On Petition for Rehearing.
The words "separate contract of affreightment" were used in the opinion because the plaintiff had not purchased a railroad ticket at the time when the special contract to carry the trunks from Havre to Paris was made. Therefore that contract was not strictissimi juris for the carriage of "baggage" and was a special contract of affreightment. Morgan v. Woolverton, 203 N.Y. 52, 96 N.E. 354, 36 L.R.A. (N.S.) 640; Saunders v. Southern Ry. Co. (C.C.A.) 128 F. 15. But we have not meant to say that the parties ever manifested an intention to have the obligation of a common carrier extend to belongings which could under no circumstances be considered "baggage," unless their nature was disclosed. The surrounding circumstances of this case contravene the imposition of any such unlimited liability.
Under our decision, the District Court on a new trial will be at liberty to determine what portion of the contents of the trunks was of the nature of "baggage," as that term is used in relation to belongings transported by virtue of the possession of a passenger ticket. So far as any portion of plaintiff's belongings was not of the nature of "baggage," defendant's liability for its loss was that of a bailee and not of a common carrier, unless defendant knew when it agreed to carry it that it might not be of that nature and consented to transport it as such. Humphreys v. Perry, 148 U.S. 627, 13 S. Ct. 711, 37 L. Ed. 587; Hannibal Railroad v. Swift, 12 Wall. 262, 20 L. Ed. 423; Saunders v. Southern Ry. Co. (C.C.A.) 128 F. 15. While, therefore, the special contract was one of affreightment, so far as defendant's liability as a common carrier was concerned, that contract applied only to articles of the nature of "baggage."
In view of the foregoing, it seems plain that there was no substantial variance between the complaint, which sought damages for failing to deliver "baggage" carried on a passenger ticket and the proof which showed a contract to carry belongings of the nature of "baggage."
The contention that we misconceived the nature of defendant's obligation under the special contract, because the defendant could not act as a common carrier for transportation of the trunks beyond its line by rail, is without merit. It is settled law that, if a common carrier contracts to carry beyond its line, "its common carrier liability will extend over the entire route." Atlantic Coast Line v. Riverside Mills, 219 U.S. at page 197, 31, S. Ct. 164, 55 L. Ed. 167, 31 L.R.A. (N.S.) 7. See, also, Northern Pac. Ry. Co. v. American Trading Co., 195 U.S. 439, 25 S. Ct. 84, 49 L. Ed. 269; Ogdensburg, etc., R.R. Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827. When the defendant entered into the special contract, it assumed the obligations of a common carrier in the transportation of the "baggage" from Havre to Paris.
The petition for a rehearing is denied.