future performance of the contract or to excuse it altogether. If the peril does not totally or permanently prevent performance, it may happen either that the owner of the goods asserts a right to determine the contract or that the carrier asserts such a right. Express provisions in the contract may settle such disputes, but in the absence of such provisions," the materiality of the failure to fulfil the contract caused by the excepted peril must furnish the test. If continuance of performance will throw a heavy and unanticipated burden on the carrier, it need not perform.50 If the object of the contract will be frustrated from the standpoint of the shipper 49 In Brown v. Turner, [1912] A. C. 12 the Court of Appeal had held under a provision in a time charter party providing that "the owners and charterers shall be mutually absolved from liability in carrying out this contract in so far as they may be hindered or prevented" by (among other things), strikes, that the charterers must pay the charter hire though a strike prevented them from loading a cargo of coal at a port to which they had ordered the vessel to proceed. The House of Lords affirmed the decision but Lord Shaw said: "I may say, my Lords, that I do not see my way in terms to agree with the view which has been reached by the Court of Appeal on the construction of the words 'mutually absolved,' which occur in this contract. It does not appear to me to be sound to say that the liability of the charterers was merely to pay rent, and that, as the strike had not prevented them doing that, therefore the absolving clause does not apply. I think that a strike with its consequence of preventing the use of the vessel as a carrier (which is indeed the sole or main consequence which the parties must have had in view) was an occasion when on the one hand the charterer might not be able to use his vessel, and on the other the owner should not be entitled to his rent, and in my opinion the term 'mutually absolved' ought to be construed so as to meet this case and as covering the liabilities on both sides of a mutual or reciprocal character. 'But on the other hand, my Lords, I think the same result as that arrived at by the Court of Appeal is reached by reason of the fact that the charterers were not in fact prevented by the strike from the use of the vessel during the period in question, but themselves chose, as I have explained, to keep it lying in the strike area." 50 The Progreso, 50 Fed. 835. “A vessel, having by charter agreed to be at a certain port by the 1st of October, 'restraint of princes, rulers, and people excepted,' and having been prevented from going there during October by quarantine regulations at such port, was held bound to have been at the port on the 1st of November, when she knew the quarantine would be raised." Karran v. Peabody, 145 Fed. 166, 76 C. C. A. 136. "A general provision in a charter party, excepting 'all and every the dangers and accidents of the seas,' has no application to a prior specific provision giving the charterers the right to cancel should the vessel not arrive in good order at the port of loading on or before a specified date, so as to extend such date in case arrival is delayed by sea perils." even though in the future, the performance is accurately carried out, he is excused. 51 Sometimes the contract contains an express power to the charterer to cancel the charter party in case of delay beyond a specified day, or for other cause. The charterer cannot be compelled before the happening of the contingency to say whether he will exercise the power or not. The right to judge at the ultimate day whether it is desirable to do so is his contractual privilege.52 § 1104. When a common carrier's liabilities for goods begin and end. As the liability of a common carrier is more stringent than that of an ordinary bailee for hire, it is important to determine at what moment a carrier becomes liable as such, and for how long his liability continues. He becomes liable as such as soon as goods are delivered to him for immediate transportation; 53 and this is true though the goods are placed in a freight warehouse because no car is available, provided shipment is to be made as soon as possible.54 In order to bind the carrier, delivery must be made to some one authorized to receive the goods, unless by custom the carrier has allowed the public to leave them at a particular place of deposit when no employee of the carrier was there to receive them.55 51 Jackson v. Union Marine Ins. Co., L. R. 10 C. P. 125; Tully v. Howling, 2 Q. B. D. 182; Assicurazioni Generali v. Steamship, etc., Co., [1892] 1 Q. B. 571, 577; Porteous v. Williams, 115 N. Y. 116, 21 N. E. 711. 52 Karran v. Peabody, 145 Fed. 166, 76 C. C. A. 136. "A charterer, given the right by the charter party to cancel in case vessel does not arrive at the loading port by a specified date, is not required to exercise his option until her arrival, and his right to cancel is not lost by his refusal to state his election on request of the owners, after such date had passed, and when the vessel was in a distant port, and the time when she would arrive was unknown." 53 Boehm v. Combe, 2 M. & S. 172; The Gracie D. Chambers, 253 Fed. 182, affd. 248 U. S. 387, 39 S. Ct. 149; Railway Co. v. Murphy, 60 Ark. 333, 30 S. W. 419, 46 Am. St. Rep. 202; Illinois Central R. Co. v. Smyser, 38 Ill. 354, 87 Am. Dec. 301; Gregory v. Wabash Ry. Co., 46 Mo. App. 574; Clarke v. Needles, 25 Pa. 358. 54 Canadian Pac. R. Co. v. Wieland, 226 Fed. 670, 141 C. C. A. 426; Meloche v. Chicago, etc., R. Co., 116 Mich. 69, 74 N. W. 301; and see cases in the preceding note. 55 Converse v. Norwich, etc., Transportation Co., 33 Conn. 166; Green v. Milwaukee, etc., R. Co., 41 Iowa, 410; Whitehurst v. Texas &c. R. Co., 131 La. 139, 59 So. 42. See also Arthur v. The The domestic and export bills of lading prescribed by the Interstate Commerce Commission in 1919 provide expressly that "Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed freight agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels."55 carrier, moreover, may receive goods as a warehouseman not to be forwarded immediately or until other instructions are received. In such a case the carrier's liability is that of warehouseman until the time for immediate transportation arrives. 56 At the point of destination the carrier is not bound to seek the consignee and make personal tender of delivery to him, if the carrier's regular means of carriage involve the use of fixed routes or termini. A vessel cannot go to the consignee's place of business, nor a railroad company move its cars except upon its tracks. Accordingly such carriers are not bound to deliver personally.57 Express companies, on the other hand, must make personal delivery. 58 Where personal delivery is not required, the rule is clear that carriers by water must give notice that the vessel has arrived and that the goods are ready for delivery, and that a reasonable time after such notice must elapse before the carrier by storing the goods for the owner can reduce his responsibility to that of a warehouseman, or by putting them in a place of safety be freed altogether from liability.59 There is much conflict, Texas &c. R. Co., 204 U. S. 505, 27 Sup. Ct. 338, 51 L. Ed. 590, and 32 L. R. A. (N. S.), 313, and note, L. R. A. 1916 C. 606, and note. Cf. Gulf Coast Trans. & Co. v. Howell, 67 Fla. 508; Packard v. Getman, 6 Cow. 757, 16 Am. Dec. 475. 55 See Bianche v. Montpelier &c. R. Co. (Vt.), 104 Atl. 144, where a somewhat similar provision was enforced. 56 Murray v. International SteamCo., 170 Mass. 166, 48 N. E. 1093, 64 Am. St. Rep. 290; Chas. W. Shepherd Cotton Co. v. New Orleans &c. Co., 118 Miss. 464, 78 So. 193; Moses v. Boston & Maine R. Co., 24 N. H. 71, 55 Am. Dec. 222; Rogers v. Wheeler, 52 N. Y. 262; Schmidt v. Chicago, etc., Ry. Co., 90 Wis. 504, 63 N. W. 1057. 57 Hyde v. Trent, etc., Navigation Co., 5 T. R. 389; Union Steamboat Co. v. Knapp, 73 Ill. 506; Jarrett v. Great Northern Ry. Co., 74 Minn. 477, 77 N. W. 304. 58 American Merchants', etc., Express Co. v. Wolf, 79 Ill. 430; Packard v. Earle, 113 Mass. 280; Bullard v. American Express Co., 107 Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358; Witbeck v. Holland, 45 N. Y. 13, 6 Am. Rep. 23; Hutchinson v. United States Express Co., 63 W. Va. 128, 159 S. E. 949. 59 The Eddy, 5 Wall. 481, 18 L. Ed. however, as to the duty of carriers by land. Some decisions hold that after arrival of the goods and their deposit in a place suitable for their delivery to the consignee, the carrier's liability becomes that of a warehouseman though no notice to the consignee of their arrival has been given.60 Other decisions, however, require notice to the consignee before the carrier ceases to be liable as such; 61 and even though no notice is required by the general law, custom may subject a carrier to the requirement.62 Still other cases hold that the carrier remains an insurer until the consignee has had a reasonable time within which to remove the goods.63 486; The Titania, 131 Fed. 230, 65 C. C. A. 215; Sonia Cotton &c. Co. v. Red River, 106 La. 46, 30 So. 305; Rosenstein v. Vogemann, 184 N. Y. 330, 77 N. E. 626, 6 Ann. Cas. 13. Cf. Constable v. National S. S. Co., 154 U. S. 51, 38 L. Ed. 903, 14 S. Ct. 1062; and see note 6 Ann. Cas. 16. 60 Georgia & A. Ry. Co. v. Pound, 111 Ga. 6, 36 S. E. 312; Schumacher v. Chicago, etc., R. Co., 207 Ill. 199, 206, 20, 69 N. E. 825; Chicago, etc., R. Co. v. Reyman (Ind.), 73 N. E. 587; Mohr v. Chicago, etc., R. Co., 40 Ia. 579; Rice v. Hart, 118 Mass. 201, 19 Am. Rep. 433. (But if consignees are expected to unload directly from the cars, notice is necessary. Bachant v. Boston, etc., R. Co., 187 Mass. 392, 73 N. E. 642; Garvan v. New York, etc., R. Co., 210 Mass. 275, 96 N. E. 717), Herf, etc., Co. v. Lackawanna Line, 100 Mo. App. 164, 73 S. W. 346; National Line Steamship Co. v. Smart, 107 Pa. St. 492; Moyer v. Pennsylvania R. Co., 31 Pa. Super. 559. 1 Mitchell v. Lancashire, etc., R. Co., L. R. 10 Q. B. 256-260; Chapman v. Great Western Ry. Co., 5 Q. B. D. 278; Collins v. Alabama, etc., R. Co., 104 Ala. 390, 16 So. 140 (cf. Tallassee Falls Mfg. Co. v. Western Ry. Co., 128 Ala. 167, 29 So. 203); Railway Co. v. Nevill, 60 Ark. 375, 30 S. W. 425. 28 L. R. A. 80, 46 Am. St. 208; Caval laro v. Texas, etc., Ry. Co., 110 Cal, 348, 42 Pac. 918, 52 Am. St. Rep. 94; Atlantic Coast Line v. Sandlin, (Fla. 1918), 78 So. 667; Walters v. Detroit, etc., Ry. Co., 139 Mich. 303, 102 N. W. 745; Railroad Co. v. Fuqua, 84 Miss. 490, 36 So. 449; Burr v. Adams Express Co., 71 N. J. L. 263, 58 Atl. 609; Champlin v. Erie R. Co., 91 N. J. 319, 103 Atl. 807; Pelton v. Rensselaer, etc., R. Co., 54 N. Y. 214, 13 Am. Rep. 568; Faulkner v. Hart, 82 N. Y. 413, 37 Am. Rep. 574; Diamant v. Long Island R. Co., 62 N. Y. S. 519, 30 N. Y. Misc. 444; Railroad Co. v. Hatch, 52 Ohio St. 408, 39 N. E. 1042; Railroad Co. v. Naive, 112 Tenn. 239, 79 S. W. 124, 64 L. R. A. 443; Missouri, etc., Ry. Co. v. Haynes, 72 Tex. 175, 10 S. W. 398; Richardson v. Canadian Pac. R. Co., 19 Ont. 369. Actual knowledge by the consignee was held sufficient in Rosenbaum v. Northern Pac. Ry. Co., 101 Wash. 225, 172 Pac. 238. 62 Herf &c. Co. v. Lackawanna Line, 100 Mo. App. 164, 73 S. W. 346. Cf. Tallassee Falls Mfg. Co. v. Western Ry. Co., 128 Ala. 167, 29 So. 203. 63 Missouri Pac. Ry. Co. v. Newberger, 67 Kan. 846, 73 Pac. 57; Jeffersonville R. Co. v. Cleveland, 2 Bush, 468; Lewis v. Louisville & Nashville R. Co., 135 Ky. 361; Maignan v. New Orleans &c. R. Co., 24 La. Ann. The Interstate Commerce Commission has now held itself empowered, by the Congressional legislation controlling it, to settle the conflicting rules on the subject by a provision in the prescribed uniform bills of lading,64 and the following is part of section 1 of the conditions on the back of the domestic bill. "The carrier's liability shall be that of warehouseman, only, for loss, damage, or delay caused by fire occurring after the expiration of the free time allowed by tariffs lawfully on file (such free time to be computed as therein provided) after notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination, or tender of property upon consignee's order, has been made.” 65 § 1105. Initial carrier made liable by statute for default of subsequent carrier. It has been customarily provided in bills of lading for through transportation that the carrier should not be liable for loss or damage which did not occur on its own line. The Carmack amendment to the Interstate Commerce Acts,66 however, made the original carrier directly liable for any loss on a through interstate shipment, and invalidated any agreement or regulation to the contrary.67 It is still possible, however, for any carrier but the initial carrier to take advantage of a provision in the contract or in the common law limiting its liability to losses occurring on its own line.68 333, 335; Moses v. Boston & Maine R. Co., 32 N. H. 523; Welch v. Concord R., 68 N. H. 206; Winslow v. Vermont & Mass. R., 42 Vt. 700, 705; Berry v. West Va. & P. R. Co., 44 W. Va. 538, 30 S. E. 143, 67 Am. St. 781; Backhaus v. Chicago & N. W. Ry. Co., 92 Wis. 393, 395, 66 N. W. 400. 64 In the Matter of Bills of Lading, 52 Interstate Com. Com. 671, 695–702. 65 The condition in the Uniform Export Bill is identical except that the last clause reads "after placement of the property for delivery at the port of export, or tender of delivery of the property to the party entitled to reIceive it has been made." 66 Act of June 29, 1906. 67 See Atlantic R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 Sup. Ct. 164, 31 L. R. A. (N. S.) 7. 68 Southern Ry. Co. v. Lewis & Adcock Co., 139 Tenn. 37, 201 S. W. 131, L. R. A. 1918 C. 976. See also Southern Ry. Co. v. Morris, 147 Ga. 729, 95 S. E. 284; Gillikin v. Norfolk & Southern R., 174 N. Car. 137, 93 S. E. 469. |