CH. 23. no action against him. But perhaps all the different cases Art. 4. must be reconciled on this distinction. If the tempest was reasonably to be expected, then the ferryman was liable; for he then ought to have prepared for it: but if not so to be expected, but the tempest was sudden, then it must be viewed as an inevitable accident, and the ferryman not liable. Garside v. 5 Bac. Abr. 263. $6. This was assumpsit against a carrier, and the goods were burnt by an accidental fire. Judgment for the defts. as above. 7. Nor is a carrier liable for not delivering goods, till he is paid his hire; for he has a lien on them, and has a right to retain till he is paid his hire; and as he is bound to -6 East 519. carry goods, so he has by law a lien on them for his hire in carrying them, but no farther. 1 Selw.337. lan & al. 1 H. Bl. 298, 8. So if a carrier, by printed articles, gives notice that Clay v. Wil- he will not be liable for certain valuable goods, if lost, of more than the value of a specified sum, unless entered and paid for as such, and one knowing the conditions delivers such goods above said value, and conceals the value, and pays only the ordinary price of carriage and booking; the carrier is not liable to the extent of the sum specified, nor to repay the sum paid for the carriage and booking. Bul. N. P. 36. 9. "If a tradesman, in London, send goods by order to a tradesman in the country, by a carrier not named by the country trader; if the carrier embezzle the goods, the country trader must bear the loss." The reason of this case does not readily appear. § 10. If A order goods to be sent to him by a particular carrier, though on condition to return them, if he dislike them, yet, on delivery to the carrier, the property is vested in A, 2 B. & P. 416, and he must pay the price and bear any loss. A carrier, Dunmore. who warrants the goods to go safe, is liable, though their owner send his servant in the cart to look after them. ART. 4. When the carrier's trust ends, &c. Robinson v. pany. 5 T. R. 389, Hyde v 1. The defts. were common carriers from Gainsborough Trent Navi- to Manchester. The defts. charged and received cartage of gation Com- the goods to the plt's, house, the consignee's house in Manchester, from a warehouse there, where the defts. usually unloaded, not belonging to them. They were held to be liable for the goods destroyed by an accidental fire in this warehouse; though they allowed the profits of the cartage to a third person, and this was known to the consignee; and the court held that carriers are liable in all cases but two, being as insurers. The defts. here were to carry the goods from said warehouse to the plt's. ; for by their said charge, it appeared the third person acted under them, and then his act was theirs. § 2. The defts. were common carriers from Birmingham to CH. 23. London. June 7, 1771, they received a box, containing 119 Art. 5. yards of silk, directed to Mr. James Ireland, Prince street, Spittalfields, London; the said box came to the defts'. ware- 3 Wils. 429, house in London, June 8, 1771 with no legible directions on Golden v Manning. it, where it remained a year. When the plt. and Ireland settled their accounts, they found the box had been sent by the Birmingham coach, and not delivered. They found the box in the warehouse, and the silks damaged £29 14s.; and the deft. Manning, refusing to make any satisfaction, he was sued. The defts. neither delivered the silk, or gave any notice to Ireland; his name and place of abode were in the directory; the defts. had made no enquiry where he lived, and, usually, hired a porter to carry out the goods that came by their coach and received the portage. Judgment for the plt.; for carriers are bound to give notice in a reasonable time, to the person to whom the goods are directed, of their arrival; and must take special care they deliver them to the right persons. In this case the carriers remained liable a long time, and until the goods were properly disposed of. 1 Com. D. 334. §3. So an action against a carrier does not always die with Mod. 92.him, but lies also against his executors or administrators, for the goods lost by him. But this must be understood to be the case, only where the bailor has an election to sue the carrier in assumpsit or ex contractu. § 4. The defts. contracted to carry the plt's. goods from ST. R. 259. Hadley v. Liverpool to Leghorn. The vessel was embargoed at Fal- Clarke. mouth in the voyage two years. Held, that after the two years expired when the embargo was removed, the defts. were answerable to the plt. in damages, for not performing their contract. The embargo was laid only till the further order of the king in council; was only a suspension of the contract; did not terminate it, nor was the liability of the defts. at an end by the embargo, but only suspended by it. No offence against our embargo law to remove goods from one ship to 6 Cranch 337. another, if not to export them. ART. 5. Carriers may have assumpsit for their hire &c. 5 T. R. 150. They are bound to carry when they have conveniences, and are offered their hire, otherwise as to private persons. 1. A barge master brought assumpsit for the carriage of Bul. N. P. 70. -Imp. M. P. divers goods for the deft. at his request. So a common car- 288, 289. rier for carrying deft's. goods in his wagon, &c. 2 Show. 81, § 2. It was moved in arrest of judgment, because only a Bastard v. reasonable reward was mentioned, as the carrier's hire; but Bastard.— the declaration was held good; for no certain sum might be 1 Selw, 324. agreed, and as in such case the carrier may maintain a quantum meruit, he is equally liable as when there is an express CH. 23. Dawes v. 3 Bos. & Pul. 339.-3 P. W. 136. The quantum meruit rests agreement for a particular sum. 3. The action against carriers must be brought by the owners of the goods. (See Consignments, Bul. N. P. 36.) § 4. Hence, if a tradesman orders goods to be sent by a carrier, a delivery to him is one to the tradesman, and the property, instantly thereon, vests in him; he alone can sue son.-3 Selw. the carrier for any loss or damage to the goods; and this rule holds, as well where the particular carrier is not named 2 Saund 47. by the purchaser, as where he is. And a delivery of goods Ch. 25, s. 12. by the vendor on behalf of the vendee to a carrier, although not named by the vendee, is a delivery to the vendee, unless the vendor especially agrees to transport them, then they are at his risk. Hence it seems to follow that the carrier must look for his hire to the vendee, where there is no special agreement the vendor shall pay him; but if the vendors or consignors agree to pay the carrier, they may sue him for not delivering the goods, and he them for not paying his hire; he has nothing to do with a change of property. 1 Vent. 119; Styles 296; 1 D. & E. 659. -5 Burr. 2680. Davis v. James. 1 Johns. R. 214, 228, Sir Tho. Raym. 302. 3 Bos. & Pul. 582, declara tion may be in assump- ART. 6. Manner of declaring &c. § 1. Formerly in actions against carriers, the plt. stated their employment as common carriers; their liability by the custom of the realm; a delivery to, and acceptance by the defts. of the goods, to be carried for a reasonable hire or reward; concluding with the loss or damage to the goods. But the modern practice is to declare in assumpsit, and to omit the above particulars. But the declaration may, as above, be in assumpsit and join the money counts, or in tort and join trover. "The custom of the realm is the law of the realm, and consequently need not be set forth in the declaration;" of which custom the courts are bound to take notice, without pleading, as they are of any 341-1 Ch. public law. There are two advantages in declaring in tort. 1st. The plt. thereby avoids the plea in abatement for not joining all liable; and 2d. he may have judgment, if some of the defts. be acquitted and some found guilty. 1 Inst. 115.B. -1 Show. 1058 Co. 52.-5 D. & E. 149.-1 on Pl. 117. 5 Burr. 2825, Ross v. John 655. 2. Trover lies not against a common carrier for merely son-Salk. losing goods entrusted to his care, without any actual wrong. The proper form of action is case. If the carrier, however, has the goods in his custody at the time when he refuses to deliver them, this will be evidence of a conversion. 6 East 564, Clarke v. Gray & al. §3. Assumpsit may be maintained in the common form of declaring against a carrier, for the loss of goods above £5 value, and not paid for accordingly; though it were a part of the contract, proved by general notice fixed up in the carrier's office, and presumed to be known and assented to by the plt., that the carrier would not be accountable for more than £5 for goods, unless entered as such, and paid for accordingly. This was an action against the proprietors of a stage coach, for goods sent with the plt's. wife in it, and lost. But if the plt. declare against the carrier generally, for his negligence, and he pays money as the £5 into court, he thereby admits the contract as laid; and hence the plt's. right to recover the full value of the goods, not restrained by such notice. However, 6 East 570, the court thought that paying money into court in Yate v. Willan, "did not admit a contract incompatible with the restrictive proviso, as to the amount of damages to be recovered in case of loss." Where such restrictive proviso goes to defeat any action, it ought to be stated in the declaration; where only to restrict the damages to £5, as the sum limited may be, then it need not be stated, but may be in evidence to limit the amount of damages. CH. 23. Art. 7. H. Bl. 298, Yate v. Wil lan, and 6 East, 369, 370. Ch. 175. a. 6. Mills. § 4. Carrier is bound to have his vessel tight and fit for 5 East 428, the purpose. Hence he is answerable for damages occasioned Lyon & al. . by leakage; and it is doubtful if he can exempt himself from this liability, by notice he will not be answerable therefor-the lighter was leaky. ART. 7. Cases in the United States. See Barrett v. Rogers, Ch. 21, where the master of a vessel, a carrier, was not held responsible for the good order of the goods on a bill of lading. 10 Johns. R 1. Held that masters and owners of vessels who carry goods for hire, are liable as common carriers, whether from port to port at home or abroad; liable by marine and common al. law for all goods lost, not arising from inevitable accident, or such accidents as could not be foreseen or prevented. And it is a question for the jury to decide, if the loss arose from inevitable necessity, not arising from human intervention, and not to be avoided by any human prudence. The defts. gave public notice they were carriers from the ports of this lake to Montreal &c. and of the vessels &c. The action was against the owners, and the master was the plt's. witness, who stated he contracted according to their orders. The loss happened near Montreal, out of the jurisdiction of New-York: hence, the defts. attempted to place the case on the marine law. "A common carrier warrants the safety and delivery of the goods, in all but the exccpted cases of the act of God, and public enemies; and there is no distinction between a carrier by land, and a carrier by water ;" and the marine and common law are essentially the same, so the civil law, and Hindoo law and law generally. It will be observed that this case was decided on English authorities. So was one against Bell. Reed. a carrier by land in 1820, in Massachusetts; so one in Geor- 1 D. & E. gia &c. on a voyage from Augusta to Charleston; so in Penn- 33. 1 Bay's R. 99, CH. 23. 6 Johns. R. 166, 167, Colts & al v. M'Mechen. 6 Johns. R. 170, 180. 8 Johns. R. 213, Watkin ton. sylvania, 4 Bin. R. 127, on a voyage from Fort Erie, in Upper Canada, to Pennsylvania," was a conceded point the common law doctrine applied to the case." Also 6 Johns. R. 170; 8 Johns. R. 248, proceeded on the ground the master of a vessel is liable as a common carrier. There is, no doubt, in these respects, the same law in every state in the Union, the English law adopted here, except Louisiana; and that state has the French law. 2. See liability of ship owners as carriers in New-York, Ch. 47, a. 5, s. 18, 19. Case against the deft. as a common carrier of goods for hire, in a certain sloop, &c. Held, common carriers are liable for every injury which happens to goods entrusted to them, except caused by the act of God, or public enemies. So the sudden failure of the wind is the act of God, and excuses the carrier, there being no negligence on his part. Negligent or not, is a jury question. The action was against the owner of the sloop, and the master was used as a witness by the plts. 3. Assumpsit against the owner of the ship Science. Held, master and owners are liable for goods embezzled, &c. See this case-Master and Owners, Ch. 47, a. 5, s. 18. 4. Assumpsit on a bill of lading against the master of a son v. Laugh- ship, by the owner of the goods, shipped at Liverpool, for N. York, for the part embezzled or lost on the voyage; admitted to be without fraud on the deft's. part. Held, he was liable for the value of the goods missing, according to the clear net value of goods of like kind and quality, at the port of delivery; but not for interest, if no fraud or misconduct be imputable to him. Held liable as a common carrier; see 3 Caines 219, cited as to the rule of damages not found settled or discussed in the English books. This rule of damages was received as the rule of the marine law. Freight deducted to find the net value. Lex Mer. ART. 8. Several rules and cases. 1. According to Lord Mansfield, the act of God means no more than a thing done "in opposition to the act of man.' But the acts of God, in fact, are those unavoidable accidents or events, which human prudence cannot prevent, as storms, &c.; and not those man's -1 D. & E. prudence may prevent. Hence, if rats eat a hole in a ship, and a loss happens, the carrier is liable; so if by a fire, if not occasioned by lightning. 1 Wils. 281. 27. 1 Stra. 145, Tuckburne v. White.Allen 93. 4 Burr. 2301. Vent. 238. § 2. It was once held the carrier of goods was liable if robbed &c., though deceived by the owners; but the rule is now different. And though to a carrier who receives goods generally, and all kinds of articles, without any special qualification, a person delivering goods, need not declare the contents or value of the package he sends; yet if he be questioned |