§ 915. In respect to that class of bailments for hire, called Locatio mercium vehendarum, or the carriage of goods, there is no difference of obligation from that which attaches to other bailees for hire, unless in certain excepted cases, which we shall consider in order: 1st. Common Carriers; 2d. Postmasters and Mail Contractors.
§ 916. A common carrier is a person whose public employment is the carriage of goods for hire; such as railway companies,2 expressmen,8 truckmen, wagoners, carters, porters, ferrymen,4 bargemen, masters of vessels, and, in a word, all persons whose business it is to carry goods for a reward.5 If they receive no pay therefor, they are merely gratuitous bailees.6 It is not necessary, however, that the compensation should be a fixed sum, or known as a freight; it will be sufficient if a hire or recompense in the nature of a quantum meruit be paid. But if the hire or recompense be bestowed as a mere gratuity or voluntary gift, and not as a debt, or legally recoverable consideration, the party receiving it is not responsible as a common carrier,1 but only as mandatary or gratuitous bailee. A carrier by land and by water2 has the same liabilities. A carrier of passengers is not considered as a common carrier; and he is not subject to a common carrier's liabilities, in respect to the persons whom he carries; although he is in respect to their baggage. His liabilities in regard to the persons of passengers will be hereafter considered. If the proprietors of coaches, omnibuses,3 or steamboats, carry goods on hire, as well as passengers, they are liable as common carriers, in respect to such goods, if it be their public employment; and not otherwise.4 So, also, a forwarding merchant, who defrays the expenses of transporting goods from place to place, without having any interest in the conveyances in which they are transported, or in the freight, is not a common carrier; but merely a warehouseman.5 Whether proprietors of steam-tugs or tow-boats, the regular business of which is to tow vessels in and out of port for hire, would have the responsibility of common carriers, does not seem to be distinctly settled, though the weight of opinion seems to incline to the doctrine that they have not.1 So, also, owners of steam-boats and ships engaged
1 For a full and able exposition of the law relating to this class of bailees, the reader is referred to Mr. Angell's recent Treatise on Common Carriers, which has appeared since the second edition of the present treatise.
2 Kimball v. Rutland & Burlington Railroad, 26 Vt. 247.
3 Read v. Spaulding, 5 Bosw. 395; Haslam v. Adams Express Co., 6 ib. 235; Buckland v. Adams Express Co., 97 Mass. 124; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, and many other eases cited in note 3, p. 446, of Story on Bailm. 8th ed.
4 See Willoughby v. Horridge, 12 C. B. 742; 16 Eng. Law & Eq. 437; White C. Winnisimmet Co., 7 Cush. 155; Smith v. Seward, 3 Barr, 342; Fisher v. Clisbee, 12 I11. 344; Slimmer v. Merry, 23 Iowa, 90.
5 Story on Bailm. § 496, and cases cited; Angell on Carriers, § 69, 70; Alexander v. Greene, 7 Hill, 544.
6 Fay v. New World, 1 Cal 348; Self v. Dunn, 42 Ga. 528 (1871).
1 Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 55. But see post, § 962, as to carriers of passengers, where the contrary doctrine is held.
2 Bac. Abr. Carriers, A.; 2 Kent, Coram. 600 to 602;' 1 Bell, Coram, p. 467, 468, 475; Aston v. Heaven, 2 Esp. 533; White v. Boulton, Peake, 81; Christie v. Griggs, 2 Camp. 79; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251; Powell v. Myers, 26 Wend. 591; Camden & Amboy Railroad v. Belknap, 21 Wend. 354; Pardee v. Drew, 25 Wend. 459; Stokes v. Saltonstall, 13 Peters, 181; Hall v. Connecticut Steamboat Co., 13 Conn. 319; Robinson v. Dunmore, 2 Bos. & Pul. 417; King v. Shepherd, 3 Story, 356; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 17.
3 Dibble v. Brown, 12 Ga. 217.
4 Porterfield v. Humphreys, 8 Humph. 497.
5 Lovett v. Hobbs, 2 Show. 128; Upshare v. Aidee, 1 Com. 25; Dwight v. Brewster, 1 Pick. 50; Allen v. Sewall, 2 Wond. 327; s. c. 6 Wend. 335; Story on Bailm. § 500, 501; Orange County Bank v. Brown, 9 Wend. 85, 114; Camden & Amboy R. R. Co. v. Burke, 13 Wend. 611; Hastings v. Pepper, 11 Pick. 41; Middleton v, Fowler, 1 Salk. 282; Shelden v. Robinson, 7 N. H. 157; Palmer v. Grand Junction Railway Co., 4 M. & W. 749; Fish v. Chapman, 2 Kelly, 349.
5 Platt v. Hibbard, 7 Cow. 497; 2 Kent, Comm. 591; Roberts v. Turner, 12 Johns. 232; Caton v. Rumney, 13 Wend. 387; 2 Kent, Coram. 598, 599; Maybin v. South Carolina Railroad Co., 8 Rich. 240. But see Teall v. Sears, 9 Barb. 317.
1 Brawley v. The Watson, 2 Bond, 356 (1870). Mr. Chancellor Kent includes them in this class of bailees: 2 Kent, Comm. 590; but Mr. Justice Story, in his work on Bailments (§ 496), excludes them. In Alexander v. Greene, 3 Hill, 9, the doctrine stated in the text was held. The court says: "The defendants carry on the business of towing boats laden with merchandise and produce, and are undoubtedly willing to engage for all persons who may desire their services. But I think they are not common carriers. They do not receive the property into their custody, nor do they exercise any control over it other than such as results from the towing of the boats in which it is laden. They neither employ the master and hands of the boats towed, nor do they exercise any authority over them beyond that of occasionally requiring their aid in governing the flotilla. The goods or other property remain in the care and charge of the master and hands of the boat towed. In case of loss by fire or robbery, without any actual default on the part of the defendants, it can hardly be pretended that they would be answerable; and yet carriers must answer for such loss. If the case of Caton v. Rumney, 13 Wend. 387, does not go the whole length of deciding this question, we entertain no doubt that the circuit judge was right in ruling that the defendants are not common carriers." See Wells v. Steam Navigation Co., 2 Comst. 207; 4 Seld. 375; Wooden v. Austin, 51 Barb. 9; Arctic Fire Ins. Co. v. Austin, 54 Barb. 560; Hays v. Paul, 51 Penn. St. 134; The Angelina Corning, 1 Benedict, 109; Brown v. Clegg, 63 Penn. St. 51 (1869), in which the authorities are fully stated; Leonard v. Hendrickson, 18 Penn. St. 40; Penn. etc, Steam Nav. Co. v. Dandridge, 8 Gill & J. 248. But in Vanderslice v. Towboat Superior, 13 Law R. 402 (1850), the court says, in commenting on this case: "I confess that, after reading that case over carefully, the reasoning of the court does not appear to me conclusive, and that I am much more impressed by the argument of the counsel for the unsuccessful party. It has been suggested that such steam-tugs should, perhaps, hold a place between common carriers and ordinary bailees for the carriage of goods; not liable in general for loss by fire or by robbery, since the owner or his immediate agent has, to a certain extent, the continued supervision of his property, but to be otherwise held to the highest degree of accountability, since the vessel towed is, for the time under their control, - quite as much so as the baggage of a passenger in a stage-coach.