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of another road, and it is the custom in such cases to notify the other road of
the delivery of the car, its destination, and name of the consignee, and it fails
to give such notice, the company is liable for delay in transportation resulting
from failure to give the notice.'*^ But where, in an action against an initial car-
rier for damages to a car load of potatoes by delay in transportation, the evi-
dence indicated that by far the greater part of the loss occurred through the
miexplained delays of the carriers other than defendant, it could not be made
liable as an insurer for the total loss, because its agent, on transferring the po-
tatoes to the next connecting carrier, neglected to add to the waybill a direction
to notify a particular person of the arrival of the car at its destination, whereby
the delay was extended three days, before such person received notice of the
arrival of the car, when on inspection he found them so badly decayed that he
was compelled to refuse them.^^

§ 3622. Delay Caused by Carrier's Failure to Feed a.nd Water Stock.

■ — In the absence of any custom to the contrary, the carrier last receiving a
through shipment of live stock during the prescribed period for feeding and
watering must feed and water the stock; but, where by custom such duty is
undertaken by the initial carrier before delivery to the connecting carrier, and
it fails to perform the duty, whereby the stock is delayed in shipment, resulting
.in loss, the initial carrier is responsible therefor, even though the injury^ does
not develop until the stock has passed into the possession of the connecting car-
rier, or until the stock has arrived at destination.^*^

§§ 3623-3628. Delay of the Succeeding, or of a Subsequent, Car-
rier — § 3623. Liability in Absence of Statute, Contract, or Traffic
Agreement. — The initial carrier is not liable for the negligence of the succeed-
ing, or of a subsequent, carrier in delaying a shipment of freight,^^ in the ab-

45. Fox T'. Boston, etc., R. Co., 148 49. Starks Co. v. Manistee, etc., R. Co.,
Mass. 220, 19 N. E. 222, 1 L. R. A. 702. 131 N. W. 99, 165 Mich. 518.
Compare Michigan Cent. R. Co. v. Bur- 50. Failure to feed and water stock.—
rows, ?>?, Mich. 6. Wisecarver 7'. Chicago, etc., R. Co., 141

46. Failure to conform to shipper's di- Iowa 121, 119 N. W. 532.

rections.— Michigan, etc., R. Co. z\ Day, 51. Rule as to liability of initial carrier

20 111. 375, 71 Am. Dec. 278. for delay of the succeeding, or of a sub-

47. Agreement to forward shipment to sequent, carrier. — Central R., etc., Co. v.
destination.— Colfax Mountain Fruit Co. Skellie, 86 Ga. 686, 12 S. E. 1017; Carter
r. Southern Pac. Co. (Cal.), 46 Pac. 668. v. Chicago, etc., R. Co., 146 Iowa 201,

48. Failure to give customary notice 3 25 N. W. 94, so holding as to a ship-
to succeeding carrier. — Melbourne v. ment of live stock; Meredith v. Seaboard,
Louisville, etc., R. Co., 88 Ala. 443, 6 So. etc.. R. Co., 137 N. C. 478, 50 S. E. 1.
762. Where one carrier receives goods for



3277



RIGHTS, DUTIES AND LIABILITIES.



§ 3623



sence of a statute imposing such liability /">- or of a contract, express or implied, ^^
or of a partnership or traffic agreement which makes the two lines practically
one.^^ Where an initial carrier delivers freight to the connecting carrier within
a reasonable time, such initial carrier is not liable for a delay subsequently oc-
curring.^^ Proof of negligent delay by a subsequent carrier, and that without
it the injury would have been avoided, is a complete answer to an action seeking
to hold the first carrier responsible, by reason of his delay, for injun^ to fruit
by freezing while in custody of such subsequent carrier.^^ But it has been held
Ihat recover}' may be had of the initial carrier for injury to perishable goods,
shipped over connecting lines, caused by negligent delay in transportation,
though each carrier was guilty of such delay ; there being no evidence that the
damages were caused solely by the delay of the subsequent carriers.^" xA-u agent
of an initial carrier of live stock has no authority to assure a shipper that his
check will be accepted by the last carrier at the place of destination, and there-
fore such initial carrier is not liable for delay in getting the stock from its cars,
occasioned by refusal of the last carrier to accept the check. ^^ Where goods
are routed over a particular railroad, and by mistake the initial carrier routes
them over another which delays them in transit, the initial carrier is liable with
the latter jointly for the delay. ^^ The initial carrier in such a case is alone lia-
ble for expenses incurred by the consignee in removing the goods where the ex-
penses Vv'ould not have been incurred if the goods were rightly routed.'''"



transportation part of the way to des-
tination, and delivers the goods at the
end of its carriage to another carrier for
carriage to destination, the contract is
several; and there may be a suit only
against the carrier that is liable for de-
lay of transportation. Delaney v. United
States Exp. Co., 70 \V. Pa. 502, 74 S. E.
5i:?.

52. See post, "Liability Imposed by
Statute," § 3624.

53. Carter v. Chicago, etc., R. Co., 146
Iowa 201, 12.5 X. W. 94; Meredith v. Sea-
board, etc.. R. Co., 137 N. C. 478, 50 S.
E. 1.

In an action against a carrier for dam-
ages for failure to deliver peaches in
time, whereby they were damaged,
plaintiffs alleged that defendant con-
tracted to deliver the peaches in New
York, which was denied by defendant,
which claimed that its agreement was
to deliver to a connecting line, and the
evidence was conflicting. The court in-
structed that if there was no contract
defendant's liability would depend on the
•ommon law, and it would be liable if,
I'y reason of unreasonable delay in for-
warding the peaches, they reached New
^'ork in a damaged condition. Held,
that the instruction was erroneous, since,
in the absence of a contract to deliver
in New V'ork, defendant would only be
liable for failure to deliver in good con-
dition and within a reasonable time to
til'- connecting carrier. Central R.. etc.,
Co. V. Skellic, 8« Ga. GSG, 12 S. E. 1017.

64. Carter v. Chicago, etc., R. Co., 146
I'wa 201. i:,'.-, X. W. ')}; Rocky Mount
Mills 7'. Wilmington, etc., R. Co.. 119 X.
C. 093, 2.-. S. E. 8.'j4, .',0 Am. St. Rep. 682;



Meredith v. Seaboard, etc., R. Co., 137
N. C. 478, 50 S. E. 1. See post, "Effect
of Traffic Arrangements between Car-
riers," § 3633.

55. Watson v. Atlantic, etc., R. Co., 59
S. E. 55, 145 N. C. 236.

Where no association exists, and no
special contract is made, and goods are
delivered to a railroad for transportation
to a place beyond its terminus, the rail-
road discharges its duty by safely con-
veying the goods over its own road and
delivering them to the connecting road
within a reasonable time. Meredith v.
Seaboard, etc., R. Co., 50 S. E. 1, 137 N.
C. 478.

In the absence of a through contract
for the shipment of goods destined be-
yond the carrier's line, it is the carrier's
duty to deliver the goods at its terminus
to the connecting carrier in good order
and in due time and thereupon its liabil-
ity ceases. Central R., etc., Co. v. Skel-
lie, 86 Ga. 686, 12 S. E. 1017; McElveen
V. Southern R. Co., 109 Ga. 249, 34 S. E.
281, 77 Am. St. Rep. 371; Rome R. Co.
V. Sullivan, etc., Co., 25 Ga. 228.

56. Michigan Cent. R. Co. v. Rurrows,
33 Mich. 6.

57. St. Louis, etc., R. Co. v. CooHdge,
83 S. W. 333, 73 Ark. 112, 67 L. R. A.
555, 108 Am. St. Rep. 21.

58. Louisville, etc., R. Co. r'. I'mnett,
76 S. W. 408. 25 Ky. L. Rep. 831.

59. Liability where initial carrier routes
goods over wrong road. Illinois C\nt. R.
Co. 7'. llo])i<iiisville Canning C'o. ( lv}\),
110 S. \S. 758.

60. Illinois Cent. R. Co. v. Ilopkins-
ville Canning Co. (Ky.), 116 S. W. 758.



§§ 3624-3625



CARRIERS.



61/\



§ 3624. Liability Imposed by Statute. — Under a statute making con-
necting carriers agents of each other, and making either liable for all damages
for delay in delivery, caused by any of them, the fact that a part of a delay in
delivering freight occurred while it was in the possession of a terminal com-
pany at destination, will not relieve the delivering carrier from liability though
such carrier charged and collected for delivery at the place of delivery and
actually delivered it there/'^

§ 362 5. Liability under Contract. — A carrier contracting to deliver freight
at a point beyond its own line is liable for unreasonable delay in transportation
or delivery caused by the fault of a connecting carrier.'"'- A railroad company
issuing a bill of lading marked, "Prompt shipment required," assumes respon-
sibility for delay of a connecting carrier. "^^

What Constitutes a Contract for Through Transportation. — Certain
contracts between carriers and shippers which ha\e been construed by the courts
to determine whether they constitute contracts for through transportation be-
yond the carrier's line will be found in the appended note.*'^ The marks on



61. Liability of initial carrier under
South Carolina statute. — Farmers', etc.,
Cotton Co. V. Atlantic, etc., R. Co.. 89
S. C. 398, 71 S. E. 991, construing- Act
May 13._ 1903 i2A St. at Large, p. 1).

62. Liability of carrier under contract
for through transportation. — Rome R.
Co. V. Sullivan, etc., Co., 25 Ga. 228; S.
C, 32 Ga. 400; Savannah, etc., R. Co. v.
Pritchard, 77 Ga. 412, 1 S. E. 201, 4 Am.
St. Rep. 92; Central R. Co. v. Dwight
]\Ifg. Co., 7.5 Ga. 609; Central R., etc.,
Co. V. Georgia Fruit, etc., Exch., 91 Ga.
389, 17 S. E. 904: Aultman Engine, etc.,
Co. V. Chicago, etc., R. Co., 143 Iowa 561,
121 N. W. 22.

Where a carrier issues a bill of lading
for the transportation of goods to a des-
tination beyond its own line, it binds
itself to deliver at the point of destina-
tion, and is liable for delays of a connect-
ing carrier, unless there be some limita-
tion in liability in the bill of lading. Car-
ter V. Chicago, etc., R. Co., 146 Iowa 201,
125 X. \V. 94.

Where the defendant carrier has re-
ceived freight under a special through
contract of shipment, to be transported
to destination over other lines, and not
having in any manner limited its legal
liability, it is bound, by itself or com-
petent agents, to deliver the goods at
destination within a reasonable time,
and is liable for damages resulting from
the negligence of such agents in failing
to so deliver as it would be for such
negligence upon its own line. Central
R., etc., Co. V. Georgia Fruit, etc., Exch.,
91 Ga. 389, 17 S. E. 904.

Where a carrier has undertaken to
transport goods of a shipper from one
point to another, the fact that a delay
in their delivery was caused by the fault
of another carrier, by whom a part of
the transportation was performed, but
who has no contractual relation with the
shipper, is no defense to an action against
the first carrier for damages for the de-



lay. St. Louis, etc., R. Co. v. Edwards,
78 Fed. 745, 24 C. C. A. 300.

Where a railroad companj^ contracts
to convey goods over its own and con-
necting lines, and to deliver them at their
destination, at a place beyond its ter-
minus, within a certain time, it is liable
to the shipper for losses caused by de-
lays in transportation over the connect-
ing roads. Pereira v. Central Pac. R.
Co., 66 Cal. 92, 4 Pac. 988.

When a railroad company contracts
to ship stock to a given point, it is bound
to forward and deliver it at that point
within a reasonable time. It will not be
released by a deliver}^ to another con-
necting road, but will still be liable for
any unreasonable delay, although the
same is caused by the crowded condition
of such road. Toledo, etc., R. Co. v.
Lockhart. 71 111. 627.

Where a railroad company contracts
to carry freight from St. Paul to Chi-
cago, its obligation as a common carrier
does not cease at St. Paul, merely because
that is the eastern terminus of its line,
so as to relieve it from responsibility
for unreasonably delaying the transpor-
tation of the freight. Baldwin v. Great
Northern R. Co., 83 N. W. 986, SI jNIinn.
247, 51 L. R. A. 640, 83 Am. St. Rep. 370.

63. Liability under bill of lading marked
"prompt shipment required." — Salley^ v.
Seaboard, etc., Railwav, 76 S. C. 173, 56
S. E. 782.

64. Agreement held a contract for
through transportation. — A railroad ex-
tending from Atlanta to West Point,
Ga.. received at Atlanta goods consigned
to Dallas Tex., and fixed by contract
with the consignor the rate of freight for
the whole distance, apportioning a part
of the same among the carriers, itself in-
cluded, to Xew Orleans, and assessing
the balance for transportation beyond
Xew Orleans. Held, that the contract
was a through contract, and l)ound the
initial company' for performance to Dal-



3279



RIGHTS, DUTIES AND LIABILITIES.



§§ 3625-3625



goods shipped by a carrier to be delivered beyond the terminus of its hne refer
to their ultimate destination, but are not evidence of a contract to carry beyond
its line which will make it liable for delay caused by a succeeding carrier.'^'^

§ 3626. Delay Resulting from Succeeding Carrier's Inability to Re-
ceive or Forward Goods. — Failure of a carrier contracting to transport goods
to a designated point to forward and deliver them at such point within a rea-
sonable time will render it liable, irrespective of its knowledge or ignorance that
a connecting carrier could not forward the goods without unreasonable delay .^^
A\'here, while goods received by the first carrier are in transit, the connecting
line notifies it that it can not receive the goods and transport them to their desti-
nation because of a blocfc in freight, this wall not relieve the first from liability
for damages caused by the delay, where it fails to notify the shipper and give
him an oi)portunity to dispose of the property or take measures for its preserva-
lion.''" The initial carrier of live stock is bound to know whether the connect-
ing line is prepared to continue the transportation at the point of connection



las, the point of destination, notwith-
standing the named rate was made sub-
ject to change without notice, the efifect
being to limit the agreed special rate to
the particular shipments with reference
to which the rate was established, but
not to allow any change, either along or
at the terminus of the route, which
would affect these shipments. Atlanta,
etc.. R. Co. 7: Texas Grate Co., 81 Ga.
fine. 9 P. H. t)Oo.

Agreements held not to be contracts
for through transportation. — A contract
for the shipment of live stock was made
by using a printed blank. Following an
acknowledgment of the receipt of the
stock by the carrier were the printed
words. "To be delivered at * * *,"
and here was inserted in writing the
words, "Consigned to T., B. & Co., Chi-
cago, 111." The further agreement was
expressed that, where stock should pass
over more than one road to reach its
destination, the company upon whose
road any dama.ge should occur should
alone be liable therefor. Held, that this
was not an a.greement on the part of the
carrier to transport the stock to Chi-
cago, if in fact its line of transportation
did not extend to that point, and the first
carrier is not liable for damage caused
by delay occurring on the line of a suc-
ceeding carrier. Ortt v. Minneapolis,
etc.. R. Co., :{0 Minn. :U)r,. .31 TI. W. 519.

Where a contract of shipment l)etwcen
plaintiff and defendant railway company
provided. "Whereas, the said R. has
this day shipped car of hogs, to !)c
carried by the R., N., 1. & P.. R. R. from
Irvine, Ky. to Richmond (both points on
its own line of road), aiul by it, ?s agent
of sliipjuT, to be forwarded tf) G. & ]'..,
at ('inciniiati. <')liio, on same terms as
this contract," ;;n instruction authorizing
the ji'ry to (ind against the defendant
for any delay, or tlamage to tlie liogs,
after the delivery rtf tlie car containing
the hogs to the connecting line of an-
"ther railroad comji.iny at Uidimond, is



error. Richmond, etc., R. Co. t'. Rich-
ardson, 4.1 S. W. 46:), 19 Kv. L. Rep.
149,5.

65. Marks on goods not evidence of
contract for through transportation. —
Rome R. Co. z: Sullivan, etc., Co., 2.5 Ga,
228.

66. Delay resulting from succeeding
carrier's inability to receive or forward
goods. — Toledo, etc., R. Co. f. Lockhart,
71 111. 627.

But under the California statute, Civ.
Code, § 2196, declaring a carrier liable
for delay only when' caused by want of
ordinary care, and § 2201, stating that
a carrier accepting freight for a place
beyond its route must, tmless otherwise
stipulated, deliver to a connecting line,
when its liability ceases, a carrier receipt-
ing for goods to be shipped beyond its
line, with the stipulation that it will not
be responsible as carrier any further, is
not liable for delay in delivering the
goods to the connecting carrier, due to
the latter's inability to receive them.
Palmer 7'. Atchison, etc.. R. Co., 101 Cal.
IS7, .■'..-) Pac. 630.

67. Petersen v. Case, 21 Fed. 885; Helli-
well 7'. Grand Trunk Railway, 10 Biss.
170, 7 Fed. 68; Great Western R. Co. 7:
Burns, 60 111. 284; Dawson z: Chicago,
etc., R. Co., 79 Mo. 296.

To whom notice of coal embargoes
should be given. — Where a <|uaiUity of
coal was i)Uiihased from a fuel company,
whicii was selling for each of several
mine operators in a specified coal dis-
trict, and wliich, to keep track of each
mine's busines.s, would designate tiie
mines from whicli the co.il came, tiiough
the coal was siiii)i)c(l by the coiistiluent
mining companies "on account" <>l tlic
fuel comi)any, the fuel comi)any, and iioi
the mining oiierator, wouhl be regarded
.-.s tlie siiipper to which tiie carrier was
re<jiiired to give notice of coal embar-
goes on connecting lines. Chesapeake,
etc., 1^ Co. -'. n'Gara, etc., Co., Ill Ky.
.'.'■.I. i:;9 ,S. W. HO?..



§§ 3626-3628



CARRIERS.



3280



without undue delay, and to inform the shipper if it is not; and if, from any-
unusual and unexpected cause, the connecting carrier can not, when the stock
reaches the end of the initial line, furnish facilities for continued transportation^
it is the duty of the initial carrier either to promptly forward the stock by some
other route, or to notify the shipper of the facts, and for its failure to do so is
liable for any injury which results from unreasonable delay.''' ^

§ 3627. Liability Where Connecting Carrier Refuses to Receive
Goods. — Where a connecting carrier, over whose line a shipment is routed, re-
fuses to receive and transport the same, in the absence of notice of such refusal
to the consignor, the initial carrier is liable for the exercise of ordinary care and
prudence in selecting another carrier to transport the consignment, and is liable
for injuries to the consignment caused by delay resulting from the selection of
a carrier having a circuitous route, which might have been avoided.^^ If a car-
rier, or his servant within the scope of his employment, enters into a special
contract to deliver goods in a particular time, or at a particular place, even be-
yond the terminus of its route, it will be liable in damages to the owner of the
goods if it fails to do so, even though the next carrier would not have shipped
the goods if tendered or delivered in time.'''*^

§ 3628. Defenses in Actions for Delay. — In the appended note will be
found cases in which defenses set up by ititial carriers in actions against them
for delay in transportation were held insufficient to preclude a recovery. '^^



68. Duty and liability of initial carrier
of live stock. — Louisville, etc., R. Co. v.
Farmers', etc., Comm. Firm, 107 Ky. 53,

52 S. W. 972, 21 Ky. L. Rep. 70S.

69. Liability where connecting carrier
refuses to receive goods. — Louisville, etc.,
R. Co. V. Duncan, 137 Ala. 446, 34 So.
988.

70. East Tennessee, etc., R. Co. v. Nel-
son, 41 Tenn. (1 Coldw.) 272. Cited in
East Tennessee, etc., R. Co. v. Rogers,

53 Tenn. (6 Heisk.) 143, 19 Am. Rep. 589.

71. Defenses held insufficient to pre-
clude recovery. — Nonperformance of a
special agreement of a carrier to forward
a through shipment by the steamer of a
connecting carrier sailing on a designated
day is not excused by the refusal of the
deputy collector of the port to grant a
clearance while the freight was on board
because it was contraband of war, where
the contract was not unlawful when
made, and was not rendered unlawful by
any subsequent legislation, and was
made with knowledge that difficulties
might arise in the course of transporta-
tion because of the character of the
freight. Decree, Farmers' Loan, etc.,
Co. V. Northern Pac. R. Co., 120 Fed.
873, 57 C. C. A. 533, affirmed in North-
ern Pac. R. Co. V. American Trading
Co., 25 S. Ct. 84, 195 U. S. 439, 49 L. Ed.
269.

If a through contract for the shipment
of goods destined beyond the carrier's
terminus is made and the carrier fails
to deliver them at their destination
within a reasonable time and the goods
are damaged thereby, the shipper is en-
titled to recover such damages as he sus-
tains by reason of the delay, whether



or not the route by which the shipment
was to be made was indicated. Central
R., etc., Co. z: Skellie, 86 Ga. 686, 12 S.
E. 1017.

Where a notice of coal embargoes by
an initial carrier to the shipper did not
inform the shipper that all future con-
signments would only be received at the
shipper's risk, such initial carrier, on
subsequently receiving coal from the
shipper for transportation beyond its
own lines, in the absence of a special
contract to the contrary, assumed the
obligation to carry the coal within a rea-
sonable time and deliver the same to.
proper connecting carriers, notwithstand-
ing the notice, and was therefore liable
for damages caused by delay. Chesa-
peake, etc., R. Co. V. O'Gara, etc., Co.,
139 S. W. 803, 144 Ky. 561.

Where goods were billed for shipment
to a point beyond the terminus of a rail-
road, with a direction to notify a third
person, and on their arrival at the ter-
minus the railroad notified the third
person, and on his order retained them
at that point for a week, it is liable for
the delay; the order from the third per-
son not being sufficient to justify it.
Judgment 98 N. Y. S. 609, 112 App. Div.
612, affirmed in Isham it. Erie R. Co., 85
N. E. 1111, 191 N. Y. 547.

Where a carrier by rail undertook to
transport goods to a point beyond its
terminus, the transfer from the terminus
to the destination to be made without
charge to the shipper, the carrier was
liable for delay at its terminus. Judg-
ment 98 N. Y. S. 609, 112 App. Div. 612,
affirmed in Isham v. Erie R. Co., 85 N.
E. 1111, 191 N. Y. 547.



3281



RIGHTS, DUTIES AND LIABILITIES.



§§ 3629-3630



§§ 3629-3632. Liability of Intermediate or Last Carrier— § 3629.
In General. — Where a carrier receives goods on a contract made with the owner,
or his agent to carry them to their destination, beyond the terminus of its line,
and while in the course of transportation they come into the hands of a con-
necting carrier, by whose neghgence there is unreasonable delay in delivering
them at destination, the latter is liable in an action of tort for the delay ,'^- though
there be no contract relations between the two companies, nor any contract be-
tween the owner of the goods and the company causing the damages. '^^ If fruit
trees and shrubbery are destroyed by the cold, in the hands of an intermediate
carrier, by reason of unreasonable delay, or if, by such delay in transportation
or in delivering to the next carrier in the line, the latter can not, by reasonable
efforts, transport and deliver before they are destroyed by cold weather, the
former carrier will be liable for the loss."^^ But although a carrier may be guilty
of unreasonable delay in transportation, he will not be liable for a loss caused
by cold weather, if he delivers the freight to the next company in the line in
sufficient time for it, by reasonable diligence, to transport and deliver to the
consignee before injury by the cold.'''^

§ 3630. Delay Caused by a Preceding or Subsequent Carrier. — An

intermediate or last carrier is not liable, in the absence of a contract imposing
such liability, or of a partnership or other joint interest between the carriers,
for delay in the transportation or delivery of goods caused by a preceding or
subsequent carrier, or the agent of such a carrier.'^*'



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 33 of 214)