"By the Court,
Cole, J.' This is a'complaint filed under' the provisions of chapter 116,'R. S.; for damages -accruing from the non-performance or mal-performance of a contract of affreight-nient. The question of jurisdiction which was raised in the case, is the one which naturally first’presents itself for our consideration.
*463It was objected in the court below-, by the.: plaintiff in error, that this statute was intended only to apply to domestic vessels, or those chiefly used upon the waters of this state, and did -not extend to boats which, like the Sultana, were used in navigating the lakes from Buffalo to Chicago, stopping merely:at the ports of this state, to" receive':and discharge..freight and .passengers.
Upon examining the statute, its obvious object and purpose appear to be to provide a remedy, by-a .proceeding in rem, for the collection of demands arising upon various grounds mentioned in the statute; and it seems to ■ contemplate proceedings for that purpose against 11 every boat, or vessel used in navigating the waters .of this state.”' The eastern boundary of. the state is a line running along the middle of Lake Michigan, and a vessel used in navigating the lake within this line, comes within the plain meaning and language of the act. The statute does not make any distinction, in its terms, between a vessel solely and exclusively used upon the waters of this state, and those passing beyond its boundaries; nor can we see why any such distinction should exist. We venture to. say, that there are very few vessels used in navigating the waters of this state that belong to the former class! And if the provisions of the statute do not apply to boats which, like the Sultana, are used in navigating waters beyond,-as well as waters within the boundary of this state, they are of but little avail;. If this construction is given to the act, there is scarcely a boat on Lake Michigan, and. not one upon the Mississippi and Wisconsin rivers, to which the .proceeding given by it would apply. It is suggested upon the -brief of the counsel for the plaintiff in error, that to hold that the. prdr visions of this statute extend and apply to boats not exclusively used upon the waters of this state, -may be attended with, consequences most detrimental to the interests of commerce, and hazardous to the peace and harmony of the states of the Union.
We deem these apprehensions entirely groundless. At all events, unless the remedy by-a proceeding in rem is to-be abol-ishedy-we are unable to understand how commerce is to be. more carefully protected, or the peace and harmony of the country *464more fully secured, by giving tbe United States District Courts exclusive jurisdiction of these causes. Will not all tbe objections taken to tbe state courts entertaining jurisdiction of tbis proceeding, when directed against a vessel used in navigating tbe waters of tbis and other states, apply with equal force to tbe admiralty jurisdiction of tbe federal courts ? It seems to us that they do. But we have no doubt of tbe jurisdiction of the Circuit Court, under this statute, of tbe case, and we therefore, without further comment, proceed to notice other questions raised in the eause.
Tbe cause of action set forth in tbe complaint was, tbe nonperformance or mal-performance of a contract made with the master of the Sultana, to transport and deliver certain goods at Milwaukee, shipped at Buffalo. The boxes containing the goods were marked in tbe name of tbe defendant in error, and consigned to the care of Dousman & Co., forwarders and ware-housemen at Milwaukee. The goods in controversy were landed by tbe boat in tbe night at Higby’s pier, a place at some distance from the place of business of Dousman & Co.; and by Higby’s men placed in the warehouse there, where they were burned, with the warehouse and pier, before morning. The bill of lading contained an exception from all losses occasioned by navigation, fire and collision. It seems to have been the practice of the Sultana to land her goods for Milwaukee, at Higby’s pier, where they were generally received by the persons to whom they were consigned.
One ground relied upon by the plaintiff in error to defeat a recovery, was the exception in the bill of lading, exempting the carrier from loss occasioned by fire ; and the court was asked to instruct the jury that this exception was not void as against the policy of the law ; which instruction tbe court refused to give, and-'this refusal is assigned for error here. And the cause has been argued in this court as though our decision must necessarily involve the determination of the question, as to whether a common carrier can restrict bis common law liabilities by such an exception in a bill of lading, or by a special contract with the owner of the goods. On the one hand, it is contended that it is *465against public policy to permit a common carrier thus to restrict bis liability, even by a special agreement with the employee, and that the courts will not and ought not to sustain such contracts; and in support of this doctrine, relying upon the arguments and reasons given in the case of Hollister vs. Nowlen (19 Wend. 234); Cole vs. Goodwin (id. 251), and the subsequent case in 2 Hill, 623; while upon the other side, it is insisted that no solid reason can be assigned why a party contracting with a common carrier should not, if he so pleases, make a special agreement, assuming the risk of fire himself, and thus save the additional price which he would have to pay for the insurance of the goods against such a loss ; that such agreements, when fairly made, are perfectly valid, and should be enforced ; citing for authority, upon this point, a number of English cases decided within the first thirty years of the present century, and also the following cases: N. J. Steamboat Navigation Co. vs. Merchants’ Bank, 6 How. R. 344; Parsons vs. Monteith et al., 13 Bar. S. C. Rep. 353; Dorr vs. N. J. Steam Navigation Co., 4 Sand. 136; S. C., 1 Kernan, 485.
From the view which we have taken of this case, we do not feel called upon to decide, whether a special agreement to exempt a common carrier from the liabilities of his employment, was made in this case, and whether, if made, it is an agreement that should be enforced; but conceding that the carrier might, and did limit his responsibility in this case by the exception in the bill of lading, we are still of the opinion that this judgment must be affirmed.
It will be remembered that these goods were consigned to Dousman & Co., who had a warehouse and place of business perfectly accessible to the boat. It was the duty of the carrier to deliver these goods at Dousman & Co.’s pier, the proper place of destination, to the consignees. That was their contract, in the absence of all custom or established usage of trade to deliver them elsewhere. But for the convenience of the boat, the-goods were delivered at Higby’s pier, not at Dousman & Co.’s,, and were there destroyed. The plaintiff in error insisted upon, the trial, that under the proof, a delivery at Higby’s pier was a *466•delivery to Dousman & Co., and tbe court left tbe question fairly to tbe jury to determine whether there was any general usage or custom among tbe forwarders at Milwaukee, or any arrangement to which Dousman & Go. and Higby were parties, by which consignees of goods were to receive such goods on the pier at which the boats usually stopped-; and to say whether by such custom or usage, a delivery at Higby’s pier was a delivery to Dousman & Co.; and if the jury should find these questions in the affirmative, that then the boat was discharged .from liability for the subsequent loss. And the jury were likewise instructed to find whether Higby was the agent as well of the owners or consignees of the goods as of the boat, being the agent of the owners and consignees to receive the goods, and of the boat merely for the purpose of collecting dues ;• and if so, that then the delivery to Higby was a delivery which would exonerate the boat from further liability. All these questions were found by the jury in the negative, and this finding must be considered as conclusive. There was not then a delivery of the goods at the proper place to a person authorized to receive them, but they were deposited at a place where the boat had no right to leave them, and were there destroyed. Under such circumstances, notwithstanding the exception in the bill of lading, which, for the purposes of this case, may be considered a valid exception, and still it does not exempt the carrier from liability for this loss. He had no right to place these goods where he did; and having done so, and a loss' having ensued, he must be held responsible for it, as being occasioned by his own negligence or misconduct.
It is believed that these remarks have sufficiently disposed of all the questions which we deem material in the case.
The judgment of the Circuit Court is therefore affirmed, with