the liability of a common carrier in the transfer of 
stock is limited to a designated amount per head is not effective, 
M'liere damage is caused by the negligence of the carrier.' 

Where the owner of some horses delivered them to a common 
carrier for transportation under a contract, signed by him, stating 
the terms and conditions upon which the property was to be 
transported, by which it was agreed "that the value of the live- 
stock to be transported under this contract does not exceed the 
following mentioned sums, to wit: Each horse, $100; each ox, 
$50; each bull, $50; each cow, $30; . . . such valuation being 
that whereon the rate of compensation to the company for its 
services and risk connected with said property is based," it was 
said that assuming that the contract was fairly made for the pur- 
poses therein expressed, the sums named being approximately the 
average values of ordinary domestic animals, this was a just and 
reasonable mode of securing a due proportion between the amount 
for which the carrier becomes responsible and the freight which 
he receives, and of protecting himself against extravagant valua- 
tion in case of loss, and that the recovery of the owner will be 
limited to the sums named, even though the loss occurred through 
the negligence of the carrier or his servants.' And the rule is 
generally recognized that a common carrier may, by special agree- 
ment, just and reasonable in itself, and fairly made between itself 
and the consignor of a horse at the time of the shipment, fix the 
value of such horse, upon consideration that the rate of charges 
for transportation shall be commensurate with the value of the 
horse thus ascertained, and may also limit its liability in case of 
loss to the amount thus agreed upon, even though the loss may be 
the result of negligence on the part of the carrier, provided said 

' Starnes v. LouisiiiUe & N. R. Co. 91 Tenn. 516. 

' Abrams v. Milwaukee, L. S. & W. R. Co. 87 Wis. 389. 

^Alair v. Norlliern Pac. B. Co. 19 L. R. A. 764, 53 Minn. 160. 



EESTEICTING LIABILITY FOB LIVESTOCK. 287 

negligence be not gross, wanton, or willful, but cannot wholly ex- 
empt itself from liability for loss resulting from negligence.' 

Questions of fact as to the execution of the contract are for 
the jury and the question of what was the contract of the parties 
is properly submitted, and the common law liabihty of carriers 
defined, to the jury, in an action against a carrier for the death 
of stock delivered to it for transportation, where there is evi- 
dence on the part of the shipper that the contract was oral, with- 
out limitations, and that he subsequently signed what he supposed 
to be a receipt, of the contents of which he was ignorant, and on 
the part of the carrier that the paper was the contract," and as a 
question of law it may be said that a provision of a bill of lading 
limiting damages for injury to a horse during transportation is 
waived by a settlement of the damages, in which the horse is 
taken and a larger sum agreed to be paid therefor.' A special 
contract limiting the liability of a carrier, signed by a shipper of 
horses after they are aboard the train, upon a demand of the 
agent of the carrier, combined with a statement that otherwise 
the horses will not go on that train, — ^is not binding upon him." 

But while exemptions from other causes of accident than neg- 
ligence may lawfully be stipulated for, in consideration of taking 
the animals on reduced terms,' and a carrier of horses may law- 
fully stipulate against liability for injuries arising in consequence 
of their being wild, unruly, or weak, or of different ages or classes, 
or maiming each other or themselves," yet in case of loss from any 
cause for which the carrier would be liable at common law, if 
exemption under contract is claimed, the proof must bring the 
loss within the exception.' 

^Zuuch V. ChesapeaJce & G. B. Go. 17 L. R. A. 116. 36 W. Va. 521 
= St. Louis & S. F. B. Go. v. Gla/rk, 48 Kan. 331. 
' Chicago & E. 1. B. Go. v. Katzenhach, 118 Ind. 174 

* Atchison, T. & 8. F. B. Go. v. Dill, 48 Kan. 210. 

'^ma V. Boston, H. T. & W. B. Go. 144 Mass. 284; Morrison v. PhUlips & G. 
Const. Co. 44 Wis. 405, 38 Am. Rep. 599; Squire v. New York Gent. & H. 
B. B. Go. 98 Mass. 243, 98 Am. Dec. 162; Griswold v. Mew York & N. E. 
B. Co. 58 Conn. 871, 55 Am. Rep. 115. 

• Illinois Cent. B. Co. v. Scruggs, 69 Miss. 418. 
' See anU, § 49. 



288 TKANSPOETATION OF CATTLE. 

In an action to recover damages for injuries to a horse -which 
had been delivered to the defendant carrier for transportation, 
where the injuries were alleged to have been caused by the car- 
rier's negligence, the carrier on the trial introduced the bill of 
lading in this form: "Housatonic Railroad. Great Barrington 
Station. April 25, 1891. In consideration of the Housatonic 
Kailroad Co., and also in consideration of any corporation whose 
roads connecting therewith, receiving and carrying, viz, one horse, 
value $100; one colt, consigned to Bundle & White, Danbury, 
Conn., freight prepaid, the owner and shipper hereby agree that 
none of said corporations shall be liable for damage or loss of or 
to all or any part of said freight by reasons of breaking, chafing, 
weather, fire, or water, except where collision or running from 
the track, resulting from negligence of the corporation's agents, 
:shall cause the same; and the shipper and owner hereby promise 
to pay the freight, and to claim no deduction therefrom by rea- 
son of any damage or loss. L. F. Jones, Station Agent. Signed 
in duplicates: Parley A. Eussell, Agent for shipper and 
owner." 

The defendant requested the court to charge the jury that, in- 
asmuch as the declaration charges the defendant merely as a com- 
mon carrier, but the proof is that the mare and colt were shipped 
under a special contract, the proof does not support the declara- 
tion, and the verdict must be for the defendant. This the court 
declined to do, but charged that, in view of the complaint, and 
of all the pleadings, and of the evidence offered by the plaintifi, 
the suit was to be regarded as an action to recover of the defend- 
ant upon the ground of its negligence. The refusal of the court 
to charge as requested by the defendant was held on appeal fuUy 
justified. If the animals had been shipped under a special con- 
tract, which undertook to completely exonerate the defendant 
from the consequences of its own negligenee, the request would 
have been proper. But in this case it is said there is no attempt 
on the part of the defendant to limit its common law habUity 
except by reason of breaking, chafing, weather, fire, or water, 
where collision or running from the track, resulting from negU- 
_gence of the corporation's agents, does not cause the same. 



EESTEICTING LIABILITY FOK LIVESTOCK, 289 

It is argued by the defendant that the injuries which the mare 
sustained and which occasioned her death, namely, the breaking 
of a leg, and other severe injuries occasioned by her being thrown 
down by a sudden side movement of the car, are properly de- 
scribed by the words "breaking" and "chafing" in the bill of 
lading, and are therefore injuries against which the defendant 
undertook to exempt itself from responsibility, even for its own 
negligence, unless such negligence caused collision or running 
from the track, which, in this case, it did. Such an argument, in 
the judgment of the court, is unsound. None of the words, 
"breaking, chafing, weather, fire, or water," used in the bill of 
lading to describe the occasion of the damage against which the 
defendant limits its liability, are apt or appropriate to describe 
the injuries complained of, nor injuries to live freight at all. It 
is evident the bill of lading used on this occasion was one ordi- 
narily used for goods, wares, and merchandise, other than living 
animals, or, at any rate, was only appropriate for such property. 
In Gamp v. Ha/rtford & N. T. S. B. Co. 43 Conn. 333, twelve 
barrels of sugar and one tierce of rice were shipped under a bill 
of lading, which contracted to transport and deliver them in the 
order and condition in which received, the acts of God, public 
enemies, perils of sea and river navigation, collision, fire, and 
all other perils, dangers, and accidents not resulting from the 
negligence of the company or its agents, excepted." On 
the passage through Hell Gate the steamboat struck on a rock 
and sprung a leak, whereby the goods were damaged. The 
plaintiff sued the steamboat company as common carriers, 
and himself introduced the bill of lading in evidence. The de- 
fendants claimed and requested the court to instruct the jury that 
the contract between the parties, upon which they were alone lia- 
ble, if at all, was expressed in the bill of lading, and that it was 
the duty of the plaintiff to set out in his declaration the contract 
and the exceptions as to liability as contained therein ; that there 
was a variance between the declaration and the proof, and that 
the plaintiff, therefore, could not recover; and that the goo is 
were received by the defendants not as common carriers, but un- 
der the contract contained in the bill of lading. The court de- 
19 



290 TEAKSPOETATION OF CATTLE. 

clined so to instruct the jury, but instructed them that the plain- 
tifE might recover, unless the defendants showed that the acci- 
dent occurred through no want of reasonable care or prudence on 
their part. Upon a motion for a new trial for error in refusing 
to charge as requested, this court held that there was a fatal vari- 
ance between the allegations of the declaration and the proof. 
It held it to be well settled that common carriers may stipulate 
for a less degree of responsibility than the common law imposes, 
and that, while the English courts hold that they may stipulate 
for entire exemption, even for their own negligence, the courts 
in this country difEer only as to the extent to which public pohcy 
will allow the stringency of the ancient rule to be relaxed, and 
generally hold that they will reserve the right to pass upon the 
reasonableness of the particular contract made, and will not allow 
the carrier to exempt himself by special contract from the conse- 
quences of his own negligence or that of his agent. That case, 
however, it is said, differs from the case at bar. To be sure, the 
bill of lading in the latter undertakes to exempt the defendant 
from responsibility for all damage to freight by reason of break- 
ing, chafing, weather, fire or water, even though occasioned by its 
negligence, other than negligent collision or running off the track ; 
and in respect to freight to which that contract applied we should 
hold that the contract for exemption from consequences of its own 
negligence could not be sustained. But the court say there is no 
contract that the defendant shall be exempted from damages oc- 
casioned by its own negligence in failing to provide a suitable 
car, or for so transporting a mare that she is thrown down so as 
to break her leg, and receive other severe injuries, of which she 
dies. In respect to every injury except those caused by breaking, 
chafing, weather, fire, or water, or by collision or running off the 
track through the negligence of its agents, the defendant is sub- 
ject to all the responsibilities of a common carrier. No attempt 
is made to limit such responsibilities. The bill of lading contains 
no contract respecting them. 

The common law rule which made carriers practically insurers 
of property while being, carried by them has, however, it is ad- 
mitted from the very necessity of the case, been in a measure 



EESTBIOTING LIABILITr FOE LIVESTOCK. 291 

relaxed in the carriage of livestock. As suggested in Edwards 
on Bailments, § 680, the carrier can store away goods, so as to 
secure their safety ; but a carrier of animals by a mode of convey- 
ance opposed to their habits and instincts has no such means of 
securing absolute safety. They may die of fright ; they may, not- 
withstanding every precaution, destroy themselves in attempting 
to break away from the fastenings by which they are secured ; or 
they may kill each other by crowding, plunging, or goring ; the 
motion of the cars, their frequent concussions, the scream of the 
engines may often create a kind of frenzy in the swaying mass of 
cattle ; and the carrier is not held liable for injuries or losses aris- 
ing from the irrepressible instincts of this living freight which he 
could not prevent by the exercise of reasonable care. While he 
is not an insurer against injuries arising from the nature and pro- 
pensities of the livestock carried by him, yet his liability is not 
limited to a careful conveyance of the cars containing them. He 
must provide, in advance, suitable means to secure their convey- 
ance ; and he must use those means with all reasonable diligence 
and forethouglit in the varying circumstances arising in the busi- 
ness. In applying these principles to the case pending, it is said 
that the plaintiff sued the defendant as a common carrier of live- 
stock. The defendant, as one defense, set up the bill of lading, 
and claimed that the mare and colt were shipped under its spe- 
cial provisions, which varied its ordinary liability, and therefore 
the proof did not support the declaration. The plaintiff claimed 
in reply that the injuries named in the bill of lading for which 
the defendant undertook to limit its liability did not refer to in. 
juries to livestock at all, and, if they did, no exemption was pro- 
vided for the injuries complained of, and therefore, in respect to 
the care required in transporting and to injuries of the nature of 
and occasioned as those in question, the defendant took the mare 
and colt as common carriers simply and not under a special con- 
tract. If this was true, there is no variance. The facts do not 
present a question of technical variance. The plaintiff does not 
set out one contract in his complaint and prove another. He 
claims to recover against the defendant as a common carrier, and 
introduces no proof inconsistent with such claim, and insists that 



292 TEANSPOETATION OF CATTLE. 

the proof introduced by the defendant is not inconsistent with 
that claim. It is a question of construction of the contract con- 
tained in the bill of lading, and it is held that the court was right 
in instructing the jury that there was no such variance between 
the allegations and the proof as required a verdict for the de- 
fendant. The question was whether the bill of lading, properly 
construed, prevented the plaintiff from recovering from the de- 
fendant under its common law liability as a carrier of live stock. 
The court thought it did not, and this ruling was approved on 
appeal.' 

A general allegation that an act was done negligently is suffi- 
cient without stating in detail the specific acts constituting the 
negligence." An action of tort against a carrier for injury to Uve 
stock shipped, through breach of the carrier's legal duty and through 
negligence, may be maintained, notwithstanding the existence of 
a special contract of shipment of such stock limiting the liability 
of the carrier, but not against liability for negligence." A carrier 
making a through contract for the shipment of stock over its own 
and a connecting line may limit his liability to its own line,' but 
a stipulation in a contract for the shipment of livestock, exempt- 
ing the carrier from liability for any injuries or damage to the 
stock occurring on other lines, does not exempt it from liability 
for damages occurring on one of a system of roads operated by 
it." A contract with a carrier to which horses are first delivered 
for shipment to a point on the line of another carrier, limiting 
liability for injury to them,' does not enure to the benefit of the 
latter carrier, where it repudiates the contract, requires the exe- 
cution of a new contract, and collects additional freight." A bill 
of lading containing fifteen sections limiting the carrier's common 
law liability, required to be accepted by a shipper as a condition 
of receiving and carrying his stock, is invalid as unfair and unrea- 

' Coupland v. Housatonic B. Co, 15 L. R. A. 534, 61 Conn. 531. 

' Hindman v. Timrm (Ind. App.) Bee. aO, 1893. 

8 NieoU V. Eaat Tennessee, V. & &. S. Co. 89 Ga. 260. 

•• Ou'f, 0. & 8. F. R. Go. V. Thompson (Tex. Civ. App.) Feb. 8, 1893. 

' International <6 0. iV. B. Co. v. Anderson 3 Tex. Civ. App. 8. 

» Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210. 



EESTKICTING LIABILITY FOK LIVifiSTOOK. 293 

sonable ; and an intermediate carrier can claim no more rights 
thereunder than could have been claimed by the initial carrier." 
There are conflicting decisions usually resulting from statutes in 
the states as to the right to limit the value to that existing at the 
place of shipment. It has been decided that a contract for the 
shipment of livestock, which attempts to fix the measure of dam- 
ages by the value of the animals at the point of shipment, instead 
of the place of destination, is unreasonable, and will not be en- 
forced.' And that a carrier cannot restrict its liability for dam- 
ages for its own negligence to less than the true value of the 
property by a provision that in case of loss the value at the place 
of shipment shall be the measure of damages." 

But it has been also held that a stipulation that the value of 
the goods shall be estimated at the place of shipment, is valid.' 
Of course a mere custom requiring a shipper to agree, as a condi- 
tion of shipment, that his measure of damages should not be more 
than the cash value of the stock shipped at the place of shipment, 
is illegal." 

A contract for the shipment of livestock by a railroad com- 
pany provided that, in consideration of a certain reduced rate of 
transportation, the owner of said stock should assume all risks of 
injuries which the animals or either of them might receive in con- 
sequence of any of them being wild, unruly, vicious, weak, escap- 
ing, maiming and killing themselves or each other, or from delays, 
or in consequence of heat or suffocation, or the ill effects of being 
crowded upon the cars of said company, or on account of being 
injured by the burning of hay, straw, or any other material used 
by the owner in feeding the stock, or otherwise, and any damage 
occasioned thereby, and also all risk of any loss or damage which 
might be sustained by reason of any delay, or from any other 
cause or thing in or incident to, or from, or in, the loading or un- 
loading of said stock ; that said owner should load and unload said 

" St. Louis, I. M. & 8. B. Co. v. Spann, 57 Ark. 127. 

^International & Q. N. B. Co. v. Anderson, 3 Tex. Civ. App. 8. 

8 M. Worth & J). C. B. Co. v. Oreathouse, 82 Tex. 104, 49 Am. & Eng. R. 

Cas. 157. 
*Ph(mixIns. Co. v. Brie d W. Transp. Co. 117 U. 8. 314, 39 L. ed. 873. 
' Missouri Pac. B. Co. v. Fagan, 2 L. E. A. 75, 72 Tex. 127. 



294 TEANSPOETATION OF CATTLE. 

stock at his own risk, the railroad company furnishing the neces- 
sary laborers to assist, under the direction and control of said 
owner, who should examine for himself all the means used in 
loading and unloading, to see if they were of sufficient strength, 
of the right kind and in good repair and order ; that each person 
riding free to take care and charge of said stock should do so at 
his own risk of personal injuries from whatever cause ; and that 
the owner should release and hold harmless, and keep indemnified, 
the railroad company from all damages, actions, claims, and suits, 
on account of any and every injury, loss and damage heretofore 
referred to, if any should occur or happen. In a subsequent suit 
against the railroad company, a recovery was sustained on appeal, 
for certain animals shipped by the plaintiff, under this contract, 
and lost, while in course of transportation, by escaping through a 
window open in the end of the car in which they had been loaded 
by the plaintiff's agent, who accompanied them on the route, and 
who, after the escape of one of the animals, told the conductor to 
fix said window, and the conductor not doing so, fixed it himseK." 
The owner of a horse shipped in a box car, the doors of which 
can be fastened only from the outside, and who is inside the car 
with the horse, has a right to expect that the conductor will see 
that the door is properly closed and fastened before starting the 
train, although the horse is shipped under conditions by which 
the owner assumes all risk of loading, transportation, and unload- 
ing, except from negligence of the railroad employes." There are 
many cases which are cited in a preceding section (50) which re- 
fer as well to the questions herein discused, and to them reference 
is made. 

In some of the states express provisions are contained in their 
constitution or laws forbidding limitations of liability. Thus, the 
effect of section 4 of article 11 of the Constitution of ISTebraska 
which provides that "the liability of railroad corporations as com- 
mon carriers shall never be limited," was to put it out of the 
power of railroads as common carriers to limit their liability, as 
such, by special agreements with shippers; and thus remove from 

^Indianapolis, P. & 0. R. Co. v. Allen, 31 Ind. 394. 
• Lawie v. Reg. 3 Can. Exch. 96. 



CONTKIBUTOET NEGLIGENCE OF SHIPPEE. 295 

their officers and agents all temptation to effect said exemption 
from liability, and the loss and damage to property which might, 
of necessity, follow the release of their responsibility and that of 
their agents therefor." And hence a livestock contract entered 
into for this purpose is void," and a carrier of livestock cannot 
by contract with a shipper relieve itself, either in whole or in 
part, from liability for injury or loss arising from its own negli- 
gence.' And the regulations that the Crown should be relieved 
from liability for livestock shipped over government railways, 
made a part of Can. Kev. Stat, chapter 38, of which § .50 provides 
that the Crown shall not be relieved of liability where damage is 
occasioned by negligence of its employes, do not operate to relieve 
the Crown of liability where the loss arises from such negligence." 

§ 72. Contributory JYegUgence of Shipper. 

In the case of the common carrier of freight, as in that of the 
carrier of passengers, negligence contributing to the injury of the 
party suffering loss, will relieve the carrier, although he has also. 
•been guilty of negligence, except in one or two states where the 
doctrine of comparative negligence is recognized. Thus any neg- 
lect to inform the carrier of the value or peculiar temperament of 
an animal, or of the worth or character of a package, which should 
have more than ordinary care will relieve the carrier from neg- 
lect to give such special care, unless the nature or value appear 
otherwise.' A carrier is not liable for the death of a bull calf from 
overaetion and overheating at the time of unloading him from a car 
because it was done at the depot platform at which single head of cat- 
tle were usually unloaded instead of at the stock yard, where the 
unruly disposition of the calf, which caused the trouble, was not 

' Atchison & W. B. Oo. v. Washburn, 5 Neb. 117. 

'Missouri Pae. M. Oo. v. Vandeventer, 3 L. R. A. 139, 26 Neb. 222. 

' Ohieago, B. I. & P. B. Co. v. Witty, 32 Neb. 275. 

'Lavoie v. Beg. 3 Can. Exch. 96. 

^Hayes v. Wells, 28 Cal. 185, 83 Am. Dec. 89; Fargo & Oo. Magnin v. Dins- 
more, 62 N. Y. 35, 20 Am. Rep. 442, 70 N. Y. 410, 26 Am. Rep. 608; Me- 
chanics & T. Bank v. Gordon, 5 La. Ann. 604; Southern Exp. Co. v. Eoerett, 
37 Ga. 688. 



296 TEANSPOKTATION OF CATTLE. 

known until he was taken from the car.' Of course active de- 
ceit, as concealing the contents or character of the article sent, 
will require actual negligence on the part of the carrier to sustain 
a recovery — as, concealing money therein,' or falsely marking to 
indicate a different kind of care from that actually required, — as 
marking "glass" on a case of jewelry." So error of the shipper 
as to direction for delivery of the shipment or failure to notify 
consignee will relieve the carrier of liability, nnless he be guilty 
of actual negligence which causes the failure to deliver.* The 
allegation in a complaint for negligence, that the plaintiff was 
free from fault, renders the complaint good against an inference 
of contributory negligence, unless the inference arises as a neces- 
sary legal conclusion from the facts particularly stated.' 

If the owner assume to direct the shipment he will relieve the 
carrier from responsibility for loss he may thus cause,' but not 
where the carrier controls his efforts.' Under a contract for 
transportation of a horse, restricting the liability of the company 
for any loss "by jumping from the cars," the owner cannot re- 
.cover on the ground of the negligence of the company, where he 
liimself put the horse in the car, tied him near a window, opened 
the window, and left it open, just before the car was to start.' 
If the failure of a shipper of a carload of mules to accompany 
and attend them, under the contract of shipment, in which he 
agreed, in consideration of a free passage, to attend, feed, and 
water them at his own risk and expense, proximately contributed 
to an injury to the mules, the company is not liable therefor.' 

I Chicago, B. & Q. B. Co. v. Owen, 81 111. App. 339. 

= OMon V. Paynton, 4 Burr. 2298. 

^Self\. Bapp, 3 Watts & S. 21, 87 Am. Dec. 538. See also Houston <6 T. 

G. B. Co. V. Burke, 55 Tex. 323, 40 Am. Rep. 808; Grouch v. London & N. 

W. B. Co. 14 C. B. 255. See ante, % 53. 
^ Southern Bxp. Co. v. Kaufman, 12 Heiak. 161; Mahon v. Blake, 125 Mass. 

477; Boss v. Missouri, K. & T. B. Co. 4 Mo. App. 583;Tris6 v. QreatWe^ 

tern B. Co. 1 Hurlst. & N. 63; Forsyth v. Walker, 9 Pa. 148. 
5 Pittsburgh, 0. 0. & St. L. B. Co. v. Bennett (Ind. App.) Nov. 38, 1893. 
^Bogers v. Wheeler, 53 N. Y. 262; Bixford v. Smith, 52 N. H. 355, 13 Am. 

Rep. 42. 

' Powell V. Pennsylvania B. Co. 32 Pa. 414, 75 Am. Dec. 564; PhUleo v. San- 
ford, 17 Tex. 227, 67 Am. Dec. 654. 
« Hutchinson v. Chicago, St. P. M. & 0. B. Go. 37 Minn. 53.4. 
^Western B. Co. v. Harwell, 91 Ala. 34u, 45 Am. & Eng. R. Gas. 358. 



\ OONTKIBUTOBY NEGLIGENCE OF SHIi'PEB. 297 

A railroad company is under no obligation to a shipper of live- 
stock, under a contract providing that he may accompany and 
care for it in trcmsitu, to stop the train at the station platform to 
permit him to board it, where its usual custom is for shippers to 
board the train in the yard, and he, without inquiry as to when 
or from what place the train will start, goes to a restaurant to get 
a lunch, and proceeds to the platform.' A railroad company is 
not liable for injuries caused by negligence in loading livestock 
drawn over its road in a car owned and loaded by the owner of 
the stock, though it is the general duty of its conductors to see 
that trains under their control are properly loaded." But knowl- 
edge of the unsafe condition of a platform provided by a carrier 
for loading stock will not prevent recovery for injuries to a per- 
son on attempting to use it for that purpose in the exercise of 
due care.' 

' Ohio & M. B. Co. V. Brown, 46 111. App. 137. 

^Fordycev. McFlynn, 56 Ark. 424. 

'WhiU V. CHneinnaiti, N. 0. & T. P. B. Co. 7 L. R. A. 44, 89 Ky. 478. 



CHAPTER IX. 

PACKING AND STOWING GOODS. 

§ 73. Duty of Carrier and Shipper — Clean Bill of Lading. 

§ 74 Custom Controlling Stowage. See ante, § 33. 

§ 75. Stowage of Goods on Deck. 

§ 76. Owner's Knowledge of Improper Stowage — Owner's Risk. 

§ 77. Negligence in Stowage and Handling. 

§ 78. Jettison. 

§ 73. Duty of Carrier and Shipper— Clean Bill of 

Lading. 

The common carrier is an insurer of the property carried, and 
the duty rests upon it to see that the packing and conveyance are 
such as to secure its safety.' The owner of a vessel is hable for 
the failure to use due care in stowing the cargo, and in navigat- 
ing the vessel. This obligation to use due diligence and skill in 
stowing and staying the cargo, does not amount to a warranty 
that it has been done through their sanction. The want of addi- 
tional supports of a deck, if they would not have enabled the ship 
to carry the load through a storm, is not a ground of recovery. 
In stowing goods, the possibility of heavy weather must be con- 
sidered and duly provided against, and part of the cargo which 
may be affected thereby and lost, must be stowed with special 
care." 

The carrier is not responsible, however, where goods are de- 
stroyed or injured from some inherent quality in the goods them- 
selves,° nor is it liable for injury or damage to goods from insecure 
or imperfect packing or boxing, for the shipper of goods perish- 
able in their nature or susceptible of easy breakage, must take 

' Hannibal & St. J. R. Co. v. Swift, 79 U. S. 12 Wall. 263, 20 L. ed. 433. 
« The Maggie M. 80 Fed. Rep. 693. 
' Alston V. Herring, 11 Exch. 822. 

298 



DtJTT OF CAEKIEK AND SHIPPER — CLEAN BILL OF LADING. 299 

extra care in packing and boxing.' A carrier will be presumed 
to have received goods in good order, in the absence of evidence 
to the contrary.' An answer by a carrier sued by a consignee 
for a failure to deliver goods which it agreed to transport to him 
at a certain destination, setting up negligence on the part of the 
owner and consignor in the mode of loading the goods on the 
car, is bad where it does not allege that such fault of the owner 
was the sole cause of the loss of the goods, contributory negligence 
on the owner's part not being a valid defense.' 

Text-writers mention the bill of lading as an example of an in- 
strument which partakes of a twofold character, and such com- 
mentators agree that the instrument may, as between a carrier and 
the shipper, be contradicted and explained in its recital that the 
goods were in good order and well conditioned, by showing that 
their internal state and condition was bad or not such as is repre- 
sented in the instrument, and in like manner, in respect to any 
other fact which it erroneously recites, but in all other respects it 
is to be treated like other written contracts.* The recital in a 
bill of lading that the goods were received " in apparent good 
condition" refers only to the external condition, and as between 
the parties is only prima facie proof of the true condition when 
received.' 

"While the general rule requires that goods, unless they are such 
as may safely be carried on deck, should be stowed below, this 
rule is usually held to apply to sea going vessels not propelled by 
steam,° and is not generally accepted, either by law or custom, as 
•controlling the stowage of goods upon inland navigation. It has 



' Qoodman v. Oregon B. & Nav. Go. 33 Or. U, 49 Am. & Eng. R. Cas. 87. 

^B.emy v. Cmtral JR. & Bkg. Oo. 89 Ga. 815. 

^McCarthy v. Lmismlle & N. B. Co. (Ala.) Dec. 33, 1893. 

* Hastings v. Pepper. 11 Pick. 43; OlarJc v. Barnwell, 53 U. S. 13 How. 373, 

13 L. ed. 985; Mlis v. Willard, 9 N. Y. 539; May v. Babcock, 4 Ohio, 346; 

Adams v. Boyal Mail 8. Packet Co. 5 0. B. N. S. 493; Sack v. Ford. 18 0. 

B. N. S. 100; The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 30 

L. ed. 779. 
*Bt. Louis, A. & T. B. Co. v. Neel, 56 Ark. 379. 
'Toledo F. & M. Ins. Co. v. Speares, 16 Ind. 53; Merchants & M. Ins. Co. v. 

Shillito, 15 Ohio St. 559, 86 Am. Dec. 491 ; Hurley v. Milward, 1 Jones & 

0. 334. 



300 PACKING AND STOWING GOODS. 

been lield not to apply to a steamer upon Long Island Sonnd,' nor 
upon tlie Great Lakes to a sailing vessel.' The rule, however, 
has been recognized as controlling stowage on sailing vessels upon 
the lakes." 

The bill of lading, in the usual form, is a receipt for the quan- 
tity of goods shipped and a promise to transport and deliver the 
same as therein stipulated. In so far as it is a receipt, it may be 
contradicted by oral testimony; so far as it is a contract between 
the parties, it stands on a footing with all other contracts in writ- 
ing, and cannot be contradicted nor varied by parol evidence.' 
Unless the bill of lading contains a special stipulation to that 
eiFect, the master is not authorized to stow the goods sent on 
board as cargo on deck, as when he signs the bill of lading, if in 
common form, he contracts to convey the merchandise safely, in 
the usual mode of conveyance, which, in the absence of proof of 
a contrary usage in the particular trade, requires that the goods 
shall be safely stowed under deck ; and when the master departs 
from that rule and stows them on deck, he cannot exempt either 
himself or the vessel from liability in case of loss, by virtue of the 
exception of dangers of the seas, unless the dangers are such as 
would have occasioned the loss even if the goods had been stowed 
as required by the contract of afEreightment.'' If the bill of lad- 
ing is silent as to the mode of stowing the goods, it imports that 
the goods are to be carried under deck, and parol evidence that 
the shipper agreed that the goods should be stowed on deck, can- 
not be received." 

Though by its terms the common or "clean" bill of lading is 
silent as to the stowage, yet it imports that the goods are to be 
safely stowed under deck ; and this is a condition tacitly annexed 

' Sarris v. Moody, 30 N. T. 266, 86 Am. Dec. 375. 

= Gillett V. EUis, 11 111. 579. 

' The Milwaukee Belle, 2 Biss. 197. 

* The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 

^ The Rebecca, 1 Ware, 310; Dodge v. Bartol, 5 Me. 286, 17 Am. Dec. 233; 
Wolcott V. Magle Ins. Go. 4 Pick. 429; Taunton Copper Co. v. Merchants Ins. 
Co. 22 Pick. 108; Adams v. Warren Ins. Co. 22 Pick. 163; The Delaware v. 
0, egon Iron Co. 81 U. B. 14 Wall. 579, 20 L. ed. 779. 

• The Delaware v. Oregon Iron Co. supra; The Star of Hope v. Church, 84 U. 

S. 17 Wall. 651, 21 L. ed. 719. 



OtrSTOM OONTEOLLINa STOWAGE. 301 

to the contract by law. And this implied contract is so conclu- 
sive that the law will not permit parol evidence to show that the 
parties contracted for a stowage on deck.' This is settled law, 
that a clean bill of lading in courts, imports that goods are to be 
safely and properly stowed under deck, and that it is a duty of the 
master to see that the cargo is so stowed and arranged, that the 
different goods may not be injured by each other, or by the mo- 
tion or leakage of the vessel, unless by agreement, that service is 
to be performed by the shipper." Express contracts may be made 
in writing which will define the obligations and duties of the par- 
ties, but where those obligations and duties are evidenced by a 
" clean " bill of lading, that is, if the bill of lading is silent as to 
the mode of stowing the goods, and it contains no exceptions as 
to the liability of the master, except the usual one of the dangers 
of the sea, the law provides that the goods are to be carried un- 
der deck, unless it be shown that the usage of the particular trade 
takes the case out of the general rule applied in such controver- 
sies." 



§ 74. Custom Controlling Stoivage. See ante, § 33. 

Evidence of usage is admissible in mercantile contracts to prove 
that the words in which the contract is expressed, in the particu- 
lar trade to which the contract refers, are used in a particular 
sense and different from the sense which they ordinarily import ; 
and it is also admissible in certain cases, for the purpose of annex- 
ing incidents to the contracts in matters upon which the contract 
is silent, but it is never admitted to make a contract or to add a 



' Grm-y v. HoUy, 14 Wend. 26; The Waldo, 2 "Ware, 167; The Delaware v. 
Ooegon Iron Co. supra. 

' The Delaware v. Oregon Iron Co. supra; The Niagara v. Cordes, 62 U. S. 21 
How. 23, 16 L. ed. 46; Sandeman v. Scurr, L. R. 2 Q. B. 98; Swainsion v. 
Oarrick, 2 L. J. Exch. N. S. 355; Anglo- African Co. v. Lainsed, L. R. 1 
C. P. 239; Alston v. Herring, 11 Exch. 822. 

'Abbott, Shipping (7th Am. ed.) 845; Smith Y.Wright. 1 Cai. 43, 3 Am. Dec. 
162; Oould Y. Oliver, 3 Maule & G. 308; Waring y. Morse, 7 Ala. 343; Falk- 
ner v. Marie, 3 Best. & S. 363. 



302 PACKING AND STOWING GOODS. 

new element to the contract previously made by the parties. 
Such evidence may be introduced to explain what is ambiguous, 
but it is never admissible to vary or contradict what is plain. 
Evidence of the kind may be admitted for the purpose of defin- 
ing what is uncertain, but it is never properly admitted to alter 
a general rule of law, nor to make the legal rights or liabilities of 
the parties other or different from what they are by the common 
law.' In a case where evidence was excluded of the owner's 
knowledge of stowage of goods on deck, the court admitted that 
where there is a well known usage, in reference to a particular 
trade, to carry the' goods as convenience may require, either upon 
or under deck, the bill of lading may import no more than that 
the cargo should be carried in the usual manner.'' It is said that 
remarks are found in the opinion* of the court in the case of Yw- 
nard v. Hudson, 3 Sumn. 406, and in Sayward v. Stevens, 3 
Gray, 101, which permitted the introduction of parol evidence ; 
but the weight of authority and all the analogies of the rules of 
evidence is against giving effect to the language there implied.' 
The question of negligence in stowage should be governed by 
the custom of trade, and if the case were stowed according to the 
customary way in that particular trade — there being no special 
directions otherwise — the vessel would not be liable.' A vessel 
under special charter, and not engaged as a common carrier, is 
not liable for damages to grain stored against an iron bulkhead 
abaft the engine room, caused by heat, where the storage was in 
accordance with the usual custom of the country in which it was 
done, and was approved by persons whose business it is to super- 
vise and determine what is proper stowage.* 

' Oelricka v. Ford, 64 U. S. 23 How. 63, 16 L. ed. 538; Barnard v. Edhgg, 77 
U. S. 10 Wall. 383, 19 L. ed. 987; Simmons v. Law. 3 Keyes, 219: g^artaU 
V. Benecke, 10 C. B. 223; TTie Delaware v. Oreqon Iron Co. 81 U. S. 14 Wall. 
579, 20 L. ed. 779. 

' Sproat V. DonneU, 26 Me. 187, 45 Am. Dec. 103; Hope v. State Bank, 4 La. 
212; LapTiam v. Atlas Ins. Co. 34 Pick. 1; Barber v. Braee, 3 Conn. 18, 8 
Am. Dec. 149, 2 Taylor, Ev. §§ 1063, 1067. 

' The Delaware v. Oregon Iron Go. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 

* Blaikie v. Stembridge, 5 Jur. N. S. 1128. 

' The Dan, 40 Fed. Rep. 691. 



STOWAGE OF GOOLS ON DECK. 303 

§ 75. Stowage of Goods on Deck. 

The rule is equally imperative, however, that goods which are 
liable to suffer injury from being stowed in the hold, must be 
stowed upon deck ; and the carrier must take notice of this nec- 
essity.' Thus, in view of the practice as to the stowage of nuts 
shipped from ]S"ew York to San Francisco, from the well known 
fact that, if stowed in the hold, they are liable to be injured by 
sweat, it is culpable negligence on part of the carrier to stow them 
in the hold.'' Goods, though lost by perils of the sea, if they 
were stowed on deck without the consent of the shipper, are not 
regarded as goods lost by the act of God within the meaning of 
the maritime law, nor are such losses regarded as losses by perils 
of the sea which will excuse the carrier from delivering the goods 
shipped to the consignee, unless it appears that the manner in 
which the goods were stowed is sanctioned by commercial usage, 
or unless it affirmatively appears that the manner of stowing did 
not, in any degree, contribute to the disaster ; that the loss hap- 
pened without any fault or negligence on the part of the carrier, 
and that it could not have been prevented by human skill and 
prudence, even if the goods had been stowed under deck, as re- 
quired by the general rules of the maritime law.' Where goods 
are stowed under deck the carrier is bound to prove the casualty 
or vis major which occasioned the loss or deterioration of the 
property which he undertook to transport and deliver in good 
condition to the consignee, and if he failed to do so, the shipper 
or consignee, as a general rule, is entitled to his remedy for the 
non-delivery of the goods. No such consequences, however, fol- 
low, if the goods were stowed on deck by the consent of the ship- 
per, as in that event neither the master nor the owner is liable for 
any damage done to the goods by the perils of the sea, or from 
the necessary exposure of the property, but the burden to prove 



' The New Orleans, 26 Fed. Rep. 44. 

•"The Star of Hope v. Chwrch, 84 U. 8. 17 Wall. 651, 21 L. ed. 719. 

^Lawrence v. Minturn, 58 U. S. 17 How. 114, 15 L. ed. 64; The Peyiona, 2 
Curt. 23; The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 
779. 



304 PAOKIN& AND STOWING GOODS. 

such consent is upon the carrier, and he must take care that he 
has competent evidence to prove the fact.' 

§ 76. Owner's Knowledge of Improper Stowage- 
Owner's Rish. 

A bill of lading which contains no stipulation as to the stow- 
age of the merchandise carries with it the implied obligation of 
the carrier if the goods are shipped by water, to stow them se- 
curely under deck, — unless there be a general custom authorizing 
the carriage of that particular class of goods on deck. And the 
owner's knowledge that the goods are not stowed below deck, 
will not avail to protect the carrier otherwise.' Contracts of the 
master, within the scope of his authority as such, bind the vessel 
and give the creditor a lien upon it for his security except for 
repairs and supplies purchased in the home port and the master 
is responsible for the safe stowage of the cargo under deck, and 
if he fails to fulfill that duty, he is responsible for the safety of 
the goods, and if they are sacrificed for the common safety, the 
goods stowed under deck do not contribute to the loss.' Ship 
owners, in a contract by a bill of lading for the transportation of 
merchandise, take upon themselves the responsibility of common 
carriers, and the master, as the .agent of such owners, is bound 
to have the cargo safely secured under deck, unless he is author- 
thorized to carry the goods on deck, by the usage of the parti- 
cular trade or by the consent of the shipper, and if he would rely 
upon the latter, he must take care to require that the consent 
shall be expressed in a form to be available as evidence under the 
general rules of law.' Although the consent of a shipper is pre- 
sumed to the taking of such cargoes if proved to be customary, 

' Shackleford v. Wilcox, 9 La. 38; The Delaware v. Oregon Iron Co. supra. 
» The Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 30 L. ed. 779; The 
New Orleans, 26 Fed. Rep. 44; Creei-u v. SoUy, 14 Wend. 26; The Waldo, 
. 2 Ware, 161. 

'The Paragon, 1 Ware, 829, 331, 3 Phil. Ins. S 704; Brooks v. Oriental Ins. 
Co. 7 Pick. 259. 

* The Waldo, 2 Ware, 162: Blaekett v. Royal Exch. Asmr. Go. 2 Cromp. & .1. 
250; 1 Am. Ins. 69; Lmox v. United Ins. Co. 2 .Johns. Gas. 178; The De- 
laware V. Oregon Iron Co. 81 U. S. 14 Wall. 579. 20 L. ed. 779. 



NEGLIGENCE IN STOWAGE AND HANDLING-. 805 

to the point of destination, this presumed assent would not jus- 
tify the master in taking on board hoops apparently uniit from 
weight or want of seasoning, hut the master is responsible for 
the cargo's apparent condition only, and not for its secret vices 
•or defects. Where the master supposed that the goods were the 
property of the charterer who employed the stevedore, although 
the presentment of bills of lading by other persons as owners of 
the flour and provisions may have been a surprise, where there 
was still opportunity before he sailed for the discharge of his 
duty to the shippers and to the ship as respects the stowage of 
the flour in the place most suitable for it, he was not liable to the 
ishippers for improper stowage, no matter by whom the stevedore 
was employed, or whoever may have been the liable person, if 
the master's mate retained the same control over the disposition 
of the cargo.' Where a charter party provides that the vessel is 
to be loaded by a stevedore selected by the charterer,. but paid by 
the ship and under the exclusive direction of the master, the 
■charterer not to be responsible for stowage, the latter cannot be 
held liable for her carrying an insufficient cargo in consequence of 
bad stowage." Where the charterer induced the master, against 
his objection, to receive a car of lard in leaking casks, the ship is 
exempt from liabilities between its charterers and owners for dam- 
ages therefrom, and the transportation of the cargo.' 

% 77. JVegligence in Stowage and Handling. ' 

If costly mirrors are stowed among loose articles of hardware, 
■or, if a case enclosing valuable statuary and marked "this side up 
with care," is placed up side down among a lot of pig-iron, the 
carrier could hardly contend that he is protected from liability 
by the clause exempting dangers of the sea. In the matter of 
stowage— as in all others — due care, and its opposite, negligence, 
are relative terms, having respect to the nature of the duty to be 
performed, the knowledge communicated to the party to be 

' TU KeysioTie, 31 Fed. Rep. 412. 

' MancUisa v. Card, 39 Fed. Rep. 492. 

*Boyd V. Moses, 74 U. S. 7 Wall. 316, 19 L. ed. 193. 

20 



306 PACKING AND STOWING GOODS. 

charged, and tlie prevailing usage of the business.' The stowage 
of cases of household goods at the side of the lower hold of a 
vessel liable to incur unusual leakage and of great breadth for 
her size, with knowledge of their contents, is negligence on the 
part of the master which will make the ship liable for damage to 
the goods by water, notwithstanding a provision of the bill of 
lading that she shall not be accountable for breakage or damage.* 

Even where it appeared that the shipper or his agent, delivered 
the goods to the carrier, and repeatedly saw them as they were 
stowed on the deck, and made no objection to their being so 
stowed, it was held that the evidence of this fact was not admis- 
sible to vary the legal import of the contract of shipment. That 
the bill of lading being what is called a "clean" bill of lading, it 
bound the owners of the vessel to carry the goods under deck.' 

Although goods are shipped at the owner's risk, the carrier 
may be liable for damages caused by the weather or rust, if oc- 
casioned by the carrier's negligence, or by unreasonable delay on 
the road. If a shipper of machinery agrees that it may be trans- 
ported on open cars, the carrier may still be liable for damage by 
rust or weather, during a detention on the road, if ordinary dili- 
gence require the carrier to cover the cars during such detention, 
and it fails to do so.' "Where goods, if stowed in the hold, were 
liable to be injured by sweat and marked "In Cabin State Koom," 
it was culpable negligence to stow them in the hold. Where the 
bill of lading does not specify any particular place for the stow- 
age of the goods, they are properly stowed between decks in the 
hold." 

The obligation of the shippers of the cargo of a vessel is to be 
determined by the law of the place where the contract of af- 
freightment is made, although the vessel is owned by a subject 

^Lamb v. Parkman, 1 Sprague, 343; T7ie Star of Hope v. Ohureh, 84 U. S. 17 
Wall. 651, 21 L. ed. 719; Bastings v. Pepper, 11 Pick. 41. 

• The Johanne, 48 Fed. Rep. 733. 

» Sproat V. Donnell, 26 Me. 187, 45 Am. Dec. 103; Hope v. StaU Bank, 4 La. 
212; Lapham v. Atlas Ins. Oo. 34 Pick. 1; Barber v. Brace, 3 Conn. 18, 8 
Am. Dec. 149; 2 Taylor, Ev. §§ 1062, 1067. 

* Western & A. B. Go. v. Exposition Cotton Mills, 81 Ga. 532. 

« riie Star of Hope v. Church, 84 U. S. 17 "Wall. 651, 21 L. ed. 719. 



NEGLIGENCE IN STOWAGE AND HANDLING. 307 

of another country.' A stipulation in a contract relieving a car- 
rier from liability for the negligence of its servants, if valid by 
the lex loci, will be enforced by the lex fori.' A provision in a 
charter that no claim is to be made against owners for loss of 
cargo, adjusting the liability between the owners and the charter- 
ers does not relieve the ship from liability to a shipper of cargo 
from loss by reason of bad storage.' A provision of a bill of 
lading exempting the carrier from damage from any act, neg- 
lect, or default of the pilot, master, or mariners, in the navigation 
or management of the ship, does -not protect the owners from lia- 
bility for injury to the cargo from negligence of the stevedore.* 
To relieve a vessel acting as a common carrier from liability to 
bona fide purchasers and consignees for injury to goods from 
leakage of other goods through imperfect packages or stowing, 
such liability must be expressly excepted in the bill of lading, 
even though the goods are shipped by the charterers." An ex- 
emption in a bill of lading, not accountable for rust, does not 
exempt from responsibility for damage caused by improper stow- 
age.' A vessel is liable for damage to a cargo of ice, caused by 
the escape of steam from a defective drip valve.' A ship is 
bound to provide whatever means are necessary to keep the hold 
free from water, no matter how the lack happens. "Unless it is 
shown that the lack was caused by a peril of the sea, its existence 
proves negligence.' It is the duty of a vessel taking abroad a 
cargo of molasses in casks, to stow it properly and securely 
in the place selected; and if supporting stanchions to divide 
the weight of the casks are needed for security in ordinarily 
rough weather, it is bound to provide proper stanchions.' 
Where piles of corkwood were bound on board a ship for con- 

' China Miit. Ins. Go. v. Forae, 142 N. Y. 90. 

' O'Began v. Ounard SS. Go. 160 Mass. 356. 

'The Centurion, 57 Fed. Bep. 412. 

■• Uie Ferro [189.3J Prob. 38. 

» The H. 9. Johnson, 48 Fed. Rep. 696. 

^Dedelcam v. Vose, 3 Blatchf. 44; The Invincible, 3 Sawy. 176, 

' The Saugerties, 44 Fed. Rep. 635. 

' The Samuel M. Spring, 29 Fed. Rep. 397. 

' The Centurion, 57 Fed. Rep. 412. 



308 PACKING AND STOWING GOODS. 

signment, and piled for the purpose of proper stowage, and the 
difEerent kinds of wood were thereby mixed, causing a loss in the 
market value of the whole, and on arrival in port the shipper sold 
the goods on the consignee's refusal to give a receipt for the same 
in good order, the consignee was entitled to recover the value of 
the shipment, less the freightage.' 

Whatever the practice may have been when the carriage of 
green fruit was new, its liability to cause damage from rotting, 
heating, sweating or decay, through the contingencies of the voy- 
age, were so well known in 1885 that the stowage of macaroni in 
the same compartment with green fruit was not an exercise of 
such reasonable care as would relieve the vessel from liabUity un- 
der the bill of lading which excepted " damages from other goods 
by sweating or otherwise." " The sweating of a cargo and the 
heat generated from the presence of cooperage, apparently suffi- 
■ ciently seasoned when coming from a cold to a warm climate, is a 
peril of the sea falling within the exception of a biU of lading, 
unless it appears to have been caused by the negligence of the 
shipper." 

It is not the duty of a common carrier to know the contents of 
any package offered to him for carriage, when there are no at- 
tendant circumstances to awaken his suspicions as to their charac- 
ter, and there can be no presumption of law that he had such 
knowledge in any particular case of that kind ; and he cannot be 
charged, as a matter of law, with notice of the properties and 
character of packages thus received. It is only when sufficient 
grounds exist arising from the appearance of the package, or other 
circumstances, to excite the carrier's suspicion, that he is author- 
ized, in the absence of any special legislation on the subject, to re- 
qidre a knowledge of the contents of the packages offered, as a 
condition of receiving them for carriage. An express company 
which received, in the regular course of business, for transporta- 
tion, a package of nitro-glycerine, ignorant of the material, and 
transported the same, was not liable for damages resulting from 

» The Augusta, 39 Fed. Rep. 334. 

'Paturm v, Compagnie Francaise, 81 Fed. Rep. 619. 

8 The Keystone, 31 Fed. Rep. 413. 



NEGLIGENCE IN STOWAGE AND HANDLING. 309 

what -would have been an improper handling of the same had 
they known its contents.' In Pierce v. Winsor, 2 Cliff. 18, 
a general ship was put up for freight. Among other freight 
offered and taken was mastic, an article new in commerce, 
and which was so affected by the voyage that it injured other 
parts of the cargo in contact with it, and caused increased 
expenditure in discharging the vessel. The court held the 
shipper and not the charterer liable, and observed that " the 
stowage of the mastic was made in the usual way, and it 
is not disputed it would have been proper if the article had 
been what it was supposed to be when it was received and laden 
on board. "Want of great care in that behalf is not a fault, be- 
cause the master had no means of knowledge that the article re- 
quired any extra care or attention beyond what is usual in respect 
to other goods. In the absence of any showing of negligence, a 
ship will not be held liable for the loss of chlorides which were 
shipped in barrels, instead of the usual carboys.'' The formation 
of a cement by sweepings of soda and bleaching powder left in a 
ship from a previous voyage, in combination with molasses leak- 
ing from a new cargo, is so remote and indirect a consequence of 
the failure to clean the ship as not to involve the ship in respon- 
sibility for loss of cargo arising from such cement choking the 
pumps and making it impossible to remove the leaking molasses 
from sugar upon which it has drained.' 

Where cold weather would not have caused the loss had not the 
negligence of the carrier, or the inattention of it co-operated with 
the cold, it will be held answerable.* As between the ship and 
charterers, the latter are liable for the loss of cargo through bad 
storage, where the supercargo is their special representative, and 
the cargo is stored by his orders and under his direction.'^ The 
master knowing what quality of flour in bags was to be taken on 

^Fanot V. Wells, 83 U. S. 15 Wall. 524, 21 L. ed. 206, affirming same case 
«K* -mm. Parrot v. Barney, 2 Abb. (U. S.) 197, 1 Sawy. 423, 1 Deady, 405. 
See ante, g 22. 

» The Barracouta, 39 Fed. Rep. 238. 

8 Tlie Centurion, 57 Fed. Rep. 413. 

" Wolf\. American Exp. Co. 43 Mo. 421, 97 Am. Dec. 406. 

' The Centurion, supra. 



310 PACKING AND STOWING GOODS. 

board, and that if there was much heat and storm upon the voy- 
age arising from changing climate, the bags would probably be 
injured by sweating in the hatch, takes the risk of his servants and 
other persons providing sufficient room below as the proper place 
for flour in bags as well as for other provisions.' Where goods 
have been properly packed, a carrier is responsible for injury to 
them through careless handling." Injury resulting from disregard 
of instructions assented to by the carrier, respecting the mode of 
conveyance, will render the latter liable.' A carrier receiving 
fruit for handling is held to the degree of diligence and care re- 
quired in the transportation of that class of goods.' The sealing 
of a car containing butter when received from a connecting car- 
rier is no excuse for failure to put ice in the car if necessary to 
protect the butter from the heat." 

§ 78. Jettison. 

If goods are stored in the carrier's vessel properly on deck the 
carrier mil not be answerable if they are necessarily thrown over- 
board to secure the safety of the vessel and other freight.' 

It is the duty of the master of a ship to determine the necessity 
of jettison. His decision as to this necessity, formed with delib- 
eration, skill, courage and honest intention, is conclusive,' and his 
vessel is not liable for a jettison of cargo when aground and in 
apparent imminent peril, for the purpose of getting afloat." Jet- 
tison of heavy goods on deck is always justifiable as a protection 

' The Keystone, 31 Fed. Rep. 412 

' Oulbreth v. Philadelphia, W. & B. S. Co. 3 Houst. (Del.) 392. 

» Sager v. Portsmouth, S. & P. & E. R. Co. 31 Me. 228, 50 Am. Dec. 659. 

^MiedY. Philadelphia, W. & B. B. Co. 3 Houst. (Del.) 176; Truax v. Phila- 
delphia, W. & B. B. Co. 3 Houst. (Del.) 233. 

« Beard v. Illinois Cent. R. Co. 7 L. R. A. 280, 79 Iowa. 518. 

« Qould V. Oliver, 4 Binj. N. C. 134; Crosby v. Fitch, 12 Conn. 410, 31 Am. 
Dec. 745; Lerwx v. United Ins. Co. 3 Johns. Cas. 178; Smith v. 'Wright, 1 
Cai. 43, 2 Am. Dec. 162; Prices. Hartshorn, 44 N. Y. 94, 4 Am. Rep. 645; 
Hayman v. Molton, 5 Esp. 65; JVew England Ins. Co. v. The Sarah Ann, 38 
V. S. 13 Pet. 387, 10 L. ed. 213; Post v. Jones, 60 U. S. 19 How. 150, 15 
L. ed. 618; File v. T/ie Amelie, 73 U. S. 6 Wall. 18, 18 L. ed. 806. 

•> Lawrence v. Mintii/rn, 58 U. S. 17 How. 100, 15 L. ed. 58. 

8 The MarlboivugJi, 47 Fed. Rep. 667. 



JBTTISON. 311 

against further danger, when the ship's safety has been imperilled 
by such goods.' But a propeller which takes on so heary a deck- 
load of lumber as to be topheavy, and endangers loss of it or puts 
it in peril in an ordinary wind not exceeding 12 to 15 miles per 
hour, or anything less than a gale of wind or such a stress of 
weather as is clearly unusual, must be held liable for the loss of 
part of the deckload by sliding off while the vessel is rolling 
heavily," and the fact that nearly one quarter of the lighter's 
cargo slips off into the sea when the lighter tips a little on en- 
countering a slight puff of wind is of itself, enough to indicate 
gross negligence on the part of those in charge.' 

A jettison, the necessity of which is occasioned by peril of the 
^ea, is a loss by peril of the sea and within the exception of a bill 
of lading ; but if it was the unseaworthiness of the vessel which 
caused or contributed to the necessity of the jettison, the loss is 
not within the exception of perils of the sea.* Or if the goods 
were wrongfully placed on deck, the carrier will be liable for the 
loss.' If jettison of the cargo is necessary by the negligence or 
breach of contract of the master or owner, it must be attributed 
to that fault, not to the sea peril.' A carrier is not excused from 
delivering goods stowed on deck without the consent of the ship- 
per, although they were lost by perils of the sea, unless such man- 
ner of stowing the particular goods is sanctioned by commercial 
usage, or did not in any degree, contribute to the disaster.' In 
the case of jettison of the deckload, the carrier of the ship is not 
responsible to the owner of the goods where they were on deck 
with the owner's consent, and there is no general custom to carry 
them there." 

' Lawrence v. Minturn, 58 XI. S. 17 How, 100, 15 L. ed. 58. 

'Barker v. The Swallow, 44 Fed. Rep. 771. 

' TJie Oiiy of Alexandria, 24 Blatchf. 50, 28 Fed. Rep. 203. 

*Jhipontv. Vance, 60 U. S. 19 How. 162, 15 L. ed. 584. 

» Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149. ' 

' Dupont Y. Vance, supra; The Portsmouth r. Onondaga Salt Co. 76 U. S. 9 

Wall. 682, 19 L. ed. 754; Lawrence v. Minturn, 58 U. S. 17 How. 100, 15 

L. ed. 58. 
' T/ie Delaware v. Oregon Iron Co. 81 U. S. 14 Wall. 579, 20 L. ed. 779. 
^Lawrence v. Minturn, supra. 



CHAPTEE X. 

DEVIATION FROM ROUTE. 

§ 79. WJiat Constitutes a Deviation. 

§ 80. Wliat not a Deviation from Route. 

§ 81. Justifiable Deviation from Route. 

§ 82. Responsibility of Connecting Carrier for Deviation. 

% 79. What Constitutes a Deviation. 

A deviation by the carrier from its voyage will render it re- 
sponsible even for losses resulting from inevitable casualties.' If 
the carrier has departed from its line of duty, and has violated ita 
contract, and while thus in fault, and in consequence of that 
fault, goods being carried are injured by the Act of God, which 
would not otherwise have produced an injury, then the carrier 
will be liable." And the same rule is applied as to a stipulation 
to exempt it from negligence where it has violated its contract as 
to the method of transportation.' 

A carrier cannot avail itself of any exception in its contract,, 
where it has disobeyed the directions of the shipper as to their 
carriage in a particular way, or by a particular route.* Thus an 
express exemption, in a bill of lading, of liability for damages to 
skins from sweating, will not relieve the carrier from liability for 

' Dams V. Qarrett, 6 Bing. 716; Crosby v. Filch, 12 Conn. 410, 31 Am. Dec. 
745; Goddard v. Mallory, 53 Biirb. 87; Lamb v. Camden & A. B. Tramp. 
Co. 3 Daly, 454; Maghee v. Camden & A. R. Transp. Co. 45 N. Y. 574, & 
Am. Rep. 124; Eeeney v. Grand Trunk R. Co. 59 Barb. 104, 47 N. Y. 525. 

« Michaels v. New York Cent. R. Co. 30 N. Y. 564, 86 Am. Deo. 415. 

^Robinson v. Merchants Despatch Transp. Co. 45 Iowa, 470; Galveston, H. &E. 
R. Co. V. Allison. 59 Tex. 193; Goodrich v. Thompson.ii N. Y. 324; Gra- 
ham M. Davis, 4 Ohio St. 362, 63 Am. Dec. 285; Hand v. Baynes, 4 Whart. 
204, 33 Am. Dec. 54; Maghee v. Camden & A. R. Co. 45 N. Y. 514, 31 Am. 
Dec. 745; Hunnewell v. Taier, 3 Sprague, 1; Keeney v. Grand Ti-unkB. Co. 
47 N. Y. 525. 

* Maghee v. Camden & A. R. Transp. Co. 45 N. Y. 514, 31 Am. Dec. 745; Good- 
rich V. Thompson, Galveston, H. & H. R. Co. v. Allison, Bobinson v. Merch- 
ants Despatch Transp. Co. and Graham v. Davis, supra: Collins v. Bristol 
& E. B. Co. 11 Exch. 790. 

312 



WHAT CONSTITUTES A DEVIATION. 313- 

such damages in case of a deviation from the route prescribed in 
the bill of lading. A carrier of goods who deviates from the 
route prescribed by the bill of lading is liable for injuries thereto, 
which might not have arisen but for such deviation.' Such failure to 
ship over the line of transportation directed, will render the orig- 
inal carrier the insurer for the line he selects.' 

Any departure from the known rules of navigation will render 
the carrier liable.' A carrier by whose fault in carrying goods by 
an indirect, instead of a direct, route, the delivery of the goods at 
their destination is delayed, and by whose fault or negligence 
they are not delivered, after their arrival, to the consignee on 
demand and presentation of the bill of lading, — ^is liable where 
the goods are afterwards destroyed or injured by the act of God." 
An express company under a contract of shipment, silent as to 
the route to be taken, which chooses a long or inexpeditious rail- 
road route when there is a direct and speedy line which it may 
use, is liable for any damage resulting from the additional time 
consumed in the journey." Where the first carrier delivers the 
goods to a railroad other than that named in the agreement, and 
they are burned while in possession of such second carrier, the 
first carrier is liable for the loss." 

Where a shipper of freight gives directions to the freight agent 
of the initial carrier at the point of shipment as to the particular 
route by which the freight shall be shipped to destination, it is. 
the duty of the freight agent to make such notations on the way- 
bill as will reasonably and properly carry the freight by such par- 
ticular route to destination. A shipper at Troupe, Texas, directs 
the freight agent of a carrier to bill his freight from that point to 
Fort Lawn, South Carolina, via Vicksburg, Jackson, Meridian, 
Birmingham, Atlanta, Augusta and Columbia. The freight agent 

' Sobertaon v. National Steamship Co. 14 N. T. Supp. 313. 

'Isaacson v. New York Cent. & H. B. JR. Co. 94 N. Y. 278, 46 Am. Rep. 142. 

^Atwood V. Seliance Tmnsp. Co. 9 Watts, 87, 34 Am. Dec. 508. 

*Eichviond & D. B. Co. v. Benson, 86 Ga. 203. 

^ Wells, Fwrgo & Co. v. Fuller, 4 Tex. Civ. App. 213. 

« Independent Mills Co. v. Burlington 0. B. & N. B. Co. 72 Iowa, 535. See 

also Palmer v. Chicago, B. & Q. B. Co. 56 Conn. 137; Patten v. Union Pac. 

B. Co. 29 Fed. Rep. 590, 



314 DETIATION FEOM ROUTE. 

simply inserts in the waybill that the destination of the freight is 
Fort Lawn, South Carolina, " via Vieksburg," in consequence of 
which the freight at Vieksburg is billed to Atlanta and consigned 
to the Richmond & Danville Railroad Company, by which it is 
carried to Fort Lawn without being carried by way of Augusta 
and Columbia, and as a result of this the shipper is compelled to 
pay eighty-six cents more for the carriage than if it had been 
billed via Augusta, as directed by the shipper, the rates by all- 
rail lines from Vieksburg to Augusta being the same, and not the 
same from Vieksburg to Fort Lawn via Atlanta. Evidently in 
this the freight agent failed to do his duty ; he should have made 
a notation on the waybill via Vieksburg and Augusta; and upon 
request the initial carrier should refund to the shipper the amount 
of this overcharge occasioned by the oversight of its freight agent. 
If, on the other hand, the shipper at Troupe, Texas, had given 
the freight agent no directions whatever as to the particular route 
by which the freight was to be sent forward to its destination at 
Fort Lawn, South Carolina, but had simply left it to the freight 
agent to select the route for him, as is frequently done by ship- 
pers in such cases, then, in that event, in selecting such route for 
the shipper, it would have been the duty of the freight agent to 
have forwarded the freight by the best and cheapest route for the 
shipper, so far as the freight agent knew, or was informed, and 
to have made such notations on the waybill as would reasonably 
have carried it by that route, for in doing that service he would 
have been acting as the agent of the shipper as well as of the 
company.' A carrier who forwards, partly by vessel and partly 
by rail, goods which he has contracted to carry directly by a spe- 
cified steamer over another route, becomes an insurer, and cannot 
invoke the benefit of any exception in the contract." 

If the goods are sent by a different conveyance or in a different 
manner from that implied by the undertaking, and they are lost, 
the carrier will be liable.' A provision in a bill of lading of 

' Sankey v. Richmond & D. B. Co. 3 Inters. Com. Rep. 33. 

' Robertson v. National 88. Co. 43 N. Y. S., R. 694. 

» Sleat V. Fagg, 5 Barn. & Aid. 843; Nicholson v. WiUan, 5 East, 507; Dujf v. 

Bum, 3 Brod. & B. 177; Garnett v. Willan, 5 Barn. & Aid. 53; BamwMv. 

Hussy, 1 Mill, Const. 114. 



WHAT NOT A DEVIATION FROM EOUTB. 315 

oranges, that the ship " now lying in the port of Malaga, bound 
for Liverpool," shall have liberty " to proceed to and stay at any 
port or ports in any rotation, in the Mediterranean, Levant, Black 
Sea, or Adriatic, or on the coasts of Africa, Spain, Portugal, 
France, Great Britain, and Ireland," for any purpose, — does not 
authorize a deviation to a port not in the direction of Liverpool. 
A printed provision of the charter-party of a steamship stated to 
be lying in Malaga and bound for Liverpool, that she shall have 
liberty to proceed to and stay in any port or ports in the Medi- 
terranean, Levant, Black Sea, or Adriatic, or on the coasts of 
Africa, Spain, Portugal, France, Great Britain, and Ireland, for 
any purpose, will not be construed to defeat the main object and 
intent of the contract, — the carriage of oranges from Malaga to 
Liverpool, — and such liberty must be restricted to ports in the 
course of the voyage.' 

If goods are shipped "through without change of cars," storage 
on the route where they are burned will render the carrier liable.' 
So if the shipment is to be by a vessel named, the carrier deviat- 
ing without just cause, of which the court must, as a matter of 
law, judge, will be liable.' Having named the vessel, the carrier 
departs from the direction of the shipper at his peril.' A carrier 
receiving a package at Akron, Pa., for St. Augustine, Florida, 
marked "via Philadelphia care Atlantic Coast Line, fast freight," 
and who forwarded the goods from Philadelphia by steamer is 
liable for a loss by fire on the steamer.' 

§ 80. WTiat not a Deviation from Route. 
Where, in the bill of lading, the railroads are specified over 

^Ma/rgetson v. Qlynn [1892] 1 Q. B. 337 [1893] App. Cas. 351. 

* Stewart v. Merchants Despatch Tramp. Go. 47 Iowa, 239, 39 Am. Rep. 476. 

'Bead -7. Bpaulding, 5 Bosw. 395, 30 N. T. 630, 86 Am. Dec. 436. 

*Dunseth\.Wade, 3 111. 285; Merchants Despatch Transp. Co. v. Kahn, 76 
111. 530; MarckwaM v. Oceanic Steam Nav. Go. 11 Hun, 463. 

»PA&. <6 B. B. Co. V. Beck, 125 Pa. 620; Galveston, H. & H. B. Co. v. Alli- 
son, 59 Tex. 193; Magnin v. Dinmun-e, 70 N. Y. 410, 36 Am. Rep. 608; 
Qahamv. Dams, 4 Ohio St. 863, 62 Am. Dec. 385; Bobinson v. Merchants 
Despatch Transp. Go. 45 Iowa, 470; Collins v. Bristol & E. B. Co. 11 Exch. 
790; Hunnewell v. Taber, 35 Payne, 1 ; Keeney v. ChraTid Trunk B. Co. 47 
N. Y. 535; United Slates Exp. Co. v. Koantze, 75 U. S. 8 Wall. 842, 19 L. 
ed. 457; Uark v. St. Louis, K. C. <& if. S. Go. 64 Mo. 440. 



316 DEVIATION FEOM KOUTE. 

which the goods are to be shipped to a point named, and "there 
delivered to the agent of the next connecting steamboat, railroad 
company or forwarding line," etc., the bill of lading was conclu- 
sive evidence of the contract under which the goods were ac- 
cepted, and the carrier was not bound to carry entirely by rail- 
road.' 

"Where there is nothing in the bUl of lading restricting the car- 
rier as to the particular route over which goods are to be for- 
warded, oral testimony cannot be introduced that the carrier, at 
the time the bill of lading was received by the shipper, guaranteed 
to forward by a particular route." Where goods marked to a 
consignee at a point beyond the terminus of the receiving rail- 
road, the usual route to which was by water from such terminus, 
were delivered by the shippers to the company, accompanied by 
"a trade ticket" providing that the goods should be forwarded 
"subject to the company's regular bill of lading" which gave the 
company the option of choosing the route from its terminus if 
the company delivered the goods at its terminus to a steamer for 
the designated destination, its liability ended.' Where a charter 
party to ship fruit from Sicily to Boston, provides that the vessel 
shall take the "nearest passage," the ship is bound to keep the 
coolest passage those in the trade are accustomed to keep, in the 
absence of any known passage as to which a discretion had been 
given.' 

A deviation by a carrier from the route and manner of trans- 
portation stipulated for in a bill of lading, in accordance ^vith a 
uniform and notorious usage with reference to which the contract 
was made, does not render the carrier liable as an insurer against 
unavoidable casualty.' 

* Bostwick V. Baltimore & 0. R. Go. 55 Barb. 137. 

* White V. Ashton. 51 N. Y. 284; Indianapolis & G. B. Go. v. Bemmy, 13 Ind. 

519; Snow v. Indiana, B. & W. R. Go. 109 lod. 423; Hinckley v. Sfew York 
Gent. & H. B. R. Go. 56 N. Y. 438. See Gamden & A. B. Co. v. Forsyth, 
61 Pa. 81; Simkins v. Norwich & N. L. S. B. Go. 11 Casli. 103; Delaware 
& H. Ganal Go. v. Pennsylvania Goal Go. 75 U. S. 8 Wall. 276, 288, 19 L. 
ed. 347, 353. 
» HosUtler v. Baltimore & 0. B. Go. (Pa.) 10 Cent. Rep. 352. 

* The John S. Pearson, 33 Fed. Rep. 845. 

<■ Bobertson v. National 88. Go. 139 N. Y. 416. 



-JtrSTIFIABLE DEVIATION FEOM EO0TE. 317 

% 81. Justifiable Deviation from Route. 

There is a class of eases in which an agent is justified, by an 
unexpected emergency, in deviating from his instructions where 
the safety of the property requires it. But, where the circum- 
Btances prevent the compliance with the directions of the shipper, 
the carrier will not be justified in adopting some other method 
of transportation or some other route, where the only damage 
that would result to the shipper would be the delay in communi- 
cating with him and awaiting his instructions, while the goods 
were properly stored.' If the ship designated in the bill of lad- 
ing does not sail, the carrier must notify the shipper and usually 
■delay shipments." But while a deviation cannot be made for the 
mere convenience of the carrier, without rendering it liable for 
the injury which may result; yet, such a deviation from the in. 
«truetions of the shipper may be made in the case of an unfore- 
seen necessity' and a necessary change of route or means of trans- 
portation is justifiable,'' as forwarding perishable freight by rail, 
where a storm prevents a boat from proceeding on its voyage.' 

In case of an interruption on the stipulated line of transportar 
tion, a carrier is bound to use all reasonable means such as a pru- 
dent owner, being present, would take to protect the property 
from unnecessary loss or damage,' and the necessity arising for 
deviation from the route prescribed, the carrier must use due 
caution in the new route selected, thus, where a carrier was stalled 
in a ford, the bridge being impassable, he was held liable. Mc- 
■CuUoch, J., stating that he ought to have ascertained the state of 
the ford before he entered.' While the carrier should notify the 
consignee with reasonable dispatch of the necessity for the de- 
viation, and the new route adopted, yet neglect to notify the con- 

' Alabama & Q. S. R. Co. v. Thomas, 89 Ala. 294; Phillips v. Bingham, 26 

Ga. 617. 
' Ooodrieh v. Thompson, 44 N. T. 324. 

'Johnson V. Nm York Cent. B. Co. 33 N. T. 610, 88 Am. Deo. 416. 
*0ro8by v. Fitch, 12 Conn. 410, 31 Am. Dec. 745. 
^ Began v. Ch-and Trunk B. Co. 61 N. H. 579: Johnson v. New York Cent. B. 

Go. 31 Barb. 196. But see Hand v. Baynes, 4 Whart. 204, 33 Am. Dec. 54. 
* Began v. Grand Trunk B. Co. supra. 
^ Campbell v. Morse, 1 Harp. L. 468. 



318 DEVIATION FEOM EOUTE. 

signee of a change of route does not render the carrier liable for 
loss or damage happening from delay in the delivery of the goods, 
which such notice would not have affected.' 

§ 82. BesponsiMlity of Connecting Carrier for De- 
viation. 

It has been held that a carrier receiving goods to be tranported 
beyond its line, in delivering them^to a subsequent carrier, acted 
as a special agent of the consignor with limited powers, and that 
if it disregarded its instructions and exceeded its authority, the 
subsequent carrier could not maintain a lien upon the goods for 
its transportation charges.' Indeed, in an action against railroad 
companies for the value of wheat carried by them and destroyed 
by fire after reaching its destination, where the averment is that 
the first carrier delivered the wheat to a railroad, other than that 
named in the agreement, and that it was burned while in the pos- 
session of such second carrier, 4his averment was held sufficient to 
support a recovery against both railroads.' 

In later decisions in other states the doctrine of the Michigan 
court, however, has not been followed, the courts now generally 
holding that a carrier, receiving goods to be transported over its 
own line to a point beyond, has the apparent authority to select 
any of the ordinary routes leading thereto ; that a common carrier 
not being bound at common law to carry except on its own line, 
if it contracts to go beyond, it may confine itself in carrying to a 
particular route it chooses to use and may select its own agencies.* 
And that the second carrier, receiving the goods in good faith 
in the ordinary and usual course of business between connecting 
lines, without notice of any special directions on the part of the 
consignor, wUl have a lien for his reasonable charges for trans- 
porting such goods over its own line, and also for such reasonable 
charges as it may have advanced to the first carrier.' 

' Began v. Grand Trunk B. Co. 61 N. H. 579. 

^Fiteh V. Newberry, 1 Dougl. (Mich.) 1, 40 Am. Dec. 33. 

' Independent Mil!* Co. v. Burlington, C. B. & N. B. Co. 73 Iowa, 535. 

*Atchuon, T. & S. F. B. Co. v. Denver & N. 0. B. Co. 110 U. S. 667, 28 L. 

ed. 291. 
' Price V. Denver & B. G. B. Go. 12 Colo. 402. 



RESPONSIBILITY OF CONNECTING OAEKIEE FOB DEVIATION. 319 

An examination, of the opinion of Commissioner Stallcup in the 
case just cited will show that while the right of the consignors to 
select the routes over which the goods should be transported is 
fully recognized, it is held that in case his instructions in refer- 
ence thereto are not obeyed by the first carrier, the owner's action 
was not against the innocent second carrier, but against his own 
wrongdoing agent.' In the first two cases cited the ignorance of 
the second carrier of the terms of the contract is made an express 
condition of its exemption from liability in case of loss to the 
owner. And a reading of the opinion in the case of Briggs v. 
Boston (& L. JR. Go. supra, will also show that in that case no 
wrong or negligence was attributable to the defendant company. 
The rights of a connecting carrier receiving goods from another 
carrier cannot be affected by any limitations put upon the latter's 
authority by the shipper, of which the connecting carrier has no 
notice.' The fact that goods as delivered by the first carrier to 
the second are loaded in a car belonging to a certain road which 
runs to the place of destination other than the road of the second 
carrier, does not imply a notice to such second carrier that the 
goods are to be shipped over the road of the carrier on which 
they were loaded.' 

But where the possession of the property is not obtained in 
good faith by the defendant in the ordinary or usual course of 
business between connecting carriers, but such possession is wrong- 
ful and illegal, the defendant is consequently not entitled to a 
carrier's lien upon the same either for its own charges or those 
advanced to the former carrier.* 

' In support of this position, the following cases were relied upon : Patten v. 
Union Pac. B. Co. 27 Fed. Rep. 590; Schneider v. Evans, 35 Wis. 241, 3 
Am. Rep. 56; Briggs v. Boston & L. R. Oo. 6 Allen, 246, 83 Am. Dec. 
636. 

» Price v. Denver <fc B. G. B. Oo. 12 Colo. 403. 

» Patten t. Union Pac. B. Co. 39 Fed. Rep. 590. 

*Fiteh V. Wewberry, 1 Dougl. (Mich.) ,1, 40 Am. Dec. 33; BoMnaon v. Baker, 
5 Cush. 137, 51 Am. Dec. 54; Andrews v. Dieteriah, 14 Wend. 31; Bi-igga 
V. Boston & L. B. Co. 6 Allen, 346, 83 Am. Dec. 636; Uill v. Denver & B. 
&. B. Oo. 4 L. R. A. 876. 13 Colo. 35. 



CHAPTEE XL 

DELAY IN TRANSPORTATION OP GOODS, 

^ 83. What will ie Considered Delay. 

§ 84, Insufficient Means of Transportation. See ante, § 5. 

§ 85. Delay from Storm or Collision. 

§ 86. Delay in Delivering to Connecting Carrier. 

§ 87. Duty to Forward Goods in Case of Wrech or Delay. 

§ 88. Care of Goods During Delay. 

§ 89. Contract to Deliver at Specified Date. 

.§ 90. Consequences of Delay. 

a. When Caused by Strikers, etc. 

§ 83. What will he Considered Delay. 

"What will be considered delay in the carriage of goods must, 
■of course, depend upon the method of transportation and the ef- 
fect of weather upon this method. So of the pressure of busi- 
ness, or of any other circumstance that may reasonably be held to 
«xcuse the carrier for not having delivered the goods within a 
reasonable time.' A common carrier who receives goods for 

' Michigan 8. <Sc N. I. R. Co. v. Day, 30 111. 375, 71 Am. Dec. 278; OindnnaM, 
1. St. L. & G. R. Go. Y. Gase, 122 Ind. 310; McOraw v. Baltimm-e & 0. B. 
Oo. 18 W. Va. 361, 41 Am. Rep. 696; JDenny v. Mw York Cent. R. Oo. 13 
Gray, 481, 74 Am. Dec. 645; Philadelphia, W. & B. R. Co. v. Lehman, 56 
Md. 209, 40 Am. Rep. 415; Hewttt v. Chicago, B. & Q. R. Co. 63 Iowa, 611; 
Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458; Parsons v. Ea/riy, 14 
Wend. 215, 28 Am. Dec. 521; Taylor v. Great Northern R. Oo. L. R. 1 C. P. 
385; Ballentine v. North Missouri R. Co. 40 Mo. 491, 93 Am. Dec. 315; Hod- 
ley V. Cla/rke. 8 T. R. 259; Empire Transp. Co. v. Wallace, 68 Pa. 802, 8 Am. 
Rep. 178; Wibert v. Nm> York <& E. R. Co. 12 N. T. 245; Crosby v. Fitch. 12 
Conn. 410, 31 Am. Dec. 745; Oerhard v. Neese, 86 Tex. 635; Palmer v.Lor- 
illard, 16 Johns. 348; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Bow- 
man V. Teall, 23 Wend. 306, 35 Am. Dec. 563; Bennett v. Bryam, 38 Miss. 
17, 75 Am. Dec. 90; Boner v. Merchants SS. Co. 1 Jones L. 211; East Ten- 
nessee & O. R. Co. V. Nelson, 1 Ooldw. 273; Raphael v. Pickford, 5 Mann. & 
<J. 551; Hughes v. GreatWestern R. Co. 14 C. B. 637; Livingston v. NewYork 
Cent. & H. R. R. Co. 5 Hun, 562; Saver v. HdU, 2 Mo. App. 557; BriMm 
V. Great Northern R. Co. 28 L. J. Exch. 51; Broadwell v. Butler, 6 McLean, 
296. 

320 



WHAT WILL BE CONSIDBKED DELAY. 321 

transportation is bound to use only oi'dinary and reasonable dili- 
gence in regard to the time of transportation.' 

In respect to the time of delivery, the carrier is responsible 
only for the exertion of due diligence and the exercise of at least 
ordinary forecast in anticipating obstructions, and exerting the 
proper means of overcoming them ; and to use due diligence in 
accomplishing the transportation as soon as the obstruction is re- 
moved, in the meantime being responsible for the safe-keeping of 
the articles detained." What will be due diligence, will depend 
much on the character of the goods ; the question whether want 
of expedition will peril their preservation and their liability, from 
exposure during delay, to be injuriously afEected by the elements. 
In this respect, common carriers stand upon the same ground 
with other bailees. They may excuse delay in the delivery of 
goods by accident or misfortune which was inevitable or produced 
by the Act of God. It is sufficient if they exert due care and 
diligence to guard against delay if the goods are finally delivered 
in safety. Indeed, the carrier may excuse delay in delivering the 
goods by proof of misfortune or accident, though not inevitable 
or produced by the act of God." 

The principle upon which the extraordinary responsibility of 
common carriers is founded, does not require that the responsi- 
bility should be extended to the time occupied in the transporta- 
tion ; the danger of robbery or embezzlement by collusion or 
fraud, on the part of the carrier, has no application to the ques- 
tion of delay.' If a shipper promises the carrier to do something 
which will enable the latter to make the time of transportation 

' Johnson v. Emt Tennessee, V. & (?. R. Co. 90 6a. 810. 

''Bowman v. Teail, 23 Wend. 306, 35 Am.' Dec. 563. 

' Einnick v. Chicago, R. I. & P. R. Co. 69 Iowa, 665. 

* Pen-sons v. Eardy, Wibert v. New York & E. R. Co., McGraw v. Baltimore & 
0. R. Co., East Tennessee & G. R. Co. v. Nelson, Bennett v. Bryam, Vicksburg 
& M. R. Co. V. Ragsdale, Boner v. Merchants 8S. Co., Gerhard v. Ne'.se, and 
Philadelphia, W. & B. R. Co. v. Lehman, supra; Nudd v. Wells, 11 Wis. 408; 
Michigan S. & N. I. R. Co. v. Day, Taylor v. Great Nortliern B. Co., Brid- 
don V. Great Northern B. Co. and Hvghes v. Great Western R. Co. supra; 
Hales v. London & N. W. R. Co. 4 Best & S. 66, 33 L. J. Q. B. 393; Raphael 
V. Pickford. 5 Mann. & G. 551; Geismer v. Lake Shore & M. S. R. Co. 103 
N. Y. 568, 55 Am. Rep. 837, 36 Am. & Eng. R. Cas. 387; Wren v. Eastern 
Counties R. Co. 1 L. T. N. S. 5. 
21 



DELAY IN TEANSPOETATION OF GOODS. 

shorter than it otherwise would be and fails to perform, such fact 
may be shown in excuse for the delay without changing the con- 
tract of affreightment.' The principle imposing the liability of 
an insurer on the carrier does not extend beyond the delivery of 
the goods. It does not reach the condition in which they are de- 
livered. The freezing of canals excuses delay ; but during the 
delay, the carrier must not be guilty of negligence in taking care 
of the articles detained." Accident or misfortune will excuse the 
carrier, unless he has expressly contracted to deliver the goods 
within a hmited time.' 

In some courts, an attempt has been made to include delay 
withia the terms of the imposed duty, but to relax the strictness 
of the rule in determining what, in any special ease, will consti- 
tute delay. Thus it is said that nothing will relieve the carrier 
from its obligation to deliver goods at their destination within a 
reasonable time, but the act of God, the public enemy, the act or 
conduct of the owner, or a special contract ; but what will consti- 
tute a reasonable time, must be determined by the circumstances 
surrounding each case, and an extraordinary press of business — 
where the carrier has provided for all ordinary business — will be 
a sufficient excuse to extend ordinary time.' 

The result, under either rule, relieves the carrier from the com- 
mon law liability as an insurer. To show when they ought to 
have arrived, the contract being silent, it should appear what 
length of time was usually required or was reasonably necessary 
to effect the transit." An action for delay in transporting freight 
is not maintainable where the goods reached their destination in 
the time usually occupied in the journey, and there was no special 
undertaking for delivery in a. fixed time.' A shipper of a lot of 

' lllinms Cent. B. Go. r. Miller, 38 111. App. 259. 

^Bowman v. Teall, 23 Wend. 806, 35 Am. Dec. 562; Wibert v. NmTork&E. 
B. Go. 12 N. Y. 245. 

^Harmony v. Bingham, 12 N. T. 99, 62 Am. Dec. 142; Wibert v. NewTork & 
E. B. Go. supra; Parsons v. Hardy, 14 Wend. 215, 28 Am. Dec. 521; Bow- 
man V. Teall, supra; Forward v. Pitard, 1 T. R. 27; McHenry v. Philadel- 
phia, W. cfe B. B. do. 4 Harr. (Del.) 448. 

* Vieksbury & M. B. Co. v. Bagsdale, 46 Miss. 458. 

' Atlanta tSs W. P. B. Co. v. Texas Grate Co. 81 Ga. 602. 

' Lowe V. Eait Tennessee, V. <£ O. B. Co. 90 Ga. 85. 



WHAT WILL BE CONSIDBEED DELAY. 323 

venison by express, who was induced to deliver it to the company 
for shipment by the promise of its agent that he would forward 
it on the same night, may recover for its loss by failure to ship it 
until the next day." Where the usual time within which produce 
was transported from one point to another was two and one half 
to three days, and a part of the shipment did not reach its desti- 
nation until 11 days, and the remainder some 45 days after it was 
shipped, it was held to be such a delay as would render the com- 
pany liable for the resulting damages." While unusual and unex- 
plained delay is prima facie evidence of want of ordinary care, yet 
for slight delay, the burden is upon the plaintifE to show negli- 
gence.' And direct evidence is not necessary ; but the duty to 
forward goods forthwith may be inferred from an established 
course of dealing between the owner and the carrier.* A delay 
of a carrier in transporting perishable goods is not excused by a 
failure of the consignee to unload the goods on Sunday, by which 
means they might have been saved.* 

A delivery to the carrier, with the name and- address of the 
consignee marked upon the goods, is, in the absence of some direc- 
tion or agreement otherwise, equivalent to an express direction to 
transport them to such consignee at once." It is within the au- 
thority of a railroad company's freight agent to assure a shipper 
that there will be no delay in unloading his consignment, thereby 
inducing him to make a shipment at a certain time.' Knowledge 
on the part of the carrier that there is a snow blockade on the 
road, will not excuse delay in shipment, unless it advises the ship- 
per of such fact on receiving the goods.' Failure to insert in a bill 
of lading stipulating for conveyance by steamer, the name of the 
particular steamer by which the shipment is to be made, will not 

' OantweU v. PacifiB Exp. Co. 58 Ark. 487. 

» lUiTwis Cent. B. Co. v. McClellan, 54 IllJ 58, 5 Am. Rep. 83. 

' Mann v. Birehard, 40 Vt. 326. 

* Moses V. Boston & M. B. Go. 24 N. H. 71, 55 Am. Dec. 222. 

'Bt. Clair v. Chiaago, B. & 0. B. Co. 80 Iowa, 304, 42 Am. & Bng. R. Cas. 

414. 
« Gregory v. WaibasTi B. Co. 46 Mo. App. 574. 
''Lake Erie & W. B. Co. v. Bosenberg, 31 111. App. 47. 
» Qreat 'Western B. Co. v. Burns. 60 111. 284. 



324 DELAY IN TEANSPOETATIOISr OF GOODS. 

prevent recovery from a steamer forming part of an association of 
several vessels under an understanding that the first boat passing 
the place of shipment shall take the cargo, and which was the 
first boat to pass, — especially where it is customary to leave the 
name blank, or, if inserted, for the master of the steamer to 
change it.' 

An exception from the lay days in a charter party, of delay 
caused by restraints of princes and rulers, political disturbances or 
impediments, includes delay at the port of loading by re'ason of 
the existence of a state of war in the town rendering it impossible 
to load therefrom ; delay after it becomes possible to load from 
such port by reason of the railway from the mines to the port, 
over which the cargo is to be transported in the ordinary custom 
of loading, being in the hands of the troops ; and delay while de- 
tained at another port into which the vessel puts for coal, because 
of a demand by a rival government for export duties already paid 
to the government in charge at the port of loading." A railway 
may be excused for a delay in transportation where, in time of 
war, it is under military control occasioning the delay.' A state 
statute compelling the shipment of freight within a certain time 
after receiving it, under a penalty for default, is not an unconsti- 
tutional regulation of interstate commerce as to freight for ship- 
ment out of the state, as it tends not to trammel or obstruct, but 
to expedite such commerce.* 

§ 84- Insufficient Means