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and safeguards, to insure a prosperous voyage, as are suggested by science and experience. When the vessel is propelled by steam, a high degree of skill must be used in the management of the boilers and machinery; namely, that degree of skill and vigilance which may be reasonably expected from a competent and prudent engineer. The boiler, used in a vessel employed in navigating the waters of the United States, must be constructed of approved material, examined and certified in compliance with the requirements of the statute; and it must be entrusted to the care and management of competent men. A failure to comply with the statute law will raise a presumption of negligence against the carrier; and yet a compliance with the terms of the statute. will not relieve him from liability for losses imposed upon him by the common law, on the ground of his negligence.3

The carrier is bound to know the channel, and is liable for injuries caused by the stranding or wreck of his vessel upon well known sandbars, rocks, shoals and other like obstructions. Carrying goods without any limitation upon his common law liability, he is bound to follow the . true channel, even under circumstances of difficulty and danger; and is liable for the loss ensuing from his failure to do so, unless it can be justly attributed to inevitable accident without human intervention ;1 as it may be, where without fault on his part, the vessel is driven by a violent storm on the beach, rocks or shoals. Entering or leaving a harbor, or on a river, the master not being acquainted with the channel, it is his duty to take a pilot on board, where that is the established law or usage; and if he neglect this means of safety, he must answer for the consequences. Under the common law, the pilot taken on board,

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Steamboat New World v. King, 16 How. U. S., 469, asserting the rule in favor of a passenger; also Caldwell v. New Jersey S. Co., 47 N. Y., 282; and Loop v. Litchfield, an action against the manufacturer, 42 N. Y., 351.

2 R. S. of U. S., 857, 861-855. By the U. S. statute of 1833, § 13, the bursting of a boiler, or the collapse of a flue, or other injurious escape of steam, is prima facie evidence to charge the defendant with negligence in an action for injury to property.

3 Swarthout v. N. J. Steamboat Co., 46 Barb., 222; S. C., 48 N. Y., 209; 56 Barb., 425; 47 N. Y., 282.

Elliott v. Russell, 10 John. R., 1; McArthur v. Sears, 21 Wend., 190; Ross v. English, 2 Speer, 393; Boyle v. McLaughlin, 4 Harris & J., 291.

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This exception is implied in all the cases; Price v. Hartshorne, 44 Barb.,.

7 Williams v. Grant, 1 Conn., 487; Fergusson v. Brent, 12 Md., 9; M’Millan v. U. Ins. Co., 1 Rice, 248; Keeler v. Fireman's Ins. Co., 3 Hill, 230; The William, 6 Rob. Adm., 316; State laws on the subject valid: Cisco v. Roberts, 36 N. Y., 292.

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becomes the agent of the carrier; and though it has been questioned whether the carrier, compelled by law to accept a licensed pilot, is answerable for his acts; it is quite clear that the carrier is bound to follow the course usually pursued by skillful pilots in passing a bar or dangerous place on the river. IIe is responsible for the skillful navigation of the vessel.2

§ 604. Does the exception cover the loss? A common carrier is responsible for the goods entrusted to him, unless the same are lost or damaged by agencies for which the law does not hold him answerable, or by means for which the contract does not hold him bound. The goods having been lost or destroyed, under circumstances not bringing the loss under either of the exceptions created by law, the carrier is liable for them unless he shows that the loss was caused by dangers or perils for which he did not become answerable; in other words, after a loss is shown, the next inquiry is, whether it comes under the terms of exception contained in the contract.3 And unless it does come within the exception, the carrier is liable. We have already considered many of these exceptions, and the effect of them, in the carrier's contract. § 605. On the axiom that the greater includes the less, the carrier is liable for all losses by thefts committed by strangers, and for embezzlement by the master or crew. It is not necessary to show that the carrier was himself guilty of negligence; he engages for the safety of the goods, against force, violence and fraud; and he is liable for them when, being provisions, they are consumed by the passengers, as the only means of subsistence left to them on a prolonged voyage. On account of his liability for losses by the misconduct and fraud of the master,

1 Yates v. Brown, 8 Pick., 23; Williamson v. Price, 16 Martin, La., 399; Snell v. Rich, 1 John., 305; Denison v. Seymour, 9 Wend., 9; see Atty. Gen. v. Case, 3 Price, 302; Mackintosh v. Slade, 6 B. & C., 657.

2 Collier v. Valentine, 11 Mo., 299, 310; Ready v. Steamboat Highland Mary, 17 Mo., 461.

3 Watkinson v. Laughton, 8 Joha., 213; Merritt v. Earle, 31 Barb., 38; S. C., 29 N. Y., 115; 52 Barb., 489; 45 N. Y., 514; 12 N. Y., 99; 48 N. Y., 655. Ante § 597.

4 An insurance company having paid a loss by fire, on goods in a carrier's hands without any contract of exemption, may recover of the carrier: Etna Ins. Co. v. Wheeler, 5 Lans., 480; S. C., 49 N. Y., 616. Ante §§ 552-568, 586-590.

Schieffelin v. Harvey, 6 John., 107; Morse v. Slue, 1 Vent., 190, 238; Ely v. Ehle, 3 N. Y., 506, 509.

6 Forward v. Pittard, 1 T. R., 27; Barclay v. Cuculla y Gana, 3 Douglas, 389; Watkinson v. Laughton, 8 John., 213. Ante § 547.

7 Moses v. Sun M. Ins. Co., 1 Duer, 159.

the ship-carrier is allowed to obtain an insurance on the vessel and cargo against losses by thieves or by the barratry of the master, or the master and crew; and the underwriters must then answer for their thefts and pilferings, and for thefts by outside parties, under this most remarkable contract of moral insurance.1

§ 606. When a common carrier, c. g., an express company, reccives goods to carry from one city to another and is paid the freight for the entire distance, and itself contracts with other carriers for the transportation of the goods in bulk, and sends its own agent in charge of the goods, the actual carriers furnishing the conveyance are liable to the owner for losses resulting from a failure in due care and diligence, or from wrongful acts committed by themselves or by their agents and servants; but the owner, having agreed with and delivered the goods to the express company, can only recover against the carrier employed by it, in virtue of and upon the contract between the two companies.3 The express company under this contract for the conveyance and delivery of the goods, is more than a forwarder; it is a common carrier; and its contract does not usually specify the route or mode of conveyance, but leaves the company free to fulfill its agreement in the usual manner.5

§ 607. It sometimes happens that a common carrier is entrusted with some agency relating to the goods carried by him; as where he is to carry the goods to market and sell them and bring back the proceeds, the freight covering the whole service. Here he is liable for the money as a carrier, on the return trip, and from the time he receives it. When the master of a vessel is made the consignee of a cargo for sale and returns, the ship-owners receiving the freight, and the master commissions for his trouble, the master acts as the agent of two distinct principals; namely, as the agent of the ship-owners in stowing, carrying and delivering the goods, and as the agent of the shipper in making sales and returns. It depends upon the understanding of the parties, or upon the general custom, whether the master is to be considered as

1 Kendrick v. Delafield, 2 Caines, 67; Amer. Ins. Co., of N. Y. v. Bryan, 1 Hill, 25; S. C., 26 Wend., 563. Ante § 589; Atkinson v. Great Western Ins. Co., 65 N. Y., 531. 2 Stoddard v. Long Island R. Co., 5 Sandf., 180; Merchants' Bank of Boston v. N. J. Steam Nav. Co., 6 How. U. S., 344; Merrick v. Brainard, 38 Barb., 574. 3 The express company may act as a mere forwarder; Goodrich v. Thompson, 4 Robt., 75; S. C., 44 N. Y., 324.

4 Belger v. Dinsmore, 51 N. Y., 166.

See White v. Ashton, 51 N. Y., 280.

• Kemp v. Coughtry, 11 John. R., 107.

'Williams v. Nichols, 13 Wend., 58; see also Labar v. Taber, 35 Barb., 305.

Charged by the bill delivering goods, the

acting for himself or for the owners of the vessel. of lading with the duty to collect back freight, on owners of the vessel are liable for his neglect. The general custom justifies a forwarder, as it does one carrier receiving goods from another, in advancing the freight already earned and collecting the whole freight on delivery of the goods to the consignee.1

When a carrier, an express company, receives a package of goods with instructions to collect, or marked C. O. D., specifying the amount in money, it assumes the duty of carrying and delivering the goods and collecting the amount specified; it acts as a common carrier; 2 it discharges its duty in the same manner as other carriers; 2 and it assumes the further duty of collecting the money pursuant to the order endorsed upon the package.3 Receiving notes and bills of exchange for conveyance, and for collection at a distant point by suit, the company must fulfill the terms of the entire contract; it must follow the directions received with the securities, and have them put in suit without delay. It is liable as a collecting agent.5

§ 608. We have alluded to the carrier's duty to carry forward the goods received by him, with diligence and dispatch. By implication of law and without any special agreement on the subject, he is bound to transport and deliver the goods within a reasonable time. What shall be deemed reasonable time, must evidently depend very much upon the circumstances of the case, and the causes interrupting the voyage, or delaying the arrival of the carrier. The freezing of the river, or of the canals, may delay him until the opening of the navigation in the spring. Stress of weather may compel him to stop by the way for repairs. An embargo may suspend his duty until it is removed by some act of gov ernment. In these and like cases the carrier is excused for the reasonable and necessary delay to which he is subjected; he is not discharged from his duty as a carrier.

Being arrested by the ice without any fault on his part, he is bound on the opening of the navigation to proceed with diligence to complete

1 Lee v. Salter, Hill and Denio, 163; Davison v. City Bank, 57 N. Y., 81, and cases there cited. Monteith v. Kirkpatrick, 3 Blatchf., 279; Bissel v. Price, 16 Ill., 408; 37 Barb., 236. The course of business, i. c., a general custom, is considered in determining the contract or understanding of the parties: Cooper v. Kane, 19 Wend., 386; Dawson v. Kittle, 4 Hill, 107.

2 Weed v.

Barney, 45 N. Y., 344 ; Van Winkle v. Adams Ex. Co., 3 Robt., 59. 3 Collender v. Dinsmore, 55 N. Y., 200; Tooker v. Gormer, 2 Hill, 71. 4 Palmer v. Holland, 51 N. Y., 416; Frank v. Adams Ex. Co., 18 La. Ann.,

Holt v. Ross, 54 N. Y., 472.

the transportation, and deliver the goods. Being arrested by an embargo or delayed by some act of government, suspending but not dissolving the contract, his duty revives as soon as the cause of the interruption is removed; and he must fulfill the contract.2 If his vessel be injured by the perils of the sea, and remain capable of being made seaworthy within a reasonable time, he is bound to repair and proceed on his voyage with no unnecessary delay.3

An interruption of the navigation by freshets or by low water will excuse delay, under the usual or implied contract, so long as it continues; and it will not excuse a delay where the contract prescribes the time for the transportation and delivery of the goods.

In the absence of any agreement fixing the time within which the goods are to be carried forward, the carrier is entitled to what may be deemed a fair and reasonable time, considering the usual course of the business, and the actual circumstances existing at the time the property is received for transportation.5 There being no cause for delay, it must be sent forward presently, with all reasonable expedition.

§ 609. The carrier receiving goods with orders to ship immediately, is answerable for them from the time of their receipt; and pending any necessary delay. Does his agreement to carry and deliver without delay, increase his liability? It would seem not, since that is no more than a promise to fulfill the duty imposed upon him by law. And yet the carrier may bind himself by a special contract to carry forward the

1 Bowman v. Teal, 23 Wend., 306; Parsons v. Hardy, 14 Wend., 215; 4 Blackf. R., 250.

* Hadley v. Clark, 8 Term R., 259; Evans v. Hutton, 5 Scott's New R., 670; Palmer v. Lorillard, 16 John., 348.

3 Herbert v. Hallett, 3 John. Cases, 93, 533.

♦ Wallace v. Vigus, 4 Blackf. (Ind.), 260; Harmony v. Bingham, 12 N. Y., 99. The principle is the same as it is where the navigation is interrupted by tho freezing of the canals or rivers: Parsons v. Hardy, supra; and Bowman v. Teall,

supra.

5 Stedman v. Western Transp. Co., 48 Barb., 97; ante § 602; Raphael v. Pickford, 6 Scott's New R., 478.

6 Wibert v. N. Y. & Erie R. R. Co., 12 N. Y., 245; Michaels v. N. Y. Central R. R. Co., 30 N. Y., 564; Read v. Spaulding, 30 N. Y., 630; Raphael v. Pickford, 2 D., N. S., 916; 5 M. and G., 551; 6 Scott's N. R., 478; Hales v. London & Northwestern R. Co., 4 B. and S., 66.

Clark v. Needles, 25 Penn. St., 338; O'Neil v. N. Y. C. & H. R. Co., CO N. Y., 138.

• Western &c. Co. v. Newhall, 24 Ill., 466.

944 Barb., 655, 666; 44 N. Y., 94, 99; 33 Barb., 241; 47 N. Y., 33.

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