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king. Carriers are, generally, answerable for the honesty of their servants: if, however, the plaintiff's own conduct, in full knowledge of the circumstances, be such as to lead to the loss; if he afford undue temptation and facility to the crime of the servant, he can maintain no action for a loss thus occasioned by his own fault.
In an action brought against a common carrier by waters, charging the defendant with negligence, it was holden to be 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 small hole through which the water gushed; on the ground that whatever was not excused by law, was to be deemed a negligence in the carrier, and that he was answerable in all events, except where the goods were damaged by the act of God or the king's enemies. So where the proprietors of the Trent navigation“, had undertaken to carry goods from Hull to Gainsborough, and the vessel, on board which the goods were placed, drove against an anchor in the river Humber, and sank; it was holden, that the carriers were responsible to the owner of the goods for the damage sustained; although it was proved that the accident was occasioned by the negligence of the persons on board a barge in the river, who had not put a buoy out, to mark the place where the anchor lay: the court observing, that there was a degree of negligence in the master of the vessel also; for his not seeing the buoy ought to have put him upon inquiring more minutely about the anchor; and even if there had not been any actual negligence, yet negligence in law was sufficient.
A common carrier being an insurer, in all cases (except the two before mentioned,) is responsible for a loss occasioned by accidental fire, provided such loss happens while the goods are remaining in his custody (5) as a common carrier. As
f Bradley v. Waterhouse, M. & Malk. h Proprietors of the Trent Navigation 154.
v. Wood, 3 Esp. N. P. C. 127. g Dale v. Hall, 1 Wils. 281.
(5) In an action by the East India Company against a lighterman, on an undertaking to carry for hire on the River Thames, from the ship to the Company's warehouses, it appeared that it was the usage of the Company, on the unshipping their goods, to put an officer, called a guardian, in the lighter, who, as soon as the lading was taken in, put the Company's lock on the hatches, and went with the goods to see them safely delivered at the warehouse. This had been done where the goods intrusted to a common carrier were consumed by accidental fire communicating to a booth where the goods had been deposited by the carrier in the course of the journey, it was holden that the carrier was liable, although the jury found that the goods were consumed without any actual negligence on the part of the carrier. So where common carriers from A. to B.k 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 holden, they were responsible for a loss by an accidental fire while the goods were in that warehouse; although they allowed the profits of the cartage to another person, and that circumstance was known to the consignee. But where the goods are not remaining in the defendant's custody as common carrier!, he is not liable; as where the goods had been carried by the defendant from A. to B. and there deposited in his 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 were consumed by an accidental fire there, it was holden, that the defendant was not liable. And it has been holden, that a carrier may exclude all responsibility for a loss by fire, by a notice to that effect m. But see stat. 11 Geo. 4. & 1 W. 4. c. 68. s. 4.
If a common carrier be robbed of his goods”, he shall answer the value of them; for having his hire, there is an implied undertaking for the safe custody and delivery. Where a person undertakes to carry goods safely and securelyo, he
i Forward v. Pittard, I T. R. 27. m Maving v. Todd, 1 Stark. N.P.C.72. k Hyde v. Trent and Mersey Naviga- n 1 Inst. 89. a. Woodleife v. Curties, tion, 5 T. R. 389.
1 Rol. Ab. 2. (C) pl. 4... P. CovingI Garside v. Trent and Mersey Naviga- ton v. Willan, Gow's N. P. C. 115. tion, 4 T. R. 581.
o Coggs v. Bernard, Lord Raym. 909.
in the present case, and part of the goods were lost.—Raymond, C. J. was of opinion, that this differed from the common case, this not being any trust in the defendant, and the goods were not to be considered as having been in his possession, but in the possession of the Company's servant, who had hired the lighter to use himself: he thought, therefore, that the action was not maintainable, and the plaintiffs were nonsuited. East India Company v. Pullen, Str. 690. It was observed by Chambre, J. in 2 Bos. & Pul. 419. that the foregoing decision proceeded on the usage of the East India Company, who never intrusted the lightermen with their goods, but gave the whole charge of the property to the officer called the guardian.
will be responsible for the damage they sustain in the carriage through his neglect, though he is not a common carrier, nor has any reward for his labour (6); 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 P. In Beauchamp v. Powley, 1 M. and Rob. 38. a stage coachman was holden responsible for the loss of a parcel which he had received to carry without reward, it appearing to have been lost through gross negligence on his part.
Coach-owners are not liable for injuries which passengers may sustain from inevitable accidents, as from the oversetting of the coach from the horses taking fright, there not being any negligence in the driver9; but otherwise it is, if there be negligence in the driver. A coach owner is bound to convey his passengers in road-worthyr vehicles, and if an accip Robinson v. Dunmore, 2 Bos. and r Sharp v. Grey, 9 Bingh. 457. 2 M.
Pul. 416. 9 Aston v. Heaven, 2 Esp. N. P. C.
and sc. 620.
(6) In a special action on the case, wherein the plaintiff declared that whereas the defendant had undertaken to carry a hare for the plaintiff from A. to B., yet the defendant carried the same so negligently, that he lost it by the way, to the damage of the plaintiff of 101. On demurrer to the declaration, it was objected by Hawkins, Sergeant, that the plaintiff had not declared, on the general custom of the realm relating to carriers, and, therefore, the defendant must be taken to be a private person ; if so, there was not any consideration laid, and consequently the promise was merely nudum pactum. 2ndly. The plaintiff had not set forth a delivery of the hare, upon which the promise was made, and for the breach of which promise the action was brought. Probyn and Reynolds, (the only judges in court,) as to the first objection, admitted that the defendant must be taken to be a private person ; but it was determined in Coggs v. Ber. nard, that a private person was answerable, if he undertook the carriage of goods, for a misfeasance, though there was not any consideration: and the only difference was, that a common carrier was, obliged to undertake the carriage of goods, and a private person was not; but if a private person voluntarily undertook it, he was by law answerable for damage arising from his negligence. As to the second objection, the court said, that the delivery was implied; for it was stated, that the defendant had carried the hare part of the way, which he could not have done without a delivery; and as for the breach of promise, the action was not brought for that, but for the loss of the hare; the promise was only inducement. Accordingly they gave judgment for the plaintiff, Hutton v. Osborne, B. R. M. 3 G. 2. MSS.
dent happen from a defect in construction, the owner is liable, although the defect be out of sight and not discoverable upon ordinary examination. See the duty of coach-owners fully explained by Best, C. J. in Crofts v. Waterhouse, 3 Bingh. 321. The proprietors of a mail-coach are answerable for an injury sustained by a passenger, through the misconduct of their driver. White v. Boulton, Peake's N. P. C. 81. A., a stable-keeper, let to B. four horses to draw B.'s carriage from C. to D. The horses were rode by A.'s servants. Through their negligence, the carriage of 1. S. sustained an injury. It was holden that I. S. might maintain an action against A. Sammell v. Wright, 5 Esp. N. P. C. 268.
II. Of the Stat. 11 Geo. 4.& 1 W.4.c. 68. limiting the Responsi
bility of Carriers by Land, as to the Loss of Parcels of a certain Description. Stat. 7 G. 2. c. 15; 53 G. 3. c. 159; 3 & 4 W. 4. c. 12. 8. 24.
On the 23rd of July, 1830, an act was passed (11 Geo. 4. & 1 W. 4. c. 68,) by which the liability of carriers by land for hire, for the loss of or injury to parcels of a certain description, has been much altered. It is entitled, “ An Act for the more effectual Protection of Mail Contractors, Stage-Coach Proprietors, and other common Carriers for Hire, against the Loss or Injury to Parcels or Packages delivered to them for Conveyance or Custody, the Value and Contents of which shall not be declared to them by the Owners thereof.” Such is the title of the act, and then the preamble recites, “That by reason of the frequent practice of bankers and others sending by the public mails, stage-coaches, waggons, vans, and other public conveyances, by land, for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in a small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire, is greatly increased. And through the frequent omission by persons sending such parcels and packages to notify the value and nature of the contents thereof, so as to enable such mail contractors, &c. by due diligence, to protect themselves against losses arising from their legal re
sponsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, &c. with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses; it is then enacted, That no mail contractor, stage-coach proprietor, or other common carrier, by land, for hire, shall be liable for the loss of, or injury to, any article of property of the descriptions following, (that is to say,) gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the governor and company of the Banks of England, Scotland, and Ireland, respectively, or of any other Bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, titledeeds, paintings, engravings, pictures, gold or silver plate, or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs f or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger in any mail or stage-coach, or other public conveyance, when the value of such property aforesaid contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such mail contractor, &c. or to their book-keeper, coachman, or other servant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such property shall have been declared by the persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package." By the second section, common carriers, upon delivery of such parcels exceeding the value of 101., and so declared as aforesaid, may demand an increased rate of charge, which is to be notified by a notice in legible characters affixed in the office; and persons sending parcels are to be bound by such notice, without further proof of the same having come to their knowledge. The third section directs that carriers shall, if required, give a receipt for the parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp-duty; and carriers who do not give such receipt, when
f Mayhew v. Nelson, 6 C. & P. 58.