1. The common law liability of a common carrier for the safe
carriage of goods may be limited and qualified by special
contract with the owner, provided such special contract do
not attempt to cover losses by negligence or misconduct.
Thus, where a contract for the transportation of
cotton
from Memphis to Boston was in the form of a bill of lading
containing a clause exempting the carrier from liability for losses
by
fire, and the cotton was destroyed by fire, the
exemption was held sufficient to protect the carrier, the fire not
having been occasioned by any want of due care on his part.
2. Where a deposition is taken upon a commission, the general
rule is that all objections to it of a formal character, and such
as might have been obviated if urged on the examination of the
witness, must be raised at such examination or upon motion to
suppress the deposition. It is too late to raise such objections
for the first time at the trial.
Thus, where a copy of a bill of lading was annexed to the answer
of a witness examined on a commission and no objection to the copy
was taken at the examination or by motion to suppress afterwards,
it was held that the objection that the original was not produced
or its loss shown came too late at the trial.
Trout & Son shipped at Memphis, on the Mississippi, a large
quantity of cotton on board a steamer belonging to the Illinois
Central Railroad Company, common carriers, which by the terms of
the bill of lading was to be delivered at Boston, Massachusetts,
the consignees paying $4.75 per bale, "
fire and the
unavoidable dangers of the river
only excepted." The bill
of lading which referred to the cotton as shipped by
"Trout
& Son" was signed in four, two copies being given to Trout
& Son, of which they retained one, forwarding
Page 70 U. S. 108
the other to the York Company in New England, for whom the
cotton was intended. In the course of the transit, the cotton was
destroyed by fire.
The company now sued the carriers in the Circuit Court of
Illinois for damages. Trout was examined on
a commission,
and having stated that his firm were but agents of the York Company
and that the shipment was made on its account as owner, proved the
fact and contract of shipment (which last he stated was in the form
of a bill of lading) and the value of the cotton. But he did not
produce on his examination in chief any original or copy of the
bill itself.
The carriers, who wished to rest their case on the fire clause
in the bill, inquired of him on cross-interrogatories whether one
or more of the bills had not been delivered to him, and directed
him, if one had, to annex "the same or a certified and proved copy
to his deposition, and to let the same be properly
identified
by the commissioner in his return." The witness answering that
one of the bills had been delivered to him, annexed "a true copy of
it from his books." The fire clause appeared in it, though the
witness stated that the cotton was shipped on the steamer before
the bills were signed, that he had not examined the bills, that
"his attention was not called to the fire clause," and that his
firm had no authority to ship for their principals with that
exemption.
On the trial, the plaintiff
not having made
objection during the execution of the commission nor by motion to
suppress, objected to the reading of the answers to the
cross-interrogatories which showed a
copy of the bill, the
ground of the objection being that the contract was shown to be in
writing and that no foundation had been laid for secondary evidence
either by notice to produce the original bill or by evidence of its
loss. But the court overruled the objection.
The defendant had judgment. On error, four objections were made
to it here.
1. Because it was doubtful whether as common carriers the
defendants could exempt themselves from risks by fire.
Page 70 U. S. 109
2. Because if they could, still that Trout & Son, who were
really but agents of the York Company, could not give their assent
to such exemption.
3. Because if they had given such assent, no consideration had
been paid by the company, in a reduced rate of fare or otherwise,
for this restriction of the carrier's common law obligation.
4. Because the
copy of the bill of lading, in the
absence of notice to produce the original or of proof of its loss,
was improperly allowed to be read.
Page 70 U. S. 111
MR. JUSTICE FIELD delivered the opinion of the Court.
The right of a common carrier to limit his responsibility by
special contract has long been the settled law in England. It was
the subject of frequent adjudication in her courts, and had there
ceased to be a controverted point before the passage of the
Carrier's Act of 1830.
In this country, it was at one time a subject of much
controversy whether any such limitation could be permitted. It was
insisted that, exercising a public employment, the carrier owed
duties at common law, from which public policy demanded that he
should not be discharged even by express agreement with the owner
of the goods delivered to him for transportation. This was the
ground taken by Mr. Justice Cowen of the supreme court of New York
in
Cole v. Goodwin, [
Footnote 1] and although what that learned judge said on
this point was mere
obiter, as the question presented was
not upon the effect of a special agreement, but of a general
notice, it appears to have been adopted by a majority of the court
in the subsequent case of
Gould v. Hill. [
Footnote 2] But from this doctrine that court
has since receded, and in a recent decision, the Court of Appeals
of that state has affirmed
Page 70 U. S. 112
the right of the carrier to stipulate for a limitation of his
responsibility. [
Footnote 3]
The same rule prevails in Pennsylvania; it has been asserted in
Ohio and in Illinois, and, it is believed, in a majority of the
other states, and in
New Jersey Steam Navigation Co. v.
Merchants' Bank it received the sanction of this Court.
[
Footnote 4]
Nor do we perceive any good reason, on principle, why parties
should not be permitted to contract for a limited responsibility.
The transaction concerns them only, it involves simply rights of
property, and the public can have no interest in requiring the
responsibility of insurance to accompany the service of
transportation in face of a special agreement for its
relinquishment. By the special agreement, the carrier becomes, with
reference to the particular transaction, an ordinary bailee and
private carrier for hire.
The law prescribes the duties and responsibilities of the common
carrier. He exercises in one sense a public employment, and has
duties to the public to perform. Though he may limit his services
to the carriage of particular kinds of goods, and may prescribe
regulations to protect himself against imposition and fraud, and
fix a rate of charges proportionate to the magnitude of the risks
he may have to encounter, he can make no discrimination between
persons or vary his charges from their condition or character. He
is bound to accept all goods offered within the course of his
employment, and is liable to an action in case of refusal. He is
chargeable for all losses except such as may be occasioned by the
act of God or the public enemy. He insures against all accidents
which result from human agency although occurring without any fault
or neglect on his part, and he cannot by any mere act of his own
avoid the responsibility
Page 70 U. S. 113
which the law thus imposes. He cannot screen himself from
liability by any general or special notice, nor can he coerce the
owner to yield assent to a limitation of responsibility by making
exorbitant charges when such assent is refused.
The owner of the goods may rely upon this responsibility imposed
by the common law, which can only be restricted and qualified when
he expressly stipulates for the restriction and qualification. But
when such stipulation is made and it does not cover losses from
negligence or misconduct, we can perceive no just reason for
refusing its recognition and enforcement.
We do not understand that the counsel of the plaintiff in error
questions that the law is as we have stated it to be. His positions
are that the agents of the plaintiff at Memphis, who made the
contract with the Illinois Central Railroad Company, were not
authorized to stipulate for any limitation of responsibility on the
part of that company, and that no consideration was given for the
stipulation made.
The first of these positions is answered by the fact that it
nowhere appears that the agents disclosed their agency when
contracting for the transportation of the cotton. So far as the
defendant could see, they were themselves the owners.
The second position is answered by the fact that there is no
evidence that a consideration was not given for the stipulation.
The company probably had rates of charges proportioned to the risks
they assumed from the nature of the goods carried, and the
exception of losses by fire must necessarily have affected the
compensation demanded. Be this as it may, the consideration
expressed was sufficient to support the entire contract made.
The objection urged to the introduction of the copy of the bill
of lading annexed to the deposition of the witness Trout, was
properly overruled. The deposition was taken upon a commission, and
in such cases the general rule is that all objections of a formal
character, and such as might have been obviated if urged on the
examination of the witness, must be raised at such examination, or
upon motion
Page 70 U. S. 114
to suppress the deposition. The rule may be different in some
state courts, but this rule is more likely than any other to
prevent surprise and secure the ends of justice. There may be cases
where the rule should be relaxed, as where the deposition is
returned at so brief a period before the trial as to preclude a
proper examination and prevent a motion to suppress. In this case,
there was no occasion for any such relaxation of the rule, and had
the objection been taken before the trial -- either at the
examination of the witness or on a motion to suppress -- to the
proof of the copy without producing the original or showing its
loss, the opposite party would undoubtedly have secured the
production of the original, if in existence, or, if it be lost or
destroyed, been prepared to account for its absence.
Judgment affirmed.
[See infra, p. <|70 U.S. 175|>175,
Blackburn
v. Crawfords, 4 -- REP.]
[
Footnote 1]
19 Wendell 251.
[
Footnote 2]
2 Hill 623.
[
Footnote 3]
Parsons v. Monteath, 13 Barbour 353;
Moore v.
Evans, 14
id. 524;
Dorr v. New Jersey Steam
Navigation Co., 11 N.Y. 486.
[
Footnote 4]
47 U. S. 6 How.
382;
Atwood v. Delaware Transportation Co., 9 Watts 89;
Camden & Amboy Railroad Co. v. Baldauf, 16 Pa.St. 67;
Verner v. Sweitzer, 32
id. 208;
Kitzmiller v.
Van Rensselaer, 10 Ohio 64;
Illinois Central R. Co. v.
Morrison, 19 Ill. 136;
Western Transportation Co. v.
Newhall, 29
id. 466.
