We have seen how severe a responsibility is cast upon the common carrier by the law; and it is a very interesting question, how far he may remove it or lessen it, with or without the concurrence of the other party. Can the carrier do this by a special contract with the owner of the goods? and, if so, is a notice by the carrier brought home to the owner equivalent to such contract? and if the carrier cannot in this way relieve himself entirely from his responsibility, can he lessen and qualify it? Some of these questions are not yet definitely settled.
There is no doubt that, originally, this responsibility was considered as beyond the reach of the carrier himself. It is but about fifty years since he was permitted to qualify or control it by his own act. And courts have been influenced in their opinion of his rights in this respect, by the view they have taken of the nature of his responsibility. The more they have regarded it as created by the law for public reasons, the less willing have they been that it should be placed within the control of one or both parties to be modified at their pleasure.
The first question is, Can the peculiar responsibility of the common carrier be destroyed by express contract between himself and one who sends goods or takes them with him, so as to * reduce the carrier's liability to that of a private carrier, and make him liable only for his own default? It seems to be well settled by the weight of authority that this may be done; (j) 1 although * in some of the cases in which the sender thereafter, without reply, sends goods by him. But we think there may be a real difference. The rule of law, derived from public policy, may not go so far as to say that the carrier and the sender shall not agree upon the terms on which the goods are to be transported; but it may nevertheless say, that the carrier has neither the right to force such an agreement on the sender, nor to infer, merely from his silence, that he accepts the proposed terms. (m) 1 He may be silent, either because he assents to them, or because he disregards them, and chooses to stand upon the rights which the law secures to him. The passenger who may be about to enter a boat or a car with his baggage, learns, by reading the ticket which he buys, that if he puts that baggage on board it will be at his own risk all the way. He has a right to disregard such notice; to say it is not true; to deliver his baggage to the proper person, placing it under the responsibilities which lie upon the carrier by the general law. To hold otherwise would be to say, not merely that carrier and sender may agree to relieve the carrier from his peculiar liability, but that the carrier has a right to force this agreement on the sender; which is a very different thing. (n) 2
(io) Compare Holdridge v. Utica, etc. R. R. Co. 66 Barb. 191; 84 N. T. 548; with Mote v. Chicago R. R. Co. 27 Iowa, 22.
(j) It seems now to be perfectly settled in this country and in England, that a special contract between the owner of goods and a carrier, limiting the common-law liability of the latter, is valid. It is wholly unnecessary to cite authorities to been said in some late cases in this country, particularly in one with a special acceptance in writing, which they received, and delivered the goods accordingly. This constitutes undoubted evidence of assent on their part. One exception was, of casualties occasioned by fire; and the loss arose from that cause. The servants of the defendants were called as witnesses to make out a case of care; and the jury, under the charge of the court, allowed this as a defence. For myself I shall do little more than refer to my opinion in Cole v. Goodwin (19 Wend. 281), and the reason for such opinion as stated in that case. It was to the effect, that I could no more regard a special acceptance as operating to take from the duty of the common carrier, than a general one. I collect what would be a contract from both instances, provided it be lawful for the carrier to insist on it; and such is the construction which has been given to both by all the courts. The only difference lies in the different kinds of evidence by which the contract is made out. When the jury have found that the goods were delivered with intent to abide the terms of the general notice, I understand a contract to be as effectually fastened upon the bailor as if he had reduced it to writing. Indeed, the contrary construction would, I think, be to tolerate a fraud on the part of the bailor. The true ground for repudiating the general notice, is, therefore, its being against public policy ; and this ground goes not only to the evidence - the mode in which you are to prove the assent - but to the contract itself. After forbidding the carrier to impose it under the form of a general notice, therefore, we cannot consistently allow him to do the same thing in the form of a special notice or receipt. The consequences to the public would be the same, whether we allow one form or the other." The judgment was accordingly reversed; Nelson, C. J., dissenting. We are not aware that this decision has ever been sanctioned by any court in this country. It received the approbation of Mr. Justice Nisbet, in Fish v. Chapman, 2 6a. 349; but that case did not call for any decision upon the question. On the other hand, in 1848, the Supreme Court of the United States, in the case of The New Jersey Steam Nav. Co. v. Merchants Bank, 6 How. 844, denied the authority of Gould v. Hill, and held such a contract to be valid. Nelson, J., said: "As the extraordinary duties annexed to his employment concern only, in the particular instance, the parties to the transaction, involving simply rights of properly, - the safe custody and delivery of the goods, - we are unable to perceive any well-founded objection to the restriction, or any stronger reasons forbidding it, than exist in the case of any other insurer of goods, to which his obligation is analogous; and which depends altogether upon the contract between the parties. The owner, by entering into the contract, virtually agrees, that in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment; but as a private person who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or negligence. The right thus to restrict the obligation is admitted in a large class of cases founded on bills of lading and charter-parties, where the exception to the common-law liability (other than that of inevitable accident) has been, from time to time, enlarged, and the risk diminished, by the express stipulation of the parties. The right of the carrier thus to limit his liability in the shipment of goods has, we think, never been doubted." Since that time, Gould v. Hill has been expressly overruled in New York in three cases; one in the Supreme Court, and two in the Superior Court of the city of New York. We allude to Parsons v. Monteath, 13 Barb. 363; Dorr v. N. J. Steam Nav. Co. 4 Sandf. 136, and Stoddard v. The Long Island R. R. Co. 5 Sandf. 180; Dorr v. New Jersey Steam Nav. Co. 1 Kern. 486; The Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith, 116. Dorr v. N. J. Steam Nav. Co. was an action against the defendants as common carriers upon the Long Island Sound, between New York and Stonington, to recover damages for the loss of goods. The declaration averred that the plaintiffs, who were merchants in New York, shipped the goods in question on board the steamer Lexington, in the defendant's line, to be carried to Stonington; that on the same evening, the steamer was consumed by fire on her passage, and the plaintiffs' goods destroyed. The defendants pleaded that the goods in question were received by them under a special contract, by reason of a clause and notice inserted in their bill of lading, which was set forth in the plea, and which contained, among other things, that the goods in question were to be transported to Stonington, danger of fire, & c., excepted. The plea then averred, that the liability of the defendants was restricted by the exception of the casualties mentioned in the bill of in New York, (k) that no such contract * is valid or lading, and that the loss in question was occasioned by one of the excepted casualties, and was without the fault or negligence of the defendants. To this plea the plaintiffs demurred. And Campbell, J., in pronouncing judgment upon the demurrer in favor of the defendants, said: "The question presented for our consideration is, whether common carriers can, by special contract, restrict their liabilities for losses which occur otherwise than by the act of God or the public enemies. If the point were now for the first time raised, we should have considered it, if not entirely free from difficulty, at least as not leaving much room for doubt as to the correctness of the conclusion at which we have arrived. The judgment of a majority of the late Supreme Court, pronounced in the case of Gould v. Hill, 2 Hill (N. Y.), 623, was cited and urged on the part of the plaintiffs as settling the law in this State, that a common carrier cannot, by special contract, limit his liability. Though the court was divided in opinion, the cause does not seem to have been carried to the court for the correction of errors, and we are not therefore sure of what would have been the decision of the court of last resort But the clear conviction of all of us, that the case of Gould v. Hill was not correctly decided, supported as we are by the Supreme Court of the United States (Merchants Bank v. New Jersey Steam Navigation Company, 6 How. 344), and the great importance of the question to a commercial people, especially the importance of uniformity between the courts of the State and Union in the rules of law regulating commercial transactions, compel us respectfully to dissent from the judgment in that case." Stoddard v. Long Island R. R. Co. is to the same effect. In Parsons v. Monteath, the defendants being common carriers on the Erie Canal between Albany and Buffalo, and occupying a warehouse on the pier at Albany, their agent in New York received goods there belonging to the plaintiff, and gave a receipt or shipping-bill therefor, in the name of the defendants, by which they agreed to transport the goods to Brighton Locks, "the danger of the lakes, of fire, etc., and acts of Providence excepted." The goods reached Albany on the morning of August 17, 1848, and were taken from the tow-boats into the defendant's warehouse on the pier. On the same day a fire broke out in the city of Albany, by which the warehouse was consumed; and the plaintiff's goods, being removed by the defendants' agent into a canal boat in the basin, were destroyed by the fire. Held, that the defendants sustained the relation of common carriers of the goods at the time the fire broke out, and when the goods were destroyed; and that the rules of law incident to that relation applied to them; but that they had a right to circumscribe or limit their common-law liability as common carriers by agreement; and that, having expressly excepted the risk of loss by fire, they were not liable for the value of the goods. Wells, J., said: "Were it not for the late case of Gould v. Hill (supra), I should have no hesitation in holding the contract between the parties as valid and binding, and one to which we were bound to give effect. To do so would be in accordance with a long and unbroken course of decision in England, and in many of our sister States, and in all of them, I believe, where the question has arisen, excepting Ohio; and would be in harmony with the views of all the elementary writers on the subject. It is unnecessary to go into a particular examination of the authorities cited. I content myself with the remark, that the doctrine" is fully asserted by Story, Chitty, Kent, and Angell, and most abundantly sustained by the authorities to which they refer. But in the case of Gould v. Hill (supra), Justice Cowen held a contrary doctrine; that it was not competent for a common carrier to restrict, by special contract, his common-law liability; and that where the defendant, being a common carrier, on receiving the plaintiff's goods for transportation, gave him a memorandum by which he promised to forward the goods to their place of destination, danger of fire, etc., excepted, the defendant was liable for a loss by fire although not resulting from negligence. The learned Justice puts his decision wholly on the ground of public policy, and refers to his reasoning in the case of Cole v Goodwin (19 Wend. 261); the substance of which is (p. 281), that a common carrier's business is of a public nature; that he is a public servant, and bound to perform the duties of his office, and that he should no more be permitted to limit or vary his obligations or liabilities by contract, than a sheriff, has any efficacy. But this case seems to rest upon a previous decision, (l) that the carrier's responsibility is not affected by a notice from him made known to the other party; and upon the difficulty of distinguishing this from an express contract.