Pemberton Co. v. New York Central Railroad , 104 Mass. 144 ( 1870 )

Morton, J.

The principles of law upon which the rights of the parties in this case depend have been fully discussed in several recent cases in this Commonwealth. Grace v. Adams, 100 Mass. 505. Squire v. New York Central Railroad Co. 98 Mass. 239. Perry v. Thompson, Ib. 249. Judson v. Western Railroad Co. 6 Allen, 486. These cases conclusively settle that a common carrier may by a special contract, limit his common law liability, so as not to be responsible for a loss or damage by fire occurring without negligence on his part.

We are of opinion that the case at bar falls within this principle. It appears from the report, that the defendants received the cotton which is the subject of this suit, for transportation under a written contract or bill of lading, which contained an exemption from all risk of loss or damage by fire. And it is clear that the plaintiffs accepted this bill of lading as the contract under which their goods were to be carried. They had no other voucher or evidence of the contract. They had often before forwarded cotton over this line, under contracts with Merritt, as agent of the defendants, all of which contained the same exemption. Their agent, Pratt, knew that Merritt had no authority to receive, or contract for the transportation of, cotton on behalf of the defendants, except upon a contract containing this exception of the risk of fire; and at the time this cotton was delivered to be forwarded, and as a part of the transaction, he received the bill of lading in question, knowing its contents and making no objections to its terms, and forwarded it to the plaintiffs in Boston as the only bill of lading or contract of carriage of these goods. The bill of lading thus delivered and accepted constituted the only contract of carriage, and both parties are bound by its provisions.

The fact that Pratt and the plaintiffs’ treasurer had previously expressed their belief that, notwithstanding the terms of the bills of lading, the defendants would be liable in case of loss by fire, is immaterial. It is clear that this was merely an expression of opinion as to the legal effect of the contract, and was not intended or understood as varying its terms.

The plaintiffs urge that the defendants as common carriers were required by law to transport all goods offered them, and that the plaintiffs had a right to insist that their cotton should be carried by the defendants under their common law liability as insurers. But the plaintiffs did not choose to insist upon their rights at common law; and, instead of doing so, voluntarily and intelligently entered into a special contract with the defendants. They'received the benefits of this contract in the reduced freight and other advantages secured to them therein, and must be held to be bound by the condition which threw the risk of fire upon them.

The question, whether the loss was caused by any negligence of the defendants, is a question of fact, and the finding thereon of the judge who heard the case is conclusive. As, therefore, the loss in this case was caused by fire, without negligence on the part of the defendants, it follows that the plaintiffs are not entitled to recover. ' Judgment for the defendants.