upon which their transportation was suspended, he holds the goods for immediate shipment, and his liability as a common carrier at once commences. And although he may delay in sending them forward, or for his own convenience place them temporarily in store, his liability as a common carrier will still remain.60 But if the warehouseman or forwarding agent have no interest in the vessel or vehicles by which the goods are to be transported and no interest in the freight to be earned, he will not be liable as a common carrier, although he take upon himself to pay the expenses of the transportation for which he is to receive compensation from the owner of the goods.61

Sec. 73. (64.) Water-craft, railways and express companies are chief carriers.-But by far the greater part of the carrying business is now done by sea-going and coasting vessels, vessels and steamboats upon lakes and rivers, canal-boats, railways and express companies. These, in fact, except in mere local transportation, have an almost complete monopoly

60. Schmidt v. Railway Co., 232; Brown v. Denison, 2 Wend. supra.

Where the agent of a steamboat company informed a prospective passenger that it would be advisable for her to forward her baggage to the steamer a few days in advance of the time of sailing, and that it would be placed in her stateroom as soon as received, and the baggage was sent as directed, but for temporary convenience was placed in a storehouse where it was destroyed by fire, the steamship company was held responsible as a common carrier for the loss. North German Lloyd S. S. Co. v. Bullen, 111 Ill. App. 426.

61. Story on Bail., § 502; Briggs v. The Railroad, 6 Allen, 246; Platt v. Hibbard, 7 Cow. 497; Roberts v. Turner, 12 Johns.

593; Ackley v. Kellogg, 8 Cow. 223; Stannard v. Prince, 64 N. Y. 300; Teall v. Sears, 9 Barb. 317.

If the owner of goods deposits them for storage with a warehouseman who is also a common carrier, and later terminates the storage agreement, pays the storage charges, and orders the goods to be carried to his residence, the liability of common carrier commences at the time of the acceptance of the owner's order for transportation; and if the goods are destroyed by fire after such order is given, but before delivery, the warehouseman will be liable as a common carrier for their loss. Snelling v. Yetter, 49 N. Y. Supp. 917, 25 App. Div. 590.

of the carrying trade, and have become so identified with the business that the very name of common carrier suggests them at once to the mind, and the case in which litigation should arise, involving the duties and liabilities of the common carrier, which did not concern one of these, would be exceptional.

Sec. 74. (65.) Owners of ships are usually common carriers. Ships have always been the great carriers in the commerce of the world; but it was not determined until the time of Charles II., in England, that they were common carriers, and liable as such. The question there first arose in the Court of King's Bench in the case of Morse v. Slue, reported in 1 Ventris, 190, and it was decided, upon great consideration, as we are told, that the master of the ship, although entirely blameless, was liable for the goods which had been intrusted to him for carriage, the loss not having occurred by the act of God or of the king's enemies, but from robbery. This judgment has never since been questioned and has often been recognized by courts of the highest authority as incontrovertible law.62 And they are liable as common carriers whether the transportation be from port to port within the same state or country, or beyond the sea, at home or abroad.63 But, although the owners of ships are in general terms said to be common carriers, yet this is to be understood with the qualification that they bring themselves within the terms of the definition of a common carrier; and the question, whether common carrier or not, when applied to a ship as well as when the question is as to the character in which any other vehicle of transportation by water is employed, is to be determined exactly upon the same principles as when the reference is to a carrier by land;

62. Laveroni v. Drury, 8 Exch. 166; 16 Eng. L. & E. 510; Coggs v. Bernard, Ld. Raym. 909; Boson v. Sanford, 2 Salk. 440; King v. Shepherd, 3 Story, 349; Hastings v. Pepper, 11 Pick. 41; Gage v. Tirrell, 9 Allen, 299; Clark v. Barnwell, 12 How. 272;

Propeller Niagara v. Cordes, 21 id. 7; The Delaware, 14 Wall. 579; The Maggie Hammond, 9 id. 435.

63. Elliott v. Rossell, 10 Johns. 1. Proprietors of ocean steamships are common carriers. Liverpool Steam. Co. v. Phenix Ins. Co., 129 U. S. 397.

and every ship which carries for hire is not necessarily a common carrier.64

Sec. 75. (§ 66.) Owners of steamboats and canal-boats are common carriers.-Steam vessels engaged in the coasting trade and in the navigation upon our bays, sounds and lakes, are also common carriers when engaged in the carrying trade for the general public, as has been repeatedly held.65 So steamboats upon our navigable rivers are almost universally carriers of both passengers and freight, and as to such freight and the baggage of their passengers they are strictly common carriers; and at least as to such freight as is usually carried by them, they will be considered conclusively liable as common carriers.66 And owners of canal-boats come strictly within the

64. It is stated by Mr. Parsons in his work on Shipping, p. 174, and by other authorities, that no ship is a common carrier that does not ply regularly on some definite route or between certain termini as a packet, and that a general ship is not a common carrier. The law has, however, been generally assumed to be otherwise. In the Liver Alkali Co. v. Johnson, L. R. 9 Exch. 338, this point came directly before the court of Exchequer Chamber. The defendant was a barge owner and let out vessels for the conveyance of goods to any customers who applied to him. Each voyage was made under a separate agreement and a barge was not let to more than one person. The defendant did not ply between any fixed termini, but the customer fixed in each particular case the points of arrival and departure; and it was held, affirming the judgment of the Court of Exchequer (L. R. 7 Exch. 267), that the defendant had incurred the liability of a common carrier and was liable

though the goods were lost with cut any fault on his part.

65. Schooner Reeside, 2 Sumner, 567; Crosby v. Fitch, 12 Conn. 410; McClure v. Hammond, 1 Bay. 99; Sch'r Emma Johnson, 1 Sprague, 527; Oakey v. Russell, 18 Mar. (La.) 58; Parker บ. Flagg, 26 Me. 181; The Propeller Commerce, 1 Black, 582; The Niagara v. Cordes, 21 How. 26; Clark v. Barnwell, 12 id. 272; The Commander-in-Chief, 1 Wall. 51; Hastings v. Pepper, 11 Pick. 41.

66. Citizens' Bank v. The Nantucket S. B. Co., 2 Story, 16; Jencks v. Coleman, 2 Sumner, 221; Gilmore v. Carman, Sm. & M. 279; McGregor v. Kilgore, 6 Ohio, 358; Bowman v. Hilton, 11 id. 303; McArthur v. Sears, 21 Wend. 190; Dunseth v. Wade, 2 Scam. 285; Hart v. Allen, 2 Watts, 114; Harrington v. M'Shane, id. 443; Warden v. Greer, 6 id. 424; Pardee v. Drew, 25 Wend. 459; Porterfield v. Humphreys, 8 Humph. 497; Kirtland v. Montgomery, 1 Swan, 452; Swindler v. Hilliard, 2 Rich. 286; Hollister v. Nowlen,

rule, if they carry for all persons, indifferently, for hire, but they may show that they were merely private carriers.68

Sec. 76. (§ 67.) Railroad companies are common carriers.Railroad companies are, by their very nature and organic character, common carriers, whether made so by the general statute or by their charters, or not; and whenever they are made so by the express provisions of a law, such provisions will be considered as merely declaratory of the law as it already existed,69 and will neither increase their duties and obligations nor in any respect qualify their liability. They have sometimes attempted to defend themselves from liability by disputing the proposition that they were common carriers, but the contention has received no countenance from the courts, and it has been held in many cases, for reasons peculiarly applicable to them, that, as carriers of both passengers and freight, the rules as to the responsibility of common carriers and of passenger carriers should be applied to them with full 19 Wend. 234; Cole v. Goodwin, id. R. A. 251, citing Hutchinson on 251; Hale v. The N. J. Nav. Co., Carr. 15 Conn. 539; Jones v. Pitcher, 3 Stew. & P. 136; Sprowl v. Kellar, 4 id. 382; Powell v. Myers, 26 Wend. 591; Reed บ. Steamboat Co., 1 Marr (Del.), 193, 40 Atl. Rep. 955.

67. Hyde v. The Trent Nav Co., 5 T. R. 389; The Trent Nav. Co. v. Wood, 3 Esp. 127; Harring ton . Lyles, 2 Nott & McCord, 88; Williams v. Branson, 1 Murph. 417; Fuller v. Bradley, 25 Pa. St. 120; Spencer v. Daggett, 2 Vt. 92; De Mott v. Laraway, 14 Wend. 225; Arnold v. Hallenbake, 5 id. 33; Parsons v. Hardy, 14 id. 215; Bowman v. Teal, 23 id. 306; Humphreys v. Reed, 6 Whart. 435; Fish v. Clark, 49 N. Y. 122. 68. See post, § 89.

69. Thompson, etc., Electric Co. v. Simon, 20 Or. 60, 25 Pac. Rep. 147, 23 Am. St. Rep. 86, 10 L.

In the case of the Chicago, etc., R. R. v. Thompson, 19 Ill. 578, in which the defendant was sued for the loss of bank bills delivered to it for carriage, it was contended that neither the charter of the road nor any other law of the state made it a common carrier for any purpose, and certainly not one for the carriage of bank bills. But the court said in reply to this objection, "We suppose it is not necessary that the charter should provide in so many words that the railroad created by it shall be a common carrier. The authorities are numerous to the point that such companies, using cars for the purpose of carrying goods for all persons indifferently for hire, and whose custom and uniform practice is to do so, are common carriers and liable as

74

force. Being recognized as public utilities as well as private enterprises, extensive rights and franchises have been conferred upon them which are not enjoyed by other carriers, among these being the right to invoke the power of eminent domain. Not only have they been fostered by the government, but by reason of aggregation of capital and the great facilities which they control for the transportation of all the commodities of commerce, they have practically monopolized the land carriage of the country. It is but just, therefore, that in their dealings with the public, whether as carriers of goods or of passengers, they should be held to that strict accountability which the public safety and policy require. As said by Shaw, C. J., in Norway Plains Company v. The Railroad,70 "that railroad companies are authorized by law to make roads as public highways, to lay down tracks, place cars upon them and carry goods for hire, are circumstances which bring them within all the rules of the common law and make them eminently common carriers. Their iron roads, though built in the first instance by individual capital, are yet regarded as public roads, required by common convenience and necessity, and their allowance by public authority can only be justified on that ground. Being liable as common carriers the rule of the common law attaches to them, that they are liable for losses occurring from any accident which may befall the goods during the transit, except those arising from the act of God or a public enemy." And thus the law has been everywhere held with the most perfect unanimity.71

.

such. There can be no doubt on this point."

70. 1 Gray, 263.

71. Thomas v. The Boston, etc., R. R., 10 Met. 472; Rogers Locomotive Works v. The Railroad, 5 C. E. Green (N. J.), 379; Fuller v. The Railway, 21 Conn. 570; Jones v. The Railroad, 27 Vt. 399; Noyes v. The Railroad, id. 110; Root v. The Railroad, 45 N.

Y. 524; Contra Costa, etc., R. R. v. Moss, 23 Cal. 323; Elkins v. The Railroad, 3 Foster, 275; East Tennessee, etc., R. R. v. Nelson, 1 Cold. 272; Railroad Co. v. Queen City Coal Co., 13 Ken. Law Rep. 832; Memphis News Publishing Co. v. Railway Co., 110 Tenn. 396, 75 S. W. Rep. 941, 63 L. R. A. 150, citing Hutchinson on Carr.