Carriage of goods. Historical development

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Until the development of railroads, the most prominent mode of transport was by water. Overland transportation of goods was relatively slow, costly, and perilous. For this reason, the law governing carriage of goods by sea developed much earlier than that governing inland transportation. The preclassical Greek city-states had well-developed laws dealing with the carriage of goods by sea, along with specialized commercial courts to settle disputes among carriers, shippers, and consignees. The sea laws of the island of Rhodes achieved such prominence that a part of them was carried, many centuries later, into the legislation of Justinian.

In Roman law the contract of carriage did not achieve the status of a distinct contractual form; jurisconsults (legal advisers) dealt with it in the framework of the contractual forms known to them, such as deposit and hire of services or of goods. There was special regulation only insofar as the responsibility of the carrier was concerned: shipowners (nautae), along with innkeepers and stable keepers, were liable without fault for destruction of or damage to the goods of passengers. Nevertheless, they could be relieved of responsibility by proving that the loss was attributable to irresistible force.

In English common law the principles applying to the relationship between the carrier and his customers go back to a time when neither railways nor canals existed. Whether influenced by Roman law or derived quite independently, early English decisions imposed on carriers the obligation not only to carry goods but to carry them safely and to deliver them in good condition to the owner or his agent. The carrier was always liable for the loss of the goods and also liable for any damage to the goods, unless he could prove that the loss or damage had resulted from an excepted cause. This duty of the carrier to deliver the goods safely was considered to exist without regard to obligations arising under any contract between the parties. It was imposed upon him by the law because he had been put in possession of another’s goods. In legal language, this meant that the carrier was considered to be a bailee, who, in certain circumstances, was liable to the bailor if he failed to deliver the goods intact. This law of bailment developed in England long before the law of contract. The contractual element of bailment was not stressed until after the 17th century. Today, in common-law countries, the rights and liabilities of shippers, consignees, and carriers are in the large majority of cases based on a contract of carriage, whether express or tacit. The mere fact that, in the ordinary course of his business, a carrier accepts goods for carriage and delivery implies the making of a contract of carriage. The right of the carrier to claim the freight depends on this contract, and this contract is also the foundation of his duty to carry the goods safely to their destination. But there remain vestiges of bailment in the law of carriage of goods. Thus, the owner of the goods, though not a party to the contract of carriage between the shipper and the carrier, may sue the carrier for loss of or damage to his goods.

In civil-law countries, the contract of carriage first achieved distinct form in the early 19th century. The French Civil Code of 1804, following the Romanist tradition, still dealt with the contract of carriage as a species of the contract for the hire of services and further subjected carriers to the same obligations as depositaries; but the French Commercial Code of 1807 established a special legal regime for professional carriers, making the contract of carriage a distinct contractual form. Subsequent civil and commercial legislation in civil-law countries gave expression to the same idea. Today, in the civil-law world, the contract of carriage may be regarded as a variation of the contract for the hire of services, namely, a contract whereby one of the parties engages to do something for the other party in consideration of a price agreed upon between them. Specifically, the contract of carriage of goods may be defined as the contract whereby a professional carrier engages to carry goods in accordance with a determined mode of transport and within a reasonable time, with the understanding that the carriage of the goods is the principal object of the contract.

In France and in a great number of countries following the French system, a contract of carriage requires the presence of three indispensable elements: carriage, control of the operation by the carrier, and a professional carrier. If any of these elements is missing, the contract is one for the hire of services rather than a special contract of carriage. The classification of a contract as a contract of carriage involves significant legal consequences. Exculpatory clauses in a contract of carriage are ordinarily null and void; receipt of the goods by the consignee and payment of the freight without protest within a designated period of time exclude all actions against the carrier; actions that may be brought against the carrier are subject to a short period of limitation, that is, one year; the carrier has a privilege, which corresponds to a common-law lien, on the things carried for the payment of the freight; and, finally, either party to a contract of carriage may demand that experts determine the condition of the things carried or intended to be carried.

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