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the whole extent of inland carriers, unless exempted by the exceptions in the contract of charter-party, or bill of lading, or by statute. Under the marine law the rule of liability is essentially the same.1

§ 512. The employment of a vessel determines its character as a common carrier. Where a ship is not put up to freight, but employed by the owner on his own account, and the master receives goods of another person on board as part of his privilege, taking to himself the freight, the owner is not answerable for the conduct of the master in relation to such goods.2 The shipper thus making a private bargain with the master, is not allowed to hold the owner liable thereon; on the ground that the owner did not actually authorize the contract, nor permit his ship to be advertised or held out for freight.3

The master's power to bind the owners is but a branch of the general law of agency. When the vessel is what is called a general ship, that is, one in which the master or owners engage separately with a number of persons unconnected with each other, to convey their respective goods to the place of the ship's destination, the master has authority to receive goods on freight, unless prohibited by the presence of the owner exclusively attending to the shipment of the cargo. The owner's presence does not of itself show the master's want of authority.5

§ 513. Outside of the usual business in which a vessel is employed, the master has no implied authority to bind his principal. Hence in order to render the owner of the vessel liable on the contracts of the master, it must be proved that the vessel was in the owner's employment, that the master was appointed by him, and that he acted in making such contracts within the scope of his authority. A private contract with the master to carry a money parcel, the carriage of which is not within the vessel's ordinary business, does not render the owners responsible.

§ 514. There is no distinction between the owners of ships carrying

1 10 John R., 8; McClure v. Hammond, 1 Bay's R., 99; Bell v. Reed, 4 Biun.

R., 127.

2 King v. Lenox, 19 John. R., 235.

3 Walter v. Brewer, 11 Mass. R., 99.

Lloyd v. Grubert, 10 Jur. N. S., 349; 33 L. J. Q. B., 241; 12 W. R., 953; 6

B. and S., 100, 120; 33 L. J. Q. B., 74.

5 Ward v. Green, 6 Cowen, 173, 176.

6 Reynolds v. Tappan, 15 Mass. R., 370; The Schooner Freeman v. Buckingham, 18 How. U. S., 182; see Armour v. Mich. C. R. Co., 65 N. Y., 111.

Allen v. Sewall, 2 Wend., 327; S. C., 6 Wend., 335. In this case a package of bills was delivered to the master of a steamboat at New York for Albany ; and it appeared that the carriage of such packages was not a part of the boat's ordinary business.

goods on the high seas and the owners of steamboats and other craft that ply upon our inland waters as carriers for all persons indifferently: the same rule of responsibility attaches to a carrier by water as to a carrier by land. The main difference in their liability arises out of the United States statute, and the exceptions so generally inserted in bills of lading, exempting the carrier from liability for certain losses caused by the perils or dangers of the sea, rivers or lakes.2

4

The owners of boats transporting goods and merchandise on the canals, for the public generally, are common carriers; and they are not common carriers, or liable as such, unless they are engaged in the carrying business, as a general or public employment. The owner assumes the character when he enters upon the business; his liability does not much depend upon his interest in the boats, or upon the means by which the business is carried on. Hoymen and barge owners and wharfingers, employed habitually in carrying goods for all persons indiscriminately for hire, are considered common carriers, and subject to the liabilities incident to the business. But a wharfinger is a common carrier only where he undertakes the duty of carrying goods in lighters to and from vessels in the river; he is not ordinarily a carrier. So a common bargeman is a common carrier, when he is accustomed to carry goods for hire for the public generally, as from London to Milton and other places in Kent."

§ 515. Our railroads have within quite modern times occupied nearly all the great lines of inland transportation. The corporations constructing and operating them, have become carriers on a great scale; they advertise for freight; they make known the terms of the carriage; they provide suitable vehicles, and appoint convenient places for receiving and delivering goods; and as a legal consequence of these acts, they have become common carriers of merchandise, and are subject to the provisions of the common law applicable to carriers. They hold them

1 Elliott v. Rossell, 10 John. R., 1; Price v. Hartshorn, 44 Barb., 655; Sears v. M'Arthur, 21 Wend. R., 190; Bell v. Reed, 4 Binn. R., 127; 6 Wend., 335; Hastings v. Pepper, 11 Pick. R., 81; Crosby v. Fitch, 12 Conn. R., 410; Kemp v. Coughtry, 11 John. R., 107.

2 The effect of the statute and of special contracts will be considered in another connection; post §§ 556-560.

329.

3 Arnold v. Hallenbake, 5 Wend. R., 33; Fairchild v. Slocum, 19 Wend. R.,

4 Fish v. Clark, 2 Lansing, 176; S. C., 49 N. Y., 122.

5 Jeremy's Carriers, 7, 8, 9; Ingate v. Christie, 3 C. and K., 61; Dale v. Hall,

1 Wils. R., 281.

6 Maving v. Todd, 1 Stark. R., 59; Platt v. Hibbard, 7 Cowen, 497.

7 Rich v. Kneeland, Cro. Jac., 330.

selves out to the community as ready to carry goods and produce or freight, and they come under the usual description and responsibilities of common carriers for hire.1

§ 516. Express companies organized as joint-stock companies, or acting as partners and engaged in the business of carrying money parcels and goods over fixed routes, are common carriers. They undertake to transport and deliver goods for hire, though they do not own the roads or cars or boats employed in the transportation. They are more than forwarders; their contracts bind them for the carriage and delivery of the goods, and they are therefore held responsible as carriers; common carriers of that class of packages and goods which they are accustomed to carry, and hold themselves out to the community as ready and willing to receive for transportation. At first they carried packages of coin, bullion, bank notes, commercial paper, and like articles of considerable value, occupying but a small space; by degrees they have extended the business so as to include goods and things of greater bulk. They have also added to it new features, and assumed other duties not attaching to an ordinary common carrier; such as taking a bill for goods, or a negotiable note, for collection.5 We shall see presently that their liability as carriers is very generally modified by an express

contract.

§ 517. An agreement by a private person to carry and deliver goods safely, renders him responsible for the goods; it binds him according to the true intent of the parties. Where the master of a storeship in the king's service takes in the bullion of a private merchant on freight, as from Gibraltar to Woolwich, giving a receipt for the delivery of the same (the act of God and the king's enemies only excepted), he assumes the responsibility of a common carrier, and is liable for the loss of the bullion, though stolen out of his cabin after the ship's arrival. So the

1 Camden and Amboy R. and Transp. Co., 13 Wend., 611; Weed v. Saratoga and S. R. Co., 19 Wend., 534; Thomas v. Boston and Prov. R. Co., 10 Metcalf, 472; Burtis v. Buffalo and State Line R. Co., 24 N. Y., 269; Crouch v. London and Northwestern R. Co., 14 C. B., 255; 7 Railw. Cas., 717.

2 Ante § 335; Frothingham v. Barney, 6 Hun., 366.

3 Sweet v. Barney, 23 N. Y., 335; Russell v. Livingston, 19 Barb., 346; Sherman v. Wells, 28 Barb., 403.

4 Van Winkle v. Adams Express Co., 3 Robt., 59; Belger v. Dinsmore, 51 N. Y., 166.

Collender v. Dinsmore, 64 Barb., 457; S. C., 55 N. Y., 200; Palmer v. Holland, 51 N. Y., 416.

6 Robinson v. Dunmore, 2 Bos. and Pull. R., 417; Powers v. Davenport, 7 Blackf. R., 497.

7 Hatchwell v. Cook, 6 Taunt. R., 577.

commander of a ship of war has been held liable for not safely keeping and delivering bullion, received by him from a merchant to carry home from a foreign port. Regarded as a private carrier, he must excuse his failure to deliver the property at the place of destination; and though the contract be invalid, he must surrender the property on demand, or account for it in some way. He stands in a situation analogous to that of a person who occasionally entertains travellers for pay, like some of the farmers in a new country, and is held liable for good faith and reasonable diligence, and not responsible as an innkeeper.3

§ 518. II. DUTY OF THE CARRIER TO RECEIVE.

It is the duty of a common carrier, on being tendered a reasonable compensation, to receive and carry all goods offered to him for transportation, within the line of his business. Having room or the means of transporting the goods, he is bound to receive and carry them over his established route; he holds himself out to the community as ready and willing to carry goods for all persons, without limitation; and the law charges him with the duty of fulfilling his engagement with the public. It holds him liable, in an action based on his breach of duty, for a refusal.4

It is safe to say that the carrier is ordinarily bound to receive and carry the goods, on being tendered the usual freight paid on like goods over the same route, received and handled in the same manner. Under ordinary circumstances it is fair to assume that the freight usually paid and received, on like goods, is a reasonable compensation.5 On some routes the rates of freight are as definitely fixed as the price of any staple of merchandise. It is not so fixed on other lines of transportation; and it must also be admitted that the amount ought to depend somewhat upon the liability assumed by the carrier; upon the class or na

1 Hodgson v. Fullerton, 4 Taunt. R., 787.

2 Sheldon v. Robinson, 7 N. H., 157.

3 Perkins v. Picket, 9 Yerger, 480; Lyon v. Smith, 1 Morris, Iowa, R., 184. 4 Riley v. Horne, 5 Bing., 217; Cole v. Goodwin, 19 Wend., 261; N. J. Steam Nav. Co. v. Merchants Bank, 6 How. U. S., 344; Crouch v. Great Northern R., 14 Com. Bench, 255; 25 Eng. L. and Eq., 237; Merriam v. Hartford R., 20 Conn., 354; Jordan v. Fall River R., 5 Cush., 69; Morton v. Tibbett, 15 A. & E., 428; Galena R. v. Roe, 18 Ill., 488; New England Express Co. v. Maine Central R. R. Co., 57 Maine, 188.

5 Galena R. v. Roe, 18 Ill., 483; Lamar v. New York S. Nav. Co., 16 Ga., 558. 6 In Holford v. Adams, 2 Duer, 471, the contract relieved the express company from any liability not arising from fraud or gross negligence, and it was held that this stipulation was to be considered in fixing the amount that should be paid as freight.

ture of the goods, the mode of handling them, the preparations requisite for their conveyance, and upon the fact that the goods are received only occasionally and in small parcels, or continuously and in large masses.1 The rates of toll paid on merchandise passing through the canal are fixed with some reference to the value of the goods; measured only by the weight, corn pays a less toll than wheat, and wheat less than flour. There is much more reason for charging freight with some reference to the value of the goods transported.2

§ 519. Complaints are sometimes made against railroads on the ground of discriminations made in favor of through freight; and these complaints would appear to be just when a road charges one man more than it does another for the conveyance of the same class of goods over the same distance, after making a due allowance for the difference in the expense of loading or unloading the goods. Having ascertained what is a reasonable compensation for a conveyance of the goods, the carrier has no right to exact anything more. He has a right to charge less; and hence the mere fact of unequal charges being made on like freight, carried over the same route, does not prove a violation of legal duty.3 There has been some recent legislation, in this country and in England, designed to ascertain what shall be allowed as a fair compensation for the conveyance of property on railroads; and these statutes fixing maximum rates of freight are valid within the State enacting them. In England, some railways are by their charters expressly or impliedly limited to reasonable, equal and impartial rates; and are not allowed to demand or recover unequal rates of freight. Not being thus limited, or only limited to reasonable charges, the carrier is not considered obliged

This point has been much discussed in England under the statute requiring uniform rates. Crouch v. The Great Northern Railw., 25 Eng. L. and Eq., 449. 2 Fitchburg R. R. Co. v. Gage, 12 Gray, 393. In this case it was held not illegal to demand different rates of freight on different kinds of property.

Finnie v. Glasgow & Southwestern Railw., 2 McQueen's H. of L., 177; 34 Eng. L. and Eq., 11; Ransomo v. Eastern Counties Railw., 1 C. B. (N. S.), 437; S. C., 4 id., 135; 38 Eng. L. and Eq., 232.

4 Peik v. Chicago & Northwestern R. Co., 4 Otto, 164; Lawrence v. Same, 4 Otto, 164; Chicago, Milwaukee & St. Paul R. Co. v. Ackley, 4 Otto, 179; Winona & St. Peter R. Co. v. Blake, 4 Otto, 180; Stone v. Wisconsin, 4 Otto, 181.

Boxendale v. London & Southwestern R. Co., 4 H. & C., 130; 35 L. J.. Exch., 103; 1 L. R. Exch., 137; 12 Jur., N. S., 274; Parker v. Great Western R. Co., 7 M. and G., 253; 7 Scott N. R., 835; 8 Jur., 194; Branley v. South Eastern R. Co., 12 C. B. (N. S.), 63; 9 Jur. N. S., 329; 31 L. J. C. P., 236; 6 L. T. N. S., 458.

6 Pickford v, Grand Junction R. Co., 10 M. and W., 399.

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