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This is to be construed according to the circumstances under which the contract was made and the peculiar subject to which it is applied. The defendants were not exempt from liability in De Rothschild &c. v. Steam Packet Co. 7 W. H. & G. 734; nor in Hand v. Baynes, 4 Whart. 204, Atwood v. Reliance Transportation Co. 9 Watts 87, or New Jersey Co. v. Merchants Bank, 6 How. 382; and were exempt in Chambers v. Hilliard, 2 Richardson 286. Under the stipulations of their contract carriers were held not responsible for a loss on lake Ontario occasioned by perils of the winds and waves. Fairchild v. Slocum &c. 19 Wend. 329. Foreign writers of great eminence lay down that a ship's master who keeps cats is excused from damage by rats. 1 Emerigon 377, 8; Consulado de Mer. c. 66, 7, Roccus, n. 58. However worthy of consideration their works are, an English or American court cannot act upon them in contradiction to the plain and clear meaning of the words of the bill of lading. In an insurance case in Pennsylvania a leak occasioned by rats was regarded as a risk within the policy. Garrigues v. Coxe, 1 Binn. 592. Lord Ellenborough was of a different opinion. Hunter v. Potts, 4 Camp. 203. This case and Dale v. Hall, 1 Wils. 281, were cited with approbation in New York in an action against the owners of the vessel, as carriers. Aymer v. Astor, 6 Cow. 266; 3 Kent's Com. 300. Judge Story avoids expressing his opinion upon the point. Story on Bailm. § 513. The principal authority referred to by Lord Tenterden (in Abb. on Ship. 326) is Dale v. WilIn that case the court of exchequer has recently said, it entirely concurs. It holds that damage by rats does not fall within the exception usually contained in the English bill of lading. Laveroni v. Drury &c. 8 W. H. & G. 166, 16 Eng. Law & Eq. 510. The terms of that exception are in Abb. on Ship. 280.

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9. How liability of any carrier may be restrained by a special acceptance.

A carrier was always at liberty to make a special acceptance of the goods, and to introduce into the terms of such acceptance any reasonable condition not inconsistent with his duty to the public. Southcote's case, 4 Rep. 84; Morse v. Slue, 1 Ventr. 238; Best, J. 4 Barn. & Ald. 628. From the days of Aleyn down it has again and again been decided that the liability of a carrier may be so restrained. Kenrick v. Eggleston, Aleyn 93; Mansfield, C. J. 3 Taunt. 271. Nevertheless in New York it is held that a special acceptance can VOL. II.-34

no more take from the duty of the carrier than a general one. His receipt for goods may promise to forward them (danger of fire &c. excepted); the assent of the owner may be evidenced by his receiving this receipt and delivering the goods accordingly; and without any negligence or want of care of the carrier the goods may be destroyed by fire on their pas sage; yet in that state the carrier is not allowed the benefit of this contract; it is considered against public policy. Gould &c. v. Hill &c. 2 Hill 623. This was the judgment of Cowen, J. concurred in by Bronson, J. Nelson, C. J., dissented. From what he has said since his elevation to the supreme court of the United States, it appears that no well founded objection is perceived by him to the carrier's restricting his obligation by special agreement. New Jersey Co. v. Merchants Bank, 6 How. 382, 3. None is perceived in England. There the terms contained in a ticket given to the owner of horses or other things at the time they are received forms part of the contract for the carriage thereof. Shaw v. Railway Co. 13 Adol. & El. N. S. 347, 66 Eng. Com. Law Rep.; Austin v. Railway Co. 10 Com. Bench 473, 70 Eng. Com. Law Rep. When a special contract is thus made, the right of action against the carrier can only be upon that contract and in accordance with its terms. Austin v. Railway Co. 16 Adol. & El. N. S. 600, 71 Eng. Com. Law Rep. 600, 5 Eng. Law & Eq. 329. The owner after delivering and sending on these terms cannot recover in disregard of the special contract. Chippendale v. Lancashire & Y. Railway Co.7 Eng. Law & Eq. 395; Hughes v. G. W. Railway, 14 Com. Bench (5 J. Scott) 637, 78 Eng. Com. Law Rep. 636, 25 Eng. Law & Eq. 347.

10. How carrier's liability may be restrained by a notice. Review of the cases in England, New York and else where. Generally party sending goods with knowledge of the terms of the notice is considered as sending upon a special contract according to those terms.

In England if a railway company make a by-law that "every first class passenger will be allowed 112 lbs. and every second class passenger 56 lbs. of luggage free of charge," it is considered not that the company is a gratuitous bailee but that the fare paid is for carrying the passenger and his baggage within these limits, and that free of charge means free of any extra charge. Nor when the luggage is delivered to the company's agent for the purpose of being carried, will the company be exempt because its by-law may declare that "the

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company will not be responsible for the care of the same unless booked and paid for;" the prima facie liability imposed by the common law is not qualified by such a by-law without bringing home to the passenger knowledge of it, by publication or otherwise. Great Western Railway Co. v. Goodman, 11 Eng. Law & Eq. 546; Williams v. Great Western Railway Co. 28 Id. 439.

Notices of various kinds have from time to time, been published by common carriers with a view to limit the responsibility cast upon them by the common law. The principle on which these notices are given is well stated by Maule, J. He observes that a common carrier who gives no notice limiting his responsibility is an insurer; but if he gives notice that he will contract only to a limited extent and with respect to articles of a given value, he ceases to be an insurer beyond that, though in all other respects he remains a common carrier. The carrier from London to Glasgow, if he thinks there is difficulty or danger in crossing the Scottish border, may guard himself against that by specially providing that he will not be responsible for thefts taking place on the other side of the Tweed. 14 Com. Bench (5 J. Scott) 293, 25 Eng. Law & Eq. 300.

He may give a notice that he may secure a compensation. proportioned to his risk, and put parcels of the greatest value in a place of the greatest security. When there is notice from a carrier that he will not be answerable for money or notes, unless entered and paid for accordingly, if a party, instead of making such payment, shall conceal that the thing sent is money, bills or notes, the carrier will not be answerable for the loss thereof. It was so held in one case in which a party had £ 100 in some hay in an old nail bag sent by a stage coach, Gibbon v. Paynton &c. 4 Burr. 2298; and in another, in which bank notes in a box were delivered to the carrier, without disclosing the contents of the box. Batson &c. v. Donovan &c. 4 Barn. & Ald. 21, 6 Eng. Com. Law Rep. 333.

The courts of New York push the doctrine against the carrier too far when they hold that his liability cannot be limited by such a notice, though brought home to the employer. Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Id. 254; Slocum v. Fairchild, 7 Hill 297. If by notice it is made known to the owner that the carrier refuses to insure beyond a certain value, without a reward for that insurance, and the owner with this knowledge sends his goods without paying that reward, then there is a contract on the terms of the notice, and the owner cannot, in opposition to that contract,

have the benefit of an insurance for which he has not paid. This is the doctrine of the English cases, old as well as new.

The terms of such a notice governed the decisions in Clay v. Willan &c. 1 H. Bl. 298, and Izett v. Mountain, 4 East 371. True, it has since been argued that such a notice is illegal, as being to exempt from a responsibility cast by law on the carrier, Lyons &c. v. Mills, 5 East 428; that the special acceptance on the terms of the notice is contrary to the policy of the common law. But this position, recently acted on by the New York courts in the cases above cited, was overthrown in England half a century ago. The court of king's bench then (in 1804) said that "considering the length of time during which, and the extent and universality in which, the practice of making such special acceptances of goods for carriage by land and water has now prevailed in this kingdom;" and "considering also that there is no case to be met with in the books in which the right of a carrier thus to limit by special contract his own responsibility has ever been by express decision denied," it could not do otherwise than sustain such right. Nicholson &c. v. Willan &c. 5 East 507. "The right," Judge Story observes, "is now fully recognized and settled beyond any reasonable doubt in England." Story on Bailm. 549. For this assertion he cites a number of authorities; and the court of queen's bench has pronounced that he has drawn a correct conclusion from them. Austin v. Railway Co. 10 Com. Bench (1 J. Scott) 473, 70 Eng. Com. Law Rep. 473.

Thus the law is understood, not only in England but in Pennsylvania, Bingham v. Rogers, 6 W. & S. 495; Laing v. Colder, 8 Barr 484; in South Carolina, Patton v. McGrath &c. Dud. 159; Swindler v. Hilliard &c. 2 Richardson 303; and in many of the American states.

The New York doctrine has found some support in the opinion delivered in the supreme court of the United States, by Nelson, J.; which opinion the reporter of that court understands to have been concurred in by Taney, C. J., McLean, J., and Wayne, J. 6 How. 378. In that opinion it is laid down that the carrier should not be permitted to exonerate himself without the assent of the parties concerned; and that "this is not to be implied or inferred from a general notice to the public, limiting his obligation, which may or may not be assented to." The judges who concur in this opinion, "agree with the New York court in the case of Hollister v. Nowlen, that if any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist upon his rights and the duties of the carrier,

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as it is that he assented to their qualification." Co. v. Merchants Bank, 6 How. 382, 3. This is not the English doctrine. There, when a railway company gives notice that it will carry goods at certain rates, upon certain terms, this notice may be the basis of a special contract. If an owner of goods, after receiving this notice, sends his goods at the rates, he is considered as sending them upon the other terms, mentioned in the notice. He may grumble at the terms, but if his grumbling be addressed to a station master, who he knows has no power to vary the terms, it goes for nothing; there is, nevertheless, a special contract between him and the company that the goods shall be carried upon the terms mentioned in the notice. Walker v. Y. & N. M. Railway Co. 2 El. & Black. 750, 75 Eng. Com. Law Rep. 750, 22 Eng. Law & Eq. 315.

The question in these cases is whether the delivery was upon a special contract. When the delivery is ascertained to have been with knowledge by the owner of the terms mentioned in the carrier's notice, there is but little difficulty in holding that there is a special contract on those terms; the difficulty generally has been to fix the owner with such knowledge. Singleton v. Hilliard &c. 1 Strobhart 217. To shew such knowledge, evidence has been given of an advertisement or notice which probably attracted the attention of the owner of the goods, or of the person who brought them. Leeson v. Holt &c. 1 Stark. 186, 2 Eng. Com. Law Rep. 249; Ld. Abinger, 10 M. & W. 173. A notice at the carrier's offices in London and Worcester, would not probably attract the attention of a person delivering goods at an intermediate place, and would not shield the carrier from responsibility therefor. Gouger v. Jolly, 1 Holt 317, 3 Eng. Com. Law Rep. 119. To a person so delivering at a distance from the office, the special terms ought to be communicated by the carrier's servant; and with respect to a delivery at the office, the notice there should be in such large characters that no person delivering goods there could fail to read it without gross negligence. Clayton v. Hunt, 3 Camp. 27. Courts of justice will give no countenance to the carrier's nailing on the door of his office a handbill, displaying in large type what is calculated to attract customers, and concealing in very small character, at the bottom-what was calculated to repel themthat the owner would not be answerable for goods above the value of £ 5, unless entered as such, and paid for accordingly. Butler v. Hearne, 2 Camp. 415.

The notice should not only be where those concerned can see it and easily read it, but it should be in language not doubt

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