tion of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice." 20

From this definition it is clear that regular liners are common carriers, as is any ship that carries on business for all, and by advertisement or habit carries goods for all alike. A general ship is a common carrier.21

On the other hand, a ship chartered for a special cargo, or to a special person, is not a common carrier, but an ordinary bailee for hire.22

BILL OF LADING-MAKING AND FORM IN

GENERAL

79. The document evidencing the contract of shipment is known as a "bill of lading." Even in the case of chartered vessels, and of course in the case of vessels trading on owner's account, the bill of lading is usually given by the master to the shipper direct, and binds the vessel or her owners to the shipper.

Originally it was a simple paper. Here is an old form: "Shipped by the grace of God, in good order, by A. B., merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river Thames, and bound for Barcelona, in Spain, 20 bales of broadcloth, marked and numbered as per margin; and

20 Story, Bailm. § 495.

21 Liverpool & G. W. S. Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 437, 9 Sup. Ct. 469, 32 L. Ed. 788.

22 Lamb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020; Dan (D. C.) 40 Fed. 691; Nugent v. Smith, 1 C. P. D. 423; C. R. Sheffer, 249 Fed. 600, 161 C. C. A. 526.

HUGHES, ADM. (2D ED.)—11

are to be delivered in the like good order and condition at Barcelona aforesaid (the dangers of the sea excepted), unto E. F., merchant there, or to his assigns, he or they paying for such goods, per piece freight, with primage and average accustomed. In witness whereof the master of said ship hath affirmed to three bills of lading of this tenor and date, one of which bills being accomplished, the other two to stand void. And so God send the good ship to her destined port in safety.

"Dated at London the

day of."

This form is substantially the same as that used to-day by the coastwise schooners.

But under modern business methods a shipper of produce for export, like cotton, tobacco, or grain, can go to his railway station far inland, and procure a through bill of lading to England or the Continent. This is a very elaborate document, amphibious in nature, as half its stipulations apply to land carriage and half to water carriage. A sample may be seen in a footnote to the Montana.23

SAME-NEGOTIABILITY

80. A bill of lading is negotiable only in a qualified sense. It does transfer the title, but it is not so far negotiable as to shut out all defenses which could be made between the carrier and the original holder.

For instance, in the Treasurer," the assignee of a bill of lading illegally refused to pay the freight. The consignee treated this as rescinding the contract of sale between him and the assignee for the cargo represented by the bill of lading, and sold it to a third party. The assignee thereupon proceeded against the ship. Judge Sprague held that, as he had illegally refused to pay the freight, the master could

have sold the cargo, and that the indorsing of the bill of lading to him gave him no greater rights than any other delivery by symbol could have given; that such a delivery had no greater efficacy than a manual delivery of the property itself, and therefore his action could not be maintained.

It is well settled that the master may prove a short delivery of cargo in cases where he is not responsible even against an assignee of a bill of lading.25

A master cannot bind the vessel or owners by receipting for goods not actually in his custody, and such defense can be set up even against a bona fide holder of the bill of lading, though it is sometimes a nice question as to the exact point at which the goods passed into the custody of the master.20

A recital in the bill of lading that goods are received in good condition puts upon the carrier the burden of proving a loss by excepted perils in case the goods when delivered are in a damaged condition.27

SAME-EXCEPTIONS IN GENERAL

81. Independent of statute, a carrier cannot stipulate for exemption from negligence in a bill of lading, as such a stipulation contravenes public policy.28

25 Seefahrer (D. C.) 133 Fed. 793; John Twohy (D. C.) 243 Fed. 720.

20 American Sugar Refining Co. v. Maddock, 93 Fed. 980, 36 C. C. A. 42; Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L. Ed. 599; Missouri Pac. R. Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 944; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050.

27 BRITTAN v. BARNABY, 21 How. 527, 16 L. Ed. 177; Nelson v. Woodruff, 1 Black, 156, 17 L. Ed. 97; Jahn v. Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748.

§ 81. 28 NEW YORK C. R. CO. v. LOCKWOOD, 17 Wall. 357, 21 L. Ed. 627; Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed.

But he may independent of statute, require the shipper to value the goods in the bill of lading, and limit his liability to that valuation.29 And he may limit his liability for a passenger's baggage.30 He may require claims to be made against him in a limited time.31

Under the decisions of the English courts, a carrier may stipulate for exemption from negligence. As much of the foreign carrying trade is done in English bottoms, some smart Englishman inserted in their bills of lading a clause known as the "flag clause," which stipulated that the contract of carriage should be governed by the law of the vessel's flag. The object was to protect the English carrier against the American shipper. The American courts as a rule have refused to enforce this clause, looking upon it as an indirect attempt to stipulate against negligence.32

It is beyond the limits of this treatise to discuss the construction of the various exceptions contained in bills of lading, or the acts of Congress passed in recent years in regulation of common carriers, and primarily directed at land carriage, though often affecting sea carriage.

29 Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Reid v. Fargo, 241 U. S. 544, 36 Sup. Ct. 712, 60 L. Ed. 1156.

30 Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. Ed. 587.

31 Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Jamison v. New York & P. S. S. Co. (D. C.) 241 Fed. 389; San Guglielmo, 249 Fed. 589, 161 C. C. A. 514.

32 Guildhall (D. C.) 58 Fed. 796; Id., 64 Fed. 867, 12 C. C. A. 445; Glenmavis (D. C.) 69 Fed. 472; Victory (D. C.) 63 Fed. 640; Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190.

SAME-EXCEPTION OF PERILS OF THE SEA

82. The term "perils of the sea" in a bill of lading means accidents incident to navigation which are unavoidable by the use of ordinary care.

There is a mass of learning and refinement of distinction as to the proper construction of that universal clause, "perils of the sea." It means such accidents incident to navigation as are unavoidable and are the sole proximate cause of the loss. Mr. Justice Woods rather broadly defines the expression as "all unavoidable accidents from which common carriers by the general law are not excused, unless they arise from act of God." 33

The accident from which a carrier is exempted under this clause must arise independently of his acts. If his negligence co-operates, the carrier is responsible.34 Hence there are a great many decided cases on the question whether the proximate cause of the loss was his act or a peril of the

sea.

The G. R. BOOTH 35 is instructive on this point, as it reviews the American decisions. In it the Supreme Court held that a loss caused by an explosion of detonators which blew a hole in the ship, and let the water rush in, was not a peril of the sea; that the phrase alluded to some action of wind or wave, or to injury from some external object, and did not cover an explosion arising from the nature of the cargo; and that the proximate cause was the explosion, and not the inrush of the water.

To show how narrow is the line of demarkation, the court

§ 82. 83 Dibble v. Morgan, 1 Woods, 406, Fed. Cas. No. 3,881. See, also, Southerland-Innes Co. v. Thynas, 128 Fed. 42, 64 C. C. A 116.

34 Jeanie, 236 Fed. 463, 149 C. C. A. 515. Compare the meaning of the clause in a marine insurance policy, ante, pp. 75, 80.

35 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234.