§ 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.1 As, if the mate of a ship is a recognized 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. 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. The bailment in such case can only be considered a bailment to the driver alone, and he therefore is alone responsible for the loss. 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, 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,7 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 the temporary absence of

1 See ante, § 91, et seq.; Jeremy on Carr. 61; Anjou v. Deagle, 3 H. & Johns. (Md.) R. 206 ; Lloyd v. Barden, Co. of Appeals of S. Carolina, Law Rep. for March, 1849, p. 521.

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. Sewall, 2 Wend. (N. Y.) R. 327, and 6 Ib. 335; also ante, § 85.

6 King v. Lenox, 19 Johns. (N. Y.) R. 235.

7 Walter v. Brewer, 11 Mass. R. 99.

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.

§ 146 a. It is very clear, that if an article be delivered to a servant of a carrier, it must be to such an one as is entrusted to receive goods, and not to one engaged in other duties. Therefore, where a coat was delivered to the driver of a stage-coach, by a person not a passenger, to be delivered to another, in a different place, and the driver refused to put it on the way-bill, saying he had no right to do so, but he would get the next agent to do it at the town of S., it was held, that there was no delivery of the coat to the coach proprietor, and that he was not responsible as common carrier for the loss thereof.1

§ 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.2 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

1 Blanchard v. Isaacs, 3 Barb. (N. Y.) R. 389.

2 Ante, § 89; and post, § 395, et seq.

other." 1 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.2 On the same principle it is, that the owner of a ferry is not 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." 8

1 James v. Jones, 3 Esp. R. 27.

2 Reynolds v. Tappan, 15 Mass. R. 370; and see Schieffelin v. Harvey, 6 Johns. (N. Y.) R. 170.

3 Ladd v. Chotard, 1 Miner (Ala.) R. 366. And see as to Ferries, ante, § 82.

13

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.2 The policy of imposing an extraordinary degree of responsibility upon common carriers was suggested by the edict of the Prætor in the Roman law, 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 rule 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

1 See ante, § 67.

2 2 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. It is a general maxim in law, that Actus Dei nemini facit injuriam; that is, the act of God is so treated by the law as to affect no one injuriously; Broom's Legal Max. 109. The maxim may be paraphrased and explained as follows: - It would be unreasonable that those things, which are inevitable by the act, which no industry can avoid, nor policy prevent, should be construed to the prejudice of any person in whom there was no laches. 1 Rep. 97.

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.

within the damnum fatale of the Civil Law, which exempted the carrier.1 In the modern countries governed by the Civil Law, (France, Spain, Holland, Louisiana, Scotland, and the German States,) the same rule is generally, if it is not invariably, adhered to.2 As is stated by the learned author of "Commentaries on the Law of Bailments," the responsibility of common carriers, in the kingdoms and states just mentioned, may be summed up in the following brief statement: "They are responsible for damage caused by their servants, or by others in their employ and confidence, or under their protection; but they are not responsi ble for thefts committed with armed force or other superior power; and, of course, they are exempted from losses by mere accident, and inevitable casualty." 3

§ 149. Such also seems to have been the Common Law of England, as understood in the reign of Henry VIII., in

1 Id. Pothier, Pand. Lib. tit. 9, n. 1, 7; Jones on Bailm. 96; 2 Kent, Comm. 598; Dig. Lib. 4, tit. 9, l. 3, § 1.

2 Story on Bailm. § 488; 2 Kent, Comm. 598; Pardessus, Droit Comm. P. 2, tit. 7, ch. 5, art. 537 – 555; Code Civil of France, art. 1782, 1786, 1952; 1 Bell, Comm. p. 465, 466; Abbott on Shipp. P. 3, ch. 3, § 3, n. (1); 1 Voet ad Pand. lib. 4, tit. 9; Civil Code of Louisiana, art. 2722 – 2725.

3 Story on Balm. § 488, which refers to the above authorities, and to Merlin Repertoire, Voiture, Voiturier; 2 Kent, Comm. 598; Elliott v. Rossell, 10 Johns. (N. Y.) R. 1. In Louisiana, where the Civil, and not the Common Law, prevails, the rule is less rigorous than the Common Law rule, so that the owners of steamboats have been held not liable in Louisiana for a loss occasioned by fire, where proper diligence had been used. But the jurisprudence of the States generally, contains a general adoption of the Common, in preference to the Civil Law, and such is the case in Alabama. Jones v. Pitcher, 3 Stew. & Port. (Ala.) R. 176, per Saffold, J. It was said by the Provincial Court of Appeals of Lower Canada, that the law creates the exception force majeure, or irresistible force; and that this constitutes the only difference between the law of bailments in England and in France. Hart v. Jones, Stuart, (Low. Canada) R. 589. See Spence v. Chadwick, 10 Adol. & Ell. (N. S.) 517.