London (the act of God, the Queen's enemies, "Dated in London, the 25th of October, 1854. (Signed) JAMES CLARK." Endorsement: "It is agreed that the within-mentioned wines, or any portion thereof, may be landed at Calcutta under the consignees' order, should they desire to do so, freight being paid at the rate of 408. sterling per butt, which is to cancel the agreement for delivery back to London on the quantity that may be landed. (Signed) GEORGE DUNCAN, "PHILLIPS, KING & Co." Averment, that the loss and damage in that plea mentioned arose wholly from the gross negligence of the defendant and his servants in and about the stowage of the said goods, and not otherwise. The defendant took issue on the plaintiff's second replication to the fourth plea, and also demurred thereto on the ground that "the memorandum in the bill of lading exempted him from liability for leakage and breakage, whether arising from negligence or not." Joinder. *159] J. Brown, in support of the demurrer.(a)—The question *in this case is, whether the defendant is protected by the terms of his contract from liability, under all circumstances, for damage arising from leakage and breakage,-whether the special clause does not protect him even against the consequences of negligence, however gross. The words are as general as possibly can be conceived. The construction to be contended for on the other side would seek to add words similar (a) The points marked for argument on the part of the defendant, were, "That the clause in the bill of lading exempts the defendant from liability for leakage and breakage, whether arising from negligence or not; that, to construe it as only applying to leakage or breakage occurring without the defendant's default, is altering the contract; and that no intention so to limit the defendant's protection can be gathered from either the words of the bill of lading or the nature of the contract." to these, arising without the owner's default." That, it is submitted, would be adding most unjustifiably to the terms of the written contract. It will probably be said that an exception of that sort is to be implied from the nature of the undertaking, and that it is unreasonable that the defendant should thus protect himself from loss or damage arising from his own acts, or from those of his crew. But stipulations of that sort are not new: they are now almost universal in the case of contracts for conveyance by railway: see Carr v. The Lancashire and Yorkshire Railway Company, 7 Exch. 707.† The construction contended for on the other side would in every case provoke litigation,-the very thing which the introduction of the clause was designed to prevent. [CockBURN, C. J.-Is the owner to break and to allow others to break, without incurring any responsibility? Is there to be no limit? I think it can hardly be permitted to him to contend that he inserted the clause for the purpose of protecting himself against negligence. Suppose the master knew that the crew had tapped the casks on the voyage, are you prepared to say that the owner would not be responsible for negligence in that respect?] It is perfectly competent to every carrier, whether by land or by water, to protect himself against responsibility for negligence of any sort. [COCKBURN, C. J-No doubt, if the person sending goods chooses to agree with the carrier that he shall not be responsible for negligence, however gross, he is at liberty to do so. But, can we in a court of justice *put so absurd a [*160 construction upon language that is susceptible of another and a more rational construction?] There is no such absurdity in the stipulation in question as to warrant the court in introducing the exception suggested. Nor can it be said, considering the small amount of the freight, as compared with the length of the voyage and the value of the goods, that the stipulation is unreasonable. [CROWDER, J.-Suppose the leakage arose from the wilful act of the master himself, would the owner still be irresponsible?] For the master's direct connivance in the abstraction of the wine, the owner might possibly be liable. [WILLES, J., referred to De Rothschild v. The Royal Mail SteamPacket Company, 7 Exch. 734.†] The law upon this subject is well laid down in Hinton v. Dibbin, 2 Q. B. 646 (E. C. L. R. vol. 42), 2 Gale & D. 36, where it was held, under the statute 11 G. 4 & 1 W. 4, c. 68, that, if a parcel containing any of the valuable goods enumerated in s. 1 be sent to a carrier for conveyance, without a declaration of the nature and value of such goods, and without paying, or engaging to pay, an increased charge according to s. 2, the carrier is not liable for their loss, though it happen by the gross negligence of his servants. Lord Denman, in giving judgment in that case, elaborately reviews all the previous authorities as to the effect and meaning of "gross negligence" in contracts of this sort: and the decision has ever since been acted upon. The doctrine of the older cases as to common carriers,—see Lyon v. Wells, 5 East, 428, and that class of cases,-is very much. shaken, if not altogether overturned, by the modern authorities: and, at all events, those cases are wholly inapplicable to contracts by bill of lading. This contract is to be construed just like any other. It is not enough to suggest that it would be reasonable to limit it in the way proposed: it must be shown that there is an invincible necessity for implying that such a limitation or exception was contemplated by the parties *when they entered into the contract. [WILLES, J. *161] Suppose the vessel were taken by a Russian man of war under such circumstances as that by the exercise of ordinary care the captain might have escaped capture, would the exception of the Queen's enemies absolve him from the consequences of his negligence?] Possibly not. But here we have an express contract, which is clear and unambiguous. Sumner, contrà, was not called upon.(a) COCKBURN, C. J.-This was an action for an injury sustained by goods delivered to the defendant, a carrier by water, to be carried from London to Calcutta and back, upon a contract containing an exception of certain perils and casualties; and the declaration charges a loss arising from improper stowage, and not by reason of any of the excepted perils and casualties. The defendant pleads that the goods were delivered to him to be carried upon the express condition only that the defendant should not be accountable for leakage or breakage, and that the damage complained of arose from those causes, and not otherwise. The plaintiff replies that the loss and damage arose wholly from the gross negligence of the defendant and his servants in and about the stowage of the goods. And the defendant demurs. The question arises upon these words in the margin of the bill of lading,-“Not accountable for leakage or breakage." *Admitting that a carrier *162] may protect himself from liability for loss or damage to goods intrusted to him to carry, even if occasioned by negligence on the part of himself or his servants, provided any one is willing to contract with him on such terms; yet it seems to me that we ought not to put such a construction upon the contract as is here contended for, when it is susceptible of another and a more reasonable one. It is not to be supposed that the plaintiff intended that the defendant should be exempted from the duty of taking ordinary care of the goods that were intrusted to him. When it is borne in mind what is the ordinary duty of a carrier, it is plain what the parties intended here. So long ago as in the case of Dale v. Hall, 1 Wils. 187, it is laid down (by Lee, C. J.) (a) The points marked for argument on the part of the plaintiff, were,-"That the memorandum in the bill of lading did not protect the defendant from liability for losses owing to the negligence of the defendant and his servants; that it did not protect him from liability for losses occasioned by the gross negligence of the defendant and his servants; and that it only protected him from losses arising in the course of the voyage, and not from damage occasioned by bad stowage." that "everything is a negligence in a carrier or hoyman that the law does not excuse, and he is answerable for goods the instant he receives them into his custody, and in all events, except they happen to be damaged by the act of God or the King's enemies; and a promise to carry safely, is a promise to keep safely." Amongst the events which the carrier here would under ordinary circumstances be responsible for, are, leakage and breakage. He stipulates to be exempted from the liability which the law would otherwise cast upon him in these respects. But there is no reason why, because he is by the terms of the contract relieved from that liability, we should hold that the plaintiff intended also to exempt him from any of the consequences arising from his negligence. The contract being susceptible of two constructions, I think we are bound to put that construction upon it which is the more consonant to reason and common sense; and to hold that it was only intended to exempt him from his ordinary common law liability, and not from responsibility for damage resulting from negligence. fore think the plaintiff is entitled to judgment. I there [*163 *CRESSWELL, J.-I am of the same opinion. Ordinarily, the master undertakes to take due and proper care of goods intrusted to him for conveyance, and to stow them properly; and he is responsible for leakage and breakage. Here he expressly stipulates not to be accountable for leakage or breakage, leaving the rest as before. That is the whole case. CROWDER, J.-The simple question is, what did the parties intend by the contract they have entered into: and this we must gather from the words they have used. It could hardly have been contemplated by the plaintiff that the defendant should be utterly absolved from the obligation of taking any care of the goods. The construction put upon the contract by my Lord, is evidently the most just and reasonable,—as absolving the defendant from liability for leakage and breakage the result of mere accident, where no blame was imputable to the master, and for which but for the stipulation in question he would still have been liable. It clearly was not intended to relieve him from responsibility for leakage or breakage the result of his negligence and want of The construction contended for on the part of the defendant would be giving the contract a sense not necessarily involved in the words as they stand. care. WILLES, J.-I also am of opinion that the plaintiff is entitled to judgment on this demurrer. The introduction of the words in the margin of the bill of lading is sufficiently accounted for by the fact that without them the defendant would have been bound to the strictest care, so as to deliver the goods at the end of the voyage in the same state and condition as they were in when he received them, without reference to negligence. It appears from the observations of Lord Wensleydale, in Walker v. Jackson, 10 M. & W. 161, 169,† that, in the N. S., VOL. II.-9 *absence of fraud, the carrier is bound as an insurer to carry *164] and deliver the goods as they are when he receives them, as is pointed out by some members of the court in Wyld v. Pickford, 8 M. & W. 443. The defendant gets rid of that liability in the present case by the introduction of the words "not accountable for leakage or breakage," but not of the obligation which the law imposes upon him of taking reasonable care of the goods intrusted to him. It is no more than putting the leakage and breakage on the same footing as the act of God or the Queen's enemies. Suppose a vessel were taken by the enemy in consequence of the master's neglect of precautions which he might easily have taken,-could the owners claim an exemption on the ground of the capture? Clearly not; for, the exception necessarily implies that the capture shall not be occasioned by the act or default of the owners or the master. Lord Tenterden, in his Treatise on Shipping, p. 386, treating of the exception as to robbery by pirates, and citing Emerigon, Tom. I., p. 532, refers to Morse v. Slue, 1 Vent. 190, in which the owners were held responsible for goods taken by robbery from the ship in the river Thames within the body of a county, Chief Justice Hale took notice of this doctrine, and said, by the civil Admiral law, the owners are not responsible for a robbery by pirates at sea.' This, however, is to be understood only in case the ship does not fall into the hands of pirates by any neglect or fault of the master." That is equally applicable to the additional exception here of leakage and breakage. The true meaning of this contract is, I will take all reasonable care of the goods, but will not be accountable for a loss arising from leakage or breakage such as usually happens without the exercise of extraordinary care." The owner engages only to abstain from negligence. The result, therefore, is, that as, upon this record, the damage is alleged to have occurred through *the negligence *165] of the master causing the leakage and breakage, the defendant is responsible for it; and therefore there must be judgment for the plaintiff. Judgment for the plaintiff. The terms of any special agreement or notice limiting the liability of common carriers will not be extended to the consequences of their own negligence: Bean v. Green, 3 Fairf. 422; Fairchild v. Slocum, 19 Wendell, 329, 7 Hill, 292; Swindler v. Hilliard, 2 Richardson, 286; Fish v. Chapman, 2 Kelly, 349; Laing v. Colder, 8 Barr, 479; Sager v. The Railroad Co., 31 Maine, 228; Dorr v. New Jersey Co., 4 Sandf. Sup. Ct. 136; Camden and Amboy v. Baldauf, 4 Harris, 67; Reno v. Hogan, 12 B. Monroe, 63; Stoddard v. Long Island Railroad, 5 Sandf. 180. |