sidered of great importance to uphold the freedom of individuals to contract in the carrying trade, as in other branches of business; and the rule became firmly settled that a carrier may by express contract restrict his common law liability 1-a broad and general rule which permits the parties to separate the carrier's contract for the transportation and delivery of goods, from the responsibility of insuring them against losses from accidents and casualties by the way.2

The rule is not of recent origin. It has long been the practice of common carriers by water to insert in the receipt of the goods or bill of lading, an exception of the dangers or perils of the river, lakes and seas, and other casualties, such as fire, leakage and breakage; thus entering into a special agreement with the owner for the transportation of the goods, and leaving him to obtain an insurance upon them against the excepted dangers.3 The custom assumes the rule, and being supported by judicial authority, it works a partial separation of the carrying trade from the business of insurance. A like custom has long prevailed among carriers by land, of limiting their liability, by an express agreement, to a greater or less extent; and these limitations are upheld and enforced

losses, except those arising from the act of God or of the King's enemies; they cannot discharge themselves from losses happening under these circumstances, by any act of their own: as by giving notice, for example, to that effect. But the case is otherwise where a man is chargeable on his own contract. Thero he may qualify it as he thinks fit." He then proceeds: "I have said that relaxing the common law rigor, opens the high road to fraud, perjury, theft and robbery. It does more. Looking to the present ordinary, not to say universal means of travel and transportation, by coaches, railroads, steamboats, packets and merchant vessels, the mere superaddition of negligence in respect to the safety of passengers and property would constitute a most fearful item. Thero are no principles in the law better settled than that whatever has an obvious tendency to encourage guilty negligence, fraud or crime, is contrary to public policy. Such, in the very nature of things, is the consequence of allowing the common carrier to throw off or in any way to restrict his legal liability. The traveller and bailor is under a sort of moral duress, a necessity of employing the common carrier under those legal arrangements which allow any number of persons to assume that character, and thus discourage and supersede the provision for other modes of conveyance. My conclusion is, that he shall not be allowed in any form to higgle with his customer and extort one exception and another, not even by express promise or special acceptance, any more than by notice. He shall not be privileged to make himself a common carrier for his own benefit and a mandatary or less to his employer. He is a public servant, with certain duties defined by law; and he is bound to perform those duties." 1 Dorr v. N. J. Steam Nav. Co., 4 Sandf., 136; S. C., 11 N. Y., 485. N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 382.

3 Gordon v. Little, 8 Serg. and Rawle, 533.

Parsons v. Monteath, 13 Barb., 353; Moore v. Evans, 14 Barb., 524; and

Mer. Mut. Ins. Co. v. Calebs, 20 N. Y., 173.

under the principles of the common law. The contract is to be carried into effect according to its terms, without enlarging or diminishing them in their true sense and meaning.2

§ 553. We have seen that the carrier, being a public servant, is obliged to accept and take charge of goods for carriage on his route and within his line of business, on being tendered a reasonable compensation: and this is manifestly inconsistent with a right on the part of the common carrier to impose terms that will relieve him from the liability imposed upon him by law. He is by common consent at liberty to prescribe reasonable rules and regulations for the conduct of his busi-In regard to the manner of receiving goods, booking, and paying for their transportation, the carrier has, as we have seen, the right to regulate and prescribe his own terms; and if these are not complied with he cannot be charged. But where these terms are complied with, he is bound by reason of his employment to receive and carry the goods tendered to him for carriage.5

ness.

It follows that special agreements made with carriers for the transportation of goods by land or water, are to be regarded as entered into for the mutual accommodation of the contracting parties. Before the law, they stand upon equal terms; the carrier is tied down to a reasonable reward for his services; and he is under a legal obligation to receive and carry the goods offered to him. It is not therefore within his power to impose unreasonable conditions upon his customers, or by any act of his own to discharge himself from his common law liability. Plain enough in theory, it is quite difficult in practice to adjust the relative rights of the contracting parties.

§ 554. Public Notices. It is not necessary to review the decisions marking the line of oscillation and development of the law, on this sub

1 Wyld v. Pickford, 8 M. and W., 443; York, Newcastle & Berwick R. Co. v. Crisp., 14 C. B., 527.

2 Magnin v. Diusmore, 35 N. Y. Supr. Ct., 182; S. C., 56 N. Y., 168; Falke-nean v. Fargo, 35 N. Y. Supr. Ct., 332.

3 Doct. and Stud., 270; Jackson v. Rogers, 2 Show., 327; Lovett v. Hobbs, id., 127; aute §§ 518 to 522.

4 Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115, an elaborate opinion by Woodruff, J.; case cited in Nevins v. Tho Bay State S. Co., 4 Bosw., 225, 233, 236; 5 Bosw., 395, 404; 30 N. Y., 630; 2 Daly 454, 486.

Ante § 518, § 520.

6 In some cases we find the rights of the owner delivering the goods, presented in a strong light; in others the rights of the carrier; and in others still the right of the parties to regulate their relations to each other on the basis of contract. In England, as we shall presently find, the carriers' right to impose terms is limited by statute. 1 E. D. Smith, 115; 4 Bosw., 225, 236.

ject. The result can be briefly stated. In England the courts gave effect to these notices for a long time; sometimes on the theory that they formed a part of a contract, by the tacit acquiescence of the owner of goods, delivering them with a knowledge of the terms thus offered by the carrier;a misleading theory inasmuch as it assumes the carrier's right to dictate his own terms; and sometimes on the ground of a fraudulent or deceitful concealment of the nature of the package delivered, practiced with a view to evade paying the established freight.2 As these notices were not at all uniform, it was at length ascertained that to give effect to them as parcel of an implied contract, was to undermine the rule of liability imposed upon the carrier by law.3 Cases of negligence arising, it was found difficult to determine the degree of negligence that should defeat the exemption claimed in the notice. The doctrine of notice finally began to be regretted, and limited and qualified. It was necessary on the theory of contract, that the notice should be brought home to the knowledge of the party delivering the goods; and this was often found a difficult question of fact to deal with. The carrier was obliged to receive all packages tendered to him for carriage, and he had no sure means of ascertaining the value of their contents; without which it was not possible for him to secure a just compensation for his services." The decisions falling into some conflict, a statute was passed in 1830 regulating the rights of the parties, giving to the carrier by land the right to fix his charges for carrying parcels by notice, and taking from him every other right or claim to limit his common law liability by notice." A like result, so far as the general

1 Leeson v. Holt, 1 Stark., 148; Nicholson v. Willan, 5 East, 507; Maving v. Todd, 1 Stark., 72; Harris v. Packwood, 3 Taunt., 271; Brooke v. Pickwick, 4 Bing., 218; Marsh v. Horne, 5 Barn. and Cres., 322.

2 Tyly v. Morrice, Carth., 485; Gibbon v. Paynton, 4 Burr., 2298; Miles v. Cattle, 6 Bing. R., 743; Batson v. Donovan, 4 Barn. and Ald., 21; Beck v. Evans, 16 East, 244.

3 Garnett v. Willan, 5 Barn. and Ald., 53, A. D. 1821, discredits some preceding cases.

* Nicholson v. Willan, supra; Riley v. Horne, 5 Bing., 217; 2 Moore and Payne, 331; Sleat v. Fagg, and Wright v. Snell, 5 Barn. and Ald., 342, 350; Bickett v. Willan, 2 Barn. and Ald, 356; 3 Campb., 267; 16 East, 244; Bodenham v. Bennett, 4 Price, 31; 1 Esp., 36.

Smith v. Horne, 8 Taunt., 144, A. D. 1818. Burrough, J.: "I lament that the doctrine of notice was ever introduced into Westminster Hall."

Brooke v. Pickwick, 4 Bing. R., 222, A. D. 1827; Rowley v. Horne, 3 Bing.

R., 2; Griffiths v. Lee, 1 Carr. and Payne, 110.

7 Riley v. Horne, 2 Moore and Payne, 341; 5 Bing., 217.

11 Geo. IV., and 1 Wm. IV., ch. 68, passed July 23, 1830: the principles of the statute were applied to railway and canal companies in 1854, by 17 and 18 Vict., ch. 31.

principle is concerned, has been reached in this country in the natural development of the law, by judicial decisions; and the carrier cannot limit his liability by a notice.' Assent by the party delivering the goods must be shown, to give effect to the notice; and that creates a special

contract.

§ 555. Under the statute referred to, mail contractors, stage-coach proprietors and other common carriers for hire by land, are not liable for injury or loss of money, bills, notes, jewelry and other articles of great value in small compass, particularly specified, contained in packages or parcels, when the value of the articles or thing enclosed exceeds the sum of ten pounds, unless the value thereof is declared by the person delivering the same, and a compensation paid or agreed upon for the increased risk, incurred in the conveyance of such valuable articles." When the contents of a package or parcel of this kind exceeding ten pounds in value, are made known on its delivery, the increased charge is to be paid according to the carrier's notice posted in his office; a reasonable

4

; S.

1 Hollister v. Nowlen, 19 Wend., 234, A. D. 1838; Colo v. Goodwin, 19 Wend., 251. These cases relate to the baggage of a passenger, and the opinions are very elaborate. See also Clark v. Faxton, 21 Wend., 153; Camden & Amboy R. R. & Transp. Co. v. Belknap, 21 Wend., 354; Powell v. Myers, 26 Wend., 591. The rule is applied generally, in Dorr v. N. J. Steam Nav. Co., 4 Sandf. C., 11 N. Y., 485; and in Blossom v. Dodd, 43 N. Y., 264; Derwart v. Loomer, 21 Conn., 245; Moses v. Boston &c. R. R. Co., 32 N. H., 523; Kimball v. Rutland R. R. Co., 26 Vt., 247; Western Transp. Co. v. Newhall, 24 Ill., 466; Brown v. E. R. R. Co., 11 Cush., 97; Thomas v. Boston R., 10 Met., 479; Jones v. Voorhees, 10 Ohio, 145; McMillan v. Michigan S. R. R. Co., 16 Mich., 79; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344; Duff v. Budd, 3 Brod. and B., 177; Perry v. Thompson, 98 Mass., 252; Buckland v. Adams Ex. Co., 97 Mass., 124; Malone v. Boston & W. R. Co., 12 Gray, 392; Brown v. Eastern R., 11 Cush., 97; Adams Ex. Co. v. Haynes, 42 Ill., 89.

2 Grace v. Adains, 100 Mass., 560; Van Goll v. Tho S. E . R. Co., 104; Eng. Cem. Law R., 75. In these cases the party delivering the package took a receipt or paper embodying a contract.

3 The articles enumerated are as follows: Gold and silver coin of the realm or of any foreign state; gold or silver in a manufactured or uumanufactured state, precious stones, jewelery, watches, clocks, or time-pieces of any description; trinkets, bills, notes of any bank in England, Scotland, or Ireland; orders, notes or securities for payment of money, English or foreign; stamps, maps, writings, title deeds, paintings, engravings, pictures, gold or silver plate or plated arti. cles; glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not with other materials; furs, laces, or any of them, contained in any parcel or package.

4 The second section of the act permits this in express terms. A public notice does not avail the carrier. Walker v. The York & North M. R. Co., 2 E. and B., 730; 22 Eng. L. and Eq., 315.

charge proportioned to the risk assumed by the carrier. On the owner's paying or engaging to pay the increased charge, the carrier or his agent is required to give a receipt for the package or parcel, specifying that the same has been insured; and a refusal to give the receipt when required, or an omission to post the notice in his office, deprives the carrier of any benefit to be derived under the act, and leaves him liable as at common law, and liable to refund the increased rate of charge.

There must be a formal declaration of the nature and value of the parcel when it is delivered to the carrier. If the person delivering the goods fail in this duty, when the parcel exceeds in value ten pounds, the carrier is not liable for a loss of or injury to either of the specified articles, by the negligence of his servants or by his own omission to affix the notice in his office, as required by statute. The party delivering the goods and declaring their value, is not bound to tender, but the carrier must demand, the increased charge payable thereon.2

The general features of the statute are quite as important as those already mentioned. The act does not prevent or in any wise affect any special contract made by a carrier for the conveyance of goods and merchandise; and it provides in express terms that from and after the first day of September ensuing, no public notice or declaration shall be deemed or construed to limit or in any wise affect the liability at common law of any mail contractor, stage-coach proprietor or other common carrier, in respect of any articles or goods to be carried or conveyed by them; it leaves nothing to inference; it provides that in respect to all articles and goods not enumerated in the act, the carrier shall be liable for their safe carriage as at common law, and for the enumerated articles also, where they are insured. It restores the rule of the common law.5

1 Hinton v. Debbin, 2 G. and D., 36; 2 Q. B., 645; 6 Jur., 601; Boys v. Pink, 8 C. and P., 361; Hart v. Baxendale, 6 Exch., 769; 13 Jur., 123; 21 L. J. Exch., 123. 2 Great Northern R. Co. v. Behrens, 7 H. and N., 950; 8 Jur. N. S., 567; 31 L. J. Exch., 299; 10 W. R., 339; 8 L. T. N. S., 328.

3 Section Six of the Act.

4 Section Four: this section refers to public notices; a private actual notice assented to becomes a contract; Walker v. York & North Midland R. Co., 2 Ellis and B., 750.

BRONSON, J., in Hollister v. Nowlen, 19 Wend., 234, 241, 249.

This statute of 1st William IV., ch. 63, was passed July 23d, 1830.

Section 1 enacts: "That from and after the passing of this act, no mail contractors, stage-coach proprietors, or other common carrier by land for hire, shall be liable for the loss of or injury to any article or articles or property of the descriptions following; that is to say, gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, watches, clocks or time-pieces of any description, trinkets, bills, notes of the governor and company of the banks of