into their care and custody. They are thus liable, with this exception; they do not insure against injuries, resulting from the propensities and nature of the animals, and which cannot be prevented by foresight, diligence and care.2 On the other hand, when a common carrier, a railway company for example, makes a special contract for the transportation of cattle, leaving the owner to put them on board and accompany and take care of them, the agreement creates a relation different from that which arises when the carrier takes the cattle into his exclusive custody.'

becoming bound to transport it safely, and they are responsible for the damage unless they were relieved from their responsibility by the plaintiffs', or their driver, taking upon themselves to keep the horses safely. But there is no positive evidence of such an undertaking, nor can it be justly inferred from the conduct of the driver on the occasion.

"It appears that the driver drove the horses attached to the stage coach into the boat, and after tying the lines, he left the box and proceeded to water the horses. He did not continue to hold the lines, nor say anything showing that he had taken upon himself the safe keeping of the horses: and the only circumstance tending to show that they were in his keeping at the time, is the fact that he was carried into the river by the horses. But this might have been done by efforts to stop them, by seizing the bridle, which he would very naturally use, as he was standing before them and watering them when they started off. It is not sufficient to show that he had undertaken to keep them safely, but is more properly to be regarded as an effort to aid the ferryman in performing his duty: and the fact that he left them and proceeded to get water for them immediately after driving them into the boat, tends much more strongly to prove that they wero in the keeping of the ferryman.

"There appears therefore to be nothing in the circumstances sufficient to exempt the defendants from the responsibility resting upon them from the nature of their undertaking."

The contract implied by law must be ascertained from the actual intent of the parties. It is inferred from the facts; and it is quite clear that a person driving a team harnessed before a wagon, loaded with goods, does not ordinarily intend to deliver the property into the custody of the ferryman. He keeps the reins in hand; and he does not so entrust the ferryman with the goods, as to change him for their loss by theft. So where a man goes on board. the boat, with a pack on his back, he does not usually place his goods in the keeping of the ferryman. And yet in each of these cases the ferryman has in a general sense, possession of both the individuals and their property, and is liable for any loss arising through his default in duty. See Peixotti v. M'Laughlin, 1 Strob., 433; Dill v. South Carolina R., 7 Rich., 158.

1 Merritt v. Earle, 31 Barb., 33; S. C., 2) N. Y., 115, relates to the liability of a carrier by steamboat on the Hudson, for a span of horses received and carried as freight.

2 Penn v. Buffalo & Erie R. R. Co., 49 N. Y., 204; Cragin v. N. Y. C. R. Co., 51 N. Y., 61.

3 Steiger v. Erie Railway Co., 5 Hun. (12 S. C. N. Y.), 315; Welsh v. Pittsburgh R., 10 Ohio St., 65; East Tenn. R. v. Whittle, 27 Ga., 535.

The carrier does not assume the entire custody of the cattle, and he does not come under the full responsibility of a common carrier; indeed, he does not, in the absence of a special contract, become liable for damages caused by an occurrence incident to the carriage of live animals in a railroad car, where he could not have prevented the injury by the exercise of diligence and care. By analogy, a ferryman who does not assume the exclusive custody of carriages and horses driven on board his boat and held by the driver, should not be held to the full responsibility of common carriers; and conceding him to stand in the relation. of a common carrier, he should not be held liable for damages resulting solely from the uncontrollable instincts of live animals.2

§ 507. The ferryman must exercise a high degree of care in receiving either passengers or property on board of his boat; 3 and in landing them. He must also protect horses and cattle received on his boat, from loss or injury, by the use of suitable chains and guards. He must take every reasonable precaution to guard against casualties and dangers incident to the situation; and he is not allowed to excuse himself from liability, by showing that his boat has been long used, without accident, and without any barrier to prevent cattle from falling off. He is not allowed to show, in excuse for his negligence, that it is customary with other carriers to conduct their business with equal negligence. yet there are cases in which it is admissible to show that the carrier's boat was properly constructed or equipped, and where the testimony must have some reference to the usual mode of constructing or equipping like boats."

And

On account of his responsibility, the ferryman has the right to regulate the mode of receiving and placing goods and chattels on his boat; and a traveller has a right to rely upon his judgment. For the same

! Clarke v. Rochester & S. R. Co., 14 N. Y., 570; Gabay v. Lloyd, 3 B. and C., 793; Lawrence v. Aberdeen, 5 B. and Ald., 107.

2 Cragin v. N. Y. Central R. Co., supra, 51 N. Y., 61; Smith v. N. H. & N. R. Co., 12 Allen, 531.

Pomeroy v. Donaldson, 4 Mo., 33; Hazman v. Hoboken Land & Imp. Co., 2 Daly, 130; S. C., 50 N. Y., 53; Miles v. Jones, 1 McCord, 157.

4 White v. Winnisimmet, 7 Cush., 155; Clark v. Union Ferry Co., 35 N. Y., 485; Willoughby v. Horridge, 12 C. B., 472; Walker v. Jackson, 10 M. and W., 161; 5 Hun., 523; Simmons v. New Bedford Co., 97 Mass., 361, 368.

5 Lewis v. Smith, 107 Mass., 534; 8 Gray, 547.

6 Cleveland v. N. J. Steamboat Co., 5 Hun., 523. Dougan v. Champlain Trans. Co., 56 N. Y., 1;

Crocheron v. North Shore

Staten Island Ferry Co., id., 656; commented on in 5 Hun., 523, 527.

3 Claypool v. McAllister, 20 Ill., 504; ante § 506.

9 Pomeroy v. Donaldson, 4 Mo., 36. The ferryman must not overload his boat.

reason, it rests with the ferryman to determine as to the safety of attempting a trip, in a storm or in a freshet; and it is agreed that he is not liable for losses caused by a storm or a tempest, arising after his boat is under way. He is bound to transport goods or chattels during the day and until the close of business hours in the evening, unless he is excused by the weather or the flood, rendering the passage dangerous.2

§ 508. Masters of Vessels. The master of a vessel also comes within the description of a common carrier. Although he receives his salary from the owners, it does not affect or annul his common law liability, if he does not keep the goods delivered into his custody safely. This rule was first adjudged in the reign of Charles the Second, on the following grounds: First, because he takes a reward and the usage is, that half wages are always paid him before he goes out of the country. Second, that he may make a reserve and caution for himself. Third, that no difference can be assigned between him and a hoyman, common carrier, or innholder. Fourth, that he is rather an officer than a servant, having power to impawn the ship, and to sell bona pertiura. In effect, too, his reward is paid by the merchants upon the same condition as freight is to the owners; namely, that such freight is earned without which his wages would not be due.3

This decision was made in Mors v. Slue, which was an action brought against the master of a ship for goods delivered into his custody, and stolen from the ship without his fault, by persons pretending themselves to be officers with a warrant to search, and the defendant, who had been used to receive the freight and make contracts for transporting goods, was held responsible as master.

5

§ 509. The master is liable to the merchant from whom he receives goods for transportation, precisely to the same extent and in the same form of action as the owner; but he is liable in a different character and on a different ground. The owner is liable by reason of his public employment and the profit derived from it for freight. The master is liable on his own contract for the transportation of the goods and by virtue of his taking charge of them for that purpose. The liability of the owners is implied by law, from the nature of their employment, on the ground of public policy; while that of the master, who is not an owner, and receives no part of the freight, seems to arise rather from his express un

1 Cook v. Gourdin, 2 Nott and McCord, 19. Pate v. Henry, 5 Stew. and P., 101.

3 Jeremy's Law of Carriers, 8; the master is liable for the negligent acts of those under his authority; Kennedy v. Ryall, 67 N. Y., 379.

4 1 Ventr. R., 190, 233; 2 Ld. Raym., 919; 2 Kent's Comm., 599.

Patten v. Magrath, 1 Rice R., 162.

dertaking; still, on the same ground of policy and in favor of commerce, he is held personally responsible on his contract, even where the owners are known, which is thus far a departure from the general law of principal and agent.1

Masters of vessels who undertake to carry goods for hire, are liable as common carriers, whether the transportation be from port to port, within the State, or beyond sea, at home or abroad; and they are answerable, as well by the marine law as by the common law of England, for all losses not arising from inevitable accidents, or such as could not be foreseen or prevented.2 In an action of assumpsit on a bill of lading signed by the master, of goods shipped, as from Liverpool to New York, he is answerable for any deficiency in the cargo, whether embezzled or otherwise lost. And the rule of damages is their value at the place of destination. In his relation to the shipper or consignee of goods, the master is both a principal and an authorized agent of the owners of the vessel entrusted to him; but he is not liable on a bill of lading signed by him, jointly with the owners.5

3

9

§ 510. As between himself and the owners, the master of a vessel is an agent clothed with extensive powers; authorized to make contracts for supplies, for repairs to the ship," for advances to discharge a claim for salvage, and for the transportation of goods. Absent from home, on a voyage, or at a port of necessity, he has such powers as are necessary to enable him to protect the property and interests entrusted to his care. Under the stress of necessity he may borrow money in a foreign port, and hypothecate the vessel for its repayment; 10 or sell her, when that is the only means of preserving for the owners or insurers any part of her value; or acting in good faith, and being unable to consult the owners, he may even sell the cargo, under an absolute or really urgent necessity, to preserve or save its value.12 But he cannot justify a sale,

11 Rice R., 162, S. C.; Price v. Hartshorn, 44 Barb., 655.

Elliott v. Russell, 10 John. R., 1; Schieffelin v. Harvey, 6 John. R., 171. 3 Walkinson v. Lawton, 8 John. R., 213.

4 Kemp v. Coughtry, 11 John. R., 107; Bussey v. Donaldson, 4 Dallas R.,

1 Wash. (Cir. Co.) R., 142.

Sewall v. Allen, 6 Wend. R., 335; 2 Wend. R., 327.

296;

6 Sager v. Nichols, 1 Daly, 1; see Kenzel v. Kirk, 37 Barb., 113; McCready v. Thorn, 51 N. Y., 454.

'Provost v. Patchin, 9 N. Y., 235.

'Loback v. Hotchkiss, 17 Abbott Pr., 88.

9 Ward v. Green, 6 Cowen, 173.

10 Reade v. Com. Ins. Co., 3 John. R., 352.

11 Chambers v. Grantzon, 7 Bosw., 414; 32 N. Y., 685.

12 Butler v. Murray, 30 N. Y., 88.

where he has the power at hand to send forward the goods safely by another ship, or is able to repair his own and prosecute the voyage. Being unable to prosecute the voyage, or to send forward the goods, he is bound to act for the best interest of all concerned, including the owners of the cargo and the owners of the vessel. He must do what he can for the preservation of the cargo, and it his duty towards the owners of the vessel, to earn freight if he can.1

§ 511. Owners of Vessels. The owners of vessels employed in the carrying business on our lakes and rivers, or on the high seas, are common carriers of such goods as they hold themselves out to the community as ready to receive and transport from place to place. It was at one time held in this State that the owners of a vessel transporting goods on the high seas are not common carriers, within the meaning of the rule, subjecting them to all losses or injuries, which arise from any other cause than the act of God, or the enemies of the country; and that in an action against them for loss or damage from any other cause, it should be submitted to the jury, upon the evidence, whether they used ordinary care and diligence. But this doctrine is in direct conflict with previous decisions of the same court, and it has been since overruled. In recent cases the carrier upon the high seas is uniformly regarded as a common carrier, in the same manner, and to the like extent, as the carrier upon land, except in so far as his responsibility is limited by statute.5

3

The English decisions are to the same effect, holding the owners of vessels, loading and carrying goods to and from foreign ports, answerable as common carriers. In short, it is deemed a settled point, that masters and owners of vessels are liable in port, at sea and abroad, to

1 Searle v. Scovell, 4 John. Ch., 418; The Amer. Ins. Co., 4 Wend., 45; Ogden v. Gen. Mutual Ins. Co., 2 Duer, 204; Nelson v. Belmont, 21 N. Y., 36.

The master's duty to send forward the goods by another vessel is only im perative when he is able to secure a vessel in the same or in a contiguous port, within a reasonable distance. Saltus v. Ocean Ins. Co., 12 Jolin., 107; Treadwell v. Union Ins. Co., 6 Cowen, 270; Hugg v. Augusta Ins. & B. Co., 7 How. U. S., 595.

2 Sewall v. Allen, 6 Wend. R., 335; 2 Wend. R., 327.

3 Ayman v. Astor, 6 Cowen R., 267.

410 John. R., 1; 11 John. R., 107; 6 John. R., 170; 8 John. R., 113; Gould v. Hill, 2 Hill R., 623; Door v. N. J. Steam Navigation Co., 4 Sand. R., 136; Wilcox v. Parmelce, 3 Sand. R., 610; 11 N. Y., 485.

5 Price v. Powell, 3 Comst. R., 322; see Act of Congress of 1851; R. S. of U. S., 831, 832.

6 Fragano v. Long, 4 Barn. and Cres. R., 219; 10 John. R., 7; 2 Kent's Comin., G03.