barge, or lighter, or to any vessel used in rivers or inland navigation;1 and that it does not exempt the owner from liability for losses or injuries caused by his own misconduct or neglect.

§ 559. The act of Congress limiting the liability of ship-owners, embodies the principal features of prior English statutes; and its object is to exempt the owners of ships from the onerous liability under which they were held by the common law for the acts or neglects of their agents and servants or third persons, without their knowledge or concurrence; and leave them liable for losses arising from the misconduct or negligence of their agents and servants, or from collisions or other casualties excepting fire, to the extent of their interest in the ship and the pending freight. We have seen that they are not liable under the statute for losses by fire, unless the same are caused by their design or neglect; and that they are thus liable for losses arising from fire, occurring from their neglect. And we find that the neglect of the president and directors of a corporation, owning a ship, is to be regarded as the neglect of the corporation itself, these officers not being merely agents or servants of the corporate body.

The statute applies to the owners of vessels navigating the Northern Lakes and the river St. Lawrence, forming the boundary between the States and the possessions of Great Britain; and Long Island Sound.5 It covers losses caused by a collision, occurring in consequence of the inattention or negligence of the master and servants on board. But in order to secure the protection of the statute, a party interested must initiate proceedings in a competent court, namely, in the United States District Court acting as a court of admiralty; and the ship-owner must make the assignment required by the statute, or perform some equivalent act, such as having his interest appraised and bringing the money into court. Omitting to take any proceeding, he is liable to an action

1 R. S. of U. S., §§ 4287, 4289; ante § 543, relating to losses by fire.

2 See Act of Congress of 1851 in Appendix, as originally passed; and R. S. of U. S., 831, 832; also 7 George II., A. D. 1734; 26 George III., A. D. 1786; 53 George III., A. D. 1813; and statutes of Mass. and Maine, enacted as early as 1818 and 1821. The Rebecca, Ware, 187, 194; see Merchants' Shipping Act, 1854, and Amendment Act, 1862, applied in London & S. Western R. Co. v. James, 4 English (Moak) R., 869.

3 Ante § 543; 53 N. Y., 76; 13 Wallace, 104; 17 id., 357; 113 Mass., 495.

4 Phila., Wels. & Baltimore R. v. Quigley, 21 How. U. S., 202, 210; Gilman v. Eastern R., 13 Allen, 433, 441; Hill Manuf. Co. v. Prov. & N. Y. Steamship Co., 113 Mass., 495.

5 Moore v. American Transp. Co., 24 How. U. S., 1; 33 N. Y. Superior Ct., 370; 53 N. Y., 76. In Baird v. Daly, the transaction occurred on the St. Law. rence, and the opinions rather assume that the statute applies.

1

in a State court; and it is adjudged that the jurisdiction of a State court over an action commenced against a ship-owner for damages caused by his neglect, will not be affected by a subsequent suit commenced in a federal court.2 While the statute of the United States confers exclusive admiralty and maritime jurisdiction upon the District Courts, it reserves. to the suitor the option of seeking redress at common law, even where his right is based upon a State statute."

When the owners of a vessel, which by a collision without fault on their part causes injury and loss to the goods on board and to the other vessel and cargo, take proceedings in the proper court, and have their interests appraised and the value brought into court, the amount, being insufficient to pay all the damages, will be apportioned pro rata amongst the owners of the injured vessel and of the cargoes of both vessels in proportion to their respective losses. But neither the owner nor the charterer of a vessel can escape liability, where he negligently runs down another vessel.5

§ 560. It may be safely assumed that a carrier cannot limit his liability by a mere notice, public or private, of the terms on which he receives and carries goods or property; inasmuch as it cannot be presumed that the owner delivering the goods or property intended to waive his legal rights; the presumption being quite as strong that he intended to insist upon them." The notice is at most only a proposal; it does not bind the person delivering the goods, unless he assents to the terms proposed to him. The delivery of a receipt, check, or ticket, with a notice indorsed upon it, does not of itself create or imply a contract on the part of the person receiving it. A ticket is not regarded as a contract; it is treated as a receipt, it serves as a token, a permit to indicate the bearer's right to be received on board the car or vessel. It may be, and often is considered as a part of the contract; c. g., where it is negotiated for on

1 Norwich Company v. Wright, 13 Wallace, 104; see rule 54 in admiralty, in same volume.

2 Hill Manuf. Co. v. Prov. & N. Y. Steamship Co., 113 Mass., v. Prov. & N. Y. S. S. Co., 33 Super. Ct., 370; S. C., 53 N. Y., 76.

495;

Knowlton

3 Dougan v. Champlain Transp. Co., 6 Lans., 430; S. C., 56 N. Y., 1; Chase v. The Amer. Steamboat Co., 9 R. I., 420; S. C., 16 Wallace, 522. 4 Norwich Co. v. Wright, 13 Wallace, 101. Thorp v. IIammond, 12 Wallace, 403.

Camden R. v. Belknap, 21 Wend., 354; Clark v. Fatxon, 21 Wend., 153; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344; McMillan v. Michigan S. R. R. Co., 16 Mich., 79; Henderson v. Stevenson, 13 English (Moak), 141, 152, note.

special terms.1 But it does not so embody the contract, as to exclude other evidence of its terms. To give it effect as evidence of a contract, it must be proved that the party receiving it, assented to the conditions indorsed upon it. The same rule has been applied, where the carrier delivered to a passenger a card or check for his baggage, having these words with others indorsed upon it: "Liability limited to $100, except by special agreement to be noted on this card."3 Notices of this kind, printed in small type, on the side or back of a receipt or card for baggage, do not form a part of the contract.* A ticket with a like limitation indorsed upon it, in the English language, delivered to a German who does not understand the language, does not charge him with knowledge of the proposed limitation; and his assent cannot be implied; the notice must be brought to his knowledge. There must be evidence given, from which the party's assent may be inferred."

5

§ 561. On the other hand, taking from the carrier a receipt for goods in the nature of a bill of lading, embodying a contract specifying the terms on which they are to be carried and delivered, does bind the party delivering the property. In the absence of fraud, concealment or improper practice, the presumption is that the party taking the receipt, assents to its terms limiting the carrier's common law liability. He is supposed to know, and is chargeable with knowledge of the contents of the receipt; and where he takes it without objection, he is presumed to have assented

1 Bissell v. N. Y. Central R. R. Co., 25 N. Y., 442; Wells v. N. Y. Central R. R. Co., 24 N. Y., 181; Perkins v. N. Y. Central R. R. Co., 24 N. Y., 196; Wells v. Steam Nav. Co., 8 N. Y., 375.

2 Nevins v. The Bay State S. Co., 4 Bosw., 225; McCotter v. Hooker, 8 N. Y., 497; Sunderland v. Westcott, 2 Sweeny, 260.

3 Prentice v. Decker, 49 Barb., 21; Brown v. Eastern R. R. Co., 11 Cush, 97; Limburger v. Westcott, 49 Barb., 283; 34 How. Pr., 421; Parker v. Southeastern R. Co., 1 C. P. D., 418; Harris v. Great Western R. Co., 17 English (Moak) R., 156. A passenger leaving luggage in a baggage or cloak room and taking a ticket for it subject to conditions printed on the back of it, is here held bound by those conditions though he does not read them. Barney v. O., B. & H. S. Co., 67 N. Y., 301; a common carrier may establish on his cars or vessels an agency for the delivery of baggage, excluding other parties.

4 Blossom v. Dodd, 43 N. Y., 264.

Camden &c. R. R. Co. v. Baldauf, 16 Penn. St., 67; see Fibel v. 64 Barb., 179.

Livingston,

6 Verner v. Sweitzer, 32 Penn. St., 203; Farmers, &c. Bank v. Champlain Transp. Co., 23 Vt., 186.

7 Long v. N. Y. Central R. R. Co., 50 N. Y., 76; Dorr v. N. J. Steam Nav. Co., 4 Sandf., 136; S. C., 11 N. Y., 485; Harris v. Great West. R. Co., 1 Q. B. D., 515; Adams Ex. Co. v. Haynes, 42 Ill., 89.

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Belger v. Dinsmore, 51 Barb., 69; S. C., 51 N. Y., 166; Collender v. Dins. more, 55 N. Y., 200; Kirkland v. Dinsmore, 62 N. Y., 171.

to the conditions prescribed in it, qualifying the carrier's liability.1 Thus, a receipt embracing these terms is held operative and valid, like a bill of lading: "It is further agreed, and is a part of the consideration of this contract, that the Adams Express Company are not to be held liable or responsible for the property herein mentioned for any loss or damage arising from the dangers of railroad, ocean, steam or river navigation, leakage, fire, or from any cause whatever, unless specially insured by them and so specified in this receipt; which insurance shall constitute the limit of the liability of the Adams Express Company in any event; and if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss or detention of, or damage to, the property aforesaid (receipted in the first paragraph)."2 The contract is evidently designed to protect the carrier to the same extent and in the same manner as the English statute relating to parcels of great value in small compass.3 Its terms relieve the carrier from liability for any loss or damage, unless the value of the goods is stated by the shipper, and the goods insured, and that fact stated in the receipt; and it is clear that the statute referred to relieves the carrier from liability for loss or injury to any of the specified articles, notwithstanding the injury or loss is occasioned by his servant. And it is adjudged in this State that the last clause of the contract above quoted, does not exempt the carrier from losses occurring through his negligence; and that the limitation of damages to the sum of fifty dollars does not apply to these losses. The language is very broad, but it does not in terms cover losses by negligence; and under the usual rule of interpretation, the terms are to be taken most strongly against the party whose language they are."

§ 562. The freedom of contract has been carried so far in England' and in this State, as to uphold the carrier's contract exempting him from liability beyond a fixed sum, for losses occurring throuhg his neg

1 Grace v. Adams, 100 Mass., 560; Van Goll v. The S. E. R. Co., 104 Eng. Com. Law R., 75; Fibel v. Livingston, 64 Barb., 169; case of a receipt given to a German not much acquainted with the language.

2 There are other clauses in the contract; and the above only are adjudged valid in Magnin v. Dinsmore, 56 N. Y., 168.

3 Ante § 555.

Hinton v. Dibbins, 2 G. and D., 36.

Magnin v. Dinsmore, supra.

6 Westcott v. Fargo, 6 Lansing, 319; Oppenheimer v. The U. S. Express Co., 9 Albany Law Journ., 187; 56 N. Y., 174.

↑ Carr v. Lancashire & Yorkshire R. Co., 7 Exch., 707; 7 Railw. Cas., 426.

ligence; and yet we find the courts holding conservatively that a contract of this kind shall be permitted to exempt a carrier from losses occasioned by his negligence, only in compliance with its express terms; 2 and that the carrier must give some account of the goods; unless the contract, or the evidence in the action, leaves the burden of proof with the plaintiff.

3

It is to be observed that contracts exempting carriers from liability for losses and injuries caused by their own negligence, would operate to suspend the obligation of diligence which the law prescribes as governing the relation of the parties to each other; and that these contracts are not therefore in harmony with sound public policy. On the other hand, the courts of England and of this State permit the carrier to exempt himself by an express contract from liability for damages resulting from negligence on the part of his servants, agents and employees, without regard to the degree of the negligence-a rule accepted with much reluctance and frequently criticised by the court that enforces it, and we may add, constantly qualified and restricted by the interpretation given to the contract.

For illustration: an agreement by the owners of a steamboat to tow a vessel on the river, at the risk of the master and owner of the vessel, does not, as interpreted by the courts, relieve the contractor from the exercise of good faith and some diligence in the fulfillment of his contract. The general words, "at the risk of the master and owner," are understood to cover the risk of navigation, and not as giving the owners of the steamboat a license to act negligently and falsely in the business.7 So when the owner shipping goods, releases the carrier "from liability

1 Belger v. Dinsmore, 51 N. Y., 166; Steers v. Liverpool, New York & P. Steam S. Co., 57 N. Y., 1; Magnin v. Dinsmore, 56 N. Y., 168; Cragin v. N. Y. Central R. R. Co., 51 N. Y., 61.

2 Steinweg v. Erie Railway, 43 N. Y., 123; Guillaume v. Hamburgh & Amer. Packet Co., 42 N. Y., 212; Lamb v. Camden & Amboy Co., 46 N. Y., 271; Bostwick v. Baltimore & Ohio R., 45 N. Y., 712.

3 Steers v. Liverpool, N. Y. & Phila. S. Co., 57 N. Y., 1.

• Cochran v. Dinsmore, 49 N. Y., 249.

5 Wells v. N. Y. C. R. Co., 26 Barb., 641; S. C., 24 N. Y., 181; Bissell v. N. Y. C. R. Co., 25 N. Y., 442; Cragin v. N. Y. C. R. Co., 51 N. Y., 61, 64; 166; Lee v. Marsh, 42 Barb., 102; Keeny v. Buffalo & N. Y. & Erie Co., 4 Keyes, 108; 59 Barb., 104; Gallin v. London & N. Western R. Co., 12 English (Moak), 268; Carr v. Lancashire &c. R. Co., 14 Eng. Law and Eq., 340; Austin v. Manchester &c. R. Co., 70 id., 434.

6 Stinson v. N. Y. C. R. Co., 32 N. Y., 333, 337; Perkins v. N. Y. C. R. Co., 24 N. Y., 196; Smith v. N. Y. C. R. Co., 29 Barb., 132; S. C., 24 N. Y., 222.

7 Wells & Tucker v. Steam Nav. Co., 8 N. Y., 375; Alexander v. Greene, 7 Hill, 533; D. & C. Steam Towboat Co. v. Starrs, 69 Penn. St., 36.