them in the discharge of their own peculiar duties, and are their, rather than the government's, agents and servants. They are also personally liable for losses which occur through their own negligence or breach of duty.

CHAPTER VIII

THE COMMON CARRIER AS A BAILEE

§ 59. Liability for Bailments. The common carrier is one who holds himself out as ready and willing to carry for hire the goods of all who may apply so long as he has room. It is this willingness to carry for all that distinguishes him from the ordinary carrier or locatio operis mercium vehendarum (a hiring for the carriage of goods) bailee. In order that he shall be considered a common carrier, however, the element of hire is necessary. Where this element of hire and this willingness to carry for all are present, and the carrier is in the act of carrying, or has received goods for transportation, and is about to undertake the duty, he is a common carrier and subject to the liability of an insurer except as to losses occurring from the act of God, the public enemy, the inherent defects of the articles themselves, or the contributory negligence of the shipper. At all other times while he has the custody of the goods, he is either a bailee for hire or a gratuitous bailee. When one rides upon a free pass, the carrier is liable only as a gratuitous bailee for the baggage, as he receives no compensation for the transportation thereof. If, also, after the end of the journey, the passenger receives his baggage from the baggageman, but later, with the consent of such person, returns and stores it in the baggage room or waiting room, until he can find a room, or a hotel, the railway company, if liable at all, is liable merely as a gratuitous bailee. When the transportation of freight ceases, the liability of the carrier as an insurer ends, and that of a warehouseman, or bailee for hire, begins. As to when transportation ends there is some conflict among the authorities. Some courts hold that it ends immediately

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the goods reach their destination and are unloaded;1 others, that it ends after the unloading of the goods, the sending of a notice to the consignee, and the lapse of a reasonable time after the receipt of such notice in which the consignee may remove the goods.2 Others hold that it ends after the arrival of the goods and the lapse of a reasonable time in which to remove them, after the arrival, but do not make the sending of a notice necessary. This is the rule which generally prevails in the case of transportation by water.4

The liability of an express company as a common carrier and insurer ends after it has made a reasonable attempt to deliver the goods at the residence or place of business of the consignee, and after such time it holds the goods as bailee for hire. The liability of a railroad company as an insurer and a common carrier is held to begin, not when the goods are delivered to it, but when they are delivered to it with shipping directions; and when, for instance, a person sends goods to the railway station and tells the agent, that he will, later, send instructions as to where they shall be shipped, the railway company, until the receipt of such instructions, holds the goods as a bailee for hire and not as an insurer, or a common carrier. In the case of baggage, a passenger is allowed to leave his trunks and valises at the depot a reasonable time before the departure of the train, and the prior purchase of a ticket is not necessary to impose upon the railway or steamship company the liability of a common carrier. The passenger must, however, have intended to purchase such a ticket and the ultimate purchase of such is necessary to the relationship. As to what is a reasonable time before the departure of a train, will depend much upon the locality, the ease of access to the depot, and the custom of the place. If goods are directed to be transported over several connecting lines,

1 Norway Plains Co. v. Boston & Maine R. R., 1 Gray (Mass.) 263. And this is practically always the rule in the case of baggage. Ouimit v. Henshaw, 35 Vt. 605; Warner v. R. Co., 22 Iowa 166.

2 Moses v. B. & M. Ry. Co., 32 New Hamp. 523.

8 Wood v. Crocker, 18 Wis. 345.

4 Chickering v. Fowler, 4 Pic. 371.

and the second carrier refuses to receive the goods from the first carrier, it is the duty of the former immediately to notify the shipper, and he will then hold such goods, not as a common carrier or insurer, but as a bailee for hire, until he is notified either to return the goods, or to ship them by some other route.

CHAPTER IX

THE STEAMSHIP AND SLEEPING-CAR COMPANIES AS BAILEES

1

§ 60. The Steamship Company. There is no little conflict in the authorities as to whether the carrier of passengers by water, who furnishes berths and food, should be looked upon as an innkeeper, or as a bailee for hire merely. Some authorities term and look upon the steamship "as a floating inn;" others, though not considering the owner technically as an innkeeper, yet hold him liable as such, especially while the passenger is asleep.2 Others look upon the steamship company as a bailee for hire merely, and liable only for the lack of ordinary care. The controversies, of course, usually arise in connection with goods which are stolen from the staterooms of the passengers and which have not been delivered into the exclusive possession of the companies so as to render them, technically speaking, common carriers.

4

§ 61. The Sleeping-Car Company. The same considerations would seem to apply to Pullman car companies, and one court at least has held them to be "traveling inns and liable as such." The great weight of authority, however, is the other way, and, although they are required to be watchful of the goods and persons of their guests during the sleeping hours, they are not generally held to any liability in the absence of proof of negligence on their part.5

1 Adams v. Steamboat Co., 151 N. Y. 163; Purvis v. Coleman, 21 N. Y. 11; Van Horn v. Kermit, 4 E. D. Smith (N. Y.) 453; Mudgett v. Bay State, etc., 1 Daly (N. Y.) 157.

2 See opinion of Judges Christiancy and Cooley in McKee v. Owen, 15 Mich. 115, 129.

8 See other opinions in McKee v. Owen, 15 Mich. 115, 129; American Steamship Co. v. Bryan, 83 Pa. St. 446; Clark v. Burns, etc., Co., 118 Mass. 275; Abbott v. Bradstreet, 55 Me. 530; Crystal Palace v. Vanderpool, 55 Ky. 302; Del Valle v. Richmond, 27 La. Ann. 90. See also Cohen v. Frost, 9 N. Y. Super. Ct. 335.

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* Pullman Palace Car Co. v. Lowe, 28 Neb. 239.

5 Clark v. Burns, 118 Mass. 277.