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the twelve to fifteen States of this Union, to which the Hudson River is the great thoroughfare connecting them with the seaports of the Atlantic, and the trade of foreign countries.

Intimately connected with the latter branch of this subject, are the delays and dangers in the navigation of the upper part of the Hudson River. The following estimates on this point, extracted also from the same article, relate solely to the obstructions within a few miles of Albany, known as the Overslaugh. Other shoals, of less magnitude, exist in this portion of the river. Enough is exhibited in what follows, to show the urgency of the demand upon the General Government for aid in improving the navigation. No other public highway in the Union can be more strictly national in its character. No other claim upon the public treasury can be stronger, or more just.

DETENTIONS AT THE OVERSLAUGH.

One of the oldest and most experienced forwarding merchants of Troy, a gentleman entitled to the highest confidence, estimates, that by the shoal water on the bars known as the Overslaugh, freight barges, towed by steam, are detained an average of one tide, or twelve hours each trip; and that sailing vessels are obliged to lay there an average of three days, each way, making six days in each trip during the season. He estimates the loss or

damage for such detentions at $20 per day for barges, and $10 for sail vessels. These estimates appear to be reasonable and moderate, and worthy of adoption.

Referring, then, to the statistics of 1844, before given, and adopting the number of vessels of that date, gives

780 trips of freight barges, 12 hours' detention each trip, equals 380 days, at $20 is...

$7,800

1,944 trips of sailing vessels, 6 days' detention each trip, is 11,664 days, at $10 is...

116,640

Amount.....

$124,440

Add for the detentions to the Albany navigation, upon the proportion of its estimated tonnage, of 1,400,000 tons..

129,049

Annual loss by detentions...

$253,489

This, it will be perceived, refers only to the navigation of freight vessels, as they were in 1844 and yet amounts to no less a sum than a quarter of a million of dollars. When we add to this the increase of business, and the cost of these delays to the numerous passage and towing steamers, with which the river is literally and daily thronged, and the losses and sacrifices of the hundreds of thousands of passengers they transport, which may be safely estimated at an equal, if not a larger amount, we have the enormous sum of half a million of dollars, annually suffered by this trade from this cause alone. This is a tax imposed upon all the people in the several States, concerned in this navigation, whether directly, or remotely connected with it. An appropriation by government, to the amount of one year's loss, would go far to remove, permanently, all the obstructions causing it.

VOL. XXI.—NO. III.

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Art. VI. COMMON CARRIERS.*

THERE is scarcely any department of the law which is more important, at the present day, than that relating to obligations of those to whom are entrusted the property of individuals for transportation from place to place, and yet we are surprised to learn, from the preface of Mr. Angell to the volume before us, that since the work of Jeremy, in 1815, and that of Jones, in 1827, no book has been published which was devoted entirely to its exposition. The author remarks, that "the late learned Justice Story, in his well-known and highly-valued Commentaries on the Law of Bailments,' has indeed treated upon the subject, but then he has done so by considering it only as a branch of his general subjects; and of course his exposition of the law of carriers is not nearly so comprehensive and satisfactory as it would have been, had he considered it independently, or by itself."

To a general reader, not a lawyer, there is much in the cases, on this subject, to interest. Scarce an accident occurs on any of our waters, whether by explosion, fire, or collision, that the circumstances are not all subsequently reviewed in the courts, upon a suit brought to recover the value of goods or specie, sacrificed by alleged negligence on the part of the carrier. In a recent case in the Superior Court of the United States, growing out of the loss of the Lexington, by fire, in Long Island Sound, Mr. Webster drew a graphic and impressive picture of the scene on board the burning boat, the frightful shrieks of the passengers, calling to their friends and relations, and the crew, appalled by the awful scene, losing all presence of mind, and becoming themselves the first victims to the catastrophe.

The general obligations of proprietors of public conveyances, in this respect, are pretty well understood; but there is great diversity in the decisions as to how far a carrier may limit his liability by general notices.

"There never have been many questions, and but few, comparatively, are likely to arise, upon the interpretation of positive or express contracts entered into for the transportation of goods. Many of the questions which have, of late years, in England, engaged the attention of courts, have been upon implied contracts, or upon the validity, obligation, and effect of the printed or written NOTICES given by common carriers, in the course of their public employment, and posted up and distributed, which announced that the carrier would not be accountable for property of more than a specified value, unless the owner had insured and paid an additional premium for it.

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"It is generally admitted, in respect to the subject of notices, first, that a carrier's general run of goods may be estimated, and notice given that he will not be answerable for those of a different description, as jewelry, money, &c., of extraordinary value; secondly, that far the greater risk attending goods of such a description, and the greater care, required a higher consideration, partly as hire, and partly as insurance, should be given. The English decisions, for the most part, have gone only to this extent."

Two of the English cases, however, go so far as to permit a common carrier, without an express contract, and at his own discretion, by a mere general notice, to put an absolute limit on the public duty and responsibility which are imposed upon him by public policy.

In England and the United States, the doctrines of these cases, as put

• A Treatise on the law of Carriers of Goods and Passengers by Land and Water. By Joseph K. Angell, pp. 647, with appendix. Boston: Charles C. Little & James Brown. London: Stevens & Norton.

forth by Lord Ellenborough, have been critically examined, in a number of instances.

In Hollister vs. Nowlen, in the Supreme Court of New York, it was expressly decided, in 1838, that stage proprietors, and other common carriers, could not restrict their common law liability by a general notice, that the Baggage of the passengers is at the risk of the owners."

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"The same point was decided at the same term of the court, in the case of Cole vs. Goodwin, in which the whole doctrine of notices generally, is elaborately and learnedly discussed, by Justice Cowen."

The same doctrine has been recognized in Ohio, Georgia, Connecticut, New Hampshire, Massachusetts, Maine, Pennsylvania, and in the Supreme Court of the United States. In Maine, the decision is as follows:—

"Unless a common carrier by water limits his responsibility by the terms of a bill of lading, or otherwise, he cannot escape from the obligation to deliver a shipment according to its destination, unless prevented by the act of God, or the public enemy. A loss of the property, by accidental fire, furnishes no sufficient excuse; although the carrier might be excused, if the non-delivery was caused by lightning."

The case of "the New Jersey Steam Navigation Company us. The Merchants' Bank," better known as the case of the Lexington, in the Supreme Court of the United States, is one of the most recent, and is frequently referred to by Mr. Angell, in the course of his work.

"It appeared that W. T. Harnden was engaged in the business of carrying, for hire, packages of goods, specie, and bundles of all kinds, for any persons who would employ him, to and from the cities of New York and Boston; and that his mode of conveying them was the established public conveyances between those cities. That, in the exercise of his employment, he had entered into an agreement with the above-mentioned company, by which, in consideration of a certain sum per month, he was to have the privilege of transporting, in their steamers, a wooden crate, of given dimensions, subject to these conditions:-1. The crate, with its contents, to be, at all times, exclusively at the risk of the said Harnden, and the company not, in any event, to be responsible, either to him or to his employers, for the loss of any goods, wares, merchandise, money, &c., to be conveyed or transported by him, in said crates, or otherwise, in the boats of said company. 2. That he should annex to his advertisements published in the public prints, the following notice, which was also to be annexed to his receipt of goods or bills of lading. Take notice: William T. Harnden is alone responsible for the loss or injury of any articles committed to his care; nor is any risk assumed, nor can any be attached to the proprietors of the steamboats in which his crate may be, and is transported, in respect to it, or its contents, at any time.'" The New Jersey Company also published the following notice :

"Notice to shippers and consignees: All goods, freight, baggage, bank-bills specie, or any other kind of property taken, shipped, or put on board the steamers of the New Jersey Steam Navigation Company, must be at the risk of the owners of such goods, freight, baggage, &c.; and all freight, goods, wares, and merchandise, or any other property landed from the steamers, if not taken away from the wharf without delay, will be put under cover, at the risk of the owners of said goods, freight, baggage, &c., in all respects whatsoever."

Harnden was employed by the Merchants' Bank, to collect checks and drafts on the New York banks, and send the money to Boston. He collected $18,000, and put it into the crate, on board the Lexington, on the 13th of January, for the purpose of conveyance to the Merchants' Bank. That

evening, the vessel, with nearly all on board, was destroyed by fire, an event not soon to be forgotten by those who read the accounts at that time.

The bank libelled another steamer of the company for the $18,000.

The Court decided, 1st. That the suit was properly brought by the Bank, instead of Harnden, who was to be considered in law as the agent or servant of the owners, and the possession of the agent is the possession of the owner, though it would be otherwise in a court of law, if the contract was under seal.

2d. They remark

"We lay out of the case, the notices published by the steamboat company, seeking to limit their responsibility, because—

1. The carrier cannot, in this way, exonerate himself from duties which the law has annexed to his employment; and, 2. The special agreement with Harnden is quite as comprehensive in restricting the obligation, as any of the published notices.

"A question has been made, whether it is competent for the carrier to restrict his obligation, even by special agreement. It was very fully considered, in the case of Gould and others vs. Hill and others, (2 Hill 623,) and the conclusion arrived at that he could not.

"As the extraordinary duties annexed to his employment concern only, in the particular instance, the parties to the transaction, involving simply rights of property, the safe custody and delivery of the goods, we are unable to perceive any well-founded objection to the restriction, or any stronger reasons forbidding it than exist in the case of any other insurer of goods, to which his obligation is analagous, and which depends altogether upon the contract between the parties. "The owner, by entering into the contract, virtually agrees that, in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment; but as a private person, who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or negligence. The right thus to restrict the obligation is admitted in a large class of cases founded on bills of lading and charter parties, where the exception to the common law liability (other than that of inevitable accident) has been, from time to time, enlarged, and the risk diminished, by the express stipulation of the parties. The right of the carrier thus to limit his liability in the shipment of goods, has, we think, never been doubted. But admitting this right, it by no means follows that he can do so by any act of his own. He is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself, without the assent of the parties concerned. And this is not to be implied from a general notice to the public, limiting the obligations which may or may not be assented to. He is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal. And we agree with the court in the case of Hollister vs. Nowlen, that, if any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist on his rights, and the duties of the carrier, as it is that he assented to their qualification. The burden of proof lies on the carrier, and nothing short of an express stipulation by parol, or in writing, should be permitted to discharge him from duties which the law has annexed to his employment.

"The special agreement, in this case, under which the goods were shipped, provided that they should be conveyed at the risk of Harnden; and that the respondents were not to be accountable to him or to his employers, in any event, for loss or damage. We think it would be going farther than the intent of the parties, upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for willful misconduct, gross negligence, or want of ordinary care, either in the sea-worthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands."

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"The respondents having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care, or by gross negligence, lies on the libellants, which would be otherwise, in the absence of any such restriction."

After an examination of the evidence, the court came to the conclusion that there was great want of care, amounting to gross negligence, and that the respondents were therefore liable for the loss of the specie, notwithstanding the special agreement.

We have given thus much of this case, which has been reported at great length, because it must be considered as an important authority hereafter.

"In Newbern vs. Just it was affirmed by Bart, Chief Justice, that it had been decided over and over again, that notice does not protect a carrier against negligence. A notice, therefore, applies only to the responsibility of the carrier as an insurer, and does not exempt him from the consequences of his own negligence, or from the negligence of his servants and agents. Neither by public notice, seen and read by his employer, nor even by special agreement, can the carrier exonerate himself from the consequences of gross neglect."

"What constitutes gross neglect or gross negligence, and whether there is any real distinction between negligence and gross negligence, has been a matter of judicial doubt; but the question has been considered as settled by the case of Wyld vs. Richford, in which Mr. Baron Parke says-The weight of authority seems to be in favor of the doctrine, that, in order to render a carrier liable after notice, it is not necessary to prove an abandonment of that character, or an act of willful misconduct, but that it is enough to prove an act of ordinary negli gence.''

If the want of fair dealing, by an improper concealment of the nature and value of the goods, has been the cause of negligence in the carrier, of which he would otherwise have not been guilty, the person sending the goods cannot complain of the consequences of his own act. If the owner adopts a disguise for his box, which is calculated to prevent the carrier from taking the particular care of it which the real nature and value of its contents demand, he cannot recover in case of loss, even in the case of gross negligence, beyond the value of the box itself. In the case of the Orange County Bank vs. Brown, a traveler's trunk contained $11,250, and the plaintiff sought to recover it, as a part of the baggage lost. It was held that this did not fall within the commonly received import of the term "baggage," and that an attempt to have it carried free of reward, under that name, was an imposition upon the carrier; that he was thereby deprived of his just compensation, besides being subjected to unknown hazards.

If a carrier takes the goods beyond the place of destination, and they are lost, or deliver them to the wrong person, or sends them by a different conveyance from that implied in the undertaking, or in a different manner, and they are lost, he is liable for the misfeasance, although otherwise he would be exonerated by the terms of the notice.

Without adverting to the many other questions which arise in connection with notices, we shall give Mr. Angell's summary of the evidence of notice, it being remembered that the only notice which a carrier can give, is one which limits, without entirely exempting him from responsibility; as, for instance, that he will not be responsible for goods above the value of a certain sum, unless they are entered as such, and paid for accordingly.

"In all cases where the notice cannot be brought home to the person interested in the goods, directly or constructively, it is a mere nullity; and the burden of

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