delivered the opinion of the court.
The right of a common carrier to limit his responsibility by special contract has long been the settled law in England. It was the subject of frequent adjudication in her courts, and had there ceased to be a controverted point before the passage of the Carrier’s Act of 1830.
In this country, it was at one time a subject of much controversy whether any such limitation could be permitted. It was insisted that, exercising a public employment, the carrier owed duties at common law, from which public policy demanded that he should not be discharged even by express agreement with the owner of the goods delivered to him for transportation. This was the.ground taken by Mr. Justice Cowen, of the Supreme Court of New York, in
Cole
v.
Goodwin;
*
and, although what that learned judge said on this point was mere
obiter,
as the question presented was not upon the effect of a special agreement, but of a general notice, it appears to have been adopted by a majority of the court in the subsequent case of
Gould
v.
Hill.
†
But from this doctrine that-court has since receded; and, in a recent decision, the Court of Appeals of that State has affirmed
Nor do we perceive any good reason, on principle, why parties should not be permitted to contract for a limited responsibility. The transaction concerns them only; it involves simply rights of property; and the public can have no interest in requiring the responsibility of insurance to accompany the service of transportation in face of a special agreement for its relinquishment. By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailee and private carrier for hire.
The law prescribes the duties and responsibilities of the common carrier. He exercises, in one sense, a public employment, and has duties to the public to perform. Though he may limit his services to the carriage of particular kinds of goods, and may prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he may have to encounter, he can make no discrimination between persons, or vary his charges from their-condition or character. He is bound to accept all goods offered within the course of his employment, and is liable to an action in case of refusal. He is chargeable for all losses except such as may be occasioned by the act of God or the public enemy. He insures against all accidents which result from human agency, although occurring without any fault or neglect on his part; and he cannot, by any mere act of his own, avoid the respon
The owner of the goods may rely upon this responsibility imposed by the common law, which can only be restricted and qualified when he expressly stipulates for the restriction and qualification. But when such stipulation is made, and it does not cover losses from negligence or misconduct, we ■ can perceive no just reason for refusing its recognition and enforcement.
"We do not understand that the counsel of the plaintiff in error questions that the law is as we have stated it to be. His positions are that the agents of the plaintiff at Memphis, who made the contract with the Illinois Central Railroad Company, were not authorized to stipulate for any limitation of responsibility on the part of that company; and that no consideration' was given for the stipulation made.
The first of these positions is answered by the fact that it nowhere appears that the agents disclosed their agency when contracting for the transportation of the cotton. So far as the defendant could see, they were themselves the owners.
The second position is answered by the fact, that there is no evidence that a consideration was not given for the stipulation. The company, probably, had rates of charges proportioned to the risks they assumed from the nature of the goods carried, and the exception of losses by fire must necessarily have affected the compensation demanded. Be this as it may, the consideration expressed was sufficient to support the entire contract made.
The objection urged to the introduction of the copy of the bill of lading annexed to the deposition of the witness Trout, was properly overruled. Tlie deposition was taken upon a commission, and in such cases the general rule is, that all objections of a formal character, and such as might have been obviated if urged on the examination of the witness, must be raised at such examination, or upon motion
Judgment affirmed.
Notes
Parsons v. Monteath, 13 Barbour, 353; Moore v. Evans, 14 Id. 524; Dorr v. The New Jersey Steam Navigation Co., 11 New York, 486.