is that by this act railway and canal companies can limit their liability as carriers of the articles enumerated in it only by special contract signed by the shipper which shall be adjudged by the courts to be reasonable and just. Many cases under this act have come before the judges requiring decision as to whether conditions or stipulations in such contracts were just and reasonable; and, following the cases under the Carriers' Act, it has been repeatedly determined that while a contract which relieves the carrier from all liability is not reasonable, it is so when it stipulates that he shall not be held liable for losses caused by the negligence of himself or his servants.16 16. This act having given an unlimited discretion to the courts to determine what are reasonable and what are unreasonable conditions in contracts between carriers and their employers, it will be in teresting as well as instructive to know, as far as the cases inform us, what has been considered just and reasonable in such cases, and by what principles the courts have been guided in coming to their conclusions. In Peek v. The Railway Co., 10 H. L. Cases, 473, the contract was that the company would not be responsible for loss of or injury to the goods unless declared and insured according to their value. The Lord Chancellor (Westbury), speaking to the question of its reasonableness, said: "If the present condition were introduced in a contract between the company and the owner of the goods, delivered to be carried by that company, the necessary effect of such a contract would be that it would exempt the company from responsibility for the injury, however caused, including, therefore, gross negligence and even fraud and dishonesty on the part of the serv ants of the company, for the condition was expressed without any limitation or exception. I am therefore, in the first place, clearly of opinion that the condition insisted on by the company, even if it had been duly embodied in a special contract between the parties, is a condition which it would be the duty of a court or judge to hold to be neither just nor reasonable." In Aldridge . The Railway Co., 15 Com. B. (N. S.) 582, certain goods consisting of empty packages which had already been carried over the road were sent back according to custom, without further charge. The printed contract provided that the company would not be answerable for the loss or detention of, or damage to, packages of any description charged by the company as empties. This condition was considered unreasonable. There was a consideration for the return carriage of these empty packages in the amount paid for their carriage to the place from which they were to be returned, and their return free was only one of the inducements held out Sec. 398. Same subject-Language of contract to relieve from negligence must be explicit. But while the carrier under the latter act may stipulate against liability for losses occasioned by negligence, the language of the stipulation must, in to the public to send full packages. in the seven days. In McManus v. Railway Co., 4 H. & N. 327, the plaintiff desiring to send horses by the company's road signed a ticket containing the condition that the owner of the horses should undertake all the risk of conveyance whatsoever, as the company would not be responsible for any injury or damage, however caused, occurring to live stock of any description traveling upon the railway or in its vehicles. The horses were injured by being put into an insufficient truck, and it was held that the contract was not just and reasonable and was therefore void. In Lewis v. Railway Co., 5 H. & N. 867, and in Simons v. Railway Co., 18 Com. B. 805, the condition was that no claim for deficiency, damage or detention would be allowed unless made within three days after the delivery of the goods, nor for loss unless made within seven days after the time when they should have been delivered. A part of the goods were lost but no claim was made until more than seven days from the time when they should have been delivered, and it was held that the condition was reasonable and that the company had a good defense to the action on the ground that the claim had not been made with A condition that a railway company should not be liable for a loss of market or other delay arising from detention is a reasonable condition. White v. Railway Co., 2 Com. B. (N. S.) 7. But a condi tion not to be liable for delay however caused is unreasonable. Kirby v. Railway Co. 18 L. T. (N. S.) 658. A condition that the company will not be answerable for damage done to any horse conveyed by a railway is reasonable. Wise . Railway Co., 1 H. & N. 63. So a condition that the company was to be held "free from all risk in respect of any damages arising in the loading or unloading, from suffocation or from being trampled upon, bruised or otherwise injured in transit, from fire or from any other cause whatsoever," was held reasonable. Pardington v. Railway Co., 1 H. & N. 392. It is also held reasonable to stipulate that horses shall be carried at the own er's risk. McCance v. Railway Co., 7 H. & N. 477. It has also been held reasonable to give public notice that perishable or fragile articles will be conveyed only by special agreement or by particular trains, and that the carrier shall not be held responsible for the loss of market, or for loss or injury arising from delay or detention of trains, exposure to weather, stowage, or from any cause whatever, other order to be effective, be clear and express. Thus an exemption from liability contained in general words which do not expressly relate to negligence will be construed as limiting the carrier's liability as an insurer only, and not as relieving him from the duty of exercising reasonable skill and care. If he will relieve himself from the duty of exercising reasonable skill and care, it is said, he must do so in plain language and explicitly, and not by general words.17 Sec. 399. (§ 235.) Early American cases.-In this country the contest between the carrier and his employer upon this ques than gross neglect or fraud. Beal v. Railway Co., 3 H. & C. 337. It has also been held reasonable for railway companies to make distinctions in the conditions for car riage by different kinds of trains. Thus, in a case where the owner of horses, knowing that there was a certain rate for carrying horses by a passenger train and a lower rate for their conveyance by a freight train, sent them by the former at his own risk, it was held that, as there was an alternative mode of conveyance, the condition was reasonable. Harrison v. Railway Co., 2 Best & S. 122. Thus, it appears that a carrier may have two modes of conveyance-one by which he takes a greater responsibility and charges a higher rate; the other by which he charges a cheaper rate and takes upon himself less responsibility. In Simons v. Railway Co., 18 Com. B. 805, it was decided that a condition that the company would not be liable for loss from delay, detention or damage to goods improperly packed was unreasonable. And in this case it was said that there were no fixed or established rules by which the courts could be governed in concluding whether or not particular conditions in con tracts of this character were just and reasonable or not; but that each case must be determined upon its own circumstances. In Rooth v. Railway Co., 2 Law R. Ct. of Exch. 173, 15 L. T. (N. S.) 624, the condition was that the owner should undertake all risks of loading, unloading and carriage, whether arising from negligence or default of the company or its servants, or imperfections in stations, platforms or other places of loading or unloading, or of the carriage in which the cattle might be loaded or conveyed, or from any other cause whatever; in consideration of which the company would grant free passes to persons hav ing care of the stock as an inducement to the owners to send proper persons to take care of them. This was considered neither just nor reasonable, the offer of free passes not having the effect of changing the character of the first clause. 17. The Pearlmoor, L. R. (1904) P. 286, 73 L. J. P. 50. tion of the carrier's right to limit his extraordinary commoniaw liability, commenced, so far as the cases show, in 1838, before the supreme court of the state of New York, with the wellknown cases of Hollister v. Nowlen and Cole v. Goodwin.18 Both turned upon the validity of public notices by stage-coach proprietors that all baggage should be at the risk of the owners. Although the amount involved in the cases was of but little value, they seem to have been of great interest, on account of the question involved, for each of them was argued twice before. the court. The difficulty with the judges was whether they should follow the decisions of the English courts, which, as we have seen, had long before decided in favor of such notices, or disregard such authority as post-revolutionary, and, upon grounds of public policy, decide the question differently. Their conclusion, after great deliberation, was that, by the common law, carriers never had the right to limit their liability by such notices, though brought to the knowledge of their employers, and that, on grounds of public policy, it ought not to be allowed that they should; thus arriving at a conclusion directly opposite, on both grounds, to that to which, as we have seen, the English judges had come. Sec. 400. (§ 236.) Same subject.-As the question did not arise in these cases as to the carrier's power to restrict his liability by express or special contract with the bailor, the court expressly declined to decide whether this could be done. A few years afterwards, however, this very question came before the same court in Gould v. Hill.19 In that case the carrier had given a receipt for the goods, in which it was stipulated that he would forward them, "danger of fire excepted, and not holding ourselves responsible if lost, stolen or damaged, beyond the value of $200." The goods were destroyed by fire on their passage by the negligence of the carrier. The court below instructed, and the jury found, for the defendant. But the judgment was reversed in the supreme court, Nelson, C. J., dissenting; and it was held that, on grounds of public policy, the carrier could 18. 19 Wend. 251. 19. 2 Hill, 623. not vary or qualify his common-law liability, either by contract. or notice, Cowen, J., who gave the opinion of the court, saying that he could no more regard a special acceptance as operating to take from the duty of the carrier than a general one, and that the one was as much a contract as the other, the only difference being in the different kind of evidence by which the contract was made out. Sec. 401. (§ 237.) Carrier may limit liability by special contract. But a few years after this decision, the very same question came before the supreme court of the United States in the case of The New Jersey Steam Navigation Company v. The Merchants' Bank,20 and the ruling in Gould v. Hill was disapproved, the court being unanimously of the opinion that a common carrier might, at least by special contract, restrict his liability. This decision was soon followed in the courts of New York, in which the decision in Gould v. Hill was abandoned as untenable,21 and the right of the carrier thus to limit his responsibility has ever since remained unquestioned in that state, and may now be stated as the well settled law of most of our states, 22 as well as of the supreme court of the United States.2 23 20. 6 How. 344. 21. Parsons v. Monteath, 13 Barb. 353; Morse v. Evans, 14 id. 524; Dorr v. N. J. S. Nav. Co., 1 Ker. 485; Stoddard v. Railroad, 5 Sand. 180. 22. Connecticut: Camp v. Steamboat Co., 43 Conn. 333; Mears v. Railroad Co., 75 Conn. 171, 52 Atl. Rep. 610, 96 Am. St. Rep. 192, 56 L. R. A. 884. Georgia: Cooper v. Railroad Co., 110 Ga. 659, 36 S. E. Rep. 240, citing Hutchinson on Carr. Illinois: Ill. Cent. R. R. v. Mor. rison, 19 Ill. 136; W. Trans. Co. v. Newhall, 24 Ill. 466; Adams Ex. Co. r. Haynes, 42 Ill. 89; Am. Ex. Co. v. Schier, 55 Ill. 140; Ill. Cent. R. R. Co. v. Frankenberg, 54 Ill. 88. Indiana: Evansville, etc. R. R. Iowa: Mulligan r. The Railroad, Louisiana: Roberts . Riley, 15 Maine: Fillebrown v. Railroad Massachusetts: Judson r. Railroad Co., 6 Allen, 486; Perry v. 1 |