The opinion of the court was delivered, May 13th 1867, by
Thompson, J.
— It does not admit of a doubt that a common barrier may by a special contract, and perhaps by notice, limit his /liability for loss or injury to goods carried by him, as to every cause of injury, excepting that arising from his own or the negligence of his servants. A great variety of cases cited in the very able argument of the learned counsel for the defendants, establish this as the rule in England, from Southcote’s Case, 4 Coke’s Rep. 84, A. D. 1601, down to The Peninsular and Oriental Steam Navigation Co. v. The Hon. Farquhar Shand, 11 Jurist 771, in 1865. The same rule generally holds in the several states in this country, as will appear in Story on Bailments, § 549 notes a and b; [59]*59Dow v. New Jersey Steam Navigation Co., 1 Kern. 484; and in the Supreme Court of the United States, York Co. v. The Central Railroad Co., 3 Wall. 107. This has long been the rule in this state, as is shown by Bingham v. Rogers, 6 W. & S. 495; Lang v. Calder, 8 Barr 479 ; The Camden and Amboy Railroad Co. v. Baldauf, 4 Harris 67; Chouteaux v. Leech, 6 Id. 224; Goldey v. The Pennsylvania Railroad Co., 6 Casey 242; and Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315.
That there was a special acceptance limiting the defendants’ liability to one dollar a pound in case of loss or destruction, in this case, is among the facts found in the case stated. The hills of lading, duly executed and signed by the agents of the defend; ants, containing the limitation, it is agreed were delivered to the plaintiffs, accepted by them and remitted to their agent at New York as his authority to receive the goods. These, therefore, were the terms on which the transporters shipped their goods and on which they were received to he transported. As this was a limitation of the common-law liability, we are to presume, of course, that the charge for transportation was in proportion to the risk, an element of charge in all such cases. The conditions of shipment on the bill of lading show this, by expressing the limitation to he. because of the “shipper declining to pay for any higher risk.” We have, therefore, a contract to transfer goods under a special agreement as to liability, and a consideration based, we must presume, on the undertaking in its limited form.
This limitation, we are warranted in saying, took the case out of the law of common carriers and carried it into one of the numerous classes of bailments, and it henceforth became liable to be governed by the law of the class.
The reason will be apparent on a moment’s reflection. The common law defines the duty and the liability in the one case— in the other the law is set aside by agreement of the parties, and they make a law for themselves, and thus they stand on the_ relation they create, and not on the law of common carriers.
By the common law the carrier is an insurer of the goods intrusted to him, excepting so far as they are damaged by the act of God or public enemies.
By a contract limiting liability he is an insurer by agreement, and according to its terms. If there be a loss, the agreement fur-. nishes the extent of liability and is confined to that, unless he can | show that the loss occurred from the wilfulness or negligence of \ the carrier. Plis liability is as a private carrier or bailee, a consequence of the limitation. This is settled in various forms of expression in numerous books and cases of authority. In Angelí on the Law of Carriers, § 268; it is said: “ Therefore, as I there has been occasion before to show that in cases of contract I [60]*60\and by means of notices, common carriers descend only to the (situation of private carriers for hire.”
In York Co. v. The Central Railroad Co., supra, this language is found: “ By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailee ; a private carrier for hire.”
In Goldey v. The Pennsylvania Railroad Co., 6 Casey 242, supra, we said the same thing in these words: “ The most it can do (the limitation), is to relieve them from these conclusive presumptions of negligence which arise when an accident happens that is not inevitable even by the highest care, and to require that (negligence be actually proved against them.” In the N. J. Steam Navigation Co. v. The Merchants’ Bank, 6 Howard 384, the principle is thus stated: “ The respondents having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such instruction.” The same principle appears in Marsh v. Horne, 5 B. & C. 322, where the limitation as to the extent in value of the liability was held to vary the relation and requires proof of negligence against the carriers. So in Harris v. Packwood, 3 Taunt. 264, this rule was applied. So also to this effect are Angelí on Carriers, § 276 ; Story on Bailments, § 573; 2 Greenleaf on Evidence, § 218; and Sager v. The B. R. Co., 31 Maine Rep. 228. Without pursuing further this line of thought we now proceed to determine how the case stands affected by these principles.
The plaintiffs shipped goods on the 8th of July 1864, by the defendants’ line to New York, under an acceptance of limited liability as well as notice. The goods were safely carried by the defendants to their wharf at New York, and placed under a shed on the wharf ready for delivery; but-before the plaintiffs had notice of their arrival or opportunity to remove them, a fire broke out on board a steamer of the defendant’s lying at the wharf, which entirely consumed the boat with her cargo, and also the wharf and shed and the goods therein, including the goods of the plaintiffs. The origin of the fire remains unknown. Watchmen employed by the defendants were on duty at the time, and the crew of the steamer were on board. These facts all appear in the case stated. It also appears that the defendants have paid to the plaintiffs the full amount of liability stipulated for, and assumed in case of loss in the bill of lading. Are they bound to the extent of the entire loss ? If so the exception or limitation would amount to nothing, not, it is true, because the limitation is void, but on a question regarding the burthen of proof.
Assuming the contract or special acceptance of the goods, to be carried by the defendants to bring them within the doctrine [61]*61applicable to bailments for compensation, the rule seems clearly to be: “ That where a demand of the thing loaned is made, the party must return it, or give some account how it was lost.
“If he shows a loss, the circumstances of which do not lead to any presumption of negligence on his part, then the burden of proof might, perhaps, belong to the plaintiff to establish it:” Story on Bailments, § 278. “ But if a suit should be brought
against the pawnees for a negligent loss of the pawn, then it would be incumbent on the plaintiff to support the allegations of his declaration by proper proofs, and the onus probandi in respect to negligence would be thrown on him:” Id., § 839, and note 4.
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The opinion of the court was delivered, May 13th 1867, by
Thompson, J.
— It does not admit of a doubt that a common barrier may by a special contract, and perhaps by notice, limit his /liability for loss or injury to goods carried by him, as to every cause of injury, excepting that arising from his own or the negligence of his servants. A great variety of cases cited in the very able argument of the learned counsel for the defendants, establish this as the rule in England, from Southcote’s Case, 4 Coke’s Rep. 84, A. D. 1601, down to The Peninsular and Oriental Steam Navigation Co. v. The Hon. Farquhar Shand, 11 Jurist 771, in 1865. The same rule generally holds in the several states in this country, as will appear in Story on Bailments, § 549 notes a and b; [59]*59Dow v. New Jersey Steam Navigation Co., 1 Kern. 484; and in the Supreme Court of the United States, York Co. v. The Central Railroad Co., 3 Wall. 107. This has long been the rule in this state, as is shown by Bingham v. Rogers, 6 W. & S. 495; Lang v. Calder, 8 Barr 479 ; The Camden and Amboy Railroad Co. v. Baldauf, 4 Harris 67; Chouteaux v. Leech, 6 Id. 224; Goldey v. The Pennsylvania Railroad Co., 6 Casey 242; and Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315.
That there was a special acceptance limiting the defendants’ liability to one dollar a pound in case of loss or destruction, in this case, is among the facts found in the case stated. The hills of lading, duly executed and signed by the agents of the defend; ants, containing the limitation, it is agreed were delivered to the plaintiffs, accepted by them and remitted to their agent at New York as his authority to receive the goods. These, therefore, were the terms on which the transporters shipped their goods and on which they were received to he transported. As this was a limitation of the common-law liability, we are to presume, of course, that the charge for transportation was in proportion to the risk, an element of charge in all such cases. The conditions of shipment on the bill of lading show this, by expressing the limitation to he. because of the “shipper declining to pay for any higher risk.” We have, therefore, a contract to transfer goods under a special agreement as to liability, and a consideration based, we must presume, on the undertaking in its limited form.
This limitation, we are warranted in saying, took the case out of the law of common carriers and carried it into one of the numerous classes of bailments, and it henceforth became liable to be governed by the law of the class.
The reason will be apparent on a moment’s reflection. The common law defines the duty and the liability in the one case— in the other the law is set aside by agreement of the parties, and they make a law for themselves, and thus they stand on the_ relation they create, and not on the law of common carriers.
By the common law the carrier is an insurer of the goods intrusted to him, excepting so far as they are damaged by the act of God or public enemies.
By a contract limiting liability he is an insurer by agreement, and according to its terms. If there be a loss, the agreement fur-. nishes the extent of liability and is confined to that, unless he can | show that the loss occurred from the wilfulness or negligence of \ the carrier. Plis liability is as a private carrier or bailee, a consequence of the limitation. This is settled in various forms of expression in numerous books and cases of authority. In Angelí on the Law of Carriers, § 268; it is said: “ Therefore, as I there has been occasion before to show that in cases of contract I [60]*60\and by means of notices, common carriers descend only to the (situation of private carriers for hire.”
In York Co. v. The Central Railroad Co., supra, this language is found: “ By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailee ; a private carrier for hire.”
In Goldey v. The Pennsylvania Railroad Co., 6 Casey 242, supra, we said the same thing in these words: “ The most it can do (the limitation), is to relieve them from these conclusive presumptions of negligence which arise when an accident happens that is not inevitable even by the highest care, and to require that (negligence be actually proved against them.” In the N. J. Steam Navigation Co. v. The Merchants’ Bank, 6 Howard 384, the principle is thus stated: “ The respondents having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such instruction.” The same principle appears in Marsh v. Horne, 5 B. & C. 322, where the limitation as to the extent in value of the liability was held to vary the relation and requires proof of negligence against the carriers. So in Harris v. Packwood, 3 Taunt. 264, this rule was applied. So also to this effect are Angelí on Carriers, § 276 ; Story on Bailments, § 573; 2 Greenleaf on Evidence, § 218; and Sager v. The B. R. Co., 31 Maine Rep. 228. Without pursuing further this line of thought we now proceed to determine how the case stands affected by these principles.
The plaintiffs shipped goods on the 8th of July 1864, by the defendants’ line to New York, under an acceptance of limited liability as well as notice. The goods were safely carried by the defendants to their wharf at New York, and placed under a shed on the wharf ready for delivery; but-before the plaintiffs had notice of their arrival or opportunity to remove them, a fire broke out on board a steamer of the defendant’s lying at the wharf, which entirely consumed the boat with her cargo, and also the wharf and shed and the goods therein, including the goods of the plaintiffs. The origin of the fire remains unknown. Watchmen employed by the defendants were on duty at the time, and the crew of the steamer were on board. These facts all appear in the case stated. It also appears that the defendants have paid to the plaintiffs the full amount of liability stipulated for, and assumed in case of loss in the bill of lading. Are they bound to the extent of the entire loss ? If so the exception or limitation would amount to nothing, not, it is true, because the limitation is void, but on a question regarding the burthen of proof.
Assuming the contract or special acceptance of the goods, to be carried by the defendants to bring them within the doctrine [61]*61applicable to bailments for compensation, the rule seems clearly to be: “ That where a demand of the thing loaned is made, the party must return it, or give some account how it was lost.
“If he shows a loss, the circumstances of which do not lead to any presumption of negligence on his part, then the burden of proof might, perhaps, belong to the plaintiff to establish it:” Story on Bailments, § 278. “ But if a suit should be brought
against the pawnees for a negligent loss of the pawn, then it would be incumbent on the plaintiff to support the allegations of his declaration by proper proofs, and the onus probandi in respect to negligence would be thrown on him:” Id., § 839, and note 4. “ With certain exceptions which will hereafter be taken notice of (as to innkeepers and common carriers), it would seem that the burden of proof of negligence is on the bailor; and proof merely of the loss is not sufficient to put the bailee on his defence:” Id., § 410. The text is supported by many authorities. The common law, consistent with itself in this, as in all other cases, lays the basis of this rule in the presumption that every person is presumed to do his duty until the contrary is proved. This is a great modification of the Roman law, which held the acts of faithlessness in a bailee as infamous and compelled him to acquit himself thereof by proof. The French rule as to proof is the same. The rule in England and in many of the states, if not all, is what Story states it to be ; supra. See Marsh v. Horne, 5 B. & C.; and Harris v. Packwood, 3 Taunt., supra; and Wyld v. Pickford, 8 M. & W. 460.
In Buckham v. Showers, 6 Rawle 179, speaking of a case of special acceptance to carry, and of suit against the bailee, Rogers, J., says: “ Less than positive proof” (of why the goods never reached their destination) “ would suffice; but some account should be given from which the jury would be warranted to infer that the goods had either been discharged, or had been lost by accident, or had gone into other hands than the defendants or his agents.”
This case shows that where a bailee accounts for a loss in a way not to implicate himself in a charge of negligence, this is a sufficient defence, unless the plaintiff proves negligence. This is the plaintiffs’ reply to the plea in excuse of performance. It is an affirmative position and must be proved by the party alleging it. It is true the plaintiff in the first instance, taking the present case as illustration, must have shown if it had been tried in the ordinary way, that he delivered the goods to'the defendants to be carried to New York, that their agent called for them and could not get them. There he might have rested to hear the reply, and that would be, proof that the goods were accidentally consumed by a fire breaking out on the steamboat at the wharf which consumed the boat, the wharf and buildings of the defend[62]*62ants and the goo.ds in them, including the plaintiffs’; that the boat had its complement of men on board and the defendants four watchmen on the wharf. Out of these facts negligence could not be inferred. The plaintiffs’ reply would be, therefore, “ All that may be true ; but the fire originated in your negligence.” Is it not perfectly clear that as that was not inferable from the defendants’ case that the plaintiffs must prove it ? This is not to be doubted. The same doctrine with that above cited, is also to be found.in Clark v. Spence, 10 Watts 335; in Goldey v. Pennsylvania Railroad Co., 6 Casey, supra; and the N. J. Steam Nav. Co., 6 Howard 384.
We think, therefore, that as the contract to carry these goods was as bailees for hire, and not as common carriers, and as they did carry them according to their agreement to the terminus of their line, and they were- there destroyed by fire, the defendants are not liable in the absence of proof of negligence, to respond to the plaintiffs’ claim. The doctrine is firmly settled that a common carrier cannot limit his liability so as to cover his own, or his servants’ negligence. Nor do I suppose this possible of any bailee. But it is clear that by contract, he may be placed in the position of a limited insurer, excepting negligence, instead of an insurer against everything but the act of God and public enemies. If he be compensated only for the former risk instead of the latter, at the choice of the consignor, it would be -contrary to common honesty to compel him to make good a risk he was not paid for assuming. We think the case was well decided at Nisi Prius, and the
Judgment is affirmed.
Woodward, C. J. — I dissent as to the onus prolandi.