control of the defendant at the time of the loss, nor was it in any sense the fault of the defendant that it was not so. On the arrival from Canada into the state of New York it was taken into the possession of such customs officers, as was usual, and required by the customs and navigation laws of the United States and the regulations adopted by the secretary of the treasury pursuant to such laws. The defendant, therefore, is not liable as a common carrier for the loss, unless it may, for some cause, be attributable to its negligence. It is not claimed that the fire was chargeable to any fault on its part." This reasoning applies to the case at bar, and is equally applicable where the fire occurs in transit as where it occurs in the custom house at the place of destination. There is no proof of deviation and nothing tending in any way to charge the defendant, directly or indirectly, with the fire at Queensboro Pier. The parties must be presumed to have contracted with the common knowledge of the necessity for customs detention and inspection, and the burden was on the plaintiff to make provision for the passage of his property beyond the borders of the foreign territory if nondutiable. The defendant was wholly powerless to prevent its seizure and detention, and on the authority of the case cited cannot be held liable for its destruction, while in the possession of the foreign government, by a fire which it did not occasion, and which it could not, by any possible act of diligence, have prevented. * * * The judgment should be reversed.“ 40 Compare cases p. 117, note 4. For other cases not within the rule of exceptional liability, see Transportation Not Within the Contract of Carriage, ante, p. 88; Excuses for Failure to Transport and Deliver, ante, p. 113. CHAPTER IV LIMITATION OF LIABILITY SECTION 1.-LIMITATION OF LIABILITY BY NOTICE HOLLISTER v. NOWLEN. (Supreme Court of New York, 1838. 19 Wend. 234, 32 Am. Dec. 455.) This was an action against. the defendant as a common carrier for the loss of the plaintiff's trunk and contents. A case was agreed on between the parties stating the following facts: The defendant was a member of a company, the proprietors of the three daily lines of stagecoaches running between Canandaigua and Buffalo, one of which was called the Telegraph line. * * * On the 20th July, 1833, before daylight in the morning, the plaintiff left Avon in the defendant's coach on his way to Buffalo. The trunk was placed in the boot behind the coach, which was carefully secured by strong leather covering, fastened with strong leather straps, and buckles, and was made secure against any loss except by violence. After proceeding about three miles it was discovered that the straps confining the cover of the boot had been cut, and the plaintiff's trunk with its contents had been feloniously stolen and carried off. There was no negligence on the part of the defendant or his servants in relation to the trunk, further than may be implied from the facts above stated. The plaintiff left the stage, went back to Avon, and reported his loss; and the defendant offered a reward, and made all proper efforts for the recovery of the property, but without success. The Telegraph line was established in 1828. A public notice that baggage sent or carried in the Telegraph line would be at the risk of the owner thereof, printed on a large sheet, had been uniformly kept placarded in most of the stage offices and public houses from Albany to Buffalo; and particularly such notice had been continually affixed up in the stage office and principal public houses at Utica, where the plaintiff had resided for the last three years before the trunk was lost. It was stipulated that should the court be of opinion that the plaintiff was entitled to recover, judgment should be entered in his favor for $116.75, and interest from July 20, 1833, besides costs. BRONSON, J. * I should be content to place my opinion upon the single ground that if a notice can be of any avail, it must be 1 Parts of the statement of facts and of the opinion are omitted. directly brought home to the owner of the property; and that there was no evidence in this case which could properly be submitted to a jury to draw the inference that the plaintiff knew on what terms the coach proprietor intended to transact his business. But other questions have been discussed; and there is another case before the court where the judge at the circuit thought the evidence sufficient to charge the plaintiff with notice. It will therefore be proper to consider the other questions which have been made by the counsel. Can a common carrier restrict his liability by a general notice, in any form, brought home to the opposite party? * The doctrine that a carrier might limit his responsibility by a general notice brought home to the employer, prevailed in England for only a short period. In Smith v. Horne, 8 Taunt. 144, Burrough, J., said: "The doctrine of notice was never known until the case of Forward v. Pittard, 1 T. R. 27, which I argued many years ago." That case was decided in 1785, and it is remarkable that it does not contain one word on the subject of notice. If that question was in any form before the court, it is not mentioned by the reporter; and the decision was against the carrier, although the loss was occasioned by fire, without his default. The doctrine was first recognized in Westminster Hall in 1804, when the case of Nicholson v. Willan, 5 East, 507, was decided. Lord Ellenborough said, the practice of making a "special acceptance" had prevailed for a long time, and that there was "no case to be met with in the books in which the right of a carrier thus to limit by special contract his own responsibility has ever been by express decision denied." Whatever may be the rule where there is in fact a special contract, the learned judge could not have intended to say, that a carrier had for a long time been allowed to limit his liability by a general notice, or that a special contract had been implied from such a notice; for he refers to no case in support of the position, and would have searched in vain to find one. Only eleven years before (in 1793), Lord Kenyon had expressly laid down a different rule in Hide v. Proprietors, etc. 1 Esp. R. 36. He said: "There is a difference where a man is chargeable by law generally, and where on his contract. Where a man is bound to any duty and chargeable to a certain extent by the operation of law, in such case, he cannot by any act of his own discharge himself." And he put the case of common carriers, and said, they cannot discharge themselves "by any act of their own, as by giving notice, for example, to that effect." This case was afterwards. before the King's Bench, but on another point. 1 T. R. 389. The doctrine in question was not received in Westminster Hall without much doubt; and although it ultimately obtained something like a firm footing, many of the English judges have expressed their regret that it was ever sanctioned by the courts. Departing as it did from the simplicity and certainty of the common-law rule, it proved one of the most fruitful sources of legal controversy which has ex isted in modern times. When it was once settled that carrier might restrict his liability by a notice brought home to his employer, a multitude of questions sprung up in the courts which no human foresight could have anticipated. Each carrier adopted such a form of notice as he thought best calculated to shield himself from responsibility without the loss of employment; and the legal effect of each particular form of notice could only be settled by judicial decision. Whether one who had given notice that he would not be answerable for goods beyond a certain value unless specially entered and paid for, was liable in case of loss to the extent of the value mentioned in the notice, or was discharged altogether; whether, notwithstanding the notice, he was liable for a loss by negligence, and if so, what degree of negligence would charge him; what should be sufficient evidence that the notice came to the knowledge of the employer, whether it should be left to the jury to presume that he saw it in a newspaper which he was accustomed to read, or observed it posted up in the office where the carrier transacted his business; and then whether it was painted in large or small letters, and whether the owner went himself or sent his servant with the goods, and whether the servant could read-these and many other questions were debated in the courts, while the public suffered an almost incalculable injury in consequence of the doubt and uncertainty which hung over this important branch of the law. See 1 Bell's Com. 474. After years of litigation, Parliament interfered in 1830 and relieved both the courts and the public, by substantially reasserting the rule of the common law. St. 1 Wm. IV, c. 68. Without going into a particular examination of the English cases, it is sufficient to say that the question has generally been presented, on a notice by the carrier that he would not be responsible for any loss beyond a certain sum, unless the goods were specially entered and paid for; and the decisions have for the most part only gone far enough to say that if the owner do, not comply with the notice by stating the true value of the goods and having them properly entered, the carrier will be discharged. In these cases, the carrier had not attempted to exclude all responsibility. But there are two nisi prius decisions which allow the carrier to cast off all liability whatever. In Maving v. Todd, 1 Stark. R. 72, the defendant had given notice that he would not answer for a loss by fire, and such a loss having occurred, Lord Ellenborough thought that carriers might exclude their liability altogether, and nonsuited the plaintiff. In Leeson v. Holt, 1 Stark. R. 186, tried in 1816, he made a like decision; though he very justly remarked, that "if this action had been brought twenty years ago, the defendant would have been liable; since by the common law a carrier is liable in all cases except two." We have here, what will be found in many of the cases, a very distinct admission that the courts had departed from the law of the land, and allowed what Jeremy's Treatise on Carriers, 35, 6, very properly terms "recent innovations." Some of the cases which have arisen under a general notice have proceeded on the ground of fraud (Batson v. Donovan, 4 B. & Ald. 21); others on the notion of a special acceptance or special contract (Nicholson v. Willan, 5 East, 507; Harris v. Packwood, 3 Taunt. 271); while in some instances it is difficult to say what general principle the court intended to establish. So far as the cases have proceeded on the ground of fraud, and can properly be referred to that head, they rest on a solid foundation; for the common law abhors fraud, and will not fail to overthrow it in all the forms, whether new or old, in which it may be manifested. As the carrier incurs a heavy responsibility, he has a right to demand from the employer such information as will enable him to decide on the proper amount of compensation for his services and risk, and the degree of care which he ought to bestow in discharging his trust; and if the owner give an answer which is false in a material point, the carrier will be absolved from the consequences of any loss not occasioned by negligence or misconduct. * * * But it is enough for this case, that the question of fraud can never arise under such a notice as was given by the defendant. He did not say to the public that he would not be answerable for baggage beyond a certain sum, unless the owner disclosed the value; he said he would not be answerable in any event. It was, in effect, a notice that he would not abide the liabilities which the law, upon principles of public policy, had attached to his employment. If the notice can aid the defendant in any form, it certainly does not go to the question of fraud. The only remaining ground of argument in favor of the carrier, is, that a special contract may be inferred from the notice. Independent of the modern English cases, it seems never to have been directly adjudged that the liability of the carrier can be restricted by a special contract. * * * But, conceding that there may be a special contract for restricted liability, such a contract cannot, I think, be inferred from a general notice brought home to the employer. The argument is, that where a party delivers goods to be carried after seeing a notice that the carrier intends to limit his responsibility, his assent to the terms of the notice may be implied. But this argument entirely overlooks a very important consideration. Notwithstanding the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment. If the delivery of goods under such circumstances authorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights, as it is that he was willing to yield to the wishes of the carrier. If a coat be ordered from a me |