174. Hoymen. As in the case of land carriage, so in the case of water carriage, there are carriers who do not ply regularly between fixed termini, but carry for those who employ them anywhere on a certain river or within a certain harbor. Such persons are ordinary carriers, at least, though whether they are common carriers or not may depend upon the nature of their profession. If however the lighterman does not take the goods, but they remain in the control and possession of the owner, the lighterman is to be regarded as merely furnishing the motive power; not taking possession he cannot be technically a carrier.1 § 175. Ships. That there was no essential difference between carriage by land and carriage by sea was established at a comparatively early day. Hale v. New Jersey Navigation Company, is an excellent summary of the matter. The suit was brought against the defendants, as common carriers, for two carriages shipped on board the "Lexington," to be transported in said boat, for hire, from New York to Boston or Providence. The boat and goods were destroyed by fire, in the Sound; and a verdict was given for the plaintiff, the defendants excepted to the charge, and claimed that they were not common carriers or sub Kentucky.-Robertson v. Kennedy, 2 Dana (Ky.), 430, 26 Am. Dec. 466 (1834). Mississippi. Harrison v. Roy, 39 Miss. 396 (1860). Ohio. Samms v. Stewart, 20 Ohio St. 69, 55 Am. Dec. 393 (1847). Pennsylvania.-Gordon v. Hutchinson, 1 W. & S. (Pa.) 285, 37 Am. Dec. 464, B. & W. 3 (1841). Texas.-Chevallier v. Strahan, 2 Tex. 115, 47 Am. Dec. 639n (1849). 4 Liver Alkali Co. v. Johnson, L. R. 9 Exch. 338 (1874); Ingate v. Christie, 3 C. & K. 61, B. & W. 7 (1850); Maring v. Todd, 4 Campb. 225, 1 Starkie, 72 (1815); Dale v. Hall, 1 Wils. Chan. 281 (1750); Trent., etc., Nav. Co. v. Wood, 4 Dougl. 287, 3 Esp. 127, 1 T. R. 28 note (1785). 5 15 Conn. 539, 39 Am. Dec. 398 (1843). ject to the rules that govern common carriers. Mr. Justice Williams said: "It was long since settled that any man undertaking for hire to carry the goods of all persons indifferently, from place to place, is a common carrier. Common carriers, says Judge Kent, consist of two distinct classes of men, viz., inland carriers by land or water, and carriers by sea; and in the aggregate body are included the owners of stage-coaches, who carry goods, as well as passengers for hire, wagoners, teamsters, cartmen, the masters and owners of ships, vessels and all water-craft, including steam vessels and steam towboats belonging to internal as well as coasting and foreign navigation, lightermen and ferrymen. And there is no difference between a land and a water carrier." 6 § 176. Canal boats. Transportation over most canals has been largely carried on from the time of their first construction to the present day by canal boatmen who take possession of the goods to be forwarded, store them in their canal boats, keep charge over them 6 United States.-Propeller Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41 (1858); Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985 (1851); The Delaware, 14 Wall. 579, 20 L. Ed. 779 (1871); The Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772 (1869); The Gold Hunter, 1 Blatchf. & H. (U. S.) 300, 10 Fed. Cas. 5,513 (1832); The Montana, 22 Blatchf. (U. S.) 372, 22 Fed. 715 (1884). Connecticut. Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398 (1843); Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745 (1838). Georgia.-Brown v. Clayton, 12 Ga. 564 (1853); Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847). Massachusetts.-Hastings v. Pepper, 11 Pick. 41 (1831); Gage v. Tirrell, 9 Allen, 299 (1864). Allen v. New York.-Orange Bank v. Brown, 3 Wend. 158 (1829); Sewall, 2 Wend. 327 (1829); Elliott v. Rossell, 10 Johns. 1, 6 Am. Dec. 306 (1813). South Carolina.-Swindler v. Hilliard, 2 Rich. (S. C.) 286, 45 Am. Dec. 732 (1845). England.-Laveroni v. Drury, 8 Exch. 166, 16 Eng. L. & E. 510 (1854). during the transit, and make provision for the beasts of burden by which the boats are usually hauled from point to point. Obviously this business is carriage, and if it is professed for all that apply it is common carriage, and subject to all the liabilities of common carriage." 177. Steamboats. The invention of the application of steam propulsion to vessels did not alter the rule already established that those who carry goods and passengers as a general business by any vehicles or vessels are common carriers. The business is therefore public in character, provided that those who conduct it profess to serve all that apply, which may be established by the usual tests already discussed. A few representative cases are collected in the footnote. Steamboats, of course, are carriers of both goods and passengers usually.8 7 New York.-Demott v. Larauay, 14 Wend. 225 (1835); Parsons v. Hardy, 14 Wend. 215 (1835); Bowman v. Teal, 23 Wend. 306 (1840); Fish V. Clark, 49 N. Y. 122 (1872). North Carolina.-Williams v. Branson, 1 Murphy (N. C.), 417 (1810). Pennsylvania.-Humphreys v. Reed, 6 Whart. 435 (1841); Fuller v. Bradley, 25 Pa. St. 120 (1855). South Carolina.-Harrington v. Lyles, 2 Nott & McCord (S. C.), 88 (1819). Vermont. Spencer v. Daggett, 2 Vt. 92 (1829). England Hyde v. Trent Nav. Co., 5 T. R. 389 (1793); Trent Nav. Co. v. Wood, 3 Esp. 127 (1785). 8 United States.-The Commander in Chief, 1 Wall. 43, 17 L. Ed. 609 (1863); Jenks v. Coleman, 2 Sumner, 221, Fed. Cas. 7,258 (1835); Citizen's Bk. v. Nantucket Steamboat Co., 2 Story, 16, B. & W. 8, Fed. Cas. 2,730 (1841); Sch'r Emma Johnson, 1 Sprague 527, Fed. Cas. 4,465 (1860). Alabama.-Jones v. Pitcher, 3 Stew. & P. (Ala.) 136 (1833). Connecticut.-Crosby v. Fitch, 12 Conn. 410 (1838). Florida.-Bennett v. Filyaw, 1 Fla. 403 (1847). Illinois.-Dunseth v. Wade, 2 Scam. (Ill.) 285 (1840). Massachusetts.-Hastings v. Pepper, 11 Pick. 41 (1838). 178. Railways. It is a matter of history that where the first railways were laid down at the beginning of the nineteenth century the theory upon which they were constructed was that they would be public highways, for the use of which those that drove their vehicles over them should pay toll as for the use of a turnpike or a canal. The introduction of the steam locomotive brought about the end of that theory almost before it was put into practice. A train drawn by a locomotive was too expensive, the operation was too costly, and its management too intricate for any shipper, or even for any private carrier. Almost from the outset, therefore, the railway company provided and operated the engines and cars themselves, and accepted for transportation such goods as were offered. They thus became common carriers. The cases that hold this form so enormous a list that it is difficult to select any one in particular as an illustration. Perhaps the case of Southwestern Railroad Co. v. Webb involves as fundamental an issue as any. This was an action against the railroad company for loss of certain bales of cotton which it was alleged had been received by it as a common carrier. Mr. Justice Peters began his opinion with the recitation of certain principles which he held to be fundamental as to the business of railroading; he said: "It is now too well settled in this State to admit of question, that rail Mississippi.-Gilmore v. Carman, 1 Sm. & M. 279 (1843). New York.-Hollister v. Nowlen, 19 Wend. 234 (1838); Cole v. Goodwin, 19 Wend. 251 (1838); McArthur v. Sears, 21 Wend. 190 (1839); Pardee v. Drew, 25 Wend. 459 (1841). Ohio.-McGregor v. Kilgore, 6 Ohio, 359 (1834); Bowman v. Hilton, 11 Ohio, 303 (1842). Pennsylvania.-Hart v. Allen, 2 Watts (Penn.), 114 (1833); Harrington v. McShane, 2 Watts (Penn.), 443 (1834). South Carolina.-Faulkner v. Wright, Rice (Law), 107 (1838); McClure v. Hammond, 1 Bay, 99 (1860). Tennessee. Kirkland v. Montgomery, 1 Swan, 452 (1852); Porterfield v. Humphreys, 8 Humphr. 497 (1847). 9 48 Ala. 585 (1872). road companies are common carriers, and as such, that they are amenable to the liabilities imposed by the law applicable to common carriers as the same is administered in this State. There is no question made in this court as to the place of making the contract of transportation, or undertaking the duty to transport. The proceeding will then be treated as a transaction governed by the common law applicable to common carriers. The suit here is against the corporation only as a common carrier, and not as a warehouse keeper or a common bailee of goods and chattels delivered, to be safely kept for shipment. And the dominent question in the case is, when does the liability of the railroad company for transportation of goods and other articles to be carried on this road begin? Certainly just where that of any other common carrier's liability would begin; that is, as soon as the goods are delivered and received for transportation." The same view has been taken in all the cases in which the question has been raised. A few cases where the language is especially clear are subjoined.10 10 See, for examples: United States.-Railroad v. Lockwood, 17 Wall. 357, 21 L. Ed. 627 (1873). Alabama.-South-Western R. Co. v. Webb, 48 Ala. 585 (1872); Selma, etc., R. Co. v. Butts, 43 Ala. 385, 94 Am. Dec. 641 (1869). California. See Costa, etc., R. R. v. Moss, 23 Cal. 323 (1863); Tarbell v. Cent. Pac. R. Co., 34 Cal. 616 (1868). Connecticut.-Fuller v. The Railway, 21 Conn. 557 (1852). Georgia.-East Tenn., etc., R. Co. v. Whittle, 27 Ga. 535, 73 Am. Dec. 741 (1859). Illinois.―Chicago, etc., R. R. v. Thompson, 19 Ill. 578 (1858); Ill. Cent. R. R. v. Faulkenberg, 54 Ill. 88, 5 Am. Rep. 92 (1870); Toledo, etc, R. Co. v. Pence, 68 Ill. 524 (1873). Indiana.-Bansemer v. Toledo, etc., R. Co., 25 Ind. 434, 87 Am. Dec. 367 (1865). Massachusetts.-Norway Plains Co. v. Boston & Me. R. R., 1 Gray, 233, 61 Am. Dec. 423 (1854). New Hampshire.—Elkins v. Boston & M. R. R., 23 N. H. 275 (1851). New Jersey.-Rogers Locomotive Works v. Erie R. R., 5 C. E. Green (N. J.), 379 (1869). |