1 In Ayres v. Western R. Co. 14 Blatchford, 9, a stipulation that the company would not be liable as carriers for goods "after their arrival at their place of destination and unloading at the company's warehouse" was held ineffectual to excuse an accidental loss of the goods while stored in transit Where a bill of lading exempts a carrier it is allowed, it is intimated that this is a departure from the ancient principles of the common * law. It has also show that such if the case in England; for, although, as we shall presently see, scarcely a volume of English reports appears which does not contain more or less cases concerning contracts of this description, no question is ever made as to their validity. Nor do we conceive this to be a departure from the ancient principles of the common law; for it nowhere appears that such contracts were ever prohibited as contravening the policy of the law. "There is no case," says Lord Ellenborough, in Nicholson v. Wil-lan, 6 East, 607, "to be met with in the books, in which the right of a carrier thus to limit, by special contract, his own responsibility, has ever been, by express decision, denied." It should be observed, moreover, that this question is not at all affected by the Carriers Act, 2 Geo. IV. & 1 Wm. IV. c. 68, for by the 6th section of that act it is provided, that nothing in the act contained shall in any wise affect any special contract for the conveyance of goods and merchandise. See the act fully stated, post, p. * 241, note (r). On this side of the Atlantic we are not aware of any case in which the validity of such contracts is denied until Cole v. Goodwin, 19 Wend. 251 (1888). There the defendants, who were stage-coach proprietors, had published a notice to the effect that all baggage sent by their line would be at the risk of the owners. The question was, whether such notice, brought home to the knowledge of the plaintiff, should exempt the defendants from their common-law liability. And it was held, that it should not. And Mr. Justice Cowen, who delivered the opinion, declared that there was no difference between such notice brought to the plaintiff's knowledge and an express contract; that both were evidence of an agreement between the parties to limit the carrier's liability; but that both were void as contravening the policy of the law. In 1840, the case of Jones v. Voorhees, 10 Ohio, 145, was decided by the Supreme Court of Ohio. That case raised precisely the same question that was raised in Cole v. Goodwin ; and, although the decision went no further than to declare that a notice brought to the plaintiff's knowledge did not exempt the defendant from his common-law liability, Wood, J., who delivered the opinion of the court, manifested a strong inclination to adopt the views of Mr. Justice Cowen, in their full extent In 1842 came the case of Gould v. Hill, 2 Hill (N. T.), 628. That was an action brought in the Superior Court of the city of New York against the defendants, as common carriers, to recover the value of certain goods delivered to them to be transported from New York to Philadelphia. On delivering the goods in question to the defendants, they gave the plaintiffs a memorandum, which stated, among other things, that the defendants would not hold themselves responsible in case of loss by fire. The goods were destroyed by fire on their passage and evidence was given tending to show that the loss was not occasioned by the negligence or want of care of the defendants. The court charged the jury, that under the circumstances the defendants were chargeable only for a loss resulting from negligence. The plaintiff excepted, and the jury having returned a verdict for the defendants, upon which judgment was rendered, a writ of error was sued out from the Supreme Court. And per Cowen, J.: "In this case the common carriers, instead of alleging a general notice restricting their liability to the plaintiffs and all others, furnished them from loss by fire without negligence, the burden is on the plaintiff to show loss by fire through negligence, and where a rebellious mob has burned the goods, the carrier is not liable. Wertheimer v. Penn. R. Co. 17 Blatchford, 421. A notice that the carrier "is not to be held liable for any loss or damage by fire" will not excuse negligence; but he can restrict his liability to a certain sum, unless the true value of the goods sent is stated, Muser v. Holland, 17 Blatchford, 412; and on the consignor's refusal to disclose such value on inquiry, no more than such sum can be recovered, Mather v. American Express Co. 9 Bissell, 293. Where a carrier stipulates for exemption from liability as such while goods are "at any of their stations awaiting delivery, and also that goods must be moved" during business hours,"he is liable on his failure to give notice of their arrival so as to allow such removal in business hours, the goods being injured by the delay. McKinney v. Jewett, 90 N. T. 267. Where also a shipper assumed "all risks and loss of its property by fire, when in the charge or custody or the carrier," the latter, having agreed to deliver "at the warehouse of the shipper," was not allowed to recover freight on goods destroyed by accidental fire. N. Y. Cent., etc. B. Co. v. Standard Oil Co. 87 N. Y. 486.
(k) Gould v. Hill, 2 Hill (N. T.), 623.
Undoubtedly it may be difficult to discriminate very clearly between the case where the carrier and the sender expressly agree that the carrier shall not be responsible for the property, and that in which the carrier says to the sender, "If you send goods by me, I will not be responsible for them," and or jailer, or any other officer appointed by law. The only question with me is, how far we are bound by the case of Gould v. Hill, and whether the maxim, stare decisis, in consequence of it is to govern the present case. It is the only reported case where this precise question has been decided in that way in this State. No case that I am aware of has followed it, affirming the doctrine. Nelson, then Chief Justice of this court, dissented from the decision. I am diposed therefore to think, in view of the great importance of the question, and its connection with so large a branch of the commerce of the country, that we ought to take the responsibility of overruling it, providing we think it not in accordance with the settled law of the land. It is a question in relation to which, almost above all others, the law should be uniform throughout the commercial world, especially among the different States of the Union. It relates to transactions, which, in their nature, expand themselves over and through extensive districts of country, and to places widely separated from each other. No one can fail to perceive the great inconvenience that must result from having different and hostile rules on the subject prevailing between the different Atlantic cities, or between them and the Western States. If it be true, as I think is undeniable, that by the law as entirely settled in England, and in most of the United States, and as held by the most eminent jurists of the country, a common carrier may, by special contract with his employer, limit his liability and relax the rigor of the common-law rule applicable to his position, I think we ought not to hesitate in giving the law, so declared, effect in the case at bar, notwithstanding the isolated authority in this court which stands opposed to it, I think the rule as laid down by Justice Cowen, should be regarded as a deviation from the true one, from which the court should return at the earliest opportunity, and that, too, notwithstanding we might, were the question entirely open, prefer a different one." The learned judge then proceeds to declare his disapproval of Gould v. Hill upon principle, admitting the question to be still an open one, and concludes: "In every light that I have been able to view the question, I am forced to the conclusion, that the rule in Gould v. Hill, is not, and ought not to be, the law; that it is opposed to reason as well as to authority, and ought not to be followed." And in the case of Moore v. Evans, 14 Barb. 624, Gould v. Hill is again explicitly overruled. See also Stoddard v. Long Island R. R. Co. 5 Sandf. 180; Dorr v. The New Jersey Steam Navigation Co. 1 Kern. 486. The result is, that there is no case which is any longer to be regarded as an authority, that decides that an express contract between the owner of goods and a carrier, limiting the liability of the latter is void. For cases, besides those already cited, which hold that such a contract is valid and binding, see the following: Swindler v. Hilliard, 2 Rich. L. 286; Camden & Amboy Railroad Co. v. Bal-dauf, 16 Penn. St 67; Bingham v. Rogers, 6 W. & S. 406; Beckman v. Shouse, 5 Rawle, 179; Reno v. Hogan, 12 B. Mon. 63; Farmers & Mechanics Bank v. Champlain Transportation Co. 28 Vt. 186; Kimball v. Rutland & B. R. R. Co. 26 Vt. 247; Sager v. The Portsmouth R. R. Co. 31 Me. 228; Walker v. York & N. Midland R. Co. 3 Car. & K. 279; Roberts v. Riley, 16 La. An. 103. See also the editor's notes to Austin v. The M. S. & L. Railway Co. 11 E. L. & E. 606; s. c. 11 C. B. 464, and Carr v. The L. & Y. Railway Co. 14 E. L. & E. 340; s. c. 7 Exch. 707, where the cases are collected. And Slim v. The Northern Railway Co. 26 E. L. & E. 297; s. c. 14 C. B. 647; Smith v. N. Y. Centr. R. R. Co. 20 Barb. 132. To what extent a carrier may thus exempt himself from his common-law liability, we shall inquire in another note.