§ 947. Such are the rights, duties, and liabilities of a common carrier, growing out of the general contract. We now come to the question, whether a carrier can limit his responsibility by an express contract that he will not be liable for loss in certain excepted cases. It is well established, that a carrier may, by such an express contract1 with the consignor, reduced to writing, limit his general responsibility.2 Thus, he may by a bill of lading except himself from all losses occasioned by "fire," 3 or "perils of the seas." 4 This question was carefully considered, by the Supreme Court of the United States, in a late case, the circumstances of which were these. Wm. F. Harnden, being engaged in the business of carrying for hire small packages of goods, specie, and bundles of all kinds, for any persons choosing to employ him, to and from the cities of New York and Boston, and using the public conveyances between those cities as the mode of conveyance, made an agreement with the New Jersey Steam Navigation Company, by which they, for a certain melee, 3 Sandf. 610; Chouteaux v. Leech, 18 Penn. St. 224; Baltimore & Philadelphia Steamboat Co. v. Brown, 54 Penn. St. 77; Candee v. Penn-sylvania Railroad Co., 21 Wis. 582; Cary v. Cleveland & Toledo Railroad Co., 29 Barb. 36; Carter v. Peck, 4 Sneed, 203; Wheeler v. San Francisco, etc, Railroad, 31 Cal. 52.
1 An exemption will not be implied. Babcock v. Lake Shore & Mich. So. R. Co., 49 N. Y. 491 (1872);Ętna Ins. Co. v. Wheeler, Ib. 616.
2 Parsons v. Monteath, 13 Barb. 358; Moore v. Evans, 14 Barb. 524; Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 139; Dorr v. N. J. Steam Nav. Co., 4 Sandf. 136, affirmed on appeal, 1 Kern. 485; Stoddard v. Long Island Railroad Co., 5 Sandf. 180; Derwort v. Loomer, 21 Conn. 246; Kimball v. Rutland & Burlington Railroad, 26 Vt. 256; Davidson v. Graham, 2 Ohio St. 131; Wallace v. Matthews, 39 Ga. 617 (1869). But the exemption will not per se enure to a connecting carrier to whom the goods are to be delivered for further transportation. Ętna Ins. Co. v. Wheeler, 5 Lans. 480; 49 N. Y. 616 (1872). Whether the carrier can exempt himself from loss by his negligence, see post, § 954.
3 This is quite well settled law; if the fire is not owing to the carrier's fault. York Co. v. Central Railroad, 3 Wall. 107; Hooper v. Wells, 27 Cal. 11; Pemberton Co. v. New York Central Railroad, 104 Mass. 144 (1870). In Lamb p. Camden & Amboy Railroad Co., 2 Daly, 454 (1869), it was held that the burden of proof in such cases is on the carrier to show that the fire was not owing to his negligence. But this may well be doubted. See Railroad Co. v. Reeves, 10 Wall. 176.
4 Ante, § 754.
consideration, allowed him the privilege of transporting, in their steamers between New York and Providence, a wooden crate of certain dimensions, on these conditions: "The crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event, be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company. Further, that the said Harnden is to attach to his advertisements, to be inserted in the public prints, as a common carrier, exclusively responsible for his acts and doings, the following notice, which he is also to attach to his receipts or bills of lading, to be given in all cases for goods, wares, and merchandise, and other property committed to his charge, to be transported in said crate or otherwise: 'Take notice. - William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to the proprietors of the steamboats in which his crate may be, and is transported, in respect to it or its contents, at any time.' " Upon the loss of certain moneys, which Harnden, by virtue of this contract, was carrying in the steamer Lexington when she was destroyed by fire, an action was brought against the company, charging them as common carriers; but it was held, that their liabilities as common carriers were restricted by the express contract. The court say, "As the extraordinary duties annexed to his employment concern only, in the particular instance, the parties to the transaction, involving simply rights of property, - 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."1 But unless a carrier limit himself by special and express contract, as by a bill of lading excepting fire and perils by sea, he would be responsible therefor.2 And the receipt by the consignor in person, of a bill of lading, or receipt, in which the carrier stipulates against liability by fire or perils of the seas, without any objection being made thereto by the consignor, constitutes, in the absence of any fraud, a special contract, binding on the consignor, whether he reads the contract or not.3 And the
1 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. So, also, in Hollister v. Nowlen, 19 Wend. 234, Bronson, J., says: "I shall not deny that a carrier may by express contract restrict his liability; for though the point has never been expressly adjudged, it has often been assumed as good law. Aleyn, 93; 4 Co. 84, note to Southcote's Case; 4 Burr. 2301, per Yates, J.; 1 Vent. 190, 238; Peake, 150; 3 Taunt. 272; 1 Stark. 186. If the doctrine be well founded, it must, I think, proceed on the ground that the person intrusted with the goods, although he usually exercises that employment, does not in the particular case act as a common carrier. The parties agree that in relation to that transaction he shall throw off his public character, and, like other bailees for hire, only be answerable for negligence or misconduct. If he act as a carrier, it is difficult to understand how he can make a valid contract to be discharged from a duty or liability imposed upon him by law." In Gould v. Hill, 2 Hill, 623, an opposite doctrine was held, and the court deny that the carrier, even by an express contract, limits his responsibility. But the case of Gould v. Hill was expressly overruled in the same State, in the late cases of Parsons v. Monteath, 13 Barb. 353; Dorr v. New Jersey Steam Nav. Co., 4 Sandf. 136; Stoddard v. Long Island Railroad Co., 5 Sandf. 180; Moore v. Evans, 14 Barb. 524. So, also, see Atwood v. Reliance Trans. Co., 9 Watts. 87. But in Wells v. Steam Nav. Co., 2 Comst. 204, the question is considered as debatable. And in a still later case in New York the doctrine of the text has been fully asserted. Dorr v. New Jersey Steam Nav. Co., 1 Kern. 485. See Swindler v. Hilliard, 2 Rich. 286; Camden & Amboy Railroad Co. v. Bal-dauf, 16 Penn. St. 67; Reno v. Hogan, 12 B. Monr. 63; Farmers' & Mechanics' Bank v. Champlain Trans. Co., 23 Vt. 186; Sager v. The Portsmouth Railroad Co., 31 Me. 228; Walker v. York & N. Mid. R. Co., 3 Car. & Kir. 279; Kimball v. Rutland & Bur. Railroad, 26 Vt. 247.
2 Parker v. Flagg, 26 Me. 181.
3 Grace v. Adams, 100 Mass. 505 (1868); King v. Woodbridge, 34 Vt. 571; Boorman v. American Express Co., 21 Wis. 152; Van Toll v. South Eastern Railway Co., 12 C. B. (n. s.) 75 (1862); Cincinnati, etc, Railroad Co. v. Pontius, 19 Ohio St. 222 (1869); Symonds v. Pain, 6 H. & N. 709 (1861).
English cases, decided at common law, seem not to require even so much assent as this.1 But there are numerous cases of the mere delivery of notices containing exemptions to some person or agent for the plaintiff, or after the contract has once been made, or where some very peculiar circumstances exist, in which no contract is thereby created against the consignor, or party in interest.2 Such contract is not made out by mere delivery of a card to a passenger by an express messenger, in exchange for his baggage checks, which contains limitations in fine print, not read by the passenger.3
§ 948. But although a carrier may, in accepting goods, limit his liability by a special contract, yet after accepting them, he cannot refuse to execute his agreement, nor limit his liability by any subsequent notice to the consignor, except with the consent of the latter.4
§ 949. Where there is a special contract, the carrier is not liable thereon as a common carrier, but only as a special carrier; and his duties and liabilities5 are governed by the terms of his contract.6 In such cases, therefore, the action should be upon the special contract, or for a breach of duty arising therefrom.1 And if the declaration in such case set forth only the general liability of the defendant as a common carrier, the variance will be fatal.2 Whether or not the facts of the case create a special contract, is, however, a question of law for the court, and not of fact for the jury.3
1 See Van Toll v. South Eastern Railway Co., 12 C. B. (x. 8.) 75; Walker v. York & North Midland Railway Co., 2 El. & B. 750; Stewart v. London & North Western Railway Co., 3 H. & C. 135; Hopkins v. West-cott, 6 Blatcbf. 64.
2 Buekland v. Adams Express Co., 97 Mass. 124; Perry v. Thompson, 98 Mass. 249; Fillebrown v. Grand Trunk Railway Co., 55 Me. 462; Ma-lone v. Boston & Worcester Railroad Co., 12 Gray, 388; Brown v. Eastern Railroad Co., 11 Cush. 97; Walker v. York & North Midland Railway Co., 3 Car. & Kir. 279; Adams Express Co. v. Haynes, 42 I11. 89.
3 Blossom v. Dodd, 43 N. Y. 264 (1870), examining the cases on this subject.
4 Merwin v. Butler, 17 Conn. 138.
5 Thus, a railway company may be bound by the contract of its agent to forward goods out of their regular time. Page v. Great Northern Railway Co., Irish R 2 C. L. 228 (1868). And also by the agreement of its freight agent to carry goods in a specified train. Strohn v. Detroit, etc, Railroad Co., 23 Wis. 126 (1868). In case of a special contract of a carrier to carry goods at a particular time, it is no defence that an extraordinary rush of freight prevented its being forwarded in season. It may be otherwise where the delay is merely created by law. Deming v. Grand Trunk Railroad Co., 48 N. H. 455 (1869).
6 Parsons v. Monteath, 13 Barb. 358; Moore v. Evans, 14 Barb. 524; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 314.