Page:The American Cyclopædia (1879) Volume VII.djvu/347

 FORWARDING MERCHANT 339 to them, without any proof or intimation of their negligence or default. No customer is bound to inquire by what means or by what arrange- ments the expressman proposes to carry his parcel. If he receives it in Portland, and under- takes, specially or by general advertisement, notice, or sign, to " express it through " (to use a common phrase) to New Orleans or San Fran- cisco, he is responsible for its safe delivery there. A railroad company which takes goods at one place to be carried to a distant one might be thought to come necessarily under the same rule, but it is not quite so. There is this differ- ence between the two cases : the expressman has not, or is not known to have, any regular means of conveyance of his own for any defi- nite portion of the distance over which he as- sumes to carry the goods. The owner who gives him a parcel in Portland for New Or- leans has no means of knowing, and indeed no reason for supposing, that the expressman has not made similar arrangements for all the parts of his route that he has made for any part. It is indeed commonly understood that every expressman does not undertake to con- vey goods everywhere, but this man advertises from A to B, because he has so arranged and provided, and that man from A to C, and the other from A to D ; and his advertising, or in- deed his undertaking to carry to the specified place, may properly be understood as a declara- tion on his part that he has made sufficient preparation in that direction and to that dis- tance. But if the man in Portland puts goods on board a railroad car to go to New York, he knows, or should know, that the railroad company will convey it a certain part of the way in their own carriage, and under the charge of their own servants, and will not and cannot do anything beyond that point except to put it safely on board of the cars of another company, who will take it to or toward New York. That is, the man in Portland knows that the railroad company will there receive the parcel as a carrier, and take it a certain distance as carrier, and will then act as a for- warding merchant for the rest of the route, sending it on in the best way they can. Here then is a change of relation, and with it a change of obligation ; for the essential differ- ence is this: a common carrier insures his goods against all risks but those arising from the act of God or the public enemy ; but the forwarding merchant is liable only for his own default or neglect. If a company take a par- cel in Portland, and it is lost between Boston and Worcester, no one knows how, the sender can look at once to the company that took it if they are carriers all the way, but not if they were carriers only to Boston, where their road ends, and only forwarding merchants for the rest of the route, and can show that they de- livered the parcel safely and properly for fur- ther carriage. If it is known where the par- cel is lost, the sender may always call on the company who had it in their possession or under their care when it was lost. But if, as sometimes happens, it can be traced beyond the first carrier, and no negligence can be im- puted to him, and no one knows what has be- come of it, the sender is wholly remediless unless the first carrier is carrier to the end. Whether he is so or not has been very much disputed. Cases turning on this point have been very frequent both in England and the United States, and perhaps the law may not be positively determined in either country. Perhaps it may be said that the English courts are more disposed to fix the liability of carrier to the end upon the party that first takes charge of the parcel than pur own courts ; but upon the whole, and resting upon the most recent adjudications, the rules of law in this matter may be summed up thus. There may be a partnership in the business of common carriage as in all others, and a railroad com- pany may connect itself with other companies or with other carriers, and form a quasi part- nership, the effect of which will be that each member will be liable, in solido, for all the rest. In that case, all the companies on the whole route are liable for a loss occurring in any part ; and in particular the first company taking the parcel, or the last into whose hands it may be traced, may be made liable severally for any loss which has happened on the route. The company comes under such a liability equally by forming such a partnership and en- tering into such a joint business, or by adver- tising or indicating such a joinder in business, in any way which entitles third parties to act on the belief of it. And if such companies have a joint agent at either terminus or at any station, and this agent, with the knowledge of all, and purporting to act for all, sells a through ticket, as it is called, none of the companies thus represented can deny their joint business and joint or several liability for the whole ; and if the price of the ticket is credited by the seller to all the companies and is divided among them, this constitutes conclusive evidence that each of them undertakes to be a carrier, with a responsibility as such, through the route. But the mere fact that a parcel directed to a distant place is received at a station, and there paid for for the whole route, does not of itself make any carrier for a part of the distance liable as carrier beyond that part. The test of the liability in every case is, what did the party undertake to be and to do ? If he said he would carry all the way, he is liable as carrier all the way. If he said he would carry a part of the way and then send it on, he is only liable accordingly. And taking all the facts into consideration, which of these bargains was it that the railroad company made with the sender? With this principle to guide us, we may return to expressmen. A person living at Albany wishes to send by express a parcel to New Bedford. He gives it to an expressman of Albany, who takes it to New York, and there gives it to the express-