The present contract of affreightment was for private carriage in New York harbor: The Fri, 154 F. 333; The G.R. Crowe, 294 F. 506; The Wildenfels, 161 F. 864; The C.R. Sheffer, 249 F. 600; The Lyra, 255 F. 667; The Nordhvalen, 6 F.2d 883, and thus gave to respondent the status of a bailee for hire of the molasses. Southern Ry. Co. v. Prescott, 240 U.S. 632, 640; Kohlsaat v. Parkersburg M. Sand Co., 266 F. 283; AlpineForwarding Co. v. Pennsylvania Railroad Co., 60 F.2d 734; Gerhard Hey, Inc. v. Cattaraugus T. Co., 241 N.Y. 413, 150 N.E. 500. Cf.
In the case at bar the Barge Company was acting as a private carrier and was therefore only a bailee; it is well settled that the burden rests upon the bailor to prove some breach of duty by the bailee other than his mere failure to return. Kohlsaat v. Parkersburg M. Sand Co., 4 Cir., 266 F. 283; Alpine Forwarding Co. v. Pennsylvania R.R., 2 Cir., 60 F.2d 734; Gerhard Hey Inc. v. Cattaraugus T. Co., 241 N.Y. 413, 150 N.E. 500. The Molasses Company acknowledged this by alleging in its claim as a fault that the barge was unseaworthy; it was obliged to do so; and, having done so, it had to persuade the judge or fail.
Plaintiff also does not tackle Section 2(7) ’s definition of a "common carrier of passengers by motor vehicle" as "providing services for the general public," instead falling back on the "broad definition" of a common carrier under New York common law, which is "one who agrees for a specified compensation to transport such property [or persons] from one place to another for all ... that may see fit to employ him." Vumbaca v. Terminal One Grp. Ass'n L.P. , 859 F. Supp. 2d 343, 370 (E.D.N.Y. 2012) (quoting Gerhard & Hey v. Cattaraugus Tanning Co. , 241 N.Y. 413, 150 N.E. 500, 501 (1926) ); seeSamuelsen v. Yassky , 29 Misc.3d 840, 911 N.Y.S.2d 570, 575 (Sup. Ct. 2010) ("Common law defines the term ‘common carrier’ as ‘one who carries passengers as well as one who carries goods, either when he carries the passenger and his merchandise or baggage or when he carries a traveler without his goods.’ ") (quoting Anderson v. Fidelity & Cas. Co. of New York , 228 N.Y. 475, 127 N.E. 584, 585 (1920) ).
“A common carrier ... is one who agrees for a specified compensation to transport such property [or persons] from one place to another for all ... that may see fit to employ him.” Gerhard & Hey v. Cattaraugus Tanning Co., 241 N.Y. 413, 150 N.E. 500, 501 (1926). Although carriers were once obligated to exercise a heightened duty of care, they are now “subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case.”
V. Rivera S. En. v. Texas N.O.R. Co. (La.), 31 So.2d 180; 49 U.S.C. § 81 et seq. III. The distinction between the absolute liability of the common carrier and the limited liability of the private or contract carrier to that of a bailee for hire. Belfast Ropework Co. v. Bushness, 1 K.B. 210, 8 B.R. Cas. 783; Gerherd v. Cattaragus Training Co., 241 N.Y. 413, 150 N.R. 500; High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 191 A. 536, 112 A.L.R. 86; Meridian Fair Assn. v. North Birmingham Street R. Co., 70 Miss. 808, 12 So. 555; 9 Am. Jur., pp. 435, 813; 13 C.J.S., pp. 43, 138; Bouvier's Law Dictionary, word "carrier". McGEHEE, C.J.
`Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally, or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon. They are not common carriers because they do not make the carriage of goods for themselves or others a business and they do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever.' (Hutchinson on Carriers [3d ed.], § 35.)" (See, also, Allen v. Sackrider, 37 N.Y. 341.) In Gerhard Hey, Inc., v. Cattaraugus T. Co. ( 241 N.Y. 413) this court (McLAUGHLIN, J.) said (p. 417): "The difference between a common and a private carrier is well understood. A common carrier of personal property is one who agrees for a specified compensation to transport such property from one place to another for all persons that may see fit to employ him. ( Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34; Stevenson Co. v. Hartman, 231 N.Y. 378, p. 381.
The fact that the buses were to call for the children at their various homes and were restricted to carrying the children called for under contract makes it quite evident that the ordinance was never intended to apply to such a case or situation. How could the Police Commissioner designate a route when these private conveyances, private in this sense and in this user, were to call for the respective customers at their homes? The ordinance has no application to this situation. The defendants have obtained every other license and permit required by law or ordinance, and complied with all regulations. (See Gerhard Hey, Inc., v. Cattaraugus Tanning Co., 241 N.Y. 413; Michigan Public Utilities Commission v. Duke, 266 U.S. 570.) The defendants are not guilty of violating the ordinance and the judgments should be reversed and the informations dismissed.
The main criterion as to whether he is the latter depends upon whether he holds himself out as ready to serve everyone of the public alike to the limit of his capacity, and within the sphere of the business carried on by him. In the case of Gerhard Hey v. Cattaraugus Tanning Co., 241 N.Y. 413, 150 N.E. 500, the court said: "The difference between a common and a private carrier is well understood.
Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 241 N.Y. 413.)
When a statute fails to define a given term, that term should "be given its precise and well settled legal meaning in the jurisprudence of the state" ( Matter ofMoran Towing Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173 [internal quotation marks and citations omitted). While not defined under the Tax Law, historically, a common carrier was one that, for a specified compensation, agreed to transport personal property from one place to another "for all persons that may see fit to employ [it]" ( Gerhard Hey, Inc. v Cattaraugus Tanning Co., 241 NY 413, 417 [1926]), and that holds itself "out to the public as a carrier, in such manner as to render [it] liable to an action if [it] should refuse to carry for any one who wished to employ [it]" ( Allen v Sackrider, 37 NY 341, 342-343 [1867]). By contrast, a private or contract carrier is one that carries for some particular person under some particular arrangement, but makes no public profession that it will carry for all who apply, nor is it required to ( see Matter of Motor Haulage Co. v Maltbie, 293 NY 338, 354 [1944]; Stevenson Co. v Hartman, 231 NY 378, 381 [1921]; Anderson v Fidelity Cas. Co. of N.Y., 228 NY 475, 481 [1920]; Allen v Sackrider, 37 NY at 342).