the absolute liability as an insurer exists, the fact that the goods are injured or seized by a mob of rioters, which the carrier is absolutely unable to resist, furnishes no excuse, however unexpected the attack may have been. It should be added in this connection that pirates are enemies of all mankind, although outlaws are not.

§ 988. Vice of the property.

Moreover, there is an established excuse if the loss happens by deterioration or disintegration of the goods in transit, whether it is due to inherent characteristics or precipitated by external factors. If for example the loss happens by a freezing in winter 1 or if by melting in summer 2 there is an apparent excuse. Likewise a loss caused by the fermentation of the molasses being carried, or by the decay of the fruit in transit, will be excused. In any case, the deterioration of the goods must be the result of natural causes." But it is not necessary to show that the loss would have occurred if the goods had not been moved." § 989. Natural propensities of animals.

4

This excuse finds its chief scope in the law relating to the carriage of animals. It is almost universally agreed that this is common carriage with all the law thereto

1 McGraw v. Baltimore & O. R. R. Co., 18 W. Va. 361 (1881).

It is otherwise if the carrier was negligent in the matter. Fox v. Boston & M. R. R. Co., 148 Mass. 220, 19 N. E. 222 (1889).

2 Nelson v. Woodruff, 1 Black (U. S.), 156 (1861).

It is otherwise if the carrier was negligent in not providing against this. Beard v. Illinois Central R. R. Co., 79 Iowa, 518, 44 N. W. 800, 18 Am. St. Rep. 381, 7 L. R. A. 280 (1890).

Faucher v. Wilson, 68 N. H.

338, 38 Atl. 1002, 39 L. R. A. 431 (1895).

The Collenberg, 1 Black (U. S.), 170, 17 L. ed. 89 (1861).

Southern Express Co. v. Bailey, 7 Ga. App. 331, 66 S. E. 960 (1910). Lester v. Lancashire & Y. Ry. Co. (1903), 1 K. B. 878, 72 L. I. K. B. 385.

7 The better way of stating the law is to say that the carrier of animals has in an extreme degree for a common carrier the recognized excuse that the inherent vice of the goods was a contributing cause.

applying, but since animals are being dealt with losses which can be traced primarily to their proper vice are held excused.1 Of course special care must be taken of animals because they are alive. And in emergencies unusual steps must be taken to save them.2 But if, notwithstanding due care for them, they injure themselves or die by accident the carrier cannot be held liable. 3

§ 990. Interference by patron.

The patron should not recover when the loss can be

attributed to his own action. Thus if wrong directions for the performance of service are given the patron cannot complain of the failure caused thereby. And if the patron conceals the true character of the service asked he cannot complain of the loss caused thereby.2 Furthermore, if the patron interferes with the performance of the service he cannot complain of any loss to which his action contributes. Thus where the shipper put hay into a stock car in violation of regulations of the company forbidding the putting of combustibles into the car, it was said that the carrier should not be held liable for a subsequent loss by fire. Similarly where a servant of the shipper accompanying stock took a lantern into the car which set the car on fire, it was held that the railroad was not liable whether the lantern was handled negligently or not.1

3

§ 991. Assumption by patron.

To the extent that the patron takes control, from that

1 United States.-See The Huntress, 2 Ware, 89 Fed. Cas. No. 6,914 (1840).

Illinois.-Erie Ry. Co. v. Wilcox, 84 Ill. 239, 25 Am. Rep. 251 (1870).

North Carolina.-See Grocery Co. v. Railroad Co., 136 N. C. 396, 48 S. E. 861 (1904).

Pennsylvania.-The Lake Shore & M. S. Ry. Co. v. Hodapp, 83 Pa. St. 22 (1876).

Tennessee.-Southern Exp. Co. v. Kaufmann, 12 Heisk. 161 (1873). Wisconsin.-Wells v. American Express Co., 44 Wis. 342 (1878).

2 Georgia.-Southern Express Co. v. Everett, 37 Ga. 688 (1868).

Illinois. Oppenheimer v. United States Exp. Co., 69 Ill. 62, 18 Am. Rep. 596 (1873).

Massachusetts. See Phillips v. Earle, 8 Pick. 182 (1829), pointing out that unless deceit is practiced on him the carrier cannot complain if value is not declared, as he should ask for value if he wishes to know it.

New York.-Richards v. Westcott, 2 Bosw. (N. Y.) 589 (1858). Pennsylvania.-Relf v. Rapp, 3 Watts & S. 21, 37 Am. Dec. 528 (1841).

England.-Gibbon v. Paynton, 4 Burr. 2298 (1769).

See generally, § 737, supra.

Pratt et al. v. Ogdensburg & L. C. R. R. Co., 102 Mass. 557 (1869).

4 Hart v. Chicago & N. W. Ry. Co., 69 Iowa, 485, 29 N. W. 597 (1886).

time forth he assumes responsibility. To refer to a considerable list of cases, if the loss is due to the improper packing of the goods the carrier is not liable. But if the improper condition of the goods for the purpose of shipment is fairly apparent when they are shipped, then the carrier should refuse to receive the goods, or else, having received them, he will be liable for the loss. Likewise if the shipper assumes the responsibility for loading the goods upon the vehicle, the carrier is thereby relieved from liability for loss caused thereby. But if the improper loading should have been apparent to the carrier from the ordinary inspection which he or his servants would naturally give it, the carrier will be liable.1

1Illinois.-American Express Co. v. Perkins, 42 Ill. 458 (1867).

New York.-Cohen v. Platt, 48 N. Y. Misc. 378, 95 N. Y. Supp. 535 (1906).

2

The David & C., 5 Blatchf. 266 (1865).

New York.-Ames v. Fargo, 114 N. Y. App. Div. 666, 99 N. Y. Supp. 994 (1906).

Ohio.-Union Express Co. V. Graham, 26 Ohio St. 595 (1875). Oregon.-Goodman v. Oregon Ry. & Nav. Co., 22 Oreg. 14, 28 Pac. 894 (1892).

* Alabama.-McCarthy v. Louisville & N. R. R. Co., 102 Ala. 193, 14 So. 370, 48 Am. St. Rep. 29 (1893). Illinois.-Pennsylvania Co. V. Kenwood Bridge Co., 170 Ill. 645, 49 N. E. 215 (1897).

Massachusetts.- Loveland v. Burke, 120 Mass. 139, 21 Am. Rep. 507 (1876).

New York.-Jackson Architectural Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 (1899).

Texas.-Gulf, W. T. & P. Ry. Co. v. Wittnebert, 101 Tex. 368, 108 S. S. 150, 130 Am. St. Rep. 858 (1908). Vermont.-Ross v. Troy & B. R. R. Co., 49 Vt. 364, 24 Am. Rep. 144 (1877).

Wisconsin.-Miltimore V. Chicago & N. W. R. R. Co., 37 Wis. 190 (1875).

England.-Richardson v. North Eastern Ry. Co., L. R. 7 C. P. 75 (1872).

Alabama.-Atlantic C. L. Ry. Co. v. Rice, 52 So. 918 (1910).

Illinois.-Elgin, J. & E. Ry. Co. v. Bates Machine Co., 200 Ill. 636, 66 N. E. 326, 93 Am. St. Rep. 218 (1903).

Minnesota.-Calender V. Vanderhoof Co., 99 Minn. 295, 109 N. W. 402 (1906).

North Dakota.-Duncan v. Gt. Northern R. R. Co. (N. D.), 118 N. W. 826 (1908).

Texas.-International & Gt. Northern Ry. Co. v. Dwight & Co. (Tex. Civ. App.), 100 S. W. 1011 (1907).

CHAPTER XXIX

LIMITATION OF LIABILITY

§ 1000. Limitation upon liability possible.

Topic A. Methods of Making Limitations

§ 1001. Mere notice not sufficient.
1002. Special contract necessary.
1003. Acceptance of an instrument.
1004. Such acceptance not conclusive.
1005. Where consideration is found.

1006. Certain authorities more easily satisfied.

Topic B. Limitation of Exceptional Liability as Insurer

§ 1007. Such limitation not inconsistent with public duty. 1008. Statutory regulation of such contracts.

1009. Construction of the contract.

1010. Conflict of laws.

Topic C. Stipulations against Liability for Negligence § 1011. Such stipulation inconsistent with public duty. 1012. Authorities permitting such limitation. 1013. Such stipulations invalid in other services. 1014. Difficulties in the telegraph cases.

1015. Services outside of the profession.

1016. Services in course of business.

1017. Arrangements with connecting services. 1018. Stipulations in gratuitous arrangements.

Topic D. Validity of Special Stipulations § 1019. Limitation of valuation generally permitted. 1020. Qualification of this statement.

1021. Liability limited to set amount.

1022. Authorities opposed to such limitation.

1023. Stipulation for notification of loss.

1024. Little qualification of this doctrine.

1025. Similar stipulations in telegraph blanks. 1026. What time is reasonable.