way. Considering the general course of business, and the frequent changes made, and combinations entered into, for the transportation of freight, it is hardly reasonable to imply a presumption in favor of one, rather than another form of contract. An agreement to carry and deliver to the next carrier, in a continuous and connected line, binds according to its terms; the carrier fulfills his contract by carrying and delivering the goods according to his agreement. And the contract is the same in substance, where a carrier receives goods marked for a point beyond his line and engages to forward them from the terminus of his route. The custom of each carrier to collect the freight already earned of the next carrier to whom the goods are delivered, along the extended line of transit, assumes the separate liability of each company. And so does the fact that the first carrier receives from the shipper freight over his line alone. A contract to carry beyond his route, is not to be presumed; it must be proved."

8

An agreement fixing the freight at one sum over the entire line does not make it a through contract; nor does a payment of the entire freight in advance; nor does the circumstance that the receiving carrier unites with other lines in the use of a common warehouse (elevator), dividing the expense of transshipment and also the freight earned on goods carried

1 These cases favor the presumption of a through contract: Converse v. Norwich & N. Y. Tr. Co., 33 Ct., 166; Peet v. Chicago & N. R., 19 Wis., 118; Nashua Lock Co. v. Worcester & N. R. R. Co., 48 N. H., 339; Krender v. Woolcott, 1 Hilton, 223; Lamb v. Camden & Am. R. & Tr. Co., 2 Daly, 454, 481; Foy v. Troy & B. R. R. Co., 24 Barb., 382; I. C. R. R. Co. v. Frankenberger, 54 Ill., 83; and these cases do not: Nutting v. Conn. R. R., 1 Gray (Mass.), 502; Burroughs v. N. & W. R. Co., 100 Mass., 26; F. & M. Bank v. C. Tr. Co., 23 Vt., 209; Root v. Great Western R. R. Co., 45 N. Y., 524; Reed v. U. S. Ex. Co., 48 N. Y., 462; Schneider v. Evans, 25 Wis., 241; Bennett v. Filyaw, 1 Flor., 403; Kyle v. Laurens Railw., 10 Rich. (S. C.), 382; Ill. Central R. R. v. Copeland, 24 Ill., 332, 389; Hood v. New York & N. H. R., 22 Conn., 1, 502.

2 Babcock v. L. S. & M. S. R. Co., 49 N. Y., 491; Hinckley v. N. Y. C. & H. R. R. Co., 56 N. Y., 429; Am. Ex. Co. v. Second N. Bank, 69 Penn. St., 394.

3 Simkins v. N. & N. L. St. Co., 11 Cush., 102; 56 N. Y., 429.

4 Shelton v. Merchants' Dis. Traus. Co., 59 N. Y., 258.

5 Darling v. Boston & W. R. Co., 11 Allen, 295.

6 Nutting v. Conn. River R. Co., 1 Gray, 502.

7 Gray v. Jackson, 51 N. H., 9; S. C., 12 American R., 1, and note 40. Etua Ins. Co. v. Wheeler, 49 N. Y., 616; Lamb v. Camden & Amboy R.

& Tr. Co., 46 N. Y., 271; Cin., Ham. & Dayton, and D. & M. R. R. Co., 19 Ohio St., 221; Schneider v. Evans, 25 Wis., 241; 4 Lans., 446; 59 N. Y., 637.

9 Washburn & M. M. Co. v. Providence & W. R. Co., 113 Mass., 490; see Nashua Lock Co. v. Worcester & N. R. R. Co., 48 N. H., 239.

over the entire line. It serves the general convenience, to adopt the natural presumption, that each carrier in a connecting line is responsible for the safe transportation of goods over his own route.2

§ 582. The law takes care that property in the hands of a connecting line of carriers shall remain throughout the transit under the strict protection secured to the owner at the point of departure. When the contract covers the entire route, the first carrier is responsible for the goods until they are delivered to the consignee, or stored for his benefit at the place of destination. When not delivered under a contract of this kind, the carrier receiving the goods is answerable for them until he places them in the custody of the next carrier, and he until he passes them over to the next, and so onward until they reach the consignee. The obligation to convey the goods safely, is not a whit more imperative than the duty to deliver them. In fact it would appear from the decisions that the law draws the line of duty quite strictly upon the carrier at these points of transshipment along the route. It holds each carrier liable until he completes the act of delivery to the next intermediate carrier, and the last in the line until he delivers the goods to the consignee, or does some equivalent act by which his responsibility is reduced to that of a warehouseman. The ground of the rule is thus stated by Judge Smith: "The owner loses sight of his goods when he delivers. them to the first carrier, and has no means of learning their whereabouts till he or the consignee is informed of their arrival at the place of destination. At each successive point of transfer from one carrier to another, they are liable to be placed in warehouses, there perhaps to be delayed by the accumulation of freight or other causes, and exposed to loss by fire or theft, without fault on the part of the carrier or his agents. Superadded to these risks, are the dangers of loss by collusion, quite as imminent while the goods are thus stored at some point unknown to the owner as while they are in actual transit. As a general rule the storing under such circumstances should be held to be a mere accessory to the transportation, and the goods should be under the protection of the rule which makes the carrier liable as an insurer, from the

'Etna Ins. Co. v. Wheeler, 49 N. Y., 616; Barter v. Wheeler, 49 N. H., 9. 2 Burroughs v. Norwich &c. R. R. Co., 100 Mass., 26; 45 N. Y., 622; 27 Wis., 81, 541; 31 Wis., 619.

3 Miller v. Steam Nav. Co., 10 N. Y., 431; Goold v. Chapin, 20 N. Y., 259; Ladue v. Griffith, 25 N. Y., 364; ante §§ 339, 340; Barter v. Wheeler, 49 N. H., 9.

4 Mills v. Michigan Central R. R. Co., 45 N. Y., 622; Hooper v. Chicago & N. R. Co., 27 Wis., 81; Wood v. Milwaukee & St. Paul R. Co., 27 Wis., 541; Conkey v. Milwaukee & St. Paul R. Co., 31 Wis., 619; 11 Amer. R., 630; Mc Donald v. Western R. Cor., 34 N. Y., 497.

time the owner transfers their possession to the first carrier till they are delivered to him at the end of the route." 1

§5S3. A through contract binds the company making it, irrespective of the means to be used in its fulfillment. When the bill of lading given by the first carrier, by a fair construction, imports a contract to carry over the whole line and deliver the goods at the place of destination, it must be enforced according to its terms; the exemptions contained in it apply to the whole route; 3 and the contracting carrier must fulfill the stipulations on his part. The carrier's contract to forward the goods from the terminus of his line, is construed literally, as an engagement to send them forward; while a carrier's contract in general terms to forward goods or packages having an address upon them indicating the place of destination, has been construed, in connection with a general arrangement between the connecting lines, as an agreement to carry and deliver at the place indicated by the address."

The shipper of goods under a through contract has nothing to do with the contracting carrier's arrangement with the companies forming the connecting line. There is no privity between him and the other parties to the arrangement. He has a right to rely on the contract.

These through contracts cannot be made without authority; but the authority of an agent to give through bills of lading may be proved by showing that he was supplied by the carrier with printed bills of that kind, or that he agreed upon and received the amount of freight to the place of destination and executed the usual contract.'

A through contract may be proved by circumstances; e. g., by show

1 Fenner v. Buffalo & State Line R. R. Co., 44 N. Y., 505.

2 Mercantile M. Ins. Co. v. Chase, 1 E. D. Smith, 115; Reed v. Spaulding, 5 Bosw., 395, 404; S. C., 30 N. Y., 630.

3 Railroad Co. v. Androscoggin Mills, 22 Wallace, 594; Maghee v. Camden & Amboy R. R. Co., 45 N. Y., 514.

4 Burtis v. Buffalo & State Line R. Co., 24 N. Y., 269; Noyes v. Rutland & B. R., 27 Vt., 110; 40 N. Y., 168; 104 Mass., 122.

5 Reed v. U. S. Ex. Co., 48 N. Y., 462; Am. Ex. Co. v. Second National Bank, 69 Penn. St., 394; Burroughs v. Norwich & W. R. Co., 104 Mass., 26; Gray v. Jackson, 51 N. H.,

9.

6 Nashua Lock Co. v. Worcester & N. R. R. Co., 48 N. H., 339; Ill. C. R. Co. v. Frankenberg, 54 Ill., 83; Cuts v. Brainerd, 42 Vt., 566,

7 Condict v. Grand Trunk R. Co., 4 Lansing, 103; S. C., 54 N. Y., 500; King

v. Macon & Western R. R. Co., 62 Barb., 160.

8 Wait v. Albany & Susq. R. Co., 5 Lans., 475; Burroughs v. Norwich &c. R. R. Co., 100 Mass., 26.

9 Condict v. Grand Trunk R. Co., supra; Krender v. Woolcott, 1 Hilton, 223. La Sage v. Great Western R. Co., 1 Daly, 306; 22 Wallace, 123, 131; Goodrich v. Thompson, 44 N. Y., 324.

ing that the receiving carrier had an arrangement with other lines for the transportation of through freight, and that he advertised and held himself out to the business community as engaged in carrying freight between two given points, over connecting roads or lines of transportation, charging a single freight for the entire distance; and that he received the goods in question with that understanding.1

§ 584. A verbal contract to receive and carry goods is valid, and may consist with a receipt afterwards given for a parcel of goods. After the verbal agreement has been acted upon and rights have accrued under it, it is not merged in a bill of lading sent to the shipper and through inadvertence not examined by him.3 But where the shipper, on delivering the property, takes from the carrier a bill of lading or other voucher expressing the terms upon which the property is to be carried, the writing is under ordinary circumstances to be taken as the final agreement between the parties; excluding parol evidence to vary its terms; and not excluding proof of instructions respecting the mode or route of transportation, in harmony with its language; and not excluding proof of the customary mode of delivering goods and taking for them receipts, to be afterwards supplemented by bills of lading."

The usual bill of lading partakes of a two-fold character; it is both a receipt and a contract. It is a receipt specifying the articles taken on board of a vessel; and it is a contract to deliver the same at a certain place and to a certain party. So far as it is a receipt, it is open to explanation; and so far as it is a contract, it cannot be varied by parol testimony. Originally the term, bill of lading, was used as descriptive only of the ship carrier's contract; recently, it is coming to be used as equally descriptive of a land carrier's contract.9

8

1 Root v. Great Western R. R. Co., 45 N. Y., 524; Railroad Co. v. Pratt, 22 Wallace, 123, 131; Irwin v. N. Y. Central R. Co., 1 N. Y., Sup. Ct. (T. and C.), 473; S. C., 59 N. Y., 653, White Line.

2 Blossom v. Griffin, 13 N. Y., 569.

3 Bostwick v. Balt. & Ohio, 45 N. Y., 712; Hill v. Syracuse, B. & N. Y. R. R. Co., 8 Hun, 295; Coffin v. N. Y. C. R. R. Co., 64 Barb., 379; S. C., 56 N. Y., 632. 4 Long v. N. Y. C. R. R. Co., 50 N. Y., 76; 62 N. Y., 171.

White v. Ashton, 51 N. Y., 280; Hinckley v. N. Y. Central & H. River R.

R. Co., 56 N. Y., 429.

6 Maghee v. Camden & Am. R. R. Co., 45 N. Y., 514, 522.

7 Shelton v. Merchants' Dispatch Trans. Co., 59 N. Y., 259.

Edwards on Factors and Brokers, § 6; Meyer v. Peek, 28 N. Y., 590; effect

of clause "quantity guaranteed;" Bissel v. Campbell, 54 N. Y., $53.

9 Here is the old form of the Bill of Lading, as given by Abbott on Shipping, Part 4, ch. 4, 7th ed.

"J. W.,

No. 1 a 20. SHIPPED, by the grace of God, in good order, by A. B., merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river Thames, and bound

§ 585. The receipt embodied in a bill of lading, stating the property to have been received or shipped in good order, is prima facie proof of its condition, as received by the carrier; and of the quantity, as specified in it. Though not conclusive as to the amount, the carrier may bind himself by agreement to deliver the amount specified;3 and the receipt itself may bind him in favor of a party who acquires title to the goods while they are in transit.4

The receipt takes effect according to its terms. Given for a sealed package," said to contain" or without specifying the contents, it is evidence only of the receipt of the package; and it rests with the shipper to prove the contents and value.5 The whole statement, including like phrases, is to be read together.

8

§ 586. The exception in a bill of lading is an essential part of the agreement, and must be stated in a complaint on the contract; and the plaintiff must allege a breach by the defendant, of the agreement as qualified by the terms of limitation. And where the plaintiff bases his action on the carrier's common law liability, it is proper for the defendant to set up the contract in his answer, and give a copy of it; and then allege that the goods were lost by accidents or casualties covered by the exception contained in the bill of lading."

From an early day carriers by water have been accustomed to stipulate for exemption from liability arising from the perils of the sea;

for Barcelona in Spain, twenty bales, containing one hundred pieces of broadcloth, marked and numbered as per margin; and are to be delivered in the like good order and condition at Barcelona aforesaid (the dangers of the seas excepted) unto E. F., merchant there, or to his assigns, he or they paying for the said goods per piece freight with primage and average accustomed. In witness whereof the master or purser of the said ship hath affirmed to three bills of lading of this tenor and date, one of which bills being accomplished, the other two to stand void. And so God send the good ship to her destined port in safety."

1 Price v. Powell, 3 N. Y., 322; Ellis v. Willard, 9 N. Y. (5 Seld), 529; Great Western R. v. McDonald, 18 Ill., 172.

2 Myer v. Peek, 28 N. Y. 590; Strong v. Grand Trunk R., 15 Mich., 206.

3 Bissel v. Campbell, 54 N. Y., 353.

4 Hastings v. Pepper, 11 Pick., 43; Dows v. Perrin, 16 N. Y., 325; Berkley v. Watkins, 7 Adol. and Ellis, 29; 48 How. Pr., 119.

* Fitzgerald v. Adams Ex. Co., 24 Ind., 447; Dunn v. Branner, 13 La. Ann., 452; The Columbo, 19 Law Rep., 376; 3 Blatchf. C. C., 524.

6 Kelly-v. Bowker, 11 Gray, 428; Shepherd v. Naylor, 5 Gray, 591; Clark v.

Barnwell, 12 How., 272; Bissel v. Price, 16 Ill., 408.

7 Cope v. Cordova, 1 Rawle, 203.

8 Spence v. Chadwick, 10 Q. B., 517; Howland v. Greenway, 22 How. U. S., 491; Morrison v. Davis, 20 Penn. St., 171.

9 Dorr v. N. J. Steam Nav. Co., 11 N. Y., 485, 486, 491; see Gleadell v. Thomson, 56 N. Y., 194.