exemption from liability, even for gross neglect and wilful misconduct, could scarcely fail to do, when it is borne in mind that the entire business population of the realm almost was at the mercy of these same carriers. It is surely not to be regarded as matter of surprise, that the legislature felt compelled to interfere, to restore something of the reasonable responsibility of common carriers.22

The carrier is bound to carry safely, and if he fail to do so the burden is upon him to show a valid excuse. But if the contract of affreightment provide that such carrier shall not be liable for unavoidable damages of navigation, this has been construed to mean unavoidable by them, with the exercise of all the precaution, care, and skill which the law demands of common carriers.23 If the accident fell upon them without any previous fault of theirs, but in consequence of the vessel and crew proving deficient, after they had done all in their power, it is here said the defendants should be as free from liability as from fault. But common carriers should see to it that they have a sufficient boat and crew, and the fact it proves otherwise would seem to charge them with fault. But a loss by collision is covered by the exception in the bill of lading, "unavoidable dangers of the river navigation," if the carrier was without fault, although the collision was caused by the negligence of those navigating the other vessel.

Under the late English Railway and Canal Traffic Act, if the * carrier refuse to receive the goods, unless the owner assent to certain conditions which the judge trying the case considers reasonable, and the goods are left on these conditions, the carrier is not liable as a common carrier, but only upon the special undertaking.24

23 Hayes v. Kennedy, 3 Grant, 351; s. c. 41 Penn. St. 378. The meaning of the terms "act of God," "inevitable accident," &c., are here discussed.

24 White v. Great Western Railw, 40 Eng. L. & Eq. 255; s. c. 2 C. B. (N S.) 7.

* 280

SECTION XI.

Notices as to Ordinary and Extraordinary Responsibility of Carriers.

§ 161. 1. Many of the American writers, and some of the American courts, point to a distinction between notices of carriers, which propose to exonerate the carrier from all liability, even for gross neglect, and possibly for positive misfeasance and wrong, and such as have reference only to exemption from that extraordinary responsibility imposed by the common law, by which they become insurers. This distinction is pointed out by Prof. Greenleaf,2 and adopted by Mr. Angell in his treatise on Carriers.3

2

1 Farmers' & Mechanics' Bank v. Champlain Transportation Co., 23 Vt. R. 186 – 206, adopts the following language upon this subject: "But we regard it as well settled, that the carrier may, by general notice, brought home to the owner of the things delivered for carriage, limit his responsibility for carrying certain commodities beyond the line of his general business, or he may make his responsibility dependent upon certain conditions, as having notice of the kind and quantity of the things deposited for carriage, and a certain reasonable rate of premium for the insurance paid, beyond the mere expense of carriage.” 2 Greenl. Ev. § 215, where the author seems to put forth substantially the same view. "It is now well settled that a common carrier may qualify his liability, by a general notice to all who may employ him, of any reasonable requisition to be observed on their part, in regard to the manner of delivery and entry of parcels, and the information to be given to him of their contents, the rates of freight, and the like; as, for example, that he will not be responsible for goods above the value of a certain sum, unless they are entered as such, and paid for accordingly. But the right of a common carrier, by a general notice to limit, restrict, or avoid the liability devolved upon him by the common law on the most salutary grounds of public policy, has been denied in several of the American courts, after the most elaborate consideration."

Angell on Carriers, § 245.

* And Prof. Parsons, in his treatise upon Contracts, has an elaborate and learned note upon the subject, in which he adopts. fully the distinction, and arrives at the same conclusion here suggested.4

2. But the English cases do not seem to have brought out this distinction so clearly as the American writers upon this subject. It seems to be supposed, by many of the English judges, and some of the late English cases seem to go that length, under their late statutes (which we have referred to, § 160, and 167), that there is no positive objection to recognize the right of a common carrier to stipulate for exemption from all liability, even for gross neglect, or positive misfeasance.5

6

3. Under the more recent English statute, requiring carriers to annex only reasonable conditions to notices or special contracts connected with their transportation, the question has very often arisen of late; and the distinction between ordinary and extraordinary hazards has been often alluded to in discussing questions under that statute.

4. Thus a contract to transport fresh fish was held to involve such extraordinary risks that the carrier might reasonably annex a condition relieving him from all responsibility in consequence

4 1 Parsons on Contracts, 711, n. (h.)

5

Maving v. Todd, 1 Starkie, 72. This was a case where the goods, while upon the premises and in the care of the carrier, had been destroyed by an accidental fire. It appearing that the carrier had so limited his responsibility that it did not extend to loss by fire. Holroyd submitted whether defendants could exclude their responsibility altogether. This was going further than had been done in the case of carriers who had only limited their responsibility to a certain amount. Lord Ellenborough, Ch. J.: "Since they can limit it to a particular sum, I think they may exclude it altogether, and that they may say we will have nothing to do with fire." Leeson v. Holt, 1 Starkie, 186, is similar. This was where the carrier had given notice that the species of goods for which the suit was brought would be "entirely at the risk of the owners, as to damage, breakage, &c. Lord Ellenborough, Ch. J., said, in summing up to the jury, “In the present case they (the carriers) seem to have excluded all responsibility whatsoever, so that under the terms of the present notice, if a servant of the carrier had, in the most wilful and wanton manner, destroyed the furniture intrusted to him, the principal would not have been liable." See Phillips v. Edwards, 3 H. & N. 813.

• 17 & 18 Vict. c. 31, § 7.

of any delay in the arrival of the trains and consequent loss of market, unless it arose from his own gross negligence.7

5. And it has often been held that carriers might reasonably limit the extent of their responsibility for the loss or injury of dogs and horses on their trains, to a certain average and moderate value, unless the value was declared and a premium for insurance above that value paid. The reasonableness of such a condition is based somewhat upon the fanciful value often attached to these animals.

8

6. But under the English statute the carrier can only restrict his common-law responsibility by a reasonable limitation, which is embraced in a written contract signed by the party interested, or his agent, and such contract must either in itself, or by reference, set out or embody the condition. A general notice only consented to by the party would be valid for limiting the common-law liability of the carrier; but it must under the statute be embodied in a formal contract in writing, signed by the owner or person delivering the goods, and must be decided to be reasonable by the court.9

7. A condition exempting the carrier from all responsibility is unreasonable, and so is a condition that the carrier shall not be responsible for any damage unless pointed out at the time of delivery by the carrier.10 The burden of showing the reasonableness of a condition annexed to the carrier's undertaking rests upon such carrier.9

11

8. It was held in one case,11 that as carriers were bound to

* Beal v. Devon Railw. Co., 8 W. R. 651. It is here said, that in the case of a carrier, gross negligence includes the want of that reasonable care, skill, and expedition which may properly be expected from him. s. c. 3 H. & C. 337, in Exchequer Chamber.

› Harrison v. London, Brighton, & So. Coast R. Co., 6 Jur. N. S. 954.

• Peek v. North Staffordshire Railw. Co., 9 Jur. N. S. 914; s. c. 10 Ho. Lds. Cas., 473. Aldridge v. Great Western Railw. Co., 15 C. B. N. S. 582. It is here held that a carrier is not to be regarded as a mere gratuitous bailee in carrying back vessels free of charge by contract at the time of carrying them filled for pay.

10 Lloyd v. Waterford & Limerick Railw. Co., 9 Law T. N. S. 89, 15 Ir. Com. L. 37; Allday v. Great Western Railw. Co., 11 Jur. N. S. 12.

11 Garton v. Bristol & Exeter Railw. Co., 1 El. Bl. & S. 112; s. c. 7 Jur. N. S. 1234.

carry for all who applied, and on reasonable terms, they could not make a condition excusing them from all responsibility for packages insufficiently packed.

9. So, also, a condition on cattle tickets, that the carrier shall be free from all risk or responsibility with respect to any loss or damage arising in the loading or unloading, or in the transit, from any cause whatever, it being agreed that the animals are carried at the owner's risk, and that he is to see to the efficiency of the wagon before the stock is placed therein, and complaint to be made in writing to the company's agent before the wagon leaves the station, is neither just nor reasonable; 12 and such a special contract cannot be maintained under the English statute, and it would seem ought not to be regarded as fairly and freely entered into by the owner, in the absence of all statutory provision.

10. Where cattle carried beyond the place of destination, and being out of condition, are injured in the sense of that term, under the English statute, and unquestionably so under the general responsibility of the carrier, the carrier cannot excuse himself by a general contract with the owner to be relieved from all responsibility for damage in overcarriage, delay, or in the conveying or delivery of said animals.13

12 Gregory v. West Midland Railw. Co., 2 H. & C. 944; s. c. 10 Jur. N. S. 243.

Allday v. Great Western Railw. Co., 11 Jur. N. S. 12.