The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-05-23

carrier relies upon an exemption con-
tanned in a general notice it is incum-
bent upon him to show not only that
the notice was brought to the knowl-
edge Of the shipper, but that the
shipper expressly asssnted to il; in
other words, to prove that there was
something more than mere notice,
that is, contract. On the other
hand, by the great weight Of author
ity it is settled that where the exemp-
ton is inserted in the body Of the
bill OF lading in a way not calculated
to deceive, the mere acceptance Of tho
bill by the shipper Is, in the absence
OF fraud, imposition or mistake, evi-
dence Of his assent to its terms. The
reason is that the bill Of lsding is q
contract as well as a receipt. and q
person who accepts a contract,
though signed by the other party
alone, is presumed to have acquainted
himself with its contents and to have
assented to its terms.
The case chiefly relied upon by the
plaintiff is Railroad Co. g. MGagac-
turing Co., Is Wall, 3lS, in which the
Supreme Court Of the United States
held that the acceptance Of q receipt
by consignor without dissent was
not sufficient evidence of a contract
to exempt the carrier from liability,
the exemption clause being merely
an unsigned general notice printed
on the back of the receipt. But the
ground OF the decision was that the
exemption clause was a mere notice
and no part of the contract contained
in the bill Of lading. In later case,
Bank Of Kentucky C.. adams Erp. Co.,
81 U. s., ia, in which the exemption
clause was inserted in the BODY Of
the bill Of lading, the same court took
very different view. The circuit
judge had instructed the Jury in sub
stance as follows: IF you believe
that the consignor presented the bill
of lading to the agent of the carrier
for his signature, with the blanks
filed, and at such time de-
hvered to him the package,
without disclosing its owner, but adj
dressed to the consIgnee, that the
bill was signed and re delivered to
the consignor, and forwarded 20 the
cOnsignee, then the bill of lading
constitutes the contract, and all the
exceptions in it are part of the con-
tract, no matter whether each or all
of them were known to the consignor
or not; and the consigee is bound by
the contract, whether il expressly
authorized the consignor to make il
or not. The evidence tending to
show that the bill of lading was not
read at the time OF signing, and that
nothing was said about the exceD-
lions contained in it, is immateriaI."
The'Suprems Court said: ave fad
no error in what the circuit Judge
said upon the question whether the
bills Of lsding, with the exceptions,
constituted the contract between the
parties. The charge in this particu-
lar is justified by very numerous au-
thorities," citing, among others, the
case of Grace %. adams, 100, Mass. 500,
in which the Court said: "rhe terms
and conditions (of the receipt) are ex-
pressed in the body of it in a way not
calculated to escape attention The
acceptance of it by the plaintiff, at
the time of the delivery Of his pack
age, without notice of his dissent
from its terms, authorized the de-
PENDANTS to infer assent by the
plaintiff. 1t was his only voucher
and evidence against the defendants.
1t is not claimed that be did not
know, when he took il, that it vas a
shipping contract or bill Of lading.
1t was his duty to read il. The law
presumes, in the absence OF fraud or
imposition, that he did read it, or
was otherwise informed of its con-
tents, and was willing to assent to it's
terms without reading it."
In Mich. r. r. Co g. Hale, Mich,
244, the bill Of lading with the
notice printed on the back, was in
the same words a. that in Railroad
Go. Us Manufacturing Co., supra, and
the reasoning and conclusion Of
the Court were also the same.
But in the later case Of
Is. Mtcf-. =. n ". 4. r. n
Co., 16 Mich, 113, in which the
exemption clause was inserted in the
body of the bill Of lading as part Of
the contract, the same Court held
differently, taking the same view a.
was taken by the Supreme Court Of
the United States in the later care
Of Bank Of kentucky Us. adams ExP. Co.
cited supra.
1t is true that some courts. more
the Illinois courts. hOid
that the carrier must show sffirma
lively that the shipper knew. aud
to, the terms Of the receipt.
but the decisions OF nearly ali Of the
courts in which the question has
arisen are the other way. See. IN
addition 10 the cases above cited,
Saidsr o. adams E1p. Co., So No. 376:
O rmaHia Fire ms Co. %. n. q y Co,
Y N. Y. 81; H0adley o. NorfAern
Trans. Go , lis Mass 304; Muiligan C..
TR. O. r Co, Sc Ia 1S1; Lasysaes g.
v. 7, p q B r. Co, 36 C"nn So;
King % Woodbridge, "a v 566; F1ra