44 Barb. 655 | N.Y. Sup. Ct. | 1865
This is an appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
The action was by a common carrier, to recover freight for transporting a boat load of barley from St. Johns, Canada Bast, to New York. The defense was that the plaintiff failed to deliver .to the consignee at New York the full amount of barley received by him at St. Johns. Of the barley received by the plaintiff for transportation, at St Johns, and while era route through Lake Champlain, he was compelled, by stress of weather, to throw overboard 1243/? bushels in order to save the vessel and balance of the cargo from destruction. The loss, therefore, for which the defendant claimed to be allowed resulted from the extreme violence of the storm, and must be deemed providential— the act of God. It has been well settled for many years that a common carrier, according to his common law liability, is an insurer of the property received by him for transportation, against all loss and damage happening thereto while under his control, unless occasioned by the act of God or the public enemy. With this exception the common carrier warrants
Great storms are beyond the control of human agency, and loss and damage occasioned thereby are excused as the act of God. In this case the plaintiff, according to tlie evidence and the finding of the referee, was free from fault, and acted under an inevitable necessity in destroying a portion of the cargo. He was not, therefore, responsible for the loss, according to the rules of the common law applicable to common earners, in the absence of a special contract, incurring his general liability. The ordinary common law liability of a common earner may be limited or qualified by special agreement. This principle is now well settled in this state. (11 N. Y. Rep. 485. 24 id. 181. 25 id. 442. 43 Barb. 102.) These decisions are to the effect that a common carrier of goods may, by express contract, exempt himself from all liability, except perhaps in case of his own fraud or willful act. (8 N. Y. Rep. 375.) ' So, doubtless, he may by express contract assume and take upon himself all perils of navigation, including those attendant upon storms and tempests. In such case he would become by his agreement an insurer of the property against these perils. There would be nothing contrary to public policy, or in any respect illegal, in such a contract. By the bills of lading in this case, signed by the plaintiff, he was to deliver the property at the place of destination without delay—damage or deficiency in quantity specified, if any, to be- deducted from charges by consignee.
It is insisted on the part of the defendant, that by force of this contract the plaintiff was bound to deliver the property in the same condition as when received by him, without diminution. In other words, that the plaintiff thereby became the insurer of the property while under his control,
Ho error was committed in the reception or rejection of evidence. The judgment should be affirmed with costs.-
Boches, Baines and JRose-Icrans, Justices.]