When, on the

he is bound to employ such means.' 11 83 other hand, the acts of negligence of which the carrier is guilty do not consist of the failure to exercise care to anticipate or mitigate the effects of an act of God, and do not of themselves occasion injury, the carrier is not liable, though they may concur, in point of time and place, at least, with such act of God.

§ 609. Public Enemy-Strikes.-Somewhat akin to the act of God in its irresistible character is the act of a public enemy. Where a carrier suffers a loss of goods which he is transporting as a result of an act of the public enemy, he cannot be held reponsible therefor.84 But by a "public enemy" is not meant every person who is a violator of law or opposed to the government. Thieves and robbers are not to be classed as enemies. Formerly, indeed, it was maintained that to entitle the carrier to exemption the force must be that of a regularly organized armed body in hostility to the government.85 Such a force clearly constitutes a public enemy, and in this country losses occurring during the Civil War furnish numerous examples thereof. Modern cases, however, seem to make a distinction between loss flowing from actual violence and that resulting from mere delay. In the former the strict rule is still adhered to, and where mobs or riots result in the destruction of goods in the possession of the carrier, he is liable because this is not a public enemy.se Where, on the other hand, the carrier is compelled to delay the sending of

83 Lamont & Co. v. Nashville etc. R. Co., 56 Tenn. 58.

84 Lewis & Co. v. Ludwick, 6 Cold. 368, 98 Am. Dec. 454; Mauran v. Alliance Ins. Co., 6 Wall. 1; Clark v. Pacific R. R., 39 Mo. 184, 90 Am. Dec. 458; Bland v. Adams Exp. Co., 1 Duvall, 232, 85 Am. Dec. 623.

85 Cobbs v. Barnard, 2 Salk. 919; Forward v. Pittard, 1 Term Rep. 27.

86 Chevallier v. Straham, 2 Tex. 123, 47 Am. Dec. 639, and note.

the goods on account of mobs or riots, no liability arises, because the carrier is not an insurer of the time within which the carriage shall be made, but only bound to use due diligence in this regard.s Mobs or strikes will not relieve the carrier from the duty of exercising due care to transport the goods it receives, and any loss which results from the failure in this duty will render him liable. Thus, when the delay was caused by a strike of the carrier's servants, rendering it impossible to transport the goods, and the carrier had previous knowledge that the strike was to occur, it was held responsible for the loss resulting.88

§ 610, Acts of the Law-Legal Process.-The carrier is not compelled to become a law-breaker, but should obey its commands; hence it is the universally adopted rule that when the carrier acts in obedience to such commands, and is thereby prevented from delivering goods which it has accepted for transportation, it is not responsible. Thus, when an officer of the state acting under regular process demands and seizes goods in the hands of the carrier, the latter is justified in delivering them over to such official.89 So, also, the carrier may refuse to deliver goods to the consignee when they are detained in his hands

87 Gulf etc. Ry. Co. v. Levi, 76 Tex. 337, 18 Am. St. Rep. 45, 18 S. W. 191; Geismer v. Lake Shore etc. Ry. Co., 102 N. Y. 563, 55 Am. Rep. 837, 7 N. E. 828; Pittsburgh etc. R. Co. v. Hazen, 84 Ill. 36, 25 Am. Rep. 422; Pittsburgh etc. R. Co. v. Hollowell, 65 Ind. 188, 32 Am, Rep. 63.

88 Blackstock v. New York etc. R. R. Co., 20 N. Y. 48, 75 Am. Dec. 372. See sec. 615, post delay).

89 Jewett v. Olsen, 18 Or. 419, 17 Am. St. Rep. 745, 23 Pac. 262; Pingree v. Detroit etc. R. Co., 66 Mich. 143, 11 Am. St. Rep. 479, 33 N. W. 298; Ohio etc. R. Co v. Yohe, 51 Ind. 184, 19 Am. Rep. 727. See Gibbons v. Farwell, 63 Mich. 344, 6 Am. St. Rep. 301, 29 N. W. 855.

90

92

by attachment or garnishment." But the process must be regular on its face,91 and directed against the owner of the goods, and not some third person. If the officer have no process whatever, he is but a mere trespasser in seizing the goods, and the carrier is responsible for his acts.93 When goods are taken from a carrier by an officer, or detained in its hands by the commands of the law, the carrier is not relieved from all duty in regard to them. He is bound to give notice of such fact to the owner of the goods in order that the latter may protect his rights in them.94

§ 611. Connecting Carriers-The English Rule.-In opening the discussion of the legal responsibility of carriers of goods beyond their own lines, and of the liability of connecting carriers participating in the carriage of goods, it must be noted that there is a marked improvement in the methods and facilities of railways, since the first leading English case of Muschamp v. The Lancaster and Preston Junction Railway Company, which was decided in 1841,95 and that there is likewise a marked distinction between the conditions prevailing in the United States because

90 Stiles v. Davis, 1 Black (U. S.), 101; Pingree v. Detroit etc. R. Co., 66 Mich. 143, 11 Am. St. Rep. 479, 33 N. W. 298; Landa v. Holck, 129 Mo. 663, 50 Am. St. Rep. 459, 31 S. W. 900; Furman v. Chicago etc. R., Co., 81 Iowa, 540, 46 N. W. 1049.

91 Pingree v. Detroit etc. R. Co., 66 Mich. 143, 11 Am. St. Rep. 479, 33 N. W. 298.

92 Edwards v. White Line Transit Co., 104 Mass. 159, 6 Am. Rep. 213; Stiles v. Davis, 1 Black (U. S.), 101. See Simpson v. Dufour, 126 Ind. 323, 22 Am. St. Rep. 590, 26 N. E. 69.

93 Merriman v. Great Northern Express Co., 63 Minn. 543, 65 N. W. 1080; Bennett v. American Exp. Co., 83 Me. 236, 23 Am. St. Rep. 774, 22 Atl. 159.

94 Ohio v. Yohe, 51 Ind. 181, 19 Am. Rep. 727; Jewett v. Olsen, 18 Or. 419, 17 Am. St. Rep. 745, 23 Pac. 262; Furman v. Chicago etc. R. Co., 81 Iowa, 540, 46 N. W. 1049.

95 8 Mees. & W. 421.

of the vast area of territory over which the lines of carriers run, as compared with that of England. England, in area, is not larger than some of our states. In the earlier history of our railway system, through carriage of freight, by contract, was not of so frequent occurrence as it is now. At first, therefore, with us there was not so much occasion to follow the English doctrine of liability of carriers of goods as there is now, when our system of transportation is so encompassed by traffic arrangements between roads and by consolidations, our lines of railroads forming through continuous lines. In Muschamp v. Lancaster Railway Company, supra, the case referred to in America as voicing the common-law rule, goods were delivered by the shipper to the carrier, to be conveyed by it from Lancaster upon that railway, and upon other railways, to a place named Wheatsheaf, Bartlow. The principle of law announced by Lord Abinger, C. B., was that from the mere fact of acceptance by the first carrier of the goods to be carried to a more distant place beyond its own line, it was liable for the loss; "as these railway companies, though separate in themselves, are in the habit, for their own advantage, of making contracts . to convey goods along the whole line, to the ultimate terminus, each of them being agents of the other to carry them forward, and each receiving their share of the profits from the last. The fact that, according to the agree ment proved, the carriage was to be paid at the end of the journey, rather confirms the notion that the persons who were to carry the goods from Preston to their final destination, were under the control of the defendants, who consequently exercised some influence and agency beyond the immediate terminus of their own railway."

" 96

96 Where a carrier receives goods to be carried to a destination beyond his own route, he is prima facie (by English law) a cɔm

§ 612. Connecting Carriers-The American Rule as to Legal Effect of Acceptance of Goods in Absence of Special Contract. In the earlier days in the history of our country there were many independent lines of railways, necessitating frequent changes by passengers or of freight on long distance journeys or shipments. These lines of railways did not at first grasp the idea of through traffic transportation arrangements, but acted independently in the receipt and transportation of goods, even to points beyond their own lines, not desiring to assume any responsibility in respect to the safety of goods beyond their own line. Consequently, the theory of the English rule last stated,97 that the mere acceptance of goods and the issuance of a bill of lading to the shipper for shipment to a place beyond the terminus of its own line, without further specific contract to that effect, would constitute a contract for through transportation, making the carrier liable for loss through the neglect of a connecting carrier, while receiving some favor, as we shall presently see, received far from the unanimous support and sanction of the American courts, the courts adhering to the rule which was in the minority.

The rule most generally adopted with us, and which is sometimes characterized as the American rule, is just the contrary. The mere acceptance of goods by a carrier for transportation to a place beyond its own line, and though necessarily to be carried over the line of a so-called connecting carrier, does not constitute a contract for through transportation, so as to make the connecting carrier an agent of the first carrier, and impose upon the first carrier a lia

mon carrier of the goods for the whole of the journey to that destination: 5 English Ruling Cases, 263, note; Shepherd v. Bristol etc. Ry. Co., L. R. 3 Ex. 189.

97 Ante, sec. 611.