
    James Park, Jr., et al., Resp’ts, v. Harvey R. Preston et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Commom carriers—Liability of.
    In the absence of evidence to the contrary it is to be assumed that goods, accepted by a carrier for transportation are taken under the responsibility cast upon carriers by the common law, as modified by statute.
    3. Same—How liability modified—Presumption.
    If they are lost under circumstances which render the carrier liable by the general rule of law, the carrier must respond unless he can show that there was a special acceptance, which exempts him from the ordinary liability of common carriers in the particular case.
    3. Same—"When carriers will be held to usual liability
    The defendants, by means of the delivery order contained in the following letter from plaintiffs: “ Dear Sir, we hand you herewith delivery order for twenty-five tons ex. str. ‘Lepanto,” which you are to ship * * * per canal * * * at three dollars per gross ton, including insurance and all charges," procured the iron and loaded it upon a canal boat. The defendants on the completion of the shipment signed a bill of lading, acknowledging the receipt of the iron, etc. But before plaintiffs received said bill the boat carrying the iron was sunk. There was no evidence that the parties agreed before the bill of lading was signed that the goods were to be carried under a restricted liability, or that the compensation was regulated upon that assumption, or that there was any usage or custom that bills of lading on shipments of ’this character should contain the exceptions in the bill in question. Held, that there was nothing to justify an inference that it was open to the defendants to insert in the bill of lading clauses restrictive of the usual liability of carriers.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment in favor of plaintiff, entered on a verdict of á jury rendered on direction of the court at the New York county circuit court.
    
      Edward D. McCarthy, for app’lts; Wm. Henry Arnoux, for resp’ts.
    
      
      
         Affirming 37 Hun, 645, mem.
      
    
   Andrews, J.

It is conceded that if the defendants received and accepted the iron under the responsibilities imposed upon common carriers by the common law, they are hable for the loss of the iron by the sinking of the canal boat on which it was laden in the Hudson river. It is not claimed that the loss was occasioned by the act of God or the public enemy, or by a peril of the sea such as by the common law exempts a carrier from responsibility.

The defendants insist that the iron was carried under the terms of a bill of lading which contains a special exception of dangers or accidents of navigations while on lakes, rivers or canals,” and on the trial they offered to prove that the boat was sunk by reason of a peril within the exception.

This evidence was rejected on the ground that the bill of lading, upon which the defendants rely, was not the contract under which the iron was carried, but that the real contract of carriage was created by the letter of April 20, 1882, addressed by the plaintiffs to the defendants and the subsequent receipt of the iron by the latter under the delivery order accompanying the letter. It appears that prior to the date of the letter the plaintiffs had purchased, or had contracted to purchase, the iron just arrived in New York, on the ship Lepanto, of one. Lombard, of Boston. Before the letter was written the plaintiffs’ agent called on the defendants, who were carriers, and inquired if they would take the iron to Pittsburgh and at what rate, and the defendants agreed to take it at the rate of three dollars per ton, including insurance. The letter of April twentieth was then addressed by the plaintiffs’ agent to the defendants, the body of which is as follows:

“Dear Sirs,—We hand you herewith delivery order for twenty-five tons iron, ex steamer ‘Lepanto,’ which you are to ship to Messrs. Park Brother & Co., Pittsburgh, Pa., per canal to Buffalo, and thence per rail via A. V. B. B. Co., at three dollars per gross ton, including insurance and all charges.”

It is inferable from the evidence that the delivery order enclosed was drawn by Lombard upon the ship, and that on or before the 25th of April, the defendants, by means thereof, had procured the iron and laden it upon the canal boat “Bichard Collins,” to be taken by river and canal to Buffalo on the way to Pittsburgh. The defendants, on the completion of the shipment, April 25, signed a bill of lading acknowledging the receipt of the iron on the “Bichard Collins,” consigned to the defendants at Pittsburgh, Pa., and delivered or enclosed the bill of lading to Lombard. The bill of lading was probably sent to Lombard at Boston by mail, although there is no direct evidence of the fact. Lombard sent the bill of lading to the defendants at Pittsburgh. But before it reached the defendants the ‘ ‘ Collins ” had sunk with the iron on board in the Hudson river, the disaster happening on the same day the bill of lading was signed, viz.: April 25, 1882.

It does not appear that the plaintiffs had shipped goods before by the defendants’ line. They had been accustomed to make shipments from New- York to Pittsburgh, and the plaintiffs’ agent testified, “We always have a written bill of lading for their goods.” There is no proof of what exceptions are usually inserted in bills of lading, or that the plaintiffs had any information of the forms issued by the defendants, nor even that the bill of lading in question was the ordinary and usual contract used in their business.

The defendants, by means of the delivery order, acquired possession of the iron, and, having laden it on the “Collins,” if nothing else had occurred, there could be no doubt that the letter of April 20 would have regulated the rate and mode of carriage, and that the law would have fixed in other respects the delay and responsibility of the defendants. It was competent, however, for the parties by contract to modify the responsibility cast upon common carriers by the common law. Carriers by water are, by the rule of the common law, exempt from responsibility for losses from such perils of the sea as come within the definition of the phrase, “Act of God,” and this exception exists although the contract is silent upon the subject. Further exceptions have been introduced by statute in England and in this country. Anger on Carriers, §§ 166, 223; 3 Kent Com., 216; 9 U. S. Statutes at Large, 635.

It cannot, we suppose, be questioned that in the absence of evidence to the contrary it is to be assumed that goods accepted by a carrier for transportation are taken under the responsibility cast upon carriers by the common law, or by the common law as modified by statute. If they are lost under circumstances which render the carrier liable by the general rule of law, the carrier must respond unless he can show that there was a special acceptance, equivalent to a contract, which exempts him from the ordinary liability of common carriers in the particular case. Dorr v. New Jersey Steam Navigation Company, 11 N. Y., 485; Blossom v. Dodd, 43 id., 264; Medan v. Sherard, 73 id., 330.

It is insisted that the bill of lading sent by the defendants to Lombard was the contract. There is no evidence that the parties agreed before the bill of lading was signed that the goods were to be carried under a restricted liability, or that the compensation was regulated upon that assumption, or that there was any usage or custom that bills of lading on shipments of this character should contain the exceptions inserted in the bill in question- The defendants having acted' upon the letter of April twentieth, and acquired possession of the goods by means of the delivery order enclosed, there was apparently a complete contract for the carriage of the iron. It may be assumed that it was contemplated that a bill of lading would be signed when the iron was shipped. This would be according to-the usual course of business. But we do not perceive that this justifies an inference that it was open to the defendants to insert therein clauses restrictive of the usual liability of carriers, especially in the absence of any evidence of a course of business between the parties, or of any custom or usage sanctioning such an interpretation of the preceding negotiations.

Upon the whole, we are- of opinion that the case was rightly decided below and the judgment should, therefore, be affirmed.

All concur.  