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Fish vs. Chapman & Ross.

liabilities? And this brings us to the main point of error charged upon the Court below, and that is, that it erred in ruling that according to his contract the plaintiff in error was liable as a common carrier. In all cases of carrying for hire by a private person, we state that he is bound to ordinary diligence and a reasonable exercise of skill, and is not responsible for any losses not occasioned by ordinary negligence, unless he has expressly by the terms of his contract taken upon himself such risk. Story of Bail. sec. 457 ; 2 Ld. Ray. 909, 917, 918; 4 Taunt. R. 787; 6 Taunt. R. 577; 2 Marsh. R. 293; Jones on Bailm. 103 106, 121; 1 Bell Com. 461, 463, 467; 2 Bos. & Pul. 416; 8 Car. & Payne, 207; 2 Kent, 597.

[3.] In this case there is a special contract defining the party's liability, and he does not therefore come under the rule last stated; he is liable according to his contract. There are two things to be carefully noted in it, to wit: first, the undertaking of the bailee (having as the receipt expresses it, received the goods in “good order and condition,'') to deliver them "in like good order and condition." Second. The qualification of the liability of the bailec, which is expressed in these words to wit, "unaroidable accidents only excepted.As we understand it, the contract means that the plaintiff in error will deliver the goods in good order and condition, unless prevented by unavoidable accident. If the exception were out of the contract what then would be the liability of Mr. Fish? Upon the authority of the case of Robinson vs. Dunmore, 2 Bos. f. Pul. R. 417, I should be inclined to hold that the undertaking to deliver the goods in good order and condition, is equivolent to a warranty to carry them safely, or to deliver them safely. If it is, Mr. Fish according to that case, would be liable as a common carrier. See Story on Bailm. sec. 457 ; 2 Bos. f. Pul. 417.

But we do not rest our decision upon this view of the contract; we look at that with the exception in it. What, then, is the effect of the exception? We think it is to make him liable at all events and for every thing except for unavoidable accidents It remains then to inquire into and determine what is the legal meaning and effect of these words. And first it may be material to say, that the word unavoidable is not the word usually used in the books in this connexion, but inevitable. And further to say, that these words are in legal as well as common parlance, synonymous.

Unavoidable accidents are in our opinion, the acts of God. The Patter words express the sume acts, and no more than the former;

Fish vs. Chupman & Ross.

the two phrases mean the same thing. See Story on Bailm. secs. 25, 511; 2 Kent, 597.

What then are acts of God or unaroidable accidents ? for it is from these only, that this party is protected. By the act of God is meant, any accident produced by physical causes which are irresistible; such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death or illness. Story on Bailm. sec. 25; 2 Kent, 597. The act of God excludes all idea of human agency. McArthur f. Hurlbut vs. Sears, 21 Wend. R. 190. In this case it is said, “no matter what degree of prudence may be exercised by the carrier or his servants, although the delusion by which it is baffled, or the force by which it is overcome be inevitable, yet if it be the result of human means the carrier is responsible.” See also 1 Murphy, 173; 2 Dailey, 157; Idem, 421.

As the exception in this contract extends only to unavoid- [4.] able accident, or acts of God, and does not embrace the King's enemies, the bailee could not be protected from liability of losses occasioned by them. Even if the goods had been destroyed by the public enemy, he would have in that event been liable. The liability of common carriers goes even yet further; for if goods committed to them are lost by their neglect, through the agency of natural causes which are in themselves irresistible, they are liable ; so rigid and severe are the obligations and duties of this common, but not very well understood calling. Our opinion is, then, that the exception of unaroidable accidents excludes all other exceptions in this case,

expressio unius est exclusio alterius." And that Mr. Fish was liable at all events and on every account, but for losses occasioned by unaroidable accidents ; that unavoidable or inevitable accidents are the same with the acts of God; and as common carriers are liable for losses on every account but for the acts of God and the King's enemies, so therefore is his liability the same as that of the common carrier, except in so far as it is greater in this, that he is not, by his contract, protected as the common carrier is at common law, against losses caused by the public enemy. The upsetting of the wagon on a decayed bridge across a stream, which was the accident which occasioned the loss in this case, is not, in our judgment, an unavoidable accident. We therefore find no error in the Court, in holding that Mr. Fish was on his contract liable as a common carrier. With these views of this contract, we do not conceive that it is at all important to say a word upon the question of negligence.

Fiskı rs. Chapman & Ross.

[5.] I have said that a common carrier cannot vary his liability as it existed at common law in 1776, by notice or special acceptance. On account of the importance of this subject, I propose to give it a more minute exposition. This is an age of Rail Roads, Steam Boat Companies, Stage Companies, locomotion and transportation. It is an era of stir— men and goods run to and fro—and common carriers are multiplied. The convenience of the people and safety of property depend more now, I apprehend, upon the rules which regulate the liability of these public ministers, than at any other period of the world's history. Steam, as a transporting power, has supplanted almost all other agencies, and it is used for the most part by public companies or associations. It is very impor. tant that their liability should not only be accurately defined, but publicly declared. Anterior to 1776 the common carrier was an insurer for the delivery of goods entrusted to him, and liable for losses occasioned by all causes except the act of God and the King's enemies, and without the power to limit his responsibility. That this was the law, is proven by the numerous authorities which I have before referred to. No adjudication before that time had relaxed its stringent but salutary severity. It is of consequence to establish this fact, because the common law, as it was usually of force before the Revolution, is made obligatory upon this Court by our adopting statute. It is said by Mr. Story that Lord Coke recognised the right of modification, in a note to Southcote's case; and also that this right was admitted in Morse vs. Slue, 1 Vent. 238. These are dicta which recognised the right before the era of 1776.

And these are not adjudications — mere dicta unsupported by authoritative decisions — they reverse nothing, establish nothing. Mr. Story does not himself claim that there was any modification of the rule before that era. He does say that the right to modify their common law liability “is now (1832) fully recognised." Story Bailm. sec. 549. All the cases (and they are numerous) in support of his statement are since our revolution. We do not however question that statement. Chancellor Kent says, “The doctrine of the carrier's exemption by means of notice, from his extraordinary responsibility, is said not to have been known until the case of Forward vs. Pittard in 1785, and it was finally recognised and settled by judicial decision in Nicholson vs. Willan in 1804.” 2 Kent, 606.

The saying to which the chancellor has reference, was made

Fish 08. Chapman & Ross.

in 1818 by Burrough J. in Smith vs. Horne, 8 Taunt. 144, and is this, “ The doctrine of notice was never known until the case of Forward vs. Pittard, 1 T.R. 27, which I argued many years ago." “I lament that the doctrine of notice was ever introduced into Westminster Hall.” The case then of Forward rs. Pittard is the first, in which the doctrine of notice is recognised according to Mr. Justice Burrough, and that was in 1785. It was not until 1804 that it was finally settled by judicial decision in Nicholson vs. Willan, 5 East R. 507. Twenty-eight years after the Declaration of Independence, the question of notice in all its bearings was reviewed with great learning and ability in Holister vs. Nowlen, 19 Wend. R. 234. I refer to that case now, simply for the purpose

of saying that the learned judge in that opinion declared "that the doctrine that a carrier may limit his responsibility by notice, was wholly unknown to the common law at the time of our revolution."

Thus we think it is made manifest that in 1776, by the common law, a carrier could not limit or modify his extraordinary responsibility by notice. That it has been allowed since that time we admit, and to this point see 5 East, 507; 1 H. Black. 298; 3 Taunt. 264 ; 2 M. & S.1; 8 Taunt. 146 ; 4 B. $ Ald. 39; 5 Bing. 217; 4 Price R. 34; 4 Camp. 41. Still, however, in England by common law since the revolution, a carrier cannot by special agreement exempt himself from all responsibility, so as to evade altogether the policy of the law; he cannot exempt himself from liability in case of gross negligence and fraud. Story Bailm. sec. 549; 5 Bing. 218; 2 Moore & Payne, 331, 341, S. C.; 5 B. $ Ald. 342; Idem. 350; 2 B. & Ald. 356 ; 3 Camp. 267; 16 East, 244, S. C.; 4 Price, 31; 2 Moore, 18, S. C.; 2 Car. & Payne, 76. “It is perfectly well settled (we quote from Kent,) that the carrier notwithstanding notice has been given and brought home to the party, continues responsible for any loss or damage resulting from gross negligence or misfeasance in him or his servants.” 2 Kent, 607. The notices which are allowed in England since the revolution, go only the length of protecting the carrier from that responsibility which belongs to him as an insurer.

A distinction is sought to be drawn in some of the books between a notice carried home to the knowledge of the bailor and a special acceptance or contract; I cannot see that there is any differ, A notice contains the terms and conditions upon which the will serve the public, or some limitation of his extrao ponsibility, which when known and acted upon by

Fish rs. Chapman & Ross.

is a contract; as much so as if the same stipulations were made by a separate contract with each individual customer. The only difference is in the mode of proof; the rule of evidence is different and that is all. It has been so decided, particularly in New York. 2 Hill N. Y. R. 624; 19 Wend. 281.

It may be safely asserted that the American decisions, with scarcely an exception, sustain the old common law doctrine. Mr. Wallace, in his Notes to Smith's Leading Cases, holds the following language: “That it is possible for a common carrier by either a general notice or a special acceptance to limit his extraordinary liability, is a position which it is believed is not supported by the authority of any adjudged case in the United States.1 Smith Leading Cases, 183. The reverse doctrine is permanently settled in New York. We, then, adhere to the sound principles of the common law, sustained by the courts of our own Union, and hold notices, receipts and contracts, in restriction of the liability of a common carrier, as known and enforced in 1776, void, because they contravene the policy of the law. Holister vs. Nolen, 19 Wend. R. 234; Camden and Amboy Transportation Co.vs. Belknap, 21 Wend. R. 355; Cole vs. Goodwin, 19 Wend. 251; Gould vs. Hill, 2 Hill N. Y. R. 623; 3 Hill R. 9, 20; Story on Bailm. 4 edit. 558, note; 9 Watts R. 87; 4 Harr. &. John. R. 317; 10 Ohio R. 145; 2 Kent, 608, note.

The British Parliament, declaring the sense of the British law. yers to a very great extent, has restored the old law as to the responsibility of carriers. See Stat. 11, Geo. IV, and Stat. 1, Will. IV, ch. 68; for these statutes, consult 1 Harrison Dig. 551, title Car

rs, 4 edit. 1837. Also 19 Wend. R. 243, 249; and Smith's Mer. cantile Law, 233, 238, 2d Lond. edit. 1838.

The only modification of the common law rule which we admit, is the right of the carrier, by notice brought home to the passenger, to require the latter to state the nature and value of the property bailed, and to avail himself of any fraudulent acts or sayings of the bailor. 19 Wend. R. 251; 21 Wend. 354; 21 Idem. 153; 2 Hill N. Y. R. 623.

The reasons given by eminent jurists in support of the law of carriers, as we now hold it, are entirely satisfactory, and apply with far greater force now than when they were announced. Holt, C. J. in his opinion in Coggs vs. Bernard, an opinion which alone has made him immortal, calls it “a politic establishment, contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sort of persons, that they

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