be made in writing, subscribed by him (or them), and attested by a subscribing witness, ready to be delivered to the said parties on or before the day of next. But before proceeding to take any testimony therein, the arbitrator shall be sworn "faithfully and fairly to hear and examine the matters in controversy between the parties to these presents, and to make a just award, according to the best of his (or their) understanding." And the said parties to these presents do hereby agree that judgment in the case (in question) shall be rendered upon the award which may be made pursuant to this submission, to the end that all matters in controversy in that behalf, between them, shall be finally concluded. Then the above obligation to be void; otherwise to remain in full force and virtue. Sealed and delivered in presence of (Signature.) (Seal.) [To make the contract complete, the other party should execute and deliver a counterpart to this bond.] (176.) AWARD OF ARBITRATORS. TO ALL TO WHOM THESE PRESENTS SHALL COME, We (names of the arbitrators), to whom was submitted as arbitrators the matters in controversy existing between as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the one thousand eight hundred and day of the arbitrators Now, THEREFORE, Know Ye, That we mentioned in the said bonds, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing; that is to say, the said (here follows the award). have hereunto subscribed these presents, one thousand eight hundred and this IN WITNESS WHEREOF, day of In the presence of (Signatures.) CHAPTER XXII. THE CARRIAGE OF GOODS AND PASSENGERS. SECTION I. A PRIVATE CARRIER. One who carries goods for another is either a private carrier or a common carrier. The law makes an important distinction between them. A private carrier is one who carries for others once, or sometimes, but who does not pursue the business of carrying as his usual and professed occupation. The contract between him and the owner of the goods which he carries is one of service, and is governed by the ordinary rules of law. Each party is bound to perform his share of the contract. Such a carrier must receive, care for, carry, and deliver the goods, in such wise as he bargains to do. If he carries the goods for hire, whether actually paid or due, he is bound to use ordinary diligence and care; by which the law means such care as a man of ordinary capacity would take of his own property under similar circumstances. If any loss or injury occur to the goods while in his charge, from the want of such care or diligence on his part, he is responsible. But if the loss be chargeable as much to the fault of the owner as of the carrier, he is not liable. The owner must show the want of care or diligence on the part of the private carrier, to make him liable; but slight evidence tending that way would suffice to throw upon him the burden of accounting satisfactorily for the loss. And if there is such negligence on the part of the carrier, or of a servant for whom he is responsible, the carrier is liable, although the loss be caused primarily by a defect in the thing carried. If he carries the goods without any compensation, paid or promised, he is, in the language of the law, a gratuitous bailee, or mandatary he is now bound only to slight care; which is such care as every person, not insane or fatuous, would take of his own property. For the want of this care, which would be gross negligence, he is responsible, but not for ordinary negligence. We sum up what may be said of the private carrier in the remark, that the general rules which regulate contracts and mutual obligations apply to the duties and the rights of a private carrier, with little or no qualification. But it is otherwise with a common carrier. SECTION II. THE COMMON CARRIER. The law in relation to the rights, the duties, and the responsibili ties of a common carrier is quite peculiar. The reasons for it are discernible, but it rests mainly upon established usage and custom. And as these usages have changed considerably in modern times, this law has undergone important modifications. He is a common carrier "who undertakes, for hire, to transport the goods of such as choose to employ him from some known and definite place or places to other known and definite place or places. He is one who undertakes the carriage of goods as a business; and it is mainly this which distinguishes him from the private carrier. The rights and responsibilities of the common carrier may be briefly stated thus: He is bound to take the goods of all who offer, if he be a carrier of goods, and the persons of all who offer, if he be a carrier of passengers; and to take due care and make due transport and delivery of them. He has a lien on the goods which he carries, and on the baggage of passengers, for his compensation. He is liable for all loss or injury to the goods under his charge, although wholly free from negligence, unless the loss happens from the act of God, or from the public enemy. These three rules will be considered in the next section. The important thing to be remembered is, that a private carrier is not liable for injury to persons, or loss of or injury to goods, without fault or negligence on his part; but a common carrier is liable, without any fault or negligence on his part. Truckmen or draymen, porters, expressmen, and others who undertake the carriage of goods for all applicants from one city or town to another, or from one part of a city or town to another, are chargeable as common carriers. So, proprietors of stage-coaches are chargeable as common carriers of passengers, and of the baggage of passengers; or of the baggage of others, if they so advertise themselves. So are hackney-coachmen within their accustomed range. If drivers of stages or omnibuses commonly carry and receive pay for goods or parcels which are not the baggage of passengers, and are held out or advertised, or generally known, as so carrying them, they are common carriers of goods, and the proprietors are liable for the loss of such parcels, although neither they nor the drivers were in fault. But if there is no such habit or usage, and the driver receives such a parcel to be carried somewhere, and is paid for it, the driver carries it as a private carrier, and not as a common carrier, and is chargeable only for negligence or fault. And if the line of carriages is established for passengers, and the driver does not account for what is paid him for occasional parcels, but takes it as his own perquisite, the proprietors are not answerable even for the driver's fault or negligence, unless circumstances in some way bring the fault home to them. In this country, in recent times, the business of carrying goods and passengers is almost monopolized by what are called expressmen, by railroads, or by lines of steam-packets along our coasts, or upon our navigable streams or lakes. All these are undoubtedly common carriers; and although their peculiar method of carrying on this business is new, there can be no doubt of their being, to all intents and purposes, common carriers. Ordinary sailing-vessels are sometimes said to be common carriers. We should be disposed to restrict this term, however, to regular packets; or, at most, to call by this name general freighting ships. It is not, however, necessary to consider this question, as water-borne goods are now almost always carried under bills of lading, which determine the relations and respective rights of the parties. The law of bills of lading is stated in the next section. The boatmen on our rivers and canals are common carriers; and ferrymen are common carriers of passengers by their office, and may become common carriers of goods by taking up that business. A steamboat usually employed as a carrier may do something else, as tow a vessel out of a harbor, or the like; and the character of common carrier does not attach to this especial employment, and carry with it its severe liabilities. Therefore, for a loss occurring to a ship in her charge while so employed, the owner of the steamer is not liable without negligence on his part, or on the part of those whom he employs. The same person may be a common carrier, and also hold other offices or relations. He may be a warehouseman, a wharfinger, or a forwarding merchant. The peculiar liabilities of the common carrier do not attach to either of these offices or employments. Thus, a warehouseman is liable for loss of the goods which he takes for storage, only in case of his own negligence: he is not, as a common carrier is said to be, an insurer of the goods. The question then arises, when the liability of such a person is that of a warehouseman, and when it is that of a carrier. If a carrier receives goods to be stored until he can carry them, — a canal-boatman, for example, or if, at the end of the journey, he stores them for a time, for the safety of the goods or the convenience of the owner, while thus stored he is liable only as warehouseinan. But if he puts them into his store or office only for a short time, and for his own convenience, either at the beginning or end of the transit (or journey), they are there in his hands. as carrier. Where these relations seem to unite and mingle in one person, it may be said to be the general rule, that, wherever the deposit, in whatever place or building, is secondary and subordinate to the carriage of the goods, which is therefore the chief thing, the party taking the goods is then a carrier, and is liable as such; and otherwise, he is a depositary only of some kind. If, therefore, goods are delivered to a carrier, or at his depot or receiving-room, with directions not to carry them until further orders, he is only a depositary, and not a carrier, until those orders are received; but when they are received, he becomes a carrier; and if the goods are afterwards lost or injured before their removal, he is liable as a common carrier, without negligence or fault on his part. SECTION III. BILLS OF LADING. The rights and obligations of the ship-owner and the shipper are stated generally in an instrument of which the origin is lost in its antiquity, and which is now in universal use among commercial nations, with little substantial variety of form. It is called the Bill of Lading. It should contain the names of the consignor, of the consignee, of the vessel, of the master, of the place of departure, and of the place of destination; also the price of the freight, with primage and other charges, if any there be, and, either in the body of the bill or in the margin, the marks and numbers of the things shipped, with sufficient precision to designate and identify them. It should be signed by the master of the ship, who, by the strict maritime law, has no authority to sign a bill of lading until the goods are actually on board. There is some relaxation of this rule in practice, but it should be avoided. Usually one copy is retained by the master, and three copies are given to the shipper; one of them he usually retains, another he sends to the consignee with the goods, and the other he sends to the consignee by some other conveyance. The delivery of the goods promised in the bill is to the consignee, or his assigns; and the consignee may designate his assigns by writing on the back of the bill," Deliver the within-named goods to A B," and signing this order; or the consignee may indorse the |