ered to him for present carriage and nothing necessary to their being forwarded remains to be done by the owner, the law imposes upon him all the risk of their safe custody as well as the duty to carry as directed. He is regarded as exercising in some sort the functions of a public office, and the law is said to impose upon him his duties and obligations upon this ground as well as upon the ground of the contract, and as soon as the delivery to him and his acceptance are shown, the law imposes the duty and responsibility in virtue of his public employment. In other words, his liability does not rest exclusively upon contract, however much it may be qualified or limited by express agreement. Sec. 153. (§ 119.) Liability of carrier usually limited by contract. He was always allowed, however, if a carrier by water, to enter into contracts by which he might exempt himself from the risks of certain perils. But carriers by land had formerly no such privilege in this country; and such was the jealousy with which they were regarded, that it was held impossible for them to guard themselves by any stipulations whatever against liability from loss arising from any other cause than the act of God or the public enemy. This harsh condition has, however, been greatly changed in the carrier's favor, as we shall hereafter see;21 and now, not only is he permitted to contract so as to change the extent of his liability as fixed by the common law, but such contracts when made with his employers become almost entirely the measure of his responsibility. And this custom has become so universal in transactions with carriers that his liability may now be said to depend almost exclusively upon contract. He still stands, however, in the relation of common carrier to the goods intrusted to him, notwithstanding his contract, however much Mich. 69, 74 N. W. Rep. 301. See also, Berry v. Railway Co., 122 N. Car. 1002, 30 S. E. Rep. 14; Martin v. Railway Co., 3 Tex. Civ. App. 556, 22 S. W. Rep. 1007, citing Hutchinson on Carr.; Railway Co. v. Beard (Tex. Civ. App.), 78 S. W. Rep. 253; Railway Co. v. Darby, 119 Ala. 531, 24 So. Rep. 713, citing Hutchinson on Carr. 21. See post, chapter VII. it may lessen his common-law liability, and he cannot, even by the most express contract, divest himself of that character and change it to that of a mere private carrier or ordinary bailee.22 Sec. 154. (§ 120.) Contracts vary in form and name.— These contracts assume somewhat different forms and are known by different names according as they may be with carriers by water or carriers by land. Those with the former are called bills of lading, while those with land carriers are commonly called receipts. They are, however, the same in effect, and are intended merely to evidence the true intent of the transaction between the parties. In both cases they contain a description of the goods, an acknowledgment that they have been received by the carrier, the names of the shipper and consignee, the place of consignment, that they are in good condition, the terms of the carriage and such qualifications of the liability of the carrier as he and the shipper may have agreed upon, and the contract to carry to destination and there deliver to the consignee. They must be signed by the carrier or his authorized agent to bind him,23 and must be accepted by the shipper. And any contract with the carrier having these characteristics is entitled to the effect of a bill of lading, no matter how informally it may be drawn. Sec. 155. (§ 121.) Variance in duplicates-Shipper's controls. A ship's bill of lading is usually made out in triplicate, one being retained by the shipper, another sent by him to his consignee and the third retained by the master of the vessel. In case of difference between these parts, the one retained by the master is of inferior weight, as evidence of what the conway Co. v. Patrick, - C. C. A. —, 144 Fed. 632. Though the receipt given is signed by the carrier only, the shipper, when he accepts it, becomes a party to it and bound by its terms. Express Co. v. Fuller, 4 Tex. Civ. App. 213, 23 S. W. Rep. 412, citing Hutchinson on Carr. 22. See ante, § 44. Also Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113, 33 Am. St. Rep. 881, 14 L. R. A. 433, citing Hutchinson on Carr. 23. The Brittannia, 87 Fed. 495; Patrick v. Railway Co., Ind. Terr. 88 S. W. Rep. 330, reversed on another point in Rail tract was, to those delivered to the shipper, that retained by the master being designed, it is said, only for information and convenience and not as evidence between the parties of what their contract was. If it differs from the others they must be considered as the true and only evidence of the contract.24 And the same rule applies to duplicates issued by other carriers, in case of variance that delivered to the shipper controls.25 Sec. 156. Variance between charter party and bill of lading. As between the shipowner and one who charters the ship, the the charter party, although in parol, will control a bill of lading which is inconsistent with it and which contains no reference to the charter party. In such a case, the bill of lading will neither operate as a new contract, nor as a modification of the terms of the charter party.26 But as between the shipowner and a shipper other than the charterer, if it appear that such shipper had no notice of the terms of the charter party until after his contract with the ship had been made, he will not be bound by the terms of the charter party, and his contract will be controlled by the bill of lading issued to him.27 Sec. 157. (§ 122.) Bills of lading are both receipts and contracts to carry.-Such instruments are both receipts and contracts. 28 So far as they acknowledge the delivery and acceptance of the goods, they are mere receipts. As to the rest, they are contracts and are binding as such on the parties to them. In both characters they are of great importance to both shipper and carrier. 24. The Thames, 14 Wall. 105. 25. Ontario Bank v. Hanlon, 23 Hun, 283. 26. The Iowa, 80 Fed. 933; Huron Barge Co. v. Turney, 71 Fed. 972 and 79 Fed. 109. 27. The Titania, 131 Fed. 229, 65 C. C. A. 215, affirming 124 Fed. 975. 7; Planters', etc., Mfg. Co. v. Elder, 101 Fed. 1001, 42 C. C. A. 130; The Tongoy, 55 Fed. 329; Railway Co. v. Moline Plow Co., 13 Ind. App. 225, 41 N. E. Rep. 480; Mears v. Railroad Co., 75 Conn. 171, 52 Atl. Rep. 610, 96 Am. St. Rep. 192, 56 L. R. A. 884; Railroad Co. v. Simon, 160 Ill. 648, 43 N. E. Rep. 28. Pollard v. Vinton, 105 U. S. 596, citing Hutchinson on Carr. Sec. 158. Same subject—As receipts, not conclusive.-In so far as bills of lading acknowledge that the carrier has received the goods, or that he has received the quantity named, they are like all other receipts and may be shown to have been given by mistake and not to speak the truth.29 For it has been repeatedly held that all receipts and admissions are open as between the parties to explanation, and are impeachable for any mistake, error or false statement contained in them, and may be contradicted, varied or explained by parol testimony; and that so much of the bill of lading as relates only to the receipt of the goods, the quality, condition and quantity, which is treated as distinct from the contract, comes within this rule. But it is said to be very high and authentic evidence of both the quantity and condition of the goods when they were received, though not an estoppel to show the truth.30 29. Elm Staves' Case, 21 Fed. Rep. 590; Abbe v. Eaton, 51 N. Y. 410; Hazard v. Railway Co., 67 Miss. 32, 7 S. Rep. 280; Railway Co. v. Moline Plow Co., supra; The Titania, 65 C. C. A. 215, 131 Fed. 229, affirming 124 Fed. 975; Planters' Fertilizer Mfg. Co. v. Elder, supra; Cunard S. S. Co. v. Kelley, 115 Fed. 678, 53 C. C. A. 310, s. c. 126 Fed. 610, 61 C. C. A. 532, reversing Kelley v. Cunard S. S. Co., 120 Fed. 536. A statute making the specification of weights in bills of lading issued by railroad companies for hay, grain, etc., shipped over their lines, conclusive evidence of the correctness of such weights, is unconstitutional because denying to the railroad companies due process of law, and because depriving the courts of their judicial power to determine the weight and sufficiency of evidence. Railway Co. v. Simonson, 64 Kan. 802, 68 Pac. Rep. 653, 91 Am. St. Rep. 248, 57 30. Ellis v. Willard, 5 Seld. 529; Meyer v. Peck, 28 N. Y. 590; The Delaware, 14 Wall. 601; The Lady Franklin, 8 id. 325; Abbe v. Eaton, 51 N. Y. 410; Dean v. King, 22 Ohio St. 118; The Loon, 7 Blatch. 244; Fellows v. Str. Powell, 16 La. Ann. 316; Sears v. Wingate, 3 Allen, 103; Hunt & Macauley v. The Railroad, 29 La. Ann. 446; Baltimore, etc., Railroad v. Wilkins, 44 Md. 11; National Bank v. Walbridge, 19 Ohio St. 425; Louisiana Bank r. Laveille, 52 Mo. 380; Fasy v. Navigation Co., 79 N. Y. Supp. 1103, 77 App. Div. 469; affirmed without opinion, 177 N. Y. 591, 70 N. E. Rep. 1098; Davis v. Railroad Co., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852; Railway Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. R. 990, 38 L. Ed. 944, citing Hutchinson on Carr. Sec. 159. Authority of agent to sign bills of lading. The agent of the carrier can sign such contracts only when he has authority to do so, and he has no such authority when the goods are not actually delivered to him. In an early case31 it was said that "owners can never be liable but in respect of the delivery of goods to a ship trading for hire where the delivery to the master is a delivery to the owners, and where the owners can, in respect of such delivery, have an action for freight; for you must show a benefit accruing to the person against whom you bring your action, or else a special undertaking." And in an action against the owners of a ship it was argued before the court of king's bench that none of the defendants were entitled to disprove the shipment because the bill of lading, signed by the master, asserted the shipment. But the court held the evidence showing that the goods were not shipped on board the vessel at all, admissible, and that there was no ground for saying that the defendants were estopped by the bill of lading from showing this to be the fact.32 In another case it was said that "the general usage gives notice to all people that the authority of the captain to give bills of lading is limited to such goods as have been put on board; and a party taking a bill of lading, either originally or by indorsement, for goods which have never been put on board, is bound to show some particular authority given to the master to sign it.'33 And the English courts have had occasion to affirm the doctrine in a number of subsequent cases.34 31. Boucher v. Lawson, Cas. T. Todd, 1 Moọ. & R. 106; Meyer v. Hardw. 200. Dresser, 16 Com. B. (N. S.) 646; 32. Berkley v. Watling, 7 Ad. & Berkley v. Watling, 7 Ad. & El. 29; El. 29. 33. Grant v. Norway, 10 Com. B. 665. 34. Hubbersty v. Ward, 8 Exch. 330; Coleman v. Riches, 16 Com. B. 104; Brown v. Coal Co., L. R. 10 C. P. 562; McLean v. Fleming, L. R. 2 H. L. Sc. 128; Cox v. Bruce, 18 Q. B. Div. 147; Bates v. Jessel. Bath, L. R. 2 Exch. 267. The master of a ship has no authority to grant bills of lading for goods which are not put on board his vessel. But when he signs a bill of lading acknowledging the receipt of a specific quantity of goods, the ship-owner is bound to deliver the whole amount speci |