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knowledge of the owner of the goods, before or at the time of delivery to the carrier, if assented to by the owner, which is but another form of defining an express contract, which seems to be everywhere recognized as binding upon those contracting with carriers, unless New York may form an exception.a

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* 8. But it was held that the owner of goods delivered at the station-house of the railway, to be carried from Dover to Boston, and which were consumed by an accidental fire, at the former place, was not precluded from recovery of the value of the goods by a general notice of the company, known to the plaintiff at the time of the delivery of his goods, that all goods would be at the risk of the owners while in the defendants' warehouse.5

9. And in another case it was held, that a paper exonerating the company from all liability to the plaintiff for damage, which might happen to any horses, oxen, or other animals he might send by their railway, did not exonerate them from liability for negligence.

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10. In Pennsylvania, the rule of the English law that a carrier terms of such notices, it does not appear to us that such acquiescence ought to be inferred."

And a notice restricting the carrier's liability for baggage, "printed on the back of the passage ticket, and detached from what ordinarily contains all that it is material for the passenger to know, does not raise a legal presumption that the party had knowledge of the notice before the train left. That is a question for the jury." Brown v. Eastern Railw. Co., 11 Cush. 97. In a late case, State and Burgess v. Townsend, 37 Alab. R. 247, it was decided that a common carrier cannot limit his common-law liability by any general notice, but may do so by special contract with the shipper. And a bill of lading, given by the carrier on receipt of the goods, and accepted by the shipper, is a special contract within the meaning of the rule. But such special contract cannot be considered as exempting the carrier from responsibility for any loss occurring from his own negligence. But when the bill of lading exempted the company from all responsibility, except for wilful negligence or fraud, on account of the freight being reduced, it was held a valid contract. Lee v. Marsh, 43 Barb. 102. mon carrier cannot stipulate for exemption from responsibility for negligence, either of himself or his servants. Ashmore v. Penn. Steam Towing and Transp. Co., 4 Dutcher, 180.

Com

4 New J. Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344; Sager v. The P. S. & P. Railw. Co., 31 Maine R. 228; Bean v. Green, 3 Fairfield, 422; Cooper v. Berry, 21 Ga. R. 526.

5 Moses v. Boston & Maine Railw, 4 Foster, 71; ante, § 157, n. 13.

may restrict his liability, by a special acceptance, seems to be firmly established, notwithstanding some misgivings expressed by the courts in regard to the good policy of such a rule. The more prominent cases upon the subject are referred to in the opinion of the court, in Dorr v. N. J. S. Nav. Co.

The onus of proving any qualification of the common-law responsibility of the carrier rests upon him. The notice to be of any force must amount to actual notice. And where the general object of a check or ticket is emblazoned in large letters, and the restriction printed in small ones, it will not be regarded as of much force as evidence of notice. But where the notice is shown to have been acquiesced in, the effect is only to render the bailees or private carriers for hire.8

11. It would seem then to be the result of the decisions everywhere, that carriers may limit their common-law responsibility as insurers, by special contract at the time of acceptance, and that a notice to that effect, brought home to the knowledge of the owner of the goods at the time, or before the delivery of the goods, and assented to by him, or against which he makes no remonstrance or objection perhaps, will have the same effect in general with such exceptions, limitations, and qualifications as reason and justice may require, to be judged of by the court and jury, with reference to the circumstances of each particular case.9

7 1 Kernan, 485, 491; Atwood v. The Reliance Co., 9 Watts, 87; Bingham v. Rogers, 6 Watts & Serg. 495; Laing v. Colder, 8 Penn. St. 479.

› Verner v. Sweitzer, 32 Penn. St. 208. And where the shipper assumes the exclusive charge of goods during the voyage, to excuse the carrier, it must appear that the damage occurred from the fault of the shipper. Roberts v. Riley, 15 La. Ann. 103.

• The English statute, 17 & 18 Vict. c. 31, § 7, defines the effect of these notices of Carriers in England, which is considered more at length under § 167. The latest English case, upon this point, Simons v. Great Western Railw., 2 C. B. (N. S.) 620, holds, that a notice, signed by a person who cannot read, and who is told by the clerk of the company that it is mere form, is not binding, as a contract. Cooper v. Berry, 21 Ga. R. 526. Whether the consignor of goods, or the person depositing them with the carrier, has authority to contract, on the part of the consignee, being the owner, or party interested in the transportation, for exemption of the carrier from his ordinary responsibility, is, in each particular case, a question of fact, depending upon the special circumstances, and must be determined by the jury according to what is reasonable and just, be

12. The English statute 10 in regard to carriers claiming exemption from their common-law responsibility, by reason of special notice or contract, requires that it be embodied in a special contract in writing between the company and the owner, or person delivering the goods to the company, that the contract be signed by such owner or person, and that the court or judge shall determine it to be just and reasonable. Under this statute the House of Lords have held, in a somewhat recent case, where the agent of the owner of marble chimney-pieces forwarded them to the company for transportation, and received at the same time notice, that if the company forwarded them as common carriers, it must be done under an insurance and a reasonable premium paid therefor; and where, after considerable discussion between the agent of the owner and the company, as to the rate of premium to be paid for insurance, he finally gave directions in writing to have the goods forwarded "uninsured," which was accordingly done, and the goods were injured on the journey, that the transaction did not come within the requirements of the statute, not being embodied in any written contract properly signed by the owner or his agent; but that if such had been the fact, the "conditions would have been neither just nor reasonable."

Lord Chelmsford, with his usual common-sense sagacity and natural instinct in favor of practical convenience, seems to have entertained a different view in regard to the reasonableness and

tween the consignee and the carrier. Am. Transportation Co. v. Moore, 7 Law Reg. 352.

The questions commonly arising, in trials where the carrier claims exemption from his ordinary responsibility, in consequence of special contract, or notice, are here discussed, by Campbell, J., with a good deal of thoroughness and ability. And the opinion upon another point, the just construction of the act of Congress, exempting the owners of ships from liability for losses by fire, except where the vessel is "used in rivers or inland navigation,” is surprisingly elaborate and thorough. The conclusion arrived at, that the navigation of the great American lakes and their connecting waters does not come within the exception, is probably in accordance with the recently established opinions, as to the extent of the admiralty jurisdiction in this country, although not perhaps entirely consonant with the earlier, or the popular opinions upon the subject. In regard to the last point the court were divided.

Railway and Canal Traffic Act of 1854, § 7, 17 & 18 Vict. c. 31

justice of the company requiring an additional premium for insuring the safety of marble chimney-pieces, above what would have been demandable in the case of blocks of marble, or other commodities not specially fragile.11

*SECTION X.

Notice, or Express Contract, limiting Carriers' Liability.

1. Written notice will not affect one who cannot read.

2. Carrier must see to it that his notice is made effectual.

3. Must be shown that knowledge of notice came to consignor.

5. Carrier cannot stipulate for exemption from liability for negligence.

6. But carrier may be allowed to stipulate for exemption from responsibility as an

insurer.

7-12. Review of the cases favoring this proposition.

4. But former dealings with same party may 13, 14, and n. 22. Review of English cases be presumptive evidence. bearing in opposite direction.

§ 160. 1. The courts have from time to time been accustomed to engraft such exceptions, in regard to the effect of carriers' notices, as seemed necessary to render their operation reasonable and just. It was held that such notice could have no effect, by being posted upon the office of the carrier, if the owner of the goods or the party who delivers them at the office cannot read.1

2. In another case, where the party delivering the goods could read, and had seen the carrier's notice upon a board hanging in the office, but, not supposing it interested him, had, in fact, never read it, it was held he was not affected by it. Lord Ellenborough said at the trial, "You cannot make this notice to this non-supposing person." "The hardship of the case cannot alter the liability of the party." The rule is here laid down by this learned and sensible judge, that the carrier must see to it that he

11 Peek v. North Staffordshire Railw. Co., 6 Jur. N. S. 370; s. c. 6 W. R. 997, K. B.; s. c. 8 W. R. 364, Exch. Chamber.

1 Davis v. Willan, 2 Starkie's cases, 279. Abbott, J., here says, a notice to have effect must be brought "plainly and clearly to the mind of the party who deals with them.” "It may happen that the party cannot read, and if it so happen, it is the misfortune of the carrier, or his fault, that he does not communicate his intention by some other means."

adopts such a medium of notice that the party with whom he deals shall be "effectually apprised of the terms upon which he proposes to deal.” 2

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3. And it was held the notice was insufficient if the advantages of the mode of carriage were stated in large letters and the conditions and exemptions in small letters. So, too, if the printed notice be in a place where the party would not ordinarily see it, in the mode in which he came to the office, it could have no effect upon the liability of the carrier. So, too, where the goods were delivered at a station where no notice was put up, although notices were put up at each terminus of the route.5 All this shows very clearly that such notices, by printed cards or inserted in newspapers, are not sufficient, unless it be shown that knowledge of the contents of such notices came to the party, and this is always a question for the jury.

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2 Kerr v. Willan, 2 Starkie, 53. When the case came before the full bench, on motion for new trial, the court said, in regard to the duty to make the notice effectual, "If the agent could not read, he might be able to hear, or, at all events, a handbill might be delivered to him, to be taken to his principal." The rule of law might be superseded, by special contract, but it must be proved, and whether it exist or not is always a question for the jury.

Butler v. Heane, 2 Campb. 415.

♦ Walker v. Jackson, 10 M. & W. 161; Gouger v. Jolly, 1 Holt, N. P. C. 317. 5 1 Holt, N. P. C. 317. Gibbs, Ch. J., says, "The carrier is liable, unless express notice is brought home to the plaintiff." This is the ground assumed in all the cases. Beekman v. Shouse, 5 Rawle, 179; Bean v. Green, 3 Fairfield, 422; Story on Bailments, § 558; Brooke v. Pickwick, 4 Bing. 218. Best, Ch. J., here lays down the rule, in regard to notices, that it is not enough to post them up in a conspicuous place in the office of the carrier. But they must be at the pains to make the customer understand the restrictions which they propose to claim upon their responsibility. This we think the only safe rule, in regard to notices by carriers. And unless this be clearly shown, the leaving the goods, without objection, seems to be no ground whatever of presuming against the owner. And even with this, it is still a question for the jury, whether he expected to be bound by it, or, in other words, whether he supposed, at the time, that the carrier so understood the matter. Ante, § 159, 160.

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Clayton v. Hunt, 3 Campb. 27; Rowley v. Horne, 3 Bing. 2. In this case the defendant proved that the plaintiff had regularly taken a weekly newspaper, in which his advertisements were constantly inserted, for over three years. The jury having found a verdict for plaintiff for the full loss sustained, the full bench refused a new trial. They said it could not be intended a party read all the contents of any newspaper he might take. The carrier should fix upon the