Liability at

common

Jaw.

Effect of

notice limit

The common law liability of a common carrier seems to be nearly as great as that of an insurer, and much greater in degree than the liability of a common bailee. He is liable for loss or damage in all cases, though negligence cannot be proved against him, unless the injury be occasioned by the act of God, or of the king's enemies (n). And if the defendant is not a common carrier by trade, but by his own special agreement puts himself into the situation of a common carrier, he will be liable as such (o). He is responsible in general for the loss of goods delivered to his servant, or authorized agent (p), unless the contract with the servant was personal only (q).

It was held at common law, that a carrier might, ing liability. by notice, limit to any extent, or even totally exclude, all responsibility on his part for loss or

(n) Jones, Bailm. 104; Mors v. Slue, Sir T. Raym. 220; Dale v. Hall, 1 Wils. 281; Gibbon v. Paynton, 4 Burr. 2298; Goff v. Clinkard, 1 Wils. 282; Forward v. Pittard, 1 T. R. 27; Hyde v. Trent and Mersey Navigation Company, 5 T. R. 389.

(0) Coggs v. Bernard, 2 Ld. Raym. 909, S. C. Holt, 131, Comyn, Rep. 133; Loveit v. Hobbs, 2 Show. 127, 128; Gisbourne v. Hurst, 1 Salk. 249; Robinson v. Dunmore, 2 B. & P. 419, per Chambre, J. Maring v. Todd, 1 Stark. N. P. C. 72; S. C. 2 Campb. 225.

(p) Williams v. Cranston, 2 Stark. N. P. C. 82; Colepepper v. Good, 5 C. & P. 380.

(q) Butler v. Basing, 2 C. & P. 613.

limiting lia

damage to the property (r). But it is now pro- Notice vided by the statute already cited, that no notice bility. shall limit or in any way affect the common law liability of any carriers, in respect of any articles to be conveyed by them; but they shall be liable as at common law for any goods in respect whereof they may not be entitled to the benefit of the Act(s).

counter

effect of

Where the carrier or his servant was guilty of What gross negligence, he would be liable before the vailed the statute, even if the case came within the terms of notice. his notice (t). As where the charge had been entrusted by the carrier to an inadequate number of persons (u); or, to one of dubious character (x); or to one incompetent at the time to the trust, from inebriety, or similar cause (y); or, where any

(r) Maving v. Todd, 1 Stark. N. P. C. 72; Harris v. Packwood, 3 Taunt. 264; Hutton v. Bolton, 3 Dougl. 59; Butler v. Fisher, Peake, Add. Ca. 183.

(s) 11 Geo. IV. & 1 Will. IV. c. 68, s. 4. [The articles are specified in the first section.]

(t) Birkett v. Willan, 2 B. & A. 356; Nicholson v. Willan, 5 East, 507; Beck v. Evans, 16 East, 244; Duff v. Budd, 6 B. Moore, 469; Lowe v. Booth, 13 Price, 329; Sleat v. Fugg, 5 B. & A. 342; Brooke v. Pickwick, 4 Bingh. 218; Siordet v. Hall, 4 Bingh. 607; S. C. 1 M. & P. 561.

(u) Beckford v. Crutwell, 5 C. & P. 242; S. C. 1 M. & Rob. 187; Smith v. Horne, 8 Taunt. 144; S. C. Holt, 643.

(x) See Macklin v. Waterhouse, 5 Bingh. 212; S. C. 2 M. & P. 319.

(y) Bodenham v. Bennett, 4 Price, 31.

Laches.

Cancelling of liability

owner.

culpable carelessness was proved against the carrier, his agent or servant (x). So, where the carrier undertook to carry the goods to a certain place, and deviated from the voyage without sufficient cause (a), or carried the goods beyond the appointed place of delivery (b), in the event of loss he would be liable, even though no want of due care could be proved against him.

But if any act of interference on the part of the by act of plaintiff himself, has led directly or indirectly to the loss of the property, the carrier's liability is discharged (c). The mere circumstance, however, that the plaintiff has exercised some care and superintendence over his property entrusted to the carrier, does not absolve the latter from his liability (d); unless indeed he has so far interfered that the goods cannot be considered to have been in the possession of the carrier at all (e). The carrier cannot defend himself on the ground of any default on the part of the plaintiff, which he did not object

(2) Langley v. Brown, 1 M. & P. 583; Garnett v. Willan, 5 B. & A. 53.

(a) Davis v. Garrett, 4 M. & P. 540; S. C. 6 Bingh. 716. (b) Ellis v. Turner, 8 T. R. 531.

(c) Miles v. Cattle, 6 Bingh. 743; S. C. 4 M. & P. 630. So, where the delivery was caused by some omission on the part of the consignee, the ship-owner will not be liable: Shirwell v. Shaplock, 2 Chit. Rep. 397.

(d) Robinson v. Dunmore, 2 B. & P. 416; Calye's case, 8 Co. Rep. 33.

(e) East India Company v. Pullen, 1 Stra. 690.

of liability.

to at the time(ƒ). But if the plaintiff has been Cancelling guilty of gross and culpable neglect (g), or of fraud or unfair concealment (h), he cannot recover in an action against the carrier.

ance.

If the carrier assent to an order given to him Discharge of liability respecting the delivery of the goods, even before by performthe goods are actually given into his custody, he will be bound to comply with the terms of such order (i). In general it is his duty actually to deliver the goods at their place of destination (k), perhaps even the residence of the consignee(). His liability will not be discharged by delivering them at an intermediate place, such as a wharf or warehouse, which he is in the habit of using (m), even when the consignee is cognizant of the fact, that as between the carrier and the owner of the warehouse, his journey is considered to be at an end there, and that the profits of the further carriage are allowed by the carrier to another person(n).

(f) Stuart v. Crawley, 2 Stark. N. P. C. 323.

(g) Bradley v. Waterhouse, Dan. & Lloyd, Merc. Ca. 1; S. C. 3 C. & P. 318, M. & Malk. 154.

(h) Mayhew v. Eames, 3 B. & C. 601; S. C. 5 D. & R. 484; Edwards v. Sherratt, 1 East, 604; Izett v. Mountain, 4 East, 370; Clay v. Willan, 1 H. Bl. 298.

(i) Streeter v. Horlock, 1 Bingh. 34.

(k) Golden v. Manning, 2 Bl. Rep. 916; S. C. 3 Wils. 429; Griffiths v. Lee, 1 C. & P. 110.

(1) Stoer v. Crowley, 1 M'Clel. & Y. 129; Vid. per Curiam. (m) Wardell v. Mourillyan, 2 Esp. 693.

(n) Hyde v. Trent and Mersey Navigation Company, 5 T. R. 389. In this case, indeed, the defendants were held liable at all

of liability.

Discharge If the carrier deliver the goods at a different direction from that specified, though he may have been innocently induced to do so by a fraud practised on the consignor by a third party, the consignor may recover the value against the carrier (o).

Form of

action.

Where the carrier has lost the goods, a special action on the case is the proper remedy, and trover will not lie (p). Nor can trover be supported for a mere omission to deliver, without an actual demand and refusal to evidence a conversion (q). But trover may be maintained for a misdelivery, though such misdelivery were occasioned by mistake (r); or, for delivering on a forged order(s); or, for an absolute refusal to deliver(t).

events on their special undertaking. The Court expressed some doubts upon the general question; but all the judges (with the exception of Lord Kenyon, C. J.) were strongly inclined in favour of the liability. If the warehouse belong to the carrier, the nature of his subsequent liability is varied accordingly; for he is thenceforth liable as warehouseman, and not as carrier; Garside v. The same Company, 4 T. R. 581.

(0) Duff v. Budd, 6 B. Moore, 469; S. C. 3 B. & B. 177; Stephenson v. Hart, 4 Bingh. 476; Lubbock v. Inglis, 1 Stark. N. P. C. 104. Supra.

(p) Owen v. Lewyn, 1 Ventr. 223; Anon. 2 Salk. 655; Ross v. Johnson, 5 Burr. 2825. Bull. N. P. 44, 5; Kirkman V. Hargreaves, Selw. N. P. 419, (8th Ed.)

(q) Severin v. Keppell, 4 Esp. 157; Attersol v. Briant, 1 Campb. 409; Alexander v. Southey, 5 B. & A. 247.

(r) Youl v. Harbottle, Peake, 49; Devereux v. Barclay, 2 B. & A. 702.

(s) Lubbock v. Inglis, 1 Stark. N. P. C. 104.

(t) Thompson v. Trail, 6 B. & C. 36; Dewell v. Moxon, I Taunt. 391; Syeds v. v. Hay, 4 T. R. 260.