than £5 for goods, unless entered as such, and paid for accordingly. This was an action against the proprietors of a stage coach, for goods sent with the plt's. wife in it, and lost. But if the plt. declare against the carrier generally, for his negligence, and he pays money as the £5 into court, he thereby admits the contract as laid; and hence the plt's. right to recover the full value of the goods, not restrained by such notice. However, 6 East 570, the court thought that paying money into court in Yate v. Willan, " did not admit a contract incompatible with the restrictive proviso, as to the amount of damages to be recovered in case of loss." Where such restrictive proviso goes to defeat any action, it ought to be stated in the declaration; where only to restrict the damages to £5, as the sum limited may be, then it need not be stated, but may be in evidence to limit the amount of damages. CH. 23. Art. 7. H. Bl. 298, lan, and 6 East, 369, Yate v. Wil 370. Ch. 175. a. 6. 4. Carrier is bound to have his vessel tight and fit for 5 East 428, the purpose. Hence he is answerable for damages occasioned Mills. by leakage; and it is doubtful if he can exempt himself from this liability, by notice he will not be answerable therefor-the lighter was leaky. ART. 7. Cases in the United States. See Barrett v. Rogers, Ch. 21, where the master of a vessel, a carrier, was not held responsible for the good order of the goods on a bill of lading. 1, 11, Elliot 1. Held that masters and owners of vessels who carry 10 Johns. R goods for hire, are liable as common carriers, whether from v. Rossel & port to port at home or abroad; liable by marine and common al. Was on law for all goods lost, not arising from inevitable accident, or lake Ontario. such accidents as could not be foreseen or prevented. And it is a question for the jury to decide, if the loss arose from inevitable necessity, not arising from human intervention, and not to be avoided by any human prudence. The defts. gave public notice they were carriers from the ports of this lake to Montreal &c. and of the vessels &c. The action was against the owners, and the master was the plt's. witness, who stated he contracted according to their orders. The loss happened near Montreal, out of the jurisdiction of New-York : hence, the defts. attempted to place the case on the marine law. "A common carrier warrants the safety and delivery of the goods, in all but the excepted cases of the act of God, and public enemies; and there is no distinction between a carrier by land, and a carrier by water;" and the marine and common law are essentially the same, so the civil law, and Hindoo law and law generally. It will be observed that this case was decided on English authorities. So was one against Bell v. Reed. a carrier by land in 1820, in Massachusetts; so one in Geor- 1 D. & E. gia &c. on a voyage from Augusta to Charleston; so in Penn- 33. 1 Bay's R. 99, CH. 23. 6 Johns. R. Colts & al. v. 6 Johns. R. 170, 180. 8 Johns. R. 213, Watkin ton. sylvania, 4 Bin. R. 127, on a voyage from Fort Erie, in Upper Canada, to Pennsylvania, "was a conceded point the common law doctrine applied to the case." Also 6 Johns. R. 170; 8. Johns. R. 248, proceeded on the ground the master of a vessel is liable as a common carrier. There is, no doubt, in these respects, the same law in every state in the Union, the English law adopted here, except Louisiana; and that state has the French law. § 2. See liability of ship owners as carriers in New-York, Ch. 47, a. 5, s. 18, 19. Case against the deft. as a common carrier of goods for hire, in a certain sloop, &c. Held, com-. mon carriers are liable for every injury which happens to goods entrusted to them, except caused by the act of God, or public enemies. So the sudden failure of the wind is the act of God, and excuses the carrier, there being no negligence on his part. Negligent or not, is a jury question. The action was against the owner of the sloop, and the master was used as a witness by the plts. 3. Assumpsit against the owner of the ship Science. Held, master and owners are liable for goods embezzled, &c. See this case-Master and Owners, Ch. 47, a. 5, s. 18. 4. Assumpsit on a bill of lading against the master of a son v. Laugh- ship, by the owner of the goods, shipped at Liverpool, for N. York, for the part embezzled or lost on the voyage; admitted to be without fraud on the deft's. part. Held, he was liable for the value of the goods missing, according to the clear net value of goods of like kind and quality, at the port of delivery; but not for interest, if no fraud or misconduct be imputable to him. Held liable as a common carrier; see 3 Caines 219, cited as to the rule of damages not found settled or discussed in the English books. This rule of damages was received as the rule of the marine law. Freight deducted to find the net value. Lex Mer. ART. 8. Several rules and cases. § 1. According to Lord Mansfield, the act of God means no more than a thing done "in opposition to the act of man." But the acts of God, in fact, are those unavoidable accidents or events, which human prudence cannot prevent, as storms, &c.; and not those man's -1 D. & E. prudence may prevent. Hence, if rats eat a hole in a ship, and a loss happens, the carrier is liable; so if by a fire, if not occasioned by lightning. 1 Wils. 281. 27. 1 Stra. 145, Tuckburne v. White. Allen 93. -1Vent. 238. § 2. It was once held the carrier of goods was liable if robbed &c., though deceived by the owners; but the rule is now different. And though to a carrier who receives goods generally, and all kinds of articles, without any special qualification, a person delivering goods, need not declare the contents or value of the package he sends; yet if he be questioned by the carrier, as he may properly be, and he gives a false account, he would, in case of a loss, recover no more than he specifies. In fact, where the value is stated, or a per centage allowed the carrier, his liability will not extend beyond the sum mentioned. If a passenger take more than the weight allowed, the carrier is not liable for a loss. CH. 23. Art. 8. § 3. The carrier cannot divide his contract unless by a set- 5 D. & E. 306, tled usage. He is bound to deliver at the residence of the consignee; and if a carrier put up at the inn or warehouse of another, who alone receives the compensation for sending out the goods transported; yet the carrier's responsibility ends not till the article be safely delivered to the person to whom it is destined; for it can be of but little importance to hold the carrier, while on the road, if immediately after his arrival he can exonerate himself of the responsibility, by delivering the packages to another, who may be totally unknown to the owner, and who may be not worth a cent. This too would be splitting a contract, entire for carrying from one place to another, without the owner's consent; as there would be one contract with the carrier, another with the innkeeper, and a third with the porter, &c. Nor can the same men be carriers and warehouse-men: that is, A cannot be carrier of goods to his warehouse, and there, as warehouse-man, store them, and charge his storage, and not be liable as carrier. See these principles settled in Hyde's case, and Golden v. Manning, above. And Gould J. said, a carrier is bound to give notice to him to whom the goods are to be delivered, whether bound to deliver or not. But the master of a ship is only bound to carry from "port to port," by his bill of lading. Ellis v. Tur 4. Owners of vessels may be liable for the act of their 8 D. & E. 531, master, though they post notice to the contrary. As where ner & al. the defts. and others, in Sept. 1798, posted in several places in Hull, printed hand-bills, giving notice that in future the owners of vessels would not be answerable for any loss or damage, happening to any cargo, unless occasioned by the want of ordinary care and diligence in the master and crew; in which case they would pay 10 per cent. upon the loss or damage, provided such payment did not exceed the value of the vessel; but that they were willing to insure against all accidents on receiving extra freight in proportion to the value &c. The defts. owned a vessel trading from Hull to Gainsborough, and the plt. put some goods on board her, ignorant of said notice, to be carried to and delivered at Stockwith, a place between Hull and Gainsborough, as the vessel went to Gainsborough. For the carriage here was no special agreement. She went safe to Stockwith and there delivered part of her cargo, but not the plt's. goods; being covered up by goods to CH 23. Amies v. Ste 128. be delivered at Gainsborough. The master went on, and she was sunk between Stockwith and Gainsborough, without any want of ordinary care or diligence, in the master or crew. It was sometimes the practice to carry goods to be left at Stockwith, to Gainsborough, and to leave them at Stockwith in coming back from Gainsborough to Hull. An action on the case was brought against the owners: they deducted what the damaged goods sold for, and brought into court 10 per cent. on the residue of the plt's goods; but judgment for him for his whole loss, on the ground respondeat superior. The defts were deemed answerable for this misconduct of their servant, who might, and ought to have left the plt's. goods at Stockwith, as he went from Hull to Gainsborough; as these were matters that respected his duty under them. The court disregarded the hand-bills the defts. and other owners of vessels had posted. The master so engaged to deliver the plt's. goods at Stockwith, as he went to Gainsborough, without the privity or knowledge of the dests.; but it was in the nature of his business so to engage. The agents of the plt. who shipped the goods had before had the said hand-bills delivered to them. 5. When the carrier has carried the goods his whole distance, his responsibility is at an end, and after that he may, as to them, act as a warehouse-man. Hence, a loss of the goods by fire, or other accident, while in the warehouse, waiting for an opportunity to be sent to their ulterior destination, will fall on the owner; for warehouse-men are not insurers, as carriers are. 4 D. & E. 581, Garside's case. 6. It is, also, a rule, that it is sufficient if the carriage, or phens, Stra. vessel, or boat, &c. of the carrier, be adequate to perform the journey, or voyage, without any extraordinary accident; Amies v. Stephens, above. The accident in this case was a sudden and unexpected gust of wind, in passing a bridge. But the carrier is liable, if he run into perils common prudence and 1 East 604, Edwards & al. v. Sherratt. foresight may avoid. ART. 9. The common carrier is not liable, unless contracted with, as a common carrier. § 1. In this case a new principle seems to have been started; hence, no authority was cited. This was an action on the case, in common form, against the deft. as a common carrier by water, from Wolverhampton to Birmingham; for negligently carrying a quantity of wheat, of the plt's., whereby it was lost; also, money counts. General issue pleaded. This wheat was in a warehouse of Beckley & Co. at Wolverhampton for the plt's. use, who lived at Birmingham ; the deft. was a common carrier between Birmingham and Wolverhampton, and so on to Radford, lying beyond Wolverhampton ; but the carriage of goods between Radford and Wolverhampton, and Wolverhampton and Birmingham, was conducted by different boats. In the scarcity of bread &c. in 1800, a riotous disposition appeared at Wolverhampton; the mob pulled down one corn mill, and it was reported they intended to attempt the warehouse of Beckley & Co.; thereon their acting clerk wrote to the deft. to send an extra boat for this wheat as quickly and as privately as he could, on account of the state of the country; he received no answer, but on Monday, Sept. 29, 1800, finding a boat of ths deft's. which had been to Radford, or somewhere beyond Wolverhampton, and then returning empty by Wolverhampton to Birmingham, he caused it to be stopped for the purpose of taking a quantity of wheat on board; and Green, the boatman, making no objection to the proposal, 166 bags of wheat were put on board for the plts., and some flour for a Mr. Allen; the bags were put on board in open day, and the wharfinger's clerk gave no particular directions to the boatman, but he had sent privately to the lockmen, to have the lock ready to let the boat pass free at any time the boatman chose to go off. She went off in the evening of said Monday; the usual days for the deft's. boats to go off from Wolverhampton to Birmingham were Tuesdays and Fridays; and this was not one of those boats, but one used from Radford to Wolverhampton. There was another load at the same time, from the same wharf, that went in company. Some part of Allen's flour arrived safe, for which the deft. charged a freight; but 166 bags, that belonged to the plts. were seized by the rioters, 4 miles from Wolverhampton, and lost to the plts, and no charge of freight was made. The plts. never informed the deft. or his boatmen of the danger. But the deft. claimed demurrage for the time the boat was detained by the rioters; but this the plts. refused to pay. The question made, and for the jury to decide, was "whether the bags were put on board, according to the usual course of dealing, with common carrier." The jury found the bags were not put on board in the usual course of dealing with a common carrier, and so their verdict for the deft.; and the court held, the verdict was right, either on the general ground of fraud in the plts., or on the circumstances of the case, proving the deft. engaged to do the best he could, but not to be answerable as a common carrier; for the violence of the mob; or because it did not appear that the boatman, whose ordinary employment was between Radford and Birmingham, had authority from the deft. to accept the goods at Wolverhampton, for Birmingham, much less to accept them in that manner. The court thought it was properly left to the jury, to decide if the bags were put on board according to the common course of dealing, with a common carrier; and if not, then to find for the deft.; and that this was correct; and that CH. 23. Art. 9. |