grounded, from which she might relieve herself, with safety and convenience, by temporarily unlading a part of the cargo upon. the shore, and then replacing it on board after the vessel was afloat, and thus completing the voyage, is no ground for the transshipment of the whole cargo.9 10 7. In the case of goods transported by sea, it has been held competent to prove the common result of transporting goods the same voyage, whether they usually arrive in a safe or damaged condition, as a ground of presumption of negligence or the contrary.1 But we should apprehend that, generally, it must be assumed that transportation by sea or land would not be undertaken or continued, unless, in the common run, the goods might be expected to reach their destination in safety. And unless protected by his own contract, the carrier would be responsible for all damage, whether with or without his fault. 8. In a recent English case, in regard to equality of charges on packed parcels, it became material to prove that the carriers had knowledge of the practice of sending packed parcels in bulk, and then distributing them upon arrival at their destination. The following question and answer were raised at the trial, and approved by the full bench: "Has this practice been notorious?" It was answered that, for the last forty years, it had been so general as to be notorious among carriers.11 • Cox, Brainerd, & Co. v. Forcue, 37 Ala. R. 505. 10 Stale & Burgess v. Townsend, 37 Ala. R. 247. 11 Sutton v. Southeastern Railw. Co., 11 Jur. N. S. 935. It was decided in this case that the court will not grant an injunction before trial to restrain an overcharge by a railway company for packed parcels. SECTION XVI. Strangers bound by course of Business and Usages of Trade. 1. Those who employ railway companies 3. Contracts for transportation contain, by bound to know the manner of transact- implication, known usages of the busiing their business. 2. General usages of trade presumed to be familiar to all. ness. § 166. 1. Questions of some difficulty often arise in regard to the effect of usage in the carrying business. If it is understood, as applicable to railways, as synonymous with the general course of transacting the business of carriers, by railway companies, then * those who employ them are undoubtedly bound to take notice of it.1 1 St. John v. Van Santvoord, 25 Wend. 660; s. c. 6 Hill, 157. This case, perhaps, illustrates this subject about as well as any one. In the Supreme Court it was considered that had the owners of the goods known that defendant was not a carrier beyond Albany, he would only have been bound to the end of his route; but as this was not known to the owners, and defendants gave a general receipt, describing the box by its mark, "J. Petrie, Little Falls, Herkimer Co.," the plaintiffs were at liberty to infer they were carriers to that point, and therefore they were responsible for its safe delivery at its destination. This decision was reversed in the Court of Errors, and Chancellor Walworth, delivering the leading opinion, said: "If the owner of the goods neglects to make the necessary inquiry as to the usage and custom of the business, or to give directions as to the disposal of the goods, it is his own fault, and the loss, if any after the carrier has performed his duty, according to the ordinary course of his trade and business, should fall upon such owner, and not upon the common carrier." The Chancellor argues further, that, from the circumstances, the plaintiffs had no right to expect a personal delivery by the defendant, and therefore the law did not require it. In the case of Gibson v. Culver, 17 Wend. 305, Justice Cowen seems to suppose that the carrier by stage-coach is, in the first instance, bound to personal delivery, and that, in order to exonerate himself from that obligation, he must show a custom or usage of such notoriety as to justify the jury in finding that it was known to the plaintiffs, in order to excuse the carriers. But it should be noted that this was as far as it was necessary to go in this case in order to excuse the carrier, and it is therefore not certain how far the court might have gone here if the facts had required it. For in 6 Hill, 158, this view is altogether repudiated, and the more rational one adopted, that if 2. The usages of any particular trade, such as are uniform or general, are presumed to be familiar to all persons having transactions in that trade or business; and all parties making contracts upon any subject, leave such incidents as are presumed to be familiar to both parties, and in regard to which there cannot ordinarily be any misunderstanding, to implication merely. 3. The same is eminently true of the carrying business, upon the great thoroughfares of the country. Contracts are made, by way of memorandum merely, and to a jury, who know nothing of the usages and course of business in such transactions, would be quite unintelligible, and could only be made to express the real purpose of the parties, in connection with such usages and course of business as is presumed to be in the minds of the parties at the time of entering into the contract. And if one of the parties assumes to transact such business, in ignorance of the very elementary usages of the business, he is not allowed to gain an unjust advantage of the other party by means of his own voluntary or rash ignorance, nor is the other party at liberty to take advantage of such ignorance and inexperience *(when made known to him) to induce such inexperienced one to assume an unequal risk on his part. But where the usage or custom is resorted to for the purpose of controlling the general principles and obligations of the law of contract, there is no doubt of the necessity of showing its notoriety, as well as its reasonableness and justice. The latter qualities are generally supposed to be sufficiently shown by the general acquiescence of the public in the usage. But where the complaint against the carrier was for not delivering cotton in good condition, a plea that it was the custom known to the plaintiff to transport cotton and other freight between the one is ignorant of the course of business on the route, he is bound to make inquiry, and cannot make a contract, with his eyes closed, and thereby impose a greater obligation upon the other party, in consequence of his own voluntary want of comprehension. See also the opinion of the court in F. & M. Bank v. Ch. T. Co., 23 Vt. R. 211, 212. In Cooper v. Berry, 21 Ga. R. 526, it is said that usage may be resorted to for the purpose of showing that common carriers of certain goods are only subject to a modified responsibility in regard to their preservation, it having been the uniform practice for the carriers to except, in their bills of lading, all losses by fire, and this being known to the owners, or their agents. points named in the bill of lading, in open boats, and that all the damage which the cotton sustained was caused by the rains which fell during the voyage, was held good on demurrer.2 SECTION XVII. Cases where the Carrier is not liable for Gross Negligence. 1. Extent of English carriers' act. 2. Must give specification, and pay insurance. 5. Carrier is entitled to have an explicit declaration of contents. 3. Loss by felony of servants excepted. But 6. not liable unless by carrier's fault. But refusal to declare contents will not excuse the carrier for refusal to carry. 4. Not liable in such case, where the consignor | 7. This statute does not excuse carrier for uses disguise in packing. delay in the delivery. § 167. 1. Under the English Carriers' Act,1 the carrier is not liable for the carriage of articles there enumerated, as "articles 2 Chevaillier v. Patton, 10 Texas, 344. Where cotton is shipped through an agent, for that purpose he is authorized to bind his principal according to law. In the absence of proof to the contrary, the general law of common carriers is the power under which the agent acts. If a usage be sufficiently established, that will govern, because it is presumed to be known to the parties. And this presumption is conclusive upon the principal whether it is known to the agent or not. But a custom known only to the agent, and which is not so established as to make the law of the contract otherwise, will not bind the principal. By way of establishing a usage in shipping upon a particular river, it is competent for a witness to testify as to what has been his habit and custom in shipping on all the boats of said river, as well as on the particular boat upon which the loss occurred, which is the subject-matter of controversy. To make a usage good, it must be known, certain, uniform, reasonable, and not contrary to law ; and if boats on a certain river, or a certain boat on that river, gave sometimes bills of lading containing an exemption from loss by fire, and at other times bills of lading containing no such exemption, then no such usage is established for want of uniformity. And even if, in a majority of cases, bills of lading contain such clauses of exemption, still the usage is not sufficiently proven to make it the law of the contract between the parties. Berry v. Cooper & als. Exʼrs., 28 Ga. R. 543. 1 1 Wm. 4 & 11 Geo. 4, c. 68. Looking-glasses being specified in the act, it was held to extend to a "large looking-glass." Owens v. Burnett, 2 Car. & Marsh. 357. Some other curious inquiries have arisen under this act, in regard to its extent. Thus the word "trinkets," used in the act, was held not to comprehend an eye-glass with a gold chain attached. Davey v. Mason, 1 Car. & Marsh. 45. And also that "silks" does not include silk dresses, made up for wearing. Id. Hat bodies, made partly of wool and partly of fur, are not of * great value in small compass," with certain specified ones, as "money, bills, notes, jewelry," &c., if the requisitions of the statute are not complied with, although the goods be lost through the gross negligence of the carrier or his servants.2 “furs.” Mayhew v. Nelson, 6 Car. & P. 58. So, too, a bill of exchange, accepted blank, and sent to the party for whose benefit it was accepted, and who was expected to sign it, as drawer, and which was lost before it reached its destination, is not a bill or note, within the act. 2 Hinton v. Dibbin, 2. Q. B. 646. Lord Denman, Ch. J., here said: "The question for our decision is, whether, since the passing of the said act, a carrier is liable for the loss of goods, therein specified, by reason of gross negligence. . . . . In putting an interpretation upon this statute, for the first time, we necessarily feel the case to be one of considerable importance, both because it is the first, and also because it regards a subject upon which much doubt and uncertainty have existed, making it expedient, therefore, that the question should be finally settled. In deciding upon this statute, we must of course be regulated by its language; and the state of the law at the time of its passing is material only so far as it enables us to discover the mischief for which it was intended to apply a remedy. It is then enacted that no such common carrier shall be liable for the loss of or injury to any property therein specified (including silks) above the value of £10, unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such carrier, or to his servant, for the purpose of being carried, the value and nature of such property shall have been declared, and such increased charge as thereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such property. By the first section, therefore, thus briefly abstracted, the exemption of the carrier from liability is absolute and complete, unless the preliminary thereby made indispensable, is complied with by the owner of the goods. The increased charge is, by the second section, declared to be what the carrier is entitled to receive over and above the ordinary rate of carriage for the conveyance of the species of property before enumerated, when above £10; such increased rate of charge to be notified by some notice to be affixed in some conspicuous part of the office, warehouse, or receiving-house where goods are received for carriage. By section 4, it is provided, that no public notice or declaration shall exempt any carrier from his liability at common law for the loss of or injury to any articles other than those in the first section enumerated, but that, as to such other articles, his liability, as at common law, shall remain notwithstanding such notice. From which exception, as to the liability of the carrier in respect of goods not enumerated, it seems impliedly to follow, that, as to those which are, protection is afforded to him in the manner above set forth. By section 8, it is enacted, that nothing in this act shall be deemed to protect such carrier from the felonious acts of any servant in his employ, nor to protect such servant from liability for any loss or injury by his own personal neglect or misconduct. The former branch of the clause is, to say no more, at least consistent with the supposition that for conduct short of |