act of God, or public enemies. According to Lord Holt, it was "a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs obliged them to trust these sorts of persons;" and it was introduced to prevent the necessity of going into circumstances impossible to be unravelled. The

law presumed against the public carrier, unless he *603 could show it was done by public enemies, or such acts as could not happen by the intervention of man, as lightning and tempests. If it were not for such a rule, the carrier might contrive, by means not to be detected, to be robbed of his goods in order to share the spoil. Sheriffs and gaolers, in respect to debtors in custody, have been placed under the same responsibility as common carriers.b

The common carrier is responsible for the loss of a box or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance.c But the rule is

Jones on Bailment, 79-85. Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 909. Barclay v. Hygena, cited in 1 Term Rep. 33. Trent Navigation Co. v. Wood, 3 Esp. N. P. Rep. 127. Hyde v. Trent and Mersey Navigation Co, 5 Term Rep. 389. If a vessel be lost by means of the shifting of a buoy in the channel, the common carrier is still responsible. It was not an unavoidable peril. Reaves v. Waterman, 2 Speer's S. C. Rep. 197.

Elliott v. Duke of Norfolk, 4 Term Rep. 789. Alsept v. Eyles, 2 H. Blacks. Rep. 108. Green v. Hern, 2 Penn. Rep. by P. & W. 167. Ch. J. Gibson, in this last case, vindicates with great force the stern policy of the rule of the common law, in its application to sheriffs and gaolers. The Code Napoleon, and the Civil Code of Louisiana, have declared, in the same words, that carriers and watermen were subject to the like obligations and duties as tavernkeepers, and that they were responsible for goods entrusted to them, against loss and damage by theft or otherwise, unless they could show that the loss proceeded from force majeure, or uncontrollable events. Code Napoleon, art. 1929. 1953, 1954. 1782, 1784. Civil Code of Louisiana, art. 2722. 2725. 2910. 2939.

• Titchburne v. White, 1 Str. Rep. 145. Phillips v. Earle. 8 Pick. Rep. 182. Malpica v. M'Kown, 1 Miller's Louis. Rep. 248. The latter case speaks of the principle as doubtful; but concludes it to be the better opinion

subject to a casonable qualification; and if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the value or nature of the article, or deludes him, by his own carelessness in treating the parcel as a thing of no value, he cannot hold him liable for the loss of the goods. Such an imposition destroys all just claim to indemnity; for it goes to deprive the carrier of the compensation which he is entitled to, in proportion to the value of the article intrusted to his care, and the consequent risk which he incurs; *and it tends to lessen the vigilance that the car- *604 rier would otherwise bestow.a

If goods be destroyed by necessity, as by throwing them overboard from a vessel or barge, for the preservation of the vessel and crew in a tempest, the carrier is not liable. The responsibility of the common carrier does not commence until there has been a complete delivery to him; and if, according to the usage of the business, it be a sufficient delivery to leave the goods on the dock, by or near the carrier's boat, yet this must be accompanied with express notice to the carrier. When the responsibility has begun, it continues until there has been a due delivery by him, or he has discharged himself of the custody of the goods in his character of common carrier. There has been some doubt in the books, as to what facts amounted to a delivery, so as to discharge the common carrier. If it be the business of the

that the master would be responsible for a trunk or parcel received on board of a vessel without any information of its contents, unless there be a notice or declaration that he was not to be responsible.

a Gibbon v. Paynton, 4 Burr. Rep. 2298. Clay v. Willan, 2 H. Blacks. Rep. 298. Batson v. Donovan, 4 Barnw. & Ald. 21. Phillips v. Earle, 8 Pick. Rep. 182. Baldwin v. Collins, 9 Robinson's Louis. Rep. 468. And see supra, 601, note a.

b Mouse's case, 12 Co. 63. Smith v. Wright, 1 Caines' Rep. 43.

Packard v. Getman, 6 Cowen's Rep. 757. And see, also, Selway v. Holloway, 1 Ld Raym. 46. Cobban v. Downe, 5 Esp. Rep. 41.

d Garside v. Trent and Mersey Navigation Company, 4 Term Rep. 581. Hyde v. Trent and Mersey Navigation Company, 5 Term Rep. 389.

a

carrier to deliver goods at the house to which they were directed, he is bound to do so, and to give notice to the consignee. In Hyde v. Trent and Mersey Navigation Company, it was much discussed whether the carrier was bound to deliver to the individual at his house, or whether he discharged himself by delivery to a porter, at the inn in the place of destination. The opinion of the majority of the court (though there was no decision on the point) was that the risk of the carrier continued until a personal delivery at the house or place of deposit of the consignee, with notice. The actual delivery to the proper person is generally conceded to be the duty of the carrier ; *and it is settled that he cannot dispute the title of a party who delivers goods to him. The consignee may take charge of the goods on their passage, and before they have arrived at the extreme or ultimate place of delivery, and the carrier's risk will then terminate.e In New-York, it was held, in Ostrander v. Brown,f that placing goods on the wharf, without

605*

C.

■ Golden v. Manning, 2 Wm. Blacks. Rep. 916. 3 Wilson, 425. 433. S. Storr v. Crowley, 1 M'Clel. & Young, 129.

b 5 Term Rep. 389.

e Smith v. Horne, 8 Taunt. Rep. 144. Bodenham v. Bennet, 4 Price's Exch. Rep. 31. Garnett v. Willan, 5 Barnw. & Ald. 53. Duff v. Budd, 3 Brod. & Bing. Rep. 177. Bonney v. The Huntress, District Court of Maine, 1840. In Muschamp v. Lancaster R. W. Co. 8 Meeson & W. 421, the important principle was declared, that if a parcel be delivered to the carrier whose principals carry only to a particular place, to be carried continuously by different lines to the ultimate place, the principals remain responsible for the safe delivery to the ultimate destination.

# 15 Johns. Rep. 39. In Chickering v. Fowler, 4 Pick. Rep. 371, it was held, that in the absence of any special custom, a delivery at the wharf, which is the usual place of delivery, with notice to the consignee, is a delivery to the consignee. House v. Schooner Lexington, N. Y. District Court, 2 N. Y. Legal Observer, 4, S. P. The same rule was declared in Cope v. Cordova, 1 Rawle's Rep. 203; and it was grounded on the fact of the general practice in relation to goods coming from a foreign port. New York, in the case of Fox v. Blossom, (N. Y. Common Pleas, October,

In

notice to the consignee, is not a delivery to the consignee, so as to discharge the carrier, even though there was a usage to deliver goods in that manner. The carrier must not leave or abandon the goods on the wharf, even

1828,) it was proved upon the trial to be the understanding, that the carrier's responsibility ceased when the goods were landed on the wharf; but the decision was that the delivery was not complete until the goods were carefully separated and designated for the consignee. And in the case of Pacard v. Bordier, decided in the supreme court of Louisiana, in the winter of 1831-32, it was held, that landing goods by the captain of a vessel on the levee at New Orleans, being the usual place of unloading, with notice in the newspapers to the consignees was not sufficient. The notice must be brought home to the consignee. So, a person undertook to carry boxes of lumber down the river to a certain cove, and being refused a place of deposit there, he deposited them near by, in as safe a place as could be found, and left them, and they were afterwards carried away by the flood and lost, and he was held responsible. The carrier did not continue his care until he had given notice to the owner, and until the latter had a reasonable time to assume the care of them, and therefore he was held liable. Picket v. Downer, 4 Vermont Rep. 21. In the case of Gibson v. Culver, 17 Wendell, 305, the duty of the common carrier received a full discussion, and it was considered to be the settled rule, that actual delivery of the goods to the consignee was necessary in order to discharge the carrier, unless it was the course of the business to leave the goods at specified places, and then notice of the arrival and place of deposit, comes in lieu of personal delivery. Carriers by ships and boats must stop at the wharf, and railroad cars must remain on the track. Nothing will dispense with the necessity of the notice instead of actual delivery, but some uniform and notorious usage presumed to be known to the consignee. The necessity of delivery of baggage to the passenger at the end of his journey by the common carrier before his responsibility can cease, was strongly inculcated by the judges in the case of Cole v. Goodwin, 19 Wendell, 251, and also in Powell v. Myers, 26 Wendell, 591. So in Hemphill v. Chenie, 6 Watts

Serg. 62, it was held that the responsibility of a carrier upon the Ohio River did not cease upon the delivery of goods on the wharf with notice to the consignee. There must be an actual delivery to the consignee. Though as a general rule the carrier must deliver the goods to the consignee at the place of delivery, yet where the transportation is by vessels or boats, notice of the arrival and place of deposit comes in lieu of personal delivery. If the consignee be dead or cannot be found, or refuses to receive, the carrier may relieve himself by placing the goods in store with a responsible person in that business at that place, and the storekeeper becomes the agent or bailee of the owner of the property. Fisk v. Newton, 1 Denio, 45.

though there be an inability or refusal of the consignee to receive them.

*606

As carriers by water were liable at common law to the same extent as land carriers, and as their responsibility was more extensive, and their risk greater, from the facilities for the commission of acts of fraud and violence upon the water, it was deemed, in England, a proper case for legislative interference to a guarded and limited extent. The statute of 7 Geo. II. ch. 15, and 26 Geo. III. ch. 86, and 53 Geo. III. ch. 159, exempted owners of vessels from responsibility as common carriers for losses by fire; and provided further, that the owner should not be liable for the loss of gold, silver, diamonds, watches, jewels or precious stones, by robbery or embezzlement, unless the shipper inserted in the bill of lading, or otherwise declared in writing to the master or owner of the vessel, the nature, quality, and value of the articles; nor should he be liable for embezzlements, or loss or damage to the goods arising from any act or neglect, without his fault or privity, beyond the value of the ship and freight; nor should part owners in those cases be liable beyond their respective shares in the ship and freight. Though we have only in one or two instances such statute provisions in this country,b yet,

⚫ Wilson v. Dickson, 2 Barnw. & Ald. 2. The statute of 53 Geo. III. further limited the responsibility of ship-owners for damage done, without their fault, to other vessels or their cargoes, to the value of the ship doing the damage at the time of the accident.

In Massachusetts, the responsibility of owners was, by a statute passed in 1818, and re-enacted in the Revised Statutes of 1835, part 1. tit. 12. ch. 32. sec. 1 and 2, limited to the value of their interest in the ship and freight, in cases where they were liable for loss and damage occasioned by the acts of the master or mariners. By the statute of New York of April 13th, 1820, ch. 202, the conduct of canal boats are under specific regulations, and freight-boats are bound to afford facilities to the passage of packet or passenger boats, through the locks and on the canals, and the master and owners are held responsible in damages for injuries resulting from any undue non-compliance with their duty. Farnsworth v. Groot, 6 Cowen's Rep. 698.