N. Y. Superior Court.-Dorr et al. v. N. J. Steam Navigation Co.

care and diligence only in the transportation of merchandize and other property shipped or put on board the boats of.this line.

"Dated at New-York, the Jan. 13, 1840.

"Contents unknown. George Child, Master."

That while the said cases, in said contract mentioned, were well and properly stowed on board of said steamboat, and being carried and conveyed in pursuance of said contract, to wit, at the time when, &c., and without any carelessness, negligence, misconduct or default of the said defendants, or of any officer or officers, servant or servants, agent or agents of the said defendants, and without any unseaworthiness, imperfections, insufficiency or defect of said steamboat, or of the engine, furnaces, boilers, machinery, furniture, rigging or equipments of said steamboat, or any of them, but by mere casualty and accident, the said steamboat took fire, and was consumed with its cargo and lading, including the said cases; and thereby and by means of such mere accident and casualty of fire only, and not from any carelessness, negligence, misconduct or default of said defendants, or any agent or agents of theirs, and not from any careless, negligent or improper stowage of said cases, and not from any unseaworthiness, imperfection, insufficiency or defect of said steamboat, or of the engine, furnaces, boilers, machinery, furniture, rigging or equipments of said steamboat, the said cases being destroyed and consumed in said fire, were not delivered by the said defendants at Stonington aforesaid, and were lost to the said plaintiffs.

Verification.

The plaintiffs demurred to the second plea, assigning as grounds of demurrer,

First. That the said last-mentioned plea amounts to the general

issue.

Second. That the said plea sets forth as a ground of defence, and in bar of the plaintiffs' action, that the said cases, goods, wares and merchandize, in the declaration mentioned, were received by the said defendants on board their steamboat Lexington under a special written contract. (The contract before set forth.)

Whereas, such special written contract, if any such was made, the defendants being such common carriers, and having received said cases, goods, wares and merchandize, as such common carriers aforesaid, does not qualify or restrict the liability of the defendants as common carriers in any respect whatever.

Third. That it is averred in said plea, that the said cases, goods, wares and merchandize were received by the said defendants under a special written contract, to wit: the written contract last abovementioned, and that the said cases, goods, wares and merchandize, while so on board the defendants' said steamboat, were lost by accidental fire, without the negligence of the defendants; whereas, the said written contract, if any such was made, the defendants being such common carriers, and having received such cases, goods, wares and merchandize, as such common carriers, does not qualify or restrict the liability of the defendants as common carriers, nor render

N. Y. Superior Court -Dorr et al. v. N. J. Steam Navigation Co.

such loss by accidental fire an excuse to said defendants for not safely carrying and delivering said cases, goods, wares and mer

chandize.

Fourth. That it is averred in said plea, that the said cases, goods, wares and merchandize were received by the said defendants under a special written contract, to wit: the written contract last abovementioned, and that the said cases, goods, wares and merchandize, while so on board the defendants' said steamboat, were lost by accidental fire, without the negligence of the defendants, whereas the cause of the loss set forth in said plea, to wit: accidental fire, is itself an act of negligence and carelessness, for which the defendants are in law responsible to the plaintiffs.

Joinder in demurrer.

B. D. Silliman, in support of the demurrer, made and argued the following points:

I. That the law is settled, in this State, that a common carrier cannot shelter himself from his liability as such by notice, nor even by special contract.

II. That common carriers are liable for all losses and injuries to property, committed to their care, arising from any causes except1. The act of God, or, 2. The public enemy. (2 Kent's Com. p. 597, 602; Story on Bailments; Coggs v. Barnard, 2 Ld. Raym. 918; Hollister v. Nowlen, 19 Wend. 234.)

III. That this was held to be the settled law from the earliest period, down to the case of Nicholson v. Willan, (5 Easts' R. 507,) A. D., 1804, when notice by the carrier limiting his liability was held valid. A great mass of cases followed unsettling the common law rule in England. They are fully cited and reviewed in Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Id. 251.

IV. That in the confusion which resulted from disregarding the common law, the English courts early perceived that the only proper qualification would have been to permit the carrier by notice, brought home to the customers to require for the transportation of the goods, a price proportioned to their value. (Leeson v. Holt, 1 Starkie, 187; Beck v. Evans, 16 East. 244; Riley v. Horne, 5 Bing. 217; Jones' Bail. 105; 4 Bing. 218.)

V. That the evils which resulted in England by departing from the common law rule, were so great, that the courts expressed strong regret that the innovation had been tolerated, and invoked the action of Parliament to restore the original rule. (Bell's Commentaries, p. 1, 474; Maving v. Tod, 1 Starkie, 79; Smith v. Horne, 8 Taunt. 144; Down v. Fromont, 4 Camp. 40; Duff v. Budd, 3 Brod. & Bing.) VI. That the doctrine of notice was put an end to by act of Parliament, and the common law rule substantially restored, in 1830. (Statute 1 Wm. IV., c. 68.)

VII. That in some of the U. States, notices have not been permitted to affect the carrier's liability, (Jones v. Voorhees, 10 Ohio, 145,) and where notice had been admitted, its expediency and policy have been

N. Y. Superior Court.-Dorr et al. v. N. J. Steam Navigation Co.

subsequently questioned by the courts. (Eagle v. White, 6 Wharton, 516; Barney v. Prentiss, 4 Harr. & Johns. 317.)

VIII. That in the State of New-York, the common law liability of the carrier, is unchanged; he cannot screen himself from it by notice, whether brought home to the customer or not, nor even by special agreement and contract. (2 Kent's Com. 608; Story on Bailments, p. 354, sec. 554, note; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Id. 251; Camden Co. v. Belknap, 21 Wend. 354; Clark v. Faxton, Id. 153; Gould v. Hill, 2 Hill, 623; Alexander v. Green, 3 Hill, 1; S. C. Court of Errors, 7 Hill, 533; Jones v. Voorhees, 10 Ohio, 145. Powell v. Myers, 26 Wend. 594.)

IX. That every thing is negligence in a common carrier which the law does not excuse. (Dale v. Hall, 1 Wilson, 282; Batson v. Donovan, 4 Barn. and Adolp. 21; McArthur v. Sears, 21 Wend. 190; Williams v. Grant, 1 Conn. R. 487.)

That the law holds the common carrier liable for loss by fire, and does not excuse him because the fire was the result of accident. (Forward v. Pittard, 1 Term R. 281; Hyde v. Trent. Navig. Co., 5 Term R. 389; Garside v. Trent. Nav. Co. 4 Term R. 581; Story on Bailments, sec. 507, 511; Gould v. Hill, 2 Hill R. 623.)

X. The common carrier cannot stipulate against his own negligence.

XI. The law of this State is settled that the carrier cannot protect himself even by special mutual contract from his common law liability, but even admitting, for sake of argument, that he might do so, still the bill of lading in this case set forth in the plea is not such a contract. It is at most a receipt for the goods with notice incorporated therein that the carrier denies the liability which the law imposes on him. It is no higher evidence of the contract than were the notices of stage proprietors brought home to the knowledge of their passengers. (Beekman v. House, 5 Rawle, 179; Clark v. Gray, 6 East. 564; Broome's Legal Maxims, 308; Chitty on Contracts, 657; 5 Denio, 443; 4 ld. 349; 2 Kent's Com. 607, note c.)

XII. The interests of commerce, and especially of the people of this State, who transact so large an amount of business with common carriers, require that the liability established by the common law be not impaired.

W. M. Evarts, contra, relied on the following points:

I. The plea sets up that the plaintiffs' goods were received by defendants for transportation, (they being common carriers from NewYork to Stonington, by water,) under a special contract set forth in the plea; that by such contract, their liabilities as common carriers were restricted by the exception of certain casualties from their responsibilities as insurers, and that the loss of the plaintiffs' goods occurred by one of the excepted casualties, and without the fault or negligence of the defendants. The demurrer raises the question whether such a restriction of their liabilities may be legally made by such common carriers as the defendants.

N. Y. Superior Court.-Dorr et al. v. N. J. Steam Navigation Co.

II. A common carrier cannot, in general, refuse to carry for reasonable hire, and in the line of his business, and insist upon a limitation of his legal liabilities before he will do so. Such refusal subjects

him to an action.

III. But if the bailor, rather than insist upon his legal rights and remedies against the common carrier as such, choose to make a special contract with him for the transportation of his goods upon. a restricted liability, the relation pro hac vice of bailor and private carrier for hire according to, and by force of the special contract, arises bebetween them.

IV. Such a contract is valid and will be upheld. The repudiation of it by the bailor, after gaining the object of his assent, would be a clear fraud upon the common carrier.

V. The exceptions of dangers of the seas and of navigation has always been sustained in favor of carriers by water. That of fire is of similar character, their liability for loss by this cause being strictly in the nature of insurance, and having no connection with their specific employment as carriers.

VI. The nature of the employment at the present day, as much exposes the common carrier to fraud from the bailor as the reverse, and public policy is as much concerned to protect the carrier in his service, as the bailor in his property.

VII. Neither public nor private necessity or convenience requires that common carriers, on the one hand, should be compelled to be insurers against fire, unless the bailor insists upon it; nor that the bailor, on the other hand, should be obliged to pay rates of carriage which include compensation for insurance, unless he choose so to do. To legally incapacitate the parties from separating by mutual contract the service of transportation and the responsibility of insurance, involves this absurdity.

The counsel referred to the following authorities: Wyld v. Pickford, 8 Mees & Welsb. 442; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Id. 251; Orange Co. Bank v. Brown, 9 Wend. 85; N. J. St. Nav. Co. v. Merchants' Bank, 6 How. 344; Gould v. Hill, 2 Hill, 623; Wells v. The St. Nav. Co. 2 Comstock, 204.

By the Court. CAMPBELL, J.-The question presented for our consideration is, whether common carriers can by special contract restrict their liabilities for losses which occur otherwise than by the act of God or the public enemies. If the point was now for the first time raised, we should have considered it, if not entirely free from difficulty, at least as not leaving much room for doubt as to the correctness of the conclusion at which we have arrived. The judgment of a majority of the late Supreme Court, pronounced in the case of Gould v. Hill, (2 Hill's Rep. 623,) was cited and urged on the part of the plaintiffs as settling the law in this State, that a common carrier cannot by special contract limit his liability. Though the court was divided in opinion, the cause does not seem to have been carried to the court for the correction of errors, and we are not, therefore, aware

N. Y. Superior Court.-Dorr et al. v. N. J. Steam Navigation Co.

what would have been the decision of the court of last resort. But the clear convictions of all of us that the case of Gould v. Hill, was not correctly decided, supported as we are by the Supreme Court of the United States, (Merchants' Bank v. New Jersey Steam Navigation Company, 6 Howard, 344,) and the great importance of the question to a commercial people, especially the importance of uniformity between the courts of the State and the Union, in the rules of law regulating commercial transactions, compel us respectfully to dissent from the judgment in that case.

We entirely concur in the conclusions at which that court arrived in the cases of Hollister v. Nowlen, and Cole v. Goodwin, 19 Wend. 234 and 251, that stage-coach proprietors, as common carrriers, are answerable for the luggage of passengers, that they are regarded as insurers, and cannot restrict their common law liability by a general notice that the luggage of passengers is at the risk of the owners. The power of a common carrier to restrict his liability by a general notice, whether brought home or not to the knowledge of the owner of the property, is discussed at great length and with distinguished ability and learning by Justices Bronson and Cowen in those cases.

In the former case, that of Hollister v. Nowlen, Mr. Justice Bronson, referring to the opinion of Lord Ellenborough, in Nicholson v. Willan, 5 East. 507, says, "Although this mode of reasoning is not the most conclusive, I shall not deny that the 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," citing Aleyn 93; 4 Co. 84, note to Southcote's case; 4 Burr. 2301, per Yates, J.; 1 Vent. 190, 238; Peake N. P. Cases, 150; 2 Taunton, 271; 1 Starkie R. 186. In the case of Nicholson v. Willan, Lord Ellenborough says, "But 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, under the observation and with the allowance of courts of justice, and with the sanction also and countenance of the legislature itself, which is known to have rejected a bill brought in for the purpose of narrowing the carrier's responsibility in certain cases, on the grounds of such a measure being unnecessary, inasmuch as the carriers were deemed fully competent to limit their own responsibility in all cases by special contract, 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," &c. So it was also said by Lord Ellenborough, in Kerr v. Willan, 2 Starkie, 53, “The hardship of the case cannot alter the liability of the party. By the common law the carrier is responsible for the loss of the goods, unless he enter into a special contract by which he limits that responsibility." And in the same case, on a motion for a new trial, the court say, "No doubt the rule of law might be superseded in the particular case by special contract, since modus et conventio vincunt legem," so in 1 Bell's Commentaries, 5 Ed. 472, the author remarks, "It seems