delivered to the shipper. It is specifically stated upon this memorandum that it is not the original bill of lading nor a copy or duplicate, and is intended solely for filing or record. Duplicate or triplicate bills of lading, so called, have sometimes been issued on request of the shipper by vessels engaged in domestic trade and also by railroads. Such duplicates have given rise to some confusion. It has been sometimes supposed that the duplicates were originals like the parts of a bill issued in sets. This view, however, seems unsound. The fundamental distinction lies in the provisions contained in each part of a bill of lading in a set that when one part is accomplished the others are void. This provision puts each part on an equality. Statutes have been passed in a number of States making it illegal for carriers to issue duplicate bills of lading without marking them as such.

§ 1087. Desirability of uniformity in bills of lading.

For several reasons it is highly desirable that the bills of lading in use should so far as is possible be uniform as to their terms and conditions. A bill of lading is ordinarily a somewhat elaborate instrument, containing a number of carefully drawn conditions. It cannot be expected that shippers will read these conditions and consider their meaning every time a shipment is made. If, however, one form of bill of lading is habitually used, careful shippers may without difficulty familiarize themselves with the terms embodied therein. Furthermore, if a standard form is habitually used, the meaning of its terms will become clearly settled by custom and by judicial decision, whereas unfamiliar terms and conditions are naturally the subject of dispute, uncertainty and litigation. The issue of bills of lading in different forms also may be made a means of discrimination between shippers, since a shipper whom it is desired to favor can be given a bill of lading on unusually favorable terms. These reasons for uniformity affect chiefly shippers and consignees, or indorsees who advance money on the faith of bills of lading. To some extent these reasons also have force with the carriers which issue bills of lading, but another circumstance of importance to the carrier alone has been influential in leading

the railroads of the country to take an active part in the movements designed to secure the use of uniform bills of lading.

Vast amounts of freight are carried over connecting lines on through bills of lading issued by the initial carrier, acting not simply for itself, but as agent for its connecting carriers. On the large terminal roads of the northeast, the same freight trains frequently carry goods originally shipped over many different initial roads. If each of these initial roads issue a through bill of lading in a different form, the terminal railroad becomes subject to such a great variety of contracts as necessarily to confuse the management of its business.

§ 1088. Threefold importance of bills of lading.

A bill of lading is always a receipt and important as such; that is, it furnishes the shipper with evidence of the delivery of the goods to the carrier. Like other receipts it is only prima facie evidence of the acknowledgments contained in it unless the parties by its express terms make it conclusive, as they may do; 18 though such an agreement would certainly not exclude proof of fraud. It is also a contract, or evidence of a contract. In the case of transportation by sea a vessel is frequently chartered by the shipper and the charter party provides in detail the agreement in regard to the carriage of the goods. When the goods are actually shipped, a bill of lading is customarily signed which may contain a reference to the charter party or a repetition of its terms. It has been said that such a bill is merely evidence of the contract between the parties, while the charter party is the contract itself.19 It has been even said of a bill of lading by a judge of the highest authority, that "to my mind there is no contract in it. It is a receipt for the goods stating the terms on which they were delivered to and received by the shipper and therefore excellent evidence of those terms, but it is not a con

18 Crossfield v. Kyle Shipping Co., [1916] 2 K. B. 885, 890.

19 Rodocanachi v. Milburn, 17 Q. B. D. 316, 18 Q. B. D. 67; Capper v. Wallace, 5 Q. B. D. 163, 166; Wags

taff v. Anderson, 5 C. P. D. 171, 177; The San Roman, L. R. 3 Ad. Ec. 583; Gledstanes v. Allen, 12 C. B. 202.

tract." 20 But it is submitted that a paper which states the terms on which goods have been delivered and received, if those terms require action by the bailee, as is the case with the terms in a bill of lading, involves a promise to perform those terms and, therefore, is a contract. It would be possible doubtless for a writing to contain a recital of what previously had been agreed, and not a statement of present agreement; and this seems to be the view expressed in the quotation above, but the ordinary bill of lading is rather to be construed as stating what the parties agree at the time of shipment, than as reciting a previous contract made by them. In bills of lading issued by railroads indeed no other view is possible, for there is generally nothing in the way of a preliminary agreement prior to the issue of the bill of lading. Such a bill must necessarily be the written expression of the contract b tween the parties. Even where a preliminary agreement exists the bill of lading is given in the same form as where no such preliminary contract existed. If the bill of lading is a written contract in one case, it would seem to be such in the other. In spite, therefore, of the statement quoted above it seems clear that a bill of lading is not simply a receipt, but a written contract. Moreover, "that part of the bill which constitutes a receipt may be treated as distinct from the part incorporating the contractual terms. Ordinarily parol evidence will not be admitted to vary the terms or legal effect of a bill of lading considered as a contract between the parties to it, although, it seems, that as a receipt for the goods it may be contradicted by oral testimony." 21

§ 1089. Liability of a carrier for destruction of goods.

If a shipowner or other carrier is not a common carrier, he is simply a bailee for hire of goods in his charge and liable as such; 22 except so far as a shipowner's obligation that his

20 Lord Bramwell in Sewell v. Burdick, 10 A. C. 74, 105.

21 In the Matter of Bills of Lading, 52 Interstate Com. Com. Rep. 671, 681, citing The Delaware, 14 Wall. 579, 20 L. Ed. 779; Higgins v. U. S. Mail S. S. Co., 3 Blatchf. 282; Myer

v. Peck, 28 N. Y. 590; Porter, Law of Bills of Lading, § 14.

22 Supra, § 1045. See Nugent v. Smith, 1 C. P. D. 423, at page 434. (In the same case below, 1 C. P. D. 19, Brett, J., held that every shipowner is subject to the extraordinary liability

vessel shall be seaworthy, and other warranties impose additional liabilities. Unless his liability is more narrowly limited by special contract, a common carrier is liable for injuries to goods in transit, 23 which were not caused by act of God, by the country's enemies, by legal seizure, by the inherent nature of the goods themselves, or by the negligence of the owner of them.24 He is therefore liable irrespective of any negligence on his part for damage caused by fire, 25 theft, 26 or collision.27 If made necessary by perils of the sea without fault of the owner or his agents, jettison of any part or of all of the cargo may be made without liability. 28

A sleeping-car company is subject neither to the severe rule of liability for loss of property applicable to carriers nor to that applicable to innkeepers, but is liable only for negligence.2 29 The mere fact of loss by a passenger in a sleepingcar may, however, so strongly indicate negligence as to establish without more a prima facie case of liability."

of a common carrier.) The Xantho, 12 A. C. 503; Allen v. Sackrider, 37 N. Y. 341.

23 See infra, § 1104, as to when this extraordinary liability begins and ends.

24 Nugent v. Smith, 1 C. P. D. 19, 423; Baldwin v. London, etc., R. Co., Q. B. D. 582; Pandorf v. Hamilton, 17 Q. B. D. 670, 683; Ames Mercantile Co. v. Kimball S. S. Co., 125 Fed. 332, 335; Louisville & Nashville R. Co. v. Taylor (Ky.), 205 S. W. 934, and see the following sections.

25 Louisville, etc., Packet Co. v. Rogers, 20 Ind. App. 594, 49 N. E. 970; Stiles v. Louisville &c. R. Co. 129 Ky. 175, 110 S. W. 820, 130 Am. St. Rep. 429; Miller v. Steam Navigation Co., 10 N. Y. 431. Cf. Lehman v. Morgan &c. S. S. Co. 115 La. 1, 38 So. 873, 70 L. R. A. 562, 112 Am. St. Rep. 259.

28 The Saratoga, 20 Fed. 869; Boon v. The Belfast, 40 Ala. 184, 88 Am. Dec. 761; The Belfast v. Boon, 41 Ala. 50; Schieffelin v. Harvey, 6 Johns. 170, 5 Am. Dec. 206.

27 Plaisted v. Boston, etc., Navigation Co., 27 Me. 132, 46 Am. Dec. 587; Mershon v. Hobensack, 22 N. J. L. 372; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627.

28 Whitecross Wire, etc., Co. v. Savill, 8 Q. B. D. 653; Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; The Rebecca, 1 Ware, 187; Bentley v. Bustard, 16 B. Mon. 643, 63 Am. Dec. 561.

29 Beale on Innkeepers, §§ 318 et seq. 30 In Goldstein v. Pullman Co., 220 N. Y. 549, 116 N. E. 376, L. R. A. 1918 B. 1060, a satchel belonging to the plaintiff disappeared during the night from the aisle next the plaintiff's berth. The court held that in view of the company's duty to maintain a watch during the night the circumstances established a prima facie case of negligence. See also Robinson v. Southern Ry., 40 App. Dist. Col. 549, Ann. Cas. 1914 C. 959. Cf. Carpenter v. New York, etc., Ry. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644.

1090. What is an act of God.

Except in the law of carriers it is not important to distinguish between an act of God and other causes not due to a promisor's fault, which render performance impossible; but in that branch of the law it is held that a common carrier whether by land or sea is not excused for losses due to any breach of obligation unless the cause of the breach was one of those stated in the previous section, the most important of which is the so-called Act of God. "Act of God' is merely a short way of expressing this proposition: A common carrier a is not liable for any accident as to which he can shew that it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him." 31 Under this definition it is not essential that the inevitable situation shall have arisen from any sudden or violent manifestation of natural phenomena. It is enough for instance that an obstruction from fallen timber or other cause shall have arisen in a channel or stream upon which the carrier's vessel, following a course usually safe, strikes.32 Here there is neither any violent convulsion of nature, nor is the creation of the situation which causes the loss contemporaneous with the accident. One of these circumstances may be true and not the other. Thus the sudden cessation of wind causing a vessel to drift upon the rocks has been regarded as an Act of God. 33 Generally, however, such an act is substantially contemporaneous with the loss and is due to a positive rather than negative condition,34

31 Per Mellish, L. J. Nugent v. Smith, 1 C. P. D. 423, 444. See also Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 Pac. 334.

32 Smyrl v. Niolon, 2 Bail. 421, 23 Am. Dec. 146.

33 Colt v. McMechen, 6 Johns. 160, 5 Am. Dec. 200.

34 In Nugent v. Smith, L. R. 1 C. P. D. 423, 442, "Violent storms and tempests have always been considered as coming within the words, and men have thought they could avert them

by prayers and offerings. Mr. Wallace, the American editor of Smith's Leading Cases, as cited in the note to Angell on Carriers, s. 155 (p. 153), attempts a definition. 'Upon the whole it would seem that the act of God signifies the extraordinary violence of nature.' This entirely disapproves of those two American cases referred to in the argument, Colt v. McMechen, 6 Johns. (N. Y.) 160, 5 Am. Dec. 200; and Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235, which appeared to go to the