this kind, arising from the climate or from the nature of the goods, where his negligence does not contribute to the loss.1

Under a contract for the conveyance and delivery of fruit within a given time, the carrier is held to a rigid performance. Unavoidable accidents will not avail him as a defence, under a contract to carry and deliver within so many days: the rule is not so strict under a general contract to carry and deliver.

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§ 599. The owner or shipper of goods cannot recover of the carrier damages resulting from the imperfect or bad packing of the goods, when delivered for conveyance; and yet the carrier is liable where he might have prevented the damage or loss of the goods by the exercise of reasonable diligence. It is not thought wise to excuse the carrier's negligence on the ground of the shipper's prior negligence, since it often happens that packages and boxes of goods delivered in good condition at the start, are injured or broken on the way, and for that very reason require some increased care in their transportation.5 Receiving the goods imperfectly packed or secured, the carrier is bound for their safe conveyance.

§ 600. A clause in a bill of lading giving the carrier the privilege of reshipping or transshipping the goods, is not interpreted as otherwise modifying or limiting the contract; it is regarded as a privilege conceded to the carrier for the purpose of enabling him to fulfill the con

It is assumed in Davidson v. Gwynne, 12 East, 381, that a carrier is liable for damages to fruit from his neglect of proper ventilation; and the same principle is affirmed in Clark v. Barnewell, 12 How. U. S., 272, where a cargo of cotton thread was injured on a warm southern voyage, from dampness or moisture. Ante §§ 537-542; Rixford v. Smith, 52 N. H., 355.

2 Place v. Union Ex. Co., 2 Hilton, 19; Simpson v. London & North Western R. Co., 45 L. J. Q. B. Div., 182; 1 L. R. Q. B., Div. 174.

3 Harmony v. Bingham, 1 Duer, 209; S. C., 12 N. Y., 99; Higginson v. Weld, 14 Gray, 465; Read v. Hudson & Del. Canal Co., 3 Lans., 213.

4 Gage v. Terrell, 9 Allen, 299; Collier v. Swinney, 16 Mo., 484; Parsons v. Hardy, 14 Wend., 215, 217; 23 Wend., 306.

5 Klauber v. American Ex. Co., 21 Wis., 21; Nelson v. Stephenson, 5 Duer, 538; loss by leakage; Brind v. Dale, 8 C. and P., 207; Rixford v. Smith, 52 N. II., 355; Ohio & M. R. R. v. Dunbar, 20 Ill., 623; Brown v. Clayton, 12 Ga., 563; Pemberton Co. v. N. Y. C. R., 104 Mass., 144; Briggs v. Taylor, 23 Vt., 180; Phillips v. Clark, 5 C. and B. (N. S.), 832; Hudson v. Baxendale, 2 II. and N., 575; The David and Caroline, 5 Blatchf., 266; Barbour v. Southeastern C. Co., 34 L. T. N. S., 67 D. C. A.

Ante § 527; McMillan v. Michigan Southern &c. R. R. Co., 16 Mich., 79; Harmon v. N. Y. &c. R. R. Co., 28 Barb., 323; New Brunswick Co. v. Tiers, 24 N. J. L. (4 Zab.), C97.

tract and deliver the goods at the place of destination.1 It takes effect according to its terms, and is limited by its terms. It does not affect the stipulation fixing the amount of the freight, nor is it usually intended to relieve the carrier from his liability under the contract.3

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Unless there is a contract, express or implied, to that effect, the carrier is not at liberty to convey the goods by a different route, on by a different ship, or by a different mode of transportation, from that specified in the receipt or bill of lading. When an unforeseen event renders it impossible to fulfill the contract by the conveyance specified, or when the vessel on which the goods are shipped becomes disabled on the voyage, and is driven into a port of necessity where it cannot be repaired within a reasonable time so as to proceed on its way, the carrier is bound to use all proper means to fulfill the contract substantially, and as nearly according to its terms as may be practicable. If his vessel is so disabled that it cannot proceed on the voyage, it is the duty of the master to reship the goods by another vessel: and where that cannot be done, or where the goods are in such a damaged condition that they cannot be sent forward without subjecting the owner of them to a great loss, the master is justified in selling the goods, acting under an urgent or inevitable necessity."

Intermediate carriers are sometimes employed to connect different lines of conveyance; being independent carriers, they are liable to the owner for any injury to the goods while under their charge; being employed by the carrier contracting for the safe conveyance of the goods, their engagement is ancillary to his; as where goods are carried in small boats up the rapids of a river, or from the quay to a railroad depot, on a change from water to land carriage. The persons employed in the work are the agents and servants of the carrier, where the trans

'Little v. Semple, 8 Mo., 99; Whitesides v. Russell, 8 Watts & Serg., 44; McGregor v. Kilgore, 6 Ohio, 143; Dunseth v. Wade, 2 Scam., 288.

2 Cassillay v. Young, 4 B. Mon., 265; 8 Bosw., 213; 3 Keyes, 217.

3 Broadwell v. Butler, 6 McLean, 296; Sturgess v. Steamboat Columbus, 23 Mo., 230; Carr v. Steamboat Michigan, 27 Mo., 196; Wilson v. Harry, 32 Penn. St., 270; Hatchett v. Steamer Compromise, 12 La. Aun., 783.

4 Goddard v. Mallory, 52 Barb., 87 ; 45 N. Y., 514; Johnson v. N. Y. Central R. R. Co., 33 N. Y., 610.

5 Williams v. Vanderbilt, 28 N. Y., 217; White v. Mann, 26 Maine, 361; 33 N. Y., G10.

Rogers v. Murray, 3 Bosw., 357; S. C., 30 N. Y., 88; Bryant v. Commonwealth Ins. Co., 13 Pick., 543; New Eng. Ins. Co. v. Brig Sarah, 13 Peters, 387; Chambers v. Grantzon, 7 Bosw., 414; 32 N. Y., G85; 33 N. Y., 43; 49 N. Y., 678; 51 N. Y., 93; Saltus v. Ocean Ins. Co., 12 John. R., 107.

fer is within the scope of his contract.1 The policy of the law does not permit the carrier to relieve himself from responsibility by handing the goods over to irresponsible third parties, who are merely aiding him in the transportation.

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§ 601. The carrier's implied agreement to furnish a roadworthy coach or a seaworthy vessel, is enforced with great steadiness and some severity. It is his first duty to furnish a sufficient and safe conveyance, whether by land or by water. The law implies an engagement on his part that his coach shall be properly constructed and reasonably strong and fit for the work, and that the machinery and appliances used by him in securing or in handling the goods, shall be sufficient for the business in which it is employed; that the vessel employed in the transportation is seaworthy at the commencement of the voyage; and well equipped and manned for the voyage. Unless the vessel is seaworthy when the voyage commences, the owner of it cannot obtain a valid policy of insurance upon it; there being in the contract of insurunce an implied warranty on the part of the owner that the ship shall be seaworthy when the risk commences-that she shall be tight, strong, and in all respects fit for the intended voyage. For the same reason

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1 Hydo v. Trent & Mersey Nav. Co., 5 Term R., 389; Wardell v. Mowsellyan, 2 Esp. R., 693; Garsido v. Trent & Mersey Nav. Co., 4 Term R., 581; Jeremy on Car., 68, 69; 6 Hill, 157; 14 How. U. S., 468.

2 Backhouse v. Sneed, 1 Murph., 173; Lyon v. Mells, 5 East, 428; ante § 551; Dauchy v. Silliman, 2 Lans., 361; 4 Alby. L. J., 13.

3 Philleo v. Sanford, 17 Texas, 227; Smith v. New Haven &c. R. R. Co., 12 Allen (Mass.), 531; as applied in favor of passengers, Hegeman v. Western R. Cor., 13 N. Y., 9; Ingalls v. Bills, 9 Metcalf R., 1; Alden v. N. Y. Central R. Co., 26 N. Y., 103; 31 N. Y., 404; Kopitoff v. Wilson, 1 Q. B., 377.

Camden R. & Tr. Co. v. Burke, 13 Weud., 611, 628; Frink v. Potter, 17 Ill., 406; Redhead v. Midland R., Law Rep. Q. B., 412; Meir v. Penn. R. R., 64 Pa. St., 225.

Dickinson v. Haslett, 3 Harris & J., 345; Bell v. Reed, 4 Binn., 127; Hart v. Allen, 2 Watts, 114; Reed v. Dick, 8 Watts, 480; Collier v. Valentine, 11 Mo., 293; Hollingsworth v. Broderick, 7 Adolph. & Ellis, 40.

6 Putnam v. Wood, 3 Mass., 481; Lyon v. Mells, 5 East, 428. Howard v. Orient Mut. Ins. Co., 2 Robt., 559 ; 4 Daly, 246.

Barnewall v. Church, 1 Caines' R., 217, 233; Talcott v. Com. Ins. Co., 2 John. R., 124, 130; the ship must be properly officered and manned; Draper v. Com. Ins. Co., 4 Duer, 234; S. C., 21 N. Y., 378; whether the vessel insured was seaworthy when the voyage commenced is usually one of fact; Walsh v Washington M. Ins. Co., 32 N. Y., 427. The contract of insurance is to be enforced according to its terms; "at and from New York to Havana," covers a continuous risk, and the policy is rendered void by a preliminary trial trip; Fernandez v. Gt. Western Ins. Co., 48 N. Y., 571; see Brown v. St. Nicholas Ins. Co., 61 N. Y., 332.

a shipper cannot obtain a valid policy of insurance upon the goods or cargo shipped by him, unless the vessel is seaworthy and duly equipped, and manned with a sufficient number of seamen of competent skill and ability to perform the voyage; there being an implied warranty on his part also that the ship shall be seaworthy when the voyage commencer. Conceding that the implied warranty on the part of the owner of the vessel obliges him to keep her in a seaworthy condition in the successive stages of the voyage, as far as practicable, and that the implied war ranty by the shipper of goods on the vessel does not bind him so strictly for acts of omission and bad faith on the part of the master not employed by him there is still ample reason for the rule holding the carrier bound to the shipper on an implied warranty that his vessel is seaworthy, in a contract exempting the carrier from liability for the perils of the sea; and that he will keep her in a seaworthy condition as far as practicable, on the voyage. Accordingly, we find it well settled that the carrier cannot escape liability for losses, under exemptions in the bill of lading, unless he uses reasonable care to guard against them, and keeps his vessel in good condition, and properly equipped for the voyage.1

§ 602. A railway carrier is responsible for the proper construction of its road, bridges, freight-houses, and depots; and is bound to keep them in a suitable and safe condition for business. It owes this duty to tho

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1 Silva v. Low, 1 John. Cases, 184; Law v. Hollingsworth, 7 T. R., 160; Dixon v. Sadler, 5 M. & W., 414; S. C., 8 M. & W., 895; Caddock v. Franklin Ins. Co., 11 Pick., R., 227; Starbuck v. N. Eng. Mar. Ins. Co., 19 Pick., 199; American Ins. Co. v. Ogden, 20 Wend., 287. A policy of insurance against all marine risks, covers barratry by the master and mariners. Parkhurst v. Glouster M. F. Ins. Co., 100 Mass., 301.

2 Brioso v. Pacific Mutual Ins. Co., 4 Daly, 246; Redman v. Wilson, 14 M. & W., 476; Waters v. Merchants' Ins. Co., 11 Peters, 213. In Howard v. Orient M. Ins. Co., Robt., 539, the court, BARBOUR, J., holds that where these facts are found to exist concurrently, the underwriter is exonerated from liability; that is to say: first, where the vessel which is, or contains, the subject matter of the insurance leaves an intermediate port, whether a port of call or of distress, in an unseaworthy condition; second, where such condition is owing to the gross or culpable negligence of the master; and third, where the property insured becomes lost or damaged, because of the particular defect that rendered the vessel unseaworthy, or by some means to which such defect directly contributed.

3 Christy v. Trott, 25 Eng. Law-and Eq., 262.

4 Hazzard v. New Eng. Ins. Co., 1 Sumner, 218; 8 Peters, 557; Backhouse v. Sneed, 1 Murph., 173.

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Requa v. City of Rochester, 45 N. Y., 129, holds that a municipal corporation is bound to keep its streets in a passable and safe condition. See Atlantic M. Ins. Co., 48 Barb., 27; and Stedman v. Western Transp. Co., 48 Barb., 97, relating to the action against a common carrier of goods; 52 Ill., 106; 53 Ill., 227;

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public, where its track passes over or along the highway; and it is quite clear that the duty may be enforced in many situations, under contracts exempting the carrier from liability for specific perils or risks. Under an exemption from losses by fire, a railway carrier could not escape liability for a loss caused by the fall of a badly constructed bridge or by a defective track, overturning or breaking up the train and ending in its destruction by fire.3

A railway carrier must also equip its road with the requisite rolling stock, engines and cars, to satisfy the ordinary demands of its business, so that it may send forward property received for transportation, within a reasonable time. The carrier is bound to procure and empley the requisite facilities; and must make a diligent use of its facilities and means in carrying forward goods, which are always presumed to be on the way to a market.4

4

The railway carrier must also use diligence in the management of its engines, its motive power; and in the running and conduct of its trains, so as to prevent collisions and preserve the property on board against losses and injury from the negligent or bad management of the business.

§ 603. It is proper to observe in this connection, that carriers by water are responsible for the use of skill and diligence in navigation— a rule of great breadth, embracing infinite particulars relating to the movement of their ships or vessels, directing their course and keeping them in the true channel; and requiring the use of all such precautions

59 Me., 415; Brehm v. Great Western R. Co., 34 Barb., 256; Curlio v. Rochester & S. R. Co., 18 N. Y., 534; Gibson v. Erie R. Co., 63 N. Y., 449 ; 62 N. Y., 99, 251; 59 N. Y., C46.

Fash v. Third Avenue R. Co., 1 Daly, 148.

This duty is enforced strict

2 Milton v. Hudson River S. Co., 37 N. Y., 210. ly in favor of passengers: Deyo v. N. Y. Central R. Co., 34 N. Y.,9; Brown v. N. Y. Central Co., 34 N. Y., 404; Bowen v. N. Y. Central R. Co., 18 N. Y., 402. Ante § § 344, 345.

3 Seger v. Town of Barkhamsted, 22 Ct., 290; 1 Cush., 451.

4 Wibert v. New York & Eric R. Co., 12 N. Y., 245; Condict v. Grand Trunk R. Co., 54 N. Y., 500; 20 N. Y., 232.

Siordett v. Hall, 4 Bing. R., C07. There are many decisions enforcing the duty in actions brought by passengers for personal injuries, and by third parties: Johnson v. Hudson R. R. Co., £20 N. Y., C5; Curtis v. Rochester & S. R. Co., 18 N. Y., 534; involving losses to third parties; Fero v. Buffalo & St. Line R. Co., 22 N. Y., 200; Swarthout v. N. J. Steamboat Co., 48 N. Y., 209 ; O'Marra v. Hudson River R. R. Co., 35 N. Y., 445; CO N. Y., 133; 49 Ill., 234; 55 Ill., 194;51 N. Y., 476.

6 Chapman v. N. II. R. R. Co., 19 N. Y., 341; 18 N. Y., 534; Ransom v. N. Y. & Erie R. Co., 15 N. Y., 415; Culhane v. N. Y. C. & H. R. Co., 60 N. Y., 133; Fietal v. Middlesex R. R. Co., 109 Mass., 398.