§ 1000. Limitation upon liability possible.

The liability of those engaged in a public employment has, as has been seen, two principal aspects-liability for damage neither intentionally caused nor due to negligence (which is limited to the carrier of goods and the innkeeper as to goods) and liability for willful or negligent default (which prevails in all public service). It may well be that the abnormal liability of an insurer which the law imposes upon the carrier and the innkeeper may be cut down by special arrangement. But it would seem to be against public policy for a public servant to stipulate that he shall not be liable for his negligence in the performance of his undertaking. At all events this is the working hypothesis with which this chapter is begun. And as a matter of fact this distinction will be found to be supported by an almost overwhelming weight of authority.

Topic A. Methods of Making Limitations

§ 1001. Mere notice not sufficient.

In England towards the end of the eighteenth century, and for a considerable time thereafter, cases became common where by mere notice the common carrier sought to limit, in various ways, his liability as an insurer at common law, and to a considerable extent he was successful in the courts in this attempt. A general public notice brought to the attention of the patron was held to limit liability by cutting down the scope of the employment professed by the person giving the notice. The delivery of a handbill containing the notice 2 the publication of a notice for three

1 Hide v. Proprietors of T. & M. Navigation Co., 1 Esp. 36 (1793); Riley v. Horne, 5 Bing. 217 (1828); Mayhew v. Eames, 3 B. & C. 601 (1825); Gibbon v. Paynton, 4 Burr. 2298 (1769).

Contra, as to liability for negligence, Newborn v. Just, 2 C. & P. 76 (1825); Slim v. Great Northern R. R. Co., 14 C. B. 647 (1854).

2 Phillips v. Edwards, 3 H. & N. 813 (1858).

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months in a newspaper to which the plaintiff subscribed 1 and an advertisement which in all probability would attract the attention of the plaintiff 2 were held, as matter of law, to affect the shipper. Posting the notice in the carrier's office, however, was held insufficient when the circumstances were not such that the shipper should have known of the notice, or as against a shipper who could not read. This practice was finally put an end to by statute. A few decisions in the United States, following to a certain extent the English doctrine, have said that a limitation of liability by implied assent may be proved by evidence of a general public notice brought to the knowledge of the shipper before he makes his shipment and his apparent acquiescence therein. But generally in the United States, a common carrier cannot restrict his liability by a mere notice in any form, though brought home to the shipper." There are certain statutes on the subject in America also.

1 Rowley v. Horne, 3 Bingham, 2 (1825).

2 Lesson v. Holt, 1 Starkie, 186 (1816).

Kerr v. Willan, 6 M. & S. 150 (1817).

Davis v. Willian, 2 Starkie, 279 (1817).

5 Georgia. See Cooper v. Berry, 21 Ga. 526, 68 Am. Dec. 468 (1857). Kentucky.-Orndorff v. Adams Express Co., 3 Bush. 194, 96 Am. Dec. 207 (1867).

Maine.-Sager v. The Portsmouth, S. & B. & E. R. R. Co., 31 Me. 228, 50 Am. Dec. 659 (1850).

Pennsylvania.-See Beckman v. Shouse, 5 Rawle, 179, 28 Am. Dec. 653 (1835).

• Connecticut.-Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398 (1843).

Dakota.-Hartwell v. Northern Pac. Exp. Co., 5 Dak. 463, 41 N. W. 732, 3 L. R. A. 342 (1889).

Delaware.-Flinn v. Philadelphia, W. & B. R. R. Co., 1 Houst. 469 (1858).

Georgia. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847).

V.

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

Kentucky.-Louisville & N. R. R. Co. v. Brownlee, 14 Bush. 590 (1879).

New Hampshire.-Moses v. Boston & Maine R. R. Co., 32 N. H. 523, 64 Am. Dec. 381 (1856).

Oregon.-Seller v. Steamship Pacific, 1 Oreg. 409 (1861).

South Carolina.-Piedmont Mfg. Co. v. Columbia & G. R. R. Co., 19 S. C. 353 (1882).

§ 1002. Special contract necessary.

In the present law, therefore, it is impossible by a mere notice to relieve one's self from legal obligations. And such notice is held insufficient in itself to make out a special contract, unless it may fairly be said to have been expressly incorporated in an actual contract by one of the modes hereinafter mentioned in the contract for service. But a special contract, if it has all the requisite ele

ments for a contractual obligation, may in almost all jurisdictions be made, by the operation of which the common law liability may be limited to an extent that will be much discussed presently. There is no reason in the nature of things why special contracts as to the limitation of liability should not be made between a public service company and its patrons. The company cannot force its patrons to make such special contracts, but they may enter into them voluntarily. Generally speaking, one who has common law rights may bargain them away, but not if the contract is against public policy. But since the common law basis is the regular course, proof of the receipt of goods for transportation by the carrier and the agreement to carry the goods raises the presumption that the goods are taken under the common law liability, sub

R. Co. v. Brady, 32 Md. 333 (1869).

V.

Massachusetts.-Buckland Adams Express Co., 97 Mass. 124, 93 Am. Dec. 68 (1867).

Michigan. McMillan v. Michigan S. & N. I. R. R. Co., 16 Mich. 79, 93 Am. Dec. 208 (1867).

Nebraska.-Atchison & Neb. R. R. Co. v. Miller, 16 Neb. 661, 21 N. W. 451 (1884).

New York.-Hollister v. Nowlen, 19 Wend. 234, 32 Am. Dec. 455 (1888).

v. Champlain Trans. Co., 23 Vt. 186, 56 Am. Dec. 68 (1851).

West Virginia.-Brown v. Adams Express Co., 15 W. Va. 812 (1879).

Canada. Fitzgerald v. Grand Trunk Ry. Co., 4 Ont. App. 601 (1880).

1 United States.-Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627 (1873).

Connecticut.-Lawrence v. New York P. & B. R. R. Co., 36 Conn. 63 (1869).

Indiana.-Thayer v. St. Louis, A. & T. H. R. R. Co., 22 Ind. 26, 85 Am. Dec. 409 (1864).

Michigan.-Feige v. Michigan Central R. R. Co., 62 Mich. 1 (1886).

Virginia.-Richmond & Danville R. R. Co. v. Payne, 86 Va. 481, 10 S. E. 749 (1890).

West Virginia.-Zouch v. Chesapeake & O. Ry. Co., 36 W. Va. 524, 15 S. E. 185, 17 L. R. A. 116 (1892).

ject only to such modifications in the common law liability as may have been made by statute.' This presumption of common law liability cannot be rebutted by mere proof of a local custom.2

§1003. Acceptance of an instrument.

The acceptance of an instrument commonly used to embody the contract, such as a bill of lading, will usually be conclusive proof of the contract it evidences. This doctrine is most commonly applied to bills of lading,3 but it has also been applied to other shipping receipts.1