before us? Where a vessel has sailed under a charter-party with cargo on board she is entitled to net freight for the whole voyage in accordance with the terms of the charter, though destroyed when but one day out. Where she was destroyed while sailing in ballast under charter to take in cargo at her port of first destination, to be carried thence to a port of final destination, she is entitled to net freight on the cargo which she was thus to have taken on board. Where destroyed while sailing under one charter to deliver, at a designated port, cargo on board, and to bring other cargo home, she is entitled to net freight for the round trip. Where destroyed while sailing under two distinct and independent charters to carry, under the first, cargo to an intermediate port, and under the second, to carry other cargo to a port more distant, she is entitled to net freight under each charter, though destroyed before the fulfilment of the first, if she has made it satisfactorily to appear by proper proof or necessary legal presumption, that she entered fairly at the same time on the commencement and prosecution of both voyages.

On these principles we decided, in June last, the case of The Sonora. She sailed from New York to Melbourne, and she was thence to sail to Akyab, in British India, to take on a cargo of rice and proceed to one of several designated European ports. The charter permitted an intermediate voyage in the China seas. Having made such an intermediate voyage to Hong Kong, she left that port for Akyab, and was destroyed by the Alabama in the straits of Malacca. In the judgment entered in favor of her owners, we allowed net freight for the cargo not on board at the time of her destruction. So, also, in the case The Emma Jane, decided during the same month. The case of The Commonwealth,. argued during the present month, affords an illustration of the application of the same principle. She sailed from New York for San Francisco with a large freight-list, and when about twentyeight days out was destroyed by the Florida. After she had sailed, and before receiving information of her destruction, her owners executed a charter, binding her to proceed from San Fran-cisco to the Chincha Islands to take on guano deliverable at Hamburg. She had not sailed under the charter for the Chincha Islands. She had done nothing whatever under it. Her officers did not even hear of it until after her destruction. As to that charter, her gains were prospective, which the award declares

"cannot properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies." We accordingly disallowed to her freight under that charter, but admitted her right to net freight on the voyage to San Francisco. We could not have done otherwise.

In the cases of the "Highlander" and the "Jabez Snow," now before us, we have as little difficulty in allowing the freight. The "Highlander" was to proceed under charter to Akyab, Rangoon or Bassein (with the privilege of an intermediate voyage to a port in India or China), to take on, at one of those ports, rice deliverable at Cork or Falmouth. She had performed the intermediate voyage, and was proceeding in ballast to Akyab for cargo. when she was destroyed by the Alabama. The "Jabez Snow" carried with her two charters, under one of which she sailed from Cardiff with coal for Montevideo, and by the other she was to proceed thence to Callao to take on guano deliverable at Havre. She was destroyed by the Alabama, with the coal on board, before reaching Montevideo. So far as we can judge, after a careful scrutiny of all the testimony before us, each of these vessels, at the time of her destruction, was proceeding in good faith in the actual execution of the contracts which she had thus lawfully assumed. We know of nothing more which either of them could have done in the prosecution of the respective voyages thus commenced and suddenly terminated by the act of the most successful of the insurgent cruisers. We accordingly allow to each of them net freight on the cargo which she was thus proceeding to take on board when destroyed. While we do not agree with the claimants respecting the amounts which they are entitled to claim, these are the principles of law on which we have reached the conclusions embodied in the judgments about to be entered.

Court of Appeals of Virginia.

VIRGINIA & TENNESSEE RAILROAD CO. v. SAYERS.

It is well settled that common carriers may, by contract or by notice, restrict their common-law liabilities as insurers against purely accidental loss or injury. But they cannot, even by express contract, avoid liability for negligence, nor limit it to gross negligence.

In an action against a railroad company for loss by negligence, the declarations of a brakeman or a section-master not near enough to the time and place of the accident to be parts of the res gesta, are not evidence. The rule as to declarations of agents is the same for corporations as for individuals.

VOL. XXIV.-38

ERROR to Circuit Court of Wythe county.

This was an action by defendant in error for damages for the destruction of cattle delivered by him to the railroad company for transporta tion. The material part of the contract contained in the bill of lading was as follows:

"That, whereas the Virginia and Tennessee Railroad and connecting lines transport live stock only at first class rates, except when, on consideration of a reduced rate by the car load, the owner and shipper assumes certain risks specified below. Now on consideration of the said railroad agreeing to transport the above-described live stock at the reduced rate of thirty-six dollars and eighty cents per car load, and a free passage to the owner or his agent on the train with the stock, the said owner and shipper do hereby assume and release the said railroad from all injury, loss and damage or depreciation which the animals or either of them may suffer in consequence of either of them being weak, or escaping, or injuring themselves or each other, or in consequence of overloading, heat, suffocation, fright, viciousness, or of being injured by fire, or the burning of any material, while in the possession of the company; and from all other damage incidental to railroad or steamboat transportation, which shall not be established to have been caused by the gross negligence or delinquency of any of the officers or agents of the said railroad or steamboat companies."

The opinion of the court was delivered by

CHRISTIAN, J.-The instructions offered by both plaintiff and defendant, those refused and those given, raise the question whether a railroad company can limit its liability as a common carrier, by express contract, so as to excuse itself for negligence, unless such negligence amounts to gross negligence; in other words, whether it can by contract excuse itself from negligence at all. The court below held that it could not, that if the loss was occasioned by the negligence of the company or its agents, no contract they could make with the shipper or consignee, however plainly expressed, could release the company. It is this judgment of the Circuit Court, thus expounding the law, we are first called upon to review.

This question is one of first impression in this state. While it has been the subject of much judicial discussion in England and many of the states of this Union, where the decisions have been to some extent conflicting, the precise question has never been decided by this court. We have, therefore, given to the subject a careful and candid investiga

tion..

Railroad companies are invested with the powers and subject to the liabilities of common carriers. At common law persons and corporations exercising such public employment, are, upon grounds of public policy, held to a stringent liability, which is not exacted of ordinary bailees. At common law, they are insurers, to a certain extent, of the goods intrusted to them, and are held responsible for all injuries thereto, except those caused by the act of God or the public enemies. The law which fixed these rights and obligations is of ancient origin and founded upon grounds of public policy. The exclusive possession of the property in the carrier. the ordinarily exclusive possession by him of the means of evidence, the facility of embezzlement, and of collusions with thieves

and robbers, and the entire separation of the owner from his property during the transit, are some of the leading grounds of public policy which gave rise to this extraordinary responsibility.

These rigorous rules of the common law have been modified sometimes by legislation and more frequently by decisions of the courts, to the extent that the carrier may by express contract limit his liability as an insurer. Thus, by an Act of Congress passed in 1851 in relation to sea-going vessels, ship-owners are relieved from all responsibility for loss by fire unless caused by their own design or neglect; and from responsibility for loss of money and other valuables named, unless notified of their character and value. And there is similar legislation in some of the states, as I am informed, but to whose statutes I have not access here. But the common law rules have been relaxed in most of the states by the decision of the courts, to the extent of granting by express contract, or notice brought home to the shipper, a limitation of their liabilities as insurers. Even the policy of such limitation has been doubted by learned judges and eminent writers on this subject. As the duties and responsibilities of public carriers are prescribed by public policy, it has been seriously doubted," says Mr. Justice BRADLEY (17 Wall. 359), "whether the courts did wisely in allowing that policy to be departed from without legislative interference by which needed modifications could have been introduced into the law."

It would be an instructive and interesting investigation to trace the causes which led to the relaxation of the rigorous rules of the common law, and to note how strenuously the courts for a long time resisted all attempts of common carriers to limit their common-law liabilities. It is easy to perceive that the modification of the common law grew out of the great hardship incurred by the carrier in certain special cases; for instance, cases where goods of great value, or subject to extra risk, were delivered to him without notice of their character, or where losses happened by sheer accident, without any possibility of fraud or collusion on his part, such as accidental fire, collision at sea, &c. Such cases as these led to a relaxation of the rule to the extent of authorizing certain exemption from liability in such cases, to be secured either by public notice brought home to the owner of the goods, or by inserting exemptions from liability in the bill of lading or other contract of carriage. That a common carrier may limit his common-law liability to the extent above indicated may now be considered as well settled.

But the important question is how far can he go beyond that? Can he secure by contract an exemption from liability for acts arising out of his own negligence or that of his agents? Can he by contract limit his responsibility only to a case of gross negligence, as is attempted in this case?

In this state, as before observed, these questions have never been the subject of judicial investigation. We must, therefore, look for authority to the works of eminent authors, which are the recognised text-books of the law on this subject, and to the decisions of the Supreme Court of the United States and of our sister states, as well as the decisions of the English courts, and from these sources of high authority settle the law upon this important question for this state.

Mr. Justice STORY, in his work on Bailments, § 571, says: "But an inquiry may be made whether the carrier will not be liable also for ordi

nary negligence as well as for gross negligence, notwithstanding such notices (i. e., such notices as are brought home to the party, and thereby constituting an express contract). There are dicta by various judges, indicating that the common rule of ordinary diligence, in common cases of hire, is applicable to the case of carriers under notice. On the other hand, there are declarations of judges at nisi prius, as well as their opinions in banc, which seem to put it as a question of gross negligence or not. The question may now be considered at rest, by an adjudication entirely satisfactory in its reasoning, and turning upon the very point, in which it was held that in case of such notices the carrier is liable for losses and injuries occasioned not only by gross negligence, but by ordinary negligence; or, in other words, the carrier is bound to ordinary diligence." The author, to sustain this view, refers to Wild v. Pickford, 8 M. & W. 461. Referring to that case, I find that Mr. Baron PARKE uses the following language: "Upon reviewing the cases on this subject the decisions and dicta will not be found altogether uniform, and some uncertainty still remains as to the true ground in which cases are taken out of the operation of these notices." After reference to a number of cases he says: "The weight of authority, however, seems to be in favor of the doctrine, that in order to render a carrier liable after such notice, it is not necessary to prove a total abandonment of that character, or an act of wilful misconduct, but that it is enough to prove an act of ordinary negligence, which is gross negligence in the sense in which it has been understood in the last-mentioned cases."

Judge REDFIELD, in his valuable work on Carriers and other Bailees, § 156, says: There is certainly something very incongruous and not a little revolting to the moral sense, that a bailee for hire should be allowed to stipulate for exemption from the consequence of his own negligence, ordinary or extraordinary. A laborer, domestic or mechanic, who should propose such a stipulation, would be regarded as altogether unworthy of confidence in any respect, and the employer who should submit to such a condition must be reduced to extreme necessity, one would suppose." After an interesting review of the cases on the subject, and after quoting the general rule of law upon this point as stated by Baron PARKE, in Wild v. Pickford, supra, the learned author remarks, § 163: "This seems to be placing the effect of such notices upon a reasonable basis, and most of the American cases will be found to have adopted in the main similar views."

With this reference to, and extracts from, the works of STORY and REDFIELD, I come now to consider the case decided by the Supreme Court of the United State and of the other states.

The question we are now considering has been more than once determined by the Supreme Court of the United States. The first case to be noticed is the case of The New Jersey Steam Navigation Company v. Merchants' Bank, reported in 6 Howard 344, and decided in 1848. The case was this, and grew out of the burning of the steamer Lexing ton. Certain money belonging to the bank had been intrusted to Harden's Express to be carried to Boston, and was on board the steamer when she was destroyed. By agreement between the Steamboat Company and Harden, the crate of the latter and its contents were to be at his sole risk. The court held this agreement valid so far as to exonerate the Steamboat Company from the responsibility imposed by law, but not