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A treatise on the law of carriers (Volume 4) online

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rier to show that his line of transporta-
tion stopped short of the place to which
he undertook to carry the goods, espe-
cially when the fact as to the extent of
his line of transportation was not known
to the shipper of the goods, or communi-
cated to him at the time of receiving the
goods. Mosher & Co. r. Southern Exp.
Co., 38 Ga. 37; Southern Exp. Co. z:
Shea, 38 Ga. 519.

A shipper made a contract with a car-
rier for the transportation and delivery
of freight at a certain place. Part of the
service was performed by connecting
carriers, but the contract was entire.
Held, that the connecting carriers were
only agents of the contracting carrier,
which was liable to the shipper for dam-
ages he sustained. Alonell v. Northern
Cent. R. Co. (N. Y.), 67 Barb. 531.

The first of four connecting carriers,
the last of which was a steamship com-
pany, agreed with the second that the
first should receive goods to be forwarded
to the end cf the route and that the sec-
ond carrier was to indemnify the first
for loss beyond the first carrier's line.
Piills of lading were issued for
tr;(nsi)ortation and the first collected the
entire freight, giving the balance, after
deducting its portion, to the second,
which, in turn, gave it to the third, and
then to the fourth. There was no ar-
rangement between the tirsl and the
third and fourth carriers, not the second
and fourth. Held, that the first carrier
contracted for through transi)orlation,
and was liable for loss or injurv at any
poiiU on the whole route. Ili'I Mfg. Co.
7'. lioston, etc.. R. Cor])., lot .Mass. 122,
6 .\m. Rt]). •.'02.

\\ lure a railroad ioinp;inv receives on

§ 3644



Place of Delivery of Goods as Affecting Carrier's Liability. — If a con-
tract for through carriage is made, the fact that part of the goods are only de-
Hvered at the place where the second road begins does not affect the first carrier's
liability. -"^

its cars, at the consignor's warehouse in
a city, freight to be conveyed from the
company's depot in another portion of
the same city to a point of destination
beyond its line, the cars being furnished
at the request of the consignor, and the
entire freight charges being paid by the
consignor to such company for transpor-
tation of the goods from its depot, this
company is the initial carrier, and is un-
der a contract obligation to transport
the goods to the point of destination,
and responsible for any loss or damage
of the goods in the course of such trans-
portation; and it is immaterial that an-
other railroad company owned the spur
track leading from said warehouse to a
point intermediate between there and
said depot, and received compensation
for trackage. Savannah, etc., R. Co. v.
Commercial Guano Co., 103 Ga. 590, 30
S. E. 555.

A carrier, who receives a consignment
of freight under contract to transport it
"to destination, if on its road, or other-
wise to the place on its road where same
is to be delivered to any connecting car-
rier," through rate of freight as desig-
nated being guarantied by the carrier, is
liable for an injury on a connecting car-
rier's line, the car being treated as a
through car, and sent to its destination
without unloading. Judgment, 98 111.
App. 311, affirmed in Elgin, etc., R. Co.
V. Bates Mach. Co., 66 N. E. 326, 200 111.
636, 93 Am. St. Rep. 2 IS.

Contracts held not to be for through
transportation. — A bill of lading stating
that the goods are consigned to plaintiff
at P.; that they are to be transported to

the carrier's warehouse at ; that

goods consigned to a place beyond its
line will be forwarded, but that it will
not be liable for loss occurring after
they are forwarded, — is not a t'nrough
contract. entitling plaintiff to recover
against the first carrier for loss occur-
ring by reason of a wrong delivery l)y the
last carrier. Myrick 7'. IMichigan Cent.
R. Co., 107 U. S. 102, 1 S. Ct. 425, 27 L.
Ed. 325.

The plaintiff gave shipping orders to
the defendant for the shipment of prop-
erty to a point known by the plaintiffs
to be off the defendant's line of road. By
the terms of the contract of shipment,
the defendant agreed to deliver the prop-
erty "with as reasonable dispatch as their
business would permit, subject to the
conditions mentioned below, in like good

order, at station, upon the pay-

inent of charges." The company further
agreed "to forward the property to the
place of destination as per margin, but

are not to be held liable on account
thereof after the same shall be delivered
as above." Held, that this was a con-
tract to deliver the property at any point
that might be selected by the company,
upon its line of road, most convenient
for forwarding to its place of destination,
and not for through transportation, and
the company was not liable for losses oc-
curring beyond its line. Rickerson Roll-
er-Mill Co. V. Grand Rapids, etc., R. Co.,
67 Mich. 110, 34 N. W. 269.

Goods were delivered to a railroad cor-
poration at Worcester to be carried to
Xew York, and the freight was paid to
it for the entire distance. They were
receipted for as "for transportation."
The shipper knew that the railroad ter-
minated at Providence, whence they
were to be carried the rest of the way
by a steamer jf another corporation, and
that the freight money was to be divided
between the corporations. In an action
against the railroad corporation to re-
cover for damage to the goods, happen-
ing upon the steamer, held, that the cor-
poration was not a common carrier be-
yond the end of its road, and was not
liable. Washburn, etc., Mfg. Co. z'. Prov-
idence, etc., R. Co., 113 ]\lass. 490.

The fact that a letter written to a
third person by an agent of the defend-
ant carrier, stating that the "carrier had
perfected arrangements for through ship-
ments by a certain route to a certain
point beyond its destination and desired
to secure shipments for that point, was
shown by such person to the plaintiff,
and the plaintiff thereafter made a ship-
ment to the point designated, does not
constitute the letter an express contract
so as to bind the company' for loss or de-
lay occurring beyond its terminus, in the
absence of notice by him to the carrier
that the shipment was to be made in ac-
cordance with the terms of the letter.
East Tennessee, etc., R. Co. z'. Montgom-
ery, 44 Ga. 278.

Under the California statute, Code
Civ. Proc. § 2201, declaring that the lia-
bility of a carrier who accepts freight
for a place beyond his route ceases on
delivery to a connecting line, "imless he
stipulates otherwise," a provision in a
Ireight contract that the carrier's re-
sponsibility shall cease at the connect-
ing point is not rendered ineffective by
a further stipulation for through passage
train service. Colfax Mountain Fruit Co.
r. Southern Pac. Co. (Cal.), 46 Pac. 668.

27. Place of delivery of goods as af-
fecting carrier's liability. — \\'here the
company owning the first of several con-
necting lines of railroad undertakes to



§ 3644

Contract to Deliver Live Stock at Point beyond Line. — Where a railroad
company contracts for the through carriage of Hve stock beyond the terminus of
its Une, it is Hable, in the absence of a stipulation to the contrary, for injury to
the stock on the line of a connecting carrier. -■'*

Guarantee That Oar Is Suitable for Carrying- Live Stock. — A carrier who
guaranties that a car is suitable for carrying live stock is liable for injury to the
stock caused by the defective condition of the car, whether the injury occurs on
its own line or on the line of a connecting carrier.-^

Contract to Re -Ice Car. — Where a carrier contracts for the through ship-
ment of a carload of perishable goods, and agrees to re-ice the car on the line of a
connecting carrier, or as often as necessary, it is liable for damages resulting
from its failure to re-ice in accordance with such contract. ^^"

Contract for Through Shipment by Carrier Not Authorized to So Con-
tract Except by a Certain Route. — Where a carrier had no authority from
connecting carriers to contract for through shipments except by a certain route,
a shipper contracting for through shipment can not recover for damages to the
shipment occasioned by their having gone that way instead of another, as re-
quested, he knowing the limitation of the carrier's authority. ^^

§ 3645. Diversion of Freight from Route Stipulated. — Where a com-
mon carrier wrongfully substitutes another connecting carrier for the one named
in the shipping contract, it becomes an insurer for the substituted carrier, and
liable as such for loss of or injury to the freight while in the latter's possession. ^-

carry goods over the entire line, part of
the goods being put al)oard the cars on
the first line, and part to be put on at its
termination and where the next road be-
gins, the fare asked and agreed to be
paid being, however, the fare usually
asked and paid for the carriage over the
whole line, and the contract being for
transportation over the whole road, and
not for carriage to the end of the first
line, and then for delivering to the car-
rier owning the next road and for car-
riage by him, the fact that a part of the
goods were put on the cars only where
the second road begins will not exoner-
ate the owner of the first road from lia-
bility for their loss. Ogdensburg, etc.,
R. Co. 7'. Pratt (U. S.), 22 Wall. 123. 22
L. Kd. _^:.'7. I!i [low. Prac. H-1.

28. Liability under contract for through
transportation of live stock.— Ohio, etc.,
R. Co. f. McCarthy, '.)G U. S. 2.'58, 24 L.
Ed. 0!»:{; St. Louis, etc., R. Co. v. Randle,
S.') Ark 127, 107 S. W. (W.).

Where a carrier by parol contract un-
dertook to deliver a shipment of live
stock at a point beyond its line, and the
stock was carried over the connecting
line under a contract with the initial car-
rici, and not with the shipper, the ini-
tial carrier is lial)le for a loss resulting
from the negligence of the connecting
carrier. Louisville, etc.. R. Co. r. Cooper,
r>r, S \y. Ml. :.') Ky. L. Ucp. icit.

20. Liability under guarantee that car

is suitable for carrying live stock

Hurnside. etc., R. Co. 7: Tuimian, 72 S.
W. 780. 21 Ky. L. Rep. 20.-,;.'.

30. Liability under contract to re-ice
^*T. - .\ r;irriir receiving; produce to be
carried in its refrigeratr>r car to a i)(>int

beyond its lines and contracting to re-
ice the car at two points, one on its line,
and the other on the line of another car-
rier with which it had a through billing
arrangement, is liable fur the damage
from failing to re-ice at such points.
Pennsylvania R. Co. v. Orem, etc., Pro-
duce Co., 73 Atl. 571, 111 Md. 356.

Where a carrier gave a bill of lading
for a car of perishable iruit for shipment
beyond its own line, reciting the receipt
of the goods in apparent good order,
consigned from Michigan to another
state, subject to the carrier's liability un-
der the common law^ and statutes in force
in the various states through which the
goods might pass, and that the car was
to be iced at G. and re-iced as often as
necessar3\ the carrier issuing such bill
was liable for damage to the fruit by
reason of its failure or the failure of a
connecting carrier to keep the car prop-
erly iced. Johnson v. Toledo, etc., R.
Co., 95 N. W. 724, 133 Mich. 596, 103 Am.
Si, Rep. If) I.

31. Coiitract for through shipment by
carrier not authorized to so contract ex-
cept by a certain route. — Judgment (Tex.
Civ. .\pp. ), St, S. W. 17, reversed in Hou-
ston, etc.. R. Co. f. I'.vcrett, 99 Tex. 2(>9,
89 S. W. 7r,i.

32. Diversion of freight from route
ftipulated. (/V('/.i,'/i/. ('.eor.L^ia R. Co. :■.
Coll- iS: Co.. <;s C,a. (\:y.',.

Illiiutis. — Dunselh 7'. Wade, 2 Scam.
2S.''); .Merchants' Despatch Transp. t'o. ?'.
Kahn, IC, 111. 520.

Nc7i' York. — Goodrich 7'. Thom])son,
27 N. Y. Super. Ct. 75; Hernsfiold 7. Ad-
atns, 19 Rarb. 577; liincUley 7-. \e\v
York, etc., R. Cr>., 5C. N. ^'. 129; Johnson

;§ 3645-3646



The initial carrier is liable in such case even if the loss of the freight was caused
by inevitable casualties. ^^ Where a carload of freight routed over several con-
necting lines, under the contract of shipment, is diverted by the second carrier
from the route specified, the initial carrier, if it participated in the diversion, is
liable to the shipper for its loss.^'^ If a carrier stipulates in writing that it may
forward goods beyond the end of its route by any customary mode which is safe
and prudent, such stipulation is binding upon the shipper, notwithstanding a
previous oral agreement, not expressed in the written, contract, that the for-
warding of the goods beyond the carrier's route shall be by rail only.^^ Where
a carrier unjustifiably substitutes another connecting carrier for the one named
in the bill of lading the shipper does not waive his right to recover from the
original carrier for the loss of the goods by making an efl^ort, at its instance, to
hold the substitute carrier."''

§§ 3646-3659. Liability of Intermediate or Last Carrier— § 3646.
In General. — The liability of a carrier as insurer for the safe delivery of prop-
erty which has come into its possession is the same whether it was received di-
rectly from the owners or from another carrier to whom it was originally de-
livered.^"^ Upon the delivery of the goods to a connecting carrier, it becomes lia-
ble as a common carrier, ^^ subject at most only to the limitation stipulated for

V. New York Cent. R. Co., 3;j N. Y. 610,
88 Am. Dec. 416.

Tennessee. — Railroad v. Odil, 96 Tenn.
61, 33 S. W. 611.

Wisconsin. — Congar v. Galena, etc., R.
Co., 17 Wis. 477.

Where plaintiff ships over defendant's
road goods marked, "Via P., care of A.
Coast Line, by fast freight," and defend-
ant delivers the goods at P. to a steam-
ship company, in whose possession they
are destroyed by fire, the question of
proximate cause does not enter into the
question of defendant's liability, as it was
liable for breach of contract in not send-
ing the goods by fast freight. Philadel-
phia, etc., R. Co. V. Beck, 125 Pa. 620, 17
Atl. 505. 11 Am. St. Rep. 924.

Manufacturers at North Adams, Mass.,
consigned goods to '"T. W. & Co., Balti-
more," the cases being marked "Railroad
Line." At New York the carrier, instead
of forwarding the goods by rail, for-
warded them by a boat bound for Balti-
more, and which was lost at sea. Held
that, if the words "Railroad Line" plainly
indicated an intention that the goods
should be forwarded by rail so far as
such a mode of transportation was prac-
ticable between North Adams and Balti-
inore, the forwarder was liable for the
loss of the goods, though it was usual
to forward goods by the boat. Ingalls v.
Brooks (_N. Y.), 1 Edm. Sel. Cas. 104.

A carrier received goods to be carried
to a point beyond its own line, with di-
rections to deliver them to certain con-
necting carriers, with the last of which
the shipper had made an agreement for
stopping the car at intermediate points
on its line for delivery of portions of the
goods. It, however, wrongfully sent the
goods by different connecting carriers,
whose lines reached but one of the inter-
mediate points. On arrival of the goods

there, the shipper disclosed his con-
tract to have them distributed at the
three points, and demanded compliance
herewith. The carrier refused compli-
ance until payment of freight for the
whole route, when it delivered the goods
destined to that point, and undertook, at
its own cost, to carry to each of the other
points the portion of the goods to be de-
livered there, and in doing so the goods
were injured. Held, that the initial car-
rier, though it did not know of the ship-
per's agreement with the last connecting
carrier, to which it was directed to de-
liver the goods, was liable for the dam-
age. Brown, etc., Co. v. Pennsylvania
Co., 63 Minn. 546, 65 N. \V. 961.

33. Railroad v. Odil, 96 Tenn. 61, 33 S.
W. 611.

34. So held where a car load of fruit
trees was so diverted. Drake v. Nash-
ville, etc., R. Co., 125 Tenn. 627, 148 S.
W. 214.

35. Written contract as to route not af-
fected by previous oral agreement. —
Hinckley t'. New York, etc., R. Co., 56
N. Y. 429.

36. Facts not constituting waiver of
right to recover from initial carrier. —
Railroad v. Odil. 96 Tenn. 61, 33 S. W.

37. Liability same whether property re-
ceived from owner or another company.
—Gulliver v. Adams Exp. Co., 3S Til. 503.

38. Liability of connecting carrier upon
delivery of goods to it. — Memphis, etc.,
R. Co. V. Holloway, 68 Tenn. (9 Baxt.)

A connecting carrier is liable as a com-
mon carrier for any injury to the prop-
erty while in its possession, unless re-
lieved therefrom by the rules applicable
to the transportation of that kind of
property. Gulf, etc., R. Co. v. Baird, 75
Tex. 256, 12 S. W. 530.



§§ 3646-3647

in its behalf by the first company.^'-' Therefore, a connecting carrier in whose
hands property is lost or injured is liable directly to the owner,-*« though there is
no privity of contract between it and such owner. -^^ If a connectino- carrier,
without express contract to carry and deliver, receives from another carrier
money accepted by it for shipment, the connecting carrier will be liable to the
owner in an action for money had and received, if it fails to account for or de-
liver the money.-*- The liability of an intermediate carrier in a through ship-
ment where a loss of freight occurs on its line is not affected by the fact that
the initial carrier is also liable.^ ^ A railroad company taking loaded cars from
its connection with another railroad and transferring them by means of a switch
engine over a portion of its own track to a spur of its own and receiving its
compensation from the connecting road, acts as a common carrier, and is
liable as such for the safety of the goods in the cars, no matter how short the dis-
tance from the place of receipt to that of delivery.^^

§ 3647. Where Initial Carrier Contracts for Through Transportation.

— In the absence of a partnership or authority to make its own contract binding
upon all carriers over whose lines freight is to pass, connecting lines are but
the agencies employed by the contracting carrier to perform its own contract.^^
It follows that in the absence of such partnership or authority the initial carrier
has no power to make any contract which will bind the connecting carrier.^e
But if the connecting carrier be so situated in relation to the initial line that the
law requires it to receive and carry freight tendered to it, it will be liable if it
refuses to do so,-*' or, if it accepts the freight for transportation, it will be liable
if it is lost or injured through a breach of its common-law duty.-*^ But the lia-

3S. Memphis, etc., R. Co. z: Hollowav,
68 Tenn. (9 Baxt.) 188.

40. Lamb v. Camden, etc., Transp. Co.
(X. Y.», 2 Daly 454.

When goods are delivered to a carrier
for transportation over its route and that
of several connecting lines to the des-
tination point, the companies forming a
continuous line, an intermediate carrier
is liable for a loss of the goods occurring
on its part of the line. Barter & Co. v.
Wheeler, 40 X. H. 9, r, Am. Rep. 434.

When a railroad company carrying
cars belonging to, and to be transported
over, a connecting line, lias, at the point
of connection and transfer, duly observed
the regular course of busines-; in making
the transfer, the connecting line becomes
charged with the duties of a common
carrier as to the goods so transferred,
and is answerable for damages resulting
irom subscr|ucnt delay or negligence.
Livingston 7: Xcw York, etc., R. Co., 70

X. y. <m.-

Shipper not required to accept tender
of return of damaged goods.— W In rt, after
freinlit li;id been delivered t(j a connect-
ing carrier, it was permitted to remain
in its j)<)s>ession for nearly a year, dur-
ing which time the box was broken into
and many of the articles defaced, dam-
aged, and some of them destroyed, the
shipper was nf<t recjuired to accept a
tender of a return of the goods. Cincin-
nati, etc., R. Co. 7'. Stout, 90 S. W. 2.'»8,
2x Ky, L. Rrp, 71 l.

41. Privity of contract not essential to
liability of connecting carrier. -United

4 Car— l.-'.

States Mail Line Co. v. Carrollton Furni-
ture -Mfg. Co., 101 Ky. 658, 42 S. W. 342,
19 Ky. L.Rep. 833.

42. Liability of connecting carrier re-
ceiving money from another carrier. —
Southern Exp. Co. v. Thornton, 41 ]\Iiss.

43. Liability of intermediate carrier not
affected by fact that initial carrier is also
liable. — Lacey v. Oregon R., etc., Co.
(Ore.). 128 Pac. 999.

44. Distance of carriage imm.aterial. —
Missouri Pac. R. Co. v. Wichita Whole-
sale Grocery Co., 55 Kan. 525, 40 Pac.
899, 2 Am. & Eng. R. Cas., N. S., 560.

45. Connecting carriers are but agencies
employed by contracting carrier. — Gulf,
etc., R. Co. V. Baird, 75 Tex. 256, 12 S.
W. 530.

46. Initial carrier can not make con-
tract binding connecting carrier. Hous-
ton, etc., R. Co. z: I-'.verett, 99 '{'ex. 269,
K9 S. W. 761.

47. Liability of connecting carrier for
refusing to receive freight tendered. —
Houston, etc., i\. Co. r. ICverelt, 9'.i Tex.
209, 89 S. W. 761.

48. Liability for loss of or injury to
freight accepted.— 1 1 ouston, etc., R. Co.
V. l\verett, 99 Tex. 2()9, 89 S. W. 761.
See ante, "In General," § 3640.

It seems that where a contract is made
with a railroad comjjany to carry goods
to a given ])oint, and while in transitu
the goods are resliipi)ed by that comi)any
upon another road, the latter company
wonid be li.-ilile directly to the f)wner for

§§ 3647-3648



bility in such case will not be based upon the unauthorized contract made by the
initial carrier.^^ It has been held, however, that a carrier who accepts goods
from a connecting carrier with notice that they were shipped under a through
bill of lading issued by the initial carrier to the owner assumes contractual rela-
tions with the owner and is bound by the terms of such bill of lading at least
to the extent that they are usual and customary ; -^^ and it can not by issuing its
own bill of lading to the connecting carrier, containing different terms, impose
them on the owner of the goods who has not assented to, and has no knowledge
of, such bill of lading/"'^ Where a contract for the transportation of goods over
connecting lines of railway is made with one railway company as the agent of
the other, and the latter company transports the goods, and collects the freight
thereon, it can not, when sued for injury done to the goods by its servants, deny
the authority of the other company to make the contract for it.-^^

§ 3648. When Liability Commences and Terminates.— The acceptance
of freight by an intermediate carrier is complete and its liability fixed whenever
the property, with its assent, comes into its possession, and its liability is not
terminated until delivery to the succeeding carrier.''^ The initial carrier must
yield possession and exclusive control of the goods to the succeeding carrier, in

a loss of goods though their neglect.
Illinois Cent. R. Co. v. Cowles, 32 111.

A party who has contracted Avith and
paid one of a line of connecting roads
for the carriage and delivery of goods at
the other end of the line may maintain
an action for injury to the goods against
either of the companies on whose road the
injury may have been done. Wing v.
New York, etc., R. Co. (N. Y.), 1 Hilt.

Where one railroad company' contracts
to transport live stock over its own roads
and a part of the road of another com-
pany which is under its control and man-
agement, and damage is done to the
stock while in the custody of the latter
company, through its negligence and in-
attention, the owner is not confined to
suit on the contract against the company
making it, but may maintain an action
against the company inflicting the injury.
Southwestern Railroad v. Thornton, 71
Ga. 61.

49. Liability not based on contract
made by initial carrier. — Southern Exp.
Co. V. Palmer, 48 Ga. 85; Southern Exp.
Co. V. Shea, 38 Ga. 519; Cohen v. South-
ern Exp. Co., 45 Ga. 148; Southern Exp.
Co. V. Purcell, 37 Ga. 103, 92 Am. Dec.
53; Southern Exp. Co. v. Newby, 36 Ga.

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