the fare has been inferred without proof, from the mere adopted usage to pay; (d) but we doubt whether this could safely be as a general rule. Carriers are not bound to adopt every contrivance invented or supposed to promote the safety of the goods they carry, but are bound to apply any apparatus known to be useful and in common use. (dd) An act of Congress was passed March 3, 1851, entitled “An act to limit the liability of ship-owners and for other purposes; and under the provisions of this act it is held that a carrier by water is not liable for the baggage of a passenger destroyed by fire without the carrier's default. (de) (x) But this statute does liver the goods at the end of his transit until he is paid a larger sum for the carriage than he is entitled to receive. Thus in Ashmole v. Wainwright, 2 Q. B. 837, the defendants, common carriers, refused to deliver the plaintiff's goods, which they had carried for him except on payment of £5 58. charges. He insisted that he was not liable to pay anything; but ultimately, the defendants having said that they would take nothing less than the whole sum, he paid the whole to regain his goods, protesting that he was not liable to pay anything, and that if he was liable, the charge was exorbitant. He had not tendered or named any smaller sum. Af terwards, without having demanded the return of any surplus, he brought assumpsit for money had and received, claiming by his particular the whole sum, as having been paid in order to obtain possession of his goods, under protest that he was not liable to pay the same, or any part thereof, or, if he was liable to pay some part, that the sum was exorbitant. The jury having found that the defendant was entitled to charge £1 10s. 6d., the court held, that the plaintiff was entitled to recover the dif (x) The rule adopted in the Federal courts that exemptions limiting carriers from responsibility for the negligence of themselves or their servants are unreasonable and lacking in voluntary assent, was modified by the Act of Congress of Feb. 13, 1893, ch. 105 (27 St. at L. 445), so as to exempt (by § 3) the ship-owner from liability for latent defects in seaworthiness and equipment, not discoverable by the utmost care and diligence. By §§ 1, 2, exemptions from liability for improper loading, stowage, care, or delivery, or for neglect to exercise due diligence to properly equip, man, provision, or outfit a vessel, and make her seaworthy, are declared unlawful. See The Irrawaddy, 171 U. S. ference in this form of action; and that it was not necessary to his right of recovery that he should have tendered any specific sum. But, semble, per Patteson, J., that if a party, simply denying that anything is due, tenders a sum which is accepted, but which exceeds the sum legally demandable, he cannot recover back the excess. This case was doubted by Pollock, C. B., in Parker v. The Bristol & E. Ry. Co., 7 E. L. & E. 528; s. c. 6 Exch. 184, 702, on the ground that the action for money had and received, must be brought for a definite, clear, and certain sum, and not for some unknown sum, which is to depend upon the verdict of the jury, who are to decide whether the defendant has received the money or not. He stated, however, that the doubt was his own, and not to that of the rest of the court. (d) McGill v. Rowland, 3 Penn. St. 451. (dd) Steinberg v. Erie R. R. Co., 43 N. Y. 123; Case v. Northern, &c. R. R. Co., 59 Barb. 644. See also Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282. (de) Chamberlain v. Western Transp. Co., 44 N. Y. 305. 187, 18 S. Ct. 831, 43 L. Ed. 130; The Silvia, 171 U. S. 462, 19 S. Ct. 7, 43 L. Ed. 241; Knott v. Botany Mills, 179 U. S. 69, 21 S. Ct. 30, 45 L. Ed. 90; The Kensington, 183 U. S. 263, 22 S. Ct. 102, 46 L. Ed. 190; Int'l Nav. Co. v. Farr & Bailey Manuf. Co., 181 U. S. 218, 21 S. Ct. 591, 45 L. Ed. 830; The Manitou, 116 Fed. 60; The New England, 110 Fed. 415, 417; The C. W. Elphicke, 117 Fed. 279; Rowson v. Atlantic Transport Co., [1903] 1 K. B. 114. Sec. 2 of this act applies to passengers' tickets. The Kensington, supra, reversing s. c. 94 Fed. 885. An exemption of a carrier from liability "for any injury to the person" of a pas not apply to a common carrier who ships goods over a part of his route on a vessel which he neither owns nor charters; and he is liable for injury to goods caused by an accidental fire on such a vessel. (df) It is a good excuse for the carrier's refusal that his carriage was full, (e) or that the goods would endanger him, or incur themselves extraordinary danger, (f) or are not such as he carries in the known and usual course of his business; (g) or that he cannot, at the time and in the way proposed, receive them without unreasonable loss and inconvenience. And he is not obliged to receive them until he is ready to set forth * 175 on his route. (h) And if perishable goods are offered him by one owner, and goods non-perishable by another owner, and he cannot take all, he may take the perishable goods, as they will suffer most by the delay. (hh) (df) Hill Manuf. Co. v. Boston, &c. R. R. Co., 104 Mass. 122. (e) Lovett v. Hobbs, 2 Show. 127. But not, it seems, if he has issued a ticket for the journey, and has put no condition to his liability. Hawcroft v. Great Northern Ry. Co., 8 E. L. & E. 362. (f) Edwards v. Sherratt, 1 East, 604; The Nitro-Glycerine Case, 15 Wall. 524; Pate v. Henry, 5 Stew. & P. 101. But where, to an action against the defendants as common carriers, for refusing to carry a package of the plaintiff, the defendants pleaded that when the package was tendered they requested the plaintiff to inform them of its contents, and that the plaintiff refused to do so, wherefore and because the defendants did not know what the package contained, they refused to receive and carry it; the plea was held bad, for that a carrier has no general right, in any case and under all circumstances, to require to be informed of the contents of packages tendered to them to be carried. (g) Sewall v. Allen, 6 Wend. 335; Tunnell v. Pettijohn, 2 Harring. (Del.) 48; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16; Johnson v. The Mid land Ry. Co., 4 Exch. 367. (h) Lane v. Cotton, 1 Ld. Raym. 646, 652; s. c. 1 Comyns, 100, 105. (hh) Marshall v. New York, &c. R. R. Co., 45 Barb. 502; Tierney v. New York, &c. R. R. Co., 76 N. Y. 305; Michigan Central R. R. Co. v. Burrows, 33 Mich. 6. 1 A carrier, in the absence of improper concealment by the shipper, must inquire as to the nature and value of goods shipped, failing to do which he cannot escape liability. Merchants', &c. Co. v. Bolles, 80 III. 473. — K. senger does not include his death. No. Pac. Ry. Co. v. Adams, 116 Fed. 324. Limitations of liability by carriers or warehousemen are construed strictly, and it is everywhere held that they must be reasonable. Hinkle v. Southern Ry. Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Taussig v. Bode, 134 Cal. 260, 66 Pac. 259, 86 Am. St. Rep. 250. A common carrier is liable for unreasonable delay in carrying or delivering; in the absence of a good excuse, he must convey the goods by the usual direct route; and exemption from liability for negligence does not include injuries caused by deviation. Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 id. 302; St. Clair v. Chicago, &c. Ry. Co., 80 Iowa, 304, 45 N. W. 570; Hudson v. No. Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608; Marande v. Texas & P. Ry. Co., 102 Fed. 246; Port Blakely Mill Co. v. Sharkey, id. 259; Farmers' Loan & T. Co. v. No. Pac. R. Co., 112 Fed. 829; Wald v. Pittsburg, &c. R. Co., 162 Ill. 545, 44 N. E. 888; Glover v. Cape Girardean, &c. R. Co. (Mo. App.), 69 S. W. 599; Lowe v. Seaboard Air Line R. Co. (S. C.), 41 So. 297; Mallett v. Great Eastern Ry. Co., [1899] 1 Q. B. 309. In the Federal courts of admiralty a ship-owner cannot exempt himself from liability for bad stowage by stevedores or his servants. The Orcadian, 116 Fed. 930. A common carrier may make what contract he will as to his compensation; but a tender of his usual, or of a reasonable compensation, obliges him to carry; (i) and when he carries without special agreement, this is all the compensation he can recover. If he carries articles, as, for example, bags of grain, for freight, and is to return the empty bags without charge for freight, this is not a gratuitous carriage of the bags, as the freight paid for the full bags is compensation also for the return of empty bags. (ii) In the absence of special agreement, he must treat all persons alike; but it is said that he is under no obligations at common law to charge equal rates of carriage to all his customers. Where required by statute to make reasonable and equal charges against all, he cannot, by by-laws or rules, discriminate as to amounts or modes of computation between persons according to their occupations, but must carry the same amount, the same distance, for the same price, for all persons. (k) 1 All carriers are held to act by their agents, and to be responsible for the acts of their servants and agents, under the common rules of agency. (1) If the character of the goods carried is substantially changed by a cause for which the carrier is responsible, the owner need not receive them, and the carrier is responsible for their whole value, and a recovery thereof from him vests the property therein in him; but if only partially injured, the carrier is liable only to the extent of the injury, and the property in the goods remains in the owner. (m) It is now common to send articles by a carrier, who is to receive the price on delivery of the goods. He is the agent of the sender for this purpose. From the cases it would seem that if the carrier undertakes to collect the price, he must do so, and (i) Harris v. Packwood, 3 Taunt. 264. (i) Pierce v. Milwaukee, &c. R. R. Co., 23 Wisc. 387. (j) Baxendale v. Eastern Counties Ry. Co., 93 Eng. C. L. 63. (k) Pickford v. Grand Junction Ry. Co., 10 M. & W. 399; Parker v. Great Western Ry. Co., 7 Man. & G. 253, 8 E. L. & E. 426, 11 C. B. 545; Edwards v. Great Western Ry. Co., 8 E. L. & E. 447; s. c. 11 C. B. 588; Crouch v. The London Ry. Co., 2 Car. & K. 789. See McDuffee v. 505. (7) See Machu v. Ry. Co., 4 Exch. 415; Butcher v. L. & S. W. R. Co., 16 C. B. 13. (m) Hackett v. B. C. & M. R. R. Co., 35 N. H. 390. 1 An Act of Congress approved Feb. 4, 1887, known as the "Interstate Commerce Act," forbids discrimination in charges by railroads running from one State or Territory into another, or into a foreign country. And different States have enacted laws on the subject. See Illinois Central R. R. Co. v. People, 121 Ill. 304; State v. Fremont, &c. R. R. Co, 22 Neb. 313; Gulf, &c. Ry. Co. v. Dwyer, 75 Tex. 572. — W. if he delivers the article without receiving the price, he makes himself liable therefor. (mm) 1 But it is also held that merely marking the article C. O. D., or Cash on Delivery, is not enough to make him liable without some undertaking on his part; but this may be proved directly, or inferred from a usage. (mn) SECTION VIII. WHEN THE RESPONSIBILITY BEGINS. As soon as the goods are delivered and received, they are at the risk of the carrier. This reception of them may be specific or general, and according to the usage of his *176 business; and it may be actual or constructive. (n) But the delivery to the carrier is not complete if the goods are still in charge of the owner or his representative; the delivery must place the goods in the custody of the carrier. (0) The delivery (mm) Meyer v. Lemcke, 31 Ind. 208; Murray v. Warner, 55 N. H. 546. (mn) Chicago, &c. R. R. Co. v. Merrill, 48 İll. 425. (n) Merriam v. Hartford Railroad Co., 20 Conn. 354. See Green v. Milwaukee, &c. R. Co., 38 Iowa, 100. (0) Brind v. Dale, 8 C. & P. 207; Kent v. Midland R. Co., L. R. 10 Q. B. 1; Clark v. Burns, 118 Mass. 275. It frequently becomes a difficult question of fact whether goods have been so delivered to a carrier as to be in his custody and under his control, or whether they still continue under the control of the owner or his servant. There are several cases in the books which have turned upon this question. Thus, in East India Co. v. Pullen, 2 Stra. 690, an action was brought against the defendant as a common carrier, on an undertaking to carry for hire on the River Thames, from the ship to the company's warehouses. It appeared in evidence that the defendant was a common lighterman, and that it was the usage of the company, on the unshipping of their goods, to put an officer, who was called a guardian, into the lighter, who, as soon as the lading was taken in, put the company's locks on the hatches, and went with the goods to see them safely delivered at the warehouse. It appeared that such was the course in this case, and part of the goods were lost. Upon this evidence, Raymond, C. J., was of the opinion that "this differed from the common case, this not being any trust in the defendant, and the goods were not to be considered as ever having been in his possession, but in the possession of the company's servant, who had hired the lighter to use himself." The plaintiff was accordingly nonsuited. So in Tower v. The Utica & S. Railroad Co., 7 Hill (N. Y.), 47, where an action was brought to charge a railroad company as common carriers, for the loss of an overcoat belonging to a passenger, and it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen; it was held that the defendants were not liable. And Nelson, C. J., said: "The overcoat was not delivered into the possession or custody of the defendants, which is essential to their liability as carriers. Being an article of wearing apparel of present use, and in the care and keeping of the trav 1 If a consignor instructs an express company not to permit the consignee to examine the goods sent, before delivery and payment of charges, the company's agent is authorized to refuse such an examination, and incurs no personal liability by returning the goods to the consignor. Wiltse v. Barnes, 46 Iowa, 210. But generally the assignee is entitled to examine the goods. Lyons v. Hill, 46 N. H. 49. - W. *177 to a ship is complete *when the master, or mate, or other agent of the owner, receives them, either at the ship, or on the wharf, or in a warehouse, if such delivery and receipt be according to the usage. And the owners of the ship forthwith become insurers as to all but the cases excepted by law, or by the bill of lading. (p) Delivery may be made in a different way, or at a different time or place, from that which is usual, or notified to the public; such difference being requested, or suggested by the carrier, or his agent, or sanctioned by him by receiving the goods without objection, and entering them on the way-bill. (9) The responsibility of the carrier is fixed by his acceptance of the goods without objection, whatever be the manner of the delivery. Nor is it necessary to complete the delivery that the goods * 178 should be entered on the way-bill or freight-list, or any written memorandum made.(r) But delivery to a clerk of the carrier, outside of the carrier's office, is not a delivery to the carrier until the parcel comes into actual possession of the carrier's agent for that purpose.(rr) Nor is delivery at the proper * eller himself for that purpose, the defendants have a right to say that it shall be regarded in the same light as if it had been upon his person. No carrier, however discreet and vigilant, would think of turning his attention to property of the passenger in the situation of the article in question, or imagine that any responsibility attached to him in respect to it." But see Robinson v. Dunmore, 2 B. & P. 416. See also Richards v. The London Railway Co., 7 C. B. 839; White v. Winnisimmet Co., 7 Cush. 155; Maybin v. Railroad Co., 8 Rich. L. 241; Midland Railway v. Bromley, 17 C. B. 372. (p) Cobban v. Downe, 5 Esp. 41. But a delivery to any of the crew is not sufficient, they not being authorized agents for that purpose. Leigh v. Smith, 1 C. & P. 638. And, generally, a delivery to a servant of the carrier must be to one authorized to receive the goods. Therefore, where the plaintiff delivered a package to the driver of a coach, who had no authority to receive and enter it on the way-bill, but consented to carry it on to the next agent and have it entered; it was held to be no delivery to the carrier. Blanchard v. Isaacs, 3 Barb. 388. See Harrell v. Wilmington, &c. R. R. Co., 106 N. C. 258; Quimit v. Henshaw, 35 Vt. 605. The master of a vessel cannot bind the owner by a bill of lading for goods not actually put on board. Grant v. Norway, 2 E. L. & E. 337; s. c. 10 C. B. 665; Hubbersty v. Ward, 18 E. L. & E. 551; s. c. 8 Exch. 330; Coleman v. Riches, 29 E. L. & E. 323; s. c. 16 C. B. 104. See, however, vol. i. p. *46, note. (q) Therefore, where a package was delivered to the agent of a stage-coach company, at the post-office, where the stage was standing, and not at the office of the company, to be carried from Boston to Hartford, and was entered on the way-bill by the agent when he received it, he having previously directed the person who had the care of the package to bring it to the post-office; and the package was lost before reaching Hartford; it was held, that the owners of the coach were liable to the owner of the package for its value, the delivery at the post-office being with the assent of their agent. Phillips v. Earle, 8 Pick. 182. See also Pickford v. Grand Junction Ry. Co., 12 M. & W. 766; s. c. 8 id. 372. So in Powhatan Steamboat Co. v. Appomattox R. R. Co., 24 How. 247, it was decided, that after a railroad company had received goods into their depot on Sunday, their duty of safekeeping was not within the prohibition of the Virginia Sunday law, and if the goods are burned the company is responsible for the loss. (r) Citizens Bank v. Nantucket Steamboat Co., 2 Story, 16, 35. (rr) Croukite v. Wells, 32 N. Y. 247 ; and see Missouri, &c. Co. v. Hannibal, &c. R. R. Co., 35 Mo. 84; and Hotchkiss v. Artisan's Bank, 42 Barb. 517. |