The Law regarding Common Carriers
extracted from The Complete English Lawyer - 1820

 

All persons carrying goods for hire, as masters and owners of ships, lightermen, proprietors of waggons, stage coachmen (but not hackney-coachmen in London except there is an express agree­ment, and money paid for the carriage of the goods), and the like; come under the denomination of common carriers, and are bound on the general Custom of the realm, that is, by the common law, to receive and carry the goods of the subject for a reasonable hire or reward, to take due care of them in their passage, to deliver them safely and in the same condition as when they were ­received, or, in default thereof to make compensation ; unless the loss or damage arise from the act of God, as storms, tempests, and the like ; or of the king’s enemies ; or from the default of the party sending them.

And where a person undertakes to carry goods safely and securely he will be responsible for the damage they sustain in the carriage through his neglect, though he is not a common carrier, nor takes any premium for the carriage and this rule holds, although the plaintiff, for greater caution, sends his servant with the goods, who pays a person for guarding them, because he apprehends danger of their being stolen.

Where a carrier entrusted with goods opens the pack, and takes away part of the goods, he is guilty of felony. And it is the same, if the carrier receive goods to carry to a certain place, and carries them to some other place than that appointed, with an intent to defraud the owner. So if a carrier, after he has brought goods to the place appointed, takes them away privately he is guilty of felony ; for the possession which he received from the owner being determined, his second taking is in all respects as if he were a mere stranger.

If a common carrier, who is offered his hire, and who has con­venience, refuse to carry goods, he is liable to an action, in the same manner as an innkeeper who refuses to entertain his guest, or a smith who refuses to shoe a horse.

But a carrier may refuse to admit goods into his warehouse at an unseasonable time, or before he is ready to take his journey.

Though a carrier uses all proper care, yet in case of a loss he is liable ; for negligence does not enter into the ground of this action. And therefore it is no defence, that the ship was tight when the goods were placed on board, but that a rat by gnawing out the oakum had made a hole through which the water gushed or that the loss of the goods was occasioned by the vessel's striking against the anchor of another vessel, which had not a buoy to mark the place where the anchor lay.

A carrier is also responsible for a loss occasioned by accidental fire provided such loss happen while the goods are in his cus­tody.

Thus, if goods entrusted to a common carrier be consumed by an accidental fire, communicating to a booth in which the goods had been deposited by the carrier in the course of his journey, he is held to be liable.

So where common carriers from A to B charged and received for cartage of goods from a warehouse at B (where they usually unloaded, but which did not belong to them) to the house of the consignee in B. it was held, that they were responsible for a loss by an accidental fire while the goods were in the warehouse ; although they allowed the profits of cartage to another person, and that circumstance was known to the consignee.

But where the goods are not remaining in the carrier’s custody, he is not liable ; as where the goods had been carried by the defendant from A to B, and there deposited in a warehouse merely for the convenience of the owner, until they could be forwarded by another conveyance (the owner not paying the defendant any thing for the warehouse-room), and they were consumed by an accidental fire there, it was held that the defendant was not liable.

If a carrier be robbed of his goods, he shall be liable for the loss ; for, having his hire, there is an implied undertaking for the safe custody and delivery of the goods. But the carrier may bring an action, on the statute of Winchester, against the hundred, to make good his loss.

 

In every contract for the carriage of goods, between a person holding himself forth as the owner of a lighter vessel ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public. And the carrier or lighterman will be responsible for a breach of this implied under­taking, although he should give notice, “ that he will not be an­swerable for any loss or damage, unless occasioned by want of ordinary care in the master or crew of the vessel, in which case he will pay ten pounds per cent. on such loss or damage, so as the whole does not exceed the value of the vessel and freight.” In Ellis v. Turner; where a similar notice was given, the owner of the vessel was held liable for the whole loss, upon the special undertaking of the master.

But by the statute 7 Geo. II c. 15. it is provided, that if any loss arise by the embezzlement or dishonesty of the master or any of the mariners in the ship, the owner shall only be liable to the amount of the value of the ship and freight.

And on this statute the defendant was held not to be liable to make good a theft committed on board the vessel during the night, and by force, by a number of fresh-water pirates, beyond the value of the vessel and freight.

The 26 Geo. III. c. 86. still further provides, that the ship-owners shall not be liable for a loss occasioned by a robbery or embezzlement commuted by any person whatever, without their privity, beyond the value of the ship and the vessel. And it fur­ther exempts them from all liability to answer for a loss occasioned by fire, and also in the case of robbery of gold, silver, watches, and precious stones unless the proprietor declares to the master or ship-owners, in writing, the nature and value of such articles.

Upon the ground that a carrier is not liable for an accident occasioned by the act of God, it has been held, that if a bargeman in a tempest, for the safety of the lives of his passengers, throw overboard any trunks or packages, he is not liable.

By the custom of the realm, a common carrier is bound to carry the goods of the subject for a reasonable reward, to be therefore paid, by force of which he has a lien as far as the carriage price of the particular goods, but not to any greater extent. A lien claimed by a carrier for a general balance, not being founded on the common law, but arising by contract between the owner. of the goods and the carrier, must be supported by the general, uniform, and long established usage of trade ; for as general liens arc not favoured in law, evidence of a few recent instances of detainer by carriers for their general balance will not be sufficient to furnish an inference that the party who dealt with the carrier had knowledge of the usage, and so to warrant a conclusion, that he contracted with reference to it, and adopted the general lien into the particular contract.

A common carrier, having a special property in the goods ­entrusted to him, and being liable to make satisfaction for them to the owner, may have action of trover or trespass if they are taken out of his possession by a stranger. And where goods are stolen from a carrier, he may bring an indictment against the felon as for his own goods, though he has only the possessory, and not the absolute property; and the owner may likewise prefer an indictment  against the felon.

The action against a carrier for the non-delivery or loss of goods must be brought by the person in whom the legal right of property in the goods in question is vested at the time; for he is the person who has sustained the loss, if any, by the negligence of the carrier. Hence, where a tradesman orders goods to be sent by a carrier, at the moment the goods are delivered to the carrier it operates as a delivery . to the purchaser, and the whole property (subject only to the right of stoppage in transitu by the seller rests in the purchaser ; he alone can maintain an action against the carrier for any loss or damage to the goods and this rule holds as well where the particular carrier is not mentioned by the purchaser as where he is; and it holds as well in the case of carrier by water as where the goods are conveyed by land.

But if there be a special agreement by the parties, that the consignor was to pay for the carriage of the goods, the action is maintainable by the consignor.

In order to charge the carrier, these circumstances are to be observed

1. The goods must be lost while in possession of the carrier himself, or in his sole care. Therefore where the plaintiffs, the East India Company, sent their servant with the goods in question on board the vessel, who took charge of them, and they were lost, the defendant was held not to be liable.

2. The carrier is liable only so far as he is paid, for he is chargeable  by reason of his reward.

A person delivered to a carrier’s book-keeper two bags of money, sealed up, to be carried from London to Exeter, and told him that it was 200l. and took his receipt for the same, with promise of delivery for ten shillings per cent. carriage and risk; if the carrier be robbed, though the bags contained 4001. he shall be answerable for 2001. only.

So where 100l. was delivered in a bag to the carrier’s book-keeper by the plaintiff’s servant, and paid for as a common parcel, when lost, the carrier was not held to be liable; it being proved that he had, by public advertisement, limited his responsibility as to any money, plate, jewels, writings, or other valuable goods, unless they were entered as such, and paid for accordingly.

3. Under a special or qualified acceptance, the earlier is bound no farther than he undertakes. For where the owner of a stage­coach puts out an advertisement, “ that lie will not be answerable for money, plate, jewels, watches, writings, goods, or any package whatever (if lost or damaged), above the value of 51. unless in­sured and paid for at the time of the delivery,” all goods received by him are under that special licence ; and if they are lost, the proprietor of the stage-coach is not answerable, not even to the extent of the 5l. or the sum paid for booking. But, in order to defend himself in an action, the carrier must prove, that such notice was stuck up in a conspicuous part of the office where the owner brought his goods, or that it was advertised in a newspaper which he was accustomed to read; and Lord Ellenborough has expressed strongly his disapprobation of the great alterations which have been made in the common-law obligation; and has declared, that in every case where a carrier sets up a special engagement as his defence; he would require proof of actual notice to the owner of the article.

4. The delivery to a carrier’s servant is a delivery to himself, and shall charge him ; but they must he goods such as it is his custom to carry, not out of his line of business.

Coach-owners are not liable for injuries which passengers may sustain from inevitable accidents, as from the overturning of the coach from the horses taking fright, there not being any negligence in the driver; but it is otherwise, if there should have been negligence  or misconduct of the driver.