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The common carrier is answerable for the loss of a box or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance. But the rule is subject to a reasonable qualification; and if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the value or nature of the article, he cannot hold him liable for the loss of the goods. Such an imposition destroys all just claim to indemnity; for it goes to deprive the carrier of the compensation which he is entitled to, in porportion to the value of the article intrusted to his care, and the consequent risk which he incurs; and it tends to lessen the vigilance that the carrier would otherwise bestow.b

If goods be destroyed by necessity, as by throwing them overboard from a vessel or barge, for the preservation of the vessel and crew in a tempest, the carrier is not liable." The responsibility of the common carrier does not commence until there has been a complete delivery to him; and if, according to the usage of the business, it be a sufficient delivery to leave the goods on the dock, by or near the carrier's boat, yet this must be accompanied with express notice to the carrier. When the responsibility has

declared in the same words that carriers and watermen were subject to the like obigations and duties as tavern keepers, and that they were respon sible for goods intrusted to them, against loss and damages by theft or otherwise, unless they could show, that the loss proceeded from force majeure, or uncontrollable events. Code Napoleon, art. 1929. 1953, 1954. 1782. 1784. Code Louis, art. 2722. 2725. 2910. 2939.

a Tichburne v. White, 1 Str. 145.

b Gibbon v. Paynton, 4 Burr. 2298. Clay v. Willan, 1 H. Blacks. 298. Batson v. Donovan, 4 Barn. & Ad 21.

c Mouse's case, 12 Co. Smith v. Wright, 1 Caines' Rep. 43.

d Packard v. Getman, 6 Cowen, 757. and see also Selway v. Holloway, 1 Lord Raym. 46. Cobban v. Downe, 5 Esp. Rep. 41.

begun, it continues until there has been a due delivery by him, or he has discharged himself of the custody of the goods in his character of common carrier." There has been some doubt in the books, as to what facts amounted to a delivery, so as to discharge the common carrier. If it be the usage of the carrier to deliver goods at the house to which they were directed, he is bound to do so, and to give notice to the consignee. In Hyde v. The Trent and Mersey Navigation Company, it was much discussed whether the carrier was bound to deliver. to the individual at his house, or whether he discharged himself by delivery to a porter, at the inn in the place of destination. The opinion of the majority of the court, (though there was no decision on the point,) was, that the risk of the carrier continued until a personal delivery at the house or place of deposit of the consignee with notice. The actual delivery to the proper person, is generally conceded to be the duty of the carrier; and the consignee may take charge of the goods on their passage, and before they have arrived at the extreme or ultimate place of delivery, and the carrier's risk will then terminate. In this state it was held, in Ostrander v. Brown, that placing goods on the wharfi, not a delivery to the consignee, so as to discharge the carrier, even though there was a usage to deliver goods in that manner. The carrier must not leave the goods on the wharf, even though there be an inability or refusal of the consignce to receive them.

a Garside v. Trent and Mersey Navigation, 4 Term Rep. 581. Hyde v. The Trent and Mersey Navigation, 5 Term Rep. 389.

b Golden v. Manning, 2 Wm. Blacks. Rep. 916.

c 5 Term Rep. 389.

d Smith v. Horne, 8 Taunton, 144. Bodenham v. Bennett, 4 Price, 31. Garnett v. Willan, 5 Barn. & Ald. 53. Duff v. Budd, 3 Brod. & Bing. 177.

e Strong v. Natally, 4 Bos. & Pul. 16.

f 15 Johnson's Rep. 39.

As carriers by water were liable at t common law to the same extent as land carriers, and as their responsibility was more extensive, and their risk greater, from the facilities for fraud and violence upon the water, it was deemed in England a proper case for legislative interference to a guarded and limited extent. The statutes of 7 Geo. II. c. 15. and 26 Geo. III. c. 86. and 53 Geo. III. c. 159. exempted owners of vessels from responsibility as common carriers for losses by fire; and provided further, that the owner should not be liable for the loss of gold, silver, diamonds, watches, jewels, or precious stones, by robbery or embezzlement, unless the shipper inserted in the bill of lading, or otherwise declared in writing to the master or owner of the vessel, the nature, quality, and value of the articles; nor should he be liable for embezzlements without his fault or privity, beyond the value of the ship and freight; nor should part owners in those cases be liable beyond their respective shares in the ship and freight." We have no such statute provisions in this country; but according to the modern English doctrine, which may be applicable with us, carriers may limit their responsibility by special notice of the extent of what they mean to assume. The goods in that case are understood to be delivered on the footing of a special contract; and it is necessary, in order to give effect to the notice, that it be previously brought home to the actual knowledge of the bailee, and be cicar, explicit, and consistent. The doctrine of the carrier's exemption, by means of notice, from his extraordinary responsibility, is said not to have been known until the case of Forward v. Pittard in 1785; and it was finally recognised and settled by judicial decision in


a Wilson v. Dickson, 2 Barn. & Ald. 2.

b Butler v. Heane, 2 Campb. 415. Cobden v. Bolton, ibid. 108. Gov. ger v. Jolly, Holt, 317. Mayhew v. Eames, 3 B. & Cresswell, 601.e Burrough, J. & Taunton, 146.

Nicholson v. Willan,a in 1804. The language of the court in Bodenham v. Bennett, and in Garnett v. Willan,e is, that those notices were introduced to protect the carrier only from extraordinary events, or from that responsibility which belongs to him as an insurer, and not from the consequences of the want of due and ordinary care and dili gence. It has been strenuously urged in some of the cases, that there was no sound distinction as to the responsibility of the common carrier, between negligence and misfeasance of him or his servants. Be that as it may, it is perfectly well settled, that the carrier, notwithstanding no tice has been given and brought home to the party, con tinues responsible for any loss or damage resulting from gross negligence or misfeasance in him or his servants.d

The English judges have thought that the doctrine of exempting carriers from liability by notice had been carried too far; and its introduction into Westminster Hall has been much lamented. I do not know whether the doctrine of restricting the responsibility of the carrier by notice, has been judicially established in this country; but I presume it will readily be received, for there seems to be a disposition to abate the severity of the English rule.

In this state, the English law on the subject has been fully, explicitly, and repeatedly recognised in its full extent; and equally in respect to carriers by land and water, and equally in respect to foreign and inland navigation. In

a 5 East, 507.

b 4 Price Exch. Rep. 31.

c 5 Barn. & Ald. 53.

d Ellis v. Turner, 8 Term Rep. 531. Beck v. Evans, 17 East, 247Smith v. Horuc. 8 Taunton, 144. Bickett v. Willan, 2 Barn. & Ald. 356. Batson v. Donovan, 4 Barn, & Ald. 21. Garnett v. Willan, 5 Barn. & Ald. 52. Sleat v. Fagg, 5 Barn. & Aid. 342.

e See Smith v. Horne, 8 Taunton, 144.

f Colt v. M Mechen, 6 Johns. Rep. 160. Schieffelin v. Harvey, 6 Johns. Rep. 170 Elliott v. Rossell, 10 Johns. Rep. 1. Kemp v. Coughtry, 11 Johns. Rep. 107.

Elliott v. Rossell, the whole doctrine was extensively con

sidered; and it was uuderstood and declared, that a common carrier warranted the safe delivery of goods, in all but the excepted cases of the act of God and public enemies, and that there was no distinction between a carrier by land and a carrier by water, and whether the water navigation was internal or foreign, except so far as the exception is extended to perils of the sea by the special terms of the contract contained in the charter party or bill of lading. It was further shown, that the marine law of Europe went to the same extent, as did also the civil law, and the law of those nations in Europe which have made the civil law the basis of their municipal jurisprudence. It was supposed to be a principle prevailing equally in our American courts; and the cases of M'Clure v. Hammond,a and of Bell v. Reed, were referred to as evidence of that fact. The principle appeared to be sound and wise, and to have a very general reception among nations.

But the late case of Aymar v. Astor, would seem to have gone far to unsettle and reverse the former doctrine in this state, in respect to carriers by water. The case arose on error, from the Court of Common Pleas in New-York, which had charged the jury that the owners of a vessel bringing goods from New-Orleans to New-York were liable as common carriers. The judgment was reversed on account of that charge; and it was held, that a master of a vessel was not responsible like a common carrier for all losses, except they happen by the act of God or the enemies of the country. He was responsible only for ordinary neglect; and it was a proper question of fact for a jury, whether the master had used ordinary care and diligence in carrying the goods. In Pennsylvania, there has been a disposition also shown, to relax the stern policy of the English

a 1 Bay's Rep. 99.

b 4 Binney, 127.

c 6 Cowen, 266.

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