1 Stat. 11 George IV. & 1 William IV. ch. 68. See Angellon Carriers, § 256; Story on Bailm. 8th ed. § 554 a, where the statute is stated at length, with the decisions on the subject.
219 Wend. 234.
3 By the word "loss" here is meant a loss by the carrier; such as an abstraction by his servants, or by a stranger, or by losing or mislaying the goods; and the word does not refer to every loss to the owner, as by delay in the delivery, or non-delivery of the articles by the neglect of the carrier. Hearn v. London & South Western Railway Co., 10 Exch. 793; 29 Eng. Law & Eq. 494.
4 This provision applies whether the goods are delivered to the carrier at his place of business, or elsewhere. Baxendale v. Hart, 6 Exch. 769; 9 Eng. Law & Eq. 505.
§ 952. This is substantially the rule which obtains in America. Great reluctance has always been felt in this country to introduce limitations of the responsibility of a common carrier, on the ground that the interest of the public requires that he should be held to a strict accountability, in view of the trust reposed in him, and the opportunities for collusion in his position. The modification of liability by notice is not, without assent,2 admitted in this country; and the authorities are numerous and clear upon the point.3 In an important case in New York,4 an action was brought against stage-coach prolowing effect: "Baggage of the passengers at the risk of the owners." But the court held that such a notice was of no effect in limiting their responsibility. So, also, actual notice to a passenger in a stage-coach, that his luggage is at his own risk, has been held to be of no avail to the carrier.1 But the late English cases hold that signing a ticket which expressly states that the goods are subject to the owner's risk, and that the earner will not be liable for any damage, creates a valid special contract between the parties, under section 6 of the Carriers' Act, and is therefore the measure of liability.2
1 But this act does not prevent the formation of a special contract founded upon actual notice to a consignor, and his acquiescence therein. See Walker v. York & North Mid. Ry., 2 El. & B. 750; 22 Eng. Law & Eq. 315. See post, § 954.
2 Judson v. Western Railroad Corp., 6 Allen, 486, 492.
3 See Camden &AmboyR.R.v. Belknap, 21 Wend. 354; Clark v. Faxton, lb. 153; Pardee v. Drew, 25 Wend. 459; Gould v. Hill, 2 Hill, 623; Beck-man v. Shouse, 5 Rawle, 179; Dwight v. Brewster, 1 Pick. 50; Atwood v. Reliance Transp.Co., 9 Watts, 87; The Reeside, 2 Sum. 567; Fish v. Chapman, 2 Kelly, 349, 360; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539; Bennett v. Dutton, 10 N. H. 481; Bean v. Green, 3 Fairf. 422; Moses v. Boston & Maine R. Co., 24 N. H. 71; Kimball v. Rutland & B. R. Co., 26 Vt. 247; Jones v. Voorhees, 10 Ohio, 145; Davidson v. Grabam, 2 Ohio St. 131; Moses v. Boston & Maine R. Co., 32 N. H. 523; Nevins v. Bay State Steamboat Co., 4 Bosw. 225; Michigan Central R. Co. v. Hale, 6 Mich. 244; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 314; Judson v. Western Railroad Corp., 6 Allen, 492; Blossom v. Dodd, 43 N. Y. 264 (1870); Grace v. Adams, 100 Mass. 505 (1868); Van Toll v. Southeastern Ry. Co., 12 C. B. (n. s.) 75 (1862).
4 Hollister v. Nowlen, 19 Wend. 234. In this case Mr. Justice Bronson says: "The argument is, that where a party delivers goods to be carried, after seeing a notice that the carrier intends to limit bis responsibility, bis assent to the terms of the notice may be implied. But this argument entirely overlooks a very important consideration. Notwithstanding the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment. If the delivery of goods under such circumstances authorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights, as it is that he was willing to yield to the wishes of the carrier. If a coat be ordered from a mechanic after he has given the customer notice that he will not furnish the article at a prietors, as common carriers, for the loss of baggage. The defendants claimed exemption under a public notice to the folless price than one hundred dollars, the assent of the customer to pay that sum, though it be double the value, may perhaps be implied; but if the mechanic had been under a legal obligation, not only to furnish the coat, but to do so at a reasonable price, no such implication could arise. Now the carrier is under a legal obligation to receive and convey the goods safely, or answer for the loss. He has no right to prescribe any other terms; and a notice can at the most only amount to a proposal for a special contract, which requires the assent of the other party. Putting the matter in the most favorable light for the carrier, the mere delivery of goods, after seeing a notice, cannot warrant a stronger presumption that the owner intended to assent to a restricted liability on the part of the carrier, than it does that he intended to insist on the liabilities imposed by law; and a special contract cannot be implied where there is such an equipoise of probabilities.
"Making a notice the foundation for presuming a special contract is subject to a further objection. It changes the burden of proof. Independent of the notice, it would be sufficient for the owner to prove the delivery and loss of the goods; and it would then lie on the carrier to discharge himself by showing a special contract for a restricted liability. But giving effect to the notice makes it necessary for the owner to go beyond the delivery and loss of the goods, and prove that he did not assent to the proposal for a limited responsibility. Instead of leaving the onus of showing assent on him who sets up that affirmative fact, it is thrown upon the other party, and he is required to prove a negative, that he did not assent.