The opinion of the court was delivered, by
Woodward, C. J.Charles Yan Horn having bought 7000 boxes of army bread at Washington, in the fall of 1865, 6000 for Graver and 1000 for himself, went to Alexandria, where the bread was stored, and arranged with M. E. Eldridge, the accredited agent of the defendants at that place, for the transportation of the boxes by their express line to Philadelphia. The agreement was reduced to writing in these words :—
“ Alexandria, November 11th 1865.
“Will take the 7000 boxes of bread, usual size, at 10 cents a box freight, to be carried at our convenience, within twenty days, to Philadelphia.
“Signed, “M. Eldridge & Co.,
“ Express line.” “ Agents.”
Orders had to be obtained from the proper department at Washington for the delivery of the boxes out of the storehouses at Alexandria, and as Yan Horn wished to return immediately to Philadelphia, he requested Eldridge to go to Washington and get the orders, which Eldridge agreed to do. Some of them were obtained with considerable difficulty, but Eldridge finally got them and shipped several lots of the bread, which arrived safely. The last lot of 1000 boxes were shipped on board the steamer “ Liberty,” which, on her way down the Potomac took fire, and was totally consumed, with her whole cargo, including the bread.
The action was assumpsit against Clyde & Co., common carriers, for this lot of bread. No bill of lading was executed, but upon the trial the defendant offered to show that the form of bill which they ordinarily gave excepted dangers by fire.
The court rejected the evidence, and we think rightly. The excepting clause in a bill of lading which was not issued, was certainly irrelevant. The contract under which the shipment was *254made contained no such exception, and it was scarcely worth while for the court and jury to inquire what exceptions would have been found in a bill of lading had one issued, or that the defendants’ úsual course of business was to except fire risks.
But inasmuch as Eldridge had undertaken, at the instance of Van Horn, to procure the orders for the several lots of bread, and to attend to the shipment of it, the court was asked to rule that he became the plaintiff’s agent, and if he knew of the terms on which the steamer undertook to carry, and did not dissent from them, the defendants were not liable, for it was customary to except losses by fire. • This was a very ingenious but too artificial a mode of transferring 'the loss by fire from the defendants to the plaintiff. Doubtless, Eldridge knew the usual conditions upon which the defendants received goods for trahsportation, for he was their proper agent, but there was no evidence to affect the plaintiff with notice of the exception of risks from fire, for Eldridge was not his agent. He acted as the agent of the defendants in procuring this freight, and in defining in writing the terms of the transportation ; and that he acted within his powers is shown by their acquiescence in the transportation of the several lots before the last. The contract to carry was made in November 1865, and from that time to the 4th of the ensuing Januai’y, during which the bread was arriving in Philadelphia, was long enough for the defendants to learn on what terms the shipments were made, and to disaffirm them if they transcended the powers of their agent. Van Horn was jdaintiff’s agent, but he had notice of no such condition as is now attempted to be imposed upon the plaintiff. The case resembles in these features that of Bean v. Green, 8 Fairfield R. 422, where the owners of a line of stages were sued for the loss of a trunk that had been delivered to their driver by a postmaster, with whom the plaintiff had left the trunk, but the fare for which had not been paid, nor was it entered in the way-bill. The proprietors had given notice and brought it home to the postmaster that they “ would not be accountable for any baggage unless the fare was paid, and the same was entered on the way-bill,” and the» attempt there was, as here, to affect the plaintiff with notice through the so-called agent. But the court said the postmaster could not be regarded as the agent of the owner, but might with at least equal propriety be deemed the agent of the defendants, and on this ground overruled the defence.
The propriety of regarding Eldridge exclusively as the agent of the defendants in this case is much more apparent than the ruling in that case. For as the local agent of the defendants, it was according to his employment to solicit freight, to accommodate customers, and to facilitate shipments. And all that he did in the premises was known to his employers, and tacitly approved by them until liability attached. The attempt to affect *255the plaintiff with the excepting clause of the bill of lading, not adopted in this instance, was properly overruled.
The only other ground of defence was upon the Act of Congress of 3d March 1851, Bright. Dig. 834, which exempts owners of any ship or vessel from liability for loss of goods by means of “ any fire happening to or on board of any such ship or vessel, unless such fire is caused by the design or neglect of such owner or owners.” But the 56th section of the act provides that it shall not apply to the owners of any “ canal-boat, barge or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation.” As the fire in this instance was not caused by design or neglect, the only question upon this statute is whether the steamer was used in rivers or inland navigation. And on this point there can be no doubt. Her route was by the Potomac river, Chesapeake Bay, Chesapeake and Delaware Canal, and Delaware river to Philadelphia; and Smith, her master, swore that “ we do not go to sea on this route, as Ave do not go outside Cape Henry.” Thus the passage through Chesapeake Bay is inland navigation, as that by the rivers Potomac and DelaAvare confessedly is. This case falls then within the 7th section of the Act of Congress, and the common-law liability of the carrier remains as if the act had not been passed.
The judgment is affirmed.