Negligence of imposed duties, carriers of freight

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Cornell University Library
KF 1091.R26N4

Negligence of imposed duties, carriers o

3 1924 018 923 866

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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 Tr