
    Dorr and others against The New Jersey Steam Navigation Company.
    Where there is no special contract as to the liability of a common carrier of property, he is responsible for all loss or damage except that which is caused by the act of God or the public enemy.
    He cannot limit this liability by notice, even if it be brought to the knowledge of the owner.
    But common carriers may limit their liability by an express agreement with the owner.
    Action commenced in the supreme court, prior to July, 1848. The declaration averred that the defendant was a common carrier of merchandise for hire, between the city of New-York and Stonington in the state of Connecticut, and that the plaintiffs, at the former place, delivered to the defendant as such carrier, and the latter as such received from them two cases of merchandise of the value of $3500, to be safely carried by the defendant to and delivered at Stonington, for a reasonable reward to be paid therefor; yet that the defendant did not safely carry the merchandise and deliver the same at Stonington, but so carelessly and negligently conducted itself, that by and through the negligence and misconduct of the defendant the said merchandise became and was lost to the plaintiffs. The defendant pleaded, (1) the general issue; (2) that the merchandise was delivered by the plaintiffs to and received by the defendant on board the steamboat Lexington, under and in pursuance of a special contract made between the plaintiffs and defendant, for the transportation of the same from New-York to Stonington, in the following words, viz:
    “ New Jersey Steam Navigation Company, received of S. & F, Dorr Co., on board the steamer Lexington, Child, master, two cases for E. Baker & Co., Boston, marked and numbered as in the margin, to be transported to Stonington, and there be delivered to railroad agent or assigns; danger of fire, water, breakage, leakage and all other accidents excepted; and no package whatever, if lost, injured or stolen, to be deemed of greater value than two hundred dollars.
    Freight as customary with steamers on this line.
    N. B. The company are to be held responsible for ordinary care and diligence only in the transportation of merchandise and other property shipped or put on board the boat of this line.
    Dated at New-York, January 13th, 1840.
    Contents unknown.- George Child, master.”
    That while the merchandise was well and properly stowed on board the steamboat and being carried pursuant to the contract, and without any carelessness or misconduct of the defendant or its servants, or any defect in the boat or its equipments,-the boat, by mere casualty and accident, took fire and was consumed; with its cargo, including the merchandise of the plaintiffs; and thereby, by accident and casualty of fire, and not by any negligence, misconduct or default of the defendant, the merchandise was not delivered at Stonington, and became lost to the plaintiffs. The plaintiffs demurred to the second plea, and there was joinder. The demurrer was heard in the superior court of the city of New-York, and judgment ordered thereon for the plaintiffs. (See 4 Sand/. 136.)
    Afterwards the issue of fact was tried before Edwards, J. The plaintiffs proved that the defendant was a common carrier, as stated in the declaration, and that the two cases of merchandise were delivered by the plaintiffs to the defendant at New-York, on board the Lexington, to be transported and delivered as in the declaration averred; that the merchandise was not delivered at Stonington, but was lost between there and New-York while in the custody of the defendant, and that its value was $1765. The defendant proved that the goods were received from the carman of the plaintiffs, and the receipt or bill of lading set out in the second plea given him therefor by the master of the boat; that this receipt was the usual printed form of bill of lading then and during several years previous used by the defendant in its business as a carrier, and that the plaintiffs were and during many years had been merchants in New-York. The plaintiffs in reply further proved that the fire by which the steamboat and its lading were consumed, was not occasioned by the act of God or the public enemy, and that the said receipt or bill of lading did not come to the knowledge or possession of the plaintiffs, otherwise than by the delivery of it to the carman, until the day after the goods were shipped. The counsel for the defendant requested the court to charge the jury, (1) that the defendant was not liable, if the loss of the goods was occasioned by a cause excepted from the defendant’s risk by the receipt or bill of lading; (2) that the defendant’s liability did not exceed the amount of two hundred dollars for each package mentioned in the receipt or bill of lading, with interest thereon from the time of the loss. The court refused to charge in conformity with either of said requests, and charged the jury that the loss having occurred while the goods were in the defendant’s possession as á common carrier, and not by the act of God or the public enemy, the defendant was, responsible; and that the liability of the defendant was not restricted to the sum of two hundred dollars a package named in the bill of lading, but extended to the actual value of the goods. To which refusals to charge as requested, and to the charge as given, the defendant duly excepted. The jury returned a verdict in favor of the plaintiffs for $3247.90. The defendant moved the supreme court, sitting in the first district, for a new trial, on a bill of exceptions, which was refused, and judgment perfected in favor of the plaintiffs. The defendant appealed to this court.
    
      Wm. M. Evarts, for the appellant, insisted,
    I. The judgment on the demurrer to the special plea should have been for the defendant. Neither public nor private necessity or convenience requires that common carriers, on the one hand, should be compelled to be insurers against fire, unless the bailor insists upon it; nor that the bailor, on the other hand, should be obliged to pay rates of carriage which include compensation for insurance, unless he choose so to do. To legally incapacitate the parties from separating, by mutual contract, the service of transportation and the responsibility of insurance, involves this absurdity. (Orange Co. Bank v. Brown, 9 Wend. 85 ; Hollister v. Nowlen, 19 id. 234; Cole v. Goodwin, id. 251; Wells v. The St. Nav. Co., 2 Comst. 204; Parsons v. Monteath, 13 Barb. 353; Moore v. Evans, 14 id. 524; Stoddard v. L. Is. R. R. Co., 5 Sand. S. C. R. 180; Dorr v. N. J. St. Nav. Co., 4 id. 136, (case at bar;) N. J. St. Nav. Co. v. Merch. Bank, 6 How. 344.) The only case in any book to the contrary is Gould v. Hill, (2 Hill, 623,) since overruled by two later cases in the same court, ut supra.
    
    II. The refusal to charge in conformity with the first request of the defendant’s counsel, and the actual charge upon the point, are open to exception for error upon the same grounds as is the judgment on the demurrer. The proof at the trial fully sustained the matter of the special plea, and so presented the same questions of law.
    III. The exception to the refusal to charge in conformity with the second request of the defendant’s counsel, and to the actual charge upon the point, was well taken. 1. The limitation of value per package for which the carrier should be liable, is a perfectly valid stipulation in the contract. The reward of the carrier is accommodated to this rate of value, and the bailor, receiving thus the benefit of the limitation, cannot repudiate it. 2. As a f e mere valuation, to preclude fraud or dispute, as m valid policies of insurance, the limitation is valid and will be upheld. 3. The controversy respecting the right of a carrier by special contract to restrict his common láw liability, has never brought in question the validity of such limitations of value. (Cole v. Goodwin, 19 Wend. 251, and other cases above cited.)
    
    
      B. D. Silliman, for the respondents.
    I. The rule is settled in this state, that a common carrier cannot by notice shelter himself from his common law liability, even though such notice be distinctly brought home to the bailor. (Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Id. 251; 21 id. 354, 153; 3 Hill, 9 ; 7 id. 533; 26 Wend. 594; 2 Kent’s Com. 608.)
    II. In the present mode of transportation by common carriers, public policy imperatively requires strict adherence to the common law rule of liability; and that carriers’ notices inserted in receipts given and received, where property is delivered at railroads and steamboats, should not be treated as mutual and deliberate contracts waiving liability. (Doctor and Student, 270, Dial. C. 38 ; Attwood v. Reliance Trans. Co., 9 Watts’ R. 87; Stanton v. Allen, 5 Denio, 434; Hooker v. Vandewater, 4 id. 349 ; Per Ld. Kenyon, in Hyde y. Trent. Co., 1 Esp. N. P. C. 35; Per Bronson, J. in Hollister v. Nowlen, 19 Wend. 239 ; Bell v. Leggett, 3 Selden, 176.) The evils which resulted in England by departing from the common law rule were so great, that the courts expressed strong regret that the innovation had been tolerated. (Bell’s Comm. 1, 474; Maving v. Tod, 1 Starkie, 79; Smith v. Horne, 8 Taunt. 144 ; Down v. Fromont, 4 Camp. 40; Duff v. Budd, 3 Brod. & Bing. 177.) In some of the United States such notices have been admitted, (Jones v. Voorhees, 10 Ohio, 145,) and the same regrets have been expressed by the courts. (Eagle v. White, 6 Wharton, 516; Barvey v. Prentiss, 4 Harr, & John. 317.)
    III. Admitting, for sake of the argument, that the carrier can protect himself by special mutual contract from his common law liability, still the bill of lading set forth in the plea is not such a contract. It is at most a receipt for the goods, with notice incorporated therein that the carrier denies the liability which the law imposes on him. It is at most notice brought home to the bailor, and is no higher evidence of the contract than were the notices of stage proprietors brought home to the knowledge of their passengers. (Down v. Fromont, 4 Camp. 40 ; Nicholson v. Willan, 5 East, 507, n. ; Beckman v. Shouse, 5 Rawle, 179; Clarke v. Gray, 6 East, 564; Jones v. Voorhees, 10 Ohio, 150; Cole v. Goodwin, 19 Wend. 280 ; Gould v. Hill, 2 Hill, 623.)
    IV. The supreme court, in a case like that before the court, held, that the insertion in the bill of lading of a clause to the same effect with that under consideration, would not discharge the carrier. (Gould v. Hill, 2 Hill, 623.) This decision has been incidentally approved by the court for the correction of errors. (Alexander v. Greene, 7 Hill, 562 ; Powell v. Myers, 26 Wend. 594.)
    
   Parker, J.,

delivered the opinion of the court.

The courts of this state have steadily adhered to the common law rule, that a common carrier cannot screen himself from liability by notice, whether brought home to the owner or not. Since the very full and learned discussion of that question in Hollister v. Nowlen, (19 Wend. 234,) and Cole v. Goodwin, (Id. 251,) it has been regarded as settled upon, mature deliberation, and the conclusion arrived at in those cases has been uniformly acquiesced in and followed. (Camden Co. v. Belknap, 21 Wend. 354; Clark v. Faxton, Id. 153; Alexander v. Greene, 3 Hill, 9 ; 7 id. 533; Powell v. Myers, 26 Wend. 594.) These decisions rest on the* very satisfactory reasons, that the notice was no evidence of assent on the part of the owner, and that he had a right to repose apon the common law liability of the carrier, who could not relieve himself from such liability by any mere act of his own.

But the question here presented is of a very different character. It is, whether it is competent for the carrier and the owner, by an agreement between themselves, to establish conditions of ■ liability, different from, those cast by law upon a common carrier,

I think this question is distinctly presented by the demurrer to the second plea; and it seems to me also to be involved in the decisions made at the trial of the issue of fact; for the exceptions to the common law liability, being made in the bill of lading and delivered to the agent of the plaintiffs, must be deemed to have been agreed upon by the parties. If such is not the legal7 inference, then it was a question of fact for the jury to decide what was the agreement between the parties, and in that case the same question of law would still be presented for decision.

The plaintiffs rely upon the case of Gould v. Hill, (2 Hill, 623.) It was there broadly decided by a majority of the late supreme court, Ch. J. Nelson dissenting, that common carriers could not limit their liability, or evade the consequences of a breach of their legal duties as such, by an express agreement or special acceptance of the goods to be transported. That decision rested upon no earlier adjudication in this state, though the question had been previously discussed and obiter opinions upon it sometimes expressed by judges, in deciding the question whether a carrier could lessen the extent of his liability, by notice. But the case of Gould v. Hill has been deliberately overruled by the present supreme court, in two carefully considered cases, viz : Parsons v. Monteath, (13 Barb. 353;) and Moore v. Evans, (14 id. 524.) In both those cases the question is examined with much ability, and I think the unsoundness of the conclusion in Gould v. Hill most satisfactorily shown. I am not aware that Gould v. Hill has been followed in any reported case. In Wells v. The Steam Navigation Company, (2 Comst. 209,) Bronson, B\, who seems to have concurred with Judge Cowen in deciding Gould v. Hill, speaks of the question as being still, perhaps, a debatable one.

i / That a carrier may, by express contract, restrict his Common flaw liability, is now, I think, a well established rule of law; It ps so understood in England; (Alleyn, 93; 1 Vent. 190, 238; Peake’s N. P. C. 150; 4 Burr. 2301; 1 Starkie’s R. 186; 2 Taunt. 271; 8 Mees. & Welsby, 443; 4 Co. 84;) and in Pennsylvania, (16 Penn. R. 67; 5 Rawle, 179 ; 6 Watts & Serg. 495.) In other states, where the question has arisen whether notice would excuse the liability of the carrier, it seems to have been taken for granted that a special acceptance would do so ; and in N. J. Steam Nav. Co. v. Merchants’ Bank, (6 How. 382,) it was so held by the supreme court of the United States. For the concurrent opinions of elementary writers in favor of this doctrine, see Story on Bail. § 549; Chitty on Cont. 152 ; 2 Kent, Com. 606 ; Angell on Carriers, §§ 59, 220, 221. Upon principle, it seems to me no good reason can be assigned why the parties may not make such a contract as they please. It is not a matter affecting the public interests. Ho one but the parties can be the losers, and it is only deciding by agreement which shall take the risk of the loss. The law, where there is no special acceptance, imposes the risk upon the carrier. If the owner chooses to relieve him and assume the risk himself, who else has a right to complain ? It is supposed that the extent of the risk will be measured by the amount of compensation, and the latter, it will not be denied, may be regulated by agreement. The right to agree upon the compensation cannot, without great inconsistency, be separated from the right to define and limit the risk. Parties to such contracts are abundantly competent to contract for themselves. They are among the most shrewd and intelligent business men in the community, and have no need of a special guardianship for their protection. It is enough that the law declares the liability where the parties have said nothing on the subject. But if the parties will be better satisfied to deal on different terms, they ought not to be prevented from doing so.

It is true a common carrier exercises a quasi public employed ment, and has public duties to perform; that he cannot rejjfct a customer at pleasure, or charge any price that he chooses to demand; and that if he refuses to carry goods according to the course of his employment, without a sufficient excuse, he will be liable to an action ; and that he can only demand a reasonable compensation for his risk and services; (Bac. Abr . Carriers, [ZL] /

2 Kent, 599 ; Story on Bail. 328; 2 Ld. Raymond, 917 ; Skin. 279; 1 Salk. 249; 2 Show. R. 332; 8 Mees. & Wels. 372; 1 Pick. 50; 15 Conn. R. 539;) and that an action will lie against him upon a tort, arising ex delicto, for a breach of duty. (Orange Co. Bank v. Brown, 3 Wend. 158.) In such 1 case, there being no special contract, the parties are supposed to have acted with a full knowledge of their legal rights and lia- ; bilities, and there may be, perhaps, good reason for the stringent rule of law, which makes the carrier an insurer against all ex-'f cept the act of God and the public enemy. But when a special ' contract is made their relations are changed, and the carrier becomes, as to that transaction, an ordinary bailee and private carrier for hire. This neither changes nor interferes with any established rule of law; it only makes a case to be governed by a different rule. To say the parties have not a right to make their own contract and to limit the precise extent of their own ) respective risks and liabilities, in a matter in" no way affecting , the public morals or conflicting with the public interests, would, in my judgment, be an unwarrantable restriction upon trade and commerce, and a most palpable invasion of personal right. > •The judgment of the supreme court should be reversed and judgment be given for the defendant on the demurrer, with leave to the plaintiffs to reply on terms, and a new trial should be awarded on the issue of fact.

Judgment accordingly.  