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sion of the subject. The first would be unthinkable, and the latter would be to revert to the uncertainties and diversities of rulings which led to the amendment. The duty to issue a bill of lading, and the liability thereby assumed, are covered in full; and though there is no reference to the effect upon state regulation, it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.

What is the liability imposed upon the carrier? It is a liability to any holder of the bill of lading which the primary carrier is required to issue "for any loss, damage, or injury to such property caused by it," or by any connecting carrier to whom the goods are delivered. The suggestion

To give

loss, damage, or injury, from any and every
cause, would be to make such a carrier an
absolute insurer, and liable for unavoid-
able loss or damage, though due to uncon-
trollable forces. That this was the intent
of Congress is not conceivable.
such emphasis to the words, "any loss or
damage," would be to ignore the qualifying
words, "caused by it." The liability thus
imposed is limited to "any loss, injury, or
damage caused by it or a succeeding
carrier to whom the property may be[507
delivered;" and plainly implies a liability
for some default in its common-law duty as
a common carrier.

themselves from all or a part of the common-law liability by rule, regulation, or contract; others did not. The Federal courts sitting in the various states were following the local rule, a carrier being held liable in one court when, under the same state of facts, he would be exempt from liability in another. Hence this branch of interstate commerce was being subjected to such a diversity of legislative and judicial holding that it was practically impossible for a shipper engaged in a business that extended beyond the confines of his own state, or a carrier whose lines were extensive, to know, without consider able investigation and trouble, and even then oftentimes with but little certainty, what would be the carrier's actual respon sibility as to goods delivered to it for transportation from one state to another. The that an absolute liability exists for every congressional action has made an end to this diversity, for the national law is paramount and supersedes all state laws as to the rights and liabilities and exemptions created by such transactions. This was doubtless the purpose of the law; and this purpose will be effectuated, and not impaired or destroyed, by the state courts' obeying and enforcing the provisions of the Federal statute where applicable to the fact in such cases as shall come before them." That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regu-fested by the proviso of the section, and lation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Con506]gress intended to take possession of the subject, and supersede all state regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the state upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the state ceased to exist. Northern P. R. Co. v. Washington, 222 U. S. 370, 56 L. ed. 237, 32 Sup. Ct. Rep. 160; Southern R. Co. v. Reid, 222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169.

But it has been argued that the nonexclusive character of this regulation is mani

that state legislation upon the same subject is not superseded, and that the holder of any such bill of lading may resort to any right of action against such a carrier, conferred by existing state law. This view is untenable. It would result in the nullification of the regulation of a national subject, and operate to maintain the confusion of the diverse regulation which it was the purpose of Congress to put an end to.

What this court said of the 22d section of this act of 1887 in the case of Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075, is applicable to this contention. It was claimed that that section continued in force all rights and remedies under the common law or other statutes. But this court said of that contention what must be said of the proviso To hold that the liability therein de- in the 20th section, that it was evidently clared may be increased or diminished by only intended to continue in existence such local regulation or local views of public other rights or remedies for the redress of policy will either make the provision less some specific wrong or injury, whether giv than supreme, or indicate that Congress en by the interstate commerce act, or by has not shown a purpose to take posses-state statute, or common law, not incon

sistent with the rules and regulations pre-made *was based upon a valuation of [509 scribed by the provisions of this act. Again, | $50 unless a greater value should be stated it was said of the same clause, in the same therein. The knowledge of the shipper that case, that it could not in reason be con- the rate was based upon the value is to strued as continuing in a shipper a common- be presumed from the terms of the bill of law right the existence of which would be lading and of the published schedules filed inconsistent with the provisions of the act. with the Commission. That presumption is In other words, the act cannot be said to strengthened by the fact that across the destroy itself. top of this bill of lading there was this statement in bold type: "This company's charge is based upon the value of the property, which must be declared by the shipper."

To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing Federal law at the time of his action gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would cause the 508] proviso to destroy the act itself. One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for a loss or damage incurred upon the line of the former. The liability of such succeeding carrier in the route would be that imposed by this statute, and for which the first carrier might have been made liable.

We come now to the question of the validity of the provision in the receipt or bill of lading limiting liability to the agreed value of $50, as shown therein. This limiting clause is in these words:

"In consideration of the rate charged for carrying said property, which is regulated by the value thereof, and is based upon a valuation of not exceeding $50 unless a greater value is declared, the shipper agrees that the value of said property is not more than $50, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than $50 if no value is stated herein."

That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 18 L. ed. 170; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872; Hart v. Pennsylvania R. Co. 112 U. S. 331, 338, 28 L. ed. 717, 720, 5 Sup. Ct. Rep. 151. The rule of the common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this, and he was liable for any loss or damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through any fair, reasonable, and just agreement with the shipper which did not include exemp tion against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.

It has therefore become an established rule of the common law, as declared by this court in many cases, that such a carrier may, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of ob

The answer states that the schedules which the express company had filed with the Interstate Commerce Commission showed rates based upon valuations; and that the lawful and established rate for such a shipment as that made by the plain-taining the lower of two or more rates of tiff from Cincinnati to Augusta, having a value not in excess of $50, was 25 cents, while for the same package, if its value had been declared to be $125, the amount for which the plaintiff sues as the actual value, the lawful charge, according to the rate filed and published, would have been 55 cents. It is further averred that the package was sealed, and its contents and actual value unknown to the defendant's agent.

*charges proportioned to the amount of [510 the risk. York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 18 L. ed. 170; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Hart v. Pennsylvania R. Co. 112 U. S. 331, 338, 28 L. ed. 717, 720, 5 Sup. Ct. Rep. 151; Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 322, 29 L. ed. $73, 878, 6 Sup. Ct. Rep. 1176; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 397, 442, 32 L. That no inquiry was made as to the ac- ed. 788, 792, 9 Sup. Ct. Rep. 469; New tual value is not vital to the fairness of York, L. E. & W. R. Co. v. Estill, 147 U. S. the agreement in this case. The receipt 591, 619, 37 L. ed. 292, 305, 13 Sup. Ct. which was accepted showed that the charge' Rep. 444; Primrose v. Western U. Teleg.

Co. 154 U. S. 1, 15, 38 L. ed. 883, 889, 14 Sup. Ct. Rep. 1098; Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 135, 42 L. ed. 688, 690, 18 Sup. Ct. Rep. 289; Calderon v. Atlas S. E. Co. 170 U. S. 272, 278, 42 L. ed. 1033, 1035, 18 Sup. Ct. Rep. 588; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 485, 48 L. ed. 268, 271, 24 Sup. Ct. Rep. 132.

That such a carrier might fix his charges somewhat in proportion to the value of the property is quite as reasonable and just as a rate measured by the character of the shipment. The principle is that the charge should bear some reasonable relation to the responsibility, and that the care to be exercised shall be in some degree measured by the bulk, weight, character, and value of the property carried.

Neither is it conformable to plain principles of justice that a shipper may understate the value of his property for the purpose of reducing the rate, and then recover a larger value in case of loss. Nor does a limitation based upon an agreed value for the purpose of adjusting the rate conflict with any sound principle of public policy. The reason for the legality of such agreements is well stated in Hart v. Pennsylvania R. Co. 112 U. S. 331, 338, 28 L. ed. 717, 720, 5 Sup. Ct. Rep. 151, where it is said:

"The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. 511]The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practised on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss."

courts of the states. Greenwald v. Barrett, 199 N. Y. 170, 175, 35 L.R.A. (N.S.) 971, 92 N. E. 218; Bernard v. Adams Exp. Co. 205 Mass. 254, 259, 28 L.R.A. (N.S.) 293, 91 N. E. 325, 18 Ann. Cas. 351. The exemption forbidden is, as stated in the case last cited, "a statutory declaration that a contract of exemption from liability for negligence is against public policy and void." This is no more than this court, as well as other courts administering the same general common law, have many times declared. In the same case, just such a stipulation as that here involved was up. held, the court saying:

"But such a contract as we are considering in this case is not an exemption from liability for negligence in the management of property, within the meaning of the statute. It is a contract as to what the property is, in reference to its value. The purpose of it is not to change the nature of the undertaking of the common carrier, or limit his obligation in the care and management of that which is intrusted to him. It is to describe and define the subjectmatter of the contract, so far as the parties care to define it, for the purpose of showing of what value that is which comes into the carrier's possession, and for which he must account in the performance of his duty as a carrier. It is not in any[512 proper sense a contract exempting him from liability for the loss, damage, or injury to the property, as the shipper describes it in stating its value for the purpose of determining for what the carrier shall be accountable upon his undertaking, and what price the shipper shall pay for the service and for the risk of loss which the carrier assumes."

In Greenwald v. Barrett, cited above, the same conclusion was reached as to the nature of the liability imposed and the purport of the exemption forbidden, the court, among other things, saying:

"The language of the enactment does not disclose any intent to abrogate the right of common carriers to regulate their charges for carriage by the value of the goods, or to agree with the shipper upon a valuation of the property carried. It has been the uniform practice of transportation companies in this country to make their charges dependent upon the value of the property carried; and the propriety of this practice and the legality of contracts signed by the shipper, agreeing upon a valuation of the The statutory liability, aside from re- property, were distinctly upheld by the sponsibility for the default of a connecting, Supreme Court of the United States in carrier in the route, is not beyond the lia- | Hart v. Pennsylvania R. Co. 112 U. S. 331, bility imposed by the common law, as that 341, 28 L. ed. 717, 721, 5 Sup. Ct. Rep. body of law applicable to carriers has been 151." interpreted by this court, as well as many To the same effect are the cases of Travis

v. Wells, F. & Co. 79 N. J. L. 83, 74 Atl. 444; Fielder v. Adams Exp. Co. 69 W. Va. 138, 71 S. E. 99; Larsen v. Oregon Short Line R. Co. 38 Utah, 130, 110 Pac. 983. See also Atkinson v. New York Transfer Co. 76 N. J. L. 608, 71 Atl. 278, as to the general rule.

That a carrier rate may be graduated by value, and that a stipulation limiting recovery to an agreed value, made to adjust the rate, is recognized by the Interstate Commerce Commission, see Re Released Rates, 13 Inters. Com. Rep. 550.

We therefore reach the conclusion that the provision of the act forbidding exemptions from liability imposed by the act is not violated by the contract here in question.

513] *The demurrer to the answer of the defendant below should have been overruled. For this reason the judgment is reversed, with direction to overrule the demurrer, and for such further proceedings as are not inconsistent with this opinion.

CHICAGO, BURLINGTON, & QUINCY RAILWAY COMPANY, Plff. in Err.,

V.

H. FRED MILLER.

(See S. C. Reporter's ed. 513-518.)

Commerce exclusiveness of Federal superseding state regulation carrier's liability.

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N ERROR to the Supreme Court of the State of Nebraska to review a judgment which affirmed a judgment of the District Court of Custer County, in that state, enforcing the liability of a carrier for the full value of a lost interstate shipment, notwithstanding a contract stipulation limiting the carrier's liability to the agreed value. Reversed and remanded for further proceedings.

See same case below, 85 Neb. 458, 123 N. W. 449.

The facts are stated in the opinion.

Messrs. Arthur R. Wells and Robert B. Scott argued the cause and filed a brief for plaintiff in error:

The publication and filing of the tariff schedules, and the strict prohibition of all departure therefrom, or of even engaging in commerce until they had been published and filed, were the means adopted by Congress to effectuate the purposes which Congress had in view in the enactment of the acts to regulate commerce, and to furnish a standard by which they might be enforced. New York, N. H. & H. R. Co. v. Inter

1. Congress has so manifested a purpose in the Carmack amendment of June 29, 1906, to the act of February 4, 1887, § 20, to take possession of the subject of the lia-state Commerce Commission, 200 U. S. 361, bility of a railway carrier for loss or damage to an interstate shipment, as to supersede all state regulations upon the same subject, including the provisions of state Constitutions or laws invalidating contracts limiting the carrier's liability to an agreed value, made to adjust the rate. [For other cases, see Commerce, I. c, in Digest Sup. Ct. 1908.].

Carriers limiting liability

value ment.

agreed effect of Carmack amend

2. The shipper and carrier of an interstate shipment are not forbidden to contract to limit the carrier's liability to an agreed value, made to adjust the rate, by the provisions of the Carmack amendment

NOTE.-State statutes regulating the liability of carriers with respect to shipments over connecting lines, as interference with interstate commerce see note to Skipper v. Seaboard Air Line R. Co. 7 L.R.A.(N.S.) | 388.

As to limitation of carrier's liability for loss to agreed valuation-see note to Everett v. Norfolk & S. R. Co. 1 L.R.A. (N.S.) 985. As to carrier's power to limit amount of

391, 50 L. ed. 515, 521, 26 Sup. Ct. Rep. 272; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. ed. 297, 34 L.R.A. (N.S.) 671, 31 Sup. Ct. Rep. 265; Southern R. Co. v. Reid, 222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; Chicago & A. R. Co. v. United States, 26 L.R.A. (N.S.) 551, 84 C. C. A. 324, 156 Fed. 563.

Although the Hepburn act gave the Commission power, upon complaint and hearing, tions, and practices, and to require their to prescribe reasonable rates, rules, regulaobservance, Congress left with the carriers the right, and charged upon them the duty of making in the first instance the rates liability in case of negligence generally— see note to Ballou v. Earle, 14 L.R.A. 433.

As to right to limit liability by contract in the absence of negligence-see note to Little Rock & Ft. S. R. Co. v. Cravens, 18 L.R.A. 527.

And, generally, as to liability of connecting carrier for loss beyond its own line-see note to Roy v. Chesapeake & O. R. Co. 31 L.R.A. (N.S.) 1.

which should be charged and the rules and regulations which should govern the transportation of property in interstate com

merce.

Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 479, 502, 42 L. ed. 243, 252, 17 Sup. Ct. Rep. 896; Interstate Commerce Commission v. Chicago G. W. R. Co. 209 U. S. 108, 119, 52 L. ed. 705, 713, 28 Sup. Ct. Rep. 493.

The carrier's rules and regulations fixing or affecting the amount of the rates charged or the value of the service rendered, when embodied in the published tariffs and filed with the Commission, became in effect regulations imposed by law, and had the same binding force upon the shipper and carrier as if they had been enacted by Congress itself.

Armour Packing Co. v. United States, 209 U. S. 56, 72, 80-83, 52 L. ed. 681, 691, 694, 695, 28 Sup. Ct. Rep. 428; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 476, 55 L. ed. 297, 301, 34 L.R.A. (N.S.) 671, 31 Sup. Ct. Rep. 265; Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802; Texas & P. R. Co. v. Mugg, 202 U. S. 242, 50 L. ed. 1011, 26 Sup. Ct. Rep. 628; Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075; Southern R. Co. v. Reid, 222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; Arkansas Fertilizer Co. | v. Interstate Commerce Commission, 193 Fed. 667; Poor v. Chicago, B. & Q. R. Co. 12 Inters. Com. Rep. 422; Blinn v. Southern P. Co. 18 Inters. Com. Rep. 430.

If the plaintiff believed that the rule contained in the published classification, making the rate dependent upon the declared valuation of the animal shipped, and binding the shipper by the value he placed upon the animal, was unreasonable in any respect, it was his duty to declare the true valuation upon which he desired to rely in case of the injury or death of the animal, and pay the rate assessed upon that basis, and then apply to the Commission for an order of reparation.

Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075; Baltimore & O. R. Co. v. United States ex rel. Pitcairn Coal Co. 215 U. S. 481, 54 L. ed. 292, 30 Sup. Ct. Rep. 164; Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155.

In some jurisdictions, contracts relieving the carrier from all losses not due to its gross negligence are valid and enforceable. In the majority of the states the rule is otherwise, and carriers may, for a valid consideration, limit their liability for such losses only as are not caused by their want

of ordinary care.

Upon this subject there has been little harmony in the decisions of the state courts.

6 Cyc. 385 et seq.; 1 Hutchinson, Carr. 3d. ed. §§ 388-492; 2 Wyman, Public Service Corp. §§ 1000-1026.

The common law as established by the Federal courts, whose decisions are alone controlling in this matter, forbids a common carrier from exempting himself from liability for his negligence and that of his servants, but does permit such special contracts restricting the full common-law responsibility of a common carrier as do not have that effect, and are otherwise just and reasonable in the eye of the law.

New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627, 10 Am. Neg. Cas. 624; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ed. 872; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; Cau v. Texas & P. R. Co. 194 U. S. 427, 48 L. ed. 1053, 24 Sup. Ct. Rep. 663.

In the absence of legislation by Congress, these conflicting state rules have governed interstate shipments.

Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 42 L. ed. 688, 18 Sup. Ct. Rep. 289; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. Rep. 132.

The common law of the United States, as interpreted by the Supreme Court, had long permitted carriers to offer alternative rates based upon the value of the goods, and bind the shipper by a designated valuation of the goods. Such contracts are not considered to free the carrier from the consequences of its negligence.

New York C. & H. R. R. Co. v. Fraloff, 100 U. S. 24, 27, 25 L. ed. 531, 533; Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717, 5 Sup. Ct. Rep. 151; Primrose v. Western U. Teleg. Co. 154 U. S. 1, 15, 38 L. ed. 883, 890, 14 Sup. Ct. Rep. 1098; Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 135, 42 L. ed. 688, 690, 18 Sup. Ct. Rep. 289; The Queen of the Pacific, 180 U. S. 49, 57, 45 L. ed. 419, 422, 21 Sup. Ct. Rep. 278, 1 L.R.A. (N.S.) 985, note.

It is a long-established and equitable principle of rate making, that rates and classifications shall in part be based upon the value of the commodities and the carrier's risk in case of loss or injury in transit. It has been recognized and enforced by the Commission.

Southern Cotton Oil Co. v. Louisville & N. R. Co. 18 Inters. Com. Rep. 180; National Hay Asso. v. Lake Shore & M. S. R. Co. 9 Inters. Com. Rep. 307, 19 Inters. Com. Rep. 47; Proctor & G. Co. v. Cincinnati, H. & D. R. Co. 9 Inters. Com. Rep. 482; Tift v. Southern R. Co. 10 Inters. Com. Rep. 587;

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