"After all that has been or can be said in defence of these notices, whether regarded either as a ground for presuming fraud or implying a special agreement, it is impossible to disguise the fact that they are a mere contrivance to avoid the liability which the law has attached to the employment of the carrier. If the law is too rigid, it should be modified by the legislature, and not by the courts. It has been admitted over and over again by the most eminent English judges, that the effect given to these notices was a departure from the common law; and they have often regretted their inability to get back again to that firm foundation. The doctrine that a carrier may limit his responsibility by a notice was wholly unknown to the common law at the time of our Revolution. It has never been received in this, nor, so far as I have observed, in any of the other States. The point has been raised, but not directly decided. Barney v. Prentiss, 4 Har. & Johns. 317; Dwight v. Brewster, 1 Pick. 50. Should it now be received among us, it will be, after it has been tried, condemned and abandoned in that country to which we have been accustomed to look for light on questions of jurisprudence." See, also, Cole v. Goodwin, 19 Wend. 251, to the same point. But see M' Andrew v. Electric Telegraph Co., 17 C. B. 3; 33 Eng. Law & Eq. 180.
§ 953. But although a carrier cannot without assent avoid or limit his responsibility by a notice, even where it is brought home to the knowledge of the other party,3 yet he may by a notice require that the goods shall be delivered or tendered in a particular way, or that information shall be given to him of the value of any article, if it exceed a certain sum, and an additional price therefor be paid.1 For such a notice is not considered as a limitation of his liability after the goods are received, but only as a condition precedent to his undertaking as common carrier, which, if it be reasonable and known to the consignor, ought to be allowed. Where, therefore, a general notice was given by a carrier, that he would not be liable over a certain amount, unless the value of goods were made known to him on delivery, and a premium for insurance paid, it was held, that such notice, if brought home to the knowledge of the owner, operated to qualify the acceptance of the goods, and that, in case he did not disclose the value and pay the premium, he could only recover the proposed sum.2 Such a notice must, however, be brought home to the knowledge of the consignor, in order to bind him.
1 Jones v. Voorhees, 10 Ohio, 145. See, also, Cole v. Goodwin, 19 Wend. 251.
2 Morville v. Great Northern Railway, 16 Jur. 528; 10 Eng. Law &Eq. 366; Chippendale v. Lancashire, etc. Railway, 15 Jur. 1106; 7 Eng. Law & Eq. 395; Austin v. Manchester, etc. Railway, 16 Q. B. 600; 10 C. B. 454; 5 Eng. Law & Eq. 329; 11 Id. 506; Carr v. Lancashire & Yorkshire Railway, 14 Id. 340; 7 Exch. 707; Walker v. York & North Midland Railway, 2 El. & B. 750; 22 Eng. Law & Eq. 315; York, Newcastle, & Berwick Railway Co. v. Crisp, 14 C. B. 527; 25 Eng. Law & Eq. 396; Slim v. Great Northern Railway, 14 C. B. 647; 26 Eng. Law & Eq. 297. In Blossom v. Dodd, 43 N. Y. 264 (1870), the defendant's messenger had, in the evening, received from the plaintiffs checks for his baggage; after which the former handed the latter a card, purporting to be a receipt, on the margin of which was printed, in small type, language to the effect that it was "mutually agreed," and was "part of the consideration of the contract," that the defendant should not be liable for the loss of baggage. The court held that as this "agreement" was obscurely printed, and as it was not light enough to read it, it was of no effect. The decision is doubtless correct; but quaere if the ground upon which it rested should not have been that the card was delivered too late to affect the liability of the defendant. The contract was complete on the delivery of the checks, and it could not be varied without assent given upon a new consideration. It would seem that it was immaterial that the "agreement" was obscurely printed and delivered in the dark. See Rawson v. Pennsylvania R. Co., 48 N. Y. 212 (1872).
3 Kimball v. Rutland & Burlington Railroad, 26 Vt. 247; Dorr v. New Jersey Steam Nav. Co., 1 Kern. 485, and cases cited above.
§ 954. The doctrine in England, as declared in the more modern cases, even since the passage of the Carriers' Act, is, that a carrier may, by special contract with the consignor, absolve himself from all liability in cases even of gross negligence.3 And if, therefore, the consignor sign a paper declaring that he "undertakes all risks of conveyance whatsoever; and the company will not be responsible for any injury or damage, however caused, occurring to live-stock travelling on their railway," the carrier will not be liable for any losses occasioned by gross negligence on his part.1 This doctrine has not met with approbation in America; and the courts of this country have generally held that a common carrier cannot by special contract absolve himself from losses arising either from his fraud or his gross negligence, - on the plain ground that a contrary rule would be against public policy, and impair all security in the necessary transmission of goods and merchandise.2 According to the English rule, a common carrier may by his contract elude all those responsibilities which the law has affixed to his character, and take advantage of the public necessities of travel, without incurring liability for even the grossest negligence and want of caution. In this country the old rule still obtains, and notwithstanding, therefore, any notice that the carrier may give, he is bound to take the best care of goods intrusted to him, and he is liable, not only for any act which amounts to a total abandonment of his character as carrier, and for gross or wilful negligence, but also for a conversion or misfeasance, as by a delivery to a wrong person, where the mistake might have been avoided by ordinary care.3