on deck, goods they were to transport. That the fifth box was brought in the evening, and placed on the dock where the boat lay. That some person on board said it was the defendant's boat; and that more goods of the plaintiff were coming on board. By Woodworth, J., who delivered the opinion of the Court: "Admitting that, according to the usual custom and understanding of parties, a delivery on the dock, near the boat, is a good delivery so as to charge the carrier, it must always be accompanied with express notice; otherwise he is not answerable. Has that been done in the present case? So far from it, it appears to me that, in every stage of this transaction, the defendant was informed there were four boxes only. So the plaintiff declared to the defendant; such is the language of the receipt for the freight; and so is the invoice. From all this the defendant was warranted in taking on board four boxes of dry goods; and ought not to be chargeable for not taking on board the fifth box, although it might have been left on the dock. From the evidence, I think the defendant might well presume a fifth box was not intended for his boat. But whether it was or not, there was a failure on the part of the plaintiff to give the defendant information. The plaintiff was probably ignorant that there was more than four boxes. That is his misfortune; not a ground to charge the defendant, who appears to have acted with good faith; and could not know, from the instructions he had received, that any more than four boxes belonged to the plaintiff. The defendant may not have received the fifth box on board; it may, by mistake, have been put on board another boat; or perhaps stolen; but there is no presumption that the defendant ever converted it. All the facts in the case negative that presumption. I am therefore of opinion, that the plaintiff has not proved sufficient to make out a delivery of the goods." 1 Packard v. Getman, 6 Cow. (N. Y.) R. 757. § 146. A delivery to the servant, or duly authorized agent, of a common carrier, who is in the habit of receiving packages, is undoubtedly a sufficient delivery. As, if the mate of a ship is a recognised officer on board, and it has been the well known usage to deliver to him, a delivery to him is a good and sufficient delivery.2 But the drivers of wagons and of stage-coaches, carrying parcels for hire on their own account, and no reward therefor is to be received by the proprietors, will not, as has been seen, bind the proprietors.3 The bailment in such case can only be considered a bailment to the driver alone, and he therefore is alone responsible for the loss.4 A shipper contracting with the master of a steamboat, and knowing that the latter receives the goods, on his own account, as a part of his privilege, and not in his character of agent for the owners, does not render the owners liable for goods delivered by the shipper to the captain.5 In King v. Lenox,6 the ship was not a general ship, and was freighted wholly by the owner; the master had a privilege which was known to the plaintiff, and the plaintiff, in delivering his goods for shipment, to the master, dealt with him on his own responsibility, and not as agent for the owner. The case of Walter v. Brewer, was in some respects the same: The defendant was owner of the ship, and loaded her himself, and the goods for which the plaintiff prosecuted, were delivered on board clandestinely during 1 See Ante, § 91, et seq.; Jeremy on Carr. 61; Anjou v. Deagle, 3 H. & Johns. (Md.) R. 206. 2 Cobham v. Downe, 5 Esp. R. 41. 3 Ante, § 76, 77. There is no intention to confide in the proprietors, Ante, § 140, et seq. 4 Bignold v. Waterhouse, 1 M. & Selw. R. 259; Williams v. Cranston, 2 Stark. R. 48. 5 Allen v. $85. Sewall, 2 Wend. (N. Y.) R. 327, and 6 Ib. 335; also Ante, 6 King v. Lenox, 19 Johns. (N. Y.) R. 235. 7 Walter v. Brewer, 11 Mass. R. 99. the temporary absence of the defendant. The Court held, that as there was nothing left to the care of the master but the care of the management and navigation of the ship, and especially the ship being known not to be a freighting ship, the clandestine delivery on board was not a delivery to the defendant, and that therefore he was not responsible for the goods. 147. The charterer and not the general owner of a vessel, it has been seen, is the person liable for the acts of the master in the course of his employment. Nothing is better settled, than that if the owners of a ship have chartered it to a third person, the captain must, for that voyage, be taken to be the agent of the latter, for goods delivered to him; and the owners cannot, hac vice, be made liable for his acts. Thus, in an action against the owners of a ship for not delivering goods delivered on board, it was held by Lord Kenyon, that "although the defendants were owners, yet no express contract being proved with them, and the ship having been in fact chartered for that voyage by them to other persons, those persons were for that voyage to be deemed as the owners, and the captain as their agent pro hac vice; the liability being shifted by the charter from one party to the other." A delivery to the master of a vessel under a charter, the hirer having the whole control of her, for the time, to victual and man her, and who is to pay over a portion of the net proceeds to the owner, for the use of her, was held not to render the owner of her liable to the shippers for goods delivered on board the vessel which had been embezzled, or otherwise not accounted for, by the master.3 On the same principle it is, that the owner of a ferry is not 1 Ante, § 89. 2 James v. Jones, 3 Esp. R. 27. 3 Reynolds v. Tappan, 15 Mass. R 370; and see Schieffelin v. Harvey, 6 Johns. (N. Y.) R. 170. liable for the loss of goods in crossing it, delivered to the ferryman, if the ferry be rented, and in possession of the ferryman as tenant."1 1 Ladd v. Chotard, 1 Miner (Ala.) R. 366. And see as to Ferries, Ante. 82. CHAPTER VI. OF THE RESPONSIBILITY OF COMMON CARRIERS. $148. THAT a common carrier is answerable, as has been already stated,1 for all losses which do not fall within the excepted cases of the "act of God" and "the king's (public) enemies," has been the settled law of England for ages. The policy of imposing an extraordinary degree of responsibility upon common carriers was suggested by the edict of the Prætor in the Roman law,3 before which carriers were not put under any peculiar obligation which did not belong to other bailees for hire. The edict referred to, did not extend in terms to carriers on land, but in most, if not in all, modern countries, the rules which it prescribes has been practically expounded, so as to include them. But the rule in the Civil Law, in respect to an extraordinary responsibility, was not carried to the severe extent of the English Common Law. It did not make the carrier liable for superior or irresistible force, and it accounted robbery among the cases of irresistible force; and this act of violence came within the damnum fatale of the Civil Law, which exempted the carrier.5 In the modern countries governed by the 1 See Ante, § 67. 22 Kent, Comm. 597; Woodleif v. Curteis, 1 Rol. Abr. 2 E. pl. 5; Coggs v. Bernard, 2 Ld. Raym. R. 918; Dale v. Hall, 1 Wils. R. 281; Forward, v. Pittard, 1 T. R. 27. 3 Story on Bailm. § 458. 4 Domat, B. 1, tit. 16, §1; Id. § 2 1 Bell, Comm. § 398, 399, 402, 403; Ersk. Inst. B. 3, tit. 1, § 28. 5 Id. Pothier, Pand. Lib. tit. 9, n. 1, 7; Jones on Bailm. 96; 2 Kent, Comm. 598; Dig. Lib. 4, tit. 9, 1. 3, § 1. |