Federal Internet Law & Policy
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History: Common Carriage & Bailment Dont be a FOOL; The Law is Not DIY
- Common Carrier
- History
- Theory
- -Bailment
- - Market Power / Essential
- Duties
- - Non discrimination
- - Refusal to carry
- -Interconnection
- Benefits
-Telecom Carriers
- Telephone
- - AT&T

William Jones, The Common Carrier Concept as Applied to Telecom: A Historical Perspective (~1980)

Beginning at least as early as the decision in Morse v. Slue, the English courts imposed upon common carriers distinctive responsibilities for goods in their possession. They were held to be insurers, responsible for the safe delivery of goods entrusted to them, absent intervention by act of God or the King's enemies. The doctrine was designed to protect shippers against breaches of trust on the part of carriers. As stated in the leading case of Coggs v. Bernard, the rule is

contrived by the policy of the law, for the safety of all persons, the necessity of the whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else the carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., yet doing it in such a clandestine manner, as would not be possible to be discovered.

A similar these was articulated in Foward v. Pittard [See also Dale v. Hall, (1750); Hyde v. Navigation Co., (1793).] where a common carrier by wagon was held responsible, in the absence of negligence, for the loss of goods in a fire.

[T]o prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the King's enemies or by such act as could not happen by the intervention of man, as storm, lightening, and tempests. . . [The carrier is not excused in the event of robbery] for fear it may give room for collusion, that the [carrier] may contribe to be robbed on purpose, and share the spoil.

It also was asserted that the rule of strict liability had a tendency to make carriers more careful. [Proprietors of Trent Navigation v. Ward, (1785)].

These peculiar responsibilities of common carriers appear not to be related to any concept of monopoly. Neither the facts nor the reasoning of the leading cases suggest that common carriers generally, or the particular carriers before the courts, possessed monopoly power. Indeed, there is a strong indication to the contrary, for as early as Morese v. Slue, and consistently thereafter, the English courts permitted common carriers to revise the terms of their responsibilities by special contracts with shippers. If monopoly were the basis of the carrier's special responsibilities, it would be inconsistent with the policy of the law to allow the carrier to avoid its responsibilities in this manner, at least in the absence of close scrutiny.

Furthermore, this branch of the law of common carriers was concerned almost exclusively with bailments (the custody of goods). While there is dicta concerning the common carrier's duty to serve, and to charge a reasonable price, these almost invariably were steps in judicial reasoning designed to establish a consideration for the carrier's responsibility (the chipper's duty to pay) [Bastard v. Bastard] or a justification for contracts providing exemptions from strict liability (the shipper's right to obtain service free of the contractual exemption on demand). [Harris v. Packwood] The reported cases disclose no instances of litigation concerned with the reasonableness of a carrier's rates, and only one instance of a suit for refusal to serve. [Jackson v Rogers] Writing in 1879 on Common carriers and the Common Law, Oliver Wendell Holmes considered the sole issue to be the responsibilities of carriers for the safe deliver of goods in their possession. [Holmes]. -- [Jones A-13]

Liability of Common Carrier as Bailee



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