of regulation, and establishes a commission for its enforcement. The sections applicable to the point now under consideration are given in the foot-note.'

3036. Same subject -State statutes.- Legislation of the same general character has also been had in many of the states, and the question of the power of the state legislatures over the subject has been much considered. Entire unanimity does not exist, but it is well settled that it is within the power of the state legislatures to prevent unjust and unreasonable discrimination by the carriers operating within the state, and that, except where the power has been clearly renounced in the charter of the carrier, it is competent for the legislature

1"Sec. 1. . . . All charges for any service rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful.

66

Sec. 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. "Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or

give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. ..

"Sec. 4. That it shall be unlawful for any common carrier subject to the provisions of the act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance.”

2 Illinois Cent. R. Co. v. People, 121 Ill. 304; Chicago, etc. R. Co. v. People, 67 Ill. 11; State v. Railroad Co., 22 Neb. 313; Gulf, etc. R'y Co. v. Dwyer, 75 Tex. 572.

to regulate, within reasonable limits, the rates that may be charged by common carriers for the transportation of passengers and property within the state. That the legislature has deprived itself of the power will not be presumed, and it will only be held to have done so where it appears by "words of positive grant or words equivalent to law." And even where the power has been renounced, the state may still supervise the rates charged by the carrier and keep them within the limits of its power. But "it is not to be inferred that the power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to carry persons or property without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation or without due process of law."4

Where the state may regulate the rates to be charged, it is competent to establish a board or commission to carry the regulations into effect; but an act which makes the action of such a board or commission final and exclusive of judicial review is void, as depriving the carrier of the equal protection of the law and depriving him of his property without due process of law.5

1 Munn v. Illinois, 94 U. S. 113; Chicago, etc. R. Co. v. Iowa, 94 U. S. 155; Peik v. Railroad Co., 94 U. S. 164; Chicago, etc. R. Co. v. Ackley, 94 U. S. 179; Ruggles v. Illinois, 108 U. S. 526; Stone v. Trust Co., 116 U. S. 307; Dow v. Beidelman, 125 U.S. 680; Georgia Banking Co. v. Smith, 128 U. S. 174; Chicago, etc. R'y Co. v. Minnesota, 134 U. S. 418; Wellman v. Railway Co., 83 Mich. 592; Stone v. Yazoo, etc. R. Co., 62 Miss. 607; Georgia, etc. Co. v. Smith, 70 Ga. 694.

2 Chicago, etc. R'y Co. v. Minnesota, 134 U. S. 418. The power conferred upon a corporation by its charter to make all needful rules and

regulations respecting the rates of toll and the manner of collecting them is not exclusive nor does it amount to an irrepealable contract with the company that it shall have the right for all future time to prescribe the rates of toll free from all control by the legislature of the state. Id.; Pennsylvania R. Co. v. Miller, 132 U. S. 75; Stone v. Trust Co., 116 U. S. 307.

3 Stone v. Yazoo, etc. R. Co., 62 Miss. 607.

4 Stone v. Trust Co., 116 U. S. 307; Chicago, etc. R'y Co. v. Minnesota, 134 U. S. 418.

5 Chicago, etc. R'y Co. v. Minnesota, 134 U. S. 418.

Rates in excess of those authorized by the law which have been exacted by the carrier and paid by the shipper to secure transportation may be recovered back.1

303c. General duty as to stowage on vessels.— When the carriage is by a sea-going vessel, the liability of the carrier will sometimes depend upon the manner in which the goods have been stowed. "The owner of the goods," it is said in one case,2 2 "has no control over such matters. Under the law that imposes on the ship, as carrier, the duty of safe delivery, the ship takes all such risks, unless she can show the use of all reasonable skill and good judgment, or compliance with so definite a usage in the stowage and protection of the goods against injury, and such use of the well known and best means to that end as legally import an assent of the shipper to transportation in this manner." The vessel, therefore, will be liable for losses caused by defective stowage within the limits of this rule.3

§ 304. Same subject - Stowage under deck. It is the implied duty of the master to stow the goods in the hold of the vessel, even when the bill of lading is silent upon the subject, unless there be a well established usage to stow goods of the particular character on deck, or unless in the bill of lading, if there be one, the shipper has agreed that they may be so stowed. A bill of lading which is silent upon the subject of the manner of the stowage of the goods is called a “clean” bill of lading, and undoubtedly binds the carrier to stow the goods under deck; and, as we have seen, parol evidence cannot be received to show that the shipper agreed that the goods might be stowed otherwise when such a bill of lading is given. In the case of The Delaware, this question of the duty of the carrier to stow the goods under deck when the bill of lading was silent as to where and how they should be stowed underwent a very

1 Transportation Co. v. Sweetzer, 25 Rep. 383; The Geiser, 19 Fed. Rep. W. Va. 434. 877; The John P. Best, 14 Phila. 527; Astrup v. Lewy, 19 Fed. Rep. 536; The St. Patrick, 14 Phila. 596; The Excellent, 16 Fed. Rep. 148; The Tommy, 16 Fed. Rep. 601. 4 Ante, § 126.

2 Hills v. Mackill, 36 Fed. Rep. 702. 3 Hills v. Mackill, supra; The Thos. Melville, 31 Fed. Rep. 486, 36 id. 708; The Marinin S., 28 id. 661, 32 id. 918; The Maggie M., 30 id. 692; Baxter v. Leland, 1 Blatchf. 526; The Sabioncello, 7 Bene. 357; The Nith, 36 Fed.

5 14 Wall. 579, stated ante, § 285.

thorough discussion, and it was held that the carrier who had given such a bill of lading had been guilty of negligence in stowing the goods on deck, and that he was thereby deprived of the benefit of the exception of liability for losses by the dangers of the seas in the bill of lading, although the goods had been necessarily jettisoned in a storm. "Goods, though lost by perils of the sea," say the court, "if they were stowed on deck without the consent of the shipper, are not regarded as goods lost by the act of God within the meaning of the maritime law, nor are such losses regarded as losses by the perils of the sea, which will excuse the carrier from delivering the goods shipped to the consignee, unless it appears that the manner in which the goods were stowed is sanctioned by commercial usage, or unless it affirmatively appears that the manner of stowage did not, in any degree, contribute to the disaster; that the loss happened without any fault or negligence on the part of the carrier, and that it could not have been prevented by human skill and prudence, even if the goods had been stowed under deck, as required by the general rules of the maritime law." And upon this ground it was held, not only that the master and owners of the ship were liable, but that the rest of the cargo was not liable to contribute to the loss.1 § 305. Same subject - Stowage on deck. In the absence of a bill of lading, or when the bill of lading is silent upon the subject of stowage, it is a part of the contract of shipment that the goods shall be stowed under deck. It is a condition tacitly annexed to the contract by operation of law; and it is equally binding on the master, and the shipper is equally entitled to its benefit, as though it was stated in express terms.3 But it is equally well settled that an established usage in a particular trade, or as to a particular kind of goods, may jus

1 The Rebecca, Ware, 187; The Paragon, id. 322; Dodge v. Bartol, 5 Greenl. 286; Wolcott v. Ins. Co., 4 Pick. 429; Copper Co. v. Ins. Co., 22 id. 108; Adams v. Ins. Co., id. 163; Sproat v. Donnell, 26 Me. 185; Lamb v. Parkham, 1 Sprague, 343.

A shipper by consenting that goods be carried on deck does not thereby

assume the risk of loss or injury to them. Schwinger v. Raymond, 83 N. Y. 192.

2 Creery v. Holly, 14 Wend. 26; The Delaware, 14 Wall. 579; The New Orleans, 26 Fed. Rep. 44; The Gran Canaria, 16 Fed. Rep. 868; The Paragon, 1 Ware, 322.

3 The Waldo, Davies, 161.

tify the carriage on deck, or may even make it the duty of the master to stow them there.

§ 306. Same subject. If the goods are what are known as dangerous, such as corrosive or inflammable oils or liquids, they should be stored on deck, where in case of accident they would be likely to do the least harm and may be the more readily cast overboard. So live animals are carried on deck as more healthy for them and convenient for those who are to give them attention, and because any other mode of conveyance would be generally impracticable. So it may be shown that, according to the custom of a particular trade, lumber was carried on deck, and, the custom being established, it was held that the owner of lumber thus being carried was entitled to contribution from the ship-owner for a loss by jettison. And not only may goods be stowed on deck when usage in the particular trade or as to the particular goods justifies their being so carried, but where the safety of the goods or their preservation makes it necessary that they shall be so carried, the master and owners will become liable for damage suffered by them by reason of their being stowed in the hold of the vessel. Thus, in the case of The Star of Hope, nuts in bags and boxes were shipped from New York to San Francisco, and were put into the hold of the vessel instead of upon the deck; and it being shown that when so carried they are liable to become damaged, and that the almost invariable practice was to carry such goods in the cabin, and that these were marked with directions that they should be so carried, it was held to have been culpable negligence in the master of the vessel to stow them in the hold."

§ 307. Same subject - Damage for other goods stowed in hold. The carrier is also liable to the shipper for damage done to his goods by other goods stowed in the hold of the vessel without allegation or proof of any wilful negligence on

1 Da Costa v. Edmunds, 4 Camp. 141.

2 Brown v. Cornwell, 1 Root, 60; Milward v. Hibbert, 3 Ad. & El. (N. S.) 120.

5 In The New Orleans, 26 Fed. Rep. 44, it is held that a notice on the package not to put the goods in the hold does not bind the carrier where it is not called to his attention and

3 Gould v. Oliver, 4 Bing. (N. S.) 134. not mentioned in the bill of lading. 417 Wall. 651.