The provisions of the Carmack Amendment, moreover, are applicable only to transportation in the United States and the Uniform Export Bill of Lading prescribed by the Interstate Commerce Commission in 1919 contains the provision that "no carrier shall be liable for loss, damage, or injury not occurring on its own road or its own water line or its portion of the through route, nor after said property has been delivered to the next carrier." 69 § 1106. Statutory limitation of liability. By statute passed for the encouragement of shipping 70 the United States limited the liability of a shipowner to such an amount as his share of the vessel bears to the whole, and the aggregate liability may not exceed the value of the vessel and freight. This legislation covers all liabilities in tort and in contract incurred without fault or personal volition on the part of the owner." But it does not limit the owner's liability upon such contracts as he may make personally.72 By the Harter Act of 1893,73 the owner's liability for the negligence of his servants is in some cases totally excluded, not merely limited. But the owner is prohibited from unduly limiting by contract his liability. The Harter Act, which applies to all vessels travelling between an American and a foreign port or from one American port to another,74 provides in section 1, that "it is unlawful for any vessel transporting merchandise to insert in any bill of lading or shipping document any clause relieving it from liability— 69 In the Matter of Bills of Lading, 52 Interstate Com. Com. 671. 70 Act of June 26, 1884, 23 U. S. Stat. 57, c. 121. 71 Richardson v. Harmon, 222 U. S. 96, 222 L. Ed. 110, 32 Sup. Ct. 27. The legislation protects foreign owners in United States court from liability beyond the statutory amount. The Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 Sup. Ct. 664. 72 Great Lakes Towing Co. v. Mills Transportation Co., 155 Fed. 11, 16, 83 C. C. A. 607, 612, 22 L. R. A. (N. S.) 769; The Loyal, 204 Fed. 930, 123 C. C. A. 252. Where the managing owner signed a charter party as agent for a partnership of which he was a member, there was no limitation of liability. Pendleton v. Benner Line, 246 U. S. 353, 38 S. Ct. 330, 62 L. Ed. 770. 73 27 U. S. Stat. 445, 3 U. S. Comp. Stat. (1901), p. 2946. 74 The Germanic, 196 U. S. 589, 49 L. Ed. 610, s. c. sub. nom. Ocean Steam Navigation Co. v. Aitken, 25 Sup. Ct. 317; Re Piper Aden Goodall Co., 86 Fed. 670. 'for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all merchandise or property committed to its. charge.' By the terms of section 2 of the Act, the owners, or agents, cannot insert in any bill of lading or shipping document, any clause lessening, weakening, or avoiding the obligations of the owners, to exercise due diligence to properly equip, man, provision, and outfit the vessel. Section 3 of the Act exempts vessels from liability for loss or damage resulting from faults or errors in navigation or in the management of the vessel, or from losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or inherent defect in the thing carried, [seizure under legal process, attempting to save life or deviating for that purpose] etc., provided the owner shall have exercised due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied." 75 Section 2 evidently "deals not with the general duty of the owner to furnish a seaworthy ship, but solely with his power to exempt himself from so doing by contract, when the particular conditions exacted by the statute obtain. Because the owner may, when he has used due diligence to furnish a seaworthy ship, contract against the obligation of seaworthiness, it does not at all follow that when he has made no contract to exempt himself he nevertheless is relieved from furnishing a seaworthy ship, and is subjected only to the duty of using due diligence." "6 The third section not only codifies certain exemptions from liability allowed by the admiralty and common law, but frees the owners entirely in the other cases stated in the statute." 75 The Jeannie, 225 Fed. 178, 184. 76 The Carib Prince, 170 U. S. 655, 660, 42 L. Ed. 1181, 18 S. C. Rep. 753, 755, quoted in The Jeannie, 225 Fed. 178, 185. See also Herman v. Compagnie Générale Transatlantique, 242 Fed. 859, 155 C. C. A. 447. 77 In The Silvia, 171 U. S. 462, 466, 19 Sup. Ct. 7, 43 L. Ed. 241, the court said: "This case does not require a comprehensive definition of the words 76 'navigation' and 'management' of a vessel, within the meaning of the act of Congress. They might not include stowage of cargo, not affecting the fitness of the ship to carry her cargo. But they do include, at the least, the control, during the voyage, of everything with which the vessel is equipped for the purpose of protecting her and her cargo against the inroad of the seas; and if there was any neglect in § 1107. A carrier may limit its liability by contract. The right of a private carrier to limit its liability is subject to the same qualification as the right of a warehouseman.78 The narrower power of a common carrier to do so has been thus stated: "Special contracts between the carrier and the customer, the terms of which are just and reasonable and not contrary to public policy, are upheld; such as those exempting the carrier from responsibility for losses happening from accident, or from dangers of navigation that no human skill or diligence can guard against; or for money or other valuable articles, liable to be stolen or damaged—unless informed of their character or value; or for perishable articles or live animals, when injured without default or negligence of the carrier. But the law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment." 79 Contracts may thus exclude liability for not closing the iron covers of the ports, it was a fault or error in the navigation or in the management of the ship. This view accords with the result of the English decisions upon the meaning of these words. Good v. London Steamship Owners' Association, L. R. 6 C. P. 563; The Warkworth, 9 Prob. Div. 20, 145; Carmichael v. Liverpool Shipowners' Association, 19 Q. B. D. 242; Canada Shipping Co. v. British Shipowners' Association, 23 Q. B. D. 342; The Ferro (1893), Prob. 38; The Glenochil, [1896] Prob. 10." In Hanson v. Haywood Bros., etc., Co., 152 Fed. 401, 402, 81 C. C. A. 527, the court said: "The departure from Charlevoix on the voyage to Chicago was an exercise of the master's prerogative in the management and navigation of the vessel, and we are of opinion that it was plainly within the terms and intent of the foregoing limitation of liability for faults or errors therein. Assuming (without deciding) that it was the duty of the master, not only to ascertain the full import of the reports 78 See supra, § 1046, ad fin. 79 Liverpool, etc., S. S. Co. v. Phenix Ins. Co., 129 U. S. 397, 441, 32 L. Ed. 788, 9 Sup. Ct. 469. See also New fire,80 loss by theft,81 by strikes or violence,82 by perils of the sea,83 or by leakage or breakage.84 In the uniform bill of lading recommended in 1908 by the Interstate Commerce Commission 85 and thereafter in general use on railroads in the northern and western parts of the United States both for interstate and intrastate shipments, it is agreed in consideration of a lower rate than that chargeable for carriage under common-law liability that "No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereof or damages thereto, by causes beyond its control; or by floods or by fire; or by quar Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465; Williams v. Central R. Co., 183 N. Y. 518, 76 N. E. 1116, affirming without opinion 93 N. Y. App. Div. 582, 88 N. Y. S. 434; Martin v. Central R. Co., 121 N. Y. App. Div. 552, 106 N. Y. S. 226; Feldman v. Old Dominion S. S. Co., 107 N. Y. Misc. 221, 176 N. Y. S. 183; Homer v. Oregon Short Line R. Co., 42 Utah, 15, 128 Pac. 522; Black v. Atlantic Coast Line R. Co., 82 S. C. 478, 64 S. E. 418, and see cases in the following notes. 80 Constable v. National Steamship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903; Rand v. Merchants' Transportation Co., 59 N. H. 363; Louisville, etc., Ry. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314. This exception covers injury by smoke and by water used to extinguish a fire. The Diamond, [1906] p. 282. 81 The Saratoga, 20 Fed. 869. 82 Richardson v. Samuel, [1898] 1 Q. B. 261; Gulf, etc., Ry. Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913. 83 Such an exception does not protect a shipowner from liability for damage primarily caused by original unseaworthiness of the vessel or by negligence in its management or loading, the Glenfruin, 10 P. D. 103; The Glendarroch, [1894] p. 226, or by an explosion in the vessel bursting open the ship and admitting sea water. The G. R. Booth, 171 U. S. 450, 43 L. Ed. 234, 19 Sup. Ct. Rep. 9. Proof of injury by sea water raises no presumption that the loss was due to perils of the sea. The Folmina, 212 U. S. 354; Herman v. Compagnie Générale Transatlantique, 242 Fed. 859, 155 C. C. A. 447. 84 Though this exception does not protect the carrier from the consequences of negligence in loading or otherwise which results in leakage or breakage, Philips v. Clark, 2 C. B. (N. S.) 156, the burden is upon the owner of the goods to establish that leakage or breakage when proved was caused by such negligence. Czech v. General Steam Co., L. R. 3 C. P. 14; The Henry B. Hyde, 90 Fed. 114, 32 C. C. A. 534; The Lennox, 90 Fed. 308. The difference between such a case where the fact of the injury brings the case within the exception in the absence of other evidence, and a case like that of wetting by sea water, where the injury being equally likely to have been caused in any one of several ways, no presumption is raised that it was caused by a peril of the seas, is pointed out in The Folmina, 212 U. S. 354, 53 L. Ed. 546, 29 Sup. Ct. Rep. 363. 85 In the Matter of Bills of Lading, 14 Interstate Com. Com. Rep. 346. antine; or by riots, strikes or stoppage of labor; or by leakage, breakage, chafing loss in weight, changes in weather, heat, frost, wet, or decay; or from any cause if it be necessary or is usual to carry such property upon open cars." In 1919 the Commission prescribed a form for domestic bills and one for export bills.86 In Section 1 of the conditions in the domestic bill it is provided: "No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, or delay caused by the act of God, the public enemy, the authority of law, or the act or default of the shipper or owner, or for natural shrinkage. The carrier's liability shall be that of warehouseman, only, for loss, damage, or delay caused by fire occurring after the expiration of the free time allowed by tariffs lawfully on file (such free time to be computed as therein provided) after notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination, or tender of property upon consignee's order, has been made. Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in transit upon the request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton or from delay caused by riots or strikes." An elaborate provision in regard to delay or damage by quarantine then follows. The export bill contains provision identical with the words quoted above, except that instead of the words "after placement of the property for delivery at destination, or tender of property upon consignee's order," the export bill reads, "after placement of the property for delivery at the port of export, or tender of property to the party entitled to receive it." In the export bill also the words "delay caused by" in the last line of the quoted paragraph are omitted, with the effect of excusing the carrier 88 In the Matter of Bills of Lading, 52 Interstate Com. Com. Rep. 671. |