goods at once, or by a specified train, or within so many days, or in specific cars:1 while independent of a special agreement, the carrier is not bound to use extraordinary efforts to send forward the goods, or to incur extra expense in order to send them forward. He discharges his duty by sending them forward in their regular order; 3 giving a preference to perishable goods, like fruit and vegetables.*

The carrier is not liable for damages arising from a delay caused by an extraordinary accumulation of freight, or by a railroad collision without fault on his part, or by the negligence of another company having the right of way. And he is liable for a delay caused by his own negligence, or failure in duty, or by the negligence or wrongful acts of his agents and servants; as where he makes a contract to carry goods without having the facilities to do so, or where the transportation is delayed by a strike among the engineers on the road."

§ 610. On a total failure to deliver, the carrier is prima facie liable for the market price of the goods at the time and place for delivery, deducting the freight to be paid for the transportation. Nothing less will cover the damages sustained by the shipper; and where the goods have a market value at the place of destination, the rule is very plain and easy of application; it gives the shipper the value of his property at the place where the carrier agreed to deliver it, with interest from the time for delivery, less the freight due to the carrier under the contract. A modification of the rule has been allowed, where the goods are lost before the ship sails, or soon after, without fault on the

'Pickford v. Grand Junction R. Co., 12 M. & W., 763; Harris v. Northern Ind. R. R. Co., 20 N. Y., 232; Harmony v. Bingham, 12 N. Y., 99; Beebe v. Johnson, 19 Wend., 500; 47 N. Y., 525.

2 Briddon v. Great Northern R. Co., 28 L. J. Exch., 51; 32 L. T., 94.

3 Acheson v. N. Y. C. & H. II. R. Co., 61 N. Y., 652.

4 Marshall v. N. Y. Central R. Co., 45 Barb., 502; S. C., 48 N. Y., 660. Taylor v. Great Northern R. Co., 14 L. T. N. S., 363; 1 L. R. C. P., 385; Conger v. Hudson River R. Co., 6 Duer, 375; 61 N. Y., 652.

6 Condict v. Grand Trunk R. Co., 51 N. Y., 500; S. C., 4 Lans., 105; Blackstock v. N. Y. & Erie R. Co., 23 N. Y., 48.

7 Bracket v. McNair, 14 John. R., 170; O'Hanlon v. North R. R. Co., 6 Best & Smith, 484; see Grifin v. Colver, 16 N. Y., 489; in point exactly; Sturgess v. Bissel, 43 N. Y., 452; Spring v. Haskell, Allen, 112; McGregor v. Kilgore, 6 Ohio, 359; Laurent v. Vaughan, 30 Vt., 90.

8 Van Winklo v. U. S. M. Steamship Co., 37 Barb., 122; Cushing v. Wells, Fargo & Co., 98 Mass.-; King v. Shepherd, 3 Story, 340; Michigan S. & N. I R. R. Co. v. Caster, 13 Ind., 164; Rice v. Ontario Steamboat Co., 53 Barb., 584; Bridgman v. Steamboat Emily, 18 Iowa, 509.

part of the carrier, fixing the damages at the value of the goods at the place where the loss occurs.1

What is the measure of damages against a carrier for his delay in sending forward the goods; e. g., where he negligently delays to carry them forward, and the market in the meantime falls? The measure of damages here is the difference between the value of the goods at the place of destination when they ought to have been delivered and when they were delivered. By his delay the carrier prevents a sale of the goods, and where he does this negligently it is only just that he should pay the difference between the market price at which the owner might have sold his goods, had he received them in due time, and the lower price at which he was compelled by the delay to sell them. The reason of the rule becomes more apparent, if not more just, where the owner of the goods makes a sale of them, deliverable provided they arrive in due course, and loses the sale by the carrier's inexcusable delay;3 or finally receives the property injured or depreciated by the delay.

The carrier's failure to transport and deliver within a reasonable time, is a breach of contract; it is not a conversion, and it is not equivalent to a conversion of the goods; the owner cannot therefore refuse to receive them on account of the inexcusable delay, and recover their full

1 Lakeman v. Grinnell, 5 Bosw., 625.

* Ward v. N. Y. Central R. R. Co., 47 N. Y., 29 ; Cutting v. Grand Trunk R. R. Co., 13 Allen, 381; Sisson v. C. & T. R. R. Co., 14 Mich., 489; Collard v. S. E. R. Co., 7 Hurl. & N., 79; Wilson v. Lancashire & York R. Co., 93 Eng. C. L., 632; Laurent v. Vaughan, 30 Vt., 90; Peet v. Chicago & N. R. R. Co., 20 Wis., 594. The rule justly applies where the goods are on their way to a market, and the owner loses in consequence of the delay. Ingledew v. Northern R. R. Co., 7 Gray (Mass.), 86; Wilson v. Lancashire & Y. R. Co., 9 C. B. N. S., 632; Scott v. Boston & N. O. Steamship Co., 103 Mass., 468. The owner or shipper of the goods must be indemnified for the injury he sustains by the delay — the natural and proximate injury arising from the inexcusable delay. Hales v. London & Northwestern R. Co., 4 B. & S., 65; Benson v. N. J. R. & Tr. Co., 9 Bosw., 412; Black v. Baxendale, 1 Exch., 410. Notice to the carrier that the goods are sent to meet the demands of a market or of a business that will not bear delay, may affect the amount of the damages; since the carrier's delay may require some new disposition to be made of the goods. Black v. Baxendale, supra, 4 B. & S., 66; a delay in carrying and delivering a model, for which a prize has been offered, so as to deprive the shipper of it of his chance to obtain the prize, subjects the carrier to the cost of making the model, and it is thought he ought also to compensate the shipper for his loss of the chance thus taken from him; Watson v. Ambergate N. & B. R., 15 Jur., 448; Adams Ex. Co. v. Egbert, 36 Penn. St., 360.

3 Deming v. Grand Trunk R. Co., 48 N. H., 455. Ill. Central R. R. v. McClellan, 54 Ill., 58.

value;1 unless the delay or negligence results in a loss of the goods," or destroys their nature and value.3

The carrier is held liable for damages caused by his delay in carrying and delivering a part of the machinery for a mill, whereby the mill is compelled to stand idle; or for his delay in delivering goods that are under a contract of sale; where he receives the goods or chattels with knowledge of the contract, or purpose for which they are to be used. He is bound to pay the damages caused by his delay with knowledge of the circumstances, including the rental value of the mill that stands idle by the delay, and the loss on the defeated sale.5

§ 611. The mode of proving a loss or damage by the carrier's unreasonable delay, must depend upon the circumstances. A total failure to deliver is easily proved, by showing that the goods have not been received. A long delay may also be proved, with equal facility. An unusual or unnecessary delay may sometimes be proved by showing the distance, the mode and course of business, and the time usually consumed in carrying goods over the route. The effect of the proof may also depend upon various circumstances; such as the nature of the property, the season of the year, or the state of the market."

§ 612. When it becomes necessary in a storm at sea to lighten the ship, by throwing overboard a part of her lading, the necessity excuses the act; the carrier as such, is not liable for the loss; but is bound, in common with the others whose property has been thereby saved from destruction, to contribute to the loss.10 The mode of ascertaining the amount of each person's contribution varies in different countries; it is

1 Scovill v. Griffith, 12 N. Y., 509; Hawkins v. Hoffman, 6 Hill, 586.

2 Ellis v. Turner, 8 Term R., 531; Fouldes v. Willoughby, 8 Mees. & Wels, 540.

3 Smith v. Griffith, 3 Hill, 333, mulberry trees; Kent v. Hudson R. R. R. Co., 22 Barb., 278; Hackett v. Boston &c. R. R. Co., 35 N. H., 390; Galt v. Archer, 7 Gratt. (Va.), 307; Shaw v. S. R. Co., 5 Rich. (S. C.), 462.

Hadley v. Baxendale, 9 Exch., 341; S. C., 23 Eng. Law and Eq., 398, Fletcher v. Tayleur, 17 C. B., 21; Davis v. C. H. & D. R. R. Co., 1 Disney, 23; Priestly v. Northern Ind. & C. R. Co., 26 Ill., 205; Ill. Cent. R. Co. v. McClellan; 54 Ill., 58.

5 See leading case of Griffin v. Colver, 16 N. Y., 489.

6 Woodbury v. Frink, 14 Ill., 279; Tucker v. Cracklin, 2 Stark., 275; Griffith v. Lee, 1 C. & P., 110; Mayhew v. Nelson, 6 C. & P., 58.

7 Nudd v. Wells, 11 Wis., 407; Western &c. Co. v. Newhall, 24 Пl., 466. Michigan &c. R. R. Co. v. Day, 20 Ill., 375; Acheson v. N. Y. C. & Hudson R. R. Co., 61 N. Y., 632.

9 Keeney v. Grand Trunk R. Co., 47 N. Y., 525 ; S. C., 59 Barb., 104 ; 48 N. Y., 660; 30 N. Y., 564, 630; Falvey v. Northern &c. Co., 15 Wis., 129; 30 Vt., 90. 10 Ante § 537, § 596.

usually done upon the ship's arrival at the port of discharge, by ascertaining the net value of the ship, freight and cargo, as if nothing had been lost; these are to be valued at the price they would fetch at the port of discharge, and the net amount, after deducting all charges, is the sum which is subject to the contribution. If a part of the apparel or tackle of the ship is sacrificed for the common benefit and safety, it is to be included in the loss for which compensation is to be made. As to the goods and property lost, the practice is to estimate them, as well as those saved, at the price they would have brought at the port of discharge on the ship's arrival there, deducting freight thereon. Upon this footing a general average is made, so as to give to the owner of the property sacrificed for the general safety, an amount pro rata equal to that realized by the owners of the residue saved.1

When a general average is fairly settled in a foreign port, and the insured is obliged to pay his proportion of it, he may recover the amount from the insurer, though the average may have been settled differently abroad from what it would have been in the home port.2 The situation does not admit of any delay; it is the master's duty to have an adjustment made upon his arrival at the port of destination, and upon its being completed he has a lien upon the cargo to enforce the payment of the contribution."

§ 613. A common carrier does not in form undertake to answer for the fraud or for the wrongful acts of third persons; but his engagement for the safe conveyance and delivery of goods, sometimes obliges him to answer for them notwithstanding a loss by the fraud, or by the tortious acts of third parties; as where the goods are obtained from him by the use of false pretenses; or where the goods are injured by the negligence of a third party employed to assist in the transportation;5 or

1 Strong v. N. Y. Firemen Ins. Co., 11 John. R., 323, 332. The rule applies so as to cover an injury to a part of the cargo caused in cutting away the mast; Maggrath v. Church, 1 Caines' R., 196, 214; as to freight not earned, see Hathaway v. Sun M. Ins. Co., 8 Bosw., 33, 74; as to a stranding of the vessel with a view to save her, see Bradhurst v. Col. Ins. Co., 9 John. R., 9; and Columbia Ins. Co. v. Ashby, 13 Peters, 331; Marshall v. Garner, G Barb., 394. Anto §§ 537, 596.

2 Depau v. Ocean Ins. Co., 5 Cowen R., 63.

3 Walpole v. Ewen, Park on Ins., 565, 566; 11 John. R., 336.

Powell v. Myers, 26 Wend., 591; Stephenson v. Hart, 4 Bing., 476; Price v. Oswego & S. R. Co., 50 N. Y., 213; the carrier is liable for an unexplained non-delivery; Dexter v. S., B. & N. Y. R. Co., 42 N. Y., 326.

B Merrick v. Brainard, 38 Barb., 574, reversed on other grounds in the Court of Appeals: 34 N. Y., 208; White v. Bascom, 28 Vt., 268; Steamboat Farmer v. McCraw, 26 Ala., 189.

where they are illegally and wrongfully seized by a public officer;1 or where an officer unlawfully prevents him from fulfilling his contract.2 The carrier in these cases has a right of action against the wrong-doer, and may recover the damages sustained by him; he may bring his action before he has paid the loss ;3 or may pay for the property and recover its value of the party wrongfully taking or detaining it. The law gives him the action on account of his liability under the contract. On the same ground, and on account of his claims for advances and freight, the carrier has an insurable interest in the goods in his hands, and may get them insured or may bargain for the benefit of an existing policy on the property; to the extent of the fair value of the property. Unless he limits his liability, the carrier is himself an insurer of the goods received by him for transportation; and hence a company that insures the owner against loss on the goods and pays the same, may recover the amount of the carrier. The law subrogates the insurer into the position and rights of the shipper."

8

§ 614. When a carrier brings an action against a third party for the wrongful taking or detention or conversion of goods that were bailed to him for transportation, he recovers the property in replevin, or the value of the property in an action of trover; and when he brings an action in the nature of trover against the general owner, based on his lien or special property in the goods, he recovers only to the extent of his special interest; he recovers what belongs to him, and no more. But where a consignee obtains possession of the goods by a false and fraudulent promise to pay the freight as soon as the delivery is complete, the

1 Goslin v. Higgins, 1 Campb., 451; Edwards v. White Line Transit Co., 104 Mass., 159.

2 Evans v. Hutton, 5 Scott, N. R., 670; Rowland v. Miln, 2 Hilton, 150. 3 White v. Bascom, supra, 28 Vt., 268.

* Hudson River R. R. Co. v. Lounsberry, 25 Barb., 597. The carrier may return money received on a parcel marked C. O. D., the transaction turning out a fraud; Herrick v. Gallagher, CO Barb., 566.

5 Mercantile M. Ins. Co. v. Calebs, 20 N. Y., 173; Savage v. Corn Exchange Ins. Co., 33 N. Y., 655; 3 Sumner, 140; 1 Hall, 84; 12 Barb., 595.

6 Etna Ins. Co. v. Wheeler, 5 Lans., 480; S. C., 49 N. Y., 616.

7 Newcomb v. Cincinnati Ins. Co., 22 Ohio St., 382; Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 223.

* Greeno v. Clark, 12 N. Y., 343; Young v. Kimball, 23 Penn. St., 193; Waterman v. Robinson, 5 Mass., 303; Propeller Commerce, 1 Black, 574 ; Hagerstown Bank v. Adams Ex. Co., 45 Penn. St., 419, bank bills destroyed; Buck v. Rem sen, 34 N. Y., 383.

Bokkelin v. Ingersoll, 5 Wend., 315; see Wheeler v. McFarland, 10 Wend., 318; 10 N. Y., 557; Parish v. Wheeler, 22 N. Y., 494; Alt v. Weidenburg, 6 Bosw.; 176; Kissam v. Roberts, 6 Bosw., 154.