may not be responsible for any injury caused by defect in placing or managing the property; but this does not necessarily prevent the ferryman from being a carrier. So in the leading case of White v. Winnisimmet Co.,5 Mr. Justice Dewey said: "To a certain extent, persons keeping and maintaining a ferry are common carriers, and subject to the liabilities attaching to common carriers. It would be so, if a bale of goods or an article of merchandise was delivered by the owner to the agent of a ferry company, to be carried from one place to another for hire. The principle above stated would embrace the case of a horse and wagon received by a ferryman to be transported by him on a ferry-boat, the ferryman accepting the exclusive custody of the same for such purpose, and the owner having, for the time being, surrendered the possession to the ferryman. Where the ferryman takes such charge of the passenger's goods (as was probably the ordinary case in the older ferries), the ferryman is a carrier of the goods as well as of the passenger."

The modern ferryman, however, seldom concerns himself with the property of the traveller; and while he is, of course, a carrier of the passenger, the goods are not so bailed to him as to constitute him a carrier of the goods. As Mr. Justice Dewey said further, in his opinion already cited:8 "But the traveller uses the ferry-boat as he would a toll-bridge, personally driving his horse upon the boat, selecting his position on the on the same, and himself remaining on the boat; neither putting his horse into the care and custody of the ferryman, nor signifying to him or his servants any wish or purpose to do so; and the only possession and custody, by the ferryman, of the horse and vehicle to which he is attached, is that which necessarily results from the traveller's driving his horse and wagon, or other vehicle, on

57 Cush. (Mass.) 155 (1851).

6 See, also, New York v. Starin, 106 N. Y. 1, 12 N. E. 631 (1887).

7 Walker v. Jackson, 10 M. & W. 161 (1842); Wilsons v. Hamilton, 4 Ohio S. 722 (1855); Cook v. Gourdin, 2 N. & McC. (S. C.) 19 (1819). 8 White v. Winnisemmet Co., supra.

board the boat, and paying the ordinary toll for a passage. The case of such a traveller, though not entirely similar, much more resembles that of a traveller upon a toll-bridge or turnpike road; who, while he uses the easement of another, yet retains the possession and custody of his horse and wagon.'

§ 85. Goods carried across a bridge.

A bridge company which owns a bridge used by a railroad. company is not a carrier of the goods hauled over it by the railroad; even if the bridge company itself furnishes the motive power for hauling cars over its tracks. While it hauls the cars, it has no possession of the contents of the cars, which are at all times in the possession of the railroad company as the only carrier. 10 On the same principle an ordinary toll-bridge is not

a common carrier. 11

86. Issue of bill of lading without receipt of goods.

Since a bailment is required before the carrier of goods becomes responsible as such, it must be clear that without such bailment one cannot be a carrier of goods. It sometimes hap pens that a bill of lading is issued by the servant of a carrier without a delivery to the carrier of the goods named in the bill. Such issue of a bill of lading does not make the carrier responsible as a carrier for the goods described in the bill.12

To the same effect, Frierson v. Frazier (Ala.), 37 So. 825 (1904); Wyckoff v. Queen's County Ferry Co., 52 N. Y. 32, 11 Am. Rep. 650 (1873).

10 Kentucky & I. Bridge Co. v. Louisville & M. R. Ry., 37 Fed. 567, L. R. A. 289 (1889). But in Norfolk & P. Belt Line Co. v. Com., 103 Va. 289, 49 S. E. 39 (1904), a switching company was held to be a common carrier.

11 Griegsby v. Chappell, 5 Rich. L. (S. C.) 443 (1852).

12 Schooner Freeman v. Buckingham, 18 How. (U. S.) 182 (1855); Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998 (1881); The Loon, 7 Blatch. 244, Fed. Cas. 8,499 (1870); Fellows v. The Powell, 16 La. Ann. 316, 79 Am. Dec. 581 (1851); Baltimore & O. R. R. v. Wilkens, 44 Md. 11, 22

In some jurisdictions, to be sure, it has been held that if a bill of lading was issued by the proper agent of the carrier and was indorsed for value to a bona fide purchaser, the carrier could not as against him dispute the receipt of the goods, 13 and where a carrier issued two bills of lading for the same goods, and the two bills came into the hands of two holders for value and without notice, it was held that the carrier could not dispute the receipt of two lots of goods. 14 But this is based on the doctrine of estoppel; the carrier is not responsible as such on the real facts, but in this particular case the real facts cannot be shown.

TOPIC D.-TRANSPORTATION NECESSARY FOR THE CONCEPTION OF CARRIAGE.

87. Carrier must undertake transportation.

Supposing a bailment of goods or an acceptance of a passenger, it is still necessary in order to have a case of carriage that transportation should be furnished, or at least undertaken. One who does not undertake to transport goods or a passenger cannot be a carrier, whatever else he may be, although he may be engaged in a public employment analogous to that of the carrier. To carry on transportation a vehicle of some sort is almost indispensible. The vehicle used is immaterial. Thus, a common carrier may transport on a sled hauled by an oxteam.1 But a "slide" constructed in a river to facilitate the

Am. Rep. 26 (1875); Sears v. Wingate, 3 Ali. (Mass.) 103 (1861); Louisiana Nat. Bank v. Lavielle, 52 Mo. 380 (1873); Williams v. Wilmington & W. R. R., 93 N. C. 42 (1885); Dean v. King, 22 Ohio St. 118 (1871); Grant v. Norway, 10 C. B. 665 (1851).

13 Wichita Sav. Bank v. Atchison, T. & S. F. R. R., 20 Kan. 519 (1878); Sioux City & P. R. R. v. First Nat. Bank, 10 Neb. 556 (1880); Armour v. Michigan C. R. R., 65 N. Y. 111, 22 Am. Rep. 603 (1875); Brooke v. New York, L. E. & W. R. R., 108 Pa. 529, 1 Atl. 206, 56 Am. Rep. 235 (1885).

14 Coventry v. Great Eastern Ry., 11 Q. B. D. 776 (1883).

1 Robertson v. Kennedy, 2 Dana (Ky.) 430 (1834).

passage of logs is not a carrier; not only does it not carry, but it is not even a bailee.2

§ 88. Storage hulks not carriers.

It is plain, of course, that those who purport to provide storage and nothing more, as wharfingers, warehousemen, grain elevator owners and cold storage proprietors, are in no sense carriers, since they do not purport to transport property. A test case for this may be found in New Zealand. There meat was received into a cold storage hulk, which was afloat in the harbor but moored for the season near to the wharves, to be kept until opportunity served to despatch the meat by steamers to foreign ports. The meat was injured, and the contention was that the law of common carriers applied. On that point Mr. Justice Denneston said: "I do not see that the fact of the subject-matter of this contract being, or having been, a ship and being afloat, in any way affects the position of the parties. The contract is for the hire of a store and machinery, the lessors to supply men and to do certain work on the goods stored. If this be so, it disposes of the applicability of a great majority of cases cited. The strong inclination both in the courts and the legislature to limit the attempts of common carriers by sea and land to contract themselves out of this liability for negligence seems based upon the same grounds, which originally led to their being saddled with the liability of insurers; the difficulties of proof where incidents must be within the knowledge mainly of the carrier and his servants, and the fact that in the cases of railway companies at least, they could often, if not restrained by law, dictate their own terms. I take the defendant company to be simply the bailee of the plaintiff company of the sheep

2 Queen v. McFarlane, 7 Can. 216 (1882).

3 Canterbury Meat Co. v. Shaw & Co., 7 L. R. New Zealand, 708 (1889).

frozen by it; what is called in the notes to Coggs v. Bernard, locatio operis faciendi." 2

$ 89. Log drivers not carriers.

A log-driver is not a carrier; for though he may take possession of the logs as a bailee, he does not undertake to carry, but only to perform certain services while the logs are being carried by a natural force. "This kind of service differs very much from the possession and transfer of articles which are always in custody, and which could not be moved except by the vehicles of the carrier. The entire absence of any motive power, and the function of guiding and regulating things which move themselves or are moved by some independent force, make it impossible to treat these classes of business as carriage in fact, and it is difficult to see how, if involving no carriage, there is any propriety in calling them carriage." 5 A logdriving company is, however, probably in the public employment."

§ 90. Drovers of cattle not carriers.

An agister of cattle, although a bailee, is not a carrier; for the transportation is furnished not by the agister, but merely by the cattle themselves. Drovers, or as the common law calls them, agisters, perform functions not unlike those of log drivers. Their animals move themselves, while logs are moved by the stream, and the beasts have a species of intelligence, while logs and currents move unconsciously. Yet the chief business of the men in charge of both is to prevent the property

4 Citing Smith's Leading Cases (8th Ed.), p. 232.

5 Campbell, J., in Mann v. White River L. & B. Co., 46 Mich. 38, 41 Am. Rep. 141 (1881).

6 Weymouth v. Penobscot L. D. Co., 71 Me. 29, B. & W. 27 (1880); (where, however, the public duty may have rested on the legal monopoly granted).