any injury to the goods, during the delay, the company are liable.8

4. But the falling of the water in the Ohio River, preventing a boat passing up the falls with its cargo, was held not to come strictly within the exception to the carriers' responsibility. But proof of a long-established usage, uniform and well known, to allow boats, in such cases, to wait a month or more for the rise of water, without incurring liability for not delivering their cargo in a reasonable time, under the usual bill of lading, with "the privilege of reshipment," is admissible. And it was held, that such delay did not deprive the owner of the right to recover full freight. But a carrier of goods or cattle is only bound to carry in a reasonable time under ordinary circumstances, and is not bound to use extraordinary efforts, or incur extra expense, in order to surmount obstructions caused by the act of God, as a fall of snow.10 It is said in a recent English case,11 that in the absence of special agreement there is no implied contract on the part of a railway company to deliver with punctuality, but the contract is rather to carry safely and deliver within a reasonable time.

9

5. Where one company, by agreement under a general act of parliament, confirmed by special act, had running powers over another company's line, and the traffic on the line was delayed by a collision caused by the negligence of the servants of the accessory line, it was held that the company owning the line were not chargeable with any default, by reason of the delay in the delivery of goods caused by such collision.11

6. In an action against a carrier for damage done to goods carried, it is enough to prove the good condition of articles when put into his possession and their deteriorated state when received from him. And any damage resulting from bad package will go to lessen the amount of damage.12

8

Lipford v. The S. C. Railw., 7 Rich. 409. But see ante, § 169, n. 4. See also The May Queen, Newberry's Adm. 464.

• Broadwell v. Butler, 6 McLean, 296.

10 Briddon v. Great Northern Railw., 28 L. J. 51; 32 L. T. 94. "Great Northern Railw. v. Taylor, 12 Jur. N. S. 372.

12 Higginbotham v. Great Northern Railw. Co., 2 F. & F. 796. And in an action against carriers for injury to casks of oil alleged by them to have arisen from defects in the casks, it was left to the jury whether it arose from such defects, and whether, if it did, the carriers knew or ought to have known of it, and acted negligently in sending them on in that state. Cox v. London & North Western Railw. Co., 3 F. & F. 77.

SECTION XXIV.

Carriers have an Insurable Interest in the Goods.

1. Carriers may insure for their own benefit, | 3. Carriers not responsible for loss by fire, may 2. A warehouse-man or wharfinger may insure

and recover the full value of the goods in 4.

trust.

insure in trust, and recover the full value. The consignee in a bill of lading may be shown to have no insurable interest.

§ 174. 1. As carriers become insurers of all goods which they carry against fire, or marine disaster, except from inevitable accident, there can be no doubt they have, to that extent, an insurable interest in the goods, and it has been so held.1 And this insurable interest continues, so long as the liability of the carrier continues, even where they employ other carriers.1

2. And a warehouse-man or wharfinger with whom goods are deposited has an insurable interest in such goods, although there has been no previous authority given to insure by the general owners, nor any notice given to them of the insurance. Such goods are properly described in a policy as goods "in trust." The insurers in such case are entitled to recover the full value of the goods destroyed by fire, but are accountable to the general owners for the excess of the amount so received above their own interest in the goods, which in this case extended only to the charges of warehousing 2

3. And common carriers may insure goods in their possession, as carriers, describing them as "goods in trust as carriers," and such an insurance will cover the whole value of the goods, and if the goods are destroyed by fire the carrier will be entitled to recover of the insurer their full value, and it will make no difference that under the statute, or by special contract, the carriers were not responsible for losses by fire.3

1 Chase v. Washington Mutual Insurance Company of Cincinnati, 12 Barb. 595. But the carrier has the right, by express contract, to except risks from fire, or any other cause, from his undertaking, and in such case he is not liable for loss by the excepted risk. Parsons v. Monteath, 13 Barb. 353. But upon general principles the first carrier is liable for loss by fire, while the goods are in a float, changing to the next carrier. Miller v. Steam Nav. Co., 13 Barb. 361. 2 Waters v. The Monarch Life & Fire Ins. Co., 34 Eng. L. & Eq. 116. • The London & N. W. Railw. v. Glyn, 5 Jur. N. S. 1004.

4. But the fact that one is named as consignee in a bill of lading is not conclusive proof that he has in his own right an insurable interest. It may still be shown that he was a mere agent.* But unquestionably a factor or broker to whom goods are consigned by the bill of lading may insure in his own name for whom it may concern, and thus recover to the full extent of any insurable interest which he fairly represented.

*SECTION XXV.

Rule of Damages, and other Incidents of Actions against

Carriers.

1. Damages, for total loss, are the value of 7. Consignor in such case not estopped by

§ 175. 1. The general rule of damages, in actions against carriers, where the goods are lost, or destroyed, by any casualty, within the range of the carrier's responsibility, is sufficiently obvious. It must be the value of the goods, at the place of destination.1 And this will commonly include the profits of the

4 Seagrave v. Union Marine Ins. Co., 12 Jur. N. S. 358.

1 Hand v. Baynes, 4 Wharton, 204. Ante, § 173, n. 2; Grieff v. Switzer, 11 Louis. An. 324. See also Taylor v. Collier, 26 Ga. R. 122; Dear v. Vaccaro, 2. Head, 488, Davis v. N. Y. & Erie Railw. 1 Hilton, 543; Mich. &c. Railw. v. Carter, 13 Ind. R. 164. See Harris v. Panama Railw., 3 Bosworth, 7, where it is held, that in an action against a carrier to recover the value of property destroyed through his negligence, during its transit, at a place where such property has not been the subject of traffic, or has not been bought and sold, the measure of his liability is the fair value of the property at or near the place of its destruction. But, in determining such value, it would seem that the jury may take into consideration the fact that the property has a market value, at a place other than that where it was destroyed, and to which it was destined, and towards which the car

adventure.2 In a well-considered English case,3 Lord Tenterden, Ch. J., thus lays down the rule: "The damages ought to be the value of the cargo, at the time when it ought to have been delivered, that is, at the port of discharge." Parke, J., said, "The sum it would have fetched, at that time, is the amount of loss sustained by the non-performance of the defendants' contract." But in a well considered case, where the goods were destroyed at the port of shipment, and before the voyage was entered upon, without the fault of the carrier, it was held he was only responsible for the value of the goods at that port, and no interest should be added even after suit brought.

4

2. But where the goods are only damaged, the owner is still bound to receive them, and cannot abandon, and go against the carrier as for total loss.5 But whether the owner have accepted *the goods, or not, he may recover for any deterioration they have sustained, unless by the excepted risks in the carrier's undertaking.6

3. In an action against a carrier, slight evidence having been

rier, in the course of the usual and regular communication with such place, was then taking it, in connection with the hazards and expenses attendant upon the residue of the intended voyage.

2

Sedgwick on Dam. 356.

3 Brandt v. Bowlby, 2 B. & Ad. 932. See also Gillingham v. Dempsey, 12 S. & R. 183; Ringgold v. Haven, 1 Cal. R. 108. Trover will not lie against the carrier, or any other bailee, for mere neglect of duty. There must be an actual conversion, or a refusal to deliver on proper request. Bowlin v. Nye, 10 Cush. 416; Opinion of court in Rome Railw. v. Sullivan, 14 Ga. R. 283; Robinson v. Austin, 2 Gray, 564.

* Lakeman v. Grinnell, 5 Bosw. 625.

Sco

Shaw v. South Carolina Railw., 5 Rich. 462. So also, where not delivered in a reasonable time, the owner can only recover damage of the carrier. ville v. Griffith, 2 Kernan, 509. Hackett v. C. B. & M. Railw., 35 N. H. R. 390. Where part only of the goods are injured, the carrier is liable only for that part, nor is his liability enhanced by failure to offer to deliver the uninjured part. Mich. &c. Railw. v. Bivens, 13 Ind. R. 263. When a portion of goods shipped by one entire contract of affreightment is lost by fault of the carrier, and the residue is sold by him by the bill of lading at the port of delivery without knowing such loss, the carrier, if sued by the consignee for money had and received from the proceeds of the sale, cannot deduct the freight, but may deduct a discount allowed by him to the purchaser on discovering the deficiency in the goods. Stevens v. Sayward, 8 Gray, 215.

• Bowman v. Teall, 23 Wendell, 306.

given that the porter of the carrier stole the goods, and the jury having found for the plaintiff, a new trial was denied, on the ground that the carrier did not offer the porter as a witness."

Boyce v. Chapman, 2 Bing. N. C. 222. And upon general principles the plaintiff makes a primâ facie case, by showing that the goods did not reach their destination. Story on Bailm. § 529 a; Woodbury v. Frink, 14 Ill. R. 279; Bennett v. Filyaw, 1 Florida R. 403 ; Bark Oregon, Newberry's Adm. R. 504; Brig May Queen, Id. 464. But where the carrier has, by notice, or special contract, limited his responsibility as a common carrier, the burden of proof of showing negligence is upon the consignee, the same as in ordinary suits, charging neglect of duty. Id. But where the bill of lading states the goods to have been shipped in good order, and they arrived in a damaged state, the burden of proof is upon the carrier, to show that the damage occurred by causes for which by the bill of lading he was not responsible. The Propeller Cleveland, Id. 221. And where, in such case, the carrier shows the existence of facts from which this could be fairly inferred, it devolves upon the shipper to show that the damage might have been prevented by the exercise of ordinary care and skill on the part of the carrier. Id.

And where the carrier at first wrongfully refused to deliver goods consigned to a manufacturer, but afterwards delivered them, it was held that he was not liable for consequential damages, from the delay of the consignee's works, or the consequent loss of profits, but only for the expense of sending a second time for the goods. Waite v. Gilbert, 10 Cush. 177. Perhaps the manufacturer was entitled to some consideration, by way of damages, until he could have supplied himself, in other ways, with similar materials, if indispensable for his present use. But to recover such special damages, which are not the natural or ordinary result of the act complained of, it is probably necessary, in strictness, to declare specially. But in a late case in the Court of Exchequer, for not carrying a passenger according to the carrier's duty and contract, it was held that no such remote and accidental damages are recoverable, in any form. Hamlin v. Great Northern Railw., 38 Eng. L. & Eq. 335. See post, § 183, n. 2. But in a very late English case, Mullett v. Mason, 12 Jur. N. S. 321, where the plaintiff bought of the defendant a cow, on the assurance of the latter that he would warrant her, and that she had come off his father's farm, and it proved to be a foreign cow, and in a few days died of the cattle plague, and thereby caused the death of other cows belonging to plaintiff, it was held that he might recover the value of other cows so lost. And in a recent case in Admiralty, Dr. Lushington allowed the master his expenses in defending himself in a foreign port against a charge of murder brought against him by two of the crew whom he had justly chastised on the voyage, and for £10 paid as the penalty of the recognizance required of him on his acquittal to prosecute the men for perjury, but which hẹ elected to forfeit in order to continue his voyage. The allowance was made on the ground that the master was entitled to the expenses of his defence, as the charge originated directly from the performance by the master of his duty to the owners in chastising the men; and also that it was for the interest of the owners