1 Citizens1 Bank v. Nantucket Steamboat Co., 2 Story, 37; King v. Shepherd, 3 Story, 3.56; Morse v. Slue, 1 Vent. 190, 238; Kemp v. Coughtry, 11 Johns. 107; Barclay v. Cuculla y Gana, 3 Doug. 389; Trent & Mersey Nav. Co. v. Wood, 4 Doug. 287; Schieffelin v. Harvey, 6 Johns. 170; Watkinson v. Laughton, 8 Johns. 213. The rule is different by the Roman law. Gothofred. ad Dig. Lib. 17, tit. 2, 1. 52, § 3, n. 24; Valin, Tom. 2, p. 74; Sur l'Ordon. de 1681, Liv. 3, tit. 6, art. 26; Boulay-Paty, Droit de Commerce, Tom. 4, tit. 10, § 16, p. 35; Pothier, d'Assurance, n. 55.
2 De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734; 14 Eng. Law & Eq. 327, and Bennett's note. See Marshall v. Nashville Marine Ins. Co., 1 Humph. 99; Atlantic Ins. Co. v. Storrow, 5 Paige, 285.
3 See Johnson v. Midland Railway Co., 4 Exch. 367, Parke, B.
4 Kemp v. Coughtry, 11 Johns. 107; Tyly v. Morrice, Carth. 485; Allen v. Sewall, 2 Wend. 327; 6 Wend. 335; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 17; 2 Kent, Comm. 598.
5 See Cincinnati Mail Line Co. v. Boal, 15 Ind. 345; Haynie v. Waring, 29 Ala. 263.
6 Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 46. In this case Mr. Justice Story says: "The case of Dwight v. Brewster, 1 Pick. 50, 54, does no more than affirm, that the owners are liable, where they are common carriers, and the profit made by the carriage of bank-bills is within the scope of their business and for their account; and that of King v. Lenox, 19
§ 933. In respect to the compensation of a carrier, we have already seen that it is not required to be a fixed sum, but may Johns. 235, shows, that the owners are not bound for shipments not made in the course of the employment of the ship on their account, but on account of the privilege of the master. The case of Middleton v. Fowler, 1 Salk. 282, is, however, still more directly in point to the circumstances of the present case. There the action was against the proprietors of a stage-coach for the loss of a trunk of the plaintiff; and Lord Chief Justice Holt was of opinion that the action did not lie, saying that a stage-coachman was not liable, within the custom, as a common carrier, unless such as take a distinct price for carriage of goods as well as persons, - as wagons with coaches; and though money be given to the driver, yet that is a gratuity, and cannot bring the master within the custom, for no master is chargeable with the acts of his servant, but when he acts within the execution of the authority given by his master. The case of Allen v. Sewall, 2 Wend. 327, is not an authority the other way, for it was reversed upon error by the Court of Errors of New York: Sewall v. Allen, 6 Wend. 335. If I were compelled to choose between the relative authority of these decisions, upon the ground of the reasoning contained therein, I should certainly have deemed that of the Court of Errors the best founded in the principles of law. The reasoning of the court below in that case seems to me to have been founded mainly upon an assumption of the very point in dispute; that is, whether the owners of the steamboat were common carriers of money for hire; for no one can well doubt, that they were not liable therefor, if the ordinary employment of the steamboat, on account of the owners, was confined to passengers and common merchandise for hire, and that the carriage of money was a perquisite of the master, upon his own sole account, and he received the same and pay therefor, not by their authority, or as a part of their business, or by their command, but simply at his own personal risk as special bailee. The knowledge of the owners, that he carried the money for hire, would not affect them unless the hire was for their account, or the master held himself out as their agent in that business, as being within the scope of the usual employment and service of the steamboat. That is the true doctrine, and is fairly deducible from the case of Edwards v. Sherratt, 1 East, 604, although the circumstances of that case called for a somewhat modified statement of it. The case of Shelden v. Robinson, 7 N. H. 157, directly decided that the driver of a stage-coach (the proprietors of which were common carriers of passengers for hire) did not, by carrying packages of money and bank-bills for hire, which he received for his own sole account, become himself responsible as a common carrier; but was merely a common bailee for hire, and subject only to the responsibilities thereof; which necessarily supposes that he did not in such cases act as agent of the proprietors in their common stage-coach business; and that they were not responsible for his acts.
"In short, in all cases of this sort, the true solution of every question of the liability of the owners of a steamboat must depend upon this, whether the master is acting within the scope of the ordinary employment of the be in the nature of a quantum meruit} When he has specific rates of charges, he is ordinarily bound to carry at such rates, owners of the boat, or not. If the master alone receives the hire for himself, and on his own sole account, and does it as a matter of favor and not of duty, and it constitutes no part of the business or employment in which the owners are engaged, and is not performed by their orders or authority, and they are entitled to no share of the profits, then the owners are not responsible, unless indeed the owners hold the master out to the public as acting in these respects for them, and as capable of binding them by his acts. And my judgment, therefore, is that the onus probandi is upon the libellants, to establish that the owners are common carriers to the full extent of incurring liability for the carriage of these bills, before they are entitled to recover. If they leave the matter in doubt, that is decisive for the respondents.
"It is precisely in this view that the evidence, as to the supposed usage or practice introduced into this case, is admissible, not to show, if the owners were common carriers of bank bills for hire, some usage or practice to treat them as not liable for losses of bank-bills intrusted to them, for I am not prepared to say, that any such evidence would be admissible to control the well-established rules of law; but as evidence to show what was the ordinary employment or business of the company, and whether they ever held themselves out to the public as common carriers of bank-bills for hire, or that the master was authorized as master to contract for the carriage thereof on their account. In this view it appears to me that the evidence is exceedingly strong and cogent to establish that the public did not understand that the company ever held themselves out as common carriers of bank-bills for hire, or even as gratuitous bailees, or that the masters of the steamboat ever held themselves out as capable or authorized to bind the company by any such contract, or that it was within the scope of the ordinary employment or business of the company. Most of the witnesses, as has been already suggested, treat it clearly as a case of personal agency of the master on his own personal account, either as a common bailee for hire, or as a gratuitous bailee. The weight of the evidence, indeed, seems to lead to the conclusion, that the master acted often, if not generally, as a gratuitous bailee, and that the reward sometimes paid him was either a mere gratuity, or at most a mere personal charge on his own account. If it was a mere gratuity, it would be difficult to show how the company could be liable therefor, since it would be almost incredible that they should be willing to incur such extraordinary risks without any compensation; and, indeed, since it might well be questioned whether any such business was within the scope and objects of their charter. At all events, no presumption of this sort should be indulged, unless upon the most direct and positive proofs that the company had expressly sanctioned and authorized it." See also Fish v. and cannot refuse to carry in a particular case, unless he is paid an exorbitant sum, or one above his charges to others.1 But it is now well settled that he is not bound to treat all customers alike. He cannot charge an unreasonable rate, but he may carry below the regular rate, or even gratuitously.2 If in any special case he assumes an extraordinary risk, he may charge a remuneration proportional to such risk,6 - as if it be to carry money across a dangerous country.4 But he is not bound to accept goods until he is ready to set forth on his accustomed journey.5 So, also, he is bound to provide vehicles suitable for the purposes of carriage;6 to proceed without deviation,7 and by the usual route,8 to guard against all dangers; to expose the goods to an improper hazard; and to obey the direction of the owners, with regard to them.1 If, therefore, the carrier violate any specific directions of the sender as to the carriage of the goods, and they are destroyed by a cause exempting him from responsibility, as by perils of the sea, yet the carrier is also bound to prove that the loss did not arise from his disobedience of the sender's orders. Thus, if a person should send by a common carrier a box marked "this side up, with care," and the carrier should disobey his directions, he would be obliged to prove that the loss did not occur in consequence of his disregard of orders.2 If the transmission of the goods be countermanded by the consignor, the carrier is bound to redeliver to him.3