canal route, and the other as the outside, or ocean route, and the carrier was left free by his bill of lading to choose between them, and he chose the latter, and, being overtaken by a violent storm, the goods were injured, it was held that he was not liable for the damage occasioned by the dangers of the sea, although had he taken the other route it would, in all probability, not have occurred.53 And so a departure, in accordance with the general and established usage of business, is not such a deviation as will make the carrier liable, even though the usage was not known to the particular shipper.54 Sec. 614. (§ 313.) Same subject-Choice of routes when one dangerous.-If one of such customary and direct routes 53. White v. Ashton, 51 N. Y. 280; Hinckley v. Railroad, 56 N. Y. 429; Simkins v. Steamboat Co., 11 Cush. 102; Empire Trans. Co. V. Wallace, 68 Penn. St. 302; Glover v. Railroad Co., 95 Mo. App. 369, 69 S. W. Rep. 599. The absence of special instrue tions given and acceded to by the carrier amounts to an assent that the carrier's usual course of business may be followed, and he may designate the route as his convenience may suggest. Post v. Railway Co., 103 Tenn. 184, 52 S. W. Rep. 301, 55 L. R. A. 481. Where nothing is said in the bill of lading as to any particular connecting route, the carrier may select the connecting route over which the goods shall be transported. A mere direction by the shipper that such goods shall go forward by some particular route will not alter the rule unless actually agreed to by the carrier. Bessling & Co. v. Railway, (Tex. Civ. App.) 80 S. W. Rep. 639. But in Sharp v. Clark, 13 Utah 510, 45 Pac. 566, the defendant, a common carrier, entered into a written contract to transport plaintiff's sheep from Milford, Utah, to Chicago, Ill., without stating any particular route. There was also a written contract made at the same time for the transportation of the plaintiff's servant to care for the sheep during transit. The passenger ticket given was to Omaha, Neb., and Council Bluffs, Iowa. The defendant carried the sheep by another route than that designated in the passenger ticket and thus prevented the plaintiff from having an opportunity to dispose of his sheep at Omaha. The court held that though the separate papers for the transportation of the sheep did not name any particular route, yet the passenger ticket named Omaha and Council Bluffs and by necessary implication there was an implied undertaking to carry the sheep through via Omaha and Council Bluffs. 54. Hostetter v. Park, 137 U. S. 30; Pierce v. Railroad Co., 120 Cal. 156, 47 Pac. Rep. 874, 52 Pac. Rep. 302, 40 L. R. A. 350, citing has become unsafe from accidental and temporary causes, the carrier, if informed of the fact, will be chargeable with negligence if he takes it, even though it may be more expeditious than the other. Such was the case in Express Company v. Kountze.55 Gold dust was delivered to the carrier, at Omaha, to be transported to Philadelphia. There were two routes: one through Iowa, and the other through Missouri, the latter being the more expeditious, but unsafe, because of the disturbed condition of the country. The carrier, having attempted to convey the dust by the Missouri route, was robbed of it by a body of armed men, while in transit through that state, and was held liable, notwithstanding its contract provided against liability for losses or damage from such an occurrence, having been guilty of gross negligence in taking the more hazardous route under the circumstances. So, also, if one of two routes is dangerous for the class of goods carried, and the other route is temporarily obstructed, the carrier will be liable if he forwards the goods by the dangerous route, without notifying the shipper, for any consequent loss. Thus where a railroad company contracted to carry oranges, and, owing to an obstruction in its usual route, it carried them without any instructions from the shipper to do so over another route passing through a country which at the particular season of the year was subject to frosts, and the oranges were thereby damaged, it was held that the company was liable.56 Sec. 615. (§ 313a.) Same subject-Option as to routes to be exercised with regard to shipper's interest. So where a contract for the transportation of goods gives the carrier an option between modes of transportation, this option must be exercised with regard for the interests of the shipper. To ex Hutch. on Carr.; Caffin v. Aldridge, (1895) 2 Q. B. 648, 65 L. J. Q. B. 85, affirming (1895) 2 Q. B. 366, 64 L. J. Q. B. 736. 55. 8 Wall. 342. 92 Tenn. 326, 21 S. W. Rep. 666 and Railroad Co. v. Houx, 15 Tex. Civ. App. 502, 40 S. W. Rep. 327. 56. Pierce v. Railroad Co., 120 Cal. 156, 52 Pac. Rep. 302, 47 Pac. See also, Express Co. v. Jackson, Rep. 874, 40 L. R. A. 350. ercise the option to the disadvantage of the shipper, unless it is done in good faith and under circumstances which seem to require it, will be a breach of the contract;57 and the burden of proof will be upon the carrier to show that he exercised the cption reasonably under the circumstances. Thus if the carrier should adopt a mode of transportation which involved the payment of a higher rate of freight rather than a lower one, he must show, in order to justify his act, either that he asked for and obtained directions from the shipper or consignee to employ the more expensive mode, or that because of his inability to procure the means of shipment by the cheaper mode, it was reasonably necessary, in view of the exigencies of the particular case, to resort to the other and more expensive mode.58 Sec. 616. Tempestuous weather may render deviation by vessel necessary. As we have seen, circumstances may arise which render it necessary to depart from the usual course, and tempestuous weather, injuring a ship and rendering it necessary to put into some port of repair, is one of these circumstances. In selecting that port the master must not make any greater departure than is reasonably necessary, having in mind the interests of all parties concerned, but in determining what is reasonably necessary the question of expense may be taken into account 59 Sec. 617. (§ 314.) The obligation to carry in the manner provided by the contract.-When the carrier has entered into a contract to carry the goods in a particular manner, or within a prescribed time, he will be held to a strict compliance with the terms of his agreement.60 If, for instance, he undertakes to carry the goods by a particular vessel, and forwards them by another, though it be one of the same line, and the goods. 57. Blitz v. Steamboat Co., 51 (1891) 1 Q. B. 605, 60 L. J. Q. B. Mich. 558. 382. 58. Stewart v. Comer, 100 Ga. 754, 28 S. E. Rep. 461, 62 Am. St. Rep. 353. 60. Post 2. Railway Co., 103 Tenn. 184, 52 S. W. Rep. 301, 55 L. R. A. 481, citing Hutch. on 59. Phelps, James & Co. v. Hill, Carr.; Railway Co. v. Leibold, are lost, he will be liable. Goods were delivered to an express company, to be carried from New York to New Orleans, and the company gave a receipt for them, in which it was recited that the company undertook to carry them by a particular steamship. Afterwards, and before the goods were shipped, this vessel was withdrawn from the line, and did not make the contemplated voyage. The goods were sent forward by another vessel, which was wrecked on her voyage, and the goods were lost. "When it was ascertained," said the court, "that the particular vessel would not sail for New Orleans, and that therefore the boxes could not be sent by her, it was the duty of the defendants to notify the plaintiffs of that fact, and await their instructions.61 The forwarding of the goods by another steamer than that agreed upon, without the assent of the plaintiffs, or any notice to them of the intention so to forward them, was clearly not an execution of the agreement, and they are chargeable with the consequences of the unauthorized act.''62 And where the agent of the proprietor 62. Goodrich v. Thompson, 44 N. Y. 324. (Tex. Civ. App.) 55 S. W. Rep. delivered the potatoes to another 368. carrier not named in the contract, 61. See Johnson v. N. Y. Cent. which line was as well equipped R. R., 33 N. Y. 610. and as expeditious as the road over which the shipper had routed the potatoes. After such connecting carrier had received the potatoes and started them in transit, the strike spread to its connections and it thereupon took the potatoes back to a station on its line and sold them upon the belief that, being perishable, their disposition was for the best interest of the shipper. When informed of the sale, the shipper refused to accept the proceeds and brought suit against the initial carrier. No notice was given by the first carrier to the shipper that the succeeding carrier desig nated in the contract had refused In Louisville, etc. R. Co. v. Odill, 96 Tenn. 61, 33 S. W. Rep. 611, 54 Am. St. Rep. 820, a quantity of potatoes were routed at the shipper's directions over the receiving carrier's line to a certain point and from thence over the line of another designated carrier to destination. The potatoes were carried by the receiving carrier to the point of intersection with the succeeding carrier's route and there tendered to such carrier. The succeeding carrier declined to accept them on account of a strike then prevailing over its road. Thereupon the first carrier to receive the potatoes, or that of a line of vessels gave to the shipper a bill of lading for goods to be shipped by a particular vessel, which was the next of such vessels in the order of departure for the port of destination, it was held that such agent had authority to enter into such a contract; and the vessel being delayed and not arriving in time to depart in her regular order, and another vessel having been substituted in her place, and the goods sent by her, and lost by the perils of the sea, it was held the defendant had no authority to forward the goods by any other than the particular vessel named in the contract, and that, having done so, he made himself an insurer, and was liable for their loss.63 An express provision of this nature in a written contract of carriage is not subject to modification or variance by the custom or usage of trade.64 Sec. 618. (§ 315.) Same subject-Carrier liable for loss if contract not observed. So where the carrier has agreed to transport the goods by land, he cannot carry them by water; nor by land, when he has agreed to carry them by water; nor by a sailing vessel when he has contracted to carry them by a steam vessel, without taking upon himself all the risk of their loss or damage. When the contract in the bill of lading was for transportation of freight "all rail" from Louisville to New they had been sent over another with, the carrier will not be justified in selecting another route without notice to him and instructions from him. . . . Unless justified by urgent circumstances, a deviation by the carrier will render it responsible for losses resulting, even from inevitable casualties, and the orig inal carrier becomes, in effect, an insurer for the line he selects. 63. Goddard v. Mallory, 52 Barb. 87; Wilcox v. Parmelee, 3 Sandf. 610; The Protection, 102 Fed. 516, 42 C. C. A. 489. 64. Louisville & C. Packet Co. v. Rogers, 20 Ind. App. 594, 49 N. E. Rep. 970. |