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attention which must be bestowed upon them in the event of the many accidents which may happen to them during the carrier's custody.

Sec. 494. (§ 291a.) General nature of carrier's duty.—“A carrier's duty," it is said, "is not limited to the transportation of goods delivered for carriage. He must exercise such diligence as is required by law to protect the goods from destruction and injury resulting from conditions which, in the exercise of due care, may be averted or counteracted. He must guard the goods from destruction or injury by the elements; from the effects of delays; indeed, from every source of injury which he may avert, and which, in the exercise of care and ordinary intelligence, may be known or anticipated. Unknown causes, or those which are inherent in the nature of the goods and cannot be, in the exercise of diligence, averted, will not render the carrier liable. The nature of the goods must be considered in determining the carrier's duty. Some metals may be transported in open cars. Many articles of commerce, when transported, must be protected from rain, sunshine and heat, and must have cars fitted for their safe transportation. Live animals must have food and water when the distance of transportation demands it. Fruit and some other perishable articles must be carried with expedition and protection from frost. So the carrier must attend to the character of the goods he transports. He is informed thereof by inspection of the freight bills or by other papers accompanying the shipment."

Sec. 495. (§ 292.) His duty to provide sufficient means of conveyance. The first duty of the common carrier, who holds himself out to the public as ready to engage in the carrying business, is of course to provide himself with reasonable facilities and appliances for the transportation of such goods as he holds himself out as ready to undertake to carry. He must put himself in a situation to be at least able to transport an amount of freight of the kind which he proposes to carry equal to that which may be ordinarily expected to seek transportation upon his route; for, while the law will sometimes excuse him for

1. Beck, J., in Beard v. Railway Co., 79 Iowa, 518.

delay in the transportation, and even for a refusal to accept the goods which may be offered for carriage, when there occurs an unprecedented and unexpected press of business, it will not do so when his failure or refusal results from his not having provided himself with the means of present transportation for all who may apply in the regular and expected course of business. He cannot discriminate in favor of the business of one station to the prejudice and injury of the business of another station of the same importance; nor can he discriminate in favor of one shipper although the demands for transportation facilities exceed his capacity or the anticipated or usual calls upon him. And if, owing to an unexpected influx of business, there results a temporary scarcity of such facilities, he will be entitled to apportion the same in an equitable manner among his patrons, having in mind their relative volume of business, facilities for loading, and the merchandise in sight.

The law implies an agreement to furnish the necessary facilities for transportation on a particular day when a request has in due time been made by the shipper of a station agent, who, for that purpose, has the authority of a general agent. If for any cause the carrier is unable to furnish vehicles at the time he has agreed to do so, it becomes his duty to inform the shipper of such fact within a reasonable time; and if, in the absence of such notice, the shipper believes that the vehicles will be in readiness at the time named, and, relying upon the conduct of the carrier, he presents his goods at the time and place agreed upon, and there are no vehicles ready to receive

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them, the carrier will be liable in damages if injury is caused by his neglect of such duty. But where the carrier has agreed to furnish vehicles on a particular day, a delivery at any hour of the day will be sufficient.s

Sec. 496. Same subject-Must inform shipper of necessary delay-Burden of proof.-But while the carrier cannot be excused if he has failed to provide himself with a sufficiency of conveyances and other means for the transportation of that which he may reasonably expect to be offered, he is not bound to provide in advance for extraordinary occasions nor for an unusual influx of business. But while an unusual press of business may justify his refusal to accept the goods which may be offered, if, having provided himself with reasonable facilities, he finds it impossible from previous engagements to commence its shipment according to the usual and regular course of his business, and he accepts the goods without notice to the shipper of the circumstances, and without obtaining his assent, either express or implied, he cannot be heard to say that his delay was caused by such a contingency. He must, at his peril, inform the shipper of the necessary delay, that the shipper may exercise his own discretion as to the propriety of making the shipment; and even though the delay may occur from such a cause upon a connecting route over which he has bound himself to carry the goods to destination, which may not be known. to him at the time of their acceptance, he is liable for any un

7. Nichols v. Railroad Co., 24 Utah, 83, 66 Pac. Rep. 768, 91 Am. St. Rep. 778.

Where a shipper makes application for cars on a certain day, it is the duty of the carrier to advise him within a reasonable time if it will be unable to furnish them at that time; and if it fails to do so, and leads the shipper to rely on having the cars on that day, it will be liable to him in damages. Ayres v. Railway Co., 71 Wis. 372.

formed that there are no cars in
which to ship his live stock, and
he permits the stock to remain in
the carrier's pens to await the ar-
rival of cars, the carrier will be
liable for a shrinkage occasioned
by a lack of food and water
where he promises the shipper
that the cars will arrive before
the stock is in need of food and
water. Gulf, etc. R'y Co. v. House
& Watkins,
Tex. Civ. App.

88 S. W. Rep. 1110.
8. McGrew v. Railway Co., 109

And although the shipper is in Mo. 582, 19 S. W. Rep. 53.

reasonable delay in the transportation, and such unavoidable difficulty, though wholly unknown and unanticipated, will not excuse him. The burden of proving that he could not in a particular instance furnish the cars needed without jeopardizing his other business, and with reasonable diligence, is upon the carrier.10

Sec. 497. (§ 293. Same subject-Must provide safe and suitable vehicles. And not only must he provide himself with means sufficient to transact the business for which he has advertised and held himself out to the public as soliciting, but he must provide himself with means of transportation safe and suitable for his business in which he engages. No defect in any vehicles, or in any instrument used in the transportation of goods, can excuse the common carrier from his common-law liability to be answerable for the safety of the goods at all

9. The acceptance of the goods without notifying the shipper that they cannot, owing to extraordinary conditions prevailing upon the route, be promptly delivered is tantamount to an assurance that they will be delivered within a reasonable time. Russell Grain Co. v. Railroad Co., Mo. App. 89 S. W. Rep. 908; Texas, etc. R'y Co. v. Kolp, Tex. Civ. App. 88 S. W. Rep. 417; Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. Rep. 630; Railway Co. . Edwards, 78 Fed. 745, 24 C. C. A. 300; Pittsburgh, etc. R'y Co. v. Racer, 5 Ind. App. 209, 31 N. E. Rep. 853; Railroad Co. v. Farmers', etc. Firm, 107 Ky. 53, 52 S. W. Rep. 972; State v. Railroad Co., Neb. 99 N. W. Rep. 309; Toledo, etc. R. R. v. Lockhart, 71 Ill. 627; The Great W. etc. R. R. v. Burns, 60 id. 284; Galena, etc., R. R. v. Rae, 18 id. 488; Wibert v. Railroad, 12 N. Y. 245; 8. c. 19 Barb. 36; East Tenn. & Ga. R. R. v. Nelson, 1 Cold. 272;

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Carter v. Peck, 4 Sneed, 203; Southern Ex. Co. v. Womack, 1 Heisk. 256; Place v. Union Ex. Co., 2 Hilton, 19; Ill. Cent. R. R. v. Waters, 41 Ill. 73; Great W. R. R. v. Hawkins, 18 Mich. 427; Porcher v. Railroad, 14 Rich. (Law), 181; Sager v. Railroad, 31 Me. 228; Empire T. Co. v. Wamsutta Oil Co., 63 Penn. St. 14; Condict v. Railroad, 54 N. Y. 500; Ill. Cent. R. R. v. Cobb, 64 Ill. 128; Mich. Cent. R. R. v. Burrows, 33 Mich. 6; Ayres v. Railway Co., 75 Wis. 215.

And where the delay arises through the carrier's inability to make delivery to a succeeding carrier, he must, if practicable, notify the shipper of such delay and not undertake to forward the goods by another route than that contemplated. Fisher v. Railroad Co., 99 Me. 338, 59 Atl. Rep. 532, 105 Am. St. Rep. 283, 68 L. R. A. 290.

10. Ayres v. Railway Co., 71 Wis.

372.

events, except when the loss may occur from the act of God or of the public enemy. He can guard himself against responsibility for loss or damage from such cause only by contract; and, as we have seen, if the accident which has occasioned such loss or damage can be traced to his negligence, not even his contract will be a protection to him except in those states in which he is allowed to contract for exemption from the consequences of his negligence; and not in them, unless such contract explicitly so provides. If he be a carrier by water, he must provide himself with a vessel tight and staunch and provided with all tackle and apparel of every kind which may be in use by those skilled in the business and which may promote the safety of the voyage. It is a part of the contract on the part of every owner of a vessel who holds himself out as a common carrier, that his ship is seaworthy.11 This is implied by the law as the very foundation of his employment, and if any damage occurs to the goods by reason of its unseaworthiness, or because it is not provided with all the needed appliances for avoiding or escaping the danger, it will

11. "In every contract for the carriage of goods by sea," says Mr. Justice Gray, "unless otherwise expressly stipulated, there is a warranty on the part of the shipowner that the ship is seaworthy at the time of beginning her voy. age, and not merely that he does not know her to be unseaworthy, or that he has used his best efforts to make her seaworthy. The warranty is absolute that the ship is, or shall be, in fact seaworthy at that time, and does not depend on his knowledge or ignorance, his or negligence." The Caledonia, 43 Fed. Rep. 681, citing Work v. Leathers, 97 U. S. 379; Cohn v. Davidson, 2 Q. B. Div. 455; The Glenfruin, 10 Prob. Div. 103. See, also, Bowring v. Thebaud, 42 Fed. Rep. 794; Eugene Vesta, 28 Fed. Rep.

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762;

Sumner v. Caswell, 20 Fed. Rep. 249; Crow v. Falk, 8 Q. B. 467; Valente v. Gibbs, 6 C. B. (N. S.) 270; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644, affirming 43 Fed. 681 and 50 Fed. 567.

See also sections on this subject under the Harter Act, ante, §§ 345-387.

A vessel may be unseaworthy as to a passenger's baggage. The Kensington, 183 U. S. 263, 46 L. Ed. 190, 22 Sup. Ct. R. 102, reversing 94 Fed. 885, 36 C. C. A. 533 and 88 Fed. 331. In Upperton v. Steamship Co., (1903), 89 Law T. 289, 9 Com'l Cas. 50, the vessel was held unseaworthy as to a passenger's baggage because it was stowed in one of the lavatories.

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