Under a contract of affreightment the freighter is bound to load a vessel within a reasonable time; and the consignee can only be rendered liable for his neglect, by showing the freighter's authority to bind him by the contract. A detention of the vessel caused by the consignee, delaying the discharge of her cargo, renders him liable in damages; it is a breach of his contract, express or implied, to return the vessel to the general use of the owner in a reasonable time. And one effect of this breach, after the carrier has tendered a delivery and after the lapse of a reasonable time for unloading the vessel, is to reduce the carrier's liability to that of an ordinary bailee for hire.3

§ 594. The master's right to bind the owners of the vessel by contract is limited to the line of his duties and within the fair scope of his employment. He cannot bind them by giving a bill of lading for property not shipped; and he does bind them by such acts and contracts as are fairly covered by his authority as an agent. Encountering obstacles in the prosecution of his voyage, or on the route of the transportation, it is the master's duty to communicate with the owners of the vessel where that is practicable, or with the consignces, where he has the means of doing so, by telegraph, asking for instructions or advice upon the situation. And his failure to fulfill a duty created by the contract, equally with his unauthorized act, such as a misdelivery of the goods, binds the owners of the vessel as carriers.7

§ 595. The law superadds to the stipulations contained in the contract of charter-party, certain duties and obligations incident to the carrier's employment, and it enforces the contract of the parties so as to give it

1 Fisher v. Abeel, 66 Barb., 331; Lockhart v. Falk, 12 English R., 573.

2 Horn v. Bensusan, 9 Carr. and P., 709; Evans v. Foster, 1 Barn. and Ald., 118; Brouncker v. Scott, 4 Taunt., 1.

3 Clendaniel v. Tuckerman, 17 Barb., 184; Bradstreet v. Baldwin, 11 Mass., 229; Hathorn v. Ely, 23 N. Y., 78; 10 Metc., 472; 2 Daly, 454, 473; 2 Keyes, 18; see Western Tr. Co. v. Barber, 56 N. Y., 544, 551.

Grant v. Norway, 10 C. B., C55 ; Coleman v. Riches, 16 C. B., 104, commented upon by Judge SELDEN, in 16 N. Y., 125, 140, and by Judge COMSTOCK, on page 151; Schooner Freeman v. Buckingham, 18 How. U. S., 182; Hubbersty v. Ward, 8 Exch., 330; 18 Eng. Law and Eq., 551; Jessel v. Bath, Law Rep., 2 Exch., 267; seo Armour v. Mich. C. Co., G5 N. Y., 111.

5 Ante § 510. The master should communicate with his principal in a home port, or where he can do so, in all cases of emergency. Gager v. Babcock, 48 N. Y., 154.

6 Bryant v. Commonwealth Ins. Co., 13 Pick., 543; The Convoy's Wheat, 3 Wallace, 225.

7 Zinn v. New Jersey Steamboat Co., 49 N. Y., 442; Guillaume v. Hamburgh & Am. Packet Co., 42 N. Y., 212.

1

effect according to its terms. Where the whole of a vessel is chartered to take a cargo at certain specific rates per ton, if the shipper does not furnish a full cargo, the owner of the vessel is entitled to freight not only for the cargo actually put on board, but also for what the vessel might have carried; deducting what the vessel carned or might have earned by receiving and carrying other goods sufficient to make a full cargo. So, where a vessel is chartered for a voyage, out and home, for an entire sum of money, to be paid on her return home, her return is a condition precedent, to entitle the owner to freight; and if she be lost before commencing the homeward voyage, the owner can neither recover on the charter-party, nor on an implied assumpsit, for the freight of the outward voyage. The parties are bound by the contract; having agreed that the freight shall be paid in one event only, the owners must abide by their agreement. There must be some act of waiver to support an implied assumpsit; such as a voluntary acceptance of the goods at the place of disaster.5

VI. CARRIAGE OF GOODS.

§ 596. The essence of the common carrier's contract is to carry and deliver safely the goods entrusted to him. The manner in which he performs the undertaking, becomes a matter of importance and inquiry only after a loss or injury has been sustained, in consequence of his deviating from the instructions received, or from the terms of his contract. Thus, the master of a vessel is responsible for the safe stowage of goods under deck for if he carries them on deck without the owner's consent, and they are lost by the dangers of the sea, or thrown overboard for the safety of the vessel, the owners of the goods under deck are not bound to contribute to the loss. But the rule does not apply when goods are carried on deck according to the established usage, or with the shipper's knowledge and without objection on his part. The manner of receiv

Duffie v. Hayes, 15 John. R., 327.

2 Heckscher v. McCrea, 24 Wend., 304; Shannon v. Comstock, 21 Wend., 457; Ashburner v. Balchen, 7 N. Y. (3 Seld.), 262.

3 Tennoyer v. Hallett, 15 John. R., 332; Barker v. Cheriot, 2 John. R., 332. 4 Liddard v. Lopes, 10 East R., 529. The courts enforce, they do not make

contracts. Champlin v. Rowley, 13 Wend., 258; S. C., 18 Wend., 187.

5 Case of the Mohawk, 8 Wallace, 153; Home Ins. Co. v. Western Transp., 51 N. Y., 93; The Kathleen, 12 English R. (Moak), 645.

The Paragon, Elwell, Master, Ware, 322; Dodge v. Bartol, 5 Greenl. R., 285; Lenox v. U. S. Ins. Co., 3 John. Cas., 178; contra under usage: Harris v. Moody, 30 N. Y., 235.

7 Price v. Hartshorn, 44 Barb., 655; 44 N. Y., 94; 30 N. Y., 266; Gould v. Oliver, 4 Bing. N. C., 134; Crosby v. Fitch, 12 Conn., 410.

ing and transporting goods may be, and is often regulated by the contract; leaving the carrier under obligation to use skill and diligence in the mode of transportation agreed upon.2

3

The carrier is answerable for the proper stowage of the cargo with a view to the protection of each parcel or kind of goods from injuries likely to result from other parcels, or from the motion of the ship. He is bound to use prudence and skill, and stow the goods in the usual and approved manner; and yet cannot escape liability for injuries caused by the goods of other parties, received in bad condition, on proving that the goods were stowed in the usual manner. His duty to lade the vessel and safely carry and deliver the goods, renders him answerable for the use of all expedient means to that end.5

§ 597. The carrier must consider the nature of the goods, and must observe the instructions given him, with respect to the mode of placing and carrying fluids, and boxes containing glass, crockery and like articles. He must carry goods in the manner directed, or show that the loss did not happen in consequence of his neglecting to observe the instructions accompanying them. A box containing a glass bottle filled with the oil of cloves, delivered to a common carrier and marked "glass, with care, this side up," is a sufficient notice of the value and nature of the contents, to charge him for the loss of the oil, occasioned by his disregarding the direction. The form of a package often indicates its contents; and when it does not, the shipper should notify the carrier of its contents, so that he may take proper care of the goods.

It is the shipper's business to have the goods properly and securely packed for the voyage; but his failure in this will not relieve the carrier from liability for a loss arising from his failure to use due and reasonable diligence to preserve the goods. Neither will an exception of leakage or breakage in the bill of lading, relievo the carrier from liability

1 Empire Tansp. Co. v. Wallace, 63 Penn. St., 302; 8 Amer. R., 178; 45 N. Y., 514.

2 Empire Transp. Co. v. Wamsutta Oil Co., 63 Penn. St., 14.

3 Blaikie v. Steambridge, 6 C. B. (N. S.), 894; Idem, 911; Sack v. Ford, 13

C. B. (N. S.), 90; Lamb v. Parkman, 1 Sprague, 343.

4 The Bank of Cheshire, 2 Sprague, 28; Brass v. Maitland, 6 Ellis and Black., 470; 36 Eng. Law and Eq., 221, 227; The David and Caroline, 5 Blatchf., 266. Clark v. Barnwell, 12 How. U. S., 272.

6 Wiltz v. Morrell, 66 Barb., 511; Johnson v. N. Y. Central R. R. Co., 33 N. Y., 610.

Hastings v. Pepper, 11 Pick. R., 41.

In re Webb, 6 Scott N. R., 956.

9 Phillips v. Clark, 5 C. B. (N. S.), 882; Nelson v. Woodruff, 1 Black., 156 ; 5 Blatchf., 266.

for losses thus arising by his negligence or that of his servants; it does not of itself relieve him from the burden of showing how the loss occurred and that he used due care and vigilance. Having proved a loss within the terms of the exception, with the circumstances, showing that he was not at fault, or consistent with his duty in the premises, he is entitled to the benefit of the stipulation in the contract.2 If a cask of wine be shipped under a bill of lading exempting the carrier from loss by leakage, he does not bring himself within the exemption by proving a delivery of the empty cask, in a sound condition; he must prove that the loss occurred by leakage.3

§ 598. Exemptions from liability in the bill of lading do not, as we have seen, excuse a carrier for a loss, where it appears or is found as a fact, that his negligence in stowing or carrying the goods, occasioned the loss. If a ship mect with a collision on the voyage, a peril excepted in the bill of lading, wetting the cargo, and the vessel is delayed for repairs, it is the carrier's duty to take active measures, where it is reasonably practicable under all the circumstances, to check and arrest the loss or deterioration resulting, and likely to result from the accident.5

1 Steele v. Townsend, 1 Ala. Sel. Cas., 201; 27 Ala., 247; Reno v. Hogan, 12 B Mon. (Ky.), 63; Zung v. Howland, 5 Daly, 136; see Nicholas v. N. Y. C. & H. R R. R. Co., 4 Hun, 327; 51 N. Y., 61; Arend v. Liverpool, N. Y. & P. Steamship Co., 6 Lansing, 457.

2 R. R. Co. v. Reeves, 10 Wallace, 176; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344; French v. Buffalo R. R. Co., 4 Keyes, 103; Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y., 271, 278; 4 Hun, 327; Farnham v. Camden &c. R. R. Co., 55 Pa. St., 53.

3 Arend v. Liverpool, N. Y. & P. S. Co., 6 Lansing, 457; where a portion of the contents is lost by leakage, the consignee should receive the residue; Howe v. O. & S. R. R. Co., 56 Barb., 121. While it is for the carrier to account for any deficiency in the cargo; Hawkes v. Smith, Car. & M., 72; or to show that the damage arose in part from bad packing; Higginbotham v. Great Northern R. Co., 2 F. & F., 796; or to show that a loss by leakage arose from some defect in the cask; Hudson v. Baxendale, 2 H. & N., 575; it is to be left to the jury, on the testimony, to find whether the loss arose from defects in the casks, and whether the carriers knew or ought to have known thereof, and had acted negligently in sending them on in that state. Cox v. London & Northwestern R. Co., 3 F. & F., 77.

4 Camoys v. Scurr, 9 Carr. & P., 333. (S. C.), 262; Spencer v. Daggett, 2 Vt., 92; (Ala.), 133.

Steamboat Co. v. Bason, Harp. Jones v. Pitcher, 1 Stew. and P.

Tronson v. Dent, 8 Moo. P. C., 419, relating to a cargo of opium; Notara v. Henderson, 1 English (Moak), 269; Law Rep., 72, B. 225, relating to a cargo of beans. See also Chouteaux v. Leach, 18 Penn. St., 224; Blocker v. Wittenburg, 12 La. Ann., 410; Propeller Niagara v. Cordes, 21 How. U. S., 7; Bird v. Cromwell, 1 Mo., 81; as to delay in receiving goods, see 28 N. Y., 72.

Being bound to take active measures to preserve the property, the carrier is entitled to recover the reasonable expenses incurred by him in doing so. He is not bound to delay his voyage unreasonably, and he is bound to use all reasonable means, such as a prudent owner being present would take, to save the property from loss by natural causes.2

Inattention to the contents of boxes received by him, and receipted as containing perishable freight, will not relieve him from liability therefor, where his vessel is detained by a fog and he omits to send them foward by rail, a mode of conveyance previously used when his vessel was detained; as where dressed poultry was shipped on a steamboat for New York, packed in ice, and was greatly injured by the delay, the ice melting and leaving the freight to perish by decay.3 So where on a voyage goods are accidentally wet and thereby exposed to injury, the carrier is bound to use every reasonable means to arrest and prevent the damages likely to result from the accident. Under the rule as held in some of the States, the carrier may relieve himself of this obligation by a special contract;5 not so, under the rule as held in others and sustained by the U. S. Supreme Court."

The carrier is not liable for losses or deterioration resulting from natural causes, or from the nature of the goods, without fault on his part; as where a cargo of vegetables or fruit is injured by natural decay, consequent upon a long voyage or the vessel's delay by reason of being driven under stress of weather out of her course, and detained in a foreign port for repairs; or where a cargo of lard is greatly diminished by leakage caused by heat in passing through a warm climate; or where an article like wine or molasses is injured or lost on the voyage by fermentation." The carrier is not required to answer for losses of

1 Great Northern R. Co. v. Swoffeld, 8 English (Moak) R., 567; Law Rep., 9 Exch., 132; a horse stabled to wait for the owner.

2 Rogers v. Murray, 3 Bosw., 357, 365; Steamboat Lynx v. King, 12 Mo., 272; 1 Hilton, 235; 30 N. Y., 88.

3 Peck v. Weeks, 34 Ct., 145.

4 Bird v. Cromwell, 1 Mo., 58, 81; Ewart v. Street, 2 Bailey (S. C.), 157; Chouteaux v. Leech, 6 Harris, 224.

Nicholas v. N. Y. C. & H. R. R. Co., 4 Hun., 327; on the authority of Cragin v. N. Y. Central R. R. Co., 51 N. Y., 61.

6 Railway Company v. Lockwood, 17 Wallace, 366.

Ship Howard v. Wessman, 18 How. U. S., 231; The Brig Collenberg, 1 Black (U. S. R.), 170.

Nelson v. Woodruff, 1 Black, 156, relates to a loss on a voyage from New Orleans to New York.

9 Warden v. Geer, 6 Watts, 424; Farrar v. Adams, Buller, N. P.-; seo Nelson v. Stephenson, 5 Duer, 538.