bound to apply any apparatus known to be useful and in common use. (dd) An act of Congress was passed March 3, 1851, entitled, " An act to limit the liability of ship-owners and for other purposes; " and under the provisions of this act it is held that a carrier by water is not liable for the baggage of a passenger destroyed by fire without the carrier's default. (de) But this statute does not apply to a common carrier who ships goods over a part of his route on a vessel which he neither owns nor charters; and he is liable for injury to goods caused by an accidental fire on such a vessel. (df) It is a good excuse for the carrier's refusal that his carriage was full, (e) or that the goods would endanger him, or incur themselves extraordinary danger, (f) or are not such as he carries in the known and usual course of his business; (g) or that he cannot, at the time and in the way proposed, receive them without unreasonable loss and inconvenience. And he is *175 not obliged to receive them until he is ready to set forth on his route. (h) And if perishable goods are offered him by one owner, and goods non-perishable by another owner, and he cannot take all, he may take the perishable goods, as they will suffer most by the delay. (hh) A common carrier may make what contract he will as to his compensation; but a tender of his usual, or of a reasonable. compensation, obliges him to carry; (i) and when he carries with (dd) Steinweg v. Erie R. R. Co. 43 N. Y. 123; Case v. Northern, &c. R. R. Co. 59 Barb. 644. See also Caldwell v. New Jersey Steamboat Co. 47 N. Y. 282. (de) Chamberlain v. Western Transportation Co. 44 N. Y. 305. (df) Hill Manufacturing Co. v. Boston, &c. R. R. Co. 104 Mass. 122. (e) Lovett . Hobbs, 2 Show. 127. But not, it seems, if he has issued a ticket for the journey, and has put no condition to his liability. Hawcroft v. Great Northern Railway Co. 8 E. L. & E. 362. (f) Edwards v. Sherratt, 1 East, 604; The Nitro-Glycerine Case, 15 Wall. 524; Pater. Henry, 5 Stew. & P. 101. But where, to an action against the defendants as common carriers, for refusing to carry a package of the plaintiff, the defendants pleaded that when the package was tendered they requested the plaintiff to inform them of its contents, and that the plaintiff refused to do so, wherefore and because the defendants did not know what the package contained, they refused to receive and carry it; the plea was held bad, for that a carrier has no general right, in any case and under all circumstances, to require to be informed of the contents of packages tendered to them to be carried. (g) Sewall v. Allen, 6 Wend. 335; Tunnell v. Pettijohn, 2 Harring. (Del.) 48; Citizens' Bank v. Nantucket Steamboat Co. 2 Story, 16; Johnson v. The Midland Railway Co. 4 Exch. 367. (h) Lane v. Cotton, 1 Ld. Raym. 646, 652; s. c. 1 Comyns, 100, 105. (hh) Marshall v. New York, &c. R. R. Co. 45 Barb. 502; Tierney v. New York, &c. R. R. Co. 76 N. Y. 305; Michigan Central R. R. Co. v. Burrows, 33 Mich. 6. (i) Harris v. Packwood, 3 Taunt. 264. 1 A carrier, in the absence of improper concealment by the shipper, must inquire as to the nature and value of goods shipped, failing to do which he cannot escape liability. Merchants', &c. Co. v. Bolles, 80 Ill. 473. - K. out special agreement, this is all the compensation he can recover. If he carries articles, as, for example, bags of grain, for freight, and is to return the empty bags without charge for freight, this is not a gratuitous carriage of the bags, as the freight paid for the full bags is compensation also for the return of empty bags. (ii) In the absence of special agreement, he must treat all persons alike; but it is said that he is under no obligations at common law to charge equal rates of carriage to all his customers. Where required by statute to make reasonable and equal charges against all, he cannot, by by-laws or rules, discriminate as to amounts or modes of computation between persons according to their occupations, but must carry the same amount, the same distance, for the same price, for all persons. (k) 1 1 All carriers are held to act by their agents, and to be responsible for the acts of their servants and agents, under the common rules of agency. (1) If the character of the goods carried is substantially changed by a cause for which the carrier is responsible, the owner need not receive them, and the carrier is responsible for their whole value, and a recovery thereof from him vests the property therein in him; but if only partially injured, the carrier is liable only to the extent of the injury, and the property in the goods remains in the owner. (m) It is now common to send articles by a carrier, who is to receive the price on delivery of the goods. He is the agent of the sender for this purpose. From the cases it would seem that if the carrier undertakes to collect the price, he must do so, and if he delivers the article without receiving the price, he makes himself liable therefor. (mm) 2 But it is also held that merely (i) Pierce v. Milwaukee, &c. R. R. Co. 23 Wisc. 387. (j) Baxendale v. Eastern Counties Railway Co. 93 Eng. C. L. 63. (k) Pickford r. Grand Junction Railway Co. 10 M. & W. 399; Parker v. Great Western Railway Co. 7 Man. & G. 253, 8 E. L. & E. 426, 11 C. B. 545; Edwards v. Great Western Railway Co. 8 E. L. & E. 447; 8. c. 11 C. B. 588; Crouch v. The London Railway Co. 2 Car. & K. 789. See McDuffee v. Portland, &c. R. Co. 52 (1) See Machu v. Railway Co. 4 Exch. 415, and Butcher v. L. & S. W. R. Co. 16 C. B. 13. (m) Hackett v. B. C. & M. R. R. Co. 35 N. H. 390. (mm) Meyer v. Lemcke, 31 Ind. 208; Murray v. Warner, 55 N. H. 546. 1 An Act of Congress approved Feb. 4, 1887, known as the "Interstate Commerce Act," forbids discrimination in charges by railroads running from one State or Territory into another, or into a foreign country. And different States have enacted laws on the subject. See Illinois Central R. R. Co. v. People, 121 Ill. 304; State v. Fremont, &c. R. R. Co. 22 Neb. 313; Gulf, &c. Ry. Co. v. Dwyer, 75 Tex. 572. 2 If a consignor instructs an express company not to permit the consignee to ex marking the article C. O. D., or Cash on Delivery, is not enough to make him liable without some undertaking on his part; but this may be proved directly, or inferred from a usage. (mn) SECTION VIII. WHEN THE RESPONSIBILITY BEGINS. As soon as the goods are delivered and received, they are at the risk of the carrier. This reception of them may be *176 specific or general, and according to the usage of his business; and it may be actual or constructive. (n) But the delivery to the carrier is not complete if the goods are still in charge of the owner or his representative; the delivery must place the goods in the custody of the carrier. (0) The delivery (mn) Chicago, &c. R. R. Co. v. Merrill, 48 Ill. 425. (n) Merriam v. The Hartford Railroad Co. 20 Conn. 354. See Green v. Mil. waukee, &c. R. Co. 38 Ia. 100. (0) Brind v. Dale, 8 C. & P. 207; Kent v. Midland R. Co. L. R. 10 Q. B. 1; Clark v. Burns, 118 Mass. 275. It frequently becomes a difficult question of fact whether goods have been so delivered to a carrier as to be in his custody and under his control, or whether they still continue under the control of the owner or his servant. There are several cases in the books which have turned upon this question. Thus, in the case of the East India Co. v. Pullen, 2 Stra. 690, an action was brought against the defendant as a common carrier, on an undertaking to carry for hire on the River Thames, from the ship to the company's warehouses. It appeared in evidence that the defendant was a common lighterman, and that it was the usage of the company, on the unshipping of their goods, to put an officer, who was called a guardian, into the lighter, who, as soon as the lading was taken in, put the company's locks on the hatches, and went with the goods to see them safely delivered at the warehouse. It appeared that such was the course in this case, and part of the goods were lost. Upon this evidence, Raymond, C. J., was of the 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 ever having been in his possession, but in the possession of the company's servant, who had hired the lighter to use himself." The plaintiff was accordingly nonsuited. So in the case of Tower v. The Utica & S. Railroad Co. 7 Hill (N. Y.), 47, where an action was brought to charge a railroad company as common carriers, for the loss of an overcoat belonging to a passenger, and it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and it was afterwards stolen; it was held that the defendants were not liable. And Nelson, C. J., said: "The overcoat was not delivered into the possession or custody of the defendants, which is essential to their liability as carriers. Being an article of wearing apparel of present use, and in the care and keeping of the trav amine the goods sent, before delivery and payment of charges, the company's agent is authorized to refuse such an examination, and incurs no personal liability by returning the goods to the consignor. Wiltse v. Barnes, 46 Ia. 210. But generally the assignee is entitled to examine the goods. Lyons v. Hill, 46 N. H. 49. to a ship is complete * when the master, or mate, or other *177 agent of the owner, receives them, either at the ship, or on the wharf, or in a warehouse, if such delivery and receipt be according to the usage. And the owners of the ship forthwith become insurers as to all but the cases excepted by law, or by the bill of lading. (p) Delivery may be made in a different way, or at a different time or place, from that which is usual, or notified to the public; such difference being requested, or suggested by eller himself for that purpose, the defendants have a right to say that it shall be regarded in the same light as if it had been upon his person. No carrier, however discreet and vigilant, would think of turning his attention to property of the passenger in the situation of the article in question, or imagine that any responsibility attached to him in respect to it." On the other hand, in Robinson v. Dunmore, 2 B. & P. 416, it appeared in evidence that the plaintiff, who was an upholsterer, having occasion to send some furniture into the country, agreed with the defendant to take the same; that the defendant brought his cart to the plaintiff's house, where the goods were loaded in the presence of the plaintiff himself, and with the assistance of two of the plaintiff's servants; that the plaintiff having observed that the tarpaulin which the defendant had brought for the purpose of covering the cart was too small, the defendant said, "I have plenty of sacks, and I will warrant the goods shall go safe;" that, on account of the defendant's being a stranger to the plaintiff, the latter sent one of his own porters with the cart, who would otherwise have gone by the stage; that this porter, in the course of the journey, paid a person for watching the goods one night; and that the goods in the course of the journey were damaged by rain. Upon these facts, the jury, under the direction of Lord Eldon, before whom the case was tried, found a verdict for the plaintiff. And a rule nisi having been obtained for setting this verdict aside and entering a nonsuit, Chambre, J., said: "This is a very clear case. The defend ant is not a common carrier by trade, but has put himself into the situation of a common carrier by his particular warranty. As to possession, that seems clearly proved by the circumstances of the case; the defendant attends with his horse and cart at the plaintiff's house, where the goods are delivered to him and put into the cart by the plaintiff's servants. This is a complete possession. How is this affected by the presence of the plaintiff's servant? It has been de termined, that if a man travel in a stagecoach, and take his portmanteau with him, though he has his eye upon the portmanteau, yet the carrier is not absolved from his responsibility, but will be liable if the portmanteau be lost. In this case the plaintiff, for greater caution, sends his servant with the goods, who pays for watching them, because he apprehends danger of their being stolen. So the man who travels in a stage has some care of his own property, since it is more for his interest that the property should not be lost than that he should have an action against the carrier. This case bears no resemblance to that cited from Strange, for there the decision proceeded on the usage of the East India Company, who never intrust the lighterman with their goods, but give the whole charge of the property to one of their own officers, who is called a guardian." The rule was accordingly discharged. See also Richards v. The London Railway Co. 7 C. B. 839; White v. Winnisimmet Co. 7 Cush. 155; Maybin v. Railroad Co. 8 Rich. L. 241; Midland Railway v. Bromley, 17 C. B. 372. (p) Cobban v. Downe, 5 Esp. 41. But a delivery to any of the crew is not sufficient, they not being authorized agents for that purpose. Leigh v. Smith, 1 C. & P. 638. And, generally, a delivery to a servant of the carrier must be to one authorized to receive the goods. Therefore, where the plaintiff delivered a package to the driver of a coach, who had no authority to receive and enter it on the way-bill, but consented to carry it on to the next agent and have it entered; it was held to be no delivery to the carrier. Blanchard r. Isaacs, 3 Barb. 388. See Harrell v. Wilmington, &c. R. R. Co., 106 N. C. 258; Quimit v. Henshaw, 35 Vt. 605. The master of a vessel cannot bind the owner by a bill of lading for goods not actually put on board. Grant v. Norway, 2 E. L. & E. 337; s. c. 10 C. B. 665; Hubbersty v. Ward, 18 E. L. & E. 551; s. c. 8 Exch. 330; Coleman v. Riches, 29 E. L. & E. 323; s. c. 16 C. B. 104. See, however, Vol. i., p. 46, note. * the carrier, or his agent, or sanctioned by him by receiving the goods without objection, and entering them on the way-bill. (q) The responsibility of the carrier is fixed by his acceptance of the goods without objection, whatever be the manner of the delivery. Nor is it necessary to complete the delivery that the goods * 178 should be entered on the way-bill or freight-list, or any written memorandum made. (r) But delivery to a clerk of the carrier, outside of the carrier's office, is not a delivery to the carrier until the parcel comes into actual possession of the carrier's agent for that purpose. (rr) Nor is delivery at the proper place without notice to the proper person, (rs) unless the place is one which the carrier indicates as that where goods for him should be put, and will then be under his care. The same person may be a common carrier and also a warehouseman, or an innkeeper, or a wharfinger, or a forwardingmerchant. And goods may be delivered to him and lost, under circumstances which would render him liable if he received them as a carrier, but not if he received them in another capacity, the loss not having occurred through his negligence. And it is sometimes quite difficult to determine in what capacity the goods were received. (s) (q) Therefore, where a package was delivered to the agent of a stage-coach company, at the post-office, where the stage was standing, and not at the office of the company, to be carried from Boston to Hartford, and was entered on the way-bill by the agent when he received it, he having previously directed the person who had the care of the package to bring it to the post-office; and the package was lost before reaching Hartford; it was held, that the owners of the coach were liable to the owner of the package for its value, the delivery at the post-office being with the assent of their agent. Phillips v. Earle, 8 Pick. 182. See also Pickford v. The Grand Junction Railway Co. 12 M. & W. 766; s. c. 8 id. 372. So in Powhatan Steamboat Co. v. Appomattox R. R. Co. 24 How. 247, it was decided, that after a railroad company had received goods into their depot on Sunday, their duty of safekeeping was not within the prohibition of the Virginia Sunday law, and if the goods are burued the company is responsible for the loss. (r) Citizens Bank v. Nantucket Steamboat Co. 2 Story, 16, 35. (rr) Croukite v. Wells, 32 N. Y. 247; and see Missouri, &c. Co. v. Hannibal, &c. R. R. Co. 35 Mo. 84; and Hotchkiss v. Artisan's Bank, 42 Barb. 517. (rs) Grosvenor v. N. Y., &c. R. R. Co. 39 N. Y. 34. (s) See the case of Roberts v. Turner, 12 Johns. 232, cited and stated fully ante p. 139, note (k). The point considered in that case came under discussion again in the case of Teal v. Sears, 9 Barb. 317. It was an action on the case against the defendants as common carriers, to recover for the loss of a case of goods. The facts were as follows: On the 6th of October, 1846, the plaintiffs shipped, at Albany, three cases of goods for Buffalo, on a canal boat. A bill of lading was made out by the plaintiffs, and forwarded by the captain of the canal boat, with directions to deliver the goods in the bill as addressed, and collect the charges for transporting on the canal. The three cases were marked on the bill, "A. B. Case, Chicago, by vessel, care of Sears & Griffith, Buffalo." The cases were received by Sears & Griffith (the defendants), at Buffalo, on the 14th of October, and they paid the canal charges, indorsing a receipt therefor, and a memorandum of the receipt of the goods, on the bill of lading. The defendants were at the time engaged in the forwarding and commission business at B. That was their principal business, but they were interested to some extent in a transport |